an act for reviving an act impowering judges for probate of wills, and granting administrations public general acts. 1659. england and wales. this text is an enriched version of the tcp digital transcription a82409 of text r211226 in the english short title catalog (thomason 669.f.21[61]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 1 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a82409 wing e1065b thomason 669.f.21[61] estc r211226 99897902 99897902 135456 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a82409) transcribed from: (early english books online ; image set 135456) images scanned from microfilm: (early english books, 1641-1700 ; 2555:18) an act for reviving an act impowering judges for probate of wills, and granting administrations public general acts. 1659. england and wales. 1 sheet ([1] p.) printed by john field, printer to the parliament. and are to be sold at the seven stars in fleetstreet, over against dunstans church, london : 1659. dated at end: tuesday, july 19. 1659. ordered by the parliament, that this act be forthwith printed and published. tho. st nicholas clerk of the parliament. continues an act passed on 19 may 1659, until 10 october 1659. steele notation: aubate hundred. reproduction of original in the henry e. huntington library. eng law -great britain -history -early works to 1800. courts -law and legislation -england -early works to 1800. great britain -politics and government -1649-1660 -early works to 1800. broadsides -england a82409 r211226 (thomason 669.f.21[61]). civilwar no an act for reviving an act impowering judges for probate of wills, and granting administrations. england and wales 1659 152 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2007-10 tcp assigned for keying and markup 2007-10 apex covantage keyed and coded from proquest page images 2007-11 mona logarbo sampled and proofread 2007-11 mona logarbo text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion blazon or coat of arms an act for reviving an act impowering judges for probate of wills , and granting administrations . be it enacted by this present parliament , and the authority thereof , that one act made this parliament since the seventh of may one thousand six hundred fifty nine , entituled , an act impowering judges for probate of wills , and granting administrations , is hereby revived , and the powers and authorities given by the said act , shall continue until the tenth day of october one thousand six hundred fifty nine . tuesday , july 19. 1659. ordered by the parliament , that this act be forthwith printed and published . tho. st nicholas clerk of the parliament . london , printed by john field , printer to the parliament . and are to be sold at the seven stars in fleetstreet , over against dunstans church , 1659. an act impowering judges for probate of vvills, and granting administrations public general acts. 1659. england and wales. this text is an enriched version of the tcp digital transcription a82471 of text r211184 in the english short title catalog (thomason 669.f.21[36]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 2 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a82471 wing e1140 thomason 669.f.21[36] estc r211184 99897901 99897901 135451 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a82471) transcribed from: (early english books online ; image set 135451) images scanned from microfilm: (early english books, 1641-1700 ; 2555:20) an act impowering judges for probate of vvills, and granting administrations public general acts. 1659. england and wales. 1 sheet ([1] p.) printed by john field, printer to the parliament. and are to be sold at the seven stars in fleetstreet, over against dunstans church, london : 1659. dated at end: ordered by the parliament, that this act be forthwith printed and published. passed the 19th of may 1659. tho. st nicholas clerk of the parliament. steele notation: authopowered june. annotation on thomason copy: "may. 20.". reproduction of original in the henry e. huntington library. eng law -great britain -history -early works to 1800. courts -law and legislation -early works to 1800. great britain -history -commonwealth and protectorate, 1649-1660 -early works to 1800. broadsides -england a82471 r211184 (thomason 669.f.21[36]). civilwar no an act impowering judges for probate of vvills, and granting administrations. england and wales 1659 250 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2007-10 tcp assigned for keying and markup 2007-10 apex covantage keyed and coded from proquest page images 2007-11 emma (leeson) huber sampled and proofread 2007-11 emma (leeson) huber text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion blazon or coat of arms incorporating the commonwealth flag (1649-1651) an act impowering judges for probate of vvills , and granting administrations . be it enacted by this present parliament , and by the authority thereof , that john sadler , john sparrow , and samuel moyer , esqs , be , and are hereby nominated and appointed iudges for the probate of wills , and granting administrations . and the said john sadler , john sparrow , and samuel moyer , or any two of them , are hereby authorized , impowered and required to hear , order , determine , adjudge and decree in all matters and things , as iudges for the probate of wills , and granting of administrations in as full , large and ample maner as any other iudge or iudges for probate of wills , and granting of administrations at any time heretofore might or ought lawfully to do : to have , hold , exercise and enjoy the said office or place of iudges for probate of wills , and granting of administrations , until the thirtieth day of june one thousand six hundred fifty and nine , and no longer . ordered by the parliament , that this act be forthwith printed and published . passed the 19th of may 1659. tho. st nicholas clerk of the parliament . london , printed by john field , printer to the parliament . and are to be sold at the seven stars in fleetstreet , over against dunstans church , 1659. an act for reviving and continuing of several acts of parliament touching the militias of the city of westminster, borough of southwark, and the hamlets of the tower of london england and wales. this text is an enriched version of the tcp digital transcription a37567 of text r40492 in the english short title catalog (wing e1066). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 2 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a37567 wing e1066 estc r40492 19340565 ocm 19340565 108714 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a37567) transcribed from: (early english books online ; image set 108714) images scanned from microfilm: (early english books, 1641-1700 ; 1668:20) an act for reviving and continuing of several acts of parliament touching the militias of the city of westminster, borough of southwark, and the hamlets of the tower of london england and wales. 1 broadside. printed by john field ..., london : 1651. reproduction of original in the british library. eng law -great britain. london (england) -history, military. great britain -militia. a37567 r40492 (wing e1066). civilwar no an act for reviving and continuing of several acts of parliament touching the militia's of the city of westminster, borough of southwark, an england and wales 1651 355 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2008-05 tcp assigned for keying and markup 2008-06 spi global keyed and coded from proquest page images 2008-07 paul schaffner sampled and proofread 2008-07 paul schaffner text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion seal of the commonwealth an act for reviving and continuing of several acts of parliament touching the militias of the city of westminster , borough of southwark , and the hamlets of the tower of london . be it enacted and declared , and it is enacted and declared by this present parliament , and by the authority thereof , that the persons named in one act , entituled , an act of the commons assembled in parliament for setling the militia of the city of westminster , and liberties thereof ; and in one other act , entituled , an act of the commons assembled in parliament for setling the militia of the borough of southwark , and parishes adjacent , mentioned in the weekly bills of mortality on the south side of the river thames , in the county of surrey , with the names of the persons intrusted therewith ; and in one other act , entituled , an act for setling the militia within the hamlets of the tower of london , or any seven or more of them respectively , be hereby authorized and enabled to do and execute all and every the powers and authorities by the said several and respective acts , or by any other act or ordinance of parliament , given or granted unto the late respective militia's of the parishes and places abovesaid ; which said persons so authorized as abovesaid , are hereby impowered , ordered and directed to do and execute all such further acts and things , as they from time to time shall receive from this present parliament or councel of state . and be it further enacted , that this present act be in force and continue until the first of december in the year of our lord god , one thousand six hundred fifty and one . tuesday the 12th of august , 1651. ordered by the parliament , that this act be forthwith printed and published . hen : scobell , cleric . parliamenti . london , printed by john field , printer to the parliament of england . 1651. an act for turning the books of the lavv, and all proces and proceedings in courts of iustice, into english· public general acts. 1650-11-22. england and wales. this text is an enriched version of the tcp digital transcription a37591 of text r214958 in the english short title catalog (wing e1137). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a37591 wing e1137 estc r214958 99826994 99826994 31406 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a37591) transcribed from: (early english books online ; image set 31406) images scanned from microfilm: (early english books, 1641-1700 ; 1776:16) an act for turning the books of the lavv, and all proces and proceedings in courts of iustice, into english· public general acts. 1650-11-22. england and wales. 1 sheet ([1] p.) printed by edward husband and john field, printers to the parliament of england, london : 1650. with an order to print dated 22 nov. 1649 [i.e. 1650]. caption title. last word of first line of text: "and"; first word of line below initial: "that"; last word of last full line on page: "of". reproduction of the original in the british library. eng courts -law and legislation -england -early works to 1800. law -england -early works to 1800. a37591 r214958 (wing e1137). civilwar no an act for turning the books of the lavv, and all proces and proceedings in courts of iustice, into english· england and wales 1650 458 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2008-05 tcp assigned for keying and markup 2008-08 spi global keyed and coded from proquest page images 2008-10 john pas sampled and proofread 2008-10 john pas text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion an act for turning the books of the law , and all proces and proceedings in courts of iustice , into english . the parliament have thought fit to declare and enact , and be it declared and enacted by this present parliament , and by the authority of the same , that all the report-books of the resolutions of iudges , and other books of the law of england , shall be translated into the english tongue : and that from and after the first day of january , one thousand six hundred and fifty , all report-books of the resolutions of iudges , and all other books of the law of england , which shall be printed , shall be in the english tongue onely . and be it further enacted by the authority aforesaid , that from and after the first return of easter term , which shall be in the year one thousand six hundred fifty and one , all writs , proces and returns thereof , and all pleadings , rules , orders , indictments , inquisitions , certificates ; and all patents , commissions , records , iudgements , statutes , recognizances , rolls , entries , and proceedings of courts leet , courts baron , and customary courts , and all proceedings whatsoever in any courts of iustice within this commonwealth , and which concerns the law , and administration of iustice , shall be in the english tongue onely , and not in latine or french , or any other language then english , any law , custom or usage heretofore to the contrary notwithstanding . and that the same , and every of them , shall be written in an ordinary , usual and legible hand and character , and not in any hand commonly called court-hand . and be it lastly enacted and ordained , that all and every person and persons offending against this law , shall for every such offence lose and forfeit the full sum of twenty pounds of lawful english money ; the one moyety thereof to the use of the commonwealth , and the other moyety to such person and persons as will sue for the same in any court of record , by action of debt , suit , bill , plaint or information ; in which no wager of law , essoign , or other delay shall be admitted or allowed . die veneris , 22 november . 1649. ordered by the parliament , that this act be forthwith printed and published . hen : scobell , cleric . parliamenti . london , printed by edward husband and john field , printers to the parliament of england , 1650. the case of edward bushel, john hammond, charles milson and john baily, citizens and free-men of london, stated and humbly presented to the honourable house of commons assemb'ed in parliament 1670 approx. 6 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2007-01 (eebo-tcp phase 1). a30699 wing b6234 estc r36314 15643389 ocm 15643389 104287 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a30699) transcribed from: (early english books online ; image set 104287) images scanned from microfilm: (early english books, 1641-1700 ; 1182:15) the case of edward bushel, john hammond, charles milson and john baily, citizens and free-men of london, stated and humbly presented to the honourable house of commons assemb'ed in parliament bushel, edward. 1 broadside. s.n., [london? : 1670?] reproduction of original in the british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng duress (law) -england. law -england. great britain -history -charles ii, 1660-1685. 2006-05 tcp assigned for keying and markup 2006-06 apex covantage keyed and coded from proquest page images 2006-07 derek lee sampled and proofread 2006-07 derek lee text and markup reviewed and edited 2006-09 pfs batch review (qc) and xml conversion the case of edward bushel , john hammond , charles milson and john baily , citizens and free-men of london , stated , and humbly presented to the honourable house of commons assembled in parliament . that they with eight others , being empannelled and sworn of a jury , for tryal of divers persons indicted for several criminal and capital offences , at the sessions of the peace for the goal-delivery , held at the old-baily for the said city , in august , 1670. before sr. samuel starling , then lord mayor of london , and sr. john howel serjeant at law , recorder , and other justices there , were ( amongst other prisoners ) charged with william penn , and william mead. and the said jury having heard and considered the evidence against the said penn and mead , could not find them guilty of the indictment ; thereupon they were threatned and menaced by the said mayor and recorder to be carted , and marks to be set upon them , to have their throats and noses cut , and be shut up close prisoners , and starved to death , unless they would comply : the recorder adding thereunto , that he highly applauded the prudence & pollicy of spain in erecting the inquisition , and that it would never be well in england , till some such course were taken here . pursuant to which threats , the jury by their order were presently shut up , with express command they should neither have meat , drink , fire nor candles , which was observed to that extremity , that they continued in this imprisonment , saturday , sunday , and munday , the said mayor and recorder adjurning the court from day to day , supposing , that the jury in time , rather then endure such heavy pressures , would force their consciences and comply with them . but all this illegal and barbarous usage proving in effectual ; after the said jury had with unanimous consent brought in their verdict , finding the said prisoners not guilty , which verdict notwithstanding the said court did accept and record , yet the said lord mayor and recorder fined every of the jury men forty marks a piece , and committed them prisoners to new-gate till payment ( of whom eight paid their fines and were soon discharged . ) and the said four jurors being merchants and trades-men of london , after they had been kept close prisoners about three months , to their very great dammage , rather then to betray the liberties of the country , were inforced to their extraordinary charge to sue out their habeas corpus in the court of common-pleas , which court upon return of the causes of commitment , and after several arguments as well there , as before all the judges of england , consulted in this matter , occasioned by the great opposition of the said lord mayor and recorder , did resolve and declare according to the unanimous opinion of all the said judges , that they , the said four jurors , were illegally imprisoned and unjustly fined ; and thereupon discharged them from their imprisonments and fines . all which unjustifiable proceedings by the said lord mayor and recorder were done after , and in contempt of that memorable vote of this honourable house of commons , made in the case of the late lord chief justice keeling , the 13th december , 1667. declaring , that the presedents and and practice of fining or imprisoning jurors for verdicts was illegal . and for that they , the said four jurors do humbly apprehend it may be of dangerous consequence for any inferiour judicature , who are only to declare the law made , to assume to themselves an arbitrary power of innovating and altering the same , especially , when it doth tend to the violation and overthrow of the antient and fundamental laws of the land , consisting in nothing more then in the liberty the subjects have in the freedom of tryals by their peers . and forasmuch as the said jurors have not only been great sufferers in their persons and estates by the said arbitrary and illegal imprisonment ; but they do also humbly conceive it hath been and still is of very evil consequence to the lives , liberties and estates of his majesties subjects ; for such persons ( who have acted thus arbitrarily , directly contrary to and in defiance of , not only the laws of the land ; but also of the fore-said votes of the house of commons ) to be still continued in places of so great trust and authority , as recorder , justices of peace and aldermen of the city of london , to the great terror and discouragement of all jurors in the performance of their duty . and forasmuch , as they the said jurors are discouraged by their counsel to seek remedy or satisfaction in the courts of westminster-hall for these so great oppressions , the reason alleadged , for that all the said acts were done by the said mayor and recorder in a court of judicature , against which no action can be brought : so that they are like to be left remidiless , unless relieved by this honourable house , unto whose protection they do most humbly fly , and beseech their justice for their relief . the declaration of the right honourable the duke of buckingham, and the earles of holland, and peterborough, and other lords and gentlemen now associated for the king and parliament, the religion, lawes, and peace of his majesties kingdomes. with three letters (delivered july the 6.) one to the house of peers; another to the house of commons: and the third to the ld. major, aldermen, and commons of the city, in common-councell, assembled. buckingham, george villiers, duke of, 1628-1687. this text is an enriched version of the tcp digital transcription a77745 of text r205284 in the english short title catalog (thomason e451_33). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 8 kb of xml-encoded text transcribed from 4 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a77745 wing b5310 thomason e451_33 estc r205284 99864700 99864700 116932 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a77745) transcribed from: (early english books online ; image set 116932) images scanned from microfilm: (thomason tracts ; 71:e451[33]) the declaration of the right honourable the duke of buckingham, and the earles of holland, and peterborough, and other lords and gentlemen now associated for the king and parliament, the religion, lawes, and peace of his majesties kingdomes. with three letters (delivered july the 6.) one to the house of peers; another to the house of commons: and the third to the ld. major, aldermen, and commons of the city, in common-councell, assembled. buckingham, george villiers, duke of, 1628-1687. holland, henry rich, earl of, 1590-1649. peterborough, henry mordaunt, earl of, 1624?-1697. [2], 5, [1] p. [s.n.], london : printed in the yeare, 1648. the duke of buckingham = george villiers; the earles of holland and peterborough = henry rich and henry mordaunt. in this edition line 11 of title ends: (delivered july the 6.). annotation on thomason copy: "july. 8th". reproduction of the original in the british library. eng law -england -early works to 1800. religion and state -england -early works to 1800. great britain -history -civil war, 1642-1649 -early works to 1800. great britain -politics and government -1642-1649 -early works to 1800. a77745 r205284 (thomason e451_33). civilwar no the declaration of the right honourable the duke of buckingham, and the earles of holland, and peterborough, and other lords and gentlemen n buckingham, george villiers, duke of 1648 1139 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2007-04 tcp assigned for keying and markup 2007-05 apex covantage keyed and coded from proquest page images 2008-07 mona logarbo sampled and proofread 2008-07 mona logarbo text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion the declaration of the right honourable the duke of buckingham , and the earles of holland , and peterborough , and other lords and gentlemen now associated for the king and parliament , the religion , lawes , and peace of his majesties kingdomes . with three letters ( delivered july the 6. ) one to the house of peers ; another to the house of commons : and the third to the ld. major , aldermen , and commons of the city , in common-councell , assembled . london , printed in the yeare , 1648. the declaration of the right honourable the duke of buckingham , and the earles of holland and peterborough , &c. finding this conjuncture to be the proper time , when this wearied kingdome may be delivered from those miseries , it both hath and may apprehend yet to feel , by such persons , as are il-affected to our peace ; who at this time without authority or commissions , disperse themselves into all parts , to raise forces , with no other intention , but to continue a bloudy and intestine war , which may prove dangerous to the whole kingdome from the assistance they find by the committees of the severall counties , who have so abused their power and the people , by an arbitrary way of government , as they shun and apprehend nothing more then what we shall endeavour and seek , peace , and a wel-setled government ; and therefore that the whole kingdome may be satisfied upon what grounds and principles we go to oppose and prevent this mischief and danger , we do here declare that we do take up armes for the king and parliament , religion and the known laws , and peace of all his majesties kingdomes : professing before almighty god , that we have no other designe in this undertaking , but to see this well , and speedily established , and will with readines and joy lay them down whensoever god shall give us the injoyment of this blessing , professing that whatsoever may be our successe and prosperity in this good cause , we shall not say by way of menace to the parliament , that we will use the power god hath put into our hands , but shall blesse god that he hath made us the instruments to serve the king , the parliament and kingdome in the way of peace , in a just and equall composure between them ; and we hope the city and the kingdome , will well weigh and consider whether they may not more reasonably and conscionably joyne with us in these pious and peaceable resolutions , then with those forces that have by their breach of faith , and their disobedience , kept up the sword , when those that delivered it into their hands , commanded the laying of it downe ; which disobedience hath brought this fresh storm of bloud , that is now falling upon this kingdome , and all those fears and confusions that petitions daily shew to be in the thoughts and apprehensions both of the city and the whole kingdome : we might adde sad circumstances that are of late discovered and broken out concerning his majesties person , and likewise a confused and levelling undertaking to overthrow monarchy , and to turn order that preserves all our lives and fortunes into a wild and unlimited confusion ; but we desire not to expresse any thing with sharpnesse , since our ends and pursuit is only peace ; which shall appear to all the world , whensoever we may see a personall treaty so begun with his majesty as we may expect a happy conclusion by it , that cannot follow but by a cessation of armes , which in all parts of the world hath accompanied these treaties , even between the bitterest enemies , christians & turks , much more to be expected in these our civill divisions amongst our selves , for the sword should not be in action as long as a treaty of peace is in agitation , since accidents of hostility on both sides will sharpen and divide us rather then close and unite us . this we thought fit both to desire and to declare that the discourses that may be raised upon our actions , may not have power to abuse the kingdome , as if we did only move in a way to set up his majesty in a tyrannicall power , rather then in his just regall government , the which hath been alwaies found in this nation , very well consistent with the due rights and freedoms of parliament , the which we do here most faithfully protest the endeavouring a preservation of , and call god to witnesse of our sincerity in this intention . holland . g : buckingham . peterborough . for the right honourable , the speaker of the house of peers . my lord , we doe here take away your jealousies by giving you a cleer knowledge of our designes ; which if you shall be pleased to communicate to the house of peers , we hope they will find , we do not vary from those principles and grounds , we have been ingaged in , both from his majesty and the parliament , which god give them grace so to think , and advise upon it , as his majesty may find his just rights , according to our covenant and declarations , and the parliament rise and recover the dignity due unto them , by a speedy way of setling the peace of this distracted kingdome . your lordships most humble servants , g. buckingham . holland . peterborough . the same to the house of commons . to the lord major , aldermen , and commons of the city in common-councell assembled . having a long time beheld the sad calamities and miseries of these kingdoms , and finding no other means for redresse , we are forced into this undertaking , which we desire may be rightly understood of all that are wel-affected , especially of this city , whose actions and endevours do sufficiently evidence their good affections . to this end we have inclosed a brief account of our intentions , which we hope may give satisfaction both to you , and the whole kingdome , whose assistance , ( with gods blessing ) we desire no farther , then our designes are reall for the good and happinesse both of the king , parliament , and kingdome , according to our covenant , your humble servants , g. buckingham . holland . peterborough . finis . an act for the better preventing and suppressing of prophane swearing and cursing england and wales. this text is an enriched version of the tcp digital transcription a37576 of text r40493 in the english short title catalog (wing e1097). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 9 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a37576 wing e1097 estc r40493 19340621 ocm 19340621 108715 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a37576) transcribed from: (early english books online ; image set 108715) images scanned from microfilm: (early english books, 1641-1700 ; 1668:21) an act for the better preventing and suppressing of prophane swearing and cursing england and wales. 1 broadside. printed by edward husband and john field ..., london : 1650. imperfect: creased. reproduction of original in the british library. eng swearing -legal status, laws, etc. -great britain. law -great britains. a37576 r40493 (wing e1097). civilwar no an act for the better preventing and suppressing of prophane swearing and cursing. england and wales 1650 1634 1 0 0 0 0 0 6 b the rate of 6 defects per 10,000 words puts this text in the b category of texts with fewer than 10 defects per 10,000 words. 2008-05 tcp assigned for keying and markup 2008-09 spi global keyed and coded from proquest page images 2008-12 mona logarbo sampled and proofread 2008-12 mona logarbo text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion blazon of the protectorate an act for the better preventing and suppressing of prophane swearing and cursing . for the better preventing and suppressing of the detestable sins of prophane swearing and cursing , be it enacted by this present parliament , and the authority thereof , that if any person or persons shall hereafter offend by prophane swearing or cursing , in the presence or hearing of any justice of the peace of the county , or chief officer , or justice of peace of the city or town corporate where the same shall be committed , or shall be thereof convicted by confession of the party , or by the oath of one witness or more , before any such justice of peace of the county , or chief officer or justice of peace of such city or town corporate where such offence is or shall be committed ( for which end every justice of peace , and every such head-officer as aforesaid , have power hereby within their several precincts to administer an oath , and are enjoyned to keep a record of such conviction , and to make certificates quarterly of the name of every person so convicted , and the degree of such his or her offence , to the clerk of the peace for the county where such conviction shall be , to be by him recorded ) that then every such offender shall for every time so offending , forfeit and pay to the use of the poor of that parish where the same is or shall be committed , for the first offence , according to the degree and quality of such person and persons so offending , in maner and form following ; viz. every person and persons who writeth or stileth himself , or is usually written or stiled duke , marquis , earl , viscount , baron or lord , the sum of thirty shillings ; every person and persons who writeth or stileth himself , or is usually written or stiled baronet or knight , the sum of twenty shillings ; every person and person who writeth or stileth himself , or is usually written or stiled esquire , the sum of ten shillings ; every person and persons who writeth or stileth himself , or is usually written or stiled gentleman , the sum of six shillings and eight pence ; and all other person and persons whatsoever , under the degrees before expressed , shall forfeit and pay to the uses aforesaid , the sum of three shillings and four pence : and that every such offender and offenders shall forfeit and pay for the second offence , in maner and form following ; viz. every such duke , marquis , earl , viscount , baron or lord as aforesaid , the sum of three pounds ; every such baronet or knight as aforesaid , the sum of forty shillings ; every such esquire as aforesaid , the sum of twenty shillings ; every such gentleman as aforesaid , the sum of thirteen shillings and four pence ; and all and every other person and persons whatsoever so offending , under the said degrees , the sum of six shillings and eight pence : and that every such offender and offenders for the third , fourth , fifth , sixth , seventh , eighth and ninth offence , and every of them being thereof convicted as aforesaid , shall forfeit and pay to the uses and purposes aforesaid , the penalty and forfeiture by this act imposed on every such person , according to his degree and quality aforesaid , for such second offence . and be it further enacted by the authority aforesaid , that all and every person and persons , of what degree or quality soever , who shall upon information , presentment or indictment before any justice of assize , justices of oyer & terminer , justices of the peace in every shire ▪ city or town ( who have hereby power & authority to enquire of , hear and determine the same ) by confession or verdict be found guilty of any the offences aforesaid the tenth time , shall besides incurring the forfeiture by this act imposed on such person for such second offence , be adjudged a common swearer or curser , and be bound with sureties to the good behavior during three years ; and that for every like offence afterwards , upon the like conviction , every such offender shall incur the like forfeiture , and give the like security as for the tenth offence : and that if any person that shall be so bound as aforesaid , shall at any time aftewards , while he stands so bound , be convicted in maner aforesaid of the like offence , the same shall be adjudged and taken to be , and the same is hereby adjudged and declared to be a breach of the good behavior by every such person and persons . and be it further enacted by the authority aforesaid , that every woman , whether she be wife , widow or single woman , that shall commit any of the offences aforesaid , in the presence of any justice of peace or head-officer aforesaid , or shall be of such offence convicted as aforesaid , shall for every such offence incur the like forfeiture , penalty and judgement , as if the same offence had been committed by the husband of such wife or widow , or by the father of such single woman , and according to the degree and quality of such husband and father respectively herein before expressed . and be it likewise enacted by the authority aforesaid , that all and every the forfeitures aforesaid , shall be levyed upon the goods and chattels of every person and persons before specified so offending , by warrant from such justice of the peace or head-officer aforesaid , by distress and sale of the said goods and chattels , restoring the overplus : and in default of payment of the said forfeiture , or security given for the same , in case no sufficient distress shall be found , the offender , if he or she be above the age of twelve years , shall by warrant from such justice of the peace or head-officer , be set in the stocks , there to remain for the space of three whole hours for such first offence ; and for the second , third , fourth , fifth , sixth , seventh , eighth and ninth offence , and every of them , for the space of six hours ; but if the offender be under the age of twelve years , and shall not forthwith pay the forfeiture aforesaid , that then he or she shall by warrant of such justice of the peace or head-officer , be whipped by the constable , or by the parent or master of such offender , in the presence of the constable . and be it further enacted by the authority aforesaid , that it shall and may be lawful , to and for any constable , headborough , churchwarden , overseer of the poor , or any other officer , to apprehend , or cause to be apprehended , or for any other person or persons whatsoever , by warrant from any justice of peace , or such head-officer as aforesaid , to apprehend and bring , or cause to be apprehended and brought before any justice of peace , or head-officer as aforesaid , the body of any person or persons offending contrary to this act , to the end all such persons may be proceeded against as to justice shall appertain . and it is further enacted , that in any action brought against any justice of peace , constable , or any other officer or person acting or doing , or commanding to be acted or done , any thing in pursuance of this act , touching or concerning any the offences or matters aforesaid , the defendant in every such action shall and may plead the general issue , and give the special matter in evidence : and upon the non-suit of the plaintiff , or verdict passing for the defendant , the party defendant shall have and recover his and their treble costs . and be it further enacted by the authority aforesaid , that this present act shall be in force from and after the first day of august , one thousand six hundred and fifty : and that one act of parliament , made in the one and twentieth year of the raign of the late king james ( entituled , an act against prophane swearing and cursing ) be and is , from and after the said first day of august , hereby repealed . and it is lastly enacted by authority aforesaid , that this act be forthwith printed ; and that all and every sheriff and sheriffs of every county and city within england and wales , do proclaim , or cause this act to be proclaimed in all cities , towns , boroughs , and other publique and usual places within their respective liberties , upon the market-day next after the receipt thereof , and cause the same to be set up , and affixed in the publique places accustomed . die veneris , 28 junii , 1650. ordered by the parliament , that this act be forthwith printed and published . hen : scobell , cleric . parliamenti . london , printed by edward husband and john field , printers to the parliament of england , 1650. a bakers-dozen of plain down-right queries, harmlesse and honest: propounded to all that expect benefit from this present power. wherein is discovered, the bawling, mercinary, accustomed tricks, querks, and quillets of the learned lying, daggle-tayl'd lawyers, crafty atturneys, and subtile solicitors, &c.. [sic] with a description of the dutch water-rats: and the difference between spanish pieces of eight, and the babies, pupets and quelchoses of france. by george gregorie, gent. gregorie, george, gent. this text is an enriched version of the tcp digital transcription a85681 of text r202337 in the english short title catalog (thomason e988_2). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 10 kb of xml-encoded text transcribed from 5 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a85681 wing g1908 thomason e988_2 estc r202337 99862664 99862664 168627 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a85681) transcribed from: (early english books online ; image set 168627) images scanned from microfilm: (thomason tracts ; 147:e988[2]) a bakers-dozen of plain down-right queries, harmlesse and honest: propounded to all that expect benefit from this present power. wherein is discovered, the bawling, mercinary, accustomed tricks, querks, and quillets of the learned lying, daggle-tayl'd lawyers, crafty atturneys, and subtile solicitors, &c.. [sic] with a description of the dutch water-rats: and the difference between spanish pieces of eight, and the babies, pupets and quelchoses of france. by george gregorie, gent. gregorie, george, gent. 8 p. [s.n.], london : printed in the year mdclix. [1659] annotation on thomason copy: "june 17". reproduction of the original in the british library. eng law -england -early works to 1800. a85681 r202337 (thomason e988_2). civilwar no a bakers-dozen of plain down-right queries,: harmlesse and honest: propounded to all that expect benefit from this present power. wherein i gregorie, george, gent. 1659 1614 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2007-10 tcp assigned for keying and markup 2007-10 apex covantage keyed and coded from proquest page images 2008-02 judith siefring sampled and proofread 2008-02 judith siefring text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion a bakers-dozen of plain down-right queries , harmlesse and honest : propounded to all that expect benefit from this present power . wherein is discovered , the bawling , mercinary , accustomed tricks , querks , and quillets of the learned lying , daggle-tayl'd lawyers , crafty atturneys , and subtile solicitors , & c.. with a description of the dutch water-rats : and the difference between spanish pieces of eight , and the babies , pupets and quelchoses of france . by george gregorie , gent. london , printed in the year mdclix . a bakers douzen of down-right qveries propounded to all that expect benefit from this present power . i. vvhether the officers of the army were in earnest or in jest , when they re-invested this present parliament in their pristine power ; and will they now own and defend it , having put it upon them ; and may all well-minded people believe for a truth , and not be deceived , but that it may appear the mace is above the sword ? ii. if agreed upon upon all hands , the people of the land have not reason to be satisfied therein by publick declaration , that doubts may be taken away , and all may follow their several imployments without any distraction ? iii. whether a power thus made , finding the law now in force destructive and not for the weale of the people , may not make null the old , and inforce a new law , sutable to the safety and welfare of the nation , that oppression may not be upheld because it is ancient ? iiii. whether can justice truely be said to be had in england at all by the proceedings of our law ; for justice done for any other end than for justice sake ( though many fools are content to buy it ) doth it not plainly prove the seller a knave ? v. whether a multitude of lawes are not the greatest badge of an enslaving people , having alwaies been fomented a numerous sort of governours , either for their own profit or for preferment of their favourites , or satisfying their own boundlesse wills ; whereas right is couched in few words , which reason the foundation of law , the more clearly sees , and sooner decides ? vi . whether is it not most agreeable to reason , that there should be in different judges in every county , which by their vicinity might by report of honest neighbours , know the condition of the cause , as well as from the parties themselves ; and that no daggle-rayl'd lawyer , atturney or other , should plead any cause ( save their own ) for that it is impossible a judge should but loose a great deale of evidence , which is to be perceived in the carriage , countenance , and deportment of the parties themselves , which in a bold brasen-faced , dawling , mercenary , accustomed lying lawyer , shall never be discovered to the most piercing eye upon earrh . vii . whether do not many people of this nation for malice or revenge , make it their common practise to oppresse the poor mans cause the more violently , because they know ( though fools themselves ) they can have a learned lying lawyer , a crafty atturney , a subtile solicitor , if his cause goes to the divil , to follow it for money , whereas admonition from a grave judge seasonably given , may take effect in the party interested in the cause himself : which it never doth in a common pleader , because gift which blinded his eyes , makes his tongue run the perpetual motion . viii . doth ir not too manifestly appear , that law doth undoe more then it relieves ; for our court of equity as it is now handled , a suit in chancery , though it wear out both the boots , shooes , and patience of the clyent , yet commonly out-lasts any four gowns of his council , though he wear it the longer to demonstrate his antiquity . ix . whether doth it not plaine appear that changes in government are most chargeable to any common-wealth . and debillitating the poorest sort for want of trade through the destraction of the times ; is it not therefore honest pollicy to submit to the present power as most fittest to goe on for the common good , as having most experience by their own and others government , and by consequence abler to avoyd all inconveniences , and whether is it safest to consent on all hands from ministers or other professing religion , lest while they bridle not their tongues they speak their religion vain ; that a lawyer plead not against it , unlesse for a place which he shall loose , the first fee he takes by all honest mens consent ; and whether the souldiery if they retard it and be not content with their pay , do they not crack an apostolicall command ? x. whether though it be impossible to make all of one mind ; yet may not a government be so settled that those that will take any osfence , may not be suffered to give any in poynt of faith : and for manners morallity , may not that serve ? xi . whether the common adversary do not get advantage by delayes or discourses , trades decay , and tradesmen discouraged , whereas unity emboldeneth all , merchants adventure , tradesmen give credit , mechannicks live by their labours , and such as want imployment find it at sea , which if we longer neglect the hollander , that water-rat will get all our fish and carry it to spain , and bring us no better return then a few small reasons to fetch our ready money , and if they prove to be our brokers for wine another year , they will ballance the losse of their last warr , with the gain of their trade ? xii . whether the warr with spain , or the peace with france agree best with the stomack of this common-wealth ; and whether pieces of eight be not more staple comodityes then the babies , pupies and quelchoses of france ? xiii . whether as the case now stands with england and english-men , may they not having made a supreame power force a new law , fit for our present condition , having the light of reason and the word of god , rather then to set this government upon the basis of monarchy , which with his lawes will bring in himself . a word by way of addresse to the right honourable the parliament of the common-wealth of england , &c. that notwithstanding the nations several and sad complaints ; yet still the audacious impudent lying covetous deceitfull atturneys , and bloody murthering jaylors , have continued the wicked and audacious practise of injustice , tiranny and oppression , and the still continued sale of justice for the price of iniquity called bribes and fees ; none hath hitherto truly considered the ruine of thousands of people , robbed of their estates , liberties and lives , by arrests , outlawries , false judgements , executions , decrees , orders and repors , begotten and brought forth by corrupt judges , covetous lawyers , deceitfull atturneys , masters of the chancery , registers , clerks , sheriffs , bailiffs , serjeants and goalers , by whom the poor , the widdow , the fatherlesse , and the stranger is slighted , scorned , devoured , yea eaten up as they eat bread , none hitherto in authority have called for justice nor for satisfaction to the oppressed , none hath hitherto regarded the lamentable cryes of the inthralled , none hath laid to heart the miserable enslaved condition of this nation by lawyers , none hitherto hath considered the asflictions of ioseph in bands , as formerly they have protested , declared , vowed and promised to do , but hitherto not performed by them ; therefore in behalfe of this whole nation , thus enslaved and groaning under this unsupportable burthen . the appeale and out-cry is made unto you the above-named persons , praying for speedy help , remedy and redresse of these great nationall destructive maladies , in and by suppressing the lawyers speedily , advancing justice vigorously , abolishing the capias for arrest of mens persons , and restoring the just and undeniable liberties of this nation , according to magna charta , with full reparations to all the oppressed , ruined & wrongfully imprisoned in the land . if the head of royalty be cut off and the power disowned , and this nation declared to be a free state , why then the members of tyrannie suffered to flourish , and still to beare the poysonous fruits of slavery and destruction , contrary to the freedom and deliverance , long-since by you promised and now againe this promise by you confirmed ; and why not then this nation a free people as of right they ought to be ; that so the lawyer may no longer rob them of their estates and liberties , nor the gaoler of their lives , to the utter ruine also of wives , children , and families . finis . at the general-sessions of the peace, held at st. johnstone the first tuesday of may, 1656. / by his highness the lord protectors justices of peace for perth-shire. perthshire (scotland). justices of the peace this text is an enriched version of the tcp digital transcription b04692 of text r181696 in the english short title catalog (wing p1672a). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 12 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 b04692 wing p1672a estc r181696 52614834 ocm 52614834 176024 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. b04692) transcribed from: (early english books online ; image set 176024) images scanned from microfilm: (early english books, 1641-1700 ; 2759:6) at the general-sessions of the peace, held at st. johnstone the first tuesday of may, 1656. / by his highness the lord protectors justices of peace for perth-shire. perthshire (scotland). justices of the peace 1 sheet ([1] p.) printed by christopher higgins ..., edinburgh : 1656. caption title. reproduction of original in: national library of scotland. eng justices of the peace -scotland -perthshire -early works to 1800. law -scotland -early works to 1800. scotland -politics and government -1660-1688 -early works to 1800. great britain -history -commonwealth and protectorate, 1649-1660 -early works to 1800. broadsides -scotland -17th century. b04692 r181696 (wing p1672a). civilwar no at the general-sessions of the peace, held at st. johnstone the first tuesday of may, 1656. by his highnesse the lord protectors justices of [no entry] 1656 2012 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2008-04 tcp assigned for keying and markup 2008-04 spi global keyed and coded from proquest page images 2008-06 judith siefring sampled and proofread 2008-06 judith siefring text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion at the general-sessions of the peace , held at st. johnstone the first tuesday of may , 1656. by his highnesse the lord protectors justices of peace for perth-shire . the justices of his highnesse peace for the said shire , in pursuance of that trust reposed in them for on carrying , preserving and maintaining the peace there , do judge it their duty to make the acts and resolutions of this and the former sessions known to all the shire , that such as transgresse , and commonly plead ignorance , may be inexcusable . and because provoking sins undetected and punished will undoubtedly prove a continual trouble of our peace . therefore it is ordained , that the clerks of the kirk-sessions of ilk paroch within the shire , in all time coming , aswell as since the first of january , 1651. give a true extract to the clerk of the peace , of the names of all persons in the paroch convict of blasphemy , incest , adultery , fornication , swearing or cursing , breach of the sabbath , reproaching or mocking of piety , drunkennesse , tipling or such like crimes , that every transgressor since that time , who hath not been censured conform to the instructions by the judicatories competent , may be punished , and such wickednesse ; supprest and crusht for the future . that the overseers ( who are to be the most pious and understanding men in the paroch ) and constables , give up to the clerk of the peace a list of every alehouse-keeper who sell ale or strong waters , &c. at unlawful times , or who keep not good order in their houses , or who harbour or entertain lewd , profane , or idle men or women , sturdy beggars , tinkers , gamsters , or masterless people ; that all such ale-sellers , &c. may be punished as the cause requires . that all persons who are not in present service with a master , or who are not land-labourers , or who have not a trade , calling , or revenue to maintain them ; be reputed vagabonds , and their names sent by the overseers and constables in ilk paroch , to the next justice , or to the clerk of the peace , that they may be presently punished as such . that no housekeeper whatsoever , recept , harbour , give or send entertainment to any vagabond , thief , gypsie , unknown and suspect person , under the pains and penalties contained in the acts of parliament anent resetters . that if any paroch wherein a robbery is committed , do not answer the hue and cry raised on committing thereof , and follow the constable on the pursuit till he return , such paroch shall be liable in payment of the robbery . that all overseers take strict care not only to put all such beggars or poor people who belong not to the paroch , and want a sufficient passe or testimonial out of the paroch , but also to keep all such out , by sending such as return , to prison ; and presenting those who either harbour or give them any entertainment , that they may be punished therefore . that no person make any linnen-cloath to sell under an ell in breadth , if the price of the ell be above ten shillings ; and under three quarters in breadth , if the price of the ell be under ten shillings : and that no person bleitch any linnen with lime , under the pain of forfeiting all the cloath of lesse breadth , or so bleitch't : the one half whereof to any who after midsummer 1656. discovers the same . that no person take salmond , or their fry , with an angle-wand in another mans waters , without the owners leave , under six pound scots ilk fault . that as the general-sessions for the peace are to be kept the first tuesdayes of february , may , august , and the last tuesday of october yearly ; so , special sessions are to be kept in ilk sub-division of the shire , the first tuesdayes of march , june , september and december yearly , where all differences betwixt masters and servants , and such other things as may be judged out of the general-sessions will be determined ; and every master who rests any fee to his servant , will at the general sessions be compelled to pay the same , if the servant sue therefore . that during the scarsity of money and cheapnesse of victual , no person give or take more fee or wages then what is after-specified , to wit , a common able man-servant , nine merks scots termly , with a pair of double-soal'd shoes , two ells of scots grays , and three ell of hardin , as his bounteth ; or in stead therof , one pound four shillings for the shoes , one pound four shillings for the hardin , and one pound sixteen shilling for the grays . a common able lad-servant , four merk and a half termly , with the like bounteth , or money proportionably therefore . a common able woman-servant , four merk and a half termly , with a pair of double-soal'd shoes , three ell of plaiding , three ell of hardin , and one ell of linnen , as her bounteth ; or in stead thereof one pound for her shoes , one pound seven shillings for the plaiding , one pound four shillings for the harden , and twelve shillings for the linnen . a common able lasse-servant is to have two merk and fourty penies termly , with the like bounteth , or money proportionably therefore . the harvest-fee of the able man shearer is not to exceed six pound , or six shillings ilk dayes work : and the able woman-shearer four pound , or four shillings for ilk dayes work . that all servants give their masters a quarters warning before their removal ; and that no servant pane out of , or come in to any paroch , without a testimonial under the minister and overseers hands of the paroch where they last dwelt , under the pain of being punished as vagabonds , besides fining their resetters . that no servant leave his master at the whitsundayes term , if his master be willing to keep him till the mertimasse following upon the former terms conditions , unlesse such servant show lawful cause for his departure , to some uninterested justice in that division where he dwelleth . shomakers are not to exceed two shillings six penies the inch of measure for the pair of double-sol'd shoes from eight inches upward ; and two shillings the inch from eight inches downward : and for the pair of single-soal'd shoes , one shilling six penies the inch above eight inches of measure ; and one shilling four penies the inch from eight inches downward : providing alwayes the leather be well tann'd , and the shoes sufficient mercat ware . weavers are to weave ilk ell of linnen , for one peny half-peny out of ilk twelvepence that the ell of green linnen is worth : plaiding for an half-peny the ell , with a peck of meal to the stone : grays and secking for twelve penies the ell : tycking and dornock napery for two shillings the ell ; and dornock table-cloath for four shillings the ell. wackers are to take for the ell of hosen , one shilling four penies only : and for ilk ell of grays or plaiding , four penies the ell only , and no more . masons , slaters , and wrights , are not to exceed a merk scots without , and half a merk with meat , for the dayes work , from march first to october first ; and thereafter to abate in their dayes hire proportionably , except they work with candle-light . taylors and shoe-makers are not to exceed four shillings a day and their meat , when they work abroad for daily hire . malt-makers are not to take above one peck of malt for making the boll of beer in malt. makers of peny-bridals are not to exceed eight shillings a-piece for the ordinary of ilk man and ilk woman , at dinner or supper . that as thir rates , fees and prices , &c. are not intended in the prejudice of those masters who usually hire their servants , and have their work wrought cheaper ; so all other persons are to conform themselves to the foresaid prices , under the pain of paying a terms fee , or ten dayes hire , the one half to the discoverer , and the other half to prisoners and the poor in the paroch . that the constables at ilk general sessions faithfully present all contraveeners of any of the above-written acts ; all forestallers or regraters ; all keepers of , or sellers with false weights , mets or measures ; and all other misdemeanors that shall come to their knowledge betwixt the sessions . that whatever person assists not the paroch-constables in executing their offices ; and whatever constable , overseer , or other person assists not , and gives obedience to the high-constable of ilk of their sub-divisions , in the execution of any orders of session directed to him , shall be imprisoned and fined as the justices think fit . that all overseers give notice to the next justice in that division where he dwelleth , before the first of june yearly , of such highwayes or bridges within the paroch as are out of repair , or fit to be made , that the same may be mended and made that summer , as the special sessions the first tuesday of june shall direct , under the pain of six pound scots for ilk failye . that any person who shall inform against the breakers of any of the above-written acts , and make it appear that the person or persons informed against , are guilty , shall be sufficiently rewarded for ilk discovery : and if it be made appear that any constable or overseer shall connive at , or compound with any transgressor of the foresaid acts , such constables and overseers shall be forthwith imprisoned , and fined , as the justices think meet . that as the dues of the clerk of the peace here , are not to exceed those of the clerks of the peace of mid-lowthian and fise-shires : so the dues of the justices clerks here are only : for all the recognizances written in one action , twelve shillings scots , payable by the party succumber : for all warrants or summons to compear anent one action , six shillings only , payable by the party aforesaid : for writing ilk witnesses deposition , two shillings , payable by the party aforesaid : for every absolvitor before a particular justice , six shillings : and for every mittimus , eight shillings scots . that correspondence be kept with our neighbour shires , for the joynt oncarrying of the work of the peace , and punishing all contraveeners of the acts and ordinances made in any of the said shires . that the constables cause read thir presents at every paroch kirk in the shire , after the first sermon ; and thereafter affix and set up the same on the most patent door thereof . extracted out of the registers for the peace of perth-shire . by robert andrews , clerk of the peace . edinbvrgh , printed by christopher higgins , in harts-close , over against the trone-church , 1656. the heads of the judges arguments for the deceased duke of norfolk, in the case between him and his brother mr. charles howard, with some observations on the lord chancellor nottingham's arguments. england and wales. court of chancery. 1685 approx. 11 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2005-03 (eebo-tcp phase 1). a43190 wing h1296 estc r218624 99830201 99830201 34651 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a43190) transcribed from: (early english books online ; image set 34651) images scanned from microfilm: (early english books, 1641-1700 ; 1778:27) the heads of the judges arguments for the deceased duke of norfolk, in the case between him and his brother mr. charles howard, with some observations on the lord chancellor nottingham's arguments. england and wales. court of chancery. nottingham, heneage finch, earl of, 1621-1682. howard, charles, d. 1713. norfolk, henry howard, duke of, 1628-1684. 1 sheet ([1] p.) s.n., [london : 1685] imprint from wing. reproduction of the original at the british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng future interests -england -early works to 1800. remainders (estates) -england -early works to 1800. law -england -early works to 1800. estates (law) -england -cases -early works to 1800. 2004-09 tcp assigned for keying and markup 2004-09 aptara keyed and coded from proquest page images 2004-10 judith siefring sampled and proofread 2004-10 judith siefring text and markup reviewed and edited 2005-01 pfs batch review (qc) and xml conversion the heads of the judges arguments for the deceased duke of norfolk , in the case between him and his brother mr. charles howard , with some observations on the lord chancellor nottingham's arguments . the judges all agreed that the limitation to charles howard was a void limitation of the trust ; and that the bill ought to be dismissed , grounding their opinions on the following reasons . 1. all the trust of the whole term was vested in henry by the limitation of it to him and the heirs males of his body , which in law is a disposition of the whole interest : such a trust being indeed greater in its nature , than a term of years is capable of , in regard it cannot go to heirs males , but therefore hath been often resolved to contain the whole interest . and where a term for years is under such a limitation that will admit no remainder , there can be no contingent remainder limited of such a term ; and to make that limitation which could not be effectual by the rules of law , as a remainder to take effect by calling it a springing use , is but a quibble too light to have the countenance of the law. 2. it 's contrary to the rules of law , to limit an interest either in law or equity of a term , to take effect after any ones dying without issue of his body , and of a dangerous consequence ; for it would tend to make perpetuities and fetter estates : inasmuch as it is allowed of all hands , that if there can be such a limitation by law , allowed after a dying without issue male , there is no possibility of docking or destroying the interests that are under such limitations ; so that such estates can never be sold or parted with , no recoveries reaching them , nor no method in the law nor possibility to do it , which would make estates stagnate in a family , and discourage all ingenuity and industry , which the law perfectly abhors — and this the lord chancellor allows in his arguments in this case in his third conclusion . and it mends not the matter , to say that this is under a limitation of thomas his dying without issue in the life of henry ; for 3. this is a stretch farther than ever before was endeavoured , the judges have gone as far as is fit in indulging mens dispositions of terms to take effects by limitations after lives — if this limitation should be admitted ( if thomas dye without issue in the life of henry , then the next strain would be to limit a term over upon ones dying without issue during the lives of two or three , and then of twenty men : and then if he should dye without issue within seven years , for that is equal to a life , and then within twenty years , then why not within a hundred years , and then why not within a thousand , or during the term , &c. for all these are less interests in the eye of the law , than a freehold , and where should we end or stop ; for it must be confessed that there is the same reason for all these , as it was by experience found upon the judgment of mathew manning's case , when it was once allowed that a term for years might be limited to one , and if he died within the term then to another ; it was soon found that there was the same reason to allow a limitation of it after two as twenty lives , which hath been the occasion of fettering estates exceedingly by such limitations of terms to take effect after lives , and made the judges often repine at that judgment , and declare that if it were now a new case , since they have seen the inconveniencies of it ) it would never have been so adjudged . so bridgeman in the case of grigg and hopkins . siderfin's report fo . 37. 4. it 's agreed on all hands that there is the same reason and ground of allowing limitations of terms for years at law , as there is for allowing limitations of trusts of terms for years in equity and no other : now there hath never been any judgment that the limitation of a term to one , after anothers dying without issue was good — it hath been often endeavoured , and ( if it could have gained the precedent of such a solemn resolution ) would no doubt of it , be too often practiced . but it hath always been disallowed , and many judgments against it — leventhorp and ashby pasc. 11 car. 1. in b. reg. rolles 611. sanders and cornish rolles 611 , 612. rolles 2. rep. 1 cro. backhurst and bellinghams case . mod. rep. 115. and burgis case there reported . and child and bayley's case trin. 15. jac. rot. 183. in banc. reg. which is a judgment in the very point — william heath being possessed of a term for 76. years , by his will devised it to his wife , and afterwards to william his son , provided that if william his son should dye without issue of his body then living at the time of his death , then thomas his eldest son should have the term ; william did dye without issue , living thomas , yet thomas could not have the term , because the whole court of kings-bench adjudged that the limitation to thomas after the death of william without issue ( tho this contingent was confin'd to a life , as here it is ) was void , for the reason before mentioned . and this judgment afterwards affirmed in a writ of error in the exchequer chamber , by all the judges of the common pleas and barons of the exchequer , so that it was a solemn judgment of all the judges of england , and which alone were enough to rule the case in question . yet the lord chancellor decreed this limitation to charles to be a good limitation , and that he should hold the barony during the residue of the term , and have an account of the profits thereof from the death of duke thomas . declaring his reasons to be as followeth . 1. some men have no estates but terms of years ; and he that hath a term of years , hath as much right to dispose of it , as he that hath a fee-simple . 2. unless these words ( if thomas dye without issue in the life of henry ) have the effect of excepting this out of the common cases of limitting terms over upon ones dying without issue — the words are idle and of no effect . 3. this might have been done in another way ( viz. by making the first term to cease upon this contingency , and limitting a new one to charles ) and therefore shall be taken to be good this way . 4. that the meanness of a term for years or chattel interest , is not to be regarded in limitations of it . — it was at first disputed , whether it might be limited over , after a life , and some opinions against it : but that afterwards obtained ; and though the judges would not allow a limitation of it over after a dying without issue ; but he saw no reason why it might not be allowed after a dying without issue in such a ones life ; for that is but equal to a limitation after a life . then the lord chancellor seeks to evade the case of child and baylie , by making several distinctions between that and the case in question , which it's plain that he himself look'd upon but as frivolous , and saw there was no real difference between them ; and therefore to fortifie his own resolution , he is driven at last in plain downright terms to deny it to be law , calling it a single resolution , that never had any like it before or since . and he opposes to this resolution in child and baylie's case , two other cases ; the one of heath and cotton , ( which is nothing to the purpose , there being no limitation after a dying without issue , but only after a death ) the other of wood and sanders ; where a term is limited to the father for his life ; then to the mother for hers ; then if john survive his father and mother , to him ; and if he die in their lives , and leave issue , to his issue ; if he die without issue in their lives time , then to edward his brother ; he died in their lives time without issue , and holdeth that the limitation to edward was good . nevertheless the lord chancellor made such a decree , that charles should hold the land during the residue of the term ; urging further for his so doing , that it was the will of hen. frederick , father of the plaintiff and defendant , who was owner of the estate ; and therefore that it was equitable and just to decree that it should go accordingly ; not allowing that mens wills and intentions are to be bounded by the rules of law , and no farther to prevail , than the methods and rules of law warrant them . there being afterwards a bill of review brought upon this decree , before the now lord keeper ; and his lordship finding the said decree grounded upon great mistakes , and likely to be a ground it self of great inconveniency , did reverse the said decree , as being erroneous , and against law , and dismissed the said charles howard's bill . whereupon the appeal is now brought in the lords house . notes, typically marginal, from the original text notes for div a43190-e10 3. note , the lord chancellor ( finding himself pincht with this reason , in his argument indeavours to answer it by saying , he would stop any where when he should find an inconvenience by allowing such a limitation , which is a poor evasion , and the judges conceived would be too late when it should have gained the countenance of such a solemn precedent and resolution , and conceived it more agreeable to the prudence and policy of the law , to prevent such inconveniences when foreseen , than to distinguish ones self out of them , or retract opinions by a ( non putarem . ) 1. note this is true , but it doth not follow that he may dispose them contrary to the rule of law. 2. note this hath no weight , for many words are oft inserted in settlements that are idle ; and operate nothing , and these are not the only words in this that are idle , for the lord chancellor allows here , that the limitation to edward and all after him are void . 3. this is so weak a reason , that it requires no answer . 4. this answered in the judges third reason supr . note , this case of child and bayly was adjudged by all the judges of england , first in the king's bench , and then in the exchequer chamber , and hath been approved and cited by many judges in many cases since , and made the ground of several judgments , and never denied for law , as in love and windham , and grigg and hopkins , and other cases , till now by the lord chancellor , being thus hard put to it to maintain this opinion of his . note , this touches not this case of the duke of norfolk , for there john never had any limitation took effect at all , for it was to commence upon condition , which never happened ; so it was all one , as if there had been no limitation at all . to the honorable the knights, citizens and burgesses of the commons house in parliament assembled the humble petition of the lord major, aldermen, and commons of the citie of london in common councell assembled. city of london (england). court of common council. this text is an enriched version of the tcp digital transcription a94498 of text r212076 in the english short title catalog (thomason 669.f.8[20]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a94498 wing t1474 thomason 669.f.8[20] estc r212076 99870728 99870728 161071 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a94498) transcribed from: (early english books online ; image set 161071) images scanned from microfilm: (thomason tracts ; 245:669f8[20]) to the honorable the knights, citizens and burgesses of the commons house in parliament assembled the humble petition of the lord major, aldermen, and commons of the citie of london in common councell assembled. city of london (england). court of common council. 1 sheet ([1] p.) august 9. 1643. london printed for thomas vnderhill, [london] : 1643. praying that "justice may be done upon offenders and delinquents.". reproduction of the original in the british library. eng law enforcement -england -london -17th century -early works to 1800. great britain -history -civil war, 1642-1649 -early works to 1800. a94498 r212076 (thomason 669.f.8[20]). civilwar no to the honorable the knights, citizens and burgesses of the commons house in parliament assembled. the humble petition of the lord major, al city of london 1643 421 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2007-06 tcp assigned for keying and markup 2007-06 apex covantage keyed and coded from proquest page images 2007-07 robyn anspach sampled and proofread 2007-07 robyn anspach text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion to the honorable the knights , citizens and burgesses of the commons house in parliament assembled . the humble petition of the lord major , aldermen , and commons of the citie of london in common councell assembled . shevveth ; that your petitioners having heard that such propositions and offers have been lately sent from the house of peeres to this honorable house , which ( as wee greatly feare ) if yeelded unto , would be destructive to our religion , lawes , and liberties : and finding already by experience , that the spirits of all the well-affected party in the citie & counties adjacent , that are willing to assist the parliament , both in person and purse , are much dejected thereat , and the brotherly assistance from scotland as well as the raising and maintaining of forces our selves , thereby likely to be retarded ( all which the petitioners referre to your serious consideration ) and considering our present sad condition lies upon us in a speciall manner , through the incensed patience of the almighty , by delay and want of execution of iustice upon traitors and delinquents . and having an opportunitie yet afforded us to speake , our humble desires are : that you would be pleased so to persist in your former resolutions , whereupon the people have so much depended , and wherein you have so deeply ingaged your selves ( though you should perish in the worke ) that sustice may be done upon offenders and delinquents . and that since we are as willing as ever to expose what we are and have for the crowning of so good a cause , you would be pleased by speedy passing the ordinance hereunto annext , or one to this effect , to put us into a probable way for our and your defence , wherein your petitioners will by the blessing of god be never wanting ; but will ever pray , &c. this petition being presented the 7. day of august 1643. by the petitioners abovesaid , to the house of commons , was well accepted , and thanks returned by mr. speaker for their care of the kingdomes wellfare , with promise that the particulars desired should be speedily taken into consideration : and to consider of an ordinance to the purpose in the petition mentioned , which was referr'd to a committee . august 9. 1643. london printed for thomas vnder 〈◊〉 1643. reformation in courts, and cases testamentary. parker, henry, 1604-1652. this text is an enriched version of the tcp digital transcription a91346 of text r206722 in the english short title catalog (thomason e616_5). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 21 kb of xml-encoded text transcribed from 6 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a91346 wing p419 thomason e616_5 estc r206722 99865835 99865835 118086 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a91346) transcribed from: (early english books online ; image set 118086) images scanned from microfilm: (thomason tracts ; 94:e616[5]) reformation in courts, and cases testamentary. parker, henry, 1604-1652. 11, [1] p. s.n., [london : 1650] attributed to henry parker. caption title. imprint by wing. annotations on thomason copy: p.1: "nouemb: 14. 1650"; p.11: "written by henry parker. esqr. 15. novemb. 1650". reproduction of the original in the british library. eng justice, administration of -england -early works to 1800. law reform -england -early works to 1800. jury -england -early works to 1800. a91346 r206722 (thomason e616_5). civilwar no reformation in courts, and cases testamentary.: parker, henry 1650 3685 2 0 0 0 0 0 5 b the rate of 5 defects per 10,000 words puts this text in the b category of texts with fewer than 10 defects per 10,000 words. 2007-05 tcp assigned for keying and markup 2007-05 aptara keyed and coded from proquest page images 2007-06 mona logarbo sampled and proofread 2007-06 mona logarbo text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion reformation in courts , and cases testamentary . before the late abolition of episcopacie this nation suffered under too many testamentary jurisdictions : some counties had no lesse then 50. or 60. peculiars : and in some counties divers lords of manors , and corporations had a priviledge to prove wils , and speed businesse of that nature upon a lay account . the people found themselves divers wayes aggrieved by this multiplicitie of jurisdictions : and therfore to give some ease , and redresse therein , the metropolitans prerogative courts were erected about 400. yeers ago . in the yeer 1643. dr : merick , judge of the prerogative court of canterbury , removed his office to oxford : and then there was a committee appointed to consider of a new settlement of that court , but nothing was reported thereupon . in the yeer 1644. mr: maynard brought in an ordinance for making sir n : brent judge in dr : merricks place : and the same was passed with some other materiall alterations in the prerogative court . in the yeer 1646. all episcopall jurisdiction was taken away : since which there is no true power remaining anywhere to dispatch testamentary businesse upon the ecclesiasticall score , except that of sir na : brents . sir na : brents jurisdiction has two defects , and so is as yet insufficient to do right to the whole nation : it wants extesinon of bounds : and a competent power of coertion . for want of extension it cannot proceed duly within the province of york , nor within the ancient province of canterbury : but onely in some speciall causes . hereupon occasion has been taken by divers private man without , and against authority of parliament , not onely where the prerogative has no cognizance , but also where it has to exercise testamentary jurisdiction : and so by these misproceedings the deceived people is put to much unnecessarie charge , in as much as they are necessitated to take out administrations the second time , and be at the expence of new probates as often as any suit arises . for want also of a sufficient coercive power ( for a court without a coersive power is no court ) the present judge cannot force men to bring in true inventories , or submit to order in other points : whereupon a vast licence is taken by many to defraud creditors , legatees , and other interessents : yea the state it self is often injured hereby , aswell as multitudes of private men . there is now living at guilford an executor which refuses to bring in an inventory : yet the testator died under sequestration , owed good summes upon bond to the parliament : and besides the main bulk of his estate , he gave away in his will above 900 l. in pety legacies . in order to a reformation of these things , a committee of parliament was chosen in april 1646. which after 3. yeers sitting made report in may : 1649. the matter of that report was referred to a new committee to be formed into a bill , and in july following for the better maturing of that business , other members were added to that committee , and a speciall care thereof was recommended to sir pe : wentworth , and mr: miles corbet . since that time a bill has been prepared , and twice read in the house , but notwithstanding so much time is elapsed , it still hangs under a recommitment , and fails of giving satisfaction . the reason why the reforming of these things ( though the state it self , and thousands of particular men remain sufferers in the mean time ) proves so dilatory , and difficult , is supposed to be : because most men are possessed with two contrary extreme opinions : and few there are that pitch upon the middle and more moderate way . some men are wholly for the civilians , and out of favour to them , they would have no lesse then 20. courts erected , wherein none but of that profession stould sit as judges . some men are as opposite to civilians , and they would have that whole profession removed , and quite eradicated , aswell such as have been faithfull to the parliament during these late troubles , as such as have been enemies : only that testamentary busines might be thronged , and obtruded upon the other courts at westminster . in the mean while there is a third opinion , that mitigates both these extremes , and thereby declines the inconveniences occurring on both hands . according to this third opinion : if the court ( now cal'd the prerogative ) were inabled with such a coercive power , as other courts of justice have : if it had a jurisdiction in all causes testamentary whatsoever , throughout the whole land : if it were likewise animated with as many judges , as use to sit in other courts ( which the lord bacon thought necessary many yeers ago ) and if it were subordinated to another higher court , of as many judges , in all matters worthy of appeal : it would prove an excellent settlement : and without any further dangerous innovations ( we take in all other restrictions , and points of reformation prescribed to other courts against delayes , excessive fees , and arbitrary proceedings ) would be sufficiently serviceable to those publick ends , we all aime at . it is remarkable also that the advantages , and conveniences , which commend to us this middle way are many , and very weighty . for , 1. hereby that admirable light of the civill law , approvedly usefull in monarchies , and yet by some held more usefull in democracies , will be preserved in our english horizon , and saved from utter extinction . there is scarce a state in christendome , whose highest councels , and judicatories are not mainly swaid by the profound professors of civill law : and as learned polititians are generally the ablest servitors to all states ; so no other study , or breeding has more eminently accomplisht learned polititians , then this of the civill law . without a competent practice this knowledge will be lost to our natives : and this being so lost , we shall be driven , though to our shame , to have forreiners in p●nsion . now to reject the service of englishmen , when we are to treat with aliens : and not onely to trust , but also to gratifie with our english gold men born to a forrein interest , will be a great discouragement to our own students so rejected . besides testamentary busines is common to us with other nations , it never had hitherto any thing peculiarly municipall in it , the formes and the processes , and proofs of the civill law have ever hitherto so prevailed , that englishmen might confidently as to testamentary interests demand , and recover their rights abroad , and strangers might do the like in england . and t is not yet easie to foresee what inconveniencies may ensue if in this infancy of our republick we presently depart too far from ancient legall communities and correspondencies with other neighbouring nations . 2. as the study of the civil law will be preserved , by the number of doctors and advocates , that will be supported by one admiralty , and these two testamentarie courts : so the students of the civil law will be hereby the better reduced . heretofore , when there were so many peculiars , and judicatories in england , the very number of them was oppressive to the people : and yet there is not left now the tenth part of busines , and imployment for civilians , as was then . all the cognizance of decimal cases , and questions about matrimony , incontinence , canonicall obedience , and granting licences of many severall sorts is taken away ; and therfore it remains , that we must lessen our courts , as we have lessned the busines appertaining to our courts , or else our lawyers themselves will feel the inconvenience of it , as well as clients . countrey practise addes little to the skill , and ability of our gownmen , wherfore when there is a scarcity of countrey practise too , ( as there must needs be , if no fewer then 20. courts be establisht for so little busines , as is now remaining ) the very number of professors will become a burthen to the profession , rendring them , as indigent , as it does illeterate . 3. this due reducement of civilians will be for the states ease , as wel as for the commodity of our long-robed gentlemen . for multiplicity of jurisdictions , what by their own clashings , and what by the craft of their ministers , often begets multiplicity of needles suits , and t is possible that more publick and dangerous differences may be occasioned by their disputed limits , and divisions , and all these will be damageable to the common-wealth . if we calculate what the necessarie charge will be of maintaining twenty courts , as some propose in favour of civilians : or what will maintaine so many clerks , and officers , as there are counties in england , according to the proposal of the other side , we shall finde , it will amount to no small value . 4. this just apportionment of civilians to the latitude of their busines , by bringing with it an inlargement of benefit , and subsistence to those few practisers which remaine unreduced , will inable them to serve the state more beneficially and cheaply then their predecessors have done hitherto . t is manifest that the same practise which with moderate fees will creditably and amply maintaine twenty practisers , will not maintain fourty , though they be permitted to exact fees more immoderately . it is proposed therefore in behalf of this new settlement , that the judges , and their dependents above , without any demand of new fees , shall at their proper cost maintaine , and depute sufficient officers belowe in the chief towne , or city of each county , that is distant above 60 , or 70 , miles from london : to dispatch all such testamentary busines there , as is in common forme , and may be dispatched by letters : and so save the greatest number of suitors their travaile to london . it is also undertaken , that the said deputies shall in favour of the poorer sort do busines gratis , and neither take gratification nor reward where the inventory exceeds not 10 l. and in all other dispatches of greater value it shall be the same deputies part to transmit all things up to london that deserve registring , and reserving , without grating upon clients . likewise , the same deputies , if authority thinke fit , which thus intend testamentary busines below , may finde leasure , and opportunity enough to keepe authenticall entires , and records of all other contracts , and solemne acts betwixt party , and party , which deserve to be treasured up for publick search . how acceptable therefore such a settlement would be to the people , when it should speed all mens busines so compendiously , and the poores so gratuitously , and how full of grace it would appear to the generality , need not be further demonstrated . 5. hereby the excessive incumbring , and over-charging of our courts at westminster with a surplusage of testamentary busines ( not yet foreseen by some practisers of the common law ) will be aptly prevented . it will be the wisdome of the parliament to provide , that we have neither too many courts for our suits , nor too many suits for our courts : both being attended with great inconveniencies , but the second with far greater , then the first , some would have in every county a court , and reduce us to the old manner of jurisdiction , which was used in england long before the norman conquest , when this was a cantoniz'd country , and obeyed severall pety princes : and this is pressed as very counsellable , by that party , which would cantonize us the second time : but t is to be fear'd , if this designe prevaile , our quarrels , and controversies will abound , and increase upon us , as fast as our judicatories do . that fire which is now kept up in one hearth at westminster , will be then scatered all over the house , and so spread its flame much wider then before . other objections lie against too many courts , espescially when they are attended with more illiterate judges , and unexpert counsellors : but the intent of this paper is to shew that there is lesse publick prejudice in too many courts , then in too few . t is with the politick , as with the natural body : both finde obstructions more fatal then fluxes , and both receive more torture from a defect in the expulsive faculty , then from a defect in the relentive faculty . too much vexation from many courts may be compared to a disentery : but want of expedition by reason of too few courts is like the nephriticall malady , and kils us with pangs inexpressible . the parliament of late has taken away half our courts almost at westminster : and thereby doubtles it has taken away from amongst us many of our suits , and law-questions ▪ but it is as far out of doubt withall , that all the differences that were formerly decided in those abolisht courts , are not abolisht together with those courts . this together with the calamity of our late broiles , and confusions , has begotten a very great glut of busines at westminster hall : and this glut of busines has most undeservedly begot a complaint against westminster hal. every man sees that the chancery at present grants not clients such dispatch as is expected : but every man sees not the true cause of this : and the plain truth is , the fault is not in the court , nor in the commissioners , nor in the pleaders : t is too great a confluence of busines that chokes up , and obstructs chancery proceedings : and t were much better for the common-wealth to be at the charge of two chanceries for too little busines , then to maintaine one that 's over burthened with too many causes . oh that the parliament would consider what want of a due hearing , and redresse is in chancery , and other courts , yea and within its own walls . the greatest of our grievances , the grievance of all our grievances at present is ; that our grievances can have no vent , and that our complaints know no place , where they may effectually disburthen themselves , many thousands at this day being no where remediable but in parliament , have wofull petitions to present , yet can obtaine no accesse at all to the house : and some thousands of those that obtaine accesse , either waste themselves in a diuturnall frustraneous attendance , or are at last denied their requests , or are undone for want of a timely deniall . there is now a prisoner in warwick castle , whose long durance has sunk him into the deepest of all worldly afflictions , and his languishment is now almost desperate , because though he has alwayes in other matters deserved well of the parliament , and no great ill in this ( as he hopes to prove , if he may be admitted to any triall ) he sees the house which can hear his accusation , yet cannot find leisure to hear his defence , nor will provide for him any other issue out of this miserable condition . i my self in a case of no meer , private concernment have attended upon committees for dispatch at least seven yeers : and though that attendance has much broken my fortunes , and disappointed me of divers hopefull preferments , and given me cause to complain against my undoers : yet am i fain to strangle my griefes in private , lest i should by a new supplication condemne my self again to the torture of sisyphus , for seven yeers longer . i uttet not this here , because it burns , and festers like a deep suppuration in my minde : but because i beleeve there are very many others in my condition , to whom want of expedition ( being like the stoppage of the stone in the uritories ) apears more intolerable , and procures more desperate disaffections then it does to me . pardon this digression , it means no ill : it would onely demonstate , that there is danger , and damage in too many tribunals , yet not so great as in too few . 6. hereby there will be one cettain place for all suitors to dispatch their busines at , and that place will be london our metropolis , incomparably the most commodious of the whole land for such dispatches : when there are many judicatories , and registries in severall counties , and provinces to resort unto , there cannot but follow much uncertainty to clients ; and uncertainty in matters of this nature is ever the mother of confusion , and distraction . some men which look no further then to the ease of executors and administrators , suppose london too far distant from some counties , and therefore they propose to have all wils proved , and administrations granted where each testator or partie intestate dyes : but these in the mean time have no regard to the ease of creditors , legatees , and other interessents who often are more in number , and whose rights are often of more value , then the executors and administrators . wherfore forasmuch as one that lives in cornwall , another in london , and a third in norfolk , may be concerned in a will or administration at barwick , or carlile , and so by this proposition must accidentally travail to barwick or carlile , the most incommodious places of all england : and still there is no certain place designed to any man before-hand ; what a generall vexation and perplexity is this likely to produce in many cases ? now london as it is a place alwayes fixed , and pre-determined , so it does for manifold conveniences deserve that preheminence before all other places whatsoever . for , 1. london is the common justice seat for all suitors to resort unto in all other differences ; and therefore testamentary records are most necessarie to be there kept , where they are to be oftnest produced , and where they may be most ready at hand upon all occasions to be used . 2. all ages can testifie , that testamentaries records have there been ever most safely treasured up : whereas if an inquiry be now made of the registries belowe , without doubt it will be a strange account that will be returned of their records , and ancient minniments . 3. if suits arise ( as they do most frequently about wills , administrations , &c. ) no other place can afford so able advocates , sollicitors , &c. as london can. 4. london is so qualified for correspondence , by reason of the vast concourse of people there about other busines , that any man may write thither , and by writing have busines dispatcht there with lesse trouble and expence , then he can ride twenty miles any other way : and the greatest part of testamentary busines is dispatchable by letters . 5. as the best choise of able responsall registers and other officers are to be had at london , so if they misdemeane themselves , there is the readiest remedy to be obtained against them . 6. the dispatch of busines below is not left to the meer care and costs of interessents farr remote from london , that is in in great part to lie upon the shoulders of such as shall have deputations from above as the busines is here stated : upon the whole matter therefore it may rationally be concluded : 1. that a speedy settlement of some new testamentary jurisdiction is worthy of the parliaments serious consideration . 2. that this settlement here proposed , is the most adequat to our publick , nationall interest of any that has been yet debated : if every man would know that the generall interest comprehends his particular , as the greater does the lesse : but not on the contrary : and so the common and civill jurist would not confine their thoughts to what is the advantage of their profession ; nor the burgesse of such a town , nor the lord of such a mannor , nor the knight of such a sheere ; restrain themselves within their own narrower circles , but would obey the rapture of the highest orbe ; all our motions would be far more regular , and concentrick . instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages england and wales. council of state. this text is an enriched version of the tcp digital transcription a84464 of text r211323 in the english short title catalog (thomason 669.f.14[90]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a84464 wing e778 thomason 669.f.14[90] estc r211323 99897905 99897905 135461 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a84464) transcribed from: (early english books online ; image set 135461) images scanned from microfilm: (early english books, 1641-1700 ; 2555:6) instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages england and wales. council of state. 1 sheet ([1] p.) printed for edward husband, london : 1649. issued 20 nov. 1649. steele notation: vagabonds and every. annotation on thomason copy: "nou: 25". reproduction of original in the henry e. huntington library. eng law enforcement -england -early works to 1800. broadsides -england a84464 r211323 (thomason 669.f.14[90]). civilwar no instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of england and wales. council of state 1649 541 23 0 0 0 1 0 610 f the rate of 610 defects per 10,000 words puts this text in the f category of texts with 100 or more defects per 10,000 words. 2007-11 tcp assigned for keying and markup 2007-11 apex covantage keyed and coded from proquest page images 2007-12 elspeth healey sampled and proofread 2007-12 elspeth healey text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion instructions to be observed by the several iustices of peace in the several counties within this commonwealth , for the better prevention of robberies , burglaries and other outrages . vvhereas great robberies , burglaries and other outrages are daily committed , to the exceeding great damage and danger of the commonwealth , ●…s therefore , in pursuance of the special order of parliament to us directed , or●red for the future , that the ensuing directions be forthwith put in execution by justices of peace in their several counties ; viz. you are to cause all laws in force against rogues , vagabonds and sturdy beggars , to be duly and effectually executed . ii. you are to cause sufficient watch and ward to be kept by ●●rsons able in body , with bills , guns , or other weapons , in all fit ●●…aces and towns adjoyning to any great road ; and that you give ●…rder to the constables of every such town , that posts , rails and ●…ates be set up in every such place and town , to the end to examine 〈◊〉 passengers , as also thereby to stop the speedy flight of all thieves ●●d robbers . iii. and in order to their more speedy apprehension , you shall give ●rder , that they have in readiness in every such town , an expert ●●rson and an able horse , to be a guide to such as at any time shall 〈◊〉 in pursuit of thieves and robbers . iv. you shall give order , that as they shall meet with , or ap●●…hend any such , or any whatever suspitious persons , that they ●●…thwith carry them before the next justice of the peace , to be by 〈◊〉 proceeded withal according to law . v. you shall take care effectually to suppress all unlicensed ●●ehouses , and all such alehouses and houses whatsoever , usually ●…ertaining travellers and strangers , which do stand in blinde ●orners out of the view of towns or houses . vi . that to all such as shall necessarily be continued , and all and ●…ery the innholders within their counties , you shall give order 〈◊〉 give in writing every night , viz. by six of the clock in winter , and 〈◊〉 eight of the clock in summer , to the justices of the peace , or to such ●●her as shall be by them deputed , of the number of all travellers ●…dging within their respective houses , and whither they are tra●●lling : with a full description of their apparel , of their horses , ●eldings and mares : and in case of default herein by any inn●●…lder or alehousekeeper , he or they so offending are to be suppres●●d , and not suffered after to hold or keep any inn or alehouse : and ●ou are to give order to the several constables , to return you a ●eekly account of their proceedings herein : and you are every moneth to give an account of your proceedings to this councel . signed in the name , and by order of the councel of state appointed by authority of parliament . the orders for swannes, both by the statutes and by the ancient orders and customes vsed within the realme of england laws, etc. england and wales. 1603 approx. 10 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-10 (eebo-tcp phase 1). a22843 stc 9342.9 estc s3284 33143265 ocm 33143265 28343 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a22843) transcribed from: (early english books online ; image set 28343) images scanned from microfilm: (early english books, 1475-1640 ; 1877:58) the orders for swannes, both by the statutes and by the ancient orders and customes vsed within the realme of england laws, etc. england and wales. 1 sheet ([1] p.). s.n., [london? : 1603?] imprint information from stc (2nd ed.). ends: god save the king. contains 30 numbered articles. reproduction of original in: society of antiquaries. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded 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available at the text creation partnership web site . eng law -great britain. swans -great britain. 2008-08 tcp assigned for keying and markup 2008-11 spi global keyed and coded from proquest page images 2008-12 megan marion sampled and proofread 2008-12 megan marion text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion ❧ the orders for swannes , both by the statutes and by the ancient orders and customes vsed within the realme of england . first , ye shall enquire if there be any person that doth possesse any swan , and hath not compounded with the kings maiesty for his marke : that is to say , vj. s. viij . d. for his marke during his life : if you know any such , you shall present them , that all such swans and cignets may be seized for the king. 2 also you shall enquire if any person doth possesse any swan or cignet , that may not dispend the cléere yearly value of fiue markes of frée-hold , except heyre apparant to the crowne : then you shal present him . 22. edw. 4. 3 also if any person or persons doe driue away any swan or swans , bréeding or prouiding to bréed , be it vpon his own ground or any other mans ground , he or they so offending shall suffer one yeares imprisonment and fine at the kings pleasure , xiij . s. iiij . d. 11. h. 7. 4 if there be found any weares vpon the riuers , not hauing any grates vpon them , it is lawfull for euery owner , swanmasters or swan-heards , to pull vp or cut downe the birth net or gyn of the said weare or weares . 5 if any person or persons be found carrying any swan-h●●ke , and the same person being no swan-heard , nor accompanied with two swan-heards : euery such person shall pay to the king xiij . s. iiij . d. that is to say , iij. s. iiij . d. to him that will informe , and the rest to the king. 6 the ancient custome of this realme hath and doth allow to euery owner of such ground there any such swan shall heiry , to take one land bird , and for the same the kings maiesty must haue of him that hath the land bird xij . d. be it vpon his owne ground or any other . 7 it is ordeyned , that if any person or persons do conuey away , or steale away the egge or egges of any swans , and the same being duly proued by two sufficient witnesses , that then euery such offendor shall pay to the king xiij . s. iiij . d. for euery egge so taken out of the neast of any swan . 8 it is ordeyned that euery owner that hath any swans , shall pay euery yeare yearely for euery swan-mark iiij . d. to the master of the game for his fée , and his dinner and supper frée on the upping dayes . and if the said master of the game faile of the foure pence , then he shall distraine the game of euery such owner that so doth fayle of payment . 9 if there be any person or persons that hath swans that doe heiry vpon any of their seuerall waters , and after come to the common riuer they shall pay a land-bird to the king , and be obedient to all swan lawes : for diuers such persons doe vse collusion to defraud the king of his right . 10 it is ordeyned that euery person , hauing any swan , shall begin yearly to marke , vpon the first of august , and no person before ; but after , as coueniently may be , so that the master of the kings game , or his deputy , be present , and if any take vpon him or them to marke any swan or cignet , in any other maner , to forfeit to the kings maiesty for euery swan so marked , xl . s. 11 it is ordeyned that no person or persons , being owners , or deputies , or seruants to them or other , shall goe on marking without the master of the game or his deputy be present , with other swan-heards next adioyning , vpon paine to forfeit to the kings maiestie xl . s. 12 it is ordeyned that no person shall hunt any ducke or any other chase in the water , or néere the haunt of swans in fencetime , with any dog or spaniels , viz. from the feast of easter to lammas , vpon paine for euery time so found in hunting , to forfeit sixe shillings eight pence . 13 it is ordeyned , that if any person doth set any snares , or any maner of nets lime or engines , to take bittorns or swans , from the feast of easter to the sunday after lammas day , he or they to forfeit to the k. maiestie for euery time so setting , vj s. viij . d. 14 it is ordeyned , that no person take vp any cignet vnmarked , or make any sale of them , but that the kings swan-heard , or his deputy be present , with other swan-heards next adioyning , or haue knowledge of the same , vpon paine to forfeit to the kings maiesty xl . s. 15 it is ordeyned that the swan-heards of the duchy of lancaster shall vp no swan , or make any sale of them , without the master of the swans or his deputy be present , vpon paine to forfeit to the k. maiesty xl . s. 16 and in like maner , the kings swan-heard shal not enter into the liberty of the duchy , without the duchy swan-heard be there present , vpon the like paine to forfeit xl . s. 17 it is ordeyned , that if any swans at cignets be found double marked , they shall be seized to the kings vse , till it be proued to whom the same swans or cignets doe belong . and if it cannot be proued to whom they doe belong , that then they be seized for the king , and his grace to be answered to the value of them . 18 it is ordeyned , that no person make sale of any white swans , nor make deliuery of them without the master of the game be present , or his deputy , with other swan-heards next adioyning , vpon paine to forfeit xl . s. whereof vj. s. viij . d , to him that will informe , and the rest to the k maiesty : 19 it is ordeyned that no person shal lay leapes , set any nets or drag , within the common streames or riuers vpon the day time , from y e feast of the inuention of the crosse to y e feast of lammas , vpon pain so ost as they be found so offending , to sort . xx . s. 20 it is ordeyned , that if the master of the swans or his deputy , do seize or take vp any swans as strayes , for the k. maiesty , that he shall kéepe them in a pit within xx . foot of the kings streame , or within xx . foot of the common high way , that the k. subiects may haue a sight of the said swans so seized , vpon paine of xl . s. 21 it is ordeyned , that if any person do raze out , counterfeit or alter the marke of any swan , to the hindering or losse of any mans game , that euery such offendor duly proued before the k. maiesties comissioners of swans , shal suffer one years imprisonment , and pay in l vj. s. viij . d. to the king. 22 it is ordeyned that the commons , that is to say , dinner and supper shall not excéed aboue xij . d. a man at the most . if there be any game found where the dinner or supper is holden , vpon that riuer , the owner being absent , and none there for him , the master of the game is to lay out viij . d. for him , and he is to distraine the game of him that faileth the payment of it . 23 it is ordeyned that there shal be no forfeiture of any white swan or cignet , but onely to the k. grace , as well within the franchise & liberties as without : and if any do deliuer the swan or cignet so seized , to any person but only to the master of the kings game , or to his deputy , to the k. vse , he is to forfeit vj. s. viij . d. and the swans to be restored to the master of the game . 24 it is ordeyned , that no person shall take any gray swans or cignets , or white swans flying , but that he shall within foure dayes next after , deliuer it or them to the master of the k. game , and the taker to haue for his paines viij . d. and if hee faile , and bring him not , he forfeits xl . s. to the king. 25 it is ordeyned , that no person hauing any game of his own , shall be swan-heard for himselfe , nor kéeper of any other mans swans , vpon paine to forfeit to the k. maiesty xl . s. 26 it is ordeyned , that no swan-heard , fisher or fowler , shall vexe any other swan-heard , fisher or fowler , by way of action , but only before the k. maiesties justices of sessions of swan-heards , vpon paine to forfeit xl . s. to the king. 27 the master of the kings game shall not take away any vnmarked swan coupled with any other mans swan , for breaking of the brood : and when they doe heiry , the one part of the cignets to the king , and the other to the owner of the marked swan . 28 also , any man whatsoeuer he be , that killeth any swan with dogge or spaniels , shall forfeit to the king xl . s. the owner of the dog to pay it , whether he be there or no. also the master or the swans is to haue for euery white swan and gray vpping j. d. and for euery cignet ij . d. 29 it is ordeyned , that if any heiry be leyed with one swan , the swan and the cignets shall be seized for the king , till due proofe he had whose they are , and whose was the swan that is away , be it cobbe or pen. 30 lastly , if there be any misdemeanour or offence committed or done by any owner of any game , swan-heard or other person whatsoeuer , contrary to any law , ancient custome or vsage heretofore vsed and allowed , & not before herein particularly mentioned or expressed , you shall present the same offence , that reformation may be had , and the offendors punished , according to the quantity and quality of the seuerall offences . god save the king . the kings grant of privilege for sole printing common-lavv-books defended and the legality thereof asserted atkyns, richard, 1615-1677. 1669 approx. 28 kb of xml-encoded text transcribed from 10 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2008-09 (eebo-tcp phase 1). a26137 wing a4133 estc r30820 11510873 ocm 11510873 47865 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking 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(eebo-tcp ; phase 1, no. a26137) transcribed from: (early english books online ; image set 47865) images scanned from microfilm: (early english books, 1641-1700 ; 1472:7) the kings grant of privilege for sole printing common-lavv-books defended and the legality thereof asserted atkyns, richard, 1615-1677. [2], 17 p. printed by john streater, london : 1669. attributed by wing to r. atkyns. reproduction of original in the st. john's college library, cambridge university. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng prerogative, royal. law printing. 2006-03 tcp assigned for keying and markup 2006-03 aptara keyed and coded from proquest page images 2007-03 ali jakobson sampled and proofread 2007-03 ali jakobson text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion the kings grant of privilege for sole printing common-lavv-books , defended ; and the legality thereof asserted . london , printed by john streater , 1669 ▪ the kings grant of priviledge for sole printing common-law-books , defended , &c. the principal exception against the grant of priviledge before mentioned is the slander of a monopoly ; and the principall foundation on which it stands supported and justified is the kings prerogative ; and therefore those two matters , a monopoly and the nature thereof ; and the kings prerogative and the extent thereof are necessarily to be first considered . i consider a monopoly as it is ( or was ) at the common law before the stat. 21 jac. the matter in question being of a grant made before that statute ; and the thing granted excepted out of that statute . 't is true , a monopoly is ( as many other ungrateful terms are ) taken primarily and generally in the worst sence , to signifie something unlawful , against the freedome of trade , the liberty of the subject , &c. and the word is thereupon also forced and extended ( beyond its literal signification ) to comprehend every sole dealing or exercising of that which others are restrained to use . and to be termed a monopoly , is at this day an imputation , as if the unlawfulness thereof were necessarily to be presumed and implyed . whereas it is most clear , that all monopolies are not against law , some being reasonable , useful and beneficial to the publick , and some necessary ; and this necessity and benefit to the people recompenceth the restraint of their liberty , and taketh away the unlawfulness thereof . all patents of priviledge for the sole usage of new inventions are monopolies undeniably , yet is it necessary they should be granted for the encouragement of industry and invention ; the communicating whereof to publick use , is a publick and general benefit , though the making the invention should be perpetually appropriated to the inventor . all or most of the ancient offices were at the first ( and are agréed to be ) direct and plain monopolies in their natures , and are now found so to be in their mischievous consequence to the generality of the people , whose charges do but enr●ch a single person sometimes for performing that which is needless ; or if needful , might be performed by the persons concerned themselves without charge . nevertheless , such offices having béen created originally upon reason of use and benefit to the publick , for encouragement of learning , diligence or fidelity , or such like motives to his majesties royal predecessors by whom they were erected , have from age to age béen approved and continued as they now are , ( and are excepted by name with this priviledge in question out of the aforesaid stat. 21 jac. ) as unquestionably lawful . it hath been said , that ancient offices are established and made lawfull by time and custome , which is part of the law . to which i answer , that a monopoly is an evill of that nature as could not be justified by custome , or by length of time , if it were not ex rationabili causa usitata , a benefit to the people in recompence of the restraint of their freedoms : for 't is the reasonableness of benefit that justifies the thing , and not time or custome ; in consuetudinibus consideranda est soliditas rationis , non diuturnitas temporis . in like manner a man may by vsage or reservation claim the sole priviledg of kéeping a common mill , a common bake-house or brew-house within a certain precinct ; for this may have commenced originally ex rationabili causa , by bargain or agreement to be made at the owners charge , and for the inhabitants ease and benefit , which is a recompence for the restraint of their liberty of using the like . 2 e. 3. 7. the case there is , that the king had granted a charter of priviledge to the lord or owner of a haven , that such ships as anchored or entred there for harbour , should unlade there only . this and the precedent cases are plain monopolies ; yet because they stand upon equivalent benefit , and the ships had harbour and safety from the lord of the haven , 't was therefore allowed a lawfull charter . from which cases i infer , that before the statute a monopoly might be lawfully erected , because it might be beneficial to the publick , and was permitted in special cases . and with this agréeth the learned grotius in his book de jure belli & pacis . monopolia non omnia cum jure naturae pugnant , nam possunt interdum à summa potestate permitti justa de causa , &c. and he instances the practice and permission thereof in the roman state , ( the pattern of governments ) and the holy story of joseph touching this matter . a monopoly is then unlawful , when thereby the people are restrained in their lawfull trades , or in the exercise of what they have right to use , without general benefit or recompence for the same : but the priviledging particular persons to exercise a particular imployment which others never did use , nor have right to use , and the generall use whereof would be dangerous , and the restraint of the use safe for the publick , cannot be unlawful ; for the reason of that unlawfulness fails , cessante ratione legis cessat lex . now for the prerogative ( which is a copious subject ) i shall only mention so much touching the same , as i conceive most proper to the matter in hand . the king hath prerogatives of severall natures , and grounded upon severall reasons ; some in respect of his own royal estate and person ; others in respect of his office and magistracy , for the better government of his people : for the king as supream magistrate hath a general trust and care of the peoples safety , to prevent , as well as to deliver from publick evils . rex &c. ratione dignitatis regiae ad providendum salvation●m regni circumquaque est astrictus . now providentia is ( properly ) futurorum ; whereby the king is to use all means to foresée and prevent mischiefs within his kingdom . for this purpose , and for the enabling him to perform this office and trust , he is by law endowed with several transcendent prerogatives , some known , and some unlimited and unknown which are jura summi magistratus , as great for weight , and as infinite for number as the contingencies may be wherewith the peoples safety may be affected . the extent of the kings prerogatives , such as concern their own personal rights , or the rights of their estate , are sometimes disputed , and have sometimes béen limited and restrained by their own consents in parliament . but those touching the preservation of the publick have never been limited , nor ought to be disputed or lesned ; and if so , the intended limitations and restraints thereof have been adjudged void because these prerogatives are inseparable from the crown . hence it is , the king can dispence with laws , can pardon offences , can licence matters prohibited , can prohibit matters tolerated , and can priviledge , restrain , or qualifie new accidents , as he in wisdome and deliberation shall judge expedient and best for the publick good . which iudgment and deliberation is peculiar and proper to the king , who alone comprehendeth the estate of publick things , and it is a duty and consequence of his supream magistracy . now printing in every mans reason and observation is , and in the act for regulating printing is prefaced to be matter of publick care and great concernment . these things being premised , i shall only state the case truly as it is to be understood touching the priviledge in question , and then the application will be obvious . in the reign of king hen. 6. the art of printing was first invented . and as some manuscripts relate , the same king hen. 6. purchased the first discovery of the art , and thereby became proprietor thereof at his own charge ; whereby the same came to be taught and used in england , but for the printing of such matters onely as the king licensed and priviledged , and by the sworn servants of the king onely , and in places appointed by the king , and not elsewhere . by the later end of the reign of h. 8. the invention was come to some perfection , and several books were then printed here cum privilegio , and others brought over printed from beyond the seas ; but being few in number , and the prices thereof excessive , the same was remedied by the stat. 25 h. 8. cap. 15. the state at that time taking consideration of the growth of printing , and the danger and consequences that might ensue to the king and people by printing the lawes of the land , that thereby errors and seditions might be divulged and insinuated , and other mischiefs happen to affect the the people , thought fit thereupon to commit the printing of the lawes to the care and trust of some particular persons whom the king by patent priviledged to print the same , with a clause of restraint to all others from presuming to meddle therein . all succéeding kings and queens of this realm have upon like considerations mentioned in their grants , and other considerations of state , in wisdome thought fit to continue the said priviledg in the hands of some persons in whom they consided , with like clauses of restraint as before . the dates and successions of which grants are as followeth . the king granted a patent of sole priviledge to print law-books , to tottell for 7. years , with restraint to others from presuming to print his lawes . the quéen renewed tottells grant for life . the quéen granted like patent of priviledg to yersweirt clerk of her signet , for 30 years . the queen granted a new patent of like priviledg to weight and norton for 30 years . the king granted a new patent of like priviledg to john moore clerk of his signet for 40 years ; which patent is still continuing . these priviledges ad imprimendum solum , have continually béen enjoyed according to the purport of the said grants ; saving the interruption forced upon the presse after 1642. in the times of the late troubles , whereby sedition and treason came to be printed openly , and continued so to be till his majesties restauration . this is the first peaceable age wherein the kings prerogative , in this matter of printing the lawes , was ever questioned , or the aforesaid priviledges charged with the imputation of monopolies . and whether they be such monopolies as are against law , is the present question . for the justifying the lawfulness of this priviledge , i offer the reasons ensuing . 1. that the king hath as absolute power to prevent evils foreseen , as he hath to reform them which happen unforeseen . and i conceive it clear , as he may forbid the exercise of any invention , which upon the permission thereof shall prove or become a nusance , or common mischief , so he may qualifie , or wholly prohibit the first use of it , out of a prospect of the mischief . watchfulness and carefulness are the duties required of a good prince ; to watch , is , that he may prevent and obviate dangers . now experience hath discovered to us the dangers and mischiefs of the liberty of printing ; and , though the excellency of the invention cannot be denyed , yet , whoever will consider it , shall find , that factions and errors in matters of religion , and principles of treason and rebellions in matters of state have been more insinuated and fomented by the liberty of the presse , then by any other single means . so it may seem a question ( impartially considered ) whether the use of printing recompenceth the mischief by the liberty and abuse thereof . therefore the a father observeth excellently well , the matter of books seemeth to be a thing of small moment , because it treats of words ; but through these words , come opinions into the world , which cause partialities , seditions , and wars : they are words , it is true , but such as in consequence , draw after them hosts of armed men. now certainly , had the king at the first discovery of the invention of printing , foreséen the vse thereof a likely means of disturbance to the peace of the church or state ( as the liberty and abuse thereof hath proved to both ) . it had béen in the kings power , for the peace and safety of both , to have prohibited the vse of printing wholly . 2. as upon the reason aforesaid , the king might at the first have refused to have received the vse of printing at all into his dominions , so much more reasonably might he restrain the general liberty and vse thereof , not to extend to matters of state or law , these being peculiarly within his concerns , and of more apparent danger to the peace of the state. some states have not suffered their laws at all to be published or known . there might be policy in this , though it seems unjust ; yet on the contrary , for a general liberty to publish the laws is neither honourable nor safe . the mean betwixt these extreams hath been practised by the kings of this realm , not to restrain the printing of the laws wholly ( as they might have done ) nor yet to give a general liberty to every man for the doing thereof ( which might prove unsafe ) but to priviledge select persons only to do the same , who might be answerable for misdemeanors and defects therein . 3. though the art of printing was discovered sometime before the reign of e. 6. from whom the first patent of this priviledge appears granted , yet were the presses all then licenced by the king ; and none , or no considerable book of the law was printed before that time , the art not being come to perfection : so that the first patent of this priviledge could not be pretended a monopoly , or illegal , none then having the trade , or right of printing the laws to be detrimented thereby . 4. the king having at the first beginning of printing , by his lawful prerogative , and upon just reason placed this priviledge of printing the laws solely in the hands of particular persons , to prevent mischiefs which might ensue upon a general liberty given to print the laws ; and the said priviledge being then not unlawful , because no restraint of any thing then practised or exercised , or which any one had right to exercise : and having ever since so continued , and the people generally neither intitled to the right or vsage of printing the laws , remains grantable as at the first by virtue of the same prerogative , and for the same ends , and with the same innocence from injuring any one . 5. besides the reasons before mentioned , ( of security to the kingdome , against innovations , or false construction of the laws , either by the designs of authors , or mistake of printers , which is worthy the princes care , and those he entrusts with the printing of the laws to prevent ) the king hath ( as i conceive ) a peculiar right and property ( not only in the art and invention of printing by purchase ( as before hath been said ) for in that i lay no great weight but ) in the laws themselves , and in the publishing thereof , which cannot be taken from him , or assumed by any subject without his leave . 't is true , the people have also a right in the laws ( as they had before printing was known ) not to print them , but to receive the fruit of them from the kings hand . but the king is the repository and proprietor , and is entrusted with the promulgation and execution of the laws . there is lex scripta & non scripta . the written laws are records , &c. which are recorda & brevia domini regis , and are reckoned inter thesauraria regis , as the chief and principal things wherein he hath property . but the unwritten laws , which are grounded upon custom and reason , &c. are yet more properly the kings then the other , for these are in his brest . the written law is reposited but in arca or thesauro regis , but the laws unwritten are in pectore regis . in scrinio pectoris , saith fortescue . from whence i infer , that these laws and records which are so peculiarly the kings in property and dispensation , ought not to be published , or numbred , or interpreted but by authority from him ; and the printing thereof is of the kings free pleasure , and not the peoples right , and consequently the priviledging some to print the law is the kings grace , and the restraining others from that liberty not any wrong . 6. if no material reason could be offered in this case , to assert the kings right in granting this priviledge , yet there want not authorities to justify the same . 1. the constant usage and practise , without exception from the first settlement of printing , as appears by the succession of patents before mentioned . in the argument of darcy and allens case , one great reason against that patent , was , that the like had never been granted before . but here the like hath ever béen granted , ever since the printing of the laws , and the like ( or any ) exception thereunto never heard of before . 2. the general allowance of the judges in the argument of darcy and allens case , where this patent was cited as a president , and holden lawful , & necessary pur le peace & safety del realm , nemine contradicente . 3. the stat. 21 jac. cap 3. was passed purposely to suppresse the then present , and to prevent the future granting of monopolies , and yet expresly excepts patents of priviledge for sole printing of books with several branches of the militia and offices , and other like things of the highest concern to the crown . and i cannot omit to observe , that this priviledge of printing is the first thing named in the exception , as if the parliament then had it first and principally in their care ; and that this patent now in question was the same patent then in force . 4. the stat. 21. jac. before mentioned , and also the stat. 14 ▪ car. 2. touching the regulation of printing , provide for patents of priviledge for printing , granted , or to be granted ; which they would not have done , had they not approved and intended to encourage like grants to be made . and also the last mentioned stat. fol. 433. expresly prohibits under penalties printing or com-printing of such books , the which any other hath sole priviledge to print by letters patents ; which implies , the parliament intended to support and establish such as lawfull ; and it cannot be reasonably thought several parliaments should so expresly provide for this priviledge of sole printing , if they had not designed to secure it from the censure of a monopoly . it hath been objected , that this patent hath the mischiefs of a monopoly , for thereby the patentee may enhaunce the prices of law-books ; may print the law-books as defectively as he pleases , and may prise mens labours at his own rates , &c. 1. the prices of books may ( if occasion shall be ) be regulated by the chancellor , &c. per stat. 25 ▪ h. 8. cap. 15. 2. defective printing , or other abuses in or about the printing of the laws , is a breach of trust , and punishable in the patentée , and a cause of forfeiture of his patent , as mis-execution , or defective erecution is a cause of forfeiture of an office. 3. if these objections were true , and could receive no answer , the mischiefs pretended are not comparable to the benefits received , or the security which redounds to the publick , by restraining the general liberty of printing the laws . the words of the patent are said to be too large and unreasonable , to priviledge all books concerning the common laws . for herein all manner of books whatever are included , forasmuch as every book more or less compriseth something of the common-law . this is an unreasonable construction of the words ; for books principally treating of another subject , which in the proof , or proceeding thereunto , only mention some maxims or principles of the law , can only be said to contain in them some chapter or page ( but cannot be termed books ) concerning the law , the law neither being their subject or design . denominatio ●umitur à principali . 7. if this patent touching the sole printing of the laws should in this age have the sentence of a monopoly against law , in consequence other patents of priviledge of like nature for sole printing of books ( that is to say ) the patents to the kings printers for printing proclamations . the patents for printing the bible , testament , common-prayer , &c. the patents of both the universities of this kingdom in reference to printing . the several patents to the company of stationers for sole printing the primer , psalters , singing psalms , school-books ; and that of almanacks , the words of which are , all and all manner of almanacks , in terminis such as be the words of the grant in question , and are all priviledges of the like nature and authority ( but of lesse reason and use ) must have the same fate to be overthrown therewith . 8. the usage of other neighbour kingdomes and states , may in this matter enforce the reasonableness of the like vsage here . in france , germany , holland , &c. sole priviledges of this nature are usually granted , and solemnly observed . the forms whereof are to be séen before several books printed within those kingdomes ; to this effect , ( viz. ) sancta caesarea majestas diplomate suo sanxit , ne quis praeter a. b. c. d. intra sacri imperii romani regnorumque , &c. fines , these and those books in toto vel in parte excudat , &c. sub confiscatione , &c. in like manner , ordinum hollandiae , westfrisiaeque singulari privilegio cautum est , ne quis praeter a. b. & c. d. ( these and those books ) imprimat &c. sub confiscatione , &c. the form of the french kings priviledges , recite his prerogative , that no book can be printed within his dominions , sans avoir sur ceo nos lettres à ce necessairs , that thereupon he does permit such persons to print such books in such manner , &c. faysans d' offence à touts imprimeurs , &c. d' imprimer , &c : any of the said books besides the persons priviledged . now forasmuch as the kings of this realm of england are not restrained herein ( in case they might so be ) by any statute since the invention of printing , why should they be conceived to have less right and power to grant like priviledges touching printing , then is practised by their neighbour princes upon the same reasons of law and state , for their subjects safety . it being almost impossible for a prince to rule the spirits and wills of his subjects ( since printing came in vse ) without restraining the presse , which so evidently influences them to evil or good. i only add , that after the long parliament had ( anno 1641. ) opened a liberty to the presse for their first service , to insinuate and propagate principles of rebellion , they immediately found it necessary again to restrain the same ( anno 1643. ) for their own security . the sum of all which is , 1. that some monopolies may be necessary and useful to the publick , and consequently lawful , 2. that the king hath prerogative to priviledge such , and is iudge of the matter . 3. that the priviledge in question is such , and hath been so adjudged by the kings predecessors ever since the reign of edw. 6. 4. that there hath been a continued succession of patents of the same priviledge ever since the printing of the laws . 5. that experience hath discovered the mischief of liberty in printing the laws . 6. that the king upon fore-sight hereof ( much more upon experience ) might restrain the printing of the laws wholly . 7. that the king hath a property in the laws , and 't is his grace , and not the peoples right , to have them printed . 8. that like priviledges for sole printing of books , are practised and used to be granted by all the neighbour princes and states where printing is used . 9. that in arguments of law , this priviledge hath been cited , and allowed lawful . 10. that several statutes have excepted and preserved it as lawful . from all which it is ( with submission ) concluded to be so . finis . notes, typically marginal, from the original text notes for div a26137-e70 lib. 2. cap. 12. parag. 16. reg. 127. f. paul servita in his history of the inqu . pag. 104. anno 1466. this appears by a manuscript thereof in the library at lambeth . 7 e. 6. 7 e. 6. 1 eliz. 20 eliz. 41 eliz. 15 jac. a f. paul servita ubi supra , pag. 106 , 107. 44 eliz. moores rep. 673. 1. object . sol. 2. object . sol. a proclamation, for suppressing of tumults in edinburgh, and elsewhere. scotland. privy council. 1688 approx. 4 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-10 (eebo-tcp phase 1). b05690 wing s1922 estc r183546 52528991 ocm 52528991 179091 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. b05690) transcribed from: (early english books online ; image set 179091) images scanned from microfilm: (early english books, 1641-1700 ; 2776:80) a proclamation, for suppressing of tumults in edinburgh, and elsewhere. scotland. privy council. scotland. sovereign (1685-1688 : james vii) 1 sheet ([1] p.) printed by the heir of andrew anderson, printer to his most sacred majesty, edinburgh : anno dom. 1688. caption title. royal arms at head of text; initial letter. intentional blank spaces in text. dated: given under our signet at edinburgh, the thirteenth day of december, 1688. and of our reign, the fourth year. signed: will. paterson, cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng riots -scotland -edinburgh -early works to 1800. law enforcement -scotland -early works to 1800. broadsides -scotland -17th century. 2008-01 tcp assigned for keying and markup 2008-01 spi global keyed and coded from proquest page images 2008-02 emma (leeson) huber sampled and proofread 2008-08 spi global rekeyed and resubmitted 2008-10 mona logarbo sampled and proofread 2008-10 mona logarbo text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion i7 r honi soit qui mal y pense royal blazon or coat of arms a proclamation , for surpressing of tumults in edinburgh , and elsewhere . james , by the grace of god , king of great-britain , france and ireland , defender of the faith ; to macers of our privy council , and messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting : forasmuch as there can nothing tend more to overturn the protestant religion , liberty and property of the kingdom in general , nor of every particular person , than the being exposed to the arbitrary insults of licentious tumults , who being guided only by blinded rage , are ready to make a prey of any whose estates , or persons can satisfie their revenge , or avarice ; therefore the lords of his majesties privy council considering the late execrable tumults , raised within this city , and the formidable effects thereof , not only within this city , but that it has spread it self over the countrey , have thought fit to discharge all tumultuary meetings within this city , or suburbs , under the highest pains that law can allow ; and as by former proclamations , so now again , command and impower the magistrats of this city to take all effectual courses for repressing these tumults , assuring them , that if they fail therein , they will transfer the judicatures to some other town , that will be more loyal and obedient to law , and that they will interpole with his majesty , that not only the town and magistrats shall be punished , but that all their deaconries shall be dissolved and their colledge closed up ; and that for the future , all who shall be found guilty , shall be excepted from acts of indemnity ; and lest strangers should ( under the presence of business ) come in to this city , to disturb the same , by the assistance of the saids tumults ; we do in a most special manner require and impower them , to take up lists of such as enter into the city , and to look exactly unto their behaviour , and to put them under caution , if they think fit : as also , to prevent tumults in other burghs , they command and require the magistrats to put the laws in execution , against all such as convocate themselves illegally , or offer to invade or rob privat houses , and they impower all sheriffs , baillies of regalities , baillies of bailȝiaries , or their deputs , to prevent and dissipat all such convocations within their respective jurisdictions , and to convocat all heretors and others , who are hereby ordered to assist them , to the effect foresaid , under all highest pain . and ordain these presents to be forthwith published at the mercat-cross of edinburgh , and other places needful , that none pretend ignorance . given under our signet at edinburgh , the thirteenth day of december , 1688. and of our reign , the fourth year . per actum dominorum sti. concilii . wil. paterson , cls. sti. concilii . god save the king . edinburgh , printed by the heir of andrew anderson , printer to his most sacred majesty : anno dom. 1688. an exact catalogue of the common and statute law books of this realm, and some others relating thereunto bassett, thomas, bookseller. 1684 approx. 78 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-10 (eebo-tcp phase 1). a26745 wing b1047 estc r37296 16319603 ocm 16319603 105297 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a26745) transcribed from: (early english books online ; image set 105297) images scanned from microfilm: (early english books, 1641-1700 ; 1604:18) an exact catalogue of the common and statute law books of this realm, and some others relating thereunto bassett, thomas, bookseller. 1 broadside. collected by thomas basset, bookseller ..., [london] : 1684. attributed to basset by wing and nuc pre-1956 imprints. place of publication suggested by nuc pre-1956 imprints. "be pleased to take notice. that f. signifies french law, and l. latine, the rest are english; and where there is any difference in the editions this mark * is prefixed." reproduction of original in the bodleian library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -england -bibliography. catalogs, booksellers' -england -london. 2008-07 tcp assigned for keying and markup 2008-09 spi global keyed and coded from proquest page images 2008-10 megan marion sampled and proofread 2008-10 megan marion text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion an exact catalogue of the common and statute law books of this realm , and some others relating thereunto . be pleased to take notice . that f. signifies french law , and l. latine , the rest are english ; and where there is any difference in the editions this mark * is prefixed .     l. s . d. f anderson's rep. 2 parts fol. 0 18 0 f ashes tables to the law fol. 1 0 0 f — tables to cook 's reports fol. 0 6 0   — the same in english 8º 0 5 0 f — epieiceia 8º 0 2 0 f — table to dyer 12º 0 2 0   — fasciculus florum 8º 0 1 0   argum. on the writ of hab. corpus 0 1 6   argument concerning the militia . 0 1 0   assize of bread 4º 0 0 6 l aston's placita lat. rediviv . 4º 0 6 0   andrew's argument at his trial 4º 0 2 0 f abr. book of assizes 8º 0 1 6   attorney of the common pleas 0 1 6   abridgment hen. 7. 8º 0 5 6   attorneys guide 8º 0 2 0   argum. of the prop. of the subject 4º 0 1 0   answer to pettyt and jani angl. facies nova 8º 0 6 0   arcana clericalia 8º 0 5 0   allen's reports fol. 0 4 0 l bracton folio 0 18 0 l — quarto 0 14 0 f brooks abridgment , large folio 1 10 0 f — small folio 1 15 0 f — quarto 2 0 0   — reading on limitation 8º 0 1 6   — reading on magna charta 4º 0 0 6 f — cases 8º 0 1 6   — the same in english 8º 0 1 6   blount's law dictionary fol. 0 8 0   bolton's office of a justice fol. 1 0 0 l brevia judicialia fol. 0 12 0 f bendlowe's reports fol. 0 8 0   bulstrode's reports , 3 parts fol. 2 10 0   bridgman's reports fol. 0 6 0 l brown's entries in 2 parts fol. 1 0 0 l brown's modus intrandi 8º 0 7 0   brown of fines and rec. 8º 0 2 6 l brown's ent. cl. vade mecum 8º 0 6 0 l book of entries the old fol. 1 10 0   bacon's cases of treason 4º 0 0 6   — charge 4º 0 0 6   — ordinances in chancery 4º 0 0 6   — post nati 4º 0 1 0   — elements common law 4º 0 2 6   — reading on the stat. of vses 4º 0 1 0   boon's exam. legum angliae 4º 0 4 6   brownlow's declarations , 2 par . 4º 0 18 0   — judicial writs 4º 0 4 0   — reports , 2 parts 4º 0 8 0   bagshaw's argu. in parliament 4º 0 0 6   bagshaw's right of the crown 8º 0 2 6 l brevia selecta 8º 0 1 6 f bellew's richard ii. 8º 0 2 0 f britton 8º 0 5 0   book of oaths 8º 0 4 0   bridal's jus criminis 8º 0 1 6   sir bridgman's convey . fol. 0 10 0   book of rates 8º 0 1 6   blount's frag . antiq. 8º 0 2 0   babington's advice to jurors 8º 0 2 6   bankers case 8º 0 2 0   brief method of the law fol. 0 1 6   bridal's jus imaginis 8º 0 1 0   — spec. juris ang. 8º 0 1 0   — decus & tutamen 8º 0 1 6 l coke's entries fol. 3 5 0 * — comment on littleton fol. 0 18 0 * — magna charta fol. 0 15 0 * — pleas of the crown fol. 0 7 0 * — jurisdiction of courts fol. 0 9 0 f — reports ii parts fol. 3 0 0   — reports english 13 par . fol. 1 15 0   — 12 and 13 parts of reports fol. 0 8 0   — declarations fol. 0 7 0   — of bails and mainprizes 4º 0 1 0   — reading of fines 4º 0 1 0 * — copy-holder 8º 0 1 6   cotton's record fol. 0 16 0   — abstract of recor. 4º 0 0 6 * cowell's interpreter ; with manley's additions folio 0 8 0   customs of normandy fol. 1 0 0 * crook's reports , 3 parts fol. 2 10 0   collection of ord. and decl. from march 42. to decem. 46. fol. 1 10 0   cook 's vindication of the law 4º 0 1 0   calthrop's customs of london 4º 0 0 8   — copy-holder 4º 0 1 0 * reports 8º 0 1 6   collect. of remonstrances , votes from 1641 to 1643. 4º 0 16 . l clark's praxis in curiis eccles . 4º 0 6 0 l — practice of the admiralty 8º 0 1 0   callis reading on sewers 4º 0 6 0   — argument 4º 0 0 6   crook and hutton's argument 4º 0 2 0 * f crompton's jurisdict . of courts 4º 0 6 0 f crompton and fitzherb . justice 4º 0 6 0   commisson with instruct . for compounding for idiots and lun . 4º 0 0 6   court of request 4º 0 2 0 * complete clerk 4º 0 12 0   case of ship-money 4º 0 0 8   clarendon's orders in chancery 8º 0 1 0 * clark of assize 8º 0 2 6 l cowell's institutions 8º 0 2 0   — the same in engl. 8º 0 2 0   clark's vade mecum 8º 0 3 0 * clark's guide , 4 parts 8º 0 5 0 * clark's tutour , 8º 0 1 6   carey's reports 8º 0 2 0   clayton's reports 8º 0 1 0   cary's vse of pleadings 8º 0 1 0 * complete sol. entring clerk 8º 0 3 6 * complete attorney 8º 0 3 6   charter of rumney marsh 8º 0 4 0   collins justice 12º 0 1 ●   cary's guide in eccles . courts 12º 0 1 0   court marshals . with its proceed . 12º 0 ● 0 * complete justice 8º 0 3 6   clerks companion 24º 0 1 0   charter of london abridg. 4º 0 1 0   conset's prac. eccles . courts 8º 0 5 0   cory's prac. com. pleas 4º 0 0 6   customs of london 4º 0 0 6 l clerk's manual 8º 0 4 0   charter of the forest 4º 0 0 6   cook 's engl. law judge 4º 0 1 0   cawley's laws against papists fol. 0 10 0   city of london's plea fol. 0 1 0   catalogue of justices fol. 0 1 0   camera regni 8º 0 1 0 l clerks assistant 8º 0 4 0   clark's grammar 8º 0 1 0 * dalton's office of sheriffs fol. 0 14 0   — sheriff abr. 8º 0 3 0 * — justice fol. 0 12 0 f dyer's reports with a table fol. 0 18 0   — brograve , and risden's read 4º 0 2 6 f — abridgment 8º 0 2 0   — the same in english 8º 0 2 0 * dugdale's orig. juridiciales fol. 0 18 0 * f davis reports fol. 0 8 0   — of impositions . 8º 0 1 6   — ab. of cook 's reports 12º 0 2 0   denshall's reading of fines 4º 0 0 6   dodridge's principalit . of wales 4º 0 1 0   — english lawyer 4º 0 2 6   — compl. parson 4º 0 2 0   — of parliaments 8º 0 1 0   davenport's abr. of cook 's lit. 8º 0 3 0   doctour and student 8º 0 2 6   doctour and student abr. 8º 0 1 0   derham's manual 8º 0 1 0   danby's argument 4º 0 1 0   debates of the comm. at westm . 8º 0 2 6   — of the comm. at oxford fol. 0 0 6   d'ewe's journal . of q. e. fol. 1 0 0   degge's parsons counsellor 8º 0 3 6 f dsctrina placitandi 4º 0 7 0 * duke 's l. of cha . uses fol. 0 6 0   ephemeris parliamentaria fol. 0 7 0   elesmere's post nati 4º 0 1 0   — on a lord chancellour 8º 0 1 0   elsynge of parliaments 8º 0 2 0   edgar's charge 4º 0 0 6   exact clerk 8º 0 1 0   exact law-giver 8º 0 1 6   exact constable 12º 0 1 0   enchiridion legum 8º 0 1 0   english liberties 12º 0 1 0 f finch's law fol. 0 8 0   — in english 8º 0 3 0   — summary of the law 8º 0 1 0 f fitzherbert's abridgment fol. 1 15 0 f — quarto 3 0 0 * f — natura brevium 8º 0 5 0 * — nat. brev. eng. 8º 0 5 0 l fleta on the english law 4º 0 10 0   fulbeck's parallel and pandects 4º 0 8 0   — preparative 8º 0 1 6   fraunch's lawyers logick 4º 0 3 0   freeholders grand inquest 8º 0 3 0   fillacers office 8º 0 1 6   fleetwood's justice 8º 0 1 0   forster's lay-man's lawyer 8º 0 2 0   fidell's presidents 8º 0 2 6 * fortescu de laudihus l. 8º 0 3 0   fitzharris arraign . and plea fol. 0 1 6   fuller's argument 4º 0 0 6   fees of courts 8º 0 1 0   godboults reports 4º 0 10 0   gouldsbrough's reports 4º 0 3 6   glisson and gulst . ep. of the law 8º 0 4 6 f gregorie's moot-book 8º 0 8 0   — the same in eng. 4º 0 10 0 * greenwood of courts 8º 0 3 6   godolphin on the admiralty 8º 0 2 6   grand quest on the h. of peers 8º 0 8 0 l glanvil on the law 8º 0 2 0   grand quest conc . bishops rights 8º 0 1 6   godolphin's abr. eccl. law 4º 0 10 0   — orphans legacy 4º 0 6 0   grand-jury mans oath 4º 0 0 6   guide to eng. juries 8º 0 1 0   grotius of war and peace in english fol. 0 14 0   hutton's reports fol. 0 6 0   hetley's reports fol. 0 6 0 * hobart's reports fol. 0 10 0   hern's pleader fol. 1 2 0   — law of conveyances 8º 0 2 6   — modern assuraneer 8º 0 2 6   — reading on sewers 4º 0 0 6   hughes grand abr. 3 parts 4º 2 10 0   — abr. of acts and ordin . 4º 0 8 0   — original writs 4º 0 3 6   — abr. of crook's 3 reports 8º 0 10 0   — abr. acts 16 , 17 , ●8 car. i. and 12 , 13 , 14 , 15 car. ii. 8º 0 2 6   — abr. of moor's reports 8º 0 2 6 * — parsons law 8● 0 2 6   huntley and king●●ey's argum. 4º 0 1 0   hakewell's liber●y of the subj . 4º 0 1 6   — manner of pas● bills in p. 8º 0 1 0 * — of parliamen●s 8º 0 2 0 f horn's mirrour of justice 8º 0 2 0   — the same in english 8º 0 2 0   hawk's grounds 〈…〉 the law 8º 0 4 0   historical discourse 〈…〉 parliam . 8º 0 1 0   heydon's idea of 〈…〉 law 8º 0 1 6   hunt's argument 〈…〉 0 5 0   hales pleas of the 〈…〉 wn 8º 0 2 6   hollis his remains 〈…〉 0 4 0   honour of the lor● spiritual fol. 0 1 0   hesket's reading 〈…〉 0 1 0   holborn's readin 〈…〉 0 1 0   hatton of statutes 〈…〉 0 1 0   hughes's queries 〈…〉 0 1 0   hale of sheriffs ac 〈…〉 nts 8º 0 2 0   — provision for the 〈…〉 or 12º 0 0 6 f jenkin's reports fol. 0 16 0   — of courts 8● 0 1 0   — liberty of the subject 12º 0 1 0   — works 12º 0 1 0   justice restored 12º 0 1 0   ireland's abr. of cok 〈…〉 11 vol. 8º 0 2 6   justice revived 8º 0 1 6   institutions or grounds of law 8º 0 1 0   judgments in the vpp●r bench 8º 0 2 6   instructions for jury 〈…〉 en 8º 0 1 6   jurisdict . of the h. of ●ords and of impositions 8º 0 2 0   — of the h. of lord 〈…〉 appeal 8º 0 2 0   jani anglorum facie 〈…〉 va 8º 0 2 0   journals of the h. of 〈…〉 mmons 8º 0 8 0   jus ang. ab antiquo 8● 0 2 6 f jones's reports fol. 0 16 0   jura coronae 8º 0 1 6   jus sigilli 12º 0 1 0 * f kelleway's reports , with dallison fol. 0 16 0 * f kitchin of courts 8º 0 4 0 * — the same in english 8º 0 5 0 * kebles statutes fol. 2 10 0   keble's justice fol. 0 16 0   keble's abr. of the laws against recusants 8º 0 2 6 * kilburn's presidents 12º 0 2 6   king's prerog . asserted fol.   1 0   king's prerog . and subj . privil . 0 1 6 f latch's reports fol. 0 7 0   lane's reports fol. 0 6 0   ley's reports fol. 0 4 6   leonard's reports 4● parts fol. 2 0 0 l lambert of the laws of engl. fol. 0 18 0 * — duty of constabl●● 12º 0 1 0   — of courts 8º 0 1 6 * — perambulation of kent 8º 0 7 0 * — justice 8º 0 6 0 l linwood's constitutions fol. 0 16 0   layer's off. and duty of constab . 8º 0 1 0   ley of wards and liveries 8º 0 1 0   leigh's law terms 8º 0 1 6   legis fluvius 8º 0 1 0   littleton's tenures fr. and en. 12º 0 2 6 f — vicesimo quarto 0 2 6   — reports fol. 0 12 0 * lex londinensis 8º 0 2 6   lex mercatoria fol. 1 0 0   london's liberties fol. 0 1 0 f moore's reports fo● 1 4 0 * manwood's fore 〈…〉 laws 4º 0 8 0   moyle's entries 4º 0 3 0   method of passing bills in 〈…〉 arl . 4º 0 0 6   marches reports 4º 0 3 0   — actions for slander parts 8º 0 3 0   — amicus reipublicae 〈…〉 o 0 1 0 * mariton's guide for co●●tables 12º 0 1 0 * — landlords law 〈…〉 2º 0 1 6   — of wills and tes●●ments 12º 0 1 6   ma●ley's ab. coke's 1●13 rep. 8º 0 1 6   manby's abr. statute 8º 0 2 0   murray's scotch law ●ol . 2 0 0   modern reports fol. 0 10 0 f mayna●d's edw. the 〈…〉 d. fol. 0 4 0 l magna charta 8º 0 2 0   — in eng. by cok 〈…〉 8º 0 1 0   meriton'● parson 's m 〈…〉 itor 12º 0 2 0   molloy de jure mari 〈…〉 8º 0 5 0   noye's reports fol. 0 6 0   — maxims of the law 8º 0 1 0   — compleat lawyer 8º 0 1 0   nusances with judges resolut . 4º 0 0 6 l novae narrationes , with articul . 8º 0 4 0   new book of instruments 8º 0 3 6   oliver's ordinances fol. 0 6 0   owen's reports fol. 0 6 0   orders for the poor 4º 0 0 6 f old natura brevium 8º 0 2 0   orders of a court leet , & c. baron 8º 0 0 6   orders in chanc. by the com. of the g. seal 8º 0 1 0 l officina brevium fol. 0 12 0   officium clerici pacis 8º 0 3 6 * pulton's stat. at large fol. 1 10 0   — de pace fol. 0 10 0   — abr. of stat. fol. 0 12 0   — abr. of p. statutes 4º 0 3 6 f plowden's rep. 2 par . 3. tables fol. 1 5 0 f — queries 8º 0 2 6   — queries english 8º 0 2 6 f — abridged 8º 0 2 0   — the same in english 8º 0 2 0   popham's reports fol. 0 7 0   pryn's animad . on cook 's 4 inst . fo . 0 12 0   — parliamentary writts , 4 vol. 4º 1 0 0   practice and privileges of parl. 4º 0 0 6   perfect conveyancer 4º 0 5 0   parsons ans . to cook 's 5th rep. 4º 0 8 0   powell of courts 4º 0 3 0   — reportery of records 4º 0 2 0   — direct . to search records 4º 0 2 0 * — attorney academy 4º 0 3 6   — attorneys almanack 4º 0 1 0   practice of the exchequer 8º 0 1 0   practice of chancery 8º 0 1 6 f perkins 8º 0 2 6   — the same in english 8º 0 2 6   — vicesimo quarto 0 2 0   presidents or instruments 8º 0 1 6   page's jus fratrum 8º 0 1 6   philips studii legalis 12º 0 1 0   — principles of law 12º 0 1 0   praxis utriusque banci 8º 0 2 6   practick part of a justice 12º 0 2 0   power of parliaments 8º 0 2 6   pettus of parliaments 8º 0 3 6   pettyt's right of the commons 8º 0 2 6   — miscell . parliaments 8º 0 2 6 l placita gen. & specialia 8º 0 4 6 f palmer's reports fol. 0 15 0   philipps grandeur of the law 8º 0 2 0 f rolls abridg. of the law fol. 2 0 0 l ryley's rec. of the tower fol. 0 18 0 l register of writs fol. 1 8 0 l rastal's entries fol. 3 0 0   — stat. in 2 vol. fol. 2 0 0   — abr. of the stat. to 7 jac. fol. 0 12 0   rights of the kingdom 4º 0 4 0   rights of the people 8º 0 1 0   rules and ord . in the upper bench com. pl. & chanc. made 1654. 0 2 6   ridley's view of civil law 8º 0 3 6   rights of the bishops 8º 0 1 6 f rolls rep. in 2 parts fol. 1 4 0   royal charter in english 8º 0 2 6   replication to the city of londons plea fol. 0 0 6 l read's decl. and pleadings 8º 0 4 0   rules and orders in the com. pl. 8º 0 1 0 l robinson 's pleadings fol. 0 16 0 f statham's abr. fol. 1 15 0   shepherd's epitome fol. 1 10 0   — law of common assurances fol. 0 14 0   — practical counsellour fol. 0 12 0   — actions of the case for words 8º 0 2 6   — actions of the case for deeds 8º 0 5 0   — marrow of law , 2 parts 4º 0 12 0   — touch-stone 4º 0 7 0   — president of presidents 8º 0 3 6 * — duty of a constable 8º 0 1 6   — court keepers guide 8º 0 1 6   — guide for a justice 8º 0 3 6   — clerks cabinet 8º 0 1 0   — clerk of the market 8º 0 1 0   — of corporations 8º 0 1 0   — survey of justice 12º 0 1 4   — proposals 8º 0 1 6   — of county judicatures 8º 0 1 0   — grand abridgment 4º 2 0 0   — of tithes 12º 0 1 0   — view of the laws 12º 0 1 0 * l spelman's glossary fol. 2 5 0   stiles reports fol. 0 12 0 * — pract. register 8º 0 5 0   scobell's collection of acts fol. 0 16 0 l skenes scotch laws fol. 0 12 0   the same in scotch fol. 0 12 0   — de significat . verborum 4º 0 2 6 l selden's mare clausum fol. 0 12 0   — the same in english fol. 0 12 0   — history of tithes 4º 0 6 0   — of barronage 8º 0 1 0   sherman on estates tayle 4º 0 0 6   special law cases 4º 0 2 6   s. johns argument 4º 0 0 6   star-chamber cases 4º 0 0 8 * f stamford's pleas of the crown 4º 0 6 0   somner of gavel kind 4º 0 3 6   small 's declarations 4º 0 3 6 * swinbourn of wills 4º 0 7 0   sharrock on linwood 12º 0 6 0   stone 's reading of bankrupts 8º 0 1 6   statute of bankrupts , by t.b. 8º 0 1 6   statuta vetera & recentiora 8º 0 1 0   smith's ommonwealth of eng. 12 0 1 6   sheriffs practice in london 12º 0 1 0   series of the house of peers 8º 0 6 0   selden of the judic . of p. 8º 0 2 0 f savil's reports fol. 0 6 0   statutes of ireland fol. 1 10 0   security of english mens lives 8º 0 1 0 f siderfin's reports in 2 parts fol. 1 0 0   selden's tracts fol. 0 8 0   spelman of law terms 8º 0 1 0 l thesaurus brevium rep. fol. 0 0 0   tenures of ireland fol. 0 8 0 lf townesend's tables fol. 0 12 0 taylor of gavel kind 4º 0 3 0   thorp's charge 4º 0 0 6   tything table 4º 0 0 6 f trotman's abr. cook 's 11 rep. 8º 0 5 0   tothil's transactions in chanc. 8º 0 1 6 * trials per pais 8º 0 3 6 * terms of the law 8º 0 4 6   topicks of the law 8º 0 1 0 f theloal's digest . of writts 8º 0 8 0   tenants law 12º 0 1 0 l tompson's lib. placitandi fol. 0 14 0   townsend's collections fol. 0 10 0   trahern's readings 4º 0 1 0 f table to hen. the 7th . 12º 0 2 0   — to coke's 1 instit . fol. 0 3 0   — to his 2 instit . fol. 0 2 0   — to his 3 instit . fol. 0 1 0   — to his 4 instit . fol. 0 1 6   — to hobart's rep. fol. 0 2 6   — to davis reports fol. 0 1 0   townsend's 2d book of judg. 4º 0 4 6   treatise of nobility 8º 0 1 0   touchstone of precedents 8º 0 3 0   townsend's prep . to pleadings 8º 0 2 6   travellers guide 12º 0 1 0   trye's jus filizarii 8º 0 2 6 trials . the tryal of w. staley , e coleman , w. ireland , &c. r. green , &c. n. reading , r. langhorne ; g. wakeman , &c. a. bromwich , &c. t. gascoyne , j. tasbourough &c. w. stafford ; m. stapleton , &c. g. busby , r. essex , s. colledge e. cellier , h. care , j. giles ; e. fitzharris , &c. t. knox , &c. t. whitebread , &c. l. munson , &c. n. thomson , &c. lord cornwallis , 29 regicides ; count coningsmark , &c. e. of strafford , the ri●ters , w. russell , a. sidney , sir s. bernardiston , l. braddon , &c. j. hambden .   vernon 's consid . in excheq . 8º 0 1 0   vaughan 's reports fol. 0 14 0 l — prac. wallae 12º 0 1 6   vidian 's exact pleader fol. 0 9 0   wingate 's maxims fol. 0 14 0 * — ab. statutes 8º 0 6 6   — body of the law 8º 0 1 6   — statut. pacis 12. 0 2 0   waterhouse on fortescue fol. 0 14 0   winch 's reports fol. 0 7 0 * west 's presidents 2 parts 4º 0 14 0   womans lawyer 4º 0 4 0   wiseman 's law of laws 4º 0 4 6   white on the sacred law 8º 0 1 6   welwood 's abr. of sea laws 8º 0 4 0   wentworth 's executors office 8º 0 2 6 * wilkinson 's office of a sheriff 8º 0 3 0 l winche 's entries fol. 2 10 0   williams excellen . of the law 8º 0 2 0   whalley 's relig. estab . by law 4º 0 0 6   williams jus appellandi 8º 0 1 0 year books . edw. ii. published by sir john maynard knight . edw. iii. 4 volumes hen. iv. and v. 1 vol. edw. iv. 2 vol. hen. vi. 2 vol. hen. vii . &c. 1 vol. i have omitted the price of the ten volumes of year books , some of them being sold by way of subscription . f yelverton's reports fol. 0 8 0   young's vade mecum 12º 0 1 0   zouch on the admiralty 8º 0 2 0 collected by thomas basset bookseller at the geo●ge near st. dunstan's church in fleetstreet . 1684 by the king. a proclamation for recalling of commissions at sea england and wales. sovereign (1660-1685 : charles ii) this text is an enriched version of the tcp digital transcription a79327 of text r212429 in the english short title catalog (thomason 669.f.25[45]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a79327 wing c3410 thomason 669.f.25[45] estc r212429 99871053 99871053 163850 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a79327) transcribed from: (early english books online ; image set 163850) images scanned from microfilm: (thomason tracts ; 247:669f25[45]) by the king. a proclamation for recalling of commissions at sea england and wales. sovereign (1660-1685 : charles ii) charles ii, king of england, 1630-1685. 1 sheet ([1] p.) printed by john bill and christopher barker, printers to the kings most excellent majesty, london : 1660. dated at end: given at our court at whitehal, the fifteenth of june, in the twelfth year of his majesties reign, 1660. annotation on thomason copy: "june 16." reproduction of the original in the british library. eng law of the sea -england -early works to 1800. great britain -history, naval -17th century -early works to 1800. great britain -politics and government -1660-1688 -early works to 1800. a79327 r212429 (thomason 669.f.25[45]). civilwar no by the king. a proclamation for recalling of commissions at sea: england and wales. sovereign 1660 414 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2008-07 tcp assigned for keying and markup 2008-08 spi global keyed and coded from proquest page images 2008-09 mona logarbo sampled and proofread 2008-09 mona logarbo text and markup reviewed and edited 2009-02 pfs batch review (qc) and xml conversion c r diev et mon droit honi soit qvi mal y pense royal blazon or coat of arms by the king . a proclamation for recalling of commissions at sea . charles r. whereas sundry commissions have , heretofore , been issued out , and granted , as well by the king's majesty , as by his royal brother the duke of york , lord high admiral of england , to divers of his majesties subjects and others , by sea , with authority and command , in hostile manner , to proceed against and prosecute his enemies . his majesty , by the blessing of almighty god , being happily restored unto his throne , out of his tender care and respect to the welfare of his loving subjects , conceaving that the authority by the said commissions granted , may , possibly be extended ( contrary to his purpose ) to the dammage and hurt of his true and faithful people , and to the great obstruction of the trade and commerce of his kingdoms and dominions ; for prevention whereof , he is graciously pleased to revoke , annul , and make void , and doth hereby , revoke , annul , and make void , all and every the said commissions , and all powers and authorities in them , or any of them contained , by his majesty , or the duke of york , before the first of may last granted , to any of his subjects or others , for maritime or sea-affairs , in manner as aforesaid , hereby willing and commanding them , and every of them , to forbear the further prosecution , using , or execution of the same commissions , or any thing therein expressed , upon pain of such punishment , as by the laws may , therefore , be inflicted upon them as pirates ; and his majesty doth farther will , require , and command all and every his subjects , who now are in the service of any foreign prince or state , by sea , or in sea-affairs , forthwith , upon notice hereof , to repair to his majesties service , at home , in his dominions . given at our court at whitehal , the fifteenth of june , in the twelfth year of his majesties reign , 1660. london , printed by john bill and christopher barker , printers to the kings most excellent majesty , 1660. the liberties, usages, and customes of the city of london confirmed by especiall acts of parliament, with the time of their confirmation : also divers ample, and most beneficiall charters, granted by king henry the 6, king edward the 4, and king henrie the 7th, not confirmed by parliament as the other charters were, and where to find every particular grant and confirmation at large / collected by sir henry colthrop, knight, ... calthrop, henry, sir, 1586-1637. this text is an enriched version of the tcp digital transcription a69725 of text r14680 in the english short title catalog (wing c308). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 50 kb of xml-encoded text transcribed from 15 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a69725 wing c308 estc r14680 12005097 ocm 12005097 52293 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a69725) transcribed from: (early english books online ; image set 52293) images scanned from microfilm: (early english books, 1641-1700 ; 85:15 or 251:e141, no 24) the liberties, usages, and customes of the city of london confirmed by especiall acts of parliament, with the time of their confirmation : also divers ample, and most beneficiall charters, granted by king henry the 6, king edward the 4, and king henrie the 7th, not confirmed by parliament as the other charters were, and where to find every particular grant and confirmation at large / collected by sir henry colthrop, knight, ... calthrop, henry, sir, 1586-1637. carpenter, john, 1370?-1441? [2], 25 p. printed by b. alsop for nicholas vavasour, and are to be sold at his shop ..., london : 1642. an epitome, arranged alphabetically under subject headings, of the liber albus, a collection of laws and customs relating to london, compiled by john carpenter in 1419. reproduction of original in huntington library and thomason collection, british library. eng customary law -england -london -early works to 1800. law reports, digests, etc. -england -london. london (england) -charters, grants, privileges. a69725 r14680 (wing c308). civilwar no the liberties usages, and customes of the city of london; confirmed by especiall acts of parliament, with the time of their confirmation. al calthrop, henry, sir 1642 8232 6 0 0 0 0 0 7 b the rate of 7 defects per 10,000 words puts this text in the b category of texts with fewer than 10 defects per 10,000 words. 2006-06 tcp assigned for keying and markup 2006-06 aptara keyed and coded from proquest page images 2007-06 ali jakobson sampled and proofread 2007-06 ali jakobson text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion blazon or coat of arms the liberties usages , and customes of the city of london ; confirmed by especiall acts of parliament , with the time of their confirmation . also , divers ample , and most beneficiall charters , granted by king henry the 6. king edward the 4. and king henrie the 7th . not confirmed by parliament as the other charters were , and where to find every particular grant and confirmation at large . collected by sir henry colthrop , knight , sometime recorder of london , for his private use . and now published for the good and benefit of this honourable city . london : printed by b. alsop for nicholas vavasour , and are to be sold at his shop in the inner-temple , mdcxlii . the liberties , usages , and customes , of the city of london . all the liberties , usages , and custome hereafter following , are confined by an especiall act of parliament at westminster , anno septimo regni regis r. 2. albo libro , 43. a. abrokers . that the abrokers of any merchandize in this city , shall not be , except the same be chosen by marchants of the mistery ; in which the same ab-brokers , shal have there exercise of their office , and the same abrokers also to be sworn before the lord major of the city of london , libro albo , 38. a. 12. h. 3. abrokecators , or brokers . abrokecators or brokers . brokers are to be chosen by merchants of their own misteries , and they shall take their oath before the major of london , lib , albo fol , 570. b. 3. e. 3. per charter & parliament . acquittances of murder . the citizens are acquitted as well for any murder committed within the city , as within the portsoken . viz they shall not be amerced as they have bin in old time if the murderer did escape , fol. 35. albo lib. 11. h. 3. so that the statutes of english shere , anno 14. e. 3. cap 4. acquittances . that the citizens of london shall be for ever acquitted of pavage , portage , and murrage , through all the kings dominions , lib. alb. fol. 36. b , c. anno 12. h. 3. aldermen and their election . upon the feast day of s. gregorie , yearly shall every alderman be removed from their place , and new in their place shall be chosen , lib , alb . fol. 42. a. b. 50 , e. 3. note that this is changed since by act of parliament . aldermens goods . that aldermens goods shall be taxed in aids , tallages , or other contributions amongst other mens goods , lib. alb. f. 36 , b. allowance of liberties . it shall suffice that one writ in one kings time shall serve in the kings exchequer , and in all other places for the allowance of the liberties , lib. alb. f , 4. b , 1. e , 1. learn for what cause at every change the city is put to so great charges , as to procure a new confirmation . i think it be only for the profit of chancery men . amerciaments . the sheriffe shall not be amerced for any offence above 20. l. lib. alb. f. 34. anno 11. h. 3. that the sheriffes of london shall not be charged or amerced for escape of any fellon , but as other sheriffes have used on this side trent , lib , alb . f. 39. b. 1. e. 1. none shall be otherwise amerced , but according to law used in the time of h. 1. lib. alb. f. 35. 11. h. 3. aids and contributions . that the citizens of london in all aids , grants , and contributions to the kings use , shall be taxed and contribute with the commonalty of england , as men of the counties , and not as men of cities and burrowes , and that they shall be free from all other tallages , and thereof cleerly acquitted , lib , al. f. 40. 1. e. 1. bakers and millers . there is a statute in french granted by the king for the punishment of bakers and millers , and tryed by weight , whether the millers do deceive the owners of the corn , and that ob . to be yeelded for every quarter of corn that is ground , lib. al. f. 42 , b , c , 1. e. 1. battaile . a citizen shall not be enforced to wage battaile , nor shall in the pleas of crown be tryed by any other order , but only according to the ancient custome of the city lib. al fol. 35 , anno 11 , h. 3. bean-pleader . none shall be amerced for mispleading , the which the book calleth misk●nning , li . al. f. 35 , 11 , h. 3. bridgemasters . the bridgmasters shall be chosen by the commons , ther must be but two , and they must be approved sufficient men of the city , being no aldermen , lib , al. fol. 38. 12 , hen. 3. buttlerage . and of the wines of the citizens , no prizes or takings shall bee had or made by any of the kings ministers of their heirs , or of any other against their will , that is to wit , of one run before the mast , and of any other tun behind the mast , nor in any other manner , but they shall be therof acquitted for ever , br . alb. fol. 40. lib. 1. e. 3. ceritorary or writ of priviledge . note , that the king chargeth his treasurer , and the barons of the exchequer , and other his ministers of the same court , that from hence forth the kings writ shall not be granted to remove the body of any imprisoned in the goal of newgate , or else-where within the liberties , of the city of london , for debts or damages in any action adjudged to any citizen to answer to the king , or other in the said court of exchequer ; for the kings debt , or for the debt of any of the ministers of the said exchequer , except the said barons do first find the said action to be feigned or untrue , lib. alb. fol. 44. anno 1. r. 2. chamberlain , town-clerk , and common sergeant . that these three offices are eligible and removable by the commons , and at the will of the commons , lib. albo fol. 38. b. 12. hen. 3. colouring of strangers goods . that citizen which coloureth strangers goods , shall lose his freedome , lib alb . fol. 37. b. c. 12. hen. 3. confirmation . all the aforesaid liberties are confirmed by act of parliament , and by charter , lib. alb. fol. 36. anno. 5. e. 3. corporation of london . in the 11. year of king hen. 3. he granted unto the citizens of london , the counties of london and middlesex in fee farm . note , that the grant was made unto the citizens only , and not to the major and citizens and commonalty of london , as the usage is at this day , but this maketh no doubt , because the charter is confirmed by parliament the 21. of november in the 5. year of the king , n. 2. lib. alb. 34. a. b. & fol. 45. a. custome paid . if any sell his ware before the custome paid , it shal be forfeited lib. alb. fol. 36. b. 50. hen. 3. customes expounded , and new laws made . that it shall be lawfull for the major , and aldermen with the assent of the commons to expound obscure customes , and when need requireth to make new laws , the which shall be consonant to reason , lib. alb. fol. 39. 15. e. 2. debts . all manner of debts lent in london shall be sued for in london , lib. alb. fol. 35. b. 11. hen. 3. elections . that the major of london , and the sheriffes shall be chosen and elected in such sort , as they were appointed by the ancient charter , and in no otherwise . escheator . that no escheator or other minister of the king , shall exercise their offices within the city , but that the major for the time being , shall be escheator and he shal yeeld unto the king his oath , that he shall duly exercise and make a true accompt for the same office , lib. alb. fol. 4. a. 1. e. 1. expostion . if any difficulty or ambiguity do arise upon any article , within any of the kings charters granted unto this city , so that the same article may be taken to divers meanings : the king granteth that he by the advisement of his counsell , may make therof such interpretation as shall be best with equity and reason , lib. alb. 44. ab . 10. r. 2. fellons goods . that the citizens shall have infangtheff , and outfangtheff , and the goods of all fellons that shall be adjudged before them within their liberties there , lib. alb. fol. 39. b. 1. e , 2. fee farme . where the counties of london and middlesex were let to farm for 300. l. and yet notwithstanding the office of the exchequer by incrochment , compelled them to pay 400. l. now it is granted by parliament , that the city shall pay no more but 300. l. according to their former charters , lib. albo fol. 39. b. 1. e. 1. fee farm apportioned . if the king do grant to any other , any thing that belongeth to the fee farm , then shall the fee farm for so much yearly be apportioned and abated at the exchequer , fol , 34. lib. albo 11. hen. 3. fee farm of london and middlesex . the fee farm of london and middlesex , that is to say , for 300. l. by the year , is granted to the citizens of london , by 11. hen. 3. and confirmed by parliament in the 7. r. 2. lib. albo fol. 34. a. b. and fol. 45. a lib. 4. farm bought , and farm sold . the statute of anno 9. e , 3. cap. 1. rastall tile merchants , no . 2. is for asmuch as concerneth london expounded and repealed and the liberties of magna charta , as touching london are revived , and the intent of the law-makers expounded was not to touch london , nor yet infringe the liberties of the great charter , lib. alb. 41. a. b. the aforesaid statute anno 9. e. 3. hath bin very often objected against the city of london in parliaments , by such as are ignorant of our charters and statutes , vide alib , lib : alb. flo . 43. a. b. a notable grant by parliament for the same matter . foren bought , and foren sold . no stranger shall foren buy , and foren sell within this city any statute , to the contrary notwithstanding , lib. alb. fol. 57. b. and per parliament . foren bought , and foren sold . both by charter and parliament it is granted , that from henceforth no merchant being a stranger to the liberties of this city , shall buy or sell any merchandize within the liberties of this city , to any like stranger merchant , upon the pain of forfeitures of such merchandizes so bought or sold , lib. alb. f. 43. a , b. 1. r. 2. forest of middlesex dissaforested . king henry 3. anno 11. regni sui , did by his charter dissaforest the warren of stanes , and the forrest of middlesex , the which was a singular benefit both to the country , and also for the city . note also in the same place , a man may gather some notable points touching the forest law , lib. alb. fol. 35. b , c. forfeiture or seisure of the liberties of the city . that the liberty of the city shall not be seized in the kings hands , for any personall trespasse , or judgment personall of any minister of the city , or for any such cause , any warden called custos shall be by the king deputed to rule the city ; but every minister shall answer for his own fault , and shall according to the quantity and quality of the same fault , receive condigne punishment , lib. albo fol. 40. b 1. e. 3. form of iustice . that the citisens of london in the eyres before the justices of the tower shall be measured , guided , and go●erned by the laws and customes ; by the which , they were guided in the eires , holden there in the times of king iohn and king henry the 3. lib. alb. f. 40. b. 1. e. 3. fore-stallers . fore-stallers and fore-stalments made by the merchants , for or concerning merchandize or victuals , either by land , or by water , shall be punished by forfeiture , or imprisonment , lib. albo 36. b 50. h. 3. free-men and making free-men . no stranger born shall be made free of this city but in the court of hustings , lib. albo fol. 37. b 12. h. 3. how free denizens and englishmen that never were apprenties shall be made free , and how every one ought to put in for himself sufficient sureties , to be true to the conservation of the city , but this order is not used at this day ; therfore i omit to speak any more of it in this place , and yet is this form of making free-men by redemption , appointed by parliament , lib. al. fol. 37 , b , 12 henry 3. hunting . the citizens of london may have their sugations , viz. their hunting in all such places , as they had the same in the time of king henrie 1. lib. alb. fol. 35 , b , 11. henrie 3. hustings . that aswell forreiners as others , being either plaintiffs or defendants , may make their attorneys in the hustings in london , lib. al , f , 36 , b. 60 , henrie 3. the hustings shall be holden but once in a week , lib. al , 35 , 11. henrie 3. inquisitions . all inquisitions to be taken before the kings ministers by men of this city , shall bee taken at s. martins le-grand , and not else-where , except the inquisitions of the eires of the tower and goal-delivery of new-gate , lib. al 41 , a. 1. e. 3. all inquisitions of the customable payments , customes , impositions , and purprestutes , within the city shall be inquired of the citisens , and not by others ; see the words of record more at large , lib. al. 45 , b , c. 7. r. 2. see the statute of 28. e. 3. cap. 10. iurisdiction of pleas . no citizen shall be impleaded out of the walles of the city of london ; but for pleas of the land , being without the city , alwayes excepted the moniers , and the kings ministers , lib , al. f. 35. a , 11. h. 3. inquisitions of the goal of new-gate . that the major of london for the time being shall in every commission for the goale delivery of new-gate be named one of the justices , lib. al. f. 39 , b. 1. e , 1. iustices in london . the king is restrained by his charter , confirmed by parliament , to assign any justices in london ▪ except the justices of eire at the tower of london , and justices of goal delivery of new-gate , and for errors at s. martins to be corrected : except any things do chance within the same city , that do touch the king or his heirs , lib. al 37 , a. 12. henry 3. kiddles , viz. wares . it is granted that all the wears of the thames , and medway shall be put down . and he that setteth up any hereafter , shall forfeit x. l. libro al folio 35 , a. that the citizens shall remove and take away all keddels stops and wears in the waters of thames , and medway : and that they shall have all such punishments in that behalf to the king , li . al. fol. 39 , b. 1. e. 1. liberties and free customes . free liberties and free customes used in the time of king henry 1. are by charter , and after by parliament ratified and granted to the city , lib. al. folio 35 b , c. 11. hen. the third , and 37. henry 3. liberties and pranchises . the king granteth , and doth allow that the citisens of london , their heirs and successors , shall have their liberties , and free customes , and may use and enjoy the same , as they have done in ancient time . and also that they may record the same before the kings justices , and ministers , as they have bin wont to do any statutes or judgments to the contrary notwithstanding , lib. al. 40 , a. b , 1. e. 1. liberties confirmed . all manner of liberties granted by king henry 3. are confirmed by e. 1. anno 12. lib. albo fol. 31. a. liberties confirmed . first , wheras in the great charter of the liberties of england , amongst other things it was ordained , that the city of london should have all their ancient liberties and customes , and that the same citizens at the time of the making of the same charter , and in the time of saint edmond the king and confessor , and william the conqueror , and of other the progenirors of king e. 3. had and used divers liberties and customes , as well by charters as without charters of ancient custome . of which liberties in divers eyres , and in other courts of the kings of the realm , the same citizens have bin impeached and sundry of them fore-judged , king e. 1. by charter , confirmat anno regni sui primo , hath granted that the citisens shall have their liberties according to the form of the great charter , and that all impediments and usurpations to them , in that behalf made , shall be revoked and disanulled , lib. albo fol. 39 , a , b. aano primo e. 1. major to be presented . the lord major being chosen must be presented unto the court of exchequer , and after to the king himself , lib. albo f. 36. a , 37 henry 3. major . that the major of london during his majoralty shall have no more offices belonging to the city , but only the office of the majoralty , nor hold any plea vicouncell within the chamber of the city , nor any other , but such as by the ancient custome of the city he as major ought to hold plea of , fleetwood recorder doth expound these words , vicounty pleas , to be such pleas as the sheriffes by the common lawes of this realm , may hold pleas of in his hundred , the which be actions of debt under 40. l. and of such like causes , lib. alb. fol. 37. b , 12. h. 3. marishall . the marshall shall not within the city , nor the portsoken by force , nor otherwise , take up any mans house , lib. alb. f. 35 , a. 11 , henry 3. markets . no market from henceforth shall be granted by the king , to be kept within 7. miles of this city , lib. alb. f. 41 , a. 1. e. 3. marshalsee and clerk of the houshold . the steward of the marshalsee , and the clerk of the market of the kings house , shall nor sit nor execute their office within the liberties of this city , nor shall draw into plea any citizen out of the city , for any cause arising , or growing within the liberties of the same city , lib. albo folio 40 , a. 1. e. 1. marchants strangers free hosts . it is commanded by charter , and parliament , that all merchants strangers comming into england , shall make sale of their merchandizes within 40 dayes after their arrivall ; and that they shall abide and be at the table of free hosts , of this city of london , and of all other cities and towns of england , without keeping houses of societies by themselves , lib. albo fol. 39 , b , c. 1. e. 1. mortmain . that the city and their heirs , and successors , may devise their lands as well in mortmain , as otherwise , as of ancient time they were accustomed , lib. albo folio 30 , b. 1. e. 1. non-user . although before this time , any of the ancient liberties have not bin put in ure ; yet from hence forth it shal● be lawfull to put them in execution , lib. albo fol. 39 , a. 15. e. 3. officers of the city . all lands or tenements without the freedom of the city , wherof any citizen is , or shall be owner , now or hereafter , which are , or shall be ministers of the city , shal be obliged to the conversation or saving harmlesse , the same city against the king and his heirs , for matters concerning their offices in like manner , as their tenements within the same city were wont to be , lib , al , folio 40 , b , c. 1. e. 1. note by this article , that all the ministers of this city , ought to be freemen . oasts . no stranger shall be an oast , or keep oasterie for strangers , lib. al. fol. 57 , a , b per charter , 38. e. 3. and per parliament . oasts and free oasts . that all that keep common oastery in the city , or the suburds , although they be not free , yet shall they be at all manner of charges for the maintenance of the city , as ample , as any other that be free oasts , lib. al. folio 38 , a. b. 12. henry 3. oath . the major of london shall not be compelled to take any other oath at the exchequer , then hath bin used in the time of king edward the third , any law , statute , or ordinance notwithstanding , lib. al. folio 44. b , c. 7. r. 2. parliament . all the aforesaid articles , charters , grants , and ordinances , are to this place confirmed by act of parliament , in manner and form as they be before expressed , anno 7. r. 2. pleas in fairs and markets . because the citizens of london in all good and great fairs of england were wont to have wardens of themselves to hold pleas , concerning such citizens as shall have conference to the said fairs : it is granted by charter , that the same citizens shall have their wardens of their citizens , for the holding of such pleas as of ancient times they have had , excepting pleas of the land , and of the crown , lib. al. 40. 1. e. 1. precepts to the citizens . by parliament that is allowed to the citizens of london , not to be subject to the precepts or commandements of the constable of eng and , steward , marshall , admirall , clerk of the market , or of any other officer or minister of the king , but only to the kings commandements or precepts , which shall be made in the kings name still , and under the kings seals , and liberty , is allowed by act of parliament , soit use come ad estre devant tempes , lib. albo f. 43 , b. 1. r. 2. presenting of the sheriffes . such sheriffes as the citizens shall make choise of , shall be presented to the king justices . and the said sheriffe shall answer to the king , or to his justices , or his exchequer , of such things as to his sheriffedome do appertain , lib. al. fol. 34. a , b. 11 henry 3. processe and serving of processe . that no sommons , attachment , or execution , by any of the kings ministers , by writ or without writ , within the libertie of the city aforesaid , shall be made but by the only ministers of the city , lib. albo . 40 , b. 1. e. 1. protections . the king granteth that all the protections of him and his heires , given to and for the service of the king , either to go forth , or to abide in any places of the kings service from henceforth , shall take no place in any plea of debt for any victuals taken or bought for the voyage or service ; wherof any mention is made in any such protection , nor any such protection shall be allowed for any pleas of trespasses , or contracts , made or done after the date of such protection , in such case as the plaintiffe is , or shall be a freeman of this city , lib. albo f. 44. anno primo r. 2. purveyors . that no purveyor-taker , officers , or other ministers , shall make , or take any prise or takings in the city of london , or without , of the goods of any citizen of the same city , against their wills ; except immediatly their indelayed payment be made , or else that respect of payment be therfore taken with the good will of the party , lib allbo 40 b. 1. e. 3. purveyors or officers of the king . it is prohibited that no officer or purveyor of the king shall merchandize by himself , or by other within the said city or without , of any thing touching , or concerning his office , lib. albo fol. 40 , b. 1. e. 3. remember how the purveyours of poultry do keep shops in london , and nothing is said against them . restitution . there is a free restitution granted , aswell by chartèr as by parliament unto the citizens of london , of all and singular their liberties and franchises , as ever any of their predecessors enjoyed the same , any non-user , or abuser , or statute-judgment , or charter to the contrary notwithstanding . and that the same citizens may enjoy the same without impeachment of the king his justices or ministers whatsoever , lib. albo 40. 7. r. 2. right . that equall might be done both for lands , and leases , that be within the city , viz. infraurbem , according to the ancient custome of the city , lib. albo 35 , 1 henry 3. right owner . every rightfull owner of lands , leases , gages , pledges , and debts , shall enjoy the same lawfully , lib. albo 35 , a. 11. h. 3. sanctuaries . that the citisens shall not be otherwise charged , then they have bin accustomed , touching the scapes of such as have taken sanctuary in the church , or church-yards , lib. alb. f. 39. b. st. pauls . there is 8. l. parcell of the fee-farme abated to the city , for the liberty of st. pauls in london , lib. albo f. 36. a 37 , h. 3. scot and lot . that freemen within the city , as such as dwell without the city , and occupie merchandize within the city , shall be subject to scot and lot with the commons of the same city , for and touching , &c , lib. alb. fol. 38 , a. 11. henrie the third . seals of the king . there doth appear 11. hen. 3. that in a charter made for the putting down of kiddles or ware s. that the king did set his hand to the charter , and also his seal , the which i did never hear nor reade of in any book before this time , the words are these . quod ut firmum & stabile perseveret imperpuum putis pagine inscriptio . commun. . &c. lib. albo fol. 35 , a 11. h. 3. seal of the city . the common seal of this city shall remain in the custody of two aldermen , and two commoners , and the same seal shal not be denyed neither to the poor nor to the rich commoner , when need shall require ; provided , that such request shall be upon reasonable causes , and that nothing shall be taken for the setting of the same seal thereto , lib. alb. f. 38 , a. 12. h. 3. sergeants at the chamber . that no sergeant of the chamber of guild-hall , shall have any fee of the commonalty of the city , nor shall make any execution but only by the commons of the city for that purpose to be chosen , lib. alb. fol. b. 12. h. 7. sergeants at the mase . for the augmentation of the name and honour of t●● city , it is granted that our sergeants shall and may bear , and carry maces of gold , of silver , or guilded of silver , with the kings arms upon the same , within the city and middlesex , and all other places belonging to the same city ; and also when they be sent to the king his mother or children , lib. alb. fol. 42. a. 28. e. 3. sheriffes . the sheriffes of london shall not be distreined to make an oath at the exchequer , but only upon the yeelding up their accompt , lib. alb. fol. 40 , a. 1. e. 1. that none of the sheriffes shall have but 7. clerks , and two sergeants , by reason of his office . sheriffes and their elections . it is granted to the citizens of london to make elections of their sheriffes , and after to remove them at their pleasures , anno 11. hen. 3. lib. al. fol. 34. a. b. sherffe . that the sheriffe of london shall be amerced in the kings court , according to the quantity of their offence , like as all other sheriffs of england have bin , lib. alb. fol. 31. a , lib. 1. 12. edw. 3. sheriffe . that the sheriffe for the time being shall commit the collection of tolls and customes belonging to the fee farm , and all publique offices to them belonging , and by them to be exercised unto sufficient persons , for whom they will answer , and that such officers as they shall appoint shall be removed upon their misbehavior , lib. alb. fol. 30. anno 12. hen. 3. sheriffes . that the sheriffes of this city for the time being shall have towards the farm of the same city , the full forfeiture of victuals , and other things . and also of merchandizes after the tenor of the charters to the citizens granted and made . and that from henceforth the sheriffes shall not be hindred or molested for the same against the tenor of the same charters , lib. alb. fol. 40. b. 1. e. 1. southwarke . the town of southwarck is granted for a fee farme unto the city , to the intent , to conserve the peace of the same town , and to suppresse fellons in that place . and this is by act of parliament and charter , lib. alb. 41. a. 1. e. 3. subsidies , tallages , or aids . that those that be assessed according to the custome of the city by men of their wards appointed to bee sessors by the major and aldermen , or by others to pay any tallage or aid to the king , shall not be set higher , but by the major and commons , lib. alb. fol. 37. b. 12. hen. 3. successors in london . the habend of the fee farm of london and middlesex , is to the citisens and their heirs . and yet it is taken , that these words heirs , do signifie their successours , lib. alb. fol. 34 , a , b : 11. hen. 3. sureties for the sheriffes . the whole citizens of london must answer to the king , and satisfie both the fee fatm , and also all the amerciaments , if the sheriffs do make default , lib. al. f. 34. a , b. 11. henry 3. suites against citizens . none of the liberty of this city shall be impleaded or occasioned at the king exchequer , nor else-where by bill , xcept it be for matter , which belongs to the king or his heirs . fol. 41. anno 1. e. 3. at this day all our citisens do implead one another out of the city , the which is directly against our liberties , being coufirmed by parliament . taxes and tallages . that taxes and tallages for the necessity of the city by common consent or common-counsell , may be assessed and levied aswell upon rents , as other things , and aswell upon misteries , as by any other means , lib. alb. folio 38. b. 12. h. 3. toll . the citizens of london are discharged of toll and lastage , and of all other customes as well by land , as by seas , within the kings dominions , lib. alb. fol. 35. a , 37. hen. 3. tower of london . that the costable of the tower for the time being shall not either by land or water take or make any prisages of any victuals , or other things whatsoever , of the people of the same city ; nor of any others comming or going towards or from the said city , nor by any manner of means , shall arrest or cause to be arrested any ships , vessels , or boats bringing to the said city any victuals or any other such goods , lib. alb. fol. 40. a. 1. e. 1. the constable of the tower of london shall not take any thing for the suffering of wares in the thames or medway , lib , albo fol. 35. 11. h. 3. the constable of the tower of london , in the default of the barons of the exchequer , being absent from westminster , and also of the king at such time as the major ought to be polluted , must take the oaths of the major and of the sheriffes without the tower gates , lib. albo fol. 36 , b. anno 12. h. 3. warres . that the citizens from henceforth shall not be compelled to go or send to the warres out of the city , lib. alb. f. 40 , a. 1. e. 1. weights and measures . that the weights and ballances amongst merchants , by the which any profit doth grow , and the correction of the same doth belong to the commonalty of this city . and that they shall be in the custody of approved and sufficient men , expert in the same office , being chosen by the commons . witherman . if any toll or other custome be taken from any citizen of the kings dominions the sheriffs of london shall at london take pledge or witherman , lib. alb. f. 35 , b. 11. henry the third . wines sold by retaile . that no merchant that is not free of this city shall sell any wines by retail within the same city , lib. alb. fol. 38. a , 12. henry the third . wines and victuals . by charter and by parliament , is granted that the lord major and aldermen for the time being , shall have the rule and government of the vintners , viz. of all manner of wines which shall be sold within the same city , and of all manner or victuals , as well sellers of fish , as of all other , dwelling within the same city , and to the same bringing any victuals there to be sold , lib. alb fol. 44 , b. 7. r. 2. note , how that the vintners of this city did exhibit a bill to the counsell at greenwich , termino pasche . an. 18 , eliz. regni , affirming , that they were not under the government of the major and aldermen ; the which i learn to be drawn by one land , an attorney of the guild-hall . hereafter do ensue divers ample and most beneficiall charters , granted by king hen. 6. e. 4. and king hen. 7. but these charters are not confirmed by parliament , as the other charters were . note , that the charter of hen. 6 and e. 4. are all one , with little alteration . beer-brewers . the correction of the beer-brewers , and of the measurages likewise is granted to the city , lib. albo f. 50 b , e. 23. hen 6. note , at this time there was beer-brewers in england . certioraries for recognisances . it is granted , that when a certiorary is sent for any indictment of fellony , trespasse , extortion or any other offence , or for any recognisance for the peace broken , that we shall not send the record it self , but only the tenors of the same , and that shall suffice , lib. albo , 49. b. 23. henry 6. commission of the peace , the commission of the peace is at large set down , with all the articles that are to be inquired , lib. albo . 47. 23. h. 6. confirmation . king henry 7 , anno 20. did grant unto the city of lond●● most large and ample ratification of all and singular their liberties , franchises , and customes , and all such like things expressed in any of their charters whatsoever they were , lib. albo 58. a. confirmation . king h 5. by act of parliament , and a special charter , dated the 7 , ber. anno 7. hath also confirmed the liberties aforesaid , lib albo folio 47 , a. confirmation all and singular . all and singular the aforesaid liberties are most amply confirmed by a great charter , made by king h , 4. in the first year of his reign ; but they are not by him confirmed by parliament , but by charter . and this is the charter that the commons of this city do use to call the great charter of london , lib. alb. fol. 46 , a , b. 1. primo h. 4. elections of officers . that the cirisens shall have the choice of all under-sheriffes , clerks , bayliffes of sheriffes , for whom they will answer for aswell in the county of middlesex , as within the city of london : in which grant , there is a saving or proviso for the sheriffes of london , for the right , &c. lib. alb. 49 , b , c , 23. h. 6. exemption for the aldermen . it is granted , that the aldermen of this city shall not be put in assizes , juries , attaints , recognitions , or inquisitions , although the king himself be party ; nor they shall be without the liberties of the city , collectors , or assessors of tenths and fifteens , lib. alb. f. 54 , a , b. fines and amerciaments . all fines , amerciaments , issues forfeited , redemptions , forfeitures , penalties of all offences inquirable by the commissions of the peace , are granted to the citizens of london lib. alb. f. 49 , a , 23. h. 6. and in the same place the premises are also granted , if they bee forfeited before the justices in the pleas of the crown , or before any other justices , or minister whatsoever , ibid. foren bought , and foren sold . that the forfeiture of foren bought , and foren sold , shall belong to the major and commons of this city , without any accompt to be therfore yeelded , lib. alb. fol. 59 , b , c. this article is most largely and beneficially set forth in the book . gates and posterns . all the gates and posterns of this city , and the custody of the same are granted unto the city , lib. alb. f. 46. fol. 8. 1. h. 4. ganger . the office of the ganger-ship is granted to the city of london , with all the fees , profits , and enrolements to the same belonging , lib. alb. f. 60. b. 20. h. 7. iustices of peace . that the major for the time being may nominate to the chancellor of england , the names of two aldermen , the one to be a justice of peace in surrey , and the other in middlesex , lib , al. fol. 60 , b. 20. h. 7. iustices of the peace . that the major and the recorder , and all the aldermen that have bin majors shall be justices of peace in london , and that the major and the recorder shall bee two of the quorum , lib. al. 47 , b , c. henry 6. mortmain . the king granteth license to the commonalty to purchase lands and tenements , to the value of 200. marks by the year , the statute of martmain , or any other thing to the contrary notwithstanding , lib. albo fol. 56 , a , b , c. 18. e. 4. non-user and abuser . non-user and abuser of the liberties are by the king pardoned , lib. alb. 50. anno 25. h. 6. notunda . all the aforesaid matters expressed in the aforesaid charter , 23. h 6. lib. alb. 47 , 48 , 49 , 50 , 51 , and 52 , are by like charter granted again by 2. e. 4. lib. albo fol. 52 , 53 , 54 , 55. packer . the offices and guift of the same , viz. of the packer and survey or , ships of all measures , weights , and of merchandizes , and of the garblers office , and wine-drawers , and the collection of all manner of victuals , and all such like offices do belong to the lord major and his disposing , lib. alb. folio 50 , a. b. 23. h. 6. recordator . that the recorder shall or may ore-tenus , that is to say , by open speech , record and certifie the customs , being traversed . and his certificate shall be as strong in the law as the verdict of 22 men , lib. albo fol. 49 , a. 23. h. 6. recognizances . the forfeiture of recognizances for the breach of peace or good abearing , is also granted to the city , lib. alb. f. 49. 23. h. 6. seisure of the liberties . i find that king r. 2. anno 16. regni sui , did by verture of a statute , 28. e. 3. cap. 10 , the which statute in king r. days , was by a bye-word , flagellum comit london , that is , the whip and scourge of the city of london , the statute shall be hereafter set down at large . i say by this statute the king very easily found a quarrell against the city , and did by commission ceize the liberties of the said city . the fault was for that the major and aldermen of the city did not correct nor punish , and this was all . but after in anno 16. and 20. the same king restored the liberties again to the said city , lib , albo f. 45 , a , b , c. search . the generall search of survey government , correction and permission of all people , within this city aswel , denizens and strangers in their sellings cuttings , workings , measurings , weighings , and in all and singular their other doings , done not only by custome , but also by charter , belong to the major of london for the time being , lib. al fol. 58 , a , b , c , d. 20. h. 7. this matter especially is most excellently well set down in the said book . and king h. 7. hath granted for him his heirs and successors that neither the kings of this realm , nor any other person shall interrupt the major of london in the due execution and exercising of the premises : if this charter were well looked unto , then enquire of what force all and singular these charters are of , to whom the king hath granted to be searcher , not only over their own companies , but also over others . as the girdlers do attempt to search the habberdashers , and clothworkers , the black-smiths do attempt to search the iron-mongers , and such like others . southwarke . a large charter is granted for the liberties of southwark , and for correction of offences there , and a view of franck-pledge with arrests , and to bring the offendors to new-gate . and to have as ample liberties in southwark , as the king had , lib. albo fol. 41 , b , c , d , e , 23 h. 6. toll . the offices of the gathering of the toll , and of the custome in cheap , billings-gate , and smithfield , is granted to the city , lib. alb. 46 , b. 1. h. 4. treasure trove . treasure-trove , wait and fellons , goods , and for stallers of victuals , and regrators , both in london and upon the thames , are granted to the city , lib. alb. f. 49. a , 23. h. 6. tronage . tronage , that is to say , the weighing of lead , waxe , pepper , allom , madder , and of such like merchandize , are granted to the city , lib. albo f. 46 , b. waste-grounds . all the waste ground , or common grounds pur-prestures , and approvements , and the rents reserved of the same are granted to the city , aswell in the land , as in the thames , lib. alb. fol. 49 , 23. h. 6. wools , leaden-hall . the tronage or weighing of wools shall be at leaden hall , which was wont to be at westminster , lib. alb. fol. 55. 3. e. 4. finis . the free-born english mans plea for justice: or, a cry against post-fact laws. being a survey of the controversies touching the late purchased titles through the true perspective of justice. by william jackson, one who hath lived to see the famine of justice removed, and hopes to see it continue as plentifully amongst us; as food in samaria; after the flight of these assirians: 2 kings, 7. jackson, william, 1636 or 7-1680. this text is an enriched version of the tcp digital transcription a67913 of text r207910 in the english short title catalog (wing j93). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 43 kb of xml-encoded text transcribed from 11 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a67913 wing j93 estc r207910 99866929 99866929 119218 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a67913) transcribed from: (early english books online ; image set 119218) images scanned from microfilm: (thomason tracts ; 154:e1040[14]) the free-born english mans plea for justice: or, a cry against post-fact laws. being a survey of the controversies touching the late purchased titles through the true perspective of justice. by william jackson, one who hath lived to see the famine of justice removed, and hopes to see it continue as plentifully amongst us; as food in samaria; after the flight of these assirians: 2 kings, 7. jackson, william, 1636 or 7-1680. [4], 16 p. printed by edward cole, printer and book-seller, at the sign of the printing-press in cornhil, neer the royal exchange, london : 1660. annotation on thomason copy: "aug. 24.". reproduction of the original in the british library. eng justice -early works to 1800. law -england -sources -early works to 1800. a67913 r207910 (wing j93). civilwar no the free-born english mans plea for justice: or, a cry against post-fact laws. being a survey of the controversies touching the late purchas jackson, william 1660 8119 1 0 0 0 0 0 1 b the rate of 1 defects per 10,000 words puts this text in the b category of texts with fewer than 10 defects per 10,000 words. 2000-00 tcp assigned for keying and markup 2002-01 aptara keyed and coded from proquest page images 2002-03 tcp staff (michigan) sampled and proofread 2002-03 john latta text and markup reviewed and edited 2002-04 pfs batch review (qc) and xml conversion the free-born english mans plea for justice : or , a cry against post-fact laws . being a survey of the controversies touching late purchased titles through the true perspective of justice . by william iackson , one who hath lived to see the famine of justice removed , and hopes to see it continue as plentifully amongst us ; as food in samaria ; after the flight of these assirians : 2 kings , 7. themistocles postulanti a se simonidi ut sententiā quādam injustam ferret ; neque tu ( inquit ) poeta bonus esses si praeter numerum caneres , neque ego princeps probus si contra leges judicarem : plut. in . vit. themist . leges sapientū causà positae , non ut injurijs abstineam sed ne eis afficiamur : epicur . ex stob. serm. 41. london : printed by edward cole , printer and book-seller , at the sign of the printing-press in cornhil , neer the royal exchange . 1660. to the right honorable and truly noble henry hastings , lord loughborough commissary general of england under his majesty . may it please your lordship . esteeming it the greatest honor i ever yet had , that i have served under your lord-ship , not only in the general cause that those true english spirits in colchester were embarqued in , but also under your lord-ships particular command in the store , subjected to your lord-ship as commissary general : i have presumed , ( emholdened by that nobleness , wherewith your lord-ship then obliged not only me , but all that knew you ) to present your lord-ship with this smal discourse . being a sum of what , your lord-ship , and those heroick spirits , then ( joyned in command with you ) labor'd for . the observation of laws and iustice is a cause no man need ever be ashamed of ; but what those heroick endeavors then missed of , god hath now given us hopes , may be obtained in a more peaceable manner ; having opened a way to us for reason to be heard ; and reduced us from the use of barbarous violence , to the force of arguments ; fitter weapons for human societies . t is with such my lord , that , i have endeavor'd here to be still an assertor of that general cause of englands liberty , to the utmost of my capacity . and t is my hopes , your lord-ship , that were then a strenuous defender of this cause by your valor in that bellum martiale , wil now grant your protection to him that by this submits himself your servant , whilest your lord-ship in parliament are now managing this bellum mercuriale : bellum i cannot but term it because stil there appears many opposers of iustice it self , which is our cause , having no argument ( but their fucated pretences to saints-ship ) to cover the great injustices they have done ; but my lord when like paint on faces these are melted off by the impartial scrutiny of iustice , there appeares nought but rapines , and meer wolves under the sheeps clothing : which disguise ; since it hath occasioned the devouring of so many lambs , i hope for the future our shephards will so defend us by the pale of iustice that we may hereafter be secure , and every man admitted to that which law calls his own . of the want of which pale your lord-ship hath been as sensible as any by the injuries you have suffered , both in estate and liberty . if the meanness of my performances cause your lord-ship to censure me presumtuous in perfixing your name to so smal a discourse , my petition is , that my zeal both to iustice and your lord-ships service may beg pardon for : my lord your most humble and devoted servant . william iackson . the free-born english mans plea for justice . there have bin of late many papers published under the names of pleas . as the purchasers plea ; the sequesterd clergies plea , and the plea of them that are in the benefices of these , and the plea of them whose lands the others have purchased , these latter written in answer to the former , but in my opinion ( at a time of so general a concernement when all are interressed , and all expecting a general satisfaction to the whole nation ) these pleas are too much restrained to particular interests , to terminate in a general union of all , which were the only blessing to be wished for by all which have the least pretence to christianity , or any spark of the hope of a comfortable satisfactory conscience , which i shall alwaies esteem the greatest temporal blessing men can wish for ; these pleas are likewise a very ill example for every man to seek his own interest , which perhaps may make men draw divers waies and therefore likelier increase divisions ( of which this nation hath had too much ) than compose them . that therefore a more charitable way may be found , it behoves every man to ponder such things in his minde , and ( if he acts at al ) to excite others to endeavour the promoting of such interests wherein al are equally concern'd ; and which have such rootings naturally in every mans conscience , that ( though he should with the bryers and cares of this world intend the stiffing of that good seed ) he can not ( at least wil not ) before men gainsay the motion : for t is seldom seen that a man is totally good , or absolutely wicked . because of some sparklings of that inward self accusing light which ( should he impudently out dare ) would render him odious even to his own accomplices seeing him lay aside all thoughts of shame . first , therefore ( mans life being a race through this world to another , his chief aim is how he may run that race most to his own peculiar benefit ; ( for we are all by nature lovers of our selves ) to which purpose mankind being now grown numerous if we were without order ; as wild beasts , we should be a pray one to another , so as to have many unquiet interruptions in our race and not only so but to be without those mutual conveniences which we might have one of another ; now to rectifie these inconveniences it hath pleased god to send into the world disciplines : to defend men in societies from the aforesaid abuses and direct them in their race with comfort ; these disciplines are two : eclesiastical , to direct them to the end of their race , and civil , or political : to direct them in their race ; and to fit men for these orders in their societies he gave that general tie of justice for a rule , and planted in us a sparkling beam of his truth to witness unto us this justice and be as our magnetick ballance , to fit us to act his will , the more conformably under his ordinances , this is that diamond of conscience that excuses or accuses every man and alwaies tels our souls the truth , if lusts be not the perspective medium through which we see , which often dazels our understanding : by which means we are often led into the more tempting way leaving that which our conscience tels us to be the more just . now for regulating such deviations , and depravations of our apprehensions it was requisite that provision should be made by discipline , leaving therefore the eclesiastical discipline and its unity ( as not any branch of this discourse ) to men whose profession it is ( that being the very top of the building to beautifie and confirme the foundation laid by the civil ) i think it might be much more pertinent to the condition of our nations at present if every man would make it his request that we might enjoy that firm hand of all societies , justice . being the true rule to regulate all actions in any society whatsoever and give up his cause to such a decree ; but in regard we are ( apt looking through the fraudulent medium of lusts before mentioned ) to be too partial in our own causes , t is not fit we be our own judges ; the party perhaps that thinks himself injur'd if he have not his will ; will be apt to say , neither ought our adversaries to be judges in their own cause against us , so say i ; who then ? justice say i : so i beleeve all men will be ready to say too , what ever they think , yet will not they say they desire any thing but justice , but cannot have that ; yes , but any english man may really say we can have justice , our fathers have so labor'd in their daies , that we receive from them both tree and fruit , for in political or civil discipline it is impossible to maintaine any at all , without order , whose business it is to fit every thing to its proper place to appoint some to judg in cases of difference between party and party which judgment though in the infancy of the world it were , wholly left to the discretion of the judg , yet finding men apt to be byassed by alliance , favor , brybery . &c. it was then found a very unsatisfactory way , the suffering party being apt alwaies to think himself wronged whether so or not ; to prevent which it was thought a much more indifferent course to have all cases reduced into judgments , which should be for laws , to decide all controversies , and prescribe all penalties , whatsoever . by which means men had a rule to walk by to direct them what was evil or good , what to persue or avoid , what to be encouraged or punished for : so that it was some satisfaction to them that they were securd from particular spleen or malice of others , and by this means were not damnified for any thing , of which , they were not forewarned by the law : no , nor the judg himself could give any censure that was not prescribed to him in the same law : of this nature were the laws of lycurgus , moses and most of the antients that were law-givers : but in regard , this power of law making in the vicissitude of times is somtimes devolved to men of less qualified parts and integrity , and that such did somtimes make laws , too , too , partial to themselves and too too grating upon the liberties and properties of others , al the laws , which were of equity ( and held proportion with that rule do unto all men as you would they should do unto you ) were by iustinian drawn in canons , and are stil used in a great part of europe , and called by the name of the civil law , but though here were a good provision for laws there was not so good a provision for giving right judgment as could be wished for ; because the interpretation of the law and interpretation of the fact were refer'd to the breast of one man which was thought might be prejudicial to the true distribution of justice ; wherefore our auncesters in this nation i think have taken the most satisfying course , most just , most free , and generous way of all other nations ; for first to preserve true discipline , we have the magistracy and nobility our law-giving power in as great and true a state of honor and justice and far more equitable then any of the former ; for our prince and peers have this priviledg only of constituting laws : and of appointing judges for the distribution of justice to the whole nation . next a far greater liberty and security to the commonalty because though they make not the laws yet they contrive and compose al the laws by which any of them are bound , so that it is as satisfactory a condition as can be contrived for a man to be tied by no laws but such as himself and ancesters have tied and bound themselves by their own consent , and with all these law-makers after sessions in parliament is ended are as subject to be punished by these laws as any other by which means the whol commonalty have as much security as can be devised ; the self preservation of the devisers of the law themselves , being the buckler for every man against partiality : and more than this ; least laws so prudently contrived might be perverted in the dispensation ; the judges are restrained from interpreting the fact of the delinquent who is to be tried by twelve of his peers ; as if it were their own case , so that all the justice imaginable is in the constitution of our government so that for any to complaine and say he can not have justice is a very falsity , if he can have the aforesaid administration of it , if he can not ; he may have his remedies against anywhere he finds the default or obstacle . but now i have run through so great a digression i shall returne to the cause of it from whence i swerved ; these plea's i say coming out on both sides now when the times begin to calme after so terrible a tempest would make a foraigner that should read them , think we had nought but tumultuary proceedings and imagine that they that could make most of their part should get the advantage of their adversaries ; certainly to quiet jealous spirits it is very necessary to tel such if they be lovers of justice ( as i question not but they will say they are ) that its sit every man have justice : for justice is the maine piller of a nations safety ; for as in our bodies the due distribution of all humors to every part its due and the preserving every part in its right temper and composition are the efficient causes of a mans health , unless some part contrary to nature be foul , corrupt or gangrened , then it is most conducing to the health of the whole somtimes to divert the nourishment and humors , somtimes to cauterise , somtimes to cut it off . but mark ! this is when it transgresses the laws of nature ; so likewise these that make pleas for their losses if they have not transgressed any known laws that were in force before their fact ( objected ) were committed : t is fit the due distribution of justice of giving every man his due , procure them a restitution to what they have been by the distempers of the times deprived of ; but if they have transgressed any such known laws , that were in force before their fact , then let them in gods name receive the penalties , allotted by those laws for such trespasses , and none other : this is the true birth right of every free-borne english man and this he ought to have in justice . on the contrary if they that are in possession whether benefices or other purchased lands have such true titles to their possessions as the laws of the land shall justifie , we cannot think such injustice can be permitted by his majesty , as to suffer them to be expelled contrary to laws , of which his royal proclaimation hath given them assurance : but if the laws of the land wil not justifie their possessions , 't is great injustice they should hold them both to the detriment of those in present , that ought to enjoy them , and to be an il example or encouragement to others to enrich themselves out of others ruines for the future ; for without a buyer there can be no seller ; therefore where the law did not justifie that title , at the time of bargain . in the name of god let justice frustrate , and restore to the just owner according to the true title , and let not our age seek to justifie wrong by a post fact law , for which these kingdoms have already felt such sore judgments ; one such law to take the blood of one man in that nature hath been revenged upon the whole three nations with the blood of many ; and should post fact lawes be now created to take the estates of those which were not forfeitable by laws extant at the time of the forfeiture , i pray god do not revenge it after the same manner upon the three nations and lay al of them desolate ; rom. 7. 7. what shal we say then is the law sin ? god forbid . nay , i had not known sin but by the law for i had not known sin except the law had said , thou shalt not covet : where there is any forfeiture of an estate there needs no post fact law to confirm it , for that law which makes a man an offender , hath the forfeiture annexed to it ; if post fact laws be allowed , who knows when he does amiss ? therefore both dispossessed and possessors , gainers and loosers , if ye agree in nothing else , agree in this one voyce ; fiat iustitia . you would be loath either of you to be accounted unjust ; ye ought not to be your own judges , the law ought to be our judg : for as justice is , and ought to be the rule to our law-makers in making their laws , to shew them what should be law ; so should the law be both to them and us the rule of what is justice . they that fear the law are partial and of a tyranous spirit seeking a priviledg for themselves above their fellows , whereas justice , and laws are alwaies general , & priviledg or punish every man alike in the same case making no difference to any ; and this is the liberty of the subject to have al in the same capacity with him excepting only such as are impowred with the supream oversight of the whol . to prevent those innumerable inconveniences which such ( should they be in hazard ) might precipitate the nation into . nevertheless by that exception are they subjected as much or more to the bond of love , for their own strength , as they could have been by the penal laws but with far more security to the nation . seeing therefore , that justice is , that general priviledg wherein all just and equal interests are most priviledged : let us with one mind think of no other plea than that , which i hope will be so provided for by his majesty and the parliament now sitting that there will be no need of promoting any pleas for it : for no man petitions at any time for what he hath , but what he wants , so that it is the part of every man to rest satisfied in expectation of what is preparing by them ( whom we should very much injure ) to think would omit , or act any thing that justice should not require ; but when any such thing is , then promote pleas for justice according to the known laws , but in your particular pleas to make such objections as one is out so much monies , and is like to be ruined , if he be deprived of what he holds ; or that such were deboist in their lives . on the other side that we are brought to poverty , those that possest our estates are so , or so , these savor more of passion than reason , for it they that have gamed the sequestred estates have them by law , the others poverty is no reason they should loose their right : but if the others have lost their estates without law , there is no equity but that law should restore them ; 't is not the debauchery laid to their charge ( which besides is to be proved as wel as said ) that excuses any man in anothers right ; for wherof a man is legally possessed ; of that he is to be deem'd true owner in the same capacity he was at first invested with , til the law disposess him again , and whosoever enters without his consent before such declaration be made by law , hath as much title to it , as a thief on the high way to the money in a mans purse ; for such entries are not by the right door . the laws of the land are the right door to all manner of possessions . whoso therefore comes not in by the right door the same is a thief and a robber , saith christ . and though this may have been a judgment on such as did set their minds too to much upon this world to wean them from laying up treasures to themselves upon earth where moth and rust do corrupt and thieves break through and steal they should be so deprived that they might lay up treasures in heaven &c. god send all men to make use of his dispensations to his glory , he can renew his judgments on them when they give him the same provocation . but as the infirmities of men ( if they be true ) ought not to bar them of the priviledge of the law , so ought not the excellency of any man or saint-like godliness ( to cal it by the usual word ) priviledg him to do injustice against law : nay 't is vehemently to be suspected that where a godly man drives on designs of depriving any man of his right ( before the law hath divested him of it ) that his godliness is but seeming not reall , for justice is the fit foundation to build godliness on , justice may be where godliness is not , but godliness cannot be where justice is not : therefore such assertors of their own righteousness may wel be conjectured pharisee like less justifiable than the poor dejected publican , for though they are more circumspect in punctillio's yet they omit the weighty matters , of doing justice , obeying princes , and laws ; and this their desire of holding what they have ( without relation had to the justness of it ) very much discovers ; for we judg by the fruits , not the flowers . and whereas these may superficially for a mask of such intrusion plead orders of parliament to be the law that authorized their possession ; 't is very wel known in england that no order of parlliament was ever pleaded to be in force longer than the session of that parliament which made it , but that such orders as they hold necessary to continue were drawn into acts and confirmed by the approbation of the king : therefore in this respect their plea for such a title is now fully void , that parliament after a double resurrection being quite rooted up by their own act ; if the death of the late king had not nulled it before : next 't is observable that those orders they can plead in that behalf were made by scarce half the parliament ; the other half being removed to oxford by the kings order ( for though he had released the power of dissolving , he had not that of removing it ) where they joyntly with the consent of the king set out proclaimation for the continuance of all ministers in their benefices til duly convicted and ejected by a lawful authority : so that to any unbyassed man such a proclimation had much more reason to be regarded than any they can plead to the contrary : as to other sequestrations , they , and these too , have only one excuse , that there were wars then in the land ( the justness of which ( that things may come to a composure ) is not fit to be examined ) which procured many things as necessary that could not be justified in peace , for inter arma silent leges ) to which nevertheless it may very well be answered that though sequestrations were then necessitated , yet since it hath pleased god that the daies of oppression and violence should be shortened by procuring a right understanding between his majesty and his people : god forbid injustice should stil remain , or that postfact laws should be created at their own unjust desires to confirm injustice because it hath been made good by a strong hand ; for a while , but here may be infer'd the old objection to law and justice that sumum jus is summa injuria ; which i to avoid other objections willingly in general grant : but if these use this as a reasonable objection in this case that exactness in doing right , be great wrong , what is extremity of wrong ; surely an oppression beyond a name ; christ useth this kind of argument ; if the light that is in them be darkness , then how great is that darkness ? so if the very extremity of justice ( pressed against these men ) shal be thought great wrong ? what wrong do they think those suffered , that lost wrongfully all they had , thus long ; certainly they may be somthing sensible when they think , and reflect on these things ; i wish they may and repent for somthing else , than that they are permitted to do injustice no longer , for as hitherto that hath appeared their greatest trouble , not for what ill they have done , but for what they cannot do . but this is no godly sorrow . but having admitted the objection made against the beauty and benefit of true justice , i say england hath made happy provision in that behalf , for in deciding controversies , we have the high court of chancery , to mitigate the rigor of the law of proprieties ; and in matters capital because they are all culpae lesae majestatis , they have their mitigation in the kings breast ; whose perogative is to remit punishments that are against his royalty or person ; as he shall in his clemency see reason for it : not medling usually with any mans propriety . but neither of these can give any relief in this case to them that plead for mitigation ; for these can but moderate the rigor of the law , by extenuating or remitting the penalty that is subject to their prerogatives , but cannot lay it on the shoulders of them that ought not to bear it ; for 't were a miserable doing of equity to the guilty , by obtruding injustice on the guiltless . we have many commands and examples for being mercifull in our justice , but none , that our mercy to offenders should make us unjust , and cruel to the innocent ; 't were a strange sentence if a judg from the bench giving judgment on a criminall guilty of burglary or such like offence should say , by the law thou oughtest to die , nevertheless that mercy may abate this rigor thou shalt but be half hanged , and he whom thou hast robbed shal be half hanged with thee , but far worse if he should hang the innocent and let the offender enjoy his booty , the transferring the sentence , or part on the innocent is of the same nature and holds proportion very wel , if the innocent must lose their whole or part of their estates against law , to save the losses of such as ought to be punished for their unjust intrusion , besides the loss of the estates so gotten . but if these lay a farther stress on the argument of his majesties referring all to the sentence of the parliament . i say god forbid , that there could be such a thing in england as an unjust parliament . unjust factions , and pieces of mock parliaments we have too sensibly felt , but to imagine that a whole parliament free from force , or fear can be so perverted is a kind of blasphemy against the dignity of so eminent an assembly , so fundamental in our constitution of governments as that is ; and although his majesty hath been gratiously pleas'd in his clemency to submit these matters of controversie to their composure ; his yeilding to their arbritration will not by them be deemed a sufficient warrant for them to be unjust in their umpirage . if the matter in controversie belong to one of the parties ; 't is not to be called an equal arbitration if the umpire shal part it between both parties , equity consists in doing justice , but stil upon lawful considerations ; so it suffers not the morgagee to take the forfeiture of the morgager ; but it alwaies provides that the morgagee shal have no loss neither in principal nor interest ; because the law makes the bargain , a just bargain on both parts ; but when the law justifies not the alienation ; why one man should be justified in buying anothers right of them that had nothing to do with it ; not any thing to color such sales or disposures more than a thief that it too strong for a man ; wil never seem reasonable . god be thanked right , and might , were never made termini convertibiles til of late when our nation through the violence of the feaver it labored withal suffered a delirium , hideous fancies crept into the seat of reason , misinforming the whol . solomon hath given us a very imitable example to follow in our arbitrations ; for though like a wise arbitrator he pretended the division of the child between the true mother and the false ; yet having by that found out the truth , he restord the child whol and living to the right mother with the applause of all for his justice and wisdom ; my hopes and prayers shal be : that god wil not suffer either his wisdom or justice to shine less in our senators than in solomon . now if they make that other general plea that their acquiesing to the return of his majesty ought to be considerable in mitigating the rigor of justice , & his return ought to procure such an union as to take away all animosities and distinctions whatsoever , that they together with others might make one harmonious body of people , and not be yeilded up to any severity more than others ; i answer first that not one of a hundred interressed in any such unjust acquests , had the least good liking to this revolution , but as much as in then lay , both with body , & mind endeavor'd all such meant to hinder it , as was possible for them to contrive ; by which the parliament and nation are not so obliged to them in point of gratitude as some of them pretend : and farther though that consideration , were eminent enough to obliterate all past disaffections ( though visibly it be far otherwise ) yet ought not far greater merits than they can plead for , to priviledg them more than the rest of their fellow-subjects ; for if they be continued in such possessions , as the common laws of the land wil not justifie them in ; are not they made above law to their advantage ? and others whose right the law saies it is , oppressed against laws ; so that if it should pass thus ; breach of laws , peace , justice , &c. would be rewarded with privildges above and against laws ; and duty obedience , conformity to laws , honesty , good conscience and loyalty ( which let me tel you is no smal virtue in any member of a body politicko ) ppressed contrary to law and equity : which were a pestilent perverting of the very essential constitution of al governments ; and a poyson beyond al antidotes ; for as justice is the greatest maintainer , & efficient cause of the wel being of a nation , so injustice , the greatest poyson & destroyer that can be permitted ; but that government that shal prescribe so broad a way for the propagation of it , like a dispairing man provides the readiest instrument for its own destruction that may be ; and renders it self highly guilty of self murder . all this pleads still with the most equitable moderation but for equity on all parts , that we may have all the same laws , nor is it my drift to urge rigor at all against the greatest offenders whatsoever : but shal while i breath desire so much justice that laws may be equally general to all ; and that upon so little deserts the worst of subjects might not have their unjust actions countenanced nor the truest subjects for their duty , and love both to king and laws , country , and justice be injur'd by post fact laws , such things as no honest man ! that made conscience of his actions , would ever need ; no modest man ! that did not arrogantly seek to priviledg his unjustifiable actions , could ever have impudence to demand ; so barbarous are they , that there is but one nation , or rather herd of wolvish tartars that even own'd them ; these are those spiders webs , that catch only the laboring bees , but let ravenous waspes , and hornets go free ; and since they have been , and are still endeavored to be made so mischeivous to this nation ; we have as much reason to insert them into our lettany as the plague , pestilence , or famin ; and indeed the judgment that such laws are like to bring upon us , may give all good men just cause to say : from post-fact laws and the contrivers of them good lord deliver us . now for the last asylum . or resuge that those law breakers have for themselves to say that others are wicked , themselves good , others profane themselves holy , others devils , themselves saints ; and many expressions of like nature ; first let me tell them t is an ill signe for people to speak well of themselves ; and no law either of god or man in any nation ever accepted of a mans testimony in his own cause ; and christ himself denies it of himself : though the transcendency of his person might have priviledged him without being an example of the like to us , but belike he foresaw of how il consequence it might be , to leave such an example : therefore saith . if i bear witness of my self my witness is not true . mens own words are no testimony in their own cause ; next let me tel them , t is so pharisaical a trick , that though perchance it should proove true , it wil make others judg of them as the gospel censures the pharises , alwaies joyning the name of hypocrites ; wo to you scribes and pharisees hypocrites , for self justification when not necessary , to vindicate a man from some imputation laid to his charge is a common badg of hypocrisie ; and next , this ( as is before mentioned ) is no justification of a wrong . nay 't is a notable return that those that intrude upon such specious holiness , unjustly , are more wicked in such an extortion than all they can object to the wronged party , wil render him guilty of : and are so , very justly disrobed of their own holy cloak that cover'd their covetousness . such boasters are very wel resembled by the peacock which gives a glorious shew with his spread traine forwards , sees it himself and walks stately with the conceit of his glorious appearance . but to them that veiw him round ; behind his feathers are dark colord and unseemly and his feet black and uncomly ; which is not so easily discover'd when he gives not standers by , occasion to observe him by his pride . if therfore these men did not so much cry up their own holiness and others prophaneness : their imperfections might pass less noted , but to cure such arrogancy there is no way but to let them see the blackness of the feet they stand on , that peacock like they may let fal their boasting with shame ; i mean to give them a remembrance of the unjust extortion , which they conceald under the specious covering of reformation and zeal ; for whilest they make these gay pretences ; they rob others contrary to the laws , foment the divisions of the nation to the procuring of much effusion of blood ; and much more mischeif that might be reckoned ; now if they would look upon these deformities sure they would never boast of their saint like appearance ; t is not for a man to boast of godliness and urge breach of laws ; or to say they feed the flocks , that rob the true shep-heards put in by the laws of the land ; st. peter and paul both give other ruls ; submit your selves to every ordinance of man , for the lords sake ; whether it be to the king as supream , or unto governors as unto them that are sent by him , for the punishment of evil doers , &c. so that t is not mens guilded behavior , but their obedience to the laws of the land is to give us direction to judg of their goodness ; this makes a man a good subject , without which ( what ever he pretend to ) he can never be a saint indeed . obedience ( saith samuel ) is better than sacrifice ; ( and st. iames ) shew me thy faith by thy works . appearances are good , if they be joyned with inward righteousness : for christ commands it : let your light so shine before men ; but he adds , that they may see your , good works . now the work of obedience to the laws of the land is the great and weighty work , as is shewed before out of peter : t is not the tithing of mint , annise , &c. justifies a man , but the weighty matters of the law , iudgment , mercy , faith ; these ought ye to have done but not to leave the other undone ye blind guides which strain at a guat and smallow a camel . t is not a pretence of scruple against ceremonies , can justifie the disobedience to the higher powers , and the violent and illegal seizing of others mens estates , in which the law justifies them ; and let me tel them it makes not much for their justification or saintedness , that they were put into possession by the arbitrary violence of such a power , that terminated in the murder of the king ; which without doubt bolstred themselves with such appendixes as should be necessary to support them to their intended mischeif : t is a wonder to me with what impudence men can plead a possession from so villanous a force , no more justifiable , by law or reason than any common robbery ; not see i how any one that holds any benevolence of theirs , dffers any more from their crime , than the receiver from the theif ; ( that is if they shal stand upon maintaining the possession they had of them ; possibly some may have been abused by their false glosses , but if they persevere ; their fault appears not through ignorance , but willfulness ; for the ringleaders of that treasonable practice could give no better title than they had , which was only violence , and rapine ; do not then they partake with them that shal justifie any possession from their title ? nay can they hope that so free a parliament as this is , can make good the receipt of their roberies ? no , i perswade my selfe too many of them have felt their malice too much , and have known their cruelty and injustice too well , to be brought to consent to their villanies : for they know very well that qui non probibet cum licet , iubet . and i am confident these men will have a greater task than hercules's labour , to prevaile with so eminent an assembly , ever to justifie such villanies ; the injustice they have seen , will make them too fearful of the like againe , to give any incouragement to what is past : t is time at length to lay aside private interest , and advance the publique ; which can be no way provided for but by justice , losses will be great enough to the loosers , do what can be done ; so long profits can never be restor'd them they belonged to ; and on the otherside , the gains will be too great to them that have deserved far otherwise ; how strictly soever they be call'd to account ; and we may be certain of this that very few of them can be brought to a more desperate fortune that they began withall ; so that none need fear overdoing on this hand , so long ryot upon other mens purses and labors , together with corporal impunity is advantage enough , nay too great for such unacceptable service as they have done the nation ; therefore i think it will be the most reasonable ples , that all sufferers can make , that they may have justice : and in that , their oppressors wil not know how to oppose their desires ; for to say they desire no justice ( though it be like all former impudence of theirs ) they perhaps are yet ashamed to profess themselves enemies to it ; but if they say they desire justice according to the laws , then all english men have their priviledge ; and one plea will serve us all ; but by their fruits already brought forth we may partly know what to expect for the future ; and assure our selves they will pervert the sense of the thing or slink into obscurity least now the light of truth shines freely every where ; their deformities he made more apparent , for justice is the light and life of the body politick , and the law the window to let that light into all parts of that body to discover , the actions of every man , so that they that hate the law hate the light , that makes their actions appear , and it is a shrowed sign of their own conscience accusing them if they refuse to be tryed by the laws . for every one that doth evil , hateth the light neither cometh to the light , lest his deeds should be reprooved , but he that doth truth cometh to the light , that his deeds be made manifest that they are wrought in god ? let us therefore with alacrity think on no other plea than that justice may be afforded to all alike ; we desire no more priviledg than other men have , and we desire on the contrary they may have no more than we ; and that no post-fact laws may be made to the advantage of any perticular mans interest ; but that as god hath ordained from the beginning one only truth and one catholick church universally dispensable to all ; so that our nation in imitation to his ordering of the oeconomy of the universe ; may have one general maintainance of his truth , by an equal and general dispensation fo the laws , our property rectified and secured , that once again justice may flourish , that so we may receive his best of temperal blessings peace and truth within our walls and plenteousness in our pallaces : so let every true english man and loyal subject pray . these queries i thought fit to add for a pallisad , about what hath been written , that if any snarle at what hath been said , he may happily first break his teeth against these following . 1. whether might ; without right be not absolute tyranny and usurpation ? 2. whether to argue from the orders and injunctions of violent assemblies , be not to set up the power of the sword , above the civil power , and consequently a changing of goverment , from the rule of reason to be ruled by wil ? 3. whether they can be freinds to a nation that indeavour alteration of goverment by force . contrary to the will of all parties related to such a goverment ? 4. whether laws are not to be the rule of our actions in this kingdom ? 5. whether it be justice to dispossess any man of his possession , by force , who is not first dispossessed by the judgment of the law ? 6. whether right be any thing else in civil societies , than a legal warranting of our actions or claims by the law of the land ? 7. whether a violent possession against the laws of the land , be justifiable by any honest man , good christian , or any other than a new fashion'd saint ? 8. whether : vir bonus est quis ? qui consulta patrum qui leges iuraque , servat . be not a sufficient character to know an honest man by ? 9. and lastly , whether post-fact laws , be not the most arbitrary imposition that can be contrived , and whether it be possible to avoid such snares if they should be allowed . finis . notes, typically marginal, from the original text notes for div a67913e-340 nich. machiav . disput. de rep. cap. 27. tullij . offic. lib. 1. iohn , 10. 1. math. 6. 19 , 20. luke , 18. 11. math. 7. 17. mark , 13 20. math. 6. 23. 1 kings 3. 27 , 28. iohn , 5. 31. 33. math. ●3 . v. 23. 27 , 29. 1 peter , 2. 13. rom. 13. 1. &c. math. 5. 16. math. 23. 23 , 24. iohn , 3. 20. instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages. england and wales. council of state. this text is an enriched version of the tcp digital transcription a84463 of text r211323 in the english short title catalog (thomason 669.f.14[90]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 3 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a84463 wing e778 thomason 669.f.14[90] estc r211323 99870053 99870053 163077 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a84463) transcribed from: (early english books online ; image set 163077) images scanned from microfilm: (thomason tracts ; 246:669f14[90]) instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages. england and wales. council of state. 1 sheet ([1] p.) printed for edward husband, london : 1649. issued 20 nov. 1649. signed: in the name, and by order of the councel of state appointed by authority of parliament. annotation on thomason copy: "nou: 25". reproduction of the original in the british library. eng law enforcement -england -early works to 1800. a84463 r211323 (thomason 669.f.14[90]). civilwar no instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of england and wales. council of state. 1649 553 0 0 0 0 0 0 0 a this text has no known defects that were recorded as gap elements at the time of transcription. 2007-09 tcp assigned for keying and markup 2007-09 apex covantage keyed and coded from proquest page images 2007-10 mona logarbo sampled and proofread 2007-10 mona logarbo text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion instructions to be observed by the several iustices of peace in the several counties within this commonwealth , for the better prevention of robberies , burglaries and other outrages . vvhereas great robberies , burglaries and other outrages are daily committed , to the exceeding great damage and danger of the commonwealth , it is therefore , in pursuance of the special order of parliament to us directed , ordered for the future , that the ensuing directions be forthwith put in execution by all justices of peace in their several counties ; viz. i. you are to cause all laws in force against rogues , vagabonds and sturdy beggars , to be duly and effectually executed . ii. you are to cause sufficient watch and ward to be kept by persons able in body , with bills , guns , or other weapons , in all fit places and towns adjoyning to any great road ; and that you give order to the constables of every such town , that posts , rails and gates be set up in every such place and town , to the end to examine all passengers , as also thereby to stop the speedy flight of all thieves and robbers . iii. and in order to their more speedy apprehension , you shall give order , that they have in readiness in every such town , an expert person and an able horse , to be a guide to such as at any time shall be in pursuit of thieves and robbers . iv. you shall give order , that as they shall meet with , or apprehend any such , or any whatever suspitious persons , that they forthwith carry them before the next justice of the peace , to be by him proceeded withal according to law . v. you shall take care effectually to suppress all unlicensed alehouses , and all such alehouses and houses whatsoever , usually entertaining travellers and strangers , which do stand in blinde corners out of the view of towns or houses . vi . that to all such as shall necessarily be continued , and all and every the innholders within their counties , you shall give order to give in writing every night , viz. by six of the clock in winter , and by eight of the clock in summer , to the justices of the peace , or to such other as shall be by them deputed , of the number of all travellers lodging within their respective houses , and whither they are travelling : with a full description of their apparel , of their horses , geldings and mares : and in case of default herein by any innholder or alehousekeeper , he or they so offending are to be suppressed , and not suffered after to hold or keep any inn or alehouse : and you are to give order to the several constables , to return you a weekly account of their proceedings herein : and you are every moneth to give an account of your proceedings to this councel . signed in the name , and by order of the councel of state appointed by authority of parliament . london , printed for edward husband . 1649. innocency and conscientiousness of the quakers asserted and cleared from the evil surmises, false aspersions, and unrighteous suggestions of judge keeling expressed in his speech made the seventh of the seventh month at the sessions-house in the old-baily ... : wherein also is shewed that this law doth not concern them, they being no seditious sectaries, nor contrivers of insurrections, nor evil-doers, therefore no just law is against them. smith, william, d. 1673. 1664 approx. 34 kb of xml-encoded text transcribed from 9 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2005-12 (eebo-tcp phase 1). a60636 wing s4308 estc r16062 12280156 ocm 12280156 58673 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a60636) transcribed from: (early english books online ; image set 58673) images scanned from microfilm: (early english books, 1641-1700 ; 824:19) innocency and conscientiousness of the quakers asserted and cleared from the evil surmises, false aspersions, and unrighteous suggestions of judge keeling expressed in his speech made the seventh of the seventh month at the sessions-house in the old-baily ... : wherein also is shewed that this law doth not concern them, they being no seditious sectaries, nor contrivers of insurrections, nor evil-doers, therefore no just law is against them. smith, william, d. 1673. 16, [1] p. published by a lover of truth and righteousness, w.s., printed at london : 1664. reproduction of original in duke university library. attributed to william smith. cf. bm. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng kelyng, john, -sir, d. 1671. society of friends -great britain -early works to 1800. law and ethics -early works to 1800. 2005-04 tcp assigned for keying and markup 2005-05 apex covantage keyed and coded from proquest page images 2005-06 mona logarbo sampled and proofread 2005-06 mona logarbo text and markup reviewed and edited 2005-10 pfs batch review (qc) and xml conversion the innocency and conscientiousness of the quakers asserted and cleared from the evil surmises , false aspersions , and unrighteous suggestions of judge keeling ; expressed in his speech made the seventh of the seventh month at the sessions-house in the old-baily , being the day appointed for the tryal of some of the said people by the late act made to prevent and suppress seditious conventicles . wherein also is shewed that this law doth not concern them , they being no seditious sectaries , nor contrivers of insurrections , nor evil-doers ; therefore no just law is against them . he that justifieth the wicked , and he that condemneth the just , even they both are an abomination to the lord. prov. 17. 15. published by a lover of truth and righteousness , w. s. printed at london , in the year 1664. to the judicial and impartial reader . ever since the devil ( that enemy of mankind , who is the leader of nature out of its course ) got rule in man's heart , his work and way hath been to stir up his instruments , first , to cast ignominious reproachful names upon the true worshippers of god , as new sects , turners of the world upside down , pestilent fellows , sowers of sedition , ring-leaders of sects , blasphemers , hereticks , seditious sectaries , contrivers of plots , and stirrers up of rebellion , &c. then when he hath by his emissaries cloathed them in this mantle of reproach , he can the easilier bring his designs to pass upon them ; whether it be to imprisoning in nasty infectious holes , or whipping , banishing , burning or hanging , which hath been his work through ages , among both false jews and false christians , as well as among those called heathen , to this day : for as once among the heathen , it was crime enough to cause the true christians to suffer , to have the name of a christian ( which was a name of reproach in that day ) and carried enough with it to be guilty of all crimes , in the judgment of the heathen , who believed all that was spoke and published against them , though they saw no proof : the like parallel is now ; we have the name quaker given us in reproach and derision , and its crime enough to cause us to suffer ( before and among some ) to have that name ; and what is spoke and published , surmised and evilly suggested of us , many believe without any manifest proof : but the wise and judicious will not receive and believe every report , nor give judgment of any person or people because of a name , speech , or report , though it be from the mouth of a judge , but will desire to know the truth ; therefore to inform such is this reply following published . and we may truly say for ourselves , as tertullian in his apollogie once said for the christians , when the heathen called their society , meetings or assemblies , factious ; did we ever ( saith he ) assemble to proclaim the hurt of any one ? as we are in the particular , so we are in the general ; that is to say , in whatsoever state we are found , we offend no body , we injure no body : and further , saith he , when any vertuous or godly people are associated , when any pious or chast persons assemble together ; their union should not be called a faction , but a lawful society . pag. 142. the innocency and conscienciousness of the quakers asserted and cleared from the evil surmises , false aspersions , and unrighteous suggestions of judge keiling ; expressed in his speech made the 7th of the 7th month , at the sessions-house in the old baily , &c. judge . because this day was appointed for the tryal of those people , and in as much as many are come hither expecting what will be done , i shall say something concerning them and their principles , that they might not be thought worthy of pity , as suffering more than they deserve : for they are a stubborn sect , and the king hath been very merciful with them . it was hoped that the purity of the church of england would ere this have convinced them , but they will not be reclaimed . answer . our conversation for these many years , hath been noted , and strictly observed by many , and hitherto we have not been found transgressors of any law which is made to preserve mens persons or estates , or for the punishment of evil-doers ; and so have not given the magistrates occasion justly to appoint days of tryal for us . for the law once in tables of stone , and all other just laws were and are added because of mans degeneration from the law and righteous principle of life , which was once , or at the beginning , placed in his heart : so when man fell from his obedience to this righteous law ( which we say was not in a book , nor in tables of stone , in the beginning , but in the heart ) and abounded in acts of cruelty , violence , oppression and idolatry , then because of these transgressions was that outward law added , in order to limit , bridle and punish , and also to bring mankind back again in a measure to that which he degenerated from , as moses witnesseth ( viz. ) to the word in the month and in the heart , that they might hear it and do it ( or obey it . ) and true christians are come to christ jesus , who is the power of god ; and are created anew in him unto good works , that they should walk in them ; and are made witnesses of that glorious promise fulfilled in them , ( viz. ) as to have the law written in their hearts , and the fear of the lord put into their inward parts ; which law and fear teacheth to depart from evil , and crucifieth that transgressing spirit within , from whence all manner of wickedness proceeds ; and against such there is ( or ought to be ) no law they being a law to themselves , as it is written , the law is not made for the righteous man ; but for the lawless and disobedient , for the ungodly and for sinners , for unholy and prophane , for murderers of fathers and murderers of mothers , for manslayers , for whoremongers and buggerers ( or abusers of themselves with mankind ) for man-stealers , for lyars , for perjured persons , and any other evils which are contrary to sound doctrin . and now seeing we are preserved by the power of the living god , ( whom we fear and serve ) from those and such-like evils ( which are the occasion of law and magistrates , otherwise there would be no need of either ) and yet notwithstanding are persecuted and thronged into nasty holes and prisons , and guarded with a great many club-men and bill-men , and haled before judgment-seats and rulers , as if we were great malefactors : this makes people slock together , and expect , and also wonder what will be the end of these things ; that people against whom no evil can be justly charged , should be the greatest sufferers in this generation : and pity and compassion will arise in thousands , who shall see or hear of our sufferings for innocency and conscience towards god , notwithstanding our cruel adversaries endeavour to cloath us in woolf-skins , to make people believe that we are the beasts of prey , and a stubborn sect , which will not be reclaimed by the mercy of the king , nor the purity of the church of england . as for the kings mercy it cannot save us , if we transgress against god , and make shipwrack of faith and a good conscience ; his righteous judgments will find us out , and we must give an account to him ; and walk so , as we may partake of his mercy ▪ which the king as well as the beggar hath and will have need of also ; howbeit we never yet forfeited our interest in the king's promises of liberty to tender consciences , so often renewed by him ; though it appears by this judge's so much inveighing against us , that he would fain make people believe we do not deserve our liberty or interest therein ; but that will not clear him nor them in the sight of god concerning those promises . and as for the purity of englands church it 's out of our sight , except it consists much in swearing , which the judge saith is a special part of god's worship : if this be purity , there 's too much of that among the members thereof ; but that will never reclaim us , for we can see a great deal of impurity , corruption and soul-sickness in it ; and as much the members of it confess themselves , that they are full of putrified sores , from the crown of the head to the soal of the feet ; and that there is no health nor soundness in them ; and that they do those things they should not do , and leave undone those things they should do ; and that they are miserable offenders , and sin in their best performances : indeed they speak enough of themselves to cause all wholsome , sound , understanding people to shun them and their church and worship , as men shun a contagious disease or infection ; and it is manifest that the nature and spirit of christianity is wanting among them , and that the spirit of cain ( that worshipper , who was the first murderer about religion ) rules among them : and what weapons have they ever used to reclaim us ( or call us ) back again to worship as they do ? have not their weapons been carnal , and the course they have taken force and violence , by stirring up the magistrates to make cruel laws against us ? which was never the true christians work nor way to bring people to believe their doctrine , and to worship as they did , but cains way ; and his wages will all persecutors about religion receive from the hand of the lord , as a just recompence of reward . judge . they teach dangerous principles ; this for one , that it is not lawful to take an oath . you must not think their leaders believe this doctrine themselves , only they perswade these poor ignorant souls so ; but they have an interest to carry on against the government , and therefore they will not swear subjection to it ; and their end is rebellion and blood. you may easily know that they do not believe themselves what they say , when they say it is not lawful to take an oath , if you look into the scriptures ; that text ( mat. 5. ) where our saviour saith , [ swear not at all ] will clear it self from such a meaning as for bids swearing , if you look but into the next words , where it is said , let your communication be yea , yea , and nay , nay ; and it is said , an oath is the end of all strife ; this for the new testament : and the old is positive for swearing . and they that deny swearing , deny god a special part of his worship . answer . our principles are truth , and according to the scriptures of truth ; but that great evil , to call light darkness , and darkness light ; good evil , and evil good , is befaln this generation ; and that which leads to unity and the preservation of mankind is now counted dangerous and destructive . swearing , or taking of oaths was not in the beginning , there was no need or occasion for it , strife was not begun ; but when man broke his unity with god , and ran into disobedience , then strife , and every evil work followed among men : then to limit this evil spirit which man followed into transgression , an outward law was added , and swearing and vowing under a curse came up ; and such as vowed were to perform their vows unto the lord ; and those that swore , were to swear by , or in the name of the lord , and not in or by the name of an idol , or any other creature ; and this was in the fall , while the wall of partition stood : now christ who is the restorer and the maker up of breaches , ( who was with the father before any of these things were ) in the fulness of time , in a body prepared , he appeared , to fulfill the law , and to put an end to sin , which was the occasion of the law ) and to finish transgression , and to bring in everlasting righteousness ; and to restore and bring man back again into the knowledge and unity of his maker , from whom he fell by disobedience : and these things which the father sent him to do , he finished and finisheth ; for all that received , believed , receivet and believe in him , and follow him in the regeneration . and while he was with his disciples , in that prepared body in which he came to do the will of the father , he gave forth many precepts and commands unto them , among which this is one , minding them how it was in old time ( viz. ) under moses law , how that they were to swear , and perform their vows to the lord ; but saith he ( who was before moses was ) i say unto you , swear not at all , neither by one thing or another ; but let your communication be yea , yea , nay , nay : for whatsoever is more than this cometh of evil . and moses law , and the old time saith also , an eye for an eye , and a tooth for a tooth , smiting for smiting , and that they should love their neighbour and hate their enemies ; but christ taught and teacheth his disciples a harder lessen , of bearing and forhearing , love , gentleness and heavenly-kindness , that they might be more like their heavenly father than moses's disciples were ; for saith he , if you love them that love you , and if you are friendly to your brethren only , what do you do more than sinners ? &c. so he that was before the law , leads to the end of the law , ( which is love ) and brings those that follow him , to be like-minded to him : as the christians in the primitive times were , who said , they had the mind of christ ; and did exhort one another to the same . and that this command of christ forbids all swearing , is not only clear from the end , and circumstance of the foregoing and following words , but also from the apostle james's exhortation ; who said above all things , my brethren , swear not , neither by heaven nor earth , nor any other oath , lest ye fall into condemnation . and it is also written , that if any say they love christ , and keep not his commandments , they are lyars . so who ever reads these scriptures ( mat. 5. jam. 5. 12. ) except the god of this world hath blinded the eye of their minds , may plainly perceive , that not only prophane swearing , but all manner of swearing among the disciples of christ ; who brings all that truly follow him , out of the strife which is among men , into love , peace and unity , which was before oaths , and where there is no need of any . and the swearing , strife and confusion , rebellion and blood-thirstiness is among the false christians , who have the name of christ in their mouths , but want his spirit and nature , being inwardly ravening wolves , and by their fruits are they known . and it is true which a bishop of englands church once said ; that among false christians oathes are not to be regarded ; and amongst true christians there was no need of them . our leader is christ , whose voice we hear and follow , and whose riches and wisdom we partake of . and the poor and ignorant souls are such as creep into houses ( ignorantly called churches ) and lead silly women captive , who are laden with sins , and led aside with divers lusts , ever learning , and never able to come to the knowledge of the truth : while we were in englands church , we our selves were such , as knew not the physician of our souls , and so were full of putrified sores , and unsoundness , and no health was in us ; and we did those things we should not do , and left undone those things we should do , &c. which is the states of englands church still as the members thereof confess in their common service : so , doth not divers lusts lead them ? and are they not ever learning , and ever ignorant ? and do not many thousands of them go down to the pit without the knowledge of that precious truth which makes free from sin ? let god's witness in the consciences of its members answer . our interest which we desire to cary on , is truth & righteousness ; and we shall rejoyce to see it established : though we are counted as the filth of the earth , and the off-scouring of all things , and not sit to live in this the land of our nativity , yet we have and do approve our selves friends to our nation ; and since the lord hath made us a people , we have sought and endeavoured its temporal and eternal good , and have not been found contriving nor acting evil against persons or governments , since we were brought to the knowledge of that truth we profess . therefore what ground of suspicion have we given to our cruel persecutors , that they should suggest and surmise so much evil of us , that our design is rebellion and blood ? but what cause or occasion did harmless abel give bloody cain to kill him ? consider and see the same is now . judg. now you shall see how this principle of not swearing tends to the subversion of the government . first , it denies the king the security he ought to have of his subjects for their allegiance ; which oath they deny ; and security by bond is not so good : for thereby they are not engaged in conscience , and they will only wait for a convenient season to forfeit their bonds without hazard , and make sure work in overthrowing the present government , and secure their own securities ; but an oath binds the conscience at all times , and that they cannot abide . again , this principle tends to subvert the government , because without swearing we can have no justice done , no law executed ; you may be robbed , your houses broke open , your goods taken away , and be injured in your persons , and no justice or recompence can be had , because the fact cannot be proved : the truth is , no government can stand without swearing ; and were these people to have a governmet among themselves , they cold not live without an oath . answ. if this judge had the mind of christ , he would not speak after this manner : for government was before swearing , and may be without it ; and oaths of alleagiance are but a novel thing to government , hatched and imposed in the apostacy , and was not among the true christians , whose yea was yea , and their nay nay in all things ; and the word and promise of a true christian , is security sufficient , and their consciences are bound to perform what they say and promise , as firm as they that swear . there hath been no want of swearing in these and other nations called christian , yet what subversions , turnings and overturnings , and treacherous dealing hath there been among the princes and people thereof ? and many have sworn to one governour and government , and then to another , and so to a third , and may be ready to swear to any that get to the helm of government ; and these swearers and conformers to any thing that is uppermost , make little conscience of oaths , so they may save themselves from suffering : and if we were or had been of this spirit , we need not have suffered so exceeding deeply in our persons and estates in the time of oliver , and the other powers : and it is envy which blindes the understanding of this judge , that makes him charge us , with not believing what we say , when we say , it is not lawful for us to take an oath ; and that we have a design to carry on , and therefore will not swear allegiance to the king. now if he did believe what he saith of us , that we should assert what we do not believe , or were so void of conscienciousness ; then how can he in reason expect that an imposed oath should be so much binding to us , if we could be forced to take it , especially since it is a maxime of their own , that forced oaths are not binding . and this judge and all such would do well to consider what weight their oath hath upon their consciences , whereby they are enjoyned to do equal law and execution arightly to all ; but how this is performed , set the wise in heart judge , when they go about with groundless suggestions and suspitions against an innocent people , to instigate both juries and country against them . we are such as desire the good of all that are in authority , that we may lead a quiet and peaceable life in all godliness and honesty under them ; and have never yet been found designers or contrivers of their destruction : therefore the greater is this judges evil , to endeavour to make us odious among the people ; and the unfiter he appears to be our judge , being full fraighted with enmity against us without cause : and a judge ought to be impartial , a man fearing god , and judging for him , and not for men ; such judges judgement will answer the righteous principle of god in all men , and such are a terror to the evil doers , and a praise to those that do well ; and the lord is with such in judgement . that which subverts , undermines and destroys governours , governments , and people , is cruelty , oppression , tyranny , sin and rebellion against the god of heaven , who hath power to give the kingdoms of this world to whom he pleaseth : and who so rules in righteousness , and answers the just and righteous principle of god in all men , needs not fear subversion or undermining ; 't is the evil doer that is filled with fear and terrour round about . we are not the obstructers of justice , nor the cause of it , our witness against any evil doer , shall be as true as any that take oaths ; and if false , our penalty the sawe with false swearers . and further , witnesses under moses's law , had no oath administred to them , though the crime bore witness of , reached life ; but if any bore false witness , the same punishment which should have been inflicted upon the person witnessed against , should be insticted upon the false witness and witnesses : which thing we desire may be done unto us : so then the fault is in the law , and the judges of it , which denies true and faithful evidence , ( which in conscience they can believe ) except it be under the ceremony of an oath . it is a shame for christians to have a jealousie of each others testimony , except they swear : it was enough in the first age of christianity , to confirm any testimony without an oath , to say [ christianus sum , ] or , i am a christian. and if no government could have been without taking of oaths , the author of all true government and rule , would not have said , swear not at all ; but swearing oaths and strife , is among men in the fall and degeneration ( and not among true christians ) where it will remain , till they know the restorer of all things take away the cause of it ; which is sin . judge . whereas they pretend in their scibbles , that this act against conventicles doth not concern them ; but such as under pretence of worshipping god , do at their meetings conspire against the government . this is a mistake ; for if they should conspire , they should then be guilty of treason , and we should try them by other laws ; but this act is against meetings to prevent them of such conspiracy ; for they meet to consult , to know their numbers , and to hold correspondency , that they may in a short time be up in arms. answ. our writings which he calls scribbles , are words of truth , and pretend no more than is true : for we are not the persons committing those crimes the act expresly provides against , except we , under pretence of tender consciences , do at our meetings contrive insurrection , as late experience hath shewed , and meet also under coulour and pretence of religious exercise , and so make this pretence of religion , a cloak to carry on and cover so me other design , which we never did ; ( for we meet indeed and in truth to wait upon god , and to worship him ; ) therefore this law concerns us not , if it be not strained beyond the expressed reason of it , in the preamble , by our cruel judges ; who may be compared to evening wolves , which are greedy to devour : and it is time enough to try us by this act , or any other law , when we do and commit the fact the law hath expresly provided against . we meet not to consult and to know our numbers , and to hold correspondencies , nor to be up in arms in a short time ; for so to do is conspiracy ; which he as good as confesseth and acknowledgeth that we are not guilty of ; for he saith if we were , he would try us by some other law. but these are evil suggestions , and wickedly imagined against us , in order to destroy us : this is unrighteous judgement , and god will plead our cause in the consciences of our adversaries . judg. i had the honour to serve the king at york , upon the tryal of those wicked plotters ; and we found that those plots was hatched and carried on in these meetings ; and we hanged up four or five of the speakers or praters ; whom we found to be chief leaders in that rebellion . answ. it is and hath been our portion and lot to be numbred among transgressors , by that envious spirit which seeks our ruine ; though we have been found no hatchers or carriers on of trecherous designs against any at our meetings : and he might as well have compared us to those members of englands church hanged monthly at tyburn . judg. i warrant you their leaders will keep themselves from the third offence , we shall not take them ; if we could catch their leaders , we should try them by some other law , which , if executed , will take away their lives . answ. we have no leader but christ jesus , who is the captain of our salvation , and he is our shepherd , and we hear his voice , and learn of him , and are the sheep of his pasture , and in our consciences we are bound and ingaged , because we love him and his paths of purity , to follow him , who leads our souls to rest . but for such which the judge means by leaders , who have been made instruments to turn our minds from darkness to light , and from the power of satan to god , they , together with us , are resolved to keep to the grace of god , ( the true teacher ) which teacheth to deny ungodliness and worldly lusts , and to live soberly , righteously and godly in this present world ; and by this grace ( which appears to all men ) are we taught and preserved from offending against any just laws once ; and so he may well warrant himself and others , that they will not offend three times : and his blemishing those he calls leaders , as if they put on others to suffer , and slee themselves , is altogether false ; for it is well-known in the nation , that many of them are in prison , where some of them have long remained for refusing to take the oath of allegiance ; upon which account divers of them are permunired , and many suffer for meeting : howbeit , if you should be suffered to take away some of their lives , which they can freely give up , if called to it ; yet know that the god whom we serve is unlimitted , and will open the mouths of thousands to bear witness against unrighteousness : so when you do take and catch more of them , you will have no evil to lay to their charge , nor nothing to accuse them for , but about matters appertaining to god's kingdom ; as conscience , faith , worship and religion ; which the civil magistrate ought not to intermeddle withall , it belonging to god alone , to whom all must give an account for such things : and people ought not to be imprisoned and persecuted , and their lives taken away about matters of religion ; for if a people have a false faith , and a misguided conscience , and are by reason of this faith and misguided conscience , exercised in a false worship and religion ; these people deserve the more to be pittied , informed and dealt lovingly and tenderly with , than to be persecuted , imprisoned , and destroyed , and so sent quick to hell : this is no christian love , nor the way to restore . judge . this is a merciful law ; it takes not away their estates , it leaves them intire ; only banisheth them for seven years , if they will not pay an hundred pounds : and this is not for worshipping of god according to their consciences , for that they may do in their own families ; but forsooth they cannot do that , but they must have thirty , forty , or an hundred others to contrive their designs withal . answer . as he began his speech in falshood and enmity , so it ends in the same : for if this be a merciful law , as those that are judges of it intend to execute it , then we may truly say as it is written , that the very mercies of the wicked are cruelty ; for some felons and murderers chuse rather to be hanged than to be transported , sold , and banished ; all which are threatned to be executed upon us , and for no other cause but for worshipping god in such manner and way as we are perswaded in our consciences , which are made truly tender ; and we dare not make shipwrack of faith and a good conscience , to save our persons and estates from the mouth of the devourer ; for it is a fearful thing to fall into the hands of the living god for disobedience ; and conscience is as a thousand witnesses , either to excuse or accuse ; but fearedness of conscience , as with an hot iron , and deadness and blindness of heart is befaln many in this generation : and from this state ariseth all such merciful laws as this the judge speaks of , in order to bring others ( who are tender and fearful to offend god ) into the same state they are in themselves ; but we are in conscience constrained ( if the god whom we serve so far permit ) to suffer the whore ( the false church ) to drink more of our blood , but of her cup of fornic●●ion wherewith she hath made the kings of the earth and nations drunk , we cannot drink ; and we are of the houshold of god , and of one family , and members of one body ; and though thirty , forty , or an hundred , or a thousand meet in one place or another together , for no evil design , why should we be banished for that ? if this be mercifulness , what is cruelty ? the heathenish romans shewed more mercy & manhood to paul , in allowing him to have a meeting in his own hired house , where he preached , and taught all that came unto him , without let or any limit as to number , two full years , though he was a prisoner . o that ever a people called christians should be found more inhumane than heathen , more merciless than bruit beasts , to banish fathers and mothers from their young and tender children , and children from their parents , and husbands from their wives ! and all this for no evil or wrong done to any mans person , estate or goverment , but onely for endeavouring to keep their consciences pure to god , and void of offence to him and all men . postscript . it is to be noted , that though the judge at the beginning of his speech said , that that day was appointed for their tryal , yet they were not tryed ; for one only , which he intended to begin withal , was brought from newgate to the bar , being but a boy and lately convinced of the evil of sin , and but as it were turning from it , into a conscientious fear and obedience to god : when he had ended his speech , he asked if he were not at the bull & mouth on such a day ? he said he was not . then the judge took occasion to vilifte and reproach the profession of the quakers , to the jury and people , and said , for all their pretentions to truth and plainness , could lie for their interest , & to avoid suffering : then asked him the same question again , and he answered as before ( for he was not there that day ) then saith he , we shall prove that you were there ; will you stand to your profession , said the judge ? yes , said the lad , and seal it with my blood. then were witnesses called in to prove that he was at the bull and mouth such a day , but none could appear : then the judge soon perceived that no witnesses would be found to serve his turn against this lad , nor the rest . then said he , there is a disappointment faln out , but threatned some should suffer for it to their cost , and so dismist the jury ; this disappointment being only want of witnesses to bring about the designed purpose of the court. they have ordered since , that some of the jaylors of newgate , together with the marshal and his men , shall be at our meetings , and be their witnesses against us at the next sessions : so our persecutors cruelty is further manifested in this , that they should ( jezebel like ) hire , force , or command a company of hard-hearted men , who are daily exercised in cruelty , and who have not the true fear of god in their hearts , to be our only accusers : but the righteous god , which seeth the plots and designs of the wicked ( against the innocent and harmless ) will reward them according to their doings . the end . notes, typically marginal, from the original text notes for div a60636-e370 bishop gauden his book concerning publick oaths . an assize sermon preached before the right honourable the lord chief justice glyn and mr. serjeant earle, judges of assize at bridgnorth in shropshire, july the 2d, 1657 / by thomas gilbert ... gilbert, thomas, 1613-1694. this text is an enriched version of the tcp digital transcription a42733 of text r18734 in the english short title catalog (wing g719). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 68 kb of xml-encoded text transcribed from 18 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a42733 wing g719 estc r18734 12875652 ocm 12875652 94827 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a42733) transcribed from: (early english books online ; image set 94827) images scanned from microfilm: (early english books, 1641-1700 ; 380:25) an assize sermon preached before the right honourable the lord chief justice glyn and mr. serjeant earle, judges of assize at bridgnorth in shropshire, july the 2d, 1657 / by thomas gilbert ... gilbert, thomas, 1613-1694. [6], 29 p. printed by a.m. for francis tyton ..., london : 1657. title page vignette. errata on p. 29. reproduction of original in union theological seminary library, new york. eng law (theology) -sermons. sermons, english -17th century. a42733 r18734 (wing g719). civilwar no an assize sermon, preached before the right honourable the lord chief justice glyn, and mr serjeant earle judges of assize at bridgnorth in gilbert, thomas 1657 12629 111 85 0 0 0 0 155 f the rate of 155 defects per 10,000 words puts this text in the f category of texts with 100 or more defects per 10,000 words. 2004-12 tcp assigned for keying and markup 2005-02 spi global keyed and coded from proquest page images 2005-04 olivia bottum sampled and proofread 2005-04 olivia bottum text and markup reviewed and edited 2005-10 pfs batch review (qc) and xml conversion an assize sermon , preached before the right honourable the lord chief justice glyn , and mr serjeant earle judges of assize at bridgnorth in shropshire , july the 2d 1657. by thomas gilbert minister of the gospel at edgmond in that county . london , printed by a. m. for francis tyton at the three daggers in fleet-street , 1657. to the right honourable the lord chief justice glyn . right honourable ; this pains which another call'd to the pulpit , your honour hath commanded to the press : i would hope but to a second impression of it , the first being in your own and others hearts . your attention spake your affection to it in the preaching : your judgment of it ( so much above mine own ) will be apologie sufficient for the printing ( in this almost as much printing as scribling age : ) and your authority commanding it the pr●ss , hath even therein engag'd for the patronage of it printed . i promise my self also the third impression in the whole course of judicature , at the stern whereof your honour sits lord chief justice , hearing ( and i am perswaded deservedly ) the best book-man of the nation , and knownly no less exquisitely able in the disquisition of a cause , then in the knowledg of the rule : now if your honour either already did not , or did not still resolve with this , either ability to answer your trust , and make good your style , you would not have desir'd the light of this sermon also to stare you in the face . nor may this sermon have its use onely with your lordship in this your so honourable publick station , but more especially in your private christian cap●city , as your remembran●er , in all , often to lay your self to the line of that law of liberty , by which publick judges , as well as private christians must be judg'd . that the lord would follow it with his blessing , both preach'd and printed , to some measure of usefullness , both to your honour and others , is the prayer of right honourable , your honours most humble remembrancer at the throne of grace , thomas gilbert . to the worshipfull edmvnd waring esq high sheriff of the county of salop , and captain of the county-troop . truly honour'd sir ; this sermon is not bec●me less yours for becoming so much anothers : nor will that honourable person grudg you a part in the dedication from whom the whole had its rise . its appearance in another dress , doth no more vary the case , than a servants changing his cloathes changeth his relation to his master . you have in your single hand a two-fold posse both civil and military of this county ; an interest in it above both ; and i think for your time above any gentlemans of your rank in any county of england . you have received all from the supreme lord , and must render an account of all to the supreme judg held forth in this sermon . which that you may doe with joy , and not with grief , when judg'd by the law of liberty , is the prayer of truly honour'd sir ; your friend and chaplain thomas gilbert . an assize sermon . james iid ver. xiith so speak ye , and so do , as they that shall be judged by the law of liberty . the nine first verses of this chapter , mine apostle bestow's in reproving those he writeth to for , and dehorting them from their sinfull respect of persons ; and after sundry arguments to that purpose manag'd , and an emergent objection in the tenth and eleventh verses , by way of prolepsis , or anticipation answered , he layeth in a most powerfull argument in my text , as especially against the fore-mentioned , so generally against all sinfull : and for all gracious behaviour , the most free and impartial judgment they were to expect from god , according to his most free and impartial law . so speak ye , and so do , &c. in the words you have 1. a two-fold act . 1. obedience . 2. judgment . 2. a two-fold agent . 1. man of the act of obedience expressed , ye . 2. god of the act of judgment implied in both the act and rule of judgment . 3. mans act of obedience commanded , and that in two particulars . 1. words — speak . 2. works — do. — and these two us'd by a synecdoche of some specials for the whole general of obedience ; thoughts too here to be understood , as ver. 4th expressed . 4. as mans obedience commanded , so gods judgment foretold , shall be judged . 5. gods judgment foretold in form of a motive to mans obedience commanded in form of an exhortation , so speak , and so do , as they that shall be judged . 6. one and the same rule both of mans act of obedience , and gods act of judgment , the law of liberty : which phrase only is of necessity to be explain'd . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , by a common hebraism for {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} the law of freedom for the free law ; ( as to name no more examples ) eph 4.24 . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} for {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , holiness of truth , for true holiness . now where the genitive of the substantive , is by such an hebraism used for an adjective of quality , it is to express the ●minent measure of the quality ; and accordingly ye have in the fi●st chapter , vers. 25th of this epistle , this same phrase by this same apostle thus fil'd up , the perfect law of liberty or freedom , for the law of perfect freedom , or the perfectly free law ; a law so free that nothing is wanting to the freedom of it . so that here the law of liberty or freedom is as much as the most free law ; most free from all partial by-respects censur'd in the context . a most free and impartial rule of mans obedience , commanding obedience , and forbidding disobedience of one kind as well as another , to one person as well as another , and a most free and impartial rule of gods judgment of all persons whomsoever , according to whatsoever their obedience or disobedience . this interpretation however commentators vary , the phrase it self , scope , and context , the best rule of expounding necessarily bespeak . so that now the whole amounts to thus much : be you sure in your obedience to conform to the impartial law of god ; for god will be sure to conform to it in his judgment of you . and passing t●e several observations the severals of this text would furnish out ; the doctrine that taketh in the main strength of the whole , and therefore deserveth to be insisted on , is this : the same law of god is the rule of mans obedience , and of gods judgment . this i shall first prove by scripture , and then answer some quere● for the better clearing of it . for s●ripture-proof take one out of the old t●stament . isaiah 33.22 . the lord is our judg : the lord is our lawgi●●r . as judg he observes the same law for the rule of his judgment , which as lawgiver he appoints the rule of mans obedience . out of the new testament two or three proofs . joh. 12 48. the word that i have spoken , viz. as a rule of obedience now , the same shall judg him , viz. as a rule of judgment at the last day . rom. 2 16. in that day when god shall judg the secrets of men by jes●s christ , according to my gospel . god who delegates christ the judg , appoints the rule of judgment , the same as of mans obedience pauls gospel ; not any fifth gospel written by paul as some of the papists fondly imagine ; nor yet the gospel written by st luke as pauls amanuensis ; but the gospel , saith austin a , contain'd propheticis & apostolicis libris , in the books of the apostles and prophets ; called pavls , because he is the preacher of it , by much better right then i call james mine apostle , when preaching upon a t●xt of his epistle . rev. 20.12 . the last proof i shall offer , ye have a solemn representation made to john by vision of the last general assize , the throne set , books open'd , and dead judg'd . b origen and c ambrose interpret the books there said to be open'd , the books o● mens conscience , and gods omniscience . d austin and our old countrey-man bede , the bo●ks o● the old and new testament . why may not these antients divide the truth between them ? when it 's said the books were opened , i conceive both may be taken in . when it 's said t●e dead were judged out of those things which were written in the books according their works , i conceive both must be taken in , origens books , the books of mens conscience , and gods omniscience , as records of fact ; austins books , the books of the old and new testament , as records of law ; that in these ( as austin saies ) might be seen what laws god hath commanded to be observed in those . not as austin in that of life , how men had , or had not observed them . the point thus proved , i shall now in the second place make some queres for the better learning of the doctrine . quere i. how the same law of god is the rule of mans obedience , and gods judgment . answ. the same law in different respects . the rule of mans obedience in the precepts and prohibitions ; gods judgment , in the promises and thre●tnings . 1. the law of god is t●e rule of mans obedience in the precepts , and prohibitions : for , as where no law is , there is no transgression : no sins of commission , where no negative laws or prohibitions ; no sinnes of omission , where no affirmative laws or precepts : so where no law is , there 's no obedience neither ; man might , and must have been subject to god , as supreme lord without any laws ; he could not without laws be obedient to god , as rector . 2. the law of god is the rule of gods judgment in the promises and threatnings , annexed to the precepts and prohibitions : for as the precepts and prohibitions determine mans duty , and sinne , what shall be his duty , and what his sinne ; so the annexed promises and threatnings , determin gods rewards and punishments ; the promises , what shall be gods reward of mans duty the threatnings , what shall be mans demerit of gods punishment for his sin . so that had no promise been annexed to the precepts and prohibitions , man obeying both , had indeed been capable of reward , but god is not bound ●o conferre it : and had no threatning been annexed to the precepts and prohibitions , man disobeying both had indeed been capable of punishment , but not bound to suffer it , much less god to inflict it : for the very threatning annexed in the meer nature of a threatning , if it be not a denunciation also , b●nds not god to inflict , but man only to suffer if god inflict . i have been the more brief in this first quere , because to be more large in the second . quere ii. what law of god it is that is the rule of mans obedience and gods judgment ? answ. not one and the same law to all , but different according to the different state and condition of the persons to be ruled and judged by it ; yet so , that the same persons have still the same law , the rule of their obedience , and gods judgment . now there 's a three-fold different state and condition of persons to be rul'd and judged by the law of god : some 1. who never had christ , or not sufficiently discovered and proposed to them . 2. who having had christ sufficiently proposed to them , have not by saving faith received and clos'd with him . 3. who having had christ sufficiently proposed to them , have by saving faith received , and clos'd with him . 1. that law of god , which is the rule of their obedience to god , and gods judging of them , who never had christ , or not sufficiently discovered and proposed to them as the law of nature , under the formality of a covenant of works written in their hearts , if gentiles , or in tables also , if jews . none of these , whether j●ws or g●n●●les , are requir●d obedience according to the law of gospel-faith never pub●ished among them ; neither shall they be saved by that gospel-faith they never had in them , nor be condemn'd for want of that gospel-faith , never required of them in a mediatour , never , or not sufficiently held forth to them . for credibile sufficienter proposi●um ad sidem obligat : now christ ●s only sufficiently proposed , where himself the end for which , and termes , on which he is proposed are sufficiently made known : where this is not done , there 's no obligation of duty to believe , and therefore , there can be no obligation of guilt for not so believing . so that here the gospel can neither be the rule of mans obedience , nor of gods judgment . but 1. if they be gentiles , in this condition , their obedience or disobedience shall be scan'd according to the law of nature written in their hearts , ( and this law of nature written in mens hearts being as capable of sanction by promises and threats , as written in tables ) judgment accordingly passed on them . see both these rom. 2. v. 14. this law their rule of ●bedience : these having not the law , are a law unto themselves . ver. 12. this law gods rule of judgment ; they shall perish without law ; gods judgment of all such , a judgment of condemnation for their disobedience to the law . for though some of them may do ( as the apostle saith ) {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , the things contained in the law , he meaneth but some things ; and of those some things for the matter , which they do , contain'd in the law ; they do nothing for the manner and measure of doing required by the law . now d●ut. 6.25 . it shall be our righteousness if we observe to do all these commandements before the lord of god , as he hath commanded us ; not only all , commanded for matter , but as commanded for manner or measure , or no legall righteousness . and if it be here objected , that the same essentials of the moral creature , ( according to that of the apostle ) are a law unto themselves , are at once mans both rule and principle of obedience , and therefore , the one cannot be more perfect , or imperfect than the other ; and an imperfect principle may come up to perfect obedience to a rule equally imperfect with it self , and so gods judgment must be according : not to dispute the suppositum . answer 1. the condition of the law of nature , as it hath the super-added formality of a covenant of works is such , that being once broken it can never be performed by him that breaks it . the souls of just men made perf●ct , could not con●inue a moment in heaven , in the right of their own perfect inherent righteousness ; it being the righteousness of persons who had sin'd . 2. that the esse●tials of the moral creature , man , if they have the capacity of a law to be obeyed , as well as of a principle to obey ; yet in the capacity of a law , they are a necessary law , so requiring , that they cannot but require obedience ; but in the capacity of a principle they are a free principle , so able to yeeld , that they may not yeeld obedience : and , ( which is more ) never did any fallen man do what he was able by his essentials , as a principle of obedience to the same essentials as a law . 3. that man at first had not only natural principle enableing him to do the things for the matter contain'd in the law , but a supernatural principle also enabling to the manner of doing required by the law ; that by his fall his naturals were indeed but corrupted , and that perhaps equally , both as a law requiring of , and principle enabling to the things to be done for the matter ; but his supernaturals enabling to the gra●ious manner of doing were wholly lost . 4. that man hath indeed by sinne , as much blur'd , and blotted , rent , and razed his counterpart of the law , and covenant of works , as he hath vitiated , and weakened his natural principle ; but god hath kept his counterpart of the same law pure , and entire . now gods procedure in judgment will not be according to heathen mens rent , and razed , but his own pure and perfect counterpart of that law ; as a landlord will deal with a tenant in the like case of a lease . so that the infidel heathen , as he sinnes without , shall also be judged by god to perish without law i. e. doth not in sinning , shall not in judging come under the aggravation of the jews sinne against , or judgment by the law written in tables , no more then of the unbelieving christians sin against , or judgment by the gospel ; but shall be judged by , as he sinnes against the law written in his heart , and not only as in his heart corrupted and defaced , but as in the uncorrupt counterpart , the great judg keepeth by him . 2. whereof more briefly , if they be jews in the forementioned condition ( as 't is conceiv'd many of those people especially since the dispersion are ) their obedience , or disobedience shall be measur'd according to the line , and rule of the law written in tables , and gods proceeding in judgment with them accordingly . rom 2 12. as many as have sinned in the law , shall be judged by the law , 't is clearly spoken of the jew ; as many as have sin'd {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} in the law , commonly interpreted by {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} having the law : but i conceive there 's more , much more in the expression then so : {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , in the law , means in the midst of so much law , in the face and light of so pure and clear law : as many as have thus sin'd in the law shall be accordingly judged by the law , so much more severely , then the infidel heathen , as they have sin'd more hainously against a perfect transcript by the hand of that perfect counterpart in the hand of the great law-giver himself , never purchased to the infidel heathen : rom. 2.9 . tribulation and anguish upon every soul that doth evil , of the jew first , and also of the gentile . 2. those who have had christ , whether jews , or carnal christians , sufficiently proposed to them , but never by saving faith closed with him , have both law and gospel the rule of their obedience , and shall have of gods judgment . they have 1. both the law , and gospel the rule of their ob●dience . 1. the law and covenant of works , because they are under it ; under it as the law of nature , as men , that , binding all whether in , or out of christ to its obedience ; under it as the the covenant of works , as men out of christ , there being but two covenants of works , and grace between god and man , and every man under one of them , if not that of grace , the other of works : for , neither could mans first disobedience , nor succeeding disability thereupon bastle the rigorous demands of it 's precepts . 2. the gospel also is to such a rule of obedience requiring them to come under its new positives of faith and repentance . mar. 16.15 preach the gospel to every creature . 1.15 . repent and b●lieve the g●sp●l . whatsoever the law speaketh , it speaks to them that are under the law , but the gospel speaks to men that yet are not under , to come under it , and it 's their great sin that they do not obey . 2. such shall have both law , and gospel gods rule of judging them . 1. the law and covenant of works , because broken by them , gal. 3.10 . cursed is every one that continueth not in all things which are written in the book of the law to do them . for , if by disobeying the precept , they did not void the powers of the precept , much less of the threatning . nay , they could no otherwise forfeit the promise , and incur the threatning than by disobeying the precept . 2. the gospel and law of faith , because they finally reject it : now 't is more hainous finally to dis-believe the gospel , then first to disobey the law : and this aggravates as their sin against the gospel as the rule of their obedience , so also the wrath of the gospel against them , as the rule of gods judgment . john 13.22 . 3.18 , 19 3. those who have had christ sufficiently proposed to them , and by saving faith closed with him , have both the gospel , and law of nature , or moral law the rule of their obedience to god , and shall have both gods rule of judging of them . 1. they have them the rule of their obedience unto god . 1. the gospel requiring of them perseverance in obedience to it's positives . be thou faithfull unto death , rev. 2.10 . for as faith is required to the getting , so perseverance in faith to the keeping of a gospel title . 2. the moral law or law of nature requiring perseverance , and improvement in obedience to its morals . 1 cor. 15. ult. alwaies abounding in the work of the lord . and this their obedience not , to god as creatour only , but as redeemer also : not as it self the condition of the covenant of works , but as fruit , and evidence of the condition of the covenant of grace gospel faith , and the way to the poss●ssion of that inheritance gospel faith entitles to . 2. such shall have both these the rule of gods judging them . 1. the gospel in the promise of life annexed to its possitive of believing . for such is bo●h the wisdom and mercy of god , that that life man forfeited by transgressing a legal positive eating the forbidden fruit ; he should recover by obse●ving a gospel-positive faith in a med●atiour . faith in god is of the law moral ; faith in a mediatiour a gospel-positive ; now to this gospel-positive is annexed the promise of ete●nal life . act. 13.39 . — 16.31 , &c. and from this gospel-promise of life annexed to this gospel-precept of ●aith in a mediatour , hath faith the nature and notion of a title , and will accordingly be so judged by god . in relation to the precept it hath the nature of obedience , in relation to the promise the nature of a title . there is indeed in the nature of faith , as a receiving grace a peculiar aptitude above other graces to become a title , but that it actually becomes such is from the constitution , and ordination of god by his gospel-promise . as the rain-bow had its peculiar aptitude by nature above all other meteors to become the sign of that covenant god made with noah , no more to destroy the world by water ; that bow being alwaies placed by the pencil of the sun beames , in so thin a dewy cloude from which no great rain can ensue ; but that it should be a sign of no universal deluge ever after to ensue from the collection of any other clouds was meerly by divine institution . so faith of its own nature as a receiving grace had a special aptness above all other graces to become the condition of the covenant of grace ; but that it actually became such , the condition of the covenant of grace , and title to the grace of the covenant , was meerly by the free constitution of god . and his judiciary sentence will be according to his gospel-constitution . 2. and as god will judg here according to his promise , annexed to his positive precept of the gospel for faith in a mediatour ; so will he judg here too according to his promise , annexed to his moral precepts of the law for obedience , as fruit and evidence of that faith , rom. 8.1 . mat. 25.34 , 35 , &c. in the former place non-condemnation , and consequently salvation is made the priviledge both of those that are in christ by gospel-faith , and those that walk after the spirit , but principally of a state in christ by gospel-faith , of walking after the spirit as characteristical and signative of that state and condition . in the latter place you have the sentence passed accordingly : come ye bl●ssed o● my father . there 's their {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} adoption and sonship by chr●st , with the blessedness of that state : receive the kingdom : there 's the inheritance adjudged to them . for ye have done , so , and so that ( for ) not inferential of the moral meritoriousness of their works of mercy to christ and his members , but of their own membership by faith evidenced by their works of mercy to their fellow-members . thus largely , too largely i fear for the straitness of time though not for the weight of the things , of the second qu●re . a third quere should have been what manner of rul● of mans obedience , and gods judgment the law of god is ? and for answer i should have shewed that 't is 1. an obliging rule , for that 's the nature of a law , regula obligans , i think as just a definition of lex as most given . 1. an obliging rule in respect of mans obedience ; as a rule 't is an act of the divine understanding shewing man in what way he may walk as his convenience , regula indicat , as an obliging rule or law , 't is an act of the divine will requiring man to walk in that way as his duty , lex imperat . see both these in that one scripture , mich. 68. he hath shewed thee , oh man , what is good : there 's the proper act of the law of god simply as a rule ; and what doth the lord require of th●● , &c. there 's the proper act of the law of god as an obliging rule . 2. an obliging rule in respect of gods judgment , and there proportionably as a rule it shews what rewards god may apportion to mans obedience , or punishments to mans disobedie●ce . as an obliging rule or law i●'s obliging upon god to conferre such rewards upon mans obedience , and obliging , not upon god to inflict , but upon man to undergo such punishments upon his disobedience , if god infl●ct them on him . 2. the first obliging rule : as the will of god exerting or putting forth his natural pow●r or strength , is in natural things the first effici●nt cause ; so the will of god exerting , or putting forth his moral power or authority , is in moral things the first obliging rule : and as all things in nature act dependingly upon the will of god , putting forth his natural power as the first efficient cause : so in morality all laws oblige dependingly upon the will of god putting forth his moral power as the first obliging rule , whether in point of obedience or judgment . this , such judges and pleaders of law , as are makers of law too among us , have special reason to take notice of . therefore for the exellently both full and clear handling of this point and many singular corollaries drawn down from it , i shall referre them to petr. de alliaco the learn●d cardinal of cambray in princ. in prim sentent . in quaest. d●term . in vesper . ad calcem . 4. ●● senten . 3. a rule obliging in the first place to obedience , and in the second to judgment . first , obliging man to obedience , and secondly either upon his performance obliging god to conferre the rewards promised , or upon his non-performance obliging man to suffer ( if god inflict ) the punishments threatned . this clear , as in the nature of the things , so in the order of the words in the text ; so speak ye , and so do , as they that shall be judged . 4. a most freely and impartially obliging rule both in point of obedience and judgment . this too in the text : the law of liberty , and that in the explication sufficiently cleared , and we have not time , actum agere . these reasons also of the point had been given , would the time have permitted . 1. that there might be nothing of encouragement wanting to obedience , or of discouragement to disobedience , god would have the promises and threatnings as clear in the same law as a rule of judgment ; as the precepts and prohibitions are in it , as a rule of obedience , that man might obey having respect unto the recompence of the reward ; and perswaded by the terrours of the lord beware of disobedience . 2. that there might remain nothing of pretext or excuse to those who walking not according to the precepts and prohibitions of the law of god as a rule of obedience shall be sentenc●d according to the promises and threatnings of it as a rule of judgment to lose the rewards promised , and incurre the punishments threa●ned . they cannot say , if we had known , our disobedience should have been so sadly attended with the depriving of so great rewards , and inflicting of so great punishments , we would have obeyed , when the promises and threatnings are as clear in the same law of god as the precepts and prohibi●ions . 3. because , as man cannot obey or disobey god but in relation to a law ; so neither can god judg man , obeying , or disobeying , but in relation to a law . as man ( as before you heard ) might have been subject to god as supreme lord , not obedient to him as rectour without law , so proportionably god as supreme lord could have disposed of ; he could not as rectour judg man without law , nor judg him according to any other law , than what 's the rule of his obedience : for , this would be no more judiciary then , but as much arbitrary as the other . the point now sufficiently clear'd and confirm'd , i come at length to vse and application . 1. to all in general . 1. information . 1. the power of god is the supreme power of the world . as legislation making of laws to determine the civil obedience , and disobedience , rewards and punishments of all the people in a nation , is an act of the supreme power ( wheresoever it reside ) of the nation : so to make laws to determine the spiritual obedience , and disobedience , and the temporal , spiritual , and eternal rewards and pu●ishments of all the people in the world , must needs be an act of the supreme power of the world . 2. how far the majesty of heaven is from aff●cting the exercise of an arbitrary power . the great potentates of the earth have it not , and would usurpe it . the great , and only po●entate of heaven and earth hath it , and will not use it , except in case of extraordinary concernment to his own glory , and his subjects good , and then as little , and with as speedy return as may be to methode , or course of law again , as in the case of bringing in the new covenant by christ . according to his absolute power and dominion he might ( had he pleased ) have disposed of , as he pleased his whole moral creature ; all man-kind to their last end of weale or woe , meerly as lord without any law ; but he was pleased to become law-giver , and according to his laws given , will dispose of them to their last end as rectour . 3. god will never judg the best works of meer men meritorious : god judgeth according to the nature of the things to be judged , and according to his own word the rule of judgment . that good works merit of their own nature , not many at this day of the papists will affirm ; and as such ( as you heard in the doctrine ) they are only capable of , do not merit a reward . that they merit by any ordination of god in his word , all the papists together , will never be able to prove . he hath indeed ordained that the least good work , even a cup of cold water to a disciple , shall have a reward : not that the greatest , even fire and faggot for the master christ himself , should merit a reward . he hath ordained christ should merit ; they should have , not deserve a reward . 4. in evil works , sinne and guilt differ . as the former noted against the papist , so this against the antinomian , who will have sinne and guilt to be one and the same thing , and tells us we can never have sound peace , till we see the filth and power , as well as the guilt of sinne , charged upon christ : but the difference between them i make out from the doctrine thus : 1. they have relation to the law under different considerations ; sinne as the rule of obedience , guilt as the rule of judgment 2. they have relation to different parts of the law ; sin to the precepts , and prohibitions , as a rule of obedience ; guilt to the threatnings as a rule of judgment . 3. they have different kinds of relation to the different parts of the law under those different considerations ; sinne , a relation of deformity to the precepts and prohibitions , whereto it is contrary as a rule of obedience to the precept ( if a sinne of omission , ) to the prohibition ( if of commission . ) guilt a relation of conformity , to the threatning whereto it 's agreeable , as a rule of judgment : for 't is agreeable to the threatning that sinne should deserve death in all , bind over unto death in all out of christ ; now divines make that desert of punishment the habitual , as this obligation unto it , the actual guilt of sinne . — so much for information . i come now to 2. several sorts of inference according to the several conditions of people mentioned in the doctrine . and 1. it calls for pity and prayer for those whether gentiles , or jews that never had christ , or not sufficiently proposed to them . there being none other name under heaven given amongst men , whereby they must be saved , neither is there salvation in any other , act 4 12. that if gentiles , god would make christ a light , yet further to enlighten them : that the people which sit in darkness , and see no light , may have this great light shining unto them , that the fulness of the gentiles may be so brought in . that if jews , god that first perswaded japhet to dwell in the tents of sem , would now perswade sem to dwell in the tents of japhet , that the children of israel may return and seek the lord their god , and david ( the sonne of david ) their king in these letter daies ; look unto him , whom they have pierced , and mourn , that his blood be no longer upon them , and their children , only , in the guilt of it ; but for the pardoning of the guilt of that blood shed , and all other their sinnes . this should we say for our elder sister , which hath no breasts in the day she is to be spoken for ; that the scatterings of the jews may be recollected and grafted in again . that whether gentiles , or jews , they may not have the law , and covenant of works gods rule of judging of them , with a judgment of condemnation , but the gospel , and covenant of grace , his rule of judging them with the judgment of absolution and salvation . 2. it should speak terrour to those amongst us that will not obey the gospel-positive of faith enjoyned them , but will reject christ in the gospel sufficiently proposed to them . 1. they shall be judged with the infidel heathen for transgressing the law of works , written in their hearts , have the way to the tree of life armed against them with a flaming sword in the hand of an angel waving this way , and that way . 2. above these , with the unbeliving jew for transgressing the law written in tables ; have that law executed upon them with more of thunder , and lightning , and blackness , and darkness , and tempest , than it was promulgate and publish't with : for if so terrible were the promulgation , that moses himself , who was out of the reach and gun-shot of the curse of this law , exceedingly feared , and quaked , how much more dismall , and dreadfull must be the execution of it upon those souls that fall under it ? 3. above both these , with that wrath peculiar to them for rejecting christ so sufficiently , so much , and often , plainly , and powerfully proposed to , and pressed upon them in the preaching of the gospel . heb. 2.2 , 3. — 12.25 . wrath so great , that to describe it , peter is put to the like artifice , as the painter , who being to draw so mournfull a face , as his art could not reach to the exact limning of , drew a shadow before it , giving leave to mens fancies to help out , and supply , where his art was defective , and came short : so the apostle , 1 pet. 4.17 . draws ( as 't were ) the curtain of this interogation , ( what shall be the end of them that obey not the gospel of god ? ) before the hideous and deformed face of hell , giving men leave to lose themselves ( as himself seems to be lost ) in the consideration of the thick darkness of it . for as the love of god , eph. 3.19 . so his wrath too , passeth knowledg . as neither eye hath seen , nor ear heard , neither have entred into the heart of man , the good things which god hath prepar'd for them that love him ; none can conceive heaven so heavenly , as indeed they will find it , who shall be received into those glorious mansions : so neither hath eye seen , nor ear heard , neither have entred into the heart of man the evil things , which god hath prepar'd for those that do not love him , and obey his gospel : none can conceive hell so hellish , as indeed they will find it , when thrust into that utter darkness . now if the lord should by this thunder clap please to awaken any among us out of their carnal security , after christ , and faith , let them take this one ( since the time will give leave but for one ) special direction : let them attend upon a gospel-ministry , be much in hearing and meditating upon gospel-pomises ; such must not think to bring faith to , but suck it from a promise : the same gospel-promise that conveyes from god the nature of a title to faith , conveyes also the grace of faith unto men : that ( saith the apostle , rom. 10.8 . is the word of faith , which we preach : not only as the object of faith about which it is conversant , or precept of faith by which it is commanded , but also the instrumental meanes of faith by which it is conveyed . 3. and lastly , it speaks to those that by gospel-faith have closed with christ ; first , it speaks comfort to such : your faith though in relation to the precept as a rule of duty , a legally imperfect obedience , is in relation to the promise as a rule of judgment , a gospel perfect title , your perfect title to the righteousness of christ ; your perfect title to heaven and glory . there is no condemnation to you being in him , rom. 8.1 . shall be none to you , believing on him , joh. 5.24 . he had nothing of his own to be condemned for ; nothing of his own to be acquitted from ; he was condemned to pay your debt , as your surety , and therefore you cannot be condemned too . he was acquitted from it , being paid as your surety , and therefore you cannot but be acquitted ●oo . he appear'd the first time with your sinne to h●s condemnation ; he shall appear the second t●me without your sinne unto your salvat●on , heb. 9 28. when he shall be revealed in flaming fi●e taking vengeance on them that know not god , and that obey not the gospel of our lord jesus ●hrist , he shall come to be glorified in his saints , and to be admired in all you that believe , 2 thes. 1.8 , 10. when others trembling , and confounded shall hear , depart ye cursed into ●verlasting fire , prepared for the devil and his angels , according to the threatning ; you rejoycing , and exceeding glad shall hear , come ye blessed of my father , inherit the kingdom prepared for you from the foundation of the world , according to p●omise . secondly , it bespeaks obedience from such : too too many that pretend highest to faith , and christ , do not so speak and so do ; but carry it , as if they had one law for the rule of their obedience , and expected another for the rule of gods judgment ; nay , so divide in their obedience , as if they had one law to speak , and an other to do by , one rule of talking , and anoth●r rule of wa●king , talk of the light of grace , but walk below the light of nature ; speak according to the gospel the law of faith , but do after their own hearts lust . do you so speak , and so do , and so think you ought , so to speak , and so to do , as those that shall be judged , &c. think not that christ hath redeem'd you from the guilt of your sinnes , that ye should wallow in the filth , and serve in the power of your sinnes : think not that those sins should be with you upon the th●one , that were with christ upon the cross ; that those sins should be matter of carnal and sensual pleasure , and satisfaction to you , that were of so much soul-trouble and sorrow unto jesus christ , when but imputed to him ; when really inherent in your souls . think , ye ought no longer study how to gratifie , and how to satisfie , but how to mortifie , and how to crucifie them . think nothing less then the very death of those sinnes ought to satisfie you , which nothing less would satisfie , and satisfie for , than the precious death of the lord jesus christ . think , and know that same god , by that same law whereby he hath requir'd your faith , hath requir'd your obedience , as fruit and evidence of your ●aith ; that you should justifie that faith by your works , which justifieth you without your works : that being by f●i●h heirs of the kingdom , ye ought by obedience to walk as hei●s , and towards the possession of it . here are many can tell you ye must go a right way to take possession according to a right title . so speak ye , &c. walk every way worthy your freedom from the thr●atned penalties , and your title to the promised rewards of this law . i had prepar●d nothing for my brethren of the ministry , conceiving none would have been present on this preparation day to the sabboth ; but seeing , beyond expectation , the faces of so very many here , i shall by gods assistance adventure a word to them also . if it be so , that the same law of god is the rule of mans obedience and gods judgment , let ministers preach it as such — some on the one hand , preach the law of god as the rule of mans obedience , too little , and too much as the rule of gods judgment . and even here some the promised rewards of it , the bliss , and happiness of heaven , and glory too much , and the threatned punishments of it the misery , and wretchedness of death and hell too little : others the punishments threatned too much , and the rewards promised too little . some on the other hand preach the law of god too little as the rule of gods judgment , and too much as the rule of mans obedience : and here some moral precepts too much , and gospel-positives too little , and thereupon hear legall preachers ; others moral-precepts too little , and gospel-positives too much , and thereupon hear antinomian preachers . satan hath two great designes afoot at this day ; the one to dash in pieces moral-precepts against gospel-positives , and this he is carrying on by the an●inomian ; the other to dash in pieces gospel-positives against moral-precepts , and this he is carrying on by the papist and socinian . the ministers of the gospel must set themselves to counterwork satan ●n both these designes . and this shall we do if we preach the law of god , as the rule of mans obed●ence and gods judgment in their due measure , one as well as another , and in their sweet agreement one with another , and especially if we take heed to square our own lives accordingly . so to speak , and so to do . special application to the special occasion : let it be so with the gods on earth too : let the same law of man be the rule of mens civil obedience , and the civil magistrates judgment . let not men be required obedience according to law , and proceeded with in judgment according to will and pleasure , besides , and against law . deut. 16.19 . thou shalt not wrest judgment . the word in the original rendred wrest , is sometimes used in a general sense for retching or stretching of a thing into another posture then it was in . josh 8 ▪ 26. joshuah dr●w not his hand back {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} wherewith he str●tched , or which he stretched out with the spear : and so it signifies not only the wrenching or wresting of a straight thing to make it crooked , but of a crooked thing also to make it straight . and this general sense hath it's special application to judges respectively , whether of law or fact : of law thus : let them not in judgment make the law a lesbian rule , wrest , or crook the straight rule of the law , to give countenance to crooked , or discountenance to straight matters of fact ; for this would be their wresting of judgment , wresting of the law their rule of judgment . for judges of fact thus : let not them strengthen crooked matters of fact to receive countenance , or crook straight matters of fact to receive discountenance from the straight rul● of the law : for this is their wresting of judgment . sometimes the word is taken in special sense , for bending or bowing of straight thing to make it crooked , as gen. 49.15 . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} he bowed his shoulder . and more especially , ezek. 7.10 where {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} a word of the same original rendred by our translators , the rod : schyndler renders inclinans , and interprets detorquens , perve●tens rectum , the wrester or perverter of that which is right flourished ; an interpretation much countenanced by that which follows , ver. 11. violence is risen up {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} into a rod of wickedness . and in this special sense hath its general application to judges both of law and fact : let neither the one , nor the other , call evil good , or good evil , a distorted or crooked , straight , or straight crooked : for that 's no less a crooked judgment , that judgeth crooked straight , than that which ju●geth straight crooked : because no less contrary to the law the right rule , which as it discovers straight or crooked , right or wrong matter of fact as a rule of obedience , so as a rule of judgment it discovers straigh● or crooked , right or wrong judgment . for , rectum est in●ex sui & o●liqui . nor is their judgment thus wrested only , if they judg straight crooked , or crooked straight , but also ( though in less measure ) if they judg streight less streight ; or crooked less crooked then evidence of law , and fact discover it to be . this being contrary to the law as the rule of judgment for measure and degree , as the other for nature and kinds : and therefore it follows vers. 20. that which is altogether just shalt thou do . in the original justice , justice : justice for measure and degree , as well as kind and nature . for motives to this dvty . consider 1. your office — a judg is to be the soul of the law ; and therefore heard among the romanes , jus animatum , animated right , and among the grecians , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} living law . gods own law , is but a dead rule without gods enlivening of it : much more are mens laws , without these earthly gods quickning of them . some talk much of one other law to be made for execution of all the rest . but who then shall look to the execution of that ? execution is indeed the life of the law , but the judg must be the soul to impart it ; and that according to the mind of the l●w , otherwise he doth not execute law , but lust , not quicken , but kill it , is the executioner of the law , as the hangman of the thief . good laws are the foundations of a nation , as many interpret those places , psal. 11.3 . — 82 ▪ 5. good judges are the corner-stones in those foundations , as most interpret that place zech. 10.4 . now the corner-stone doth not undermine and weaken , but stablish and strengthen the foundation ; doth not as those corrupt judges , psal. 82. put these foundations out of , but into course , keeps them upon their legs , and makes them run also : currat lex . 2. your dialect . you stile your orders of court-rules : i suppose not only nor so much because regulae regulantes , rules ruling of men , as because regulae regulatae , rules ruled by law ; as in the like phraseology you call judged cases ruled cases ; one would think in imitation of god , who stiles his laws judgments , because rules of his judgment . now remember the text : so speak ye , and so do . let your deeds answer your dialect . 3. what god hath done for our laws . men have thrust sore at them that they might fall , but god hath holden them up , made them know a protector in more senses than one , own his highness not only a protector of the people , but of themselves , the laws too . a protector of the p●ople of the land , according to the laws of the land . god hath by him delivered them from a storm , a very whirle wind of giddy men . let not our judges suffer them to lay becalmed , and wind-bound for want of due execution . the fourth and fifth motive i shall off●r out of act. 23.3 . god shall smite thee thou whited wall : for sittest thou to judg me after the law , and commandest me to be smitten contrary to the law ? 4. 't is arch-hypocrisie to do otherwise . — thou whited-wall , &c. the periphrasis and circumlocution of an hypocrite , as you will see , if you compare it with the like expressions , ezek 13.10 . mat. 23.37 . and seneca , as if he had commented upon the words ; miseri sunt , sordidi , turpes , & ad similitudi●em parietum suorum extrinsecus culti . as to pretend to carry all in sacred affaires according to the law of god , and do the contrary is church-hypocrisie ; so to pretend to carry all in civil affaires according to the law of the land , and do the contrary is state-hypocrisie ; hypocrisie towards the law , like that of judas towards christ kissing and crucifying together : for as execution is the life , so non-execution the death ; contrary-execution the most shamefull , and reproachfull death of the law , even the crucifying of it . 5. god will require a severe acoount of it . god shall smite thee thou whited wall . thinkest thou oh man ! that thus corruptly judgest , that thou shalt escape the righteous judgment of god ? no , god will judg those according to his rule of judgment , his law , that judg others contrary to their rule of judgment , the law of the land : and that more severely then the open professed tyrants of the world , that carry all according to their own will and pleasure , and pretend no oth●r . for as in church-hypocrites , their dissembled sanctity is double sin : so in such state-hypocrites , their dissembled justice is doubled injustice , against both men and laws , and shall accordingly be dealt with by god , job . 36.13 . the hypocrites in heart ( of what kind soever ) heap up wrath . those that corrupt wholsome laws into poison , turn judgment and righteousness into worme-wood , gall , and hemlock , amos 5 7. — 6 12. the lord will feed them with worme-wood , and give them water of gall to drink , jer. 9 15. so speak ye therefore , and so do in your judgment , as those that shall be judged by the perfect law of liberty . 6. and lastly , if judges do not according to the law as a rule of judgment , 't is to be fear'd , people will not long do according to the law as a rule of obedience : partly because of their example , as ill humours fall down from the head , and corrupt the body . no wonder if people think they may be as bold with their part of the law , as rulers are with theirs : if these call wrong right , and right wrong , they even teach these to call evil good , and good evil , vice vertue , and vertue vice . qualis praetor , was one of the three p● whereby charles the fifth would judg , qualis res publica : and partly because in law promises of rewards , and threats of penalties the rule of judgment are mound and fence to precepts of duty , and prohibitions of sins the rule of obedience , and if those be thrown down , no marvell if these be trampled and trod under foot . some few ( may be ) will do well , virtutis amore , though vertue be not rewarded , nay though it be punish't and vice rewarded : but very few , none in comparison , mic. 7.1 , 2 , 3. directions : if judges would now exactly observe the law as their rule of judgment , let them 1. be well skil'd in the laws . psal. 2.10 be inst●ucted or learned , ye judges of the earth . the great judg of heaven and earth , is without study and learning exactly skil'd in his law , for observance of it as his rule of judgment . that the judges of the earth may observe the law of the land as their rule of judgment , they must by instruction and study be learned in it . and therefore austin saies , ignorantia judicis ●st calamitas innocentis . a private mans ignorance is his private blemish and mischief , but a judges ignorance , a publick calamity . an artificer cannot work by a rule , nor a pilot sail by a compass , he doth not understand : no more can a judg proceed in judicature according to a law he is not skil'd in . besides , how will a cunning lawyer work upon such an advantage ? what false glosses wil he put upon truth of law ? what a mist of subtilty will he cast before the eyes of an ignorant though otherwise well-meaning judg ? so that if he that with job , job 29.15 . should be eyes to the blind , be himself blind also , they are both like to fall into the ditch . 2. vse able and diligent disquisition of the cause . deut. 19 17 , 18. both the men between whom the controversie is shall stand befo●e the lord ; and the judges shall make diligent inquisition . judges must know the cause , as well as the l●w before they can judg the cause according to law . for this cause were counsellors and ( as some say ) judges of old called cognitores , knowers ( as prophets ) videntes , seers , 2 chron. 33.18 . and seneca in his tragedes bids si judicas cognosce : before you judg , know what ye judg . truth in these cases , whether civil or criminal ( as in natural inquiries ) in alto latet involuta , lies often deep and dark and requires skill and paines to boy it up , and bring it to light : insomuch that the wisest judges , and some are excellent crafts-masters at it , as we need not go farre for a president , are sometimes put to use every clew they have to wind themselves out of a labyrinth of subtilty — perplexed iniquity . put questions , poize testimonies , weigh reasons , compare evidenc●s , consider circumstances and the like : in such a case 't was , that judg job saies , job . 29 16. the cause he knew not , he searcht out . the cause he knew not at first sight , he searcht into it till he searcht it out : and so must all that will judg of a cause according to law . 3. make a right application of the fact to the law , or rather of the law to the fact . this holds as in foro interiori , in the private judgment of conscience , so in foro exteriori , in the publique judgment of authority too . an artificer that understands both his rule and his work , may work wrong by a right rule if he make not a right application of his rule to his work . so a judg who is never so well acquainted with the law the rule of judgment , and with the cause too , the matter to be judg'd , may yet erre in judgment , if he make not a due application of the rule of law to the matter of fact ; as david saies those his judges did , psal. 58.2 . 't is to be supposed they knew both the law and his actions well enough : for he chargeth them not with ignorance of either , and they seem to make application of the known law to his known actions ; for he sets them forth with the emblems of justice ; scales in their hands , and the application , and use of these scales too : for he sayes they weighed , but not right . they weighed violence , or wrong in their hands else they could never have burden'd his just actions with the censure of rebellion , and treason . 4. beware of partiality : make your law as god his a law of liberty , and judg according to yours , as god to his , freely and without respect of persons , levit. 19.15 . thou shalt not respect the person of the poor , nor honour the person of the mighty , and this , that thou do no vnrighteousnesse in judgment . private persons and publick persons , out of the publick case of iudicature may and ought respect persons , according to their ranks and conditions , ver. 32 of that chap. and the quakers ( who reject the fifth , as the papist the second commandement out of the dialogue ) may as soon prove poor out of the case of judicature , not to be respected with the respect of pity and charity , as others not with civil honour and regard according to their respective ranks and conditions . but in the case of judicature there 's not any respect to be had to any person upon any foreign or by consideration of rich , or poor , high , or low , small , or great , mean , or mighty , nor indeed godly , or vngodly ; but onely according to the intrinsecall merits of the cause , and that least there be unrighteousnes in judgment ; persons regarded more then laws . as an artificer that staring and gazing on the persons he works for , when his eye should be upon his rule , and work is like to fault in his work ; so a judg that 's partiall in his respect to the persons to be judg'd is in the ready way to erre in judgment , and be partiall in the law : mat. 2.9 . where the margin renders , ye have accepted faces , or persons , the text reads ye have been partiall in the law . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} . 5. beware of gifts . qui accipit beneficium v●ndit libertatem . he that receiveth a gift sels his liberty . seneca makes it a generall rule . it ha's ( if anywhere ) its special truth and force in our case . the judg that receiveth a gift sels his own liberty , and the laws together ; the liberty of his eyes to see , and the liberty of his tongue to sentence according to the liberty of the law . deut. 16.19 . a gift doth blind the eyes of the wise , and pervert the words of the righteous though otherwise a wise judg , 't will so blind his eyes , as to disenable him look either into rule or cause ; and though otherwise a righteous judg , so pervert his words , as to disenable him pass sentence accordingly , if he could look into them . but though his private personal judgment were according to rule , his publique authoritative sentence would be against it . 6. take heed of passion ; that they neither bring their heates with them to , nor heat themselves on the bench . gifts will make a wise judg blind ; anger will make him mad , ira furor bre●is est . now a mad man is little less like to walk according to rule then a blind ; prov. 14.17 . he that is soon angry deals foolishly : that therefore of mine apostle , chap. 1. vers. ●9 . is good counsell hereto ; be swift to hear , slow to speak , slow to wrath : and for good reason to our purpose , vers. 20. for the wrath of man worketh not the righteousness of god . the judg that is ( as joseph saies herod was ) irae servus , slave to his anger , will be ( as he saith herod was ) legis dominus lord of the law ; and a tyrannicall lord too ; rule it , not be rul'd by it . 7. and lastly , and above all the rest , get hearts cast into the mould and frame of the law of god . this will make the gods on the earth be and do like the god of heaven : because like his law that 's so like him as coming out of his mouth . greatness and goodness cannot be severed in god ; they may be , and too often are in men . but when they are not only psal. 82.6 . children of the most high bearing the image of his power and authority , but of the most holy too , bearing the image of his purity and holiness , they will then be sure in their measures to act like the most high and holy one ; more especially get hearts awed with the fear , and affected with the love of the law of god , those two qualifications of jethro's judges , exod. 18.21 . he that feareth god will fear , if ignorant of the laws to fill up a place he doth not suffice for ; and if skil'd in them , he will make diligent inquisition into the fact , a right application of the rule to it , beware of partiality , gifts , and passion . therefore is this jehoshaphats first direction to his judges 2 ch●on . 19.7 . let the fear of the lord be upon you . and the unjust judg his not regarding men ( what he did to them ) had the want of the fear of god at the bottom of it , luk. 18.2 . and for love of the law of god , it will first hold mens hearts close to the law of god , and then to the law of the land , so farre as according to the law of god : and further , i neither exhort , nor direct . to the jurors , who have here for some years past been recovering in their credit ; that they may do so still , one word more than what hath been said to them : do not any one of you exod. 23.2 . follow a multitude , much less a multitude of you follow some one crafty companion to do evil ; least of all lead in it . so speak ye , and especially so swear , and do as they that shall be judged . to the council learned in the law . if i understand your work , 't is only so to open , and argue your clyents cause , that judges both of law and fact may be able to make out a right judgment of it . speak not ye in a cause to pervert judgment , exo. 23.2 . go not about to get the opinion of good lawyers by corrupting good laws : consider , you plead not only before earthly gods , and those wise as an angel of god , but before the god of heaven too , who is with them in the judgment . dare not be unrighteous advocates for any clyent before him on earth , before whom you need a righteous advocate in heaven , less able to plead your own cause there , than the simplest of your clyents his here . so speak ye , and so do , that the storm fall not yet upon the lawyers , that 's now off from the laws . to the witnesses . do not you exod. 23.1 . raise a false report ; or if raised by others , do not bear it in false witness , to prevent or pervert right judgment . jesus christ the faithfull and true witness , will be now witness , and hereafter judg of your fals-witness , and make you true witnesses against your selves , who are fals-witnesses for , or against others . so speak ye , and all others not spoken to , and so do , at this assize , as they that at the general assize shall be judged by the law of liberty . errata . page 4. l. 13. r. according to . ib. 21. r. better clearing . p. 5. l. 26. r. i● the p 6. l. 30. r. our god . ib. l. 32. r. manner or . p. 8. l. 23. r. never v●uchsafed . p. 19. l. 3. r. matter of . p. 21. l. 3. for {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} finis . notes, typically marginal, from the original text notes for div a42733e-860 coherence . division . e●plica●ion . a brief paraphrase . doctrine . confirmation . a aug. lib. 20. de ●●v . 〈◊〉 c●p . 14. b orig cap. 14. ad rom. c ambr. in psal 1 d aust ubi supra & hom. 17. in apoc. prope med. amplification . quere i. answ. quere ii. answ. object . answ. 1. reas. vuse . 1. information . 4 cor. 2.9 . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} motiv . directions . whence their dayes cannot be expected to be long in the land . the opinion of the judges upon the clause in the act of 22 & 23 car. ii. regis cap. 9. for giving no more costs than damages, delivered at serjeants-inn in chancery-lane, london, in trinity term. anno 23. ejusdem regis 1688 approx. 5 kb of xml-encoded text transcribed from 1 1-bit group-iv tiff page image. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase 1, no. a53384) transcribed from: (early english books online ; image set 34286) images scanned from microfilm: (early english books, 1641-1700 ; 1921:1) the opinion of the judges upon the clause in the act of 22 & 23 car. ii. regis cap. 9. for giving no more costs than damages, delivered at serjeants-inn in chancery-lane, london, in trinity term. anno 23. ejusdem regis hale, matthew, sir, 1609-1676. 1 sheet ([1] p.) printed for william canning, at his shop adjoyning to the temple cloysters, london : 1688. signed and dated at end: trinity term mdclxxi. matthew hale [and 11 others] march 31. 1688. this may be printed. r. wright. reproduction of the originals in the british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to 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characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -england -early works to 1800. law reform -great britain -early works to 1800. 2008-03 tcp assigned for keying and markup 2008-05 spi global keyed and coded from proquest page images 2008-06 john pas sampled and proofread 2008-06 john pas text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion the opinion of the jvdges upon the clause in the act of 22 & 23 car. ii. regis cap. 9. for giving no more costs than damages , delivered at serjeants-inn in chancery-lane , london , in trinity term. anno 23. ejusdem regis . the clause in the act. and for prevention of trivial and vexatious suits in law , whereby many good subjects of this realm have been and are daily undone contrary to the intention of an act made in the 43 year of queen eliz. for avoiding of infinite numbers of small and trivial suits commenced in the courts at westminster . be it farther enacted for making the said law effectual , that from and after the first of may aforesaid , in all actions of trespass , assault and battery and other personal actions wherein the iudge at the trial of the cause shall not find and certifie under his hand upon the back of the record , that an assault and battery was sufficiently proved by the plaintiff against the defendant , or that the freehold or title of the land mentioned in the plaintiffs declaration was chiefly in question , the plaintiff in such action , in case the iury shall find the damages to be under the value of forty shillings , shall not recover or obtain more costs of suit than the damages so found shall amount unto . and if any more costs in any such action shall be awarded , the iudgement shall be void , and the defendant is hereby acquitted of and from the same , and may have his action against the plaintiff for such vexatious suits , and recover his damages and costs of such his suit in any of the said courts of record . the jvdges opinion . i. that actions of debt , are not within this clause . ii. that no action upon the case sur assumpsit , account , or other personal actions ( other than for assault and battery or voluntary trespass , where the title comes not , nor cannot come in question ) is within this clause . iii. that the judge is bound to certifie on actions of assault and battery where the jury shall find damages to ten shillings or less , that the battery is sufficiently proved , otherwise the plaintiff is to have no more costs than damages . iv. that if the defendant pleads son assault demesne , and the jury find it ad dampnum querentis , the certificate must be , that the jury find by the defendants plea , that the battery is admitted and sufficiently proved . v. that if an assault be proved , and no battery , there needs no certificate . vi. that in case of a certificate , where it is requisite , it must be indorsed on the pannel or nomina jur ' with the judges hand to it immediately after the trial , and the certificate is to be , that the battery is fully proved . vii . that the clause extends onely , where damages are onely to be recovered , and not in debt , because debt is not within the words : ( although the debt be under forty shillings , it is all one , it needs no certificate . ) viii . that in all actions for a common , a way , a nusance , lights , water-courses , &c. the judges may certifie , because the freehold may come in question , although it be not mentioned in the declaration . ix . that the clause extends not to judgements by default , or writs of inquiry of damages . trinity term. mdclxxi . matthew hale . tho. twysden . ri. raynsford . will. moreton . io. vaughan . tho. tyrrill . io. archer . will. wylde . edw. turner . hugh wyndham . chr. turner . t. littleton . march 31. 1688. this may be printed . r. wright . london , printed for william canning , at his shop adjoyning to the temple cloysters . 1688. a collection of such of the orders heretofore used in chauncery, with such alterations & additions thereunto, as the right honorable the lords commissioners for the great seal of england, by and with the advice and assistance of the honorable the master of the rolls, have thought fit at present (in order to a further reformation now under their lordships consideration) to ordain and publish, for reforming of several abuses in the said court, preventing multiplicity of suits, motions, and unnecessary charge to the suitors, and for their more expeditious and certain course for relief. england and wales. court of chancery. this text is an enriched version of the tcp digital transcription a80116 of text r209283 in the english short title catalog (thomason e1377_4). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 86 kb of xml-encoded text transcribed from 52 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a80116 wing c5195 thomason e1377_4 estc r209283 99858765 99858765 110823 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a80116) transcribed from: (early english books online ; image set 110823) images scanned from microfilm: (thomason tracts ; 180:e1377[4]) a collection of such of the orders heretofore used in chauncery, with such alterations & additions thereunto, as the right honorable the lords commissioners for the great seal of england, by and with the advice and assistance of the honorable the master of the rolls, have thought fit at present (in order to a further reformation now under their lordships consideration) to ordain and publish, for reforming of several abuses in the said court, preventing multiplicity of suits, motions, and unnecessary charge to the suitors, and for their more expeditious and certain course for relief. england and wales. court of chancery. lenthall, william, 1591-1662. keble, richard, fl. 1650. whitlocke, bulstrode, 1605-1675 or 6. 92, [10] p. printed by john macock for francis tyton, and are to be sold at his shop at the three daggers neer the inner-temple, fleetstreet, london : 1649. with an initial imprimatur leaf. marginal notes. signed on p. [93]: b. whitelock c.s.[,] rich. keble c.s.[,] w. lenthall master of the roles. annotation on thomason copy: "nouemb: 7". reproduction of the original in the british library. eng england and wales. -court of chancery -early works to 1800. equity pleading and procedure -england -early works to 1800. law reform -great britain -early works to 1800. a80116 r209283 (thomason e1377_4). civilwar no a collection of such of the orders heretofore used in chauncery,: with such alterations & additions thereunto, as the right honorable the l england and wales. court of chancery. 1649 13401 11 0 0 0 0 0 8 b the rate of 8 defects per 10,000 words puts this text in the b category of texts with fewer than 10 defects per 10,000 words. 2007-02 tcp assigned for keying and markup 2007-02 apex covantage keyed and coded from proquest page images 2007-03 mona logarbo sampled and proofread 2007-03 mona logarbo text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion a collection of such of the orders heretofore used in chavncery , with such alterations & additions thereunto , as the right honorable the lords commissioners for the great seal of england , by and with the advice and assistance of the honorable the master of the rolls , have thought fit at present ( in order to a further reformation now under their lordships consideration ) to ordain and publish , for reforming of several abuses in the said court , preventing multiplicity of suits , motions , and unnecessary charge to the suitors , and for their more expeditious and certain course for relief . london , printed by john macock for francis tyton , and are to be sold at his shop at the three daggers neer the inner-temple , fleet street . 1649. imprimatur , hen : scobell , cleric . parliament . pleadings . that no councellor do put his hand to any bill , answer , or other pleading , unless it be drawn , or at least perused by himself in the paper-draught , before it be engrossed , ( which they shall do well , for their own discharge , to sign also after perusal . ) and councell are to take care that the same be not stuft with repetitions of deeds , writings , or records in haec verba ; but the effect and substance of so much of them only , as is pertinent and material to be set down , and that in brief terms , without long and needless traverses of points not traversable , tautologies , multiplication of words , or other impertinencies , occasioning needless prolixity , to the end the ancient brevity , and succinctness in bills , and other pleadings , may be restored and observed . much less may councel incert therein any matter meerly criminous or scandalous under the penalty of good costs to be laid on such councel , and payd to the party grieved before such councel be heard in court . pleas & demurrers . forasmuch as the defendant being served with process to answer , may by advice of councel , upon sight of the bill only , be enabled to demur there unto , if there be cause ; or may by like advice be enabled to put in any just plea , which he hath in disability of the person of the plaintiff , or to the jurisdiction of the court : it is therefore ordered , that such demurrer , or such plea in disability , or to the jurisdiction of the court under the hand of councel learned , shall be received and filed , although the defendant do not deliver the same in person , or by commission ; and therefore if the defendant shall pray a commission , and thereby return a demurrer only , or only such plea which shall be afterwards over-ruled , the defendant shall pay five marks costs ; and although it be allowed , the defendant shall have no costs in respect of the plaintiffs needless trouble , occasioned by such commission . no demurrer shall be said to be received , or to be of effect in court , until the same be filed to the bill in the custody of the six clerk , being the plaintiffs attorney . no more shall any bill , answer , or other pleading , be said to be of record , or to be of any effect in court , until the same be filed with such of the six clerks , with whom it ought properly to remain . every demurrer shall express the several causes of demurrer , and shall be determined in open court . and such pleas also as are grounded upon the substance and body of the matter , or extend to the jurisdiction of the court , shall be determined in open court : and for that purpose the defendant is to enter the same with the register , within eight days after the filing thereof ; or in default of such entry made , the same shall be disallowed of course , as put in for delay , & the plaintiff may then take out proces to enforce the defendant to make a better answer , and pay forty shillings costs , and the same shall not afterwards be admitted to be set down or debated , unless ( upon special reason shewed to the court before such proces to make better answer be taken out ) it shall be otherwise ordered by the court . and if any cause of demurrer shall arise , and be insistest on at the debate of the demurrer ( more then is particularly alledged ) yet the defendant shall pay the ordinary costs of over ruling a demurrer , ( which is hereby ordered to be five marks ) if those causes which are particularly alledged be disallowed , although the bill , in respect of that particular , so newly alledged , shall be dismissed by the court . a plea of outlary , if it be in any suit for that duty , touching which , relief is sought by the bill , is insufficient according to the rule of law , and shall be disallowed of course , as put in for delay , and the plaintiff may ( notwithstanding such plea ) take our proces to enforce the defendant to make a better answer , and pay five marks costs ; otherwise a plea of outlary is always a good plea , so long as the outlary remaineth in force , and therefore the defendant shall not be put to set it down with the register : and after the said outlary reversed , the defendant upon a new subpena served on him , and payment unto him of twenty shillings costs , shall answer the same bill , as if such outlary had not been : but if the plaintiff conceive such plea of outlary through mispleading , or otherwise , to be insufficient , he may , upon notice given to the clerk , on the other side set it down with the register to be debated with the rest of the pleas and demurrers in course ; but if the plaintiffe shall not in such case enter it with the register , within eight days after the same shall be filed , the defendant may take out proces against the plaintiff for his ordinary costs of five marks , as if the same had been heard . the dependancy of a former suit for the same matter , is also a good plea , and therefore the defendant shall not be put to set it down with the register . but if the plaintiffe be not satisfied therewith , the same shall be referred to one of the mesters of the court to certifie the truth thereof : and if it shall be determined against the plaintiff , he shall pay to the defendant , five pounds costs . but such reference shall be procured by the plaintiff , and a report thereupon within one moneth after the filing of such plea , otherwise the bill to stand dismissed of course , with the ordinary costs of seven nobles . if after a suit commenced at the common-law , or any other inferiour court , a bill shall be exhibited in this court to be relieved for the same matter , the dependancy of the former suit shall be admitted as a good plea , and the defendant not be put to motions for an election , or dismission : and that plea shall be proceeded in , as in case of a plea of a former suit depending in this court for the same matter . if the demurrer be grounded only upon some error , slip , or mistake in the bill , the plaintiff without motion shall be permitted of course to amend the same , paying to the defendant , or his attorney to his use , twenty shillings costs . but if the plaintiff shall not within eight days after such demurrer put in , amend , or alter it , and pay the costs , then the demurrer shall stand to be determined in court , and if the same be ruled against the plaintiff , he shall pay the ordinary costs for over-ruling a demurrer . if the plaintiffe or his attorney in court shall , within eight days after a demurrer filed , give notice to the defendant , or his attorney in court , under either of their hands , that the plaintiff doth admit the demurrer to be good , and shall pay the defendants attorney , or his clerk in court , fourty shillings costs ; then the defendant shall not need to attend his demurrer : but the bill shall stand dismist of course without motion , unlesse the parties , or their attorneys on both sides shall agree to an amendment of the same , but such dismission is to be no bar to a new bill to be exhibited by the plaintiff . answers . an answer to a matter charged as the defendants own fact , must regularly be without saying to his remembrance , or as he believeth , if it be laid to be done within seven years before , unlesse the court upon exception taken , shall finde special cause to dispence with so positive an answer . and if the defendant deny the fact , he must traverse or deny it ( as the cause requires ) directly , and not by way of negative pregnant . as , if he be charged with the receipt of a summe of money ; he must deny , or traverse that he hath not received that summe , or any part thereof , or else set forth what part he hath received . and if a fact be laid to be done with divers circumstanees , the defendant must not deny or traverse it literally , as it is laid in the bill , but must answer the point of substance positively and certainly . vvhen the defendent hath answered , the plaintiff is to be well advised upon the answer ; and if he shall find that upon the answer alone without further proofe , there be sufficient ground for a finall order or decree , the plaintiff may procure his attorney to present the same in course to be set down , to be heard upon bill and answer , without further lengthning of the cause ; but in case the court shall not find grounds to make a decree or finall order thereupon , the bill shall be dismissed with costs , or the plaintiff admitted to reply if he desire it , first paying down 5. l. costs to the defendent or his clark , which if he shall not do in foure daies after such hearing , then the dismission to stand , and the conclusion of the order upon hearing , is to be penned by the register accordingly , that the said bill stand dismissed without any further order or direction , and then such dismission shall be a good plea in barre of any new bill for the same matter . if a hearing be prayed upon a bill and answer , the answer must be admitted to be true in all points , and no other evidence to be admitted , unlesse it be matter of record , to which the answer refers and is proveable by the record . the plaintiff is therefore to be well advised therein , that the court be not put to an unnecessary trouble , and himselfe to a certaine charge , in bringing his cause to hearing , which will not beare a decree . vvhereas the defendent hath put in an answer , if the plaintiff hath proofs for the matters denied , he is not to insist upon the insufficiency of the answer , if the same be good to a common intent , but proceed to replication and proofe , to avoid charge and expence of time in cavilling with answers . if exceptions be put in to an answer after the terme , the defendent shall not be compelled to stay in towne , to attend the plaintiffs exceptions , but shall have time to answer untill the fourth day of the next terme , unlesse the court shall find speciall cause to hasten it , and shall see order in open court . when a plaintiff excepteth to a defendents answer , he shall set downe his exceptions in writing , and the same terme the answer is filed , or within eight daies after that terme , deliver the same exceptions to the councell , whose hand is to the answer , or to the defendents attorney in court , and if the defendent shall within the times before limited respectively satisfie the plaintiff of the invalidity of those exceptions , or put in a perfect or better answer , and pay xx s. costs , then the plaintiff may reply thereunto . but if the defendent shall faile to do the same , or put in a second insufficient answer , then the plaintiff may get the said answer , or answers referred ; and if the same shall be ruled insufficient , the defendent shall pay forty shillings costs ; and in case the plaintiff shall procure a reference of the answer , and the same be ruled good , the plaintiff shall pay the defendent forty shillings costs . if the first answer be certified insufficient , as aforesaid , the defendent shall pay forty shillings costs , if the answer were put in person ; but if the same came in by commission , the defendent shall pay fifty shillings costs , and no new commission shall be awarded for taking any second answer , unlesse it be by order made in court , and affidavit made of the parties inabilitie to travell , or other good matter to satisfie the court touching that delay , and first paying the costs of such insufficient answer , or by the plaintiffs own assent for the expediting of his cause . if the second answer be reported insufficient unto any of the points formerly certified , ( which are only to be insisted upon without any new exceptions ) the defendent shall pay three pounds costs ; and upon the third answer foure pounds costs ; and upon a fourth answer certified insufficient , he shall pay five pounds costs , and be examined upon interrogatories to the points reported insufficient , and shall be committed till he hath perfectly answered those interrogatories , and payed the costs , in respect of the great vexation and delay which in such case will happen to the plaintiff . if upon perusall of the answer , the plaintiff shall find it will be necessary to make proof of one , or few particulars , then the plaintiff is to reply to those particulars only , and not draw into pleadings and proofs any more , then the points necessary to be proved : and in case upon the hearing it shall appeare that the plaintiff might have had as full relief on bill and answer , the plaintiff shall not only go without costs , but shall pay the defendent good costs , to be assessed by the court , albeit he be relieved upon the merit of his cause , in respect of the defendents needlesse vexation . if a bill be regularly and justly dismist of course , or by order for want of prosecution , no motion shall be admitted for the retainer thereof without a certificate from the defendents atturney in court , that the costs of the dismission are paid , to the end unnecessary charge to the parties by severall motions for one and the same matter may henceforth be avoided . examination of witnesses . in case the parties proceed to examine witnesses , the interrogatories are to be penned with care , that the same be pertinent , and onely to the points necessary to be examined unto : and the witnesses are to be sorted & examined on those interrogatories only that their testimony doth extend unto , without the needlesse interrogatories of matters unnecessary and immateriall , as well to avoid the charge of both parties , plaintiff and defendent , in superfluous examinations , as that apt interrogatories ( which are the life of the cause ) may be exhibited . the examiners ( in whom the court reposeth much confidence ) are themselves in person to be diligent in examination of witnesses , and not intrust the same to meane and inferior clarks ; and are to take care to hold the witnesse to the point interrogated , and not to run into extravagances and matters not pertinent to the question , thereby wasting paper for their own profit , of which the court will expect a strict accompt . the examiners are to take care that they imploy under them in their office , none but persons of known integrity and ability , who shall take an oath not to deliver or make knowne directly or indirectly to the adverse party , or any other save the deponent , who coms to be examined , any of the interrogatories delivered to be examined upon , any examination by him taken or remaining in the examiners office , or extract , copy , or breviate thereof , before publication be thereof passed , and copies thereof taken . and if any such deputy , clerk or person so imployed , shall be found faulty in the premises , he shall be expulsed the office , and the examiner who so imployed him , shall be also answerable to the court for such misdemeanour , and to the party grieved for his costs and damages sustained thereby : and such solicitor or other person , who shall be discovered to have had a hand therein , shall be liable to such censure for the offence , as the court shall find just to inflict upon him . no witnesse shall be examined in court by the examiner , without the privity of the adverse party , or of his attorney or his attorneys clerk , who deales for the adverse party , to whom the person to be examined shall be showed , and a note of his name and place of dwelling delivered in writing , by such as shall produce him , and the examiner is to take care , and be well satisfied that such notice be given , and then shall add to the title of the witnesses examination , the time of such notice given , and the name of the person to whom it is given , and by whom , that at the hearing of the cause , the suitor be not delayed , upon pretence of want of notice . for prevention of perjury and other mischiefs often appearing to the court , the examiner is to examine the deponent to the interrogatories directed seriatim , and not to permit him to read over , or heare read any other of interrogatories , untill that in hand be fully finished , much lesse is he to suffer the deponent to have the interrogatories , and pen his owne depositions , or to depart after he hath heard an interrogatory read over , untill he hath perfected his examination thereunto : and if any witnesse shall refuse so to conform himselfe , the examiner is thereof to give notice to the attorney , or clark of the other side , and to proceed no further in his examination , without the consent of the said attorney or clark , or order made in court to warrant his so doing . in examining of witnesses , the examiner shall not use any idle repetitions , or needlesse circumstances , nor set downe any answer to the questions , to which the examinant cannot depose other then thus , to such an interrogatory this examinant cannot depose . and in case such impertinencies be observed by the court , the examiner is to recompence the charge thereof to the party grieved , as the court shall award . the examiner shall not examine any witnesse , to invalid the credit of any other witnesse , but by speciall order of the court , which is sparingly to be granted : and upon exceptions first put into writing , and filed with the examiner without fee , and notice thereof given to the adverse party or his attorney , together with a true copy of the said exceptions , at the charge of the party so examining . from henceforth the fee taken by the examiner , upon the producing of a witnesse to be examined by him , shall be deducted to the party plaintiff or defendent , who paid the same , when the copies of such witnesses depositions are taken out by him , and such exhibitions whereupon any witnesse is examined , shall be alwaies ●ndorsed and certified by the examiner , at the same time that the witnesse is thereupon examined , and his examination perfected and subscribed . when witnesses are examined in court upon a schedule of interrogatories , there shall be no new interrogatories put in to examine the same witnesses ; nor shall any witnesses be examined in court after the day of publication , though they were sworne before ; so as a copy of the rule or order whereby publication passed , be delivered to the examiner , that he may take notice thereof . if the defendent being served with a subpoena to rejoyne and joyne in commission , shall not upon request by the plaintiffs clark , made to the defendents clark , deliver commissioners names , by the end of that terme , wherein the subpoena ad rejungend . is returnable ; the plaintiff may without motion or petition take the commission ex parte . the plaintiff ought regularly to have the carriage of the commission for examination of witnesses , as often as any is sued forth : but if through the default of him or his commissioners , the same be not executed , he shall pay unto the defendent such reasonable costs , as the defendent shall by oath make appeare , he was put unto by such failer , and shall renew the commission at his owne charge , but the other side shall have the carriage of such new commission . and the like shall be done to the plaintiff , where the defendent for just reason hath obtained the carriage of the commission ; and if through any errour of the clark in making out the said commission , or misnaming the commissioners or parties , or the like , the execution of a commission shall be put off , the party put to charge in attendance of such commission , shall receive his costs to be ascertained by his oath as aforesaid , from him that obtained such commission , and the clark that made out the same , or his superiour the attorney in court , ( who is answerable for him ) shall make restitution thereof to the client and suitor . if both sides joyne in execution of a commission , and the one side produceth and examineth all his witnesses , and the other side doth not , but prayeth a new commission , the same shal not be granted ( unless it be by consent of the parties , or their attornies in court , ) but upon oath of good cause , why he could not then examine all his witnesses . and in case the same be granted , the party praying the same shall bear the reasonable charge of the other side , both of renewing & executing the commission , to be ascertained by oath , and the other side shall be at liberty , to crosse examine the witnesses produced by him that reneweth the commission . but if he shall not onely crosse examine the witnesses of the adverse party , but examine new witnesses , he shall beare his part of the charge . if at the instance of a defendent , a commission to examine witnesses be renewed , either for a default by him or his commissioners , or because he did not examine all his witnesses by the first commission , he shall at his perill examine all his witnesses by such renewed commission , or in court by the returne of such commission without more or further delay , and no more commissions to issue , except for examination beyond the seas , by order in court , or by consent of the attorney . upon the returne of a commission , if the same be executed by both parties , one rule onely shall be given for publication , and if the said commission be not renewed , or another obtainby the plantiff or defendent within that time , then publication shall passe , and no commission shall be afterwards granted or renewed , without speciall order in court . upon the taking out of copies of depositions examined in ●ou●t , o● by commission either by the plaintiff or defendent , no fee shall be taken by the six clarks or the examiner for the copies , either of the plaintiffs or defendents respective interrogatories , save onely the clarks usuall fee for the writing thereof . depositions of witnesses in severall causes , which are meerly crosse causes , ( viz. ) between the same parties , and touching the same matter , may be used at the hearing of both causes ( coming to hearing together ) without any motion or order in that behalf . vvhere either party plaintiff or defendent obtaineth an order to use depositions of vvitnesses taken in another cause , the adverse party may likewise use the same without motion , unlesse he be upon speciall reason shewed to the court , by that party first desiring the same , inhibited by the same order so to do . no motion shall be made in court or by petition , for suppressing of depositions as irregularly taken , untill the six clerks not toward the cause have been first attended with the complaint of the party grieved , and shall certifie the true state of the fact to the court with their opinion : if the attornies or clerks on either side shall not for the ease of their clients agree before them , for which purpose a rule for attendance of the six clerks in such case shall be entred of course with the register , at the desire of the party complaining , which shall warrant their proceedings and certificate to the court . proces . every subpoena to answer shall be served personally , or left at the defendents dwelling house , or place of residence with one of that family , and no clerk of this court shall issue any attachment for not appearing , but on affidavit first made , positive and certaine , of the day and place of such service of the subpoena , and the time of the returne thereof , whereby it shall appeare that such service was made ( if in london , or within twentie miles , foure dayes at the least excluding the day of such service ; and if above twentie miles , then to have been ) eight daies before such attachment entred ; and that such attachment shall not be discharged , but on payment of twenty shillings costs if the service be personall , and ten shillings if otherwise , and so the succeeding proces to be double . every subpoena to make a better answer , shall also contain a clause for payment of the costs ordinary in that behalfe , and the suitor not be put to take out severall writs , nor prosecute severall contempts , as in that case hath been used ; and if upon the service of such subpoena , the costs be not paid , the answer of such defendent shall not be received or filed , unlesse the said costs be also delivered and payed to the plaintiffs clark , together with the said answer , but proces of contempt shall issue in that case , as for want of an answer , at the returne of the said subpoena . a subpoena ducens tecum ( when the defendent confesseth in his answer , the having of any writings materiall to be examined upon , or confest to belong to the plaintiff ) may be taken out by the plaintiff of course without motion , for the defendent to bring them into court , or shew cause , &c. but if the defendent either confesse not the having them in his hands , or makes his title by them , or to them by his answer , he shall be excused from any contempt , although he neither bring them into court , nor shew cause , and if the plaintiff shall notwithstanding prosecute a contempt in that behalfe ( and the case upon the defendent his answer appear to be such ) he shall be thereof discharged , and have his costs . the subpoena ad audiendum judicium shall be served either on the person of the defendent , or left at his dwelling house , where his family then resides : or in case oath be made that he cannot be found to be served personally , and that he hath no certaine dwelling , or is beyond the seas , the court will order the leaving of a subpoena with his attorney in this court to be a sufficient service . all proces of contempt shall be made out into the county , where the party prosecuted is resident , unlesse he shall be then in or about london ; in which case it may be made into the county , where the party then is . and if any person shall be taken upon proces otherwise or irregularly issued , the party so taken first appearing unto , and satisfying the proces which did regularly issue against him , shall be discharged of his contempt , and have his full costs to be taxed of course by the six clerks not towards the cause for such undue or irregular prosecution , from the time that the error first grew without motion or other order . every suitor who prosecuteth a contempt shall do his best endeavour to procure each severall proces to be duly served and executed upon the party prosecuted , and his wilfull default therein appearing to the court , such person offending shall pay unto the party grieved good costs , and lose the benefit of the proces returned without such endeavour . that all attachments in proces shall be discharged upon the defendents payment , or tender to the plaintiffs clerk & refusall of the ordinary costs of the court , & filing his plea , answer or d●mu●rer ( as the case regularly requires ) without any motion in court in that behalfe . and if after such conformity and payment of the costs , ( or tender and refusall thereof ) any further prosecution shall be had of the said contempt , the party prosecuted shall be discharged with his costs . commissions to answer . after a contempt duly prosecuted to an attachment with proclamation returned , no commission shall b● made to answer , nor plea or demurrer admitted , but upon motion in court , and affidavit made of the parties inability to travail , or other good ●atter to satisfie the court touching that delay . the defendent who is served with a subpoena ad respondend . and obtaineth a commission to answer in the country , shall without more words have the same liberty there by to answer , plead , and demur , as he had by the originall proces , if he could have appeared in person . after a commission once obtained to answer , no second commission shall be granted without speciall order of court ; or the plaintiffs owne assent under his hand . and if the time for the defendents answering be inlarged upon affidavit , that he or they cannot answer without fight of writings in the country , or in respect of the length of the bill or the like , which shal not be without speciall order in court , no commission shall be afterwards granted without like speciall order of court , upon good reason shewed to induce the same , or the like assent of the plaintiff . in case where the defendent sits all process of contempt and cannot be found by the serjeant at armes , or makes a rescue , a sequestration shall be granted of the land in question . and if the defendent render not himself within a yeare , then an injunction for the possession , and the profits so sequestred to be delivered over to the plaintiff . injunctions . for that it is agreeable to equity , and the constant practise of this court , that a defendent obtaining a commission to take his answer in the country , should not by that delay or favour of the court , get an advantage against the plaintiff , by proceeding at law in the meane time , it is ordered , that from henceforth every commission to take an answer in the countrey shall containe in it a clause of injunction to stay the defendents suit at law ( if any be ) touching the matter complained of in the bill untill he hath answered the bill , and the court given other order , so as issue were not joyned at law , before the returne of the subpoena served upon the defendent , and in that case to stay judgement for the like time , so that the taking of such commission under seale , shall be a sufficient notice and service of the said injunction , without motion or other trouble to the plaintiff , whereupon for breach to ground an attachment , upon affidavit of a proceeding at law after the commission prayed . no injunction to stay suits at law shall be granted upon priority of suit onely , nor upon the bare surmise of the bill ; but upon the defendents delay or wilfull contempt in not answering , or upon matter confessed in the answer , or matter of record , or writing plainly appearing , or the duty demanded appearing to be very ancient . where a bill comes in after a verdict a law for a debt , an injunction is not to be granted , without depositing the principall money , except there shall , upon hearing both sides , appeare to the court in the defendents answer , or by deed under hand and seale , or other good matter for relief in equity . and an injunction granted in such case , or otherwise upon the merit of the cause or equity appearing to the court , is regularly to stand , untill the hearing of the cause , unlesse the plaintiff delay the cause , in which case he may best be quickned , by dissolving the injunction . for avoiding multiplicity of references heretofore used , and charged to the suitor , it is ordered that where a motion is made for an injunction to stay a suit at law upon allegation of matter of equity confest in the answer , the councell moving the same , shall have that suggestion fair written in his hand , and read or truely open the same to the court : and if the court hold that matter of sufficient weight , will thereupon grant an injunction as is desired , without reference , report or further motion , and then the register is in court to receive the said suggestion so fairly written , and insert the same verbatim in the order for granting the injunction . but if the said suggestion be untrue in the substance thereof , upon construction of the whole answer , and the defendent be prosecuted by the plaintiff for breach of the injunction granted thereupon , he shall be cleare from any contempt in that behalfe and have his costs , and such councell shall justly incurre the displeasure of the court . where an injunction to stay suits is obtained upon a misinformation made to the court , ( as of matter confessed in the defendents answer which in truth is not so confessed , or if confessed in one place , is avoided in another part of the answer , or upon other such like plaine abuse to the court , in that case the party prosecuted with contempt for breach of such injunction shall upon his examination ( the matter appearing as asoresaid ) be discharged of any contempt , although he hath proceeded at law after such injunction granted , and also have his costs taxed for his wrongfull vexation , by the same master to whom the contempt shall be referred without other motion in court , which also shall be done in like cases , where a contempt stands referred to a master of the court , he shall tax costs , and certifie the same in his report to the court , together with his opinion touching the contempt , as well for the prosecutor in case the contempt be confessed or proved , as for the party examined if he be cleared thereof . for avoiding the many motions heretofore frequently made , touching dissolving and continuing injunctions , it is ordered , that when an injunction is granted till answer and further order , if no order be made within fourteen daies , ( after the answer duly filed in court ) for continuance of the injunction , the same shall stand dissolved without further motion upon certificate only of the register . injunctions to quiet possession ( usually granted for preservation of the publike peace , and prevention of force ) shall not be granted before hearing , but upon oath that the plaintiff was in actuall possession at the time of the bill exhibited , ( and not of rents or other things which lie not in manuall occupation : ) and for such possession as the plaintiff himself had at the time of the bill exhibited and three yeares before , but not to be extended further to the possession of such from whom he claimes , or of him and his tenants , much lesse him and his assignes or the like . which injunction shall not be extended to give the plaintiff any other possession then he had at the time when the motion was made . and such injunction in case the plaintiff delay to bring his cause to hearing is also to be dissolved . no injunction to quiet such possession shall extend to hinder the defendents proceedings at law to evict the plaintiff , or from making any lease , or peaceable entry , or single distresse for that end . no possession shall be taken from any person by colour of any such injunction before the cause be heard . and if any be , the court will restore possession and award costs . injunctions against felling of timber , ploughing up of meadow or ancient pastures not ploughed in twenty yeares before , or for maintainance of inclosures that have continued for the better part of twenty yeares shall be granted as usually they have been , but no defendent who by answer claims an estate of inheritance , or other estate dispunishable of wast , shall be thereby restrained , unlesse it be particularly so ordered and mentioned in the said injunction . and upon motion made for such injunction , the case is to be truly opened as it stands in court , and the defendents glaime by his answer if he have answered . when the day is appointed for setting downe causes for the follovving terme , the fix clerks shall present the causes according to their priority in publication , to be set downe in their order , so as the old causes may be first heard and dispatched . and for that purpose with the names of each cause they shall present the time when publication passed , with a short note of the nature of every such cause presented . and accordingly the court will give order for setting them downe , so that puyne causes shall not thrust out those that were ready for hearing before them . provided that no cause be presented the same terme in which publication shall passe . where no councell appears for the defendent at the hearing , and proces appears to have been duely served , the answer of such defendent shall be read , and if the court upon such hearing shall find cause to decree for the plaintiff , yet a day shall regularly be given to the defendent to shew cause against the same , but before he be admitted thereunto , he shall pay downe to the plaintiff or his attorney in court such costs as the court upon that hearing shall assesse , and the order is to be penned by the register accordingly , ( viz. ) it is decreed so and so , &c. unlesse the defendent shall by such a day pay to the plaintiff or his attorney in court costs , and shew good cause to the contrary , and such defendent upon his shewing cause shall first produce a certificate from the plaintiffs attorney in court , that he hath paid the costs or affidavit of tender and refusall thereof . the reasons of the judgement of the court are in such case where the defendent makes default to be by the register shortly inserted in the order , that the defendent may know how to apply his cause without a new hearing , but if the court shall not receive satisfaction thereupon to alter or conforme the decretall order , but that a new hearing shall be requisite , the defendent ( if the court shall confirme their first order upon the second hearing , shall also pay the plaintiff his full costs expended in the suit . if the court upon the hearing of a cause shall give no reliefe to the plaintiff , the defendent shall have costs awarded him in respect of his causlesse vexation . and where a decree is made against a defendent the court will likewise give costs to the plaintiff as there shall be cause . where costs are awarded by the court and the party shall refuse to pay them and be afterwards prosecuted and found in contempt for not paying of them , he shall not be discharged of such his contempt , untill he shall pay the said costs double , over and besides the costs taxed , for the prosecution of the said contempt . where causes are removed by speciall certiorari upon a bill containing matter of equity ; the plaintiff is before he have the certiorari granted , to put in bond to be taken by the register , to prove his suggestions within fourteen daies after the receipt of his writ , which if he shall faile to do , upon certificate from the examiners that no witnesses are examined , or upon a report that the suggestions are not proved , the court wil dismisse the bill with costs , and award a procedendo . decrees . no decree bindeth any man that cometh in bona fide by conveyance before the bill exhibited , and is made no pertie either by bill or order . but where he claimes in trust for such person against whom the decree is made or comes in dependente lite without allowance or privity of the court it is otherwise . no decree shall recite the bill , answer , pleadings or depositions or any of them verbatim , but onely the short state of the matter and the decretall order , and the opinion and judgement of the court . no decree being once under the great seale shall be reversed or altered at the suit of the person against whom the decree is made , or any man claiming in privity , by , from or under him , but by bill of review onely . but in case of mistaking in a decree which is demonstrative , viz. an errour in auditing or numbring , mistaking the date or the like , by the leave of the court the same may be certified without a bill . that all decrees and dismissions pronounced upon hearing the cause in this court be drawne up , signed and enrolled before the first day after the next michaelmas or easter term after the same shall be so pronounced respectively , and not at any time after , without speciall leave of the court . that a short entry and docquet be made in a register book kept by the register of this court , or such clerk as he shall appoint for that purpose of all decrees that are drawne up and enrolled , whereby any lands or lease is decreed or charged with any sum of money , annuity , &c. & of the lands in particular , and the parish , or town and county where the same lie , to the end that any person that hath occasion may resort to that register book , to see whether any decree be made touching such lands , houses , &c. and in case no such entry be made within six moneths after such decree shall be signed by the lords commissioners for the great seal and enrolled , the same shall not prejudice any purchaser , who shall bona fide purchase any estate in such lands , houses , &c. after the time limited for such entry to be made . that the six clerks , and all other clerks of this court doe therefore take care for their client , that such entry be made of all decrees by them drawn up and inrolled by the time before limited , that the client do not suffer through their neglect : and that the register shall take onely the fee of twelve pence for such entry , twelve pence for a certificate , and four pence for a search where no certificate is made . in case of a decree for lands upon oath made , that the same hath been personally served , and is not obeyed , and an attachment is issued under seale for such contempt , the court doth usually grant an injunction for the possession , and upon oath made of the serving thereof upon the party , and that the same is not obeyed , a commission is to be awarded to some of the justices of the peace of that county , to put and keep the plaintiff and his assignes in possession , and in case of resistance , a writ of assistance is to be awarded to the sheriffe for that purpose . where the party is committed , or brought in by a serjeant at arms for breach of a decree , he is not to be inlarged untill he hath performed the decree in all things that are to be presently done , and given security by recognizance with sureties , as the court shall order , to performe the other parts of the decree ( if any be to be performed ) at future dayes and times appointed by the decree . where the party is committed for breach of a decree , or order of court , he ought to be restrained within the fleet , and not permitted to go abroad without speciall license of the court . where a decree is made for rent to be paid out of the land , or a sum of money to be levied out of the profits of lands , there a sequestration of the same lands being in the defendents hands , or of any rent reserved to the defendent out of the same lands may be granted . where causes are dismissed upon full hearing , and the dismission signed and inrolled , such causes are not againe to be retained , nor any new bill admitted , except it be a bill of review , or upon matter of like nature , as in case where a decree is sought to be avoided , and upon like security and allowance of the court . bills of review . to the end that after a decree made the party may be at peace , and multiplicity of suits be avoided , no bill of review shall be admitted , except it containe either error in law appearing in the body of the decree , without either averment , or further examination of matters in fact , or upon new matter discovered in time after the decree made , and whereof the party could not have had advantage before ; and upon such bill of review no witnesses shall be examined to any matters which were or might have been examined unto upon the former bill ; but upon oath made of such new matter discovered as aforesaid , a bill of review may be exhibited by leave of the court and not otherwise . no bill of review shall be admitted , nor any other bill to change matters decreed , except the decree be first obeyed and performed : but if any act be decreed to be done , which extinguisheth the parties right at common law , as making of assurance or release , acknowledging satisfaction , cancelling bonds or evidences , and the like , or where the error is apparent in the body of the decree , as aforesaid , the court upon motion may dispense with the actuall performance of that part of the decree till the bill of review be determined . no bill of review shall be allowed , except the party that prefers it ( giving notice to the defendent therein ) do first enter into a recognizance with sureties before some master of the court in ordinary , of a fit penalty in relation to the matter decreed for the satisfaction of the costs and damages if the bill of review be dismissed . contempts . vvhere a contempt is prosecuted against any man he shall not be put to move the court as formerly hath been used , either for interrogatories to be exhibited , or for reference of his examinations and discharge being examined . but where any person shall be brought in by proces or shall appeare gratis to be examined upon a contempt , he shall give notice of such his appearance to the attorney or clerk of the other side : and if within eight daies after such appearance and notice given interrogatories shall not be exhibited whereon to examine him ; or if being examined , no reference shall be procured of his examination , nor commission taken out by the other side , nor witnesses examined in court to prove the contempt within one moneth after such examination , then the party so examined shall be discharged of his contempt without further motion , and may attend any one of the masters of the court for the taxing of his costs , which the master is to tax without further order , and that taxation being entred in the register the party may proceed for the same of course , as in like cases of costs taxed . if after appearance and interrogatories exhibited as aforesaid , the party appearing shall depart before he be examined ( without leave of the court ) he is upon motion and certificate from the register , and of such his departing and not being examined , and of the interrogatories exhibited from the examiner , to stand committed without further day given unto him , and is not to be discharged from such his contempt untill he hath been examined and been cleared of his contempt . and if he shall upon his examinations or by proofs be found in contempt , he shall cleare such his contempt and pay the prosecutor his costs , before he be discharged of his imprisonment . and although he be cleared of his said contempt yet he shall have no costs , in respect of his disobedience in not being examined without the prosecutors trouble and charges in moving the court as aforesaid . in case of prosecution of a contempt for breach of an orderof the court or otherwise grounded upon an affidavit , the interrogatories shall not be extended to any other matter then what is comprehended in the said affidavit or order . and if any other shall be exhibited , the party examined may for that reason demurre unto them , or refuse to answer them . where the party prosecuted upon a contempt hath denied it , or the same doth not clearly appeare by his examinations , the prosecutor may take out a commission of course to prove the contempt , and in such case the party prosecuted may name one commissioner to be present at the execution of the commission , and may henceforth ( notwithstanding the former usage to the contrary ) crosse examine the witnesses produced against him , to prove the contempt , but is not to examine any witnesses on his part , unlesse he shall satisfie the court touching some matter of fact necessary to be proved for clearing the truth . in which case the court if there be cause will give leave to him to examine witnesses to such particular points set down , and the otherside may crosse examine such witnesses . but the interrogatories on both sides are to be included in the commission . where a contempt is prosecuted against one who by reason of age , sicknesse or other cause is not able to travaile , or in case the same be against many persons who are servants or workmen and live far off : the court will upon motion and affidavit thereof , grant a commission to examine them in the countrey ▪ which commission shall be sued out and executed at the charge of the person or persons desiring it , directed to such indifferent commissioners as the prosecutor of the contempt shall name ( as in other cases ) and one commissioner onely at the nomination of the party prosecuted as aforesaid . which commission shall be executed at such convenient time and place , as the six clerks not towards the cause upon hearing the clerks on both sides shall set downe . upon every examination or proof of a contempt referred to any of the masters of the court , to certifie whether the contempt be confessed or proved or not : the master in his certificate thereof made to the court shall likewise assesse and certifie the costs to either party , as there shall be cause without other order or motion made for that purpose . commitment . the court being tender of the liberty of mens persons , and to avoid their imprisonment upon malicious affidavits , which are often made by one mean and ignorant person , and which hath heretofore by the course of the court drawn on a commitment , doth order , that from henceforth where oath shall be made of misdemeanour in beating or abusing the party upon serving of the proces or orders of the court , the party offending is to stand committed upon motion , and no examination is in that case to be admitted . and where affidavit shall be made by two persons , of scandalous or contemptuous words against the court or the proces thereof , the party offending shall likewise stand committed upon motion without any further examination . and a single affidavit in such case shall be sufficient to ground an attachment , whereupon such person shall be brought in to be examined . and if the misdemeanour shall be confessed , or proved against him , he shall stand committed until he satisfie the court touching his said misdemeanour , & pay the prosecutor his costs : and if he shall not be thereof found guilty , save by the oath of the party who made such affidavit , he shall be discharged , but without any costs , in respect of the oath made against him , as aforesaid . that no order whatsoever , except decretal or final orders upon hearing be received to be entred after the space of eight days , to be reckoned from the day of the order pronounced exclusivè : and if the party on whose behalf the motion is made do not prosecute the drawing up of the order within 4. days , the register is to do the same according to his notes at the instance of the adverse party . masters . the masters are not upon the importunity of councel ( how eminent soever ) or their clyents , to return special certificates to the court , unless they are required by the court so to do , or that their own judgment in respect of difficulty leadeth them unto it . such kinde of certificates for the most part occasioning a needless trouble , rather then ease to the court , and certain expence to the suitor . their certificates and reports are to be drawn as succinctly as may be ( preserving the matter clearly for the judgement of the court ) and without recital of the several points of the orders of reference ( which do sufficiently appear by the orders themselves ) or the several debates of councel before them ; unless that in cases where they are doubtfull , they shortly represent to the court , the reasons which induce them so to be . the masters of the court are to take notice , that when the court requires to be satisfied from them touching any matter alledged to be confessed , or set forth in the defendants answer ; it is intended that without further order they should take consideration of the whole answer or answers of the defendant , and certifie not only whether the matter be so confessed or set forth , but also any other matter , avoiding that confession , or ballancing the same , that the court may receive a clear and true information . the masters in taking affidavits , and administring of oaths in cases duly presented unto them , are to be circumspect and wary that the same be reverendly and knowingly given and taken , and are therefore to administer the same themselves to the party , and where they discern him rash , or ignorant , to give him some conscionable admonition of his duty , and be sure he understand the matter contained in his affidavit , and read the same over , or hear it read in his presence , and subscribe his name or mark thereunto before the same be certified by the master , who is not to receive or certifie any affidavit , unless the same be fairly and legibly written without blotting , or interlineation of any word of substance . in all matters referred to the masters of the court , their certificate ( not being to ground a decree ) if it be positive is to stand , and proces may be taken out to enforce performance thereof without further motion , unless the adverse party upon notice given ( to his attorney or clerk in court ) that such report is filed against him , shall within eight days after such notice ( if it be given in term , or whiles the general seals for motions are held , or within four days in the next term , if it be given after ) obtain some order in court to controle or suspend the same . and in case of an insufficient answer certified by the masters , the plaintiff may immediately take out proces against the defendant for his costs , and to make a better answer as hath been formerly used . where after certificate or report made by the masters of the court , either party shall appeal from the same , to the judgement of the court , he shall first file his exceptions thereunto briefly , with the register and deposite with him , fourty shillings to be paid to the other party for his costs , if he prevail not in such appeal . and then the register shall enter such causes of appeal in a paper in order as they are brought unto him to be determined by the court in course upon days of motions , and notice thereof to be given by the party appealing , to the clerk of the other side . and also the registers paper to be set up in the office two days before . and if the court shall not alter the masters report , then the fourty shillings deposited to be paid to the party defending the same , with such increase as the court shall finde cause to impose , otherwise to be restored to the party appealing , and both without charge . petitions . no injunction for stay of suit at law shall be granted , revived , dissolved , or staid upon petition . nor any injunction of any other nature shall pass by order upon petition , without notice and a copy of the petition first given to the other side , and the petition filed with the register , and the order entered . no sequestration , dismission , retainers upon dismissions or final orders , are to be granted upon petition . no former order made in court is to be altered , or explained upon a petition ; no commitment of any person taken upon proces of contempt to be discharged by order made upon petition , unless in the vacation , and upon hearing the adverse party his attorney or clerk in court . no commissions for examinations of witnesses , shall be awarded or discharged , nor examinations suppressed upon petition , except it be upon point of the course of the court first referred to the six clerks not towards the cause and certificate thereupon . paupers . after an admittance in forma pauperis , no fee , profit , or reward shall be taken of such party admitted , by any councellor or attorney for the dispatch of the paupers business , during the time it shall depend in court , and he continued in forma pauperis ; nor any contract , nor agreement be made for any recompence , or reward afterwards . and if any person offending herein shall be discovered to the court , he shall undergo the displeasure of the court , and such further punishment as the court shall think fit to inflict upon him , and the party admitted , who shall give any such fee or reward , or make any such contract , or agreement , shall be from thenceforth dispaupered , and not be afterwards admitted again in that suit to prosecute in forma pauperis . if it shall be made appear to the court , that any person prosecuting in forma pauperis , hath sold or contracted for the benefit of the suit , or any part thereof whiles the same depends , such cause shall be from thenceforth totally dismissed the court , and never again retained . such councel , or attorney as shall be assigned by the court to assist the person admitted in forma pauperis , either to prosecute or defend , may not refuse so to do , unless they satisfie the lords commissioners , or master of the rolles who granted the admittance , with some good reason of their forbearance . that councellor who shall move any thing to the court , on the behalf of a person admitted in forma pauperis , ought to have the order of admittance with him , and first to move the same , before any other motion . and if the register shall finde that such person was not admitted in forma pauperis , he shall not draw up any order upon the second motion made by any such councel , but he shall lose the fruit of such second motion in respect of his abuse to the court . no proces of contempt shall be made forth and sent to the great seal at the suit of any person prosecuting as plaintiff in forma pauperis , untill it be signed by the six clerk who deals for him , and the six clerks are to take care , that the such proces be not taken out needlesly , or for vexation , but upon just and good cause , as they will answer it to the court , if the contrary shall appear . and lastly ; it is ordered , that all masters of the court of chancery , councellors , and all officers , ministers , clerks , and solicitors in the said court , do observe these orders , which are to continue until upon further consideration and experience , any alterations shall be thought fit to be made therein . b. whitelocke c. s. rich. keble c. s. w. lenthall master of the roles . an alphabetical table . a   fol. reg. answer to matter of fact . 15 10 time to answer exceptions . 19 14 time to deliver exceptions to an answer . ib. 15 further insufficient answers , and costs for them . 21 16 appeals from masters reports . 85 93 b   fol. reg. svccinctness in bills . 5 1 certiorari bill . 61 63 bills of review . 69 76 not to be admitted till obedience , except in particular cases , 70 77 and upon security . 71 78 c   fol. reg. causes to be set down according to priority of publication . 57 58 commission to answer gives liberty to plead and demur also . 45 45 commission to answer to contain an injunction . 48 48 not to be granted after attach cum procl. 45 44 in what case a second commission to answer . 46 46 carriage of a commission to examine . 32 29 commission ex parte when ib. 28 new commissions , and how 34 30 new commission through the defendants default . 35 31 commitment for misdemeanors on service . 78 85 for scandalous , and contemptuous words against the court . 79 86 contempts .   fol. reg. proces of contempt into the proper county . 42 41 endeavour to be used in serving it . 43 42 to be discharged on payment of the costs , or on tender and refusall . 44 43 appearance on contempts . 72 79 departure without b●ing examined . 73 80 in what case a commission shall be to examine contemners . 76 83 commission to prove a contempt of course . 75 81 contemners , when to be discharged . 66 72 when restrained . 67 73 costs for insufficient answer . 19 15 for further insufficient answer . 21 16 masters to tax costs on contempts of course . 78 84 costs to be given on hearing 60 61 contemner to pay the costs double . ib. 62 d   fol. reg. decrees , who is bound by them , and who not . 62 64 to be drawn briefly . ib. 65 not to be altered but by bill of review , 63 66 save in mistakes demonstrative . ib , 67 when to be enrolled . ib. 68 an entry to be made of the lands &c. 64 69 clarks to take care it be done . 65 70 prosecution of decrees for lands . ib. 71 for money out of lands . 67 74 default at hearing . 58 59 demurrer to put in without personal attendance or charge of commission . 7 2 demurrers to express the causes . 9 4 demurrer upon a slip or mistake . 14 9 no demurrer after attach cum proc . 45 44 demurrer being admitted the bill to be dismissed of course . 14 6 depositions in cross causes . 37 34 depositions in another cause . ib. 35 depositions to be suppressed , and how . ib. 36 dismission for non-prosecution not to be retained till costs paid . 23 18 dismissions on hearing . 68 75 e   fol. reg. time to answer exceptions . 19 14 time for exceptions to be delivered . ib. 15 examiners duty . 25 20 to have care of their clerks , and be answerable for them . ib. 21 examiner to avoid impertinences . 29 24 no examination after publication . 31 27 h   fol. reg. hearing on bill and answer . 17 11 what evidence admitted . 18 12 default at hearings . 58 59 reasons to be expressed in the order . 59 60 costs to be given on hearing , 60 61 i   fol. reg. interrogatories to be pertinent . 24 19 no new interrogatories for the same witnesses ▪ 31 27 no fees for the copies of the parties own interrogatories , save for writing . 36 33 interrogatories not to exceed the affidavit . 75 81 injunction contained in a commission to answer 48 48 grounds for injunctions to stay suits . 49 49 injunction on bills after verdict , 50 50 injunctions on the matter without reference . 51 51 injunctions on mis-information . 52 52 injunctions to be dissolved without motion , and in what cases . 53 53 injunctions to quiet possession . 54 54 not to hinder suits , lease , entry , or distress . 55 55 not to extend to take away possession ib. 56 injunct . for timber , ploughing &c. 56 57 o   fol. reg. oaths reverendly to be administred and taken . 83 91 orders to be entered in eight days . 80 87 p   fol. reg. paupers not to pay fees , 88 98 nor to contract for the benefit of his suit. 89 99 councel and attorney assigned to do their duty . 90 100 motions for them to be first made . ib. 101 proces of contempt for them to be first signed by the six clerk . 91 102 no pleadings to be of effect till filed . 8 3 pleadings to be succinct . 5 1 pleas to be put in without personal attendance or commission . 7 2 pleas on the matter , or to the jurisdiction . 9 4 plea of outlawry . 10 5 plea of a former suit depending . 12 6 plea of a suit depending in another court . 13 7 petitions . no injunction to be granted by petition . 86 64 nor sequestration , dismission , retainers upon dismissions , or final orders . 87 95 nor order altered or explained , nor commitment discharged . ib. 96 no commissions for examination of witnesses to be awarded or discharged , nor examinations suppressed by petition . 88 97 proofs to be only of matters necessary . 22 17 one rule for publication on a joynt commission . 36 32 r   fol. reg. plaintiff to reply , if answer good to common intent . 19 13 reports of masters not to be special without order . 81 88 nor prolix . ib. 89 to be upon the whole answer . 82 90 reports that are positive . 84 92 s   fol. reg. service of a subpoena to answer . 39 37 subpoena for better answer and costs in one . 40 38 subpoena ducens tecum to be sued out of course . 41 39 service of a subpoena ad audiend. . judicium . 42 40 sequestration on non est invent . 47 47 w   fol. reg. no witness to be exaamined without notice , &c. 27 22 witnesses to be examined to interr . seriatim . 28 23 examination to the credit of a witness , and how . 30 25 fee for examining a witness to be deducted . ib. 26 finis . notes, typically marginal, from the original text notes for div a80116e-200 1. suecinctness in bills and pleadings 2. what pleas or demurers may be put in without personal attendance , or charge of commission . 3. no pleadings to be of effect till filed . 4. demurers and pleas on the 〈◊〉 matter , or to the jurisdiction . 5. plea of outlary . 6. plea of a former suit depending 7. plea of a suit depending in another court . 8. demurrer upon a flip or mistake 9. demurrer being admitted the bill to be dismissed of course . 10. answer to matter of fact . 11. hearing on bill & answer with caution . 12. at hearing on bill and answer , what evidence . 13. plaintiff to reply , if the answer good to a common intent . 14. time to answer exceptions . 15. time for exceptions to be delivered , and costs for insufficient answers . 16. further insufficient answers , and the costs for them . 17. proofs to be only of matters necessary . 18. bill dismissed for want of prosecution , not to be retained till the costs paid . 19. interrogatories to be pertinent . 20. examiners duty . 21. to have care of their clarks and be answerable for them . 22. notice of a witnesse to be examined . 23. witnesses to be examined to interrogatories seriatim . 24. examiner to avoid impertinencies . 25. examination to the credit of a witnesse , and how . 26. fee for examining a witnesse to be deducted . 27. no new interrogatories for the same witnesse , nor examination after publication . 28. commission exparte when . 29. carriage of commissions to examine . 30. new commission and how . 31. new commission through defendents default . 32. one rule on a joynt commission . 33. no fees for the copies of the parties own interrogatories , save for writing . 34. depositions in crosse causes . depositions in another cause . 36. depositions to be suppressed and how . 37. service of a subpoena ad respondend . 38. subpoena for better answer and costs in one . 39. subpoena duc . tec . to be sued out of course . 40. service of a subpoena ad audiend. . judicium . 41. proces of contempt into the proper county . 42. endeavour to be used in serving it . 43. to be discharged on payment of the costs , or upon tender and refusall . 44. after att. cum procl. no commission , nor plea , or demurrer . 45. commission to answer gives liberty to plead and d●murre also . 46. in what case a second com. to answer . 47. sequestration upon non invent . or rescue . 48. commission to answer to contain an injunction . 49. grounds for injunctions to stay suits . 50. injunction on bills after verdict . 51. injunctions on the matter without reference . 52. injunction on misinformation . 53. injunctions to be dissolved without motion and in what cases . 54. injunctions to quiet possession . 55. not to hinder suits , lease , entry or distresse . 56. not extend to take away a possession . 57. injunctions for timber , ploughing . &c. 58. causes to be set down according to priority of publication . 59. default at hearing . 60. reasons to be expressed in the order . 61. costs to be given on hearing . 62. contemner to pay the costs double . 63. certiorari bill . 64. who is bound and who not . 65. to be drawne briefly . 66. not to be altered but by bill of review . 67. save in mistakes demonstrative . 68. when to be enrolled . 69. an entry to be made of the lands &c. 70. clerks to take care it be done . 71. prosecution of a decree for lands . 72. contemner when to be discharged . 73. when restrained . 74. decree for money out of land . 75. dismission on hearings . 76. grounds of bill of review . 77. not admitted till obedience , except in particular cases . 78. and upon security . 79. appearance on contempts . 80. departure without being examined . 81. interrogatories not to exceed the affidavit . 82. commission to prove it of course . 83. in what cases a com. shall be to examine contemners . 84. master to tax costs of course . 85. on misdemeanour on service . 86. for scandalous and contemptuous words against the court . 87. orders to be entred in eight daies . 88. reports not to be special without order . 89. nor prolix . 90. to be upon the whole answer . 91. oaths revertndly to be administred . and taken 92. reports positive . 93. appeals from them 94. no injunction to be granted on petition . 95. nor sequestration , dismission , retainer , nor final order . 96. nor order altered or explained , nor commitment discharged . 97. no commissions to examine witnesses to be awarded , or discharged nor examinations suppressed by petition . 98. not to pay fees . 99. no● to contract for the benefit of the suit. 100. councel and attorney assigned to do their duty . 101. motions for them to be first made . 102. proces of contempt for them to be first signed by the six clerk . 103. a curious collection of law-books, ancient and modern, consisting of the libraries of john collins, esq. ... and of another fam'd practicer of the law with additions of the best and latest law-books hitherto extant : as also an appendix of a considerable number of books of the civil & canon-law : will be exposed to sale by way of auction, on munday the 2d day of july, 1683, at the first house on the left-hand in flying-horse court in fleetstreet, near the kings-head tavern at chancery lane end, by edward millington, bookseller. collins, john, 1625-1683. 1683 approx. 108 kb of xml-encoded text transcribed from 11 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2006-06 (eebo-tcp phase 1). a33997 wing c5370 estc r21779 12407388 ocm 12407388 61433 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a33997) transcribed from: (early english books online ; image set 61433) images scanned from microfilm: (early english books, 1641-1700 ; 274:6) a curious collection of law-books, ancient and modern, consisting of the libraries of john collins, esq. ... and of another fam'd practicer of the law with additions of the best and latest law-books hitherto extant : as also an appendix of a considerable number of books of the civil & canon-law : will be exposed to sale by way of auction, on munday the 2d day of july, 1683, at the first house on the left-hand in flying-horse court in fleetstreet, near the kings-head tavern at chancery lane end, by edward millington, bookseller. collins, john, 1625-1683. millington, edward, d. 1703. [2], 18 p. s.n.], [london? : 1683. advertisement: p. [2]. reproduction of original in bodleian library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic 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were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng collins, john, 1625-1683 -library -catalogs. law -bibliography -catalogs. private libraries -england -catalogs. catalogs, booksellers' -england. 2005-07 tcp assigned for keying and markup 2006-01 spi global keyed and coded from proquest page images 2006-03 john latta sampled and proofread 2006-03 john latta text and markup reviewed and edited 2006-04 pfs batch review (qc) and xml conversion a curious collection of law-books , ancient and modern , consisting of the libraries of john collins , esq late of grays-inn , deceased . and of another fam'd practicer of the law : with additions of the best and latest law-books hitherto extant ; as also an appendix of a considerable number of books of the civil & canon-law , will be exposed to sale by way of auction , on munday the 2 d day of july , 1683 , at the first house on the left-hand in flying-horse court in fleetstreet , near the kings-head tavern at chancery-lane end. by edward millington , bookseller . catalogues are given gratis at richards coffee-house , and rain-bow coffee-house in fleetstreet ; and at mrs. dangerfield's , in the above-mentioned flying-horse court ; at john's coffee-house in fullers-rents , near grays-inn ; at the coffee-house over agianst lincolns-inn in chancery-lane ; at bridges coffee-house in popes-head-alley , over against the exchange in cornhill ; at edward millington's at the bible in little-britain . 1683. to the reader . this catalogue contains the compleatest collection of the common and statute law-books , ancient and modern , that hath been hitherto published , or perhaps will ever be exposed to sale by way of auction : so that i may presume to say , that not one considerable book of price , or use in the whole body of the law is wanting . these gentlemen were curious in collecting of the ancient , and scarce books of the law , as is obvious to every one that shall please to peruse the ensuing names of them , especially of books of old customs , usages , and charters ; there being no less then three different editions of that fam'd book of the customs of normandy , two of stebunhith and hackney ; and of the charters , of romeney-marsh , of the tinners in cornwall , &c. with indeed all other books that respect the law , that were useful , and in general esteem , which is invitation sufficient to all the gentlemen of the gown , to buy upon this occasion , what they cannot so easily meet with , or not at all find , when their occasions require , or they are desirous of having them . this auction will begin on monday the second day of july , 1683 , at the first house on the left-hand in flying-horse court , in fleetstreet , near the kings-head tavern at chancery-lane end ; at the hours of nine in the morning , till twelve ; and from three in the afternoon to six . at which place , and at the aforesaid hours , the books will be exposed to view , for three whole days before the sale , to all gentlemen that please to inform themselves in the editions or conditions of them . the conditions of sale. 1. that he who bids most is the buyer ; and if any difference ariseth , the same book or books to be again exposed to sale. 2. that the books in this catalogue ( not otherwise expressed ) are , for ought we know , perfect ; but if any of them appear to be otherwise ( before they be taken away , ) the buyer shall have his choice , whether he will leave or take the same . 3. that the money for the book or books so bought , is to be paid within a fortnight after the auction is ended , at the place of sale , where , upon payment thereof , the book or books shall be delivered , within the time aforesaid . law-books in folio . 1 ashes tables to the l. cook 's reports , as also to the body of the law , with m.ss. notes , guarded & enlarg . with paper , in one vol. lond. 1614 2 table to fitz-herbert's grand abridgment of the law , by rastal . 1500 3 townsends tables to the presidents of pleadings of the common-law . 1667 4 pulton's collect. of statutes , with manby's continuat . ad an. 19. car. 2. 2 vol. 1632 5 — kalender , or table of all the statutes , comprehending their effects . 1606 6 a collect. of statutes , in norman , french , & english , printed anno 19 regis h. 7.   7 rastal's statutes at large , from magna charta , ad annum 5 phil. & mariae 1618 8 — his collection of entries , declarat . barres , replicat . &c. best edit . 1596 9 — liber intrationum , complectens diversas formulas placitorum , best edit . answering to the references in townsend's tables 1546 10 statutes of ireland , from the 10 th year of k. h. 6. to the 14 th of q. eliz. 1572 11 — of ireland , in the 10 th & 11 th years of k. charles i. 1635 12 bolton's justice of peace for the kingdom of ireland — dublin , 1638 13 skene ( sir j. ) regiam majestatem , or the auld laws and constitutions of scotland , collected out of the register , from malcolm ii. to k. james . lond. 1609 14 catalogue & collect. of cromwell's ordinances , proclam . &c. from 53 to 1654 15 — another of the same , larger letter , gilt leaves 1653 16 — another collect. in 1657 , with the petit. and advice of the knights . 1657 17 scobell's collect. of acts & ordinances , examined by the original records . 1658 18 a collect. of acts for the years 61 , 62 , 63 , 78 car. 2. bound in fillets , 3 vol. 1661 19 pulton , de pace regis & regni , of treasons , homicides , felonies , &c. 1610 20 — abridgment of all the statutes , comprehending their effects 1608 21 collect. of all the statutes in use , and those repealed abridged , with notes and references to the book cases & entries , with a table to the whole 1670 22 l. cook 's reports , in french , 11 parts , 2 vol. with a large table , ( lett . ) 1672 23 — his reports in english , 13 parts , compleat , with a table , 2 vol. 1680 24 — his institutes of the laws of england , 4 parts compl . with tab. 3 vol. 1680 25 — his book of entries , containing approved presidents , &c. 1614 26 prynne ( w. ) animadversions on , amendments of , additional explanatory records to the 4 th part of l. cook 's institut . viz. jurisdict . of courts 1669 27 cotton ( sir rob. ) abridgment of the records in the tower of london , from k. edward the 2 d , to k. richard , with tables by prynne 1679 28 brook's grand abridgment of the law , 2 parts , compleat 1571 29 statham's abridgment of the old law , of a curious character and paper , liber antiquissimus , & rarissimus omnium librorum ad legem spectantium .   30 rolls abridgment of the law , 2 parts , one vol. with tables 1668 31 sheppard's abridgment of all the common & statute-law now in force , with 1500 words and terms of the law explained , with alphab . tab. 1656 32 — law of common assurances touching deeds in general 1669 33 — practical counsellor in the law , touching fines and recoveries , &c. 1671 34 wingate's maxims of reason , or the reason of the com. law of england , 1658 35 sir bridgman's conveyances , select presidents of deeds & instruments . 1682 36 plowden's reports compleat , 2 parts , 3 tables , with m.ss. notes 1578 37 dyer's reports , with the large table 1621 38 keilway's reports , with notes , large paper 1602 39 crook's reports , temp. caroli , jacobi , & elizab. with new notes , 3 vol. 1683 40 hutton's reports in the common-pleas , temp. jacob. & caroli 1656 41 hobart's reports in the common-pleas , with a table 1658 42 — another , purged from errors , enlarged with marginal notes 1678 43 yelverton's reports in the kings-bench 1661 44 latches reports in the kings-bench 1662 45 style 's narrationes modernae , his reports , with the numb ▪ rolls of the cases . 1658 46 owen's reports in the com. pleas , reconciling the differ . in the year-books 1659 47 winch's reports in the common-pleas , tempore jacobi 1657 48 lane's reports in the exchequer , with 2 alphabetical tables 1657 49 hetley's reports in the common-pleas 1658 50 sir savil's reports in the exchequer , tempore elizabethae 1675 51 rolles reports in the king's bench , tempore jacobi , 2 vol. 1675 52 sir jones's reports in the kings-bench 1675 53 modern reports in the courts of kings-bench , chancery , com. pleas , &c. 1682 54 anderson's reports compleat , 2 parts , tempore elizabethae 1664 55 moor's cases and reports , published by sir geoffery palmer 1663 56 bendloes reports , temp . h. 8. edw. 6. phil. & mar. & elizab. 1661 57 noy's reports in the time of q. eliz. k. james , k. charles 1656 58 ley's reports in the court of wards , and other courts , temp . jac. & car. 1659 59 dav. jenkins rerum judicatarum centuriae octo , or his reports 1661 60 aleyn's select cases reported , with tables 1681 61 popham's reports and cases , with other cases , by other learned pens 1656 62 vaughan's reports and arguments in the common-pleas 1677 63 leonard's reports compleat , 4 parts , vvith the general table , 2 vol. 1658 64 davis's reports in the courts of ireland 1674 65 case of tenures on the commiss . of defect ▪ titles , argued by judges of ireland 1639 66 reports , vvith choice cases in lavv , in k. james & k. char. time , by hutton , 1682 67 bulstrode's reports in the kings-bench , in k. james's time , 3 parts , compleat . 1657 68 palmer's reports , vvith tvvo tables , temp . caroli secundi 1678 69 dalton's country-justices practice out of the sessions 1655 70 — another , vvith the duty and povver of justices in the sessions 1682 71 — office and authority of sheriffs enlarged , since dalton 1670 72 keeble's assistance to the justices of the peace 1682 73 cawleys lavvs of q. el. k. ja. k. char. 1 & 2 , touching jesuits , & pop. recus . 1680 74 duke's lavv of charitable uses , vvith sir moor's readings 1676 75 draught of an act for county-registers , wills , administrations , for preventing delay and charge in the chancery and common-lavv 1656 76 thesaurus brevium , or a collection of approved forms of writs 1661 77 brownlow's brevia judicialia ▪ a collect. of approved forms of judicial writs . 1662 78 officina brevium , select and approved forms of writs in the com. pleas. 1679 79 registrum omnium brevium , tam originalium , quam judicialium 1634 80 selden's mare clausum , seu de dominio maris libri duo 1635 81 — idem , englished by j.h. 1663 82 — his tracts of the original of ecclesiast . jurisdict . of test . &c. 1683 83 grotius of the rights of war and peace , engl. by evats ▪ 1682 84 minshews dictionary , 9 languages , explaining the obsolete words of the lavv.   85 cowells interpreter of words & terms of lavv , enlarg . by manley , lond. 1672 86 blount's lavv-dictionary , explaining the words of the lavv 1670 87 spelmanni glossarium , continens latina , barbara , peregrina , obsoleta , & novatae significationis vocabula , scholiis illustrata , ( opt . edit . ) 1664 88 — idem alterius editionis 1626 89 lyndwood provinciale , seu constitutiones angliae , cum summariis & annot. 1501 90 — idem cum constitutionibus othon . & othoboni , & aliis constitutionibus londinens . hanc editionem citat cook on littleton 1525 91 le grant coustumier du pays , & dutche de normendie , avec la chartre de normandie , & autres ordinances , best edit . — rov . 1517 92 bracton de legibus & consuetudinibus angliae , lib. 5 distincti — lond 1569 93 lambard de priscis anglorum legibus , sax. lat. cum legibus hen. primi , una cum glossario earum antiquo 1644 94 suarez de legibus omnibus tractatus amplissimus 1679 95 dugdale's origines juridiciales , with cuts 1680 96 perfect journal of the house of peers , beginning octob. 21. 1678. containing an exact account of the proceedings of the house , to the sitting of the next parliam . march 6. 1678. a large manuscript , fairly writ . 1678 97 sovereigns prerogative , and subjects priviledges , comprised in several speeches , cases , & arguments of law , betwixt the king and parliam . 1658 98 townsend's historical collections of the proceed . of q. eliz. 4 last parliam . 1680 99 ryleys ▪ placita parliamentaria , una cum judiciis forensib . large paper . 1661 100 hernes ▪ pleader , containing perfect presidents & forms of declar. plead &c. 1657 101 compleat sett of year-books , viz. edw. 3.4 parts . h ▪ 6.2 . ed. 4. long quinto of e. 4. hen. 4 , & 5. e. 5. r. 3. h. 7 , & 8. with m.ss. notes , 10 vol. 1562 102 tables to the whole body of the law , & to cooks reports , 2 vol. by ashe . 1614 103 brown's formulae bene placitandi , a book of entries compleat , 2 parts . 1671 104 winches book of entries , declarations , &c. 1672 105 thompson's liber placitandi , a book of special pleadings and presidents 1674 law-books in quarto . 1 littletons tenures 240 , french , enlarged with paper , with several manuscript notes . lond. 1621 2 fitzherbert's natura brevium , french , guarded and enlarged with paper , with manuscript notes and references 1616 3 sir h. finches ▪ discourse of the law , interleav'd with paper , with manuscript notes , & references to the law-books , 2 vol. 1661 4 compleat clerk , containing the best forms of presid . of assur . conveyanc . 1664 5 west symboleography , or book of presidents , 2 vol. compleat 1647 6 fidell's perfect guide for a lawyer , presid . of conveyances out of coke , &c. 1654 7 perfect conveyancer , presidents out of henden , noy , mason , &c. 1663 8 doderidges english lawyer , a method for managing the laws of the kingd . 1631 9 lawyers logick , exemplifying the precepts of logick by the com. law. 1588 10 l. bacons elements of the law , and its use , containing rules , maxims , &c. 1639 11 noy's grounds and maxims of the laws of this kingdom 1641 12 moyles exact book of entries of the most select and judicial writs 1658 13 smalls exact collection of declarat . with pleas , replicat . rejoinders , &c. 1653 14 ashton's placita latinè rediviva , a book of entries 1661 15 earle doctrina placitandi , ou l'art de bon pleading 1677 16 townsends 2 d book of judgments in real personal actions 1674 17 godbolts reports of certain cases arising in the court of records 1653 18 special law-cases about persons & estates , collected out of the body of the law , large paper 1641 19 gouldsboroughs reports , with learned arguments at the bar 1653 20 marches reports , or new cases , with judgments on them , with a table 1675 21 brownlow and goldesborough's reports compleat , 2 parts , one vol. 1651 22 — declarations & pleadings in english , 2 parts compleat , 2 vol. 1651 23 — judicial writs , shewing the forms of entries of executions 1653 24 powel's attourneys academy in the courts at westminster with the fees 1628 25 — another , with the attorneys almanack , and directions for search of the records in the tower , with the office of a remembrancer 1617 26 book of presidents in the manner of a register 1584 27 cromptons author . & jurisdict . of courts , courts de justices , de forest , &c. 1637 28 — office and authority of the justices of the peace 1583 29 coustumes du pais de normandie , anciens , ressors & euclaves de iceluy — a paris 1586 30 les coustumes du pais & duche de normandie , avec commentaries & tables , editionis raphael du petit val — ibid. 1599 31 the charter granted to the tinners of devonshire , by k. edw. 6. with its several confirmat . & a table of the stat. of the stannary , very ancient   32 ancient customs of stebunhuth & hackney in middlesex , received and approved by the lords of the mannor , with their confirmations 1587 33 rights of the kingdom , & customs of our ancestors , discussed through the british and saxon laws , with the power of parliaments , by mr. sadler , sometime town-clerk of london ( not castrated ) 1649 34 taylors history of gavelkind , and its etymol . with the life of w. conq. 1663 35 summers treatise of gavelkind , with the ancient customs of kentish-men . 1665 36 manwoods treatise of the laws of the forest , with their beginning 1664 37 sir walt. rawleigh's prerogative of parliaments in england 1628 38 hakewells liberty of the subject , against the pretended power of imposit . 1641 39 husbands exact collect. of all remonstrances , declarat . votes , orders , ordinances , proclam . petit. messages betwixt the king & parliament 1643 40 abstract of all the penal statutes which be in general force and use 1581 41 stamfords pleas of the crown with the king's prerogative 1607 42 prynnes aurum reginae , a collect. of the tower-records as to the qu. gold 1668 43 interpreter of the signification of the words of the law , by cowell 1641 44 skenes exposition of the terms and difficil words of the law 1637 45 fitz-herberts grand abridgment of the law , 2 parts compl . with a table 1577 46 brookes grand abridgment of the law , smallest in 4 to 1576 47 callis reading upon the stat. 23. hen. 8 of sewers 1647 48 l. chanc. ellesmeres speech in the exchequer touching the post-nati 1609 49 sir james dyers reading of wills , brograve of jointures , and risden of forcible entry 1648 50 opinions of 4 judges about nusances of dwelling-houses 1639 51 sir francis bacons readings upon the statute of uses 1639 52 city-law , or the course of proceeding in all its courts , with the offices 1639 53 marches reports , or new cases , with the three learned readings of dyer , brograve , and risden , about wills , &c. 1648 54 sheppard's grand abridgment of common and statute-law , compl . lond. 1675 55 — touchstone of common assurances and conveyances 1651 56 — faithful counsellor , or the marrow of the law , 2 parts , 2 vol. compl . 1651 57 — president of presidents 1625 58 fleta de antiquis britanniae legibus , cum commentariis seldeni 1647 59 godolphin's abridgment of the ecclesiastical laws of this kingdom 1680 60 orphan's legacy , or testamentary abridgment , 2 d edit . 1677 61 swinburn's treatise of testaments and last wills 1590 62 fr. clerke praxis curiae ecclesiasticae , edita per bladen 1666 63 selden's history of tithes , and the practice of paying them 1618 64 welwood's abridgment of all the sea-laws 1613 65 fulbeck's parallel of the civil law , with the canon law , and the common-law , as also the pandects of the law of nations 1602 66 ridley's view of the civil and ecclesiastical law 1607 67 trial of bastardy , or the manner of the government of england , termed spiritual or ecclesiastical , with tables of prohibited marriages , and of the english and positive canon catalogues , &c. 1594 68 hughs grand abridgment of the law , 3 vol. compleat 1660 69 — exact abridg. of the acts and ordin . of parliam . from 40 to 1656. 1657 70 — abridgment of the cases of the law 1657 71 — commentaries upon original writs 1655 law-books in octavo , twelves , &c. 1 hawkes grounds of the laws of england , & reasonableness of the law 1657 2 philips directions for the study of the law 1662 3 — principles of the law reduced to practice 1661 4 noy's compleat lawyer , or a treatise of tenures and estates 1670 5 — grounds and maxims of the laws of england 1663 6 wentworths institutions , or principal grounds of the laws of england 1552 7 doctor and student , a dialogue about the laws of england 1607 8 abridgment of the doctor and student 1658 9 davenports abridgment of ld. cooks commentaries upon littleton 1652 10 irelands abridgment of the lord cooks 11 reports 1657 11 trotmans abridgment of the lord cooks reports , french , with a table 1640 12 abridgment of the 12 , 13 reports of the l. cook , by manley 1670 13 wingates abridgment of all the statutes in force and use 1678 14 — another continued and inlarged 1681 15 abridgment of the statutes in the reigns of k. charles 1 & 2 , by manley 1674 16 abridgment of the stat. 16 , 17 , 18 car. 1. & 12 , 13 car. 2. 1663 17 abridgment of the book of assizes , french 1555 18 abridgment of brooke , englished by march , with a table 1651 19 abridgment of dyer , french 1609 20 abridgment of the reports and commentaries of plowden 1650 21 abbreviamentum magnum statutorum angliae , ad ann . 15 hen. 8.   22 bridall's abridgment of the laws of england , touching treason , rebellion 1679 23 — view of the laws of england , viz. stat. law , com. law , & customs . 1673 24 epitome of the common-law , 2d edit . enlarged by glisson , and gulston 1677 25 magna charta antiquissima ( sine titulo ) latinè lond. 1525 26 — another ( editionis tottel ) cum statutis antiquis tum recentibus 1576 27 — another , cum caeteris antiquis statutis per exemplaria examinata 1556 28 — another in english , with notes and observations of ed. coke . 1680 29 fitzherberts natura brevium , french 16●9 30 la veiux & natura brevium dernierment corrigee 1584 31 gregory's abridg. des cases concernants les titles des leys du royalme 1599 32 plowdens queries , or a moot-book of choice cases , englished by h.b. 1662 33 hughs queries , or choice cases for moots , several points of law resolved 1675 34 tenures de mons . littleton ( charta magna ) cum multis notis m.ss. 1604 35 littleton in french and english , with a table 1671 36 — another in french 1617 37 perkins of the laws of england , french , with manuscript notes 1581 38 clodovei childeberti libellus antiquitatis , continens legem salicam , & leges burgund . alamannorum , saxonum , ex veteribus libris 1573 39 coustumes des pais , & dutche de bretagne , 24º rov . 1603 40 fortescue de laudibus legum angliae , with the notes of john selden , esq 1672 41 britton de legibus antiquis angliae , with wingates corrections 1640 42 glanvil tractatus de legibus & consuetudinibus angliae , cum commentario fortescue , de politica administratione & legibus angliae   43 — another , cum diversis manuscriptis examinatis cum jndicibus 1673 44 williams excellency of the laws of england , with judge hales opinion in several select law-cases 1680 45 sir rob. brookes reading on the statute of limitations 1647 46 glisson's survey of the law , with the judges opinions in several cases 1659 47 heydons ▪ idea of the law , and the idea of government and tyranny 1660 48 meritons landlords law , a collection of several cases about leases , &c. 1681 49 tenants law , several cases in the law about leases , rents , distresses 1674 50 enchiridion legum , a discourse of the beginning , nature , progress , and use of the law 1673 51 finches law , with a discourse thereof , in 4 books , english 1636 52 summary of the com. law of england , with tablets for method of study 1654 53 collins summary of the laws of england , as to justices of the peace 1663 54 pages ▪ jus fratrum , the law of brethren , shewing the variety of customs in several counties 1658 55 fountain of the law , shewing the method of proceeding in all actions 1658 56 terms of the law , with the exposition of them , enlarged 1624 57 leighs philological commentary of the obvious & useful words of the law 1658 58 doderidges honour's pedigree , rights and priviledges of the nobility , according to the customs and laws of england 1657 59 treatise of the nobility of the realm , collected out of the law 1642 60 the magazine of honour , or the degrees of nobility , by bird 1642 61 seldens priviledges of the baronage in parliament 1642 62 sheppards actions upon the case for deeds , viz. contracts , assumpsits , &c. 1675 63 — actions for slander , a collect. of 1000 cases under heads 1674 64 — england's balme , or proposals for regulating the law 1657 65 — view of all the laws and statutes concerning the service of god 1655 66 statuta vetera & recentiora , a collection of statutes about the practice of the law 1672 67 hernes law of conveyances , the nature , kinds , effects of them 1658 68 hernes law of charitable uses , or the 43 statute of eliz. explained lond. 1663 69 blounts statutes concerning bankrupts , methodically digested 1670 70 stones readings on the 13 of eliz. touching bankrupts 1656 71 styles practical register , consisting of rules , orders , and observations 1657 72 brevia selecta , or choice writs , not usually included in the writ-books 1663 73 vaughans discourse of coin and coinage , with an account of the law therein 1675 74 townsends preparative to pleading in the court of common-pleas 1655 75 judg jenkins works on divers statutes , relating to the right of the king and subject 1680 76 lambards office of the justices of peace , in two books 1581 77 chamberlains compleat justice , a collect. of stat. & authors about that office 1681 78 sure guide for his majesties justices of the peace , by sheppard 1581 79 justice of peace clerks cabinet , a book of warrants by sheppard 1660 80 kilburnes choice presidents upon all acts of parliament relating to the office of a justice of the peace 1681 81 practick part of the office of a justice of the peace 1682 82 justice restored , or a guide for the justices of peace in and out of sessions 1661 83 wingates justice revived , the whole office of a country-justice 1661 84 hornes mirrour of justices , french 1642 85 youngs table of the statutes relating to justices 1663 86 clerks manual , a collection of forms of declarations , pleas , &c. 1678 87 browns entring clerks vade mecum , or a collection of presidents 1678 88 youngs clerks guide , a collect. of choice english presidents , 4 parts compl . 1682 89 — another , containing presidents for all sorts of indentures , &c. 1682 90 placita generalia & specialia , with the forms of entring pleadings 1674 91 officium clerici pacis , a book of indictments , informat . appeals , inquisit . 1675 92 billinghursts arcana clericalia , the mysteries of clarkeship 1674 93 young clerks tutor enlarged , a collection of presidents , of recognis . &c. 1682 94 compendious and accurate treatise of fines and recoveries upon writs of entry 1678 95 office of the clerk of assize , and of the peace , with a table of fees 1676 96 young clerks companion , or a manual for his daily practice 1667 97 the clerk of assize , judges-marshal , and cryer , by t.w. 1660 98 touchstone of presidents , relating to judicial proceedings in law , by g.f. 1682 99 a book of presidents and instruments 1616 100 the sollicitor , together with his parts and qualities , and fitting endowments 1663 101 the compleat sollicitor , performing his duty , and teaching his client 1668 102 attorney of the court of common-pleas , tothils transactions of chancery 1648 103 attourney of the court of common-pleas , with the practice of the court 1642 104 attourneys guide , suing out fines and recoveries , by g.t. 1656 105 compleat attourney , and his office in the prosecution of any action 1653 106 layman's lawyer , or the 2 d part of the practice of the law , with the duty of a gaoler 1654 107 sir matt. hales pleas of the crown , with a summary of the matters 1682 108 bagshaw's rights of the crown of england , as it is established by law 1660 109 jura coronae , his majesties rights asserted against papal usurpations 1680 110 judgments in the upper-bench upon the most difficult points in all actions 1655 111 ancient & modern practice of the kings-bench & com. pleas , with the rules of the said courts , with the practice of the sheriffs court , and customs of the city lond. 1674 112 rules and orders for the court of upper-bench at westminster 1655 113 vernon's consideration for regulating the exchequer 1642 114 fanshaws practice of the exchequer-court , with its offices 1658 115 practice of the court of chancery , with the nature of the offices of that court 1672 116 transactions of the court of chancery , both by practice & president 1649 117 lord ellesmeres observations concerning the office of lord chancellor 1651 118 collection of orders heretofore used in chancery 1649 119 cary's reports , or causes in chancery , out of lambert , &c. 1650 120 filacers office , with the nature and forms of their writs 1655 121 kitchins court leet , court baron , with the form of keeping them 1580 122 — jurisdictions or lawful authority of court-leets , 5 th edit . enlarg . 1675 123 greenwoods practical demonstration of county-judicatures 1675 124 corporations , fraternities , and guilds , with forms of the charters of corporations 1659 125 court-keepers guide , with the jurisdiction of these courts , by sheppard 1650 126 archion , or a commentary on the high-courts of justice in england , by lambard 1655 127 articuli ad novas narrationes , a book of diversity of courts 1561 128 lord cokes compleat copy-holder , with a supplement 1668 129 meritons guide for constables , church-wardens , overseers of the poor 1669 130 offices and duty of constables , bar-holders , tything-men , by sheppard 1641 131 duty of constables , &c. with the duty of the surveyors of the high-way 1641 132 babingtons advice to grand jurors in cases of blood 1680 133 trials per pais , or the law of england as to juries , by g.d. 1682 134 — another , methodically composed , by s.e. 1665 135 englands liberties , or the free-born subjects inheritance 1682 136 blount's ancient tenures of land , & jocular customs of some mannors 1679 137 wilkinsons office and authority of coroners and sheriffs , with the return of writs 1657 138 smiths commonwealth of england , with the manner & governm . thereof 1635 139 march amicus reipublicae , the commonwealth's friend 1651 140 vaughan's practica walliae , or the proceedings of the great sessions of wales , with the old statutes of wales at large , & abridgment of others 1672 141 reports and pleas of the assizes at york 1651 142 marius advice concerning bills of exchange , with several forms of bills 1674 143 atwoods jani anglorum facies nova , touching the great councils of the kingdom , several monuments of antiquity 1680 144 — another , containing the laws ecclesiastical and civil , about the clergy in voting in capital cases 1680 145 petyts ancient right of the commons of england asserted 1680 146 — miscellanea parliamentaria , presidents of freedom from censures , and arrests of the parliament-members 1680 147 hakewells old way of holding parliaments in england , & their priviledges 1660 148 copy of the two journal-books of the house of commons , including their transactions 1680 149 the whole series of the transactions of the peers as to the popish plot 1681 150 l. hollis grand question about the judicat . of the peers in skinners case 1669 151 — his remains concerning the judicature of the bishops in parliam . 1682 152 the connexion , a collect. of some principal matters in k. james's reign 1681 153 hobbs art of rhetorick , with a discourse of the laws of england 1681 154 lex londinensis , or the city-law , with its customs , & pract. of the courts 1680 155 camera regis , or the state of the city , as to its officers , courts , customs , 1678 156 calthrop's reports touching the customs & liberties of the city of london 1655 157 act for the reformation of abuses in the wardmote-inquest , with the articles & charge of the said inquest , with others relating to the city 1617 158 charter of henry k. of england , concerning the ordinance romeney-marsh 1597 159 turner's case of the bankers stated , the property of the subject asserted 1675 160 right of dominion , & property of liberty , with the necessity of monarchy 1655 161 catalogue of the law-books of england , interleav'd with m.ss. additions 1671 162 — another , with an account of the best editions , volumes , prices , &c. 1683 163 jus sigilli , or the law of england touching the four principal seals 1673 164 ashes tables to the lord cokes 11 reports , of the old editions 1618 165 — table to the statutes of equity , with dallisons & bendloes reports 1609 166 — table to judge dyer's reports 1622 167 — table to edw. 5. rich. 3. hen. 7 , & 8 , by fleetwood 1579 168 theloall digest of original writs 1579 169 ridley's view of the civil & ecclesiastical law , with gregory's notes 1675 170 molloy de jure maritimo & navali , of affairs maritine , &c. 1682 171 deggs parfons councellor , with the law of tithes or tithing 1681 172 hugh's parsons law , or a view of advowsons 1663 173 meriton's parsons monitor , consisting of cases concerning the clergy 1681 174 — touchstone of wills , testaments , and administrations 1674 175 godolphin's view of the admiral jurisdict . with the laws of oleron abridg . 1661 176 clerke praxis curiae admiralitatis 1679 177 wentworth's office and duty of executors , a treatise of wills 1663 178 appendix to the office and duty of executors , by t.m. 1678 179 sharrock's provinciale vetus provinciae cantuariensis , cum selectioribus linwoodi annotationibus , & constitutionibus othoboni 1664 180 cowelli institutiones juris anglicani 1630 181 — another in english , digested into the method of the civil institutions 1651 law-books submitted in folio . 1 pvlton's collection of all the statutes in use , and those repealed abridged , lond. 1618 2 — abridgment of all the statutes from magna charta to 9 of k. james 1617 3 — de pace regis & regni , touching treasons , homicides , felonies , &c. 1609 4 rastal's collection of all the statutes at large , with marginal notes , 2 vol. 1618 5 — collection of entries , declarations , &c. large paper 1566 6 collection of the ordinances , proclamations , declarations of o. cromwell 1654 7 collection of acts of k. charles the 2 d , in 1660 , 61 , 62 , 63 1660 8 winches book of entries , declarations , pleadings , &c. 1672 9 lord cookes institutes compleat , 4 parts , 3 vol. with tables 1656 10 — pleas of the crown , 3 d part of the institutes 1644 11 — reports in english , 13 parts , with a large table 1680 12 — in french , 11 parts , in 2 vol. lond. 1619 13 — 12 th and 13 th parts , 2 vol. 1656 14 prynnes animadversions on the lord cooks jurisdiction of courts ( lett . ) 1669 15 keilways reports with dallison and bendlow , and a table 1633 16 leonard's reports , with alphabetical tables , 3 d part 1663 17 hobarts reports , ( 4 th edit . ) enlarged and corrected , with a table 1633 18 ley's reports in the court of wards 1659 19 huttons reports in the com. pleas , with references to some late reports 1682 20 davis reports , with a table 1674 21 jones's reports in the kings-bench 1675 22 modern reports , collected by a careful hand , temp . car. 2 1682 23 law of common assurances , touching feoffments , gifts , grants , &c. 1669 24 practical counsellor , touching fines , recoveries & judgments 1671 25 book of entries , containing many choice presidents , by brown , compleat 1675 26 — formularum bene placitandi , pars secunda 1674 27 judicial writs , with their returns & entries in the common-pleas 1679 28 country-justice , both in and out of sessions , with the statutes abridged 1682 29 reports of the learned judg hobart 1680 30 lyndwoods provinciale , continens constitutiones provinciales quatuordecim archiepiscoporum cantuar. à step. langham ad h. chicleium , oxon 1679 31 rolls abridgment of the law , ( with l. hales preface ) 2 parts , one vol. lond. 1668 32 h. grotius of the rights of war and peace , engl. by evats 1682 33 selden's tracts of the original of ecclesiastical jurisdict . of test . &c. 1683 34 a compleat collection of year-books , with additions of new notes , and references to the abridgments of brooke and fitzherbert , with tables to several of the books , not before extant , in ten volumes 1672 35 edward the first and second , published from the manuscripts , and with the notes and tables of serjeant maynard 1678 36 year-books of edward the 4 th , henry the 4 , 5. hen. 6. 2 parts . edw. 5. rich. 3. hen. 7 , 8. with manuscript notes , five vol.   37 — henry 7 , 8 , separatim , with large manuscript notes 1555 38 rastal's collection of statutes , from magna charta to q. elizabeth   39 sinderfin les reports des divers special cases bancke le roy , temp . car. 2. 1683 law-books omitted in quarto . 1 tenures de mons . littleton , interleav'd with paper , with manuscript notes lond. 1583 2 hughs abridgment of publick acts and ordinances of parl. from 40 to 56 1657 3 — abridgment of the law , with the cases thereof 1657 4 brownlows and goldesboroughs reports , 2 parts compleat 1654 5 — declarations & pleadings in english , or forms of proceedings in law 1653 6 — judicial writs , as used in the common-pleas 1653 7 smalls collection of declarations , pleas , & entries of judgments 1653 8 goldesboroughs reports , or choice cases agitated in all courts at westminster 1653 9 moyles entries of the most select judicial writs used in the common law 1658 10 placita latinè rediviva , a book of entries , by aston 1663 11 earle doctrina placitandi , ou l' art & science de bon pleading 1677 12 sheppards abridgment of the common and statute-law , alphabetically digested under proper heads and titles , 3 parts , one vol. lond. 1675 13 — faithful counsellor , or marrow of the law , first part 1653 14 compleat clerk , containing forms of all presidents for conveyances , &c. with forms of bills , pleadings , & answ . in chancery , by eminent lawyers 1677 15 henden , noy , mason , fleetwood , select & choice presidents of conveyances 1655 16 guide for a studious lawyer , presidents out of lord coke , hobart , &c. 1654 17 doderidges english lawyer , describing a method for managing the laws 1631 18 life and reign of king edward the 6 th , by sir g. hayward 1580 ryves vicars plea , declaring the right of tithes , notwithstanding impropriat .   history of the ancient and modern estate of the principality of wales   19 nic. bacons historical discourse of the uniform government of england , with a discourse of the power and priviledges of parliament , by way of preface to the second part , two parts compleat 1647 20 sadlers rights of the kingdom , and customs of our ancestors , with the power of parliaments 1681 21 powel's attorneys academy , and almanack , repertory of the records in chancery and the tower 1631 22 crompton's office and authority of the justices of the peace 1606 23 reports or new cases , with the reasons of the resolutions 1648 24 godolphins orphans legacy , or last wills , of executors , of legacies 1674 25 fulbeckes pandects of the law of nations , with the parallel 1602 26 treatise of the laws of the forest , with what a forest is , &c. by manwood 1615 27 fitz-herbert's grand abridgment of the law , fair and large cutt , ( best edit . ) with a table , and some manuscript notes 1577 28 womans lawyer , or the rights belonging to women 1632 29 boon examen legum angliae 16●● 30 wisemans law of laws , or the excellency of the civil law 16●● 31 philips reforming registry , or a representation of the mischiefs of registries , proposed to be erected in every county 1671 32 — legality , reason , &c. of the rights & priviledg . of the kings servants 1671 33 prynne's historical vindication of the good old fundamental rights , liberties and properties of english freemen , 3 d part 1657 34 — sovereign power of parliaments and kingdoms ' 3 d & 4 th parts 1643 35 — plea for the lords , a vindicat. of the legislative power of the peers , with his speech , dec. 4. 1648 , touching the satisfact . of kings answers 1649 36 collection of statutes alphabetically from magna charta , to 1597   law-books omitted in octavo , twelves , &c. 1 wingates abridgment of all the statutes in force and use 1655 2 — another , beginning at magna charta , alphabetically digested 1655 3 gregory's moot-book in french 1599 4 wingates body of the common-law of england 1678 5 leighs illustration of the useful words , with their distinctions in the law 1652 6 exposition of the terms of the law , without title   7 ashes tables to the statutes of equity , with dallison & bendlows reports 1609 8 — table to the reports of judge dyer 1600 9 elenchus annalium edw. 5. rich. 3. hen. 7 , 8. 1597 10 th. bassetts catalogue of the law-books lond. 1682 11 — another , reducing the books to proper heads 1682 12 actions on the case for deeds , collected out of the body of the law 1675 13 — another , with 2 alphabetical tables 1675 14 — actions on the case for slander , by sheppard 1674 15 glisson & gulstons survey of the law , with the nature of a writ of error 1659 16 marches actions for slanders , 2 parts compleat 1674 17 — another , containing what words are actionable in law 1648 18 law of charitable uses , as presidents upon that statute of uses 1663 19 — another , teaching how to sue out and prosecute on that statute 1660 20 kitchins jurisdictions of courts , and the authentick forms of writs 1653 21 greenwoods ministerial authority of coroners and sheriffs 1675 22 magna charta , & caetera statuta , nunc per exemplaria examinata 1556 23 magna charta , edit . tottell 1576 24 tenures de littleton , cum notis manuscriptis 1604 25 tractatus de consuetudinibus angliae , per glanvillum 1673 26 direction or preparative to the study of the law , by fulbecke 1608 27 clerks guide , 4 parts compleat , by j.h. counsellor 1682 28 entring clerks vade mecum , by brown 1678 29 placita generalia & specialia , in a collection of presidents 1674 30 practick part of the law , shewing the office of an attourney 1666 31 compendious treatise of fines and recoveries upon writs entry 1678 32 the sollicitor , teaching his client in all courts 1666 33 statutes concerning bankrupts methodically digested , by t.b. 1670 34 — ancient tenures of land , and customs of mannors 1679 35 fragmenta antiquitatis , with the jocular customs of mannors 1679 36 city-law , with its customs , powers , & practice , & acts of com. council 1680 37 state of london viewed , containing its antiquity , fame , walls , &c. 1678 38 jani anglorum facies nova , by atwood 1680 39 copy of the journal-book of the last-parliament , with the history and discovery of the late popish plot 1680 40 journal-book of the commons , containing the discovery of the popish plot by the king to the two houses of parliament , with danby's accusation 1680 41 ancient right of the commons , & that they were ever an essent . part of parl. 1680 42 — miscellanea parliamentaria , by petyt 1681 43 cases of the bankers and their creditors examined and stated 1675 44 anthrobus and impey , choice writs , being extents directed to bishops 1663 45 wilkinsons office of coroners and sheriffs 1657 46 view of the civil and ecclesiastical law , by ridley 1675 47 parsons law , or a view of advowsons , by hughs 1663 48 — another , collected out of the body of the law 1641 49 praxis curiae admiralitatis , per clerk 1679 50 cowells institutes of the laws of england 1651 52 office of a filacer , with a table of their fees 16 52 office of the clerk of the market , and of the laws of provision 1665 53 cary's reports in chancery , with the king's decree in chancery 1650 54 grimstones collection of orders used in chancery 1669 55 reports at the assizes of york , with presidents for pleading at assizes ▪ 1651 56 proceedings at the sessions in wales , by vaughan 1672 57 practice of the exchequer court , by fanshaw 1658 58 marches actions for slander , and of arbitrements , two parts 1648 59 — another in english , with a view of all manner of pleadings 1653 60 natura brevium , french , with an ancient one in english , 2 vol. 1580 61 fitzherberts natura brevium , french , with rastals table 1598 62 ordinance of parliament concerning the subsidy of tonnage 1642 63 exposition of the terms of the law , with rules and principles of law 1567 64 — another , with the old terms , french & english 1579 65 — another , augmented in the french and english 1609 66 parsons law , collected out of the body of the common-law 1641 67 wingates abridgment of stat. from magna charta to 1666 , with 4 tables 1666 68 resolutions of the judges on the several statutes of bankrupts 1670 bundles of pamphlets belonging to the law , &c. n o 1 judge thorpes charge at the assizes at york epitomizing the statutes . chancell . ellesmeres speech touching the post-nati . laws and orders of war for the service of ireland . leighs considerations for regulating the high-court of chancery . l. bacons speech concerning the naturalization of the scots . — his charge at the session for the verge , with the jurisdiction thereof . warrens new plea for the old law. proposals for regulating the law , both in sense , form , and practice . vindication of the laws of engl. as established . e.c. treatise of bail and mainprise . right of tithes asserted by our old saxon laws . articles of the parliament exhibited against sir j. brampston , and berkeley , justices , 1641. priviledges and practice of parliaments , with their original , &c. sir nich. bacon's arguments exhibited in parliam . proving the persons of noblemen attachable for contempts against the court of chancery . manner of proceedings in the courts of the sessions of north-wales . city-law , or the course and practice of proceed : at guildhall . argument of nich. fuller , proving that the ecclesiastical commissioners have no power to imprison , or to put his majestie 's subjects to the oath ex officio . decree in the star-chamber , against ingrossing of grain by chandlers , 1633. names of the towns , villages , hamlets , in england and wales , alphabetical . n o 2 gery's proposals for reformat . of abuses and subtilties against the law. vindication of the laws of england , with proposals for regulation . faldo's reformat . of proceed . at law , by way of petit. to the parliam . treatise of the laws of england , with the jurisdict . of the court of parliam . doderidges compleat parson , or a description of advowsons , &c. arguments upon the writ of habeas corpus , with sir j. elliots petition in behalf of the liberty of the subject . decree in the star-chamber against rice griffith , & john scripps . colthrops customs and usages of the city of london confirmed by acts of parl. holborns readings upon the statute of treasons . orders and directions for executing the statutes for relief of the poor . considerations touching dissolving the high-court of chancery . charge given at the verge in k. james's time , by sir fr. bacon . speech without doors , imperfect . answer to that speech call'd mr. challener's . plea for monarchy , in an address to general monck . instructions agreed on in parliament , sent by the commissioners to the hague , with commissioner hollis's speech . his majesty's letter sent by sir j. greenvil from breda . his majesty's letter to the generals at sea from breda . souldiers address under gen. monck to his majesty . discourse for a king and parliament . letter from an independent , to his friend a presbyterian . vindication of the lord-mayor & common-council , 1660. discourse of the settlement and composure of differences in this nation . speech of a member of parliam . tending to the establishment of kingly government . sir fr. lovelaces speech to his majesty , at his arrival at canterbury . covenant acknowledged by an english covenanter . declaration of the true state of the secluded members case . — no 3 cokes readings upon the statute of fines . proposals for regulating the law , and making it plain . collection of the rights of parliament . priviledges of parliaments allowed by the learned in the law. order of holding parliaments in engl. case of ship-money discussed . st. johns speech about ship-money . bagshaws argument in parl. about the cannons of the church . calthropes relation between the lord of the mannor , and the copy-holder . act of common-council to regulate the courts in guildhall . survey of the office of lord high-steward of england . grand-jury-man ' s oath explained . apology for a younger brother , or right of parents dispose their estates . a proclamation for executing several irish statutes . customs , usages , & liberties of the city of london . judge thorpes charge at york assizes . t.e. two charges at the assizes at ipswich . — no 4 st. johns speech about ship-money . case of ship-money discussed . opinions of four judges about nusances in houses . rawleigh's priviledges of parliaments . manner of holding parliaments . orders , proceedings , punishments , and priviledges of parliament . collection of the rights of parliament , out of ancient writers . discourse of the power of the peers and commons in parliament . jacksons free-born english-man's plea for justice . star-chamber cases , & what causes belong to that court. l. bacons ordinances in chancery . hakewells liberty of the subject against impositions . considerations for taking away the court of chancery . — no 5 petition of right of the freemen of england . catalogue of the l. chancellors , l. keepers , & l. treasurers of england . pym's declarat . upon straffords charge of high-treason . sir fr. bacons cases of treason . vindicat. of bagshaw's readings about the cannons , and premunire upon them . argument to prove each subjects propriety in his goods by a learned judge . foresta de windsor , or the meers , meets and bounds of the forest of windsor . liberties and customs of the miners . brooks reading upon the statutes of magna charta . city-law , with the offices disposed of by the lord-mayor . liberties of london , with the charters confirm'd by parliam . and others not confirm'd . speech about ship-money to the lords in parl. 1640. original of parliam . with the saxon denomination of parliam . by sir w. rawleigh . n. 6 pettus treatise of taxes and contributions . case of our affairs in law and religion . leach's proposition for registring of deeds , conveyances , &c. compleat law-judg and lawyer . declarat . of the lords & commons upon the statute that warrants the commission of array . abstract of a treatise about paying of tithes in london . l. bacon's reading upon the statute of uses . ancient land-mark , or the right of the nobility to sit in parliam . discourse of the fundament . laws . k. negat . voice , power of parl. with relat . to the militia . just lawyers complaint against private solliciting of judges . younger brothers apology . free customs and priviledges of stebunhith and hackney , 1617. commoners liberty , or english-man's birthright . experimental essay touching regulat . of the laws of engl. readers speech of the middle-temple on magna charta . case of tristam woodward esq about the mannors of tuddington in bedfordsh . imprisonment for debt , against the laws of god and man. k. james edict against combats . declaration for using lawful sports on the sabbath-day . sir j. maynards case truly stated . poor orphans court , or orphans cry , by m.s. leach bribe-takers of jury-men discovered and abolished . — safe guards for sheriffs and bayliffs . cottons abstract of the records touching the king's revenue . sheppards parsons law. case of ship-money , according to the grounds of law. st. johns speech about ship-money . liberties of the miners in the reign of k. edw. 1. — no 7 proposals of the attourneys of com. pleas for regulat . of the law. serjeant cresholds legacy to his 4 sons . arguments of 4 sages of the law , touching the extent of customs of cities , towns , corporations , &c. leach's proposals for an act to prevent the charge of false arrests . imprisonment for debt against the law of god and man. a compendium of the abuses in the present pract. of the law. proposals for an act for speedy inlarging prisoners for debt . abstract out of the records of the tower , as to the kings revenue . high court of chancery's continuance vindicated . an enquiry , partly approving , partly disproving the pract. of the law. proposals for the principal courts of engl. for keeping terms , &c. star-chamber cases , collected out of crompton , &c. ellesmeres speech touching the post-nati . st. johns arguments , and pyms declarat . upon straffords charge of high-treason . k. james charge against combats , and combatants . — no 8 rules and orders for the court of common-pleas . st. johns speech about ship-money , with m.ss. notes . duke hamiltons case argued by mr. steel . robinsons proposals for new modelling the law. articles of accusat . against justice bramston , and berkeley , &c. by the commons . argument in law touching the bill of the earl of strafford . englands independency on the papal power stated , out of coke and davis . ancient state of the court of requests . doderidges readings of advowsons , and parsons guide as to tithes . arguments on the writ of habeas corpus in the kings-bench . powels direction for search of records in the chancery , tower , exchequer . — no 9 middle-temple readers speech on mag. charta . powell's attorneys almanack . k. james acts of parliament past for the furtherance of religion . safeguard and stay for sheriffs , bayliffs , &c. d. hamiltons case argued before the high-court of justice . articles of direction touching alehouses . orders for the better administrat . of justice . laws divine , and moral for the colony in virginia . diggs , coke , littleton , and selden's conference touching the rights of the subject . articles for the justices of scotland . declaration of nusances of dwelling-houses , with the opinion of the justices as to the law touching bastards . remonstrance to his majesty against ship-money . tithing table . decree in the star-chamber about grain . l. bacon's ordinances for the chancery . — his charge about duels . — no 10 order of keeping a court-leet , &c. with the charge . orders in chancery , in 2 parts . proposals for regulating the chancery . continuance of the chancery vindicat . 3 parts . lawyers last farewel . new case put to an old lawyer . argument proving each subjects right in his goods . j.m. debate in law concerning the militia . warrs corruption of the law debated . rawleighs prerogative of parliam . — his tryal at winchester . l. cokes speech & charge . star-chamber cases , with the causes belonging to that court. brookes reading on magna charta . collection of ordinanc . for the better observat . of the lords-day . civil right of tithes . advertisement to jury-men touching the engl. & heb. witch . fullers arguments in lad & mansels case . commons articles of accusation against bramston , berkeley , &c. — no 11 harringtons form of a common-wealth . rota , or a model of the free state of an equal commonwealth . needhams case of the commonwealth stated in 2 parts . leicesters commonwealth , by parsons , alias doleman . judg jenkins discourse of the inconven . of a long parliam . subjects liberty set forth in the politick power of engl. judgment of the lords against poyntz , darby , &c. for forging an act of parl. seasonable speech in the house of commons , as to the other house . sir john evelyns charge of h. treason against three earls . prerogative of parliam . in engl. by way of dialogue . cooks k. charles's case , or an appeal touching his trial. miltons doctrine & discipline of divorce . — tetrachordon , or 2 d part of his divorce . unlimited prerogat . of kings subverted , proving them accountable for their actions . copy of the commiss . of array granted to marq. of hereford . balls sphere of governm . accord . to law. smiths manner of governm . of engl. no 12 venice looking-glass , or a letter from london to rome , by barbarini . faithful searching word to the parl. ordinances of the lords & commons for abolishing archbishops and bishops . j. goodwins right and might well met . — his anti-cavalierism , or the lawfulness of the war for suppressing that butcherly brood of caval . incend . knaves and fools in folio . an antidote against our unnatural civil wars . remonstr . of the parliam . to the king. englands loud cry for their king. j. miltons doctrine & discipl . of divorce , 2 d edit . — his ready way to establish a free commonwealth with the excellency thereof . castlemains compendium , or a short view of the late ▪ trials in relat . to the plot. pacquet of advice to the men of shaftsbury . withers epistle at random . e. of straffords letters from the tower to his maj. the naked truth . beginning , progress of the sect of arminians . articles of enquiry for the archdeaconry of essex . duels or single combat derived from antiquity into this kingd . silvers paradoxes of defence , proving the true grounds of fight to be in the short ancient weapons . — n. 13 pair of spectacles for this purblind nation , by h.m. blands argument in justificat . of the 5 parliam . members . continuation of remarkable passages , by way of informat . to the parl. forerunner of revenge , or 2 petit. to the k. and parl. touching k. james's death by poyson . the will , & legacies of card. richeleiu . wottons life of the d. of buckingham . petit. of the parl. to his maj. at york . short view of the prelatic . church of engl. j. m. difference about church-governm . ended . north star of engl. aphorisms of the kingd . asserting the parl. to be the moderation of monarchy . pleydells speech touching the church . religion of the dutch , in several lett. causabons question of preaching discussed . l. brook of the nature of episcopacy . tract against usury . cooks k. charles's case , with an additional opinion touching k. james's death . j. miltons tenures of kings and magistrates , 2 d edit . character of a quaker , or the clownish hypocrite . & 3 other tracts finis . libri iuridici & canonici , in folio , quarto , octavo , duodecimo , &c. 1 franc . modii repertorium sententiarum & regularum , itemque dictionum ex universo corpore juris collectarum lugd. 1607 2 elb. leonini centuria consiliorum de dotibus , &c. antw. 1583 3 margarita nova baldi , sive singularia feu repertorium baldi 1497 4 basil . heroldi origines & antiquitates germanicae , viz. leges salicae , alemannorum , saxonum , angliorum , burgundiorum , francorum , &c. bas . 1557 5 joan. seldeni mare clausum , seu de dominio maris lond. 1635 6 corpus juris civilis justinianei , cum comment . accursi , scholiis contii , lucubrationib . gothofredi , glossae obscurior . explicant . cū indicib . s. daoys , 6 vol. lugd 1627 7 corpus juris canonici , cum glossis , ( liber antiquiss . ) forsan unus è primis qui post invent. artis typogr . è prelo prodierit , charact . majuscul . depict . & deaur . pat. 1474 8 did. covarravias opera omnia , cū tractatu de frigiditate in matrimonio fr. 1607 9 jul. clari opera omnia , sive practica civilis & criminal . cum aliis tractat. ib. 1636 10 jo. calvini lexicon juridicum & feudale , cum lucubrationibus varior . gen. 1622 11 franc. suarez tractatus amplissimus de legibus , & deo legislatore . lugd. 1619 12 budaei tractatus de asse , & ejus partibus basil . 13 a large manuscript being a collection of opinions & resolut . of soto , navar-lessius , diana , sayrus , &c. in several cases de matrimonio , with an index .   14 a. tartagni immolensis consilia juridica , consiliisque aliorum 2 vol. trid. 1522 15 commentaria in 1 , 2 pandect . nov. & vet. & in cod. 1 , 2 , additionibus clarissim . illustrata , unà cum authoris vita & opinionib . passim citat . 3 vol taur 1575 16 egid. bellamerae in libros decretales praelectiones , 3 vol. lugd. 1548 17 luc. de pennae commentaria in 3 libr. poster . cod. just . in quibus tractatur de magistratibus francorum , & quantum different à magistratib . romae 1597 18 an. alciati vol. 1 operum , continens comment . in titul . de jurisd . judicum , fr. 1619 19 g. tholosani opera omnia ad jus pontificium spectantia , duab . part . lugd. 1612 20 dom. fusarius de substitutionibus in genere , viz. de vulgari , pupillari , &c. col. 1633 21 pet. rebuffi praxis beneficiorum & praxis cancellaria cum indice . lugd. 1620 22 tho. cormerii codex juris civilis romani , unà cum jure civili gallico . col. 1602 23 b. fernandi lucubrationes de matrimonio , arbor consanguinitatis , &c. lugd. 1601 24 eman. costae opera omnia juridica de rebus testamentariis lugd. 1589 25 pet. fontanellae tractatus de pactis nuptialib . & capitulis matrimonial . col. 1634 26 bapt. boiardi additiones & annotat. in practicam criminal . j. clari. par. 1597 27 fr. de caldas pereyra syntagma de universo jure emphyteutico franc. 1612 28 jo. mynsingeri apotelesma , sive scholia in 4 libros institut . justiniani bas . 1559 29 g. saraynae singularia clarissim . doctor . qui hactenus de jure responder . lug. 1560 30 b. cepollae opera omnia juridica , viz de servitute urban . rusticorum , &c. ib. 1577 31 hieronymi cagnoli senatoris sabaudiae opera juridica , 2 vol. ibid. 1569 32 m. socini commentaria in jus canonic . uná cū tractatib . de visitat . 3 vol. ven. 1593 33 emyl . ferretti praelectiones in titul . de acquirenda possessione , &c. lugd. 1552 34 fr. zypei consultationes canonic . ex jure noviss . conc. trid. deprompt . ant. 1640 35 jul. caprae paraphrasis in pandectarum libros justiniani bas . 1560 36 gul. duranti speculum juris civilis , cum additionibus baldi venet. 1495 37 nic. garcia tractatus amplissimus de beneficiis cardinal . s. concil . trid. col. 1629 38 sebast . medicis summa decretorum peccatorum , haeresum & virtutum ven. 1587 39 feliciano de solis commentariis , de censibus lib. 4 franc. 1605 40 g. redoani opera , sive tractatus de rebus ecclesiasticis non alienandis col. 1618 41 justiniani institutiones juris civilis , graecè per theophil . antecellorem . bas . 1534 1 mart. bonacinae tractatus de clausura , de simonia , &c. in 4º lugd. 1628 2 arn. vinnii commentaria in institutiones imperiales justiniani , 4º amst . 1644 3 aug. barbosa de canonicis dignitatibus & benefiarciis cathedralium lugd. 1634 4 — collectanea bullarii aliorumve summorum pontificum constitutionib . ib. 1634 5 lud. grempii codicis justiniani methodica tractatio franc. 1593 6 fr. raguelli commentarius ad constitutiones & decisiones justiniani paris 1610 7 le maistre de bonis & possessionibus eccles . de veteris censib . sacerdot . ib. 1636 8 emyl . galli tractatus de exceptionibus in successionibus ab intestato col. 1619 9 — collectanea doctorum de variis questionibus in foro eccles . versant . ib. 1634 10 guid. papae decisiones juris , annotationibus steph. ranchini lugd. 1602 11 barth . ugolinus de censuris romano pontifici reservatis venet. 1602 12 card. paleotus de sacri consistorii consultationibus ibid. 1594 13 edm. merilii observationes de justitia & jure paris 1618 14 gasp . lotti consilium de finibus & qualitate finium mutin . 1602 15 d. hartmanni & d. simonis questiones juris de different . feudorū , 2 vol. lip. 1582 16 — ejusdem questiones juris tam romani quam saxonici ibid. 1579 17 sim. maioli de irregularitate , & aliis impedimentis canonic . tractatus rom. 1619 18 ant. bullei decas miscellanea de tribus generalissimis preceptis juris brem . 1621 19 matth. wesenbeci commentarius in 4 librum codicis witeb . 1616 20 step. d'avila de censuris ecclesiasticis tractatus lugd. 1608 21 paul. squillante de privilegiis clericorum in curiis utriusque neapol . 1635 22 b. automne la conference du droit francois avec le droit romain paris 1615 23 la practique de masuer par anton. fontanon ibid. 1606 24 pandectes , ou digestes du droit de france a lyon 1597 25 la 2d partie des notables questions de du droit de la parl. de tholose par. 1606 26 corpus juris civilis , cum annotationibus , & capitulis rubris , 3 vol. lugd. 1551 27 volumen secundum separatim ibid. 1551 28 corpus juris canonici , cū glossis & annotationib . litera gothica , 3 vol. par. 1510 29 geo. de nigromonte tractatus de jure venandi , aucupandi , piscandi , con. 1602 30 joan. borcholten in 4 libros institution . juris civilis commentaria paris 1663 1 corpus juris civilis argumentis & notis pacii illustratum , 8 vol. in 8o. gen. 1580 2 pet. monetae tractatus de decimis , de optione , de distributionibus , 8º col. 1620 3 joan. lancelotti institutiones juris canonici ibid. 1609 4 tho. lansii de principatu inter provincias europae consultatio amst . 1636 5 budeus de asse , & ejus partibus breviarium col. 1528 6 — ejusdem in pandectarum libros annotationes bas . 1533 7 ant. negusantius de pignoribus & hypothecis lugd. 1620 8 tho. beneuentani praxis episcopalis col. 1618 9 canisii summa juris canonici paris 1640 10 — alter cum appendice antw. 1628 11 bern. dias regulae juris cum ampliationibus lugd. 1564 12 decretales epistolae summorum pontificum a greg. papa collectae paris 1550 13 j. harprechti commentarius in titulum de emptione & venditione tub. 1612 14 corvini enchiridion , sive institutiones imperiales per erotemat . explic . am. 1649 15 vinnii in institutionum elementa commentaria ibid. 1663 16 justiniani institutiones juris cum rubris , 24º , gilt letter'd ibid. 1654 17 phil. decius de regulis juris , unà cum comment . muxellani de regulis lug. 1577 18 enchiridion , sive rubricae omnes caesarei & pontificii juris bas . 1559 19 praxis curiae admiralitatis angliae lond. 1679 20 — alter ejusdem editionis ibid. 1679 21 modus legendi abbreviaturas in jure civili & pontificio col. 1560 22 gul. grotius de principiis juris naturalis cantab. 1673 23 sam. puffendorfi elementa jurisprudentiae universalis ibid. 1672 24 justiniani institutiones doctiss . script . notis illustratae gen. 1568 25 wolf. sigismundi trismegistus canonicalis , sive nomenclatura canonica 1627 finis . justice justified; or the judges commission opened: in two assize sermons, preached before the judges of assize. the first at chard, on prov. 14.34. march 12. the other at tauton, on rom. 13.4. aug.3. 1657. by james strong, master of arts, and minister of the gospel at illmister in sommerset. strong, james, 1618 or 19-1694. this text is an enriched version of the tcp digital transcription a94062 of text r207741 in the english short title catalog (thomason e937_3). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 64 kb of xml-encoded text transcribed from 18 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a94062 wing s5992 thomason e937_3 estc r207741 99866777 99866777 119063 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed 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(eebo-tcp ; phase 1, no. a94062) transcribed from: (early english books online ; image set 119063) images scanned from microfilm: (thomason tracts ; 140:e937[3]) justice justified; or the judges commission opened: in two assize sermons, preached before the judges of assize. the first at chard, on prov. 14.34. march 12. the other at tauton, on rom. 13.4. aug.3. 1657. by james strong, master of arts, and minister of the gospel at illmister in sommerset. strong, james, 1618 or 19-1694. [6], 29, [1] p. printed for john stafford, and are to be sold at his house, neer the george, at fleet-bridge, london : 1658. annotation on thomason copy: "aprill 2d", "april. 2". reproduction of the original in the british library. eng sermons, english -17th century. law (theology) -early works to 1800. judges -great britain -history -early works to 1800. a94062 r207741 (thomason e937_3). civilwar no justice justified; or the judges commission opened:: in two assize sermons, preached before the judges of assize. the first at chard, on pr strong, james 1658 11341 17 40 0 0 0 0 50 d the rate of 50 defects per 10,000 words puts this text in the d category of texts with between 35 and 100 defects per 10,000 words. 2007-03 tcp assigned for keying and markup 2007-04 apex covantage keyed and coded from proquest page images 2007-06 jonathan blaney sampled and proofread 2007-06 jonathan blaney text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion justice justified ; or the judges commission opened : in two assize sermons , preached before the judges of assize . the first at chard , on prov. 14. 34. march 12. the other at taunton , on rom. 13. 4. aug. 3. 1657. by james strong , master of arts , and minister of the gospel at illmister in sommerset . justitia immota res publica floret , illa sublata , flaccesset ac deficit . casper sibelius . tom. 3. page 389. and i will restore thy judges as at first ; and thy councellors as at the beginning ; afterward shalt thou be called a city of righteousnesse , and a faithful city , isa. 1. 26. london , printed for john stafford , and are to be sold at his house , neer the george , at fleet-bridge , 1658. to the right honourable robert nicholas , one of the barons of the exchequer , and richard newdigate , one of the justices of the vpper bench , judges of the western circuit : as also to the right worshipful william hillyard , esq high-sheriff of the county of somerset ; together with the gentlemen of the grand inquest , and others , at whose request these sermons were made publike . my lords and gentlemen ; t was a sad presage of israels ruine , when the lord in anger threatened to break these two staves of his beauty and bonds : if religion be the one of these two staves , the law shall be the other ; these are semper gemella nunquam singula in foetu , two twins , mercies that live and die together , israel at once lost them both , hos. 3. 4. the children of israel shall be many dayes without a king , & without a prince , & without an offering , and without an ephod , &c. corruption is the mother of confusion , dan and bethel , the place of judgement , and the house of god , had been corrupted together , and therefore 't was just they should be destroyed together : wickednesse had usurped the seat of justice at dan , and bethel , the house of god , was become a bethanes , the house of lies . what violent adventures have been made by many of this nations own degenerate sons to break the staffe of beauty , i need not tell you ; i fear the next generation will scarce live to see religion healed of some of these scars and wounds she hath received in our late unhappy wars , of which , oh may she not complain in the prophets words , that she hath been wounded in the house of her friends : the quarrel begun with religion , but ended against policy : those that are burthened by the gospel , can live without the law ; sine fide , sine rege , sine lege . the staff of bonds hath of late had its turn , and had not both been held in the hand of a strong god , sure the issue ere this had been confusion . my lords , that both justice and religion finds yet the countenance of so egregious patrons as your selves , is a valley of achor , a door of hope to our israel , that we shall once more see jerusalem in jerusalem , when truth buds out of the earth , and righteousnesse looks down from heaven , then have we ground to hope that our land also shall give her encrease . what evidence have you given the world , not only of your integrity in doing justice , but also of your zeal to religion ? this makes your name which you have left behind you , like a sweet perfume . not to flatter you ( 't was but your duty ) how often to provoke others of quality to imitate your religious practise , have i mentioned , that joy that possest me to see a judge so constant and serious in writing sermon notes ; like those noble berians , acts 17. the two short sermons following , however esteemed by your honors , and others , had never seen more light then came into my study window , had i known how else to have satisfied the earnest importunities of many gentlemen , and others , that were my auditors ; but beyond all , the joynt desire of your lordships , was of sufficient authority to make me consent ; this liberty only i must crave , when there was one only desired , to present you with two : they are both of the same mould , and like ruth and naomi , they are resolved to go together . what may be the censure of others ( though i am sure to have my back-burden ) doth very little trouble me : the smith's dog ( they say ) doth not fear the fire ; it hath been my lot for some years , beyond many of my place , to be exercised by a generation , whose inward parts is very wickednesse , and their throat an open sepulchre ; so that experience hath sufficiently steel'd me against reproaches . what ever be the welcome that this weak essay finds among others , yet i am sure wisdome is still justified by all her children . to your honors then , and the rest of the gentlemen , whose desire i have gratified by this impression , i humbly inscribe these weak conceptions of mine . and oh that god would once more make another impression of them upon their hearts ; and as he hath honoured you among his people , and advanced you above others in place , so may he make you all more eminent in piety ; that having served your generation in the several trusts committed to you awhile , you may cheerfully resign your offices , together with your souls , and give up your accounts to him who shall come to judge quick and dead , at that last and great day . so doth he promise to pray , that is your most zealous and affectionate servant in the gospel , ja. strong . a sermon preached at the assizes held for the county of somerset , at chard , march 12. 1657. mr. william hillyard of sea , sheriffe . pro . 14. ver. 34. righteousnesse exalteth a nation , but sin is a shame to a people . to begin with god ( especially when the work hath been weighty ) hath been the practice of antiquity among all . scipio went first to the capitol , and then to the senate ; and thither , as the historian tells us , the consuls alwayes went to sacrifice the day they received their authority , a lesson that nature hath taught even heathens , and grace hath much more charged as a duty on christians . of the patriarchs it 's observed , that where-ever they pitch'd their tent , there also they built an altar . thus did abraham , gen. 12. and isaack , gen. 16. and jacob , gen. 33. and good reason . 't is that which was their duty . glory . security . 1 their duty : especially where ever they came to set up god by a publike profession , who had set up them in publike places . 2. their glory : hereby they read ( as it were ) their commission from that great god , who was pleased to own them in a special relation , and gloried to be called the god of abraham , the god of isaac , and the god of jacob . moses face was never seen shining , until he convers'd with god on the mount , then god darted a beam of his own glory on the face of his magistrate , so that israel trembled at moses majesty . 3. their security : abraham called his altar jehovah nissi : lord is my banner , under which a christian marches with courage and confidence . the ark paid obid-edom well for its entertainment , and no man sure can be a loser by religion . the service that those three martyrs did to god , made them boldly claim protection from him : thus they argue , dan. 3. 17. our god whom we serve will deliver us out of thy hand , o king . the temple hath ever been a good guard to the town-hall , and better secures the ministers of justice , than swords and halberds ▪ o 't is sweet and safe too , when our earthly affairs have a relish of religion , when we carry our selves on earth as denisons of heaven , when we can say as paul , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} even our civil conversation is in heaven ; non cives respicit , sed magistratus ( saith one ) a duty doubtlesse that beseems none better than those that are in authority ; a mercy yet granted us amidst all those concussions and confusions , both in church and state , when religion is become a by-word , and the ordinances of god accounted but so many need-nots , sith yet those that sit at stern keep the helm in their hand , while our princes and rulers are as ready to hear what god hath to charge them in his courts , as to see and charge their own : what cause have we to hope , that though sinners be the shame of a nation , yet such rulers will exalt it by righteousnesse . the words are one of solomons axioms , and have him for their author , who was both judge and king in israel ; one that better deserved to be stiled master of the sentences for those his proverbs , than ever lumbard , say our late translators . the verse divides it self a thesis . and an antithesis . 1 a thesis ; in those words , righteousnesse exalteth a nation . 2 an antithesis ; in those words , but sin is a reproach to a people . dedecus populis . so drusius . miserum facit populum . so hierom. in both , we have sin and justice described by their contrary effects , altero corripimur , altero corrumpimur ; the one cures us , the other corrupts us : justice exalts us , but sin brings us to shame . the thesis needs no new mould , 't is a doctrine of it self ; i shall briefly explain . prove . apply it . by righteousnesse or justice ; we are to understand distributive justice , or publike justice especially , which consists in giving every man his right , either in punishing the nocent , or justifying the innocent : so we read the word used psa. 119. 121. i have done judgement and justice ; where the latter explains the former : i have done judgement and justice ( that is ) i have done judgement justly , or have been just in doing judgement . well , this justice exalts a nation ; 't is a special piece of solomons politiques ; and he layes down the assertion again , pro. 29. 4. the king by judgement establisheth the land ; but how a due administration of justice exalts a nation , let us see in the next place . this it doth these three wayes ; ut fundamentum . munimentum . ornamentum . 1 ut fundamentum . as the foundation bears up the house , so doth justice a nation : {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} is so called from {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} and {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} the foundation of the temple : if the fo●ndations be destroyed , what can the righteous do ? positiones vel statut aeverterunt : so luther renders the orig they have imbroiled and destroyed the law ; and when there 's no law for loose men , what can the righteous do ? what but glorifie god by suffering his will , and relieve themselves in the words that presently follow ; the lord is in his holy temple , the lords throne is in heaven . 2 ut munimentum . as sampsons strength lay in his locks , so doth the strength of a state in government : justice was wont to be portraitured with a balance in one hand , and a sword in the other ; as with that she weighs the case , so with this she defends the guiltlesse , and hate of the impious . for this too ; magistrates are called the shields of the earth , fencing and securing their people , as a shield doth the body . once more , they are called the corner-stone , zac. 10. 4. out of juda shall come the corner . corner stones unite the walls , draw out these , and the house will fall without any more trouble ; magistrates are the strength of a state ; as the walls gapes when the corner is out , so a nation without government must needs be devided ; and what follows , a kingdome devided , cannot stand ▪ 3 justice exalts a nation ; ut ornamentum : corner-stones do not only strengthen , but also adorn the building ; they are more costly and curious then those that lie by them ; their daughters shall be as corner-stones polish'd , after the similitude of a temple , psa. 144. 12. besides , they are called a nail in zac. 10. 4. nailes do not only fasten and strengthen , but they serve to hang things on . do not think it strange , that the glory of a nation should hang upon the nail of authority : when god promised to fasten eliakim as a nail in a sure place , ( that is , to establish his government ) 't is added , and they shall hang upon him all the glory of his fathers house , isa. 22. 4. 't is worth notice , that when the psalmist was in a vein of extolling the glory of jerusalem , he commends her , among other things , as glorious for this , because there were the thrones of judgement . thus good laws well executed , are the bottom , beauty , and bullwork of a state , and it briefly teaches us ; that anabaptists and libertines , as they are enemies to the church , so they are bad friends to a state ; to ruine lawes , and to destroy a nation , are but the same thing in divers expressions : those satanized monsters that despise government , and speak evil of dignities , are such as follow the flesh in the lusts of uncleannesse , 2. pet. 2. 10. law is one of the greatest enemies to lust , two masters they are , that cannot be served both , but he that will leane to the one , must despise the other . a lap. proposes the query , why epicurus had more disciples than the rest of the phylosophers ; and he gives this answer ; non quod disciplina verum afferat , sed quod voluptate invitet ; liberty is a bait that lust loves to bite at , and he that would catch the one , must angle with the other . corruption could never endure to be bridled by authority , but loves to run in a loose rein : elies sons were first lustful , and then disobedient ; and still do their impure off-spring decry authority to foster their impurity , every where voting down lawes and justice ; as they in the psalm , who is lord over us . we may learn nezt the necessity , both of law and justice , and the misery of a nation that is without them . the persians had a custome when their chief ruler died , there was among them , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} a lawlesse liberty for five daies after , so that every one might do for that five daies what he pleased . now in this short interval of government , there were such murders ; rapes , and robberies of all kinds committed , by the headlesse multitude , that before the five daies were expired , they were exceeding glad to accept of a new governour . justice is the very pulse of a state ; and as we know the man's dead when his pulse doth not beat ; so in a commonwealth , when justice ceaseth : the prophet saw nothing but spoiling and violence , and the wicked compassing about the righteous ; and why ? defluit lex , the law was dissolved ; no life any longer in the state , its pulse had done beating , heb. 1. 4. 't is an observation of learned weems , that so necessary is justice to the very being of a commonwealth , that no society can subsist without it , even thieves and robbers could not long subsist , if every one had not his share , the whole society must needs be dissolved . miserable is that nation where justice is corrupted , that looks for judgement , and meet with oppression , and for righteousnesse , but behold a cry ; wrong judgement is worse then no judgement : 't is sad when judgement is turned into gall , and the fruit of righteousnesse into hemlock , where should a man look for justice , but where men professe holinesse : yet this was the grievance of which the preacher complains , eccles. 3. 16. i saw under the sun the place of judgement , and behold , wickednesse was there ; and the place of righteousnesse , and iniquity was there . such corruptions gave cato cause to complain of the roman state , that private robbers lay in chains of iron , but publike thieves went in chains of gold . in short , a people is then at their last cast , when god finds not a man to do justice among them , jer. 5. 1. run too and fro thorow the streets of jerusalem , and see , and know , and seek in the broad place thereof , if there be any that executeth judgement , and seeketh truth , and i will spare it . the want of justice upon earth , provokes god himself to do justice from heaven . learn we next to prize this grand blessing ; justice executed by men is a mercy from god ; since sin entered into the world , justice is the remedy that god hath provided to purge corruption . nebuchadnezzar was none of the best governours , yet a cedar , under which the beasts of the field found shadow , and the fowls of heaven dwelt under the boughs thereof ; if a bad magistrate be so useful ; what 's the worth of a better ? when the queen of sheba came to hear solomon , she made it matter of her joy , and blessed god that he had set solomon on the throne of israel ; because the lord loved israel for ever , therefore he made the king to do judgement and justice , 1 kings 10. 9. sure 't is our happinesse , had we hearts to acknowledge it , that we have justice weighed to us by the balance , when for sin we might justly have expected to have seen it carved out to us by the sword . addresses it self to you ( right honourable ) with the rest that are in authority , you see what 's your duty , and the countryes expectation , would you raise a poor nation that 's almost in the dust ; you see the way , and your duty lies somewhat more exactly described in deut. 1. 16. i charged your judges at that time , saying ; hear the causes between your brethren , and judge righteously between every man and his brother . five things especially are requisite to make a compleat magistrate , and they are briefly these . 1 wisdome and judgement to find out the truth ; magistrates are the eyes of a state , and if this light be darknesse , how great would the darknesse be ; let us ever deprecate that curse that god justly once threatened israel with ; shepherds they should have , and the sword upon their right eye . job here deserved to be a pattern to posterity , seldome at a losse in judgement , but the cause , that i knew not : i searched out , saith he , job 29. guilt usually stands at the bar under a disguize , and hath a design to carry away the blessing , as jacob from esau , under the pretence of innocency . of alexander 't is reported , that he was wont to sit in judgement with one ear stopt , and never heard with that , till the party accused came to speak . 't is gods own law , exod. 22. 9. when there is a difference about an oxe or an asse , sheep or rayment , or any lost thing , both the parties must come before the judges ( that is ) must be heard by them . the other four vertues to compleat a magistrate , are in one scripture injoyned , exod. 18. 21. provide you among all the people men of courage , fearing god , dealing truly ; and hating covetousnesse , &c. and let them judge the people . i shall crave leave briefly to run them over . and 1. they must be men of courage , such as cato , of whom 't is said , that no man ever durst petition him for a favour that was contrary to equity . solomon symbolized this courage by the steps of his throne , which were adorned with lions , to mind him alway of that courage that beseemeth him that sate thereon : for this reason constantine in sc. is called the man-child , rev. 12 , 13. to to imitate his valour in venturing for the churches weal ; this valour was eminent in job , who brake the jawes of the unrighteous , and pluck'd the prey out of his teeth , job 29. 17. this holy boldnesse would be as a shield to fence us either against the frowns of superiours , or the murmurings of inferiours ; who so well fences against the reproach of others , as he whose heart doth not reproach him : bene agere , & male audire regium est , saith seneca . 2 they must be men fearing god , and that as they are considered in a double capacity . 1 as christians in common with others ; this ( saith solomon is both the beginning and the end of christianity , 't is the beginning of wisdome , prov. 1. 7. and 't is the end of all things , eccles. 12. 13. yea , 't is the all of christian , that one thing that is necessary ; and oh that we could chuse this better part . 2 ▪ as magistrates in place above others ; as unjust judges ( one sayes ) is a solecisme : a magistrate , saith luther , should be vivalex , such whose life should be but a comment on the law of god and man ▪ the way to do righteousnesse is to be righteous : how ill doth it become him to punish a drunkard , swearer , or sabbath-breaker , that is such himself . religion and justice uphold a nation , as those two pillars jachin and boaz did solomons ▪ temple . now religion must stand as jachin , on the right hand . luther long since told the reformers of germany , it would never be well with the state , till they first secured the peace of the church ; yet alas , how apt are we to begin at the wrong end ; do our own work first , and then gods . good constantine kept gods method , first sought gods kingdome , and then ( sayes one ) other things sought him ; adeo ut tanta terrena nullus auderet petere &c. so that none durst to desire so much of worldly happinesse , as god freely gave him ; and this was the isalmists order too , who first tenders a petition for zion , and after that for jerusalem ; do good in thy good pleasure unto zion , and then build the walls of jerusalem . o then let me beg this one thing , as upon my knees , be as zealous that god hath his due , as caesar or his subjects theirs ; shall blasphemy scape better than felony ? shall a cut-purse die , and a blasphemer , a god-robber , a kill-christ live ? is sacriledge become a lesse sin than theft ? if ever rage beseems a magistrate , 't is when he comes to rescue the honour , or revenge the dishonour of his god ; then if ever moses might ▪ be excused for tearing the tables , when israel had turned the glory of god into the similitude of a calf that eateth hay . servetus the heretique , charging melancton of harshnesse in a dispute , made this answer , in aliis mitis sim , cum blasphematur nomen christi non ita . religion ( my lord ) hath the greatest interest in us all : all the tents were pitch'd about the tabernacle , to teach us , that the whole world is but a great inn for the church to lodge in ; the vine is a noble plant , and the wine that 's prest from it hath noble qualitie , yet they say , if a mandrake be set neere the vine the grape is farre the more generous ; justice is a rare vertue in it self , but if religion be planted neere it , it s farre the more admirable . the centurions servant commended his master to the utmost when he told christ jesus that he loved the nation , and confirmed it by this , that he had built them a synagogue . o bring back the captive ark , build gods house , repaire the ruines of the tabernacle of david . this wil honour you indeed , and prove you lovers of your nation . 3. they must be men of truth ( that is ) of justice , saith a lap. for in all wrong wrong judgement there is a lie . delrio tells us , that justice was wont to be described by a virgin and the magistrate , by an eunuch armed , to shew , first , that magistrates must not violate the chastity of justice themselves ; and secondly , they must preserve her from others . two enemies especially justice is in danger of , 1. the lawyer , who makes it a great part of his art to raise a mist before the judges eyes ( 't is a rule , that where the discourse is general , there 's no personal wrong to any ) 't is sad to see a cause prove good or bad according as 't is pleaded . methinks i cannot mention the employment , but mind too that of poor spira , whoat once breathed out his soul , his hopes , and this sad lamentation together ; good causes i pleaded coldly , or else sold perfidiously ; bad causes i followed zealously , and pleaded with all my might , o legitur historiam ne sitit historia . be not too wise or too learned to be saved by the foolishnesse of preaching . 2. the second enemy is the false witnesse , if truth and innocency escape the one , how usually do they suffer by the other . though a faithful witnesse , i must confesse , as great a friend to truth , as jonathan to david , yet that thorowly sifted , i doubt not but too often they would deserve to be handled as paul , when he was examined with stripes . alas , who knows not ( saith luther ) that steven died by witnesse , and christ himself died by witnesses , though sometimes suborned . between these two enemies , when truth is like to be torne in pieces , as paul by those contrary factions , the pharisees and the sadduces , acts 23. what need of a compleat magistrate , like the centuriont , here to come and make a rescue . 4. hating covetousnesse . when the prophet complaines of jerusalems officers . thy princes are rebellious , and companions of thieves , he addes the cause , they love gifts . as paul shook off the viper from his hand , so should a magistrate a bribe , and say as he at another time , ( if he meet with a temptation ) when he dealt with simon magus , thy money perish with thee . o honourable comfortable testimony , when our hearts can witnesse . as samuels . here i am , &c. whose oxe have i taken , or whose asse have i taken , or of whom have i received a bribe , and i will restore it . and now to move you a little , let me quicken this grand duty with these few argumens . 1. consider those many honourable titles wherewith god hath dignified you , wherefore are you called princes , nobles , nursing-fathers , shepherds , mountaines , sons of the almighty , but that you should honour those titles by acting for his honor that hath conferr'd them on you , 't is a saying of salvians , reatus impii est pium nomen . titles of honour do but greaten wicked mens guilt that do abuse them . 2. consider the influence that men of place have upon their inferiours . magnates magnetes , great mens lives are small mens laws , magistrates are the countreys looking glasses in which other men look and dress themselves by them . if a magistrate will drink , or sweare , or slight the sabbath , who will not bear him company . as an eclipse in the sunne alwayes produceth some destructive effects upon inferiour bodies , so 't is here , let a man of place be either good or bad , he is sure to be exemplary : we read when crispus the chief ruler of the synagogue beleeved , many of the corinthians beside beleeved and were baptized with him , acts 18. 8. on the other side the psalmist could imagine no heavier curse for his enemy then this , set you an ungodly man to be ruler over him . 3. meditate seriously whose work you are in . solomon tells you , the weights of the bag are his work , prov. 16. 11. et quae dei sunt trimide tractanda . judges are gods lieutenants , and you judge for him , saith jehoshaphat to his judges . take heed what you do , for you judge not for man , but for the lord , who is with you in the judgement , and that 's the third . 4. consider that god himself is present with you , and president over you , psal. 82. 1. god standeth in the congregation of the princes . loring on that scripture tells us , the ethiopians were wont to set an empty chaire in the middest of their judicatories to minde them that god was there , o think that god attends to heare what charges , evidences , pleas , and sentences are there past , cave cato videt , was wont to be a watchword in rome , and this awed them from evil , let our watchword be , the lord seeth . 5. lastly , he is judge of judges , all causes must once more be heard over , and called again , he judgeth among the gods , when the preacher complains of wrong judgment upon earth , he looks upward , and relieves himself from heaven , but god ( saith he ) shall judge the righteous and the wicked , eccl. 3. 17. ciprian in his prayer before his martyrdome among many heart-wounding passages from the consideration of the last judgement , this especially is one , ve peccatis nihil cum elevaneris confringere terram sub qua fissura petrarum me absconsurus sum cui monti dicam cade super me , cui colli tege me , &c. woe to me when thou o lord shalt arise to shake terribly the earth . in what rock shall i finde a clift to hide me ? to what mountain shall i say , fall on me ? to what hill cover me , & c ? o if martyrs tremble , how will sinners stand . if such as lose their lives for christs dread that day , what will become of such as venture their lives against him . if this be done to the green tree , what will be done to the dry ? oh that we were wise to consider our latter end , that we could provide by holinesse , and prevent by repentance the sad issues that sin will in that day bring upon us : god in scripture is said to have a bag and a bottle , a bag for our sinnes , a bottle for our tears , oh as we have fill'd the one with sin , so le ts fill the other by repentence . and oh blessed be that god that after we have made shipwrack by sin , hath provided us such a plank as repentance upon which we may swim safe to heaven . let us then all take the shame of sin to our selves by repentance here in the day of grace , that sin may never bring us to shame in the day of judgement . a sermon preached at the assizes at taunton in the county of sommerset . august 3. 1657. rom. 13. ver. 4. for he is the minister of god to thee for good , but if you do that which is evil be afraid , for he beareth not the sword in vain . great places and employments god never intended as priviledges to secure any from his service , the king himselfe , how great soever be his busines was ( with his own hand , saith philo ) to write two copies of the bible out of the original , the one he was to use at home , and if he went abroad the other he must use as a running library or hic vade mecum , deut. 17. 18. and the reason is added , v. 20. that his heart be not lifted up . o 't is a hard matter to keep our hearts down when our honours rise . vespasian is said to be the onely man that was ever the better by being emperour , self-love like a false glasse makes us see our selves bigger , and others lesse then they are ; to prevent which , we are never to be without that true glasse of gods law , that will tell us that even gods among men are but men with god , and that the greatest magistrate is but gods minister , and that 's honour enough , for he is the minister of god to thee , &c. to be large in prefacing were but to wrong my text . as though like the prophets strait bed and his narrow covering it could not hold me an houre , when rather indeed it 's like the great and the wide sea , where there 's roome enough for the tallest ship to float , and the great leviathan may take his pastime therein . to the words then briefly . and here , as by the portal we go into the inner roomes , so let me give you by the coherence , occasion , and other circumstances to the text . 't is aretius observation of the jewes , that they ever scorn'd subjection to any , especially to the romans , and alsted of the vain glory of their successours to this day , sayes thus , antiquum obtinent ; they are no changelings , still fill up their fathers sinne by their present pride , you may read their temper in that bragge of theirs , john 8. 33. we were never in bondage to any man , when yet they were scarce ever out of bondage to some or other , and at that very time in bondage to the romans . well , bondage being so burdensome to this people , there was liberty by the gospel preacht by christ and his apostles , which doctrine of liberty was so misapplied , and abused by divers , that they thought themselves by their christian liberty discharged from being any longer subject to secular authority ; whence julian , porphirius , proclus and other heathens traduced the doctrine of christ and his apostles , as that that was seditious , and father'd the rebellious practises of the people upon the doctrine of their teachers . on this occasion ( saith clemens alexandrius ) did christ and his apostles studiously endeavour to vindicate the doctrine of the gospel from this aspersion , and did enough to convince the world that gospel liberty was farre from countenancing rebellion against civil authority . this christ did when he paid tribute money himself , and gave it in charge to others to give caesar the things that were caesars . and paul among the rest makes it his profest businesse in this chapter , in which both his matter and method are exceeding plaine . 1. he enjoynes subjection on all as a generall duty , verse 1. let every soule be subject to the higher powers . 2. draws up his arguments in order to prove his doctrine , and the first is this . 1. the authour of government , that 's god , for there is no power , but of god : true , the constitution is from man , the manner or mould of government , as solon said of the athenian laws , they were so good as the people could beare , fitted ( he meant ) and accomodated to the state of the people , but still the institution or ordination is from god , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , they are ordained of god , from which conclusion follows this fearful consequence , he then that resisteth the power resisteth the ordinance of god , v. 2. 2. he proves his position from the end of authority , v. 3. for rulers are not a terrour to good works , but to the evil . jeroboam then forgot his duty and proved a shame to magistracy , when instead of encouraging his people to serve the lord ; he set a net on mizpeh , and spread a snare on tabor to watch who would go from him to worship god in judah , hosea 5. 1. 3. he argues from magistrates relation to god , whose person they represent , and by whose authority they act , vers. 4. for he is the minister of god , &c. the words in short are a vindication of magistracy drawn from its authour . its end . 1. from its authour , that 's god , for he is the minister of god . 2. from its end , and that 's twofold , 1. the protection of them that are good : gods minister to thee for good . 2. the punishing and suppressing of the wicked , to such the magistrate is intended for terrour , and the reason is added , for he beareth not the sword in vaine . doct. observe then , 1. that a lawful magistrate is gods miinister {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , gods vicar , deputy , or vicegerent . several wayes this may be evidenced . 1. they are commissioned by him not only kings , but judges also , prov. 8. 15 , 16. by me kings reigne , and princes decree justice ; by me princes rule , and nobles , and all judges of the earth . god alone is the absolute monarch , and hath the sole sovereignty of heaven and earth , and this power he delegates to princes and rulers who governe for him . 2. they act for him , and this will appeare two wayes . 1. they are gods laws whereby they judge god himself prescribed israel her judicials , deut. 17. and he is supreme logislator still . hence that prayer of the psalmist , give the king thy judgement , o lord , and thy righteousnesse to the kings son , and then he doubts not when god has given him righteous laws , and a righteous heart to execute them , but that he will prove a blessed governour , then shall he judge thy people in righteousnesse , and thy poore with equitie . 2. it 's gods sentence ( or ought to be ) which they past ; though the king be but a man , yet 't is a divine sentence that is in his lips , and his mouth transgresseth not in judgement , prov. 16. 10. our old word conning , and by contraction , king becanus sayes , comes from con , which signifies three things , p●ssum scio audeo , i can do justice , i know how to do it , and i dare to do it , if either a magistrate want power , or skill , or courage to do justice , 't is but vaine to expect this divine sentence ; and oh 't is sad if the judgement be mans only , and not gods . a few things briefly i shall inferre from the point . and first , what meanes that bedlam spirit , whereby anabaptists , quakers , and the rest of that same batch are acted , that have learnt a religion to justifie their rebellion , pretending as the jewes of caesar that they know no king but christ , as if he were a loyal subject to his prince that contemn'd his deputy ; facile imperium in benos , pessimus quisque asperime rectorem patitur , &c. the corruptest tempers have ever been most apt to scorne authority , i wish such masterlesse monsters would consider how well that querie might might be proposed to them wherewith the lord confounds sennecharib ; whom wast thou railed on and whom hast thou blasphemed , and against whom hast thou exalted thy voice , and lifted up thine eyes on high ? ( not against hezekiah ) but against the holy one of israel . israel was weary of samuel , and god tells them plainly they had cast off him . secondly , it shews us that magistrates power is not arbitrary , they are some of heavens commissioned officers , and may say as the centurion , though they have others under them , yet that they themselves are men under authority ; and oh how careful ought such to be of breaking their commission . thirdly . it serves exceedingly to encourage magistrates : can they think that god will employ them in his work , and not bear them out in their employment ? sure you serve no such hard master . 't is a note of paraeus , did not god ( sayes he ) countenance and assist them that are ministers of justice , did not he stand in the assembly of princes , it could never be that the face of authority should be so formidable : that god that promised israel , that one should chase a thousand , is he that makes the face of a single magistrate to awe the hearts of a thousand malefactors . take heed next of undertaking gods work , and doing their own . yea , judge for god said , good jehoshaphat , to his judges , therefore take heed . oh how should it be the study of a christian magistrate to passe such a sentence as god himselfe would passe did he take the matter into his owne hand . it acquaints us with that harmony that there is between magistracy and ministry . the same word serves for both : minister in a general name that will agree to either . they drive but one designe , and serve but one master , though in different places , moses and aaron , the king and the priest lie usually together , like sweet twinnes in the armes of scripture . o let them not prove , like the twins of rebecca , one strugling against the other ; but , like the twins of heraclitus , alwayes weeping and laughing together . magistracy christ likens to a neck of ivory pure and potent , ministry to the eye , of the body cleare and transparent , like the fish-pooles of heshbon , and these he joynes together , cant. 7. 4. oh those which christ hath joyned together , let not man put asunder . never magistrates fared worse than such as were enemies to the prophet , as paul and ahab , and none ever prosper'd better then such as were nursing to them , as david and hezekiah , and that general rule is still true , beleeve the lords prophets , so shall ye prosper . so much briefly for the first note , let the next be this , doct. 2. that the peoples good is the end of government . he is the minister of god to thee for good . hence as gualter notes , the ancient title that was given magistrates , was benefactor , luke 22. 25. the kings of the gentiles rule over them , and they that bear rule over them are called bountiful {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} called benefactours , the magistrate comes ahimaaz with good tydings ; and wherein this good lies , i shall briefly shew you . a fourfold good comes by government . 1 , natural good . it preserves our lives , as moses slew the egyptian , but saved the israelite , so doth the magistrate , cuts off the nocent preserves the innocent . 2. civil good , how quickly would the hills become mountains of robbers , and the high-wayes be once more unoccupied as in the dayes of jael , judg. 5. no safety would there be to him that went out , nor to him that came in , did not the sword of justice guard the innocent , as that flaming sword did the tree of life . 3. moral good , by restraining men from vice ; and encouraging them to vertue ; were there none to reprove in the gate , sin would quickly grow impudent and audacious , what could we expect but that all prodigious impieties , like another deluge , would drown the world , were the gates of authority thrown off their hinges . therefore the apostle bids us pray for kings , and all that be in authority , that under them we may live peaceable lives , in all godlinesse and honesty , 1 tim. 2 , 2. 4 spiritual good magistracy was ever intended to be a guard to the gospel ; defenders of the faith they are all in their places : of charles the great 't is recorded , that he had his office written on his sword , which he wore as his great glory , decem praeceptorum custos carolus , charles , lord keeper of the ten commandments ; how careful good governours have ever been to secure religion . i might instance in david , ●oas , jehoshaphat , hezekiah , solomon , and others . take two for all , of good josiah 't is said , that he was so farre from leaving his subjects to an intollerable tolleration that he commanded judah to serve the god of israel , 2 chron. 33. 16. and so did asa , 2 chron. 14. 4. i am forc't to leave the application to your selves , and must hasten to the next thing . and that 's from the other end of government ( viz. ) the punishment of evil-doers , but if thou doest evil , feare . doct. 3. whence we note next , that good laws are terrible to none but to evil persons . in this sense the law troubles not a righteous man ; but its threatnings are levelled against the lawlesse , such as tear the bonds of government , as sampson did his withes , and cry out we will not be be bound . to such the law is intended for terrour , excellently solomon to this purpose , prov. 20. 26. a wise king scattereth the wicked , and causeth the wheel to turn over them . quest . but what evil is it that falls within the reach of civil justice . answ. any civil or religious : the magistrate is custos utriusque tabulae , all laws propounded without limitation must be understood in their latitude . two things briefly it lessons us . first , to observe a difference between the precious and the vile , and in drawing the sword of justice alwayes to have a blow at wickednesse , the psalmist deserves to be our president here , who having sorted his subjects , bestows his favour on the good , his frownes on the evil , psal. 101. 6. mine eyes shall be upon the faithful in the land , that they may dwell with me . these he intended should be to him , as joseph to pharaoh , men of office and honour , but v. 8. betimes i will destroy all the wicked of the land , that i may cut off the workers of iniquity from the city of the lord : if men in place would study this choice , and make such a difference among their inferiours , i had almost said they might save the labour of forcing men from evil by their power . i am prone to beleeve they would winne so many by their practice . it charges magistrates that they do not do justice by halves , take heed you do not punish one for speaking one word against caesar , and let another scape that speaks too against christ , to all evil-doers a magistrate must be terrible . david threatens impartially to weed out the wicked , to cut off all the workers of iniquity ; this is indeed not to beare the sword in vaine , the last thing that craves your attention and notes to us is this , doct. that the end why god hath armed authority with the sword is to do execution upon the wicked . an allusion , sayes calvin , to the roman consuls , who had axes and swords carried before them as ensignes of their power ; 't is not in vaine this sword is committed to them , no 't is to give notice that they have potestatem vitae & necis , gladium gestant ut impios plectant ( saith one ) 't is to cut off the wicked , which otherwise , like rotten and gangreen'd members , would endanger the body . but here it must be remembred that the sword of justice must be furbisht with the oyle of mercy . the malefactor in the law must lie down and be beaten , and that before the judge but with a certaine number of stripes , and that too according to the nature of the trespasse , deut. 25. 3. the same punishment is no more fit for all offences then the same physick is for all diseases ; the romans had as well rods as axes borne before their consuls to intimate that some offences were as sufficiently punisht by the whip as others by the block . and now that i may not lose the advantage of doing god some service in so sacred a solemnity as this , i shall keep me no longer to generals , but parcel out the residue of my discourse , and addresse my self briefly to all sorts in particular , that my doctrine may fall as the dew , and though here a little , and there a little , yet may leave some moisture upon all . and first , ( right honourable ) your dignity bespeaks the upmost roome , 't is for you , there 's none more honourable then your selves that is bidden of it . you here authority is no empty word . magistracy implys somewhat more then a title of honour , take heed of sparing when god bids you slay , let not the sword of justice rust in the scabbard , and prove like the sword of jeth●r which he could not draw nor use ▪ judges had need often to edge the sword of justice with the file of courage , fiat justitiarunt coelum was a good resolution . be champions of justice while you can , and when you can no longer serve her as such , keep your ground , and resolve to die her martyrs . as to the case of religion ( my lords ) though i hope i may say as paul to his thessalonians , of love i need not speak to you , though you know and do this already , yet suffer me a little to put you in remembrance , for sions sake i cannot hold my peace . oh help the teeming woman , the travelling church , the fruit is come to the birth , but there wants strength to bring forth , is 't not pity she should miscarry , with ephraim , and stay in the place of bringing forth children ? sure a hand of authority would do much to further her deliverance , christ by the sword hath been paring and pruning his vine till at last some some young grapes of reformation did appeare , but ah on a sudden the subtle foxes threaten to devoure all ; the petition that at this time i shall tender to their hands shall be the churches prayer , cant. 2. 15. take us the foxes , yea , the little foxes which destroy the vines , for the vines have tender grapes ; never pity nor spare them for that they are young . happy shall he be that takes the brats of babel , any of her little ones , and dasheth them against the stones . to commissioners of peace that are assessours with you , i have onely this , do not say , as saul , all is well in the countrey , if so , what means the bleating of sheep , and the lowing of oxen that we heare ? what meanes the roaring in ale-houses , prophanation of sabbaths , with other crying abominations ? what 's the matter that so many with malchus have lost their right eare that they cannot hear a complaint , nay , sometimes the right eye , that they cannot see a disorder ? is it not woful , that many a magistrate , like george on horse-back , sits alway with the sword up , but never strikes . the lord give you moses spirit as well as moses place , and write upon your hearts resolution for the lord . as for you , gentlemen of the gowne , i intend no satyr but a sermon , and therefore 't is but a word of councel that i would venture to give you , looking neither for bribe nor fee , save onely a desire to see the fruit of my lips in the consecrating of yours . o read often the law which is both the law and the prophets . converse much with heavens statutes , all which , like the lawes of draco are written in blood , death being the penalty that 's threatened to all . take the fatherlesse and the widow for your clients , god owns them for his , and alwayes judge your selves most bound to speak when truth wants an advocate . for the gentlemen that are jurors ; so farre have you honoured your employment of late , that without flattery . i question not , but that like a well-drawn picture , you will have your eyes on every corner in the county , you are your countreys representatives , a petty parliament , o make faithfull reports of your countreys case , when god by you makes inquisition , bring forth the accursed thing whatever it be , out with jonah that you may save the ship . for the jurors of inferiour order , and the witnesses , oh that there were none of jezabels knights of the post to be found among you , that should sell an innocent man for eight pence . remember that for oathes the land mourneth , and before you lay your hands on the outside of the bible , fix your thoughts on something of the inside . 't is zech. 5. 4. where the curse comes like a flying bood , and enters into the house of the thief , and into the house of him that sweares falsly , and there it must remain til it hath eaten up the stones and timber thereof . for barretters , and litigious brawlers , that like salmanders , live in the fire , and contend for trifles , even the turks send away such with a whip , if any be found in their courts , i wish heartily ours might speed no better , doubtlesse authority would be far lesse troubled then now , if mens hearts were not bigger then their suits . i shall make but one turne more to them that are in authority , take leave , and i have done . o minde your duty , and do it , and to make it sure , i would take but two or three temple-nailes , and fasten all . 1. consider it will make you great blessings to your countrey ; if any thing fetch life in a dying state , 't is justice , 't is worth our observation , that when god promises to give a spirit of judgement to them that sit in judgement , he promises also to be a crown of glory to the residue of his people , is . 28. 5 , 6. o that the generations to come might rise up and call you blessed . 2. 't is the way to live honourably , and to die comfortably . 1. to live honourably : of cassianus the emperour , 't is storied that he refused to be called pius , but would be called foelix , a wilde designe to reach after felicity by the neglect of piety ; nothing so surely honours us among men , as when we seek the honour of god , 't is a bargaine of gods own making , those that honour me , them will i honour . 't was this that made deborah cry out in her song , my heart is set toward the governours of israel . 2. t is the way to die comfortably , when the sight of grim death makes others look wan , conscience of their integrity will steel their hearts against the king of terrours ; oh blessed case , when in the closing up of mens lives , they can with that zealous magistrate , nehemiah , say boldly , remember me o lord concerning this , and remember me , o lord , concerning this also . to borrow the elegant words of a reverend authour , what happy items will these be in our last reckoning , such magistrates may sweetly close their lives with those comfortable words wherwith he closes his book : and remember , o my god , in goodnesse . a vast and blessed difference between the righteous and the wicked , when of the one the lord protesteth he will never forget any of their works to let them scape unrevenged , amos 8. 7. of the other we have as strong an assurance that he will never forget any of theirs to let them go unrewarded , heb. 6. 10. 't is not consistent with the justice of god , the lord is not unrighteous to forget your work and labour of love . o that your works might praise you in the gates of your own courts while you live , so shall they follow you to the gates of heaven when you come to die . finis . courteous reader be pleased to take notice that these books following are worth thy perusal ; printed for john stafford , and are to be sold at the george at fleet-bridge . a divine message to the elect soul , delivered in eight sermons upon seven several texts , by that laborious and faithful messenger of jesus christ , mr. william fenner . b. d. divine meditations upon several subjects , whereunto is annexed gods love , and mans unworthinesse , with several divine ejaculations , written by john quaries . choice and profitable secrets , both physical and chirurgical , formerly concealed by the deceased dutches of lenox , and now published for the use and benefit of such as live farre from physicians and chirurgions : being approved of by eminenent doctors , and published , by their charitable advice , for the publick good ; whereunto is annexed , a discovery of the natures and properties of all such herbs which are most commonly known , and grow in countrey gardens . notes, typically marginal, from the original text notes for div a94062e-200 zac. 11. zac. 13. 6. psa 85. 11 , 12. anabapt. quakers . sensualists . notes for div a94062e-590 rosing de antiquit . rom. lib. 2. page 49. ex. 3. 6. ex. 34. 30. 2 sam. 6. 11. phil. 3. 20. regnum coelorum est civitas nostra & nos gerimus ut municipes coelorum . cornel. a lap. in loc. assemb . annot. vid. d●usium in loc. explanation 1. vid. a lap. in loc. psa. 11. 3. luther in loc. psa. 47. 9. luke 11. 17 ▪ psa. 122. 5. use 1. 1 sam. 2. psa. 12. use 2. hab 1. 4. weems his christian synagogue . use 3. am. 6 , 12. use 4. dan. 4. 9. 1 kings 10. 9. use 5. zac. 11. 17. boni pastores debent esse cent oculi ut se ipsos introspici , aut & alios curent , cui enim bonus qui sibi nequam ? vid a lap. in loc. ut nemo navem dirigit sine ferro quod attricuit sideri●es : sic nemo rem publ . sine mente quam offlavit prudentia . sibelius . tom. 3. p. 389. a quo nemo unquam rem injustam petere audebat . 1 king. 10. 19. see brightman on the apoc. ch. 12. luke 10. 42. j●nkin . quid valeant statuta legum que illi maxime spernant qui ministrant . salvian , pa. 276. 2 chro. 3. 17. respublica bene constituta duabus vastis innititur columnis & vera religio ne & justitia . sibelius . tom. 3. page 382. psa. 51. 18. zion signifies the state of the church , in regard of things spiritual , and ierusalem the evil state . mr. leigh . weems . lev 7. 5. virgo haec judicibus commissa est in custodiam ut ipsi nec violent nec violari patiantur . delrio adag. ver. test . pag. 530. luther mensal . colioq . isa. 1. 23 1 sam. 32 , 3 psal 109. 6. 2 chron. 9 6 lorinus in ps. 48. cyprian . tom. 3. pag. 5 14 psalm 56. 8 job 14. 17 notes for div a94062e-3480 psal. 104 , 26 judei semper iniquissime tulerunt alienum imperum , &c. aretius in loc. trap in loc. mark 12. 16 doct. haec sententia duo significat . 1 hanc potestatem esse a deo. 2 reges vicem gerere dei , &c. a lap. in loc. psal. 72. 1 , 2 use 1. 2 king. 19. 22 1 sam. 8. use 2. use 3. pareus in loc. use 4. use 5. psal. 77. 20 lam. 2. 6. 2 chr. 20. 10 doct. 2. gualter in rom 13. in bonum ci qui bonum agit . estius . exod. 2. 12. ad hoc instituta est potestas secularis ut & pacem publ . conservet & vitae communis honestatem . estius p. 154. doct. 3. mr. leigh . use 1. use 2. doct. calvin in loc. principe non frustra gladium testat sed ut stringat in malafactoris , estius in loc. use . judg. 8. 20. 1 thes. 4. 9 ▪ hosea 13. 13 ▪ psal. 137. 9 whatsoever you would that men should do to you , &c. mat. 7. 12 rom. 6. ult. psal , 10. 18 jer. 23. 10 ad magistratum maxime utiles qui privata comoda publice post habent qui sciunt civium non servitutum sibi traditam sed tutelam nec republ. suam esse sed sc republicae &c. sibelliq . tom. 4. p. 383. 1 sam. 2. 30 judg. 5. 9 neh. 13. 14 , 22 dr. 〈◊〉 . of the law-terms, a discourse wherein the laws of the jews, grecians, romans, saxons and normans, relating to this subject are fully explained / written by ... sir henry spelman, kt. spelman, henry, sir, 1564?-1641. 1684 approx. 115 kb of xml-encoded text transcribed from 46 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2005-03 (eebo-tcp phase 1). a61093 wing s4929 estc r16781 12165219 ocm 12165219 55288 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a61093) transcribed from: (early english books online ; image set 55288) images scanned from microfilm: (early english books, 1641-1700 ; 825:1) of the law-terms, a discourse wherein the laws of the jews, grecians, romans, saxons and normans, relating to this subject are fully explained / written by ... sir henry spelman, kt. spelman, henry, sir, 1564?-1641. [2], 88 p. printed for matthew gillyflower ..., london : 1684. reproduction of original in duke university library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -terminology -early works to 1800. law -antiquities -early works to 1800. 2004-09 tcp assigned for keying and markup 2004-09 aptara keyed and coded from proquest page images 2004-10 emma (leeson) huber sampled and proofread 2004-10 emma (leeson) huber text and markup reviewed and edited 2005-01 pfs batch review (qc) and xml conversion of the law-terms : a discourse written by the learned antiquary . sir henry spelman , kt. wherein the laws of the jews , grecians , romans , saxons and normans , relating to this subject , are fully explained . london , printed for matthew gillyflower , in westminster-hall . 1684. sect . i. of the terms in general . as our law-books have nothing , to my knowledge , of the terms , so were it much better if our chronicles had as little : for though it be little they have in that kind , yet is that little very untrue , affirming that william the conquerour did first institute them . it is not worth the examining who was authour of this errour , but it seemeth that a polydore virgil ( an alien in our commonwealth , and not well endenized in our antiquities ) spread it first in print . i purpose not to take it upon any man's word : but , searching for the fountain , will , if i can , deduce them from thence , beginning with their definition . the terms are certain portions of the year in which onely the king's justices hold plea , in the high temporal courts , of causes belonging to their jurisdiction , in the place thereto assigned , according to the ancient rites and customs of the kingdom . the definition divides it self , and offers these parts to be consider'd . 1. the names they bear . 2. the original they come of . 3. the time they continue . 4. the persons they are held by . 5. the causes they deal with . 6. the place they are kept in . 7. the rites they are performed with . these parts minister matter for a book at large , but my purpose upon the occasion imposed being to deal onely with the institution of the terms ; i will travel no farther than the three first stages of my division , ( that is ) touching their name , their original , and their time of continuance . sect ii. of the names of the terms . the word terminus is of the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifieth the bound , end , or limit of a thing , here particularly of the time for law-matters . in the civil-law it also signifieth a day set to the defendant , and in that sense doth bracton and others sometimes use it . mat. paris calleth the sheriff's turn , terminum vicecomitis , and in the addition to the m : ss : laws of king inas , terminus is applied to the hundred-court ; as also in a charter of hen. 1. prescribing the time of holding the court. and we ordinarily use it for any set portion of time , as of life , years , lease , &c. the space between the terms , is named vacation , à vacando , as being leasure from law-business , by latinists justitium à jure stando , because the law is now at a stop or stand . the civilians and canonists call term-time dies juridicos ; vacation , dies feriales , days of leasure , or intermission , festival-days , as being indeed sequester'd from troublesome affairs of humane business , and devoted properly to the service of god , and his church . according to this our saxon and norman ancestours divided the year also between god and the king , calling those days and parts that were assigned to god , dies pacis ecclesiae , the residue allotted to the king , dies , or tempus pacis regis . divisum imperium cum jove caesar habet . other names i find none anciently among us , nor the word terminus to be frequent , till the time of hen. 2. wherein gervascius tilburiensis , and ranulphus de glanvilla ( if those books be theirs ) do continually use it for dies pacis regis . the ancient romans , in like manner , divided their year between their gods , and their commonwealth , naming their law-days , or term-time , fastos , because their praetor or judge might then fari , that is speak freely ; their vacation , or days of intermission ( as appointed to the service of their gods ) they called nefastos , for that the praetor might ne fari , not speak in them judicially . ovid fastorum lib. 1. ille nefastus erat , per quem tria verba silentur , fastus erat per quem lege licebat agi . when that the three judicial words the pretor might not use , it was nefastus : fastus then , when each man freely sues . the three judicial words were do , dico , abdico ; by the first he gave licence citare partem ream , to cite the defendant ; by the 2d . he pronounced sentence ; and by the 3d. he granted execution . this obiter . the word term hath also other considerations , sometimes it is used for the whole space , from the first return to the end of the term , including the day of a return essoine , exception , retorn . brev. sometimes and most commonly excluding these from the first sitting of the judges in full court ( which is the first day for appearance ) and this is called full-term by the statute of 32. of hen. 8. cap. 21. as though the part precedent were but semi-term , puisne-term , or introitus termini : the words of the stat. are these , that trinity-term shall begin the munday next after trinity-sunday , for keeping the essoines , returns , proffers and other ceremonies heretofore used , &c. and that the full term of the said trinity-term shall yearly for ever begin the fryday next after corpus christi day . here the particulars i speak of , are apparently set forth , and the term declared to begin at the first return . by which reason it falleth out that the eight days wherein the court of the exchequer sits , at the beginning of michaelmas-terms , hilary-term and easter , are to be accounted as parts of the terms , for that they fall within the first return : the exchequer having one return in every of them , more than the courts of common-law have , viz. crastino sancti michaelis , octabis hilarii , and octabis or clausum paschae : and it seemeth that trinity-term had crastino trinitatis in the self-same manner , before this statute alter'd it . sect . iii. of the original of terms or law-days . law-days or dies juridici , which we call terms , are upon the matters as ancient as offences and controversies : god himself held a kind of term in paradise , when judicially he tryed and condemned adam , eve , and the serpent . in all nations , as soon as government was setled , some time was appointed for punishing offences , redressing of wrongs , and determining of controversies ; and this time to every of those nations was their term. the original therefore of the terms or law-days , and the time appointed to them , are like the signs of oblique ascention in astronomy , that rise together . i shall not need to speak any more particularly of this point , but shew it , as it farther offereth it self in our passage , when we treat of the time appointed to term or law-days , which is the next and longest part of this our discourse . sect . iv. of the times assigned to law-matters , called the terms . we are now come to the great arm of our division , which spreads it self into many branches in handling whereof we shall fall , either necessarily or accidentally , upon these points , viz. 1. of law-days among the ancients , jews and greeks . 2. of those among the romans using choice days . 3. of those among the primitive christians using all alike . 4. how sunday came to be exempted . 5. how other festivals , and other vacation days . 6. that our terms took their original from the canon-law . 7. the constitutions of our saxon kings ; edward the elder , guthurn the dane , and the synod of eanham under ethelred , touching this matter . 8. the constitutions of canutus more particular . 9. the constitutions of edward the confessour more material . 10. the constitution of william the conquerour . and of law-days in normandy . 11. what done by william rufus , stephen and henry the 2d . 12. of hilary-term according to those ancient laws . 13. of easter-term in like manner . 14. of trinity-term and the long vacation following . 15. of michaelmas-term . 16. of the later constitutions of the terms by the statutes of the 51. of hen. 3. and 36. of edw. 3. 17. how trinity-term was alter'd by the 32. of hen. 8. 18. and how michaelmas-term was abbreviated by act of parliament 16. carol. 1. chap. i. of law-days among the ancients . the time allotted to law-business seemeth to have been that from the beginning amongst all , or most nations , which was not particularly dedicated ( as we said before ) to the service of god , or some rites of religion . therefore whilst moses was yet under the law of nature , and before the positive law was given , he sacrificed and kept the holy festival with jethro his father-in-law on the one day , but judged not the people till the day after ; some particular instance ( i know ) may be given to the contrary , as i shall mention , but this seemeth to have been at that time the general use . the greeks , who ( as josephus in his book against appion witnesseth ) had much of their ancient rites from the hebrews , held two of their † prytanaean-days in every month for civil matters , and the third onely for their sacra . aeschines , in his oration against ctesiphon , chargeth demosthenes with writing a decree in the senate , that the * prytanaean magistrates might hold an assembly upon the 8. day of the approaching month of † elaphebolion , when the holy rites of aesculapius were to be solemnized . the romans likewise ( whether by instinct of nature or president ) medled not with law causes during the time appointed to the worship of their gods , as appeareth by their primitive law of the 12. tables , feriis jurgia amovento , and by the places before cited as also this of the same tables . post semel exta deo data sunt licet omnia fari . verbáque honoratus libera praetor habet . when sacrifice and holy rites were done , the reverend pretor then his courts begun . to be short , it was so common a thing in those days of old , to exempt the times of exercise of religion from all worldly business ; that the barbarous nations , even our angli , whilst they were yet in germany , the suevians themselves , and others of those northern parts would in no-wise violate or interrupt it . * tacitus says of them that , during this time , non bellum ineunt non arma sumunt , clausum omne ferrum ; pax & quies tunc tantùm nota , tunc tantùm amata . of our german ancestours we shall speak more anon ; our british are little to the purpose : they judged all controversies by their priests the druides , and to that end met but once a year as † caesar sheweth us by those of the gauls . i will therefore seek the original of our terms onely from the romans , as all other nations that have been subject to their civil and ecclesiastical monarchy do , and must . chap. ii. of law-days amongst the romans using choice days . the ancient romans , whilst they were yet heathens , did not as we at this day use certain continued portions of the year , for a legal decision of controversies , but out of a superstitious conceit that some days were ominous , and more unlucky than others ( according to that of the aegyptians , ) they made one day to be fastus , or term-day , and another ( as an aegyptian day ) to be vacation or nefastus : seldom two fasti , or law-days together , yea they sometimes divided one and the same day in this manner , qui modo fastus erat , manè nefastus erat , the afternoon was term , the m●rning holy-day . nor were all their fasti applyed to judicature , but some of them to other meetings and consultations of the commonwealth ; so that being divided into three sorts , which they called fastos propriè , fastos intercisos , & fastos comitiales , they contained together 184. days , yet through all the months in the year there remained not properly to the pretor , as judicial or triverbal days above 28 ; whereas , before the abbreviation of michaelmas term by the statute of 16. car. 1. we had in our term above 96. days in court , and now have 86. besides the sundays and exempted festivals which fall in the terms ; and those are about 28. or there about . † sir thomas smith counts it strange , that three tribunals in one city in less than a third part of the year should satisfie the wrongs of so large and populous a nation as this of england . but let us return where we left off . chap. iii. of law-days amongst the primitive christians , and how they used all times alike . to beat down the roman superstition touching the observation of days , against which st. augustine and others wrote vehemently ; the christians at first used all days alike for hearing of causes , not sparing ( as it seemeth ) the sunday it self , thereby falling into another extreme : yet had they some president for it from moses and the jews . for * philo judaeus in the life of moses reporteth , that the cause of him that gather'd sticks on the sabbath-day , was by a solemn council of the princes , priests , and the whole multitude , examined and consulted of on the sabbath-day . and the talmudists , who were best acquainted with the jewish customs , as also galatinus the hebrew , do report that their judges in the council called sanhedrim sate on the week-day from morning to night , in the gates of the city ; and on the sabbath , and on festivals upon the walls . so the whole year then seemed a continual term , no day exempted . how this stood with the levitical law , or rather the moral , i leave to others . chap. iv. how sunday came to be exempted . but , for the reformation of the abuse among christians , in perverting the lord's day to the hearing of clamorous litigants , it was ordained in the year of our redemption 517. by the fathers assembled in concilio taraconensi cap. 4. after that in concilio spalensi cap. 2. and by adrian bishop of rome in the decretal caus. 15. quaest . 4. that , nullus episcopus vel infra positus die dominico causas judicare [ aut ventilare ] praesumat , no bishop or inferiour person presume to judge or try causes on the lord's day . for it appeareth by epiphanius , that in his time ( as also many hundred years after ) bishops and clergy-men did hear and determine causes , lest christians , against the rule of the apostle , should goe to law under heathens and infidels . this canon of the church for exempting sunday was by theodosius fortified with an imperial constitution , whilst we britains were yet under the roman government , solis die , quem dominicum certe dicere solebant majores , omnium omnino litium & negotiorum quiescat intentio . thus was sunday redeemed from being part of the term ; but all other days by express words of the canon were left to be dies juridici , whether they were mean or great festivals ; for it thus followeth in the same place of the a decretals ; caeteris verò diebus convenientibus personis illa quae justa sunt habent licentiam judicandi , excepto criminali ( or as another edition reads it ) exceptis criminalibus negotiis . the whole canon is verbatim also decreed in the capitulars of the emperours * carolus & ludovicus . chap. v. how other fastival and vacation days were exempted . let us now see how other festivals and parts of the year were taken from the courts of justice . the first canon of note that i meet with to this purpose is that in concilio triburiensi ca. 35. in or about the year 895. nullus comes , nullúsque omnino secularis diebus dominicis vel sanctorum in festis seu quadragessimae , aut jejuniorum , placitum habere , sed nec populum praesumat illo coercere . after this manner the council of † meldis ca. 77. took easter-week , commonly called the octaves , from law-business ; paschae hebdomade feriandum , forensia negotia prohibentur . by this example came the octaves of pentecost , st. michael , the epiphany , &c. to be exempted , and principal feasts to be honoured with octaves . the next memorable council to that of tribury was the council of ertford in germany in the year 932. which though it were then but provincial , yet being afterwards taken by gratian into the body of the canon law , it became general , and was imposed upon the whole church . i will recite it at large , as it stands in * binius , for i take it to be one of the foundation-stones to our terms . placita secularia dominicis vel aliis festis diebus , seu etiam in quibus legitima jejunia celebrantur secundum canonicam institutionem , minimè fieri volumus . in super quoque gloriosissimus rex [ francorum henricus ] ad augmentum christianae religionis concessit , ( or as † gratian hath it ) [ sancta synodus decrevit ] ut nulla judiciaria potest as licentiam habeat christianos suâ authoritate ad placitum bannire septem diebus ante natalem domini , & à * quinquagessima usque ad octavas paschae , & septem diebus ante natalem sancti johannis baptistae , quatenus adeundi ecclesiam orationibúsque vacandi liberiùs habeatur facultas . but the council of st. medard extant first in † burchard , and then in gratian enlargeth these vacations in this manner , decrevit sancta synodus , ut a quadragessima usque in octavam paschae , & ab adventu domini usque in octavam epiphaniae , necnon & in jejuniis quatuor temporum , & in litaniis majoribus , & in diebus dominicis , & in diebus rogationum ( nisi de concordia & pacificatione ) nullus supra sacra evangelia jurare praesumat . the word [ jurare ] here implyeth law causes , or hold plea on these days , as by the same phrase in other laws shall by and by appear , which the gloss also upon this canon maketh manifest , saying , in his etiam diebus causae exerceri non debent , citing the other † canon here next before recited , but adding withall , that the court and custome of rome it self doth not keep vacation from septuagessima , nor , as it seemeth , on some other of the days . and this president we follow , when septuagessima and sexagessima fall in the compass of hilary-term . chap. vi. that our terms take their original from the canon law. thus we leave the canon law , and come home to our own country , which out of these , and such other foreign constitutions ( for many more there are ) has framed our terms , not by chusing any set portion of the year for them , but by taking up such times for that purpose , as the church and common necessity ( for collecting the fruits of the earth ) left undisposed of , as in that which followeth plainly shall appear . chap. vii . the constitutions of our saxon kings in this matter . in as one of our ancient saxon kings , made a very strict law against working on sunday . gif þeoƿ mon ƿyrce on sunnan daeg . be his hlafordes haese . sy he freo . if a servant work on sunday by his master's command , let him be made free , &c. and * alured prohibited many festivals ; but the first that prohibited juridical proceedings upon such days was edward the elder and guthurne the dane , who in the league between them , made about ten years before the council of ertford , ( that it may appear we took not all our light from thence ) did thus ordain ; ordel & aþas syndon tocƿedene . freols dagum . & riht faesten dagum ; we forbid that ordel and oaths ( so they called law-tryals at that time ) be used upon festival and lawfull fasting days , &c. how far this law extended appeareth not particularly , no doubt to all festival and fasting-days then imposed by the roman church , and such other provincial , as by our kings and clergy here were instituted . those which by alured were appointed to be festivals , are now by this law made also days of vacation from judicial trials , yet seem they , for the most part , to be but semi-festivals , as appointed onely to freemen not to bondmen , for so this † law declareth , viz. the 12. days of christmas , the day wherein christ overcame the devil , the anniversary of st. gregory , the 7. days afore easter , and the seven days after , the day of st. peter and st. paul , and the whole week before st. mary in the harvest , and the feast-day of all-saints . but the four wednesdays in the four ember weeks are remitted to bondmen to bestow their work in them as they think good . to come to that which is more perspicuous , i find about a sixty years after , a canon in our b synod of eanham , under king ethelred in these words . first , touching sunday , c dominicae solennia diei cum summo honore magnopere celebranda sunt , nec quicquam in eadem operis agatur servilis . negotia quoque secularia quaestionésque publicae in eadem deponantur die . then commanding the feast-days of the c b. virgin , and of all the c apostles , the d fast of the ember days , and of the e fryday in every week to be duely kept ; it proceedeth thus , f judicium quippe quod anglicè ordel dicitur , & juramenta vulgaria , festivis temporibus & legitimis jejuniis , sed & ab adventu domini usque post octabas epiphaniae , & à septuagesima usque 15. dies post pascha minime exerceantur : sed sit his temporibus summa pax & concordia inter christianos , sicut fieri oportet . it is like there were some former constitutions of our church to this purpose ; but either mine eye hath not lighted on them , or my memory hath deceived me of them . chap. viii . canutus succeeding shortly after by his danish sword in our english kingdome , not onely retained but revived this former constitution , adding , after the manner of his zeal , two new festival and vacation days . and ƿe forbeodað ordal . & að●s freols dagum . & ymbren dagum . & len●●en dagum . & riht faesten dagum ; & fram adventum domini eþ se eah to þa dag ; and we forbid ordal and oaths on feast-days , and ember days , and lent , and set fasting days , and from the advent of our lord till eight days after [ the ] twelve [ days ] be past . and from septuagessima till fifteen nights after easter . and the sages have ordained that st. edward's day shall be festival over all england on the 15. of the kalends of april , and st. dunstan's on the 14. of the kalends of june , and that all christians ( as right it is ) should keep them hallowed and in peace . canutus , following the example of the synod of eanham , setteth down in the paragraph next before this recited , which shall be festival and which fasting-days , appointing both to be days of vacation . among the fasting days he nameth the saints eves and the frydays ; but excepteth the frydays when they happen to be festival days , and those which come between easter and pentecost ; as also those between midwinter ( so they called the nativity of our lord ) and octabis epiphaniae . so that , at this time , some frydays were law-days and some were not . those in easter term , with the eve of philip and jacob , were , and the rest were not . the reason of this partiality ( as i take it ) was ; they fasted not at christmas for joy of christ's nativity , nor between easter and whitsontide , for that christ continued upon the earth , from his resurrection till his ascension ; and a the children of the wedding may not fast so long as the bridegroom is with them : nor at whitsuntide for joy of the coming of the holy ghost . chap. ix . the constitution of edward the confessour most material . saint edward the confessour drew this constitution of canutus nearer to the course of our time , as a law in these words : b ab adventu domini usque ad octabas epiphaniae pax dei & sanctae ecclesiae per omne regnum ; similiter à septuagessima usque ad octabas paschae ; item ab ascensione domini usque ad octabas pentecostes ; item omnibus diebus quatuor temporum ; item omnibus sabbatis ab hora nona , & totâ die sequenti , usque ad diem lunae ; item vigiliis sanctae mariae , sancti michaelis , sancti johannis baptistae , apostolorum omnium & sanctorum quorum solennitates a sacerdotibus dominicis annunciantur diebus ; & omnium sanctorum in kalendis novembris , ab hora nona vigiliarum , & subsequenti solennitate : item in parochiis in quibus dedicationis dies observatur ; item parochiis ecclesiarum ubi propria festivitas sancti celebratur , &c. the rubrick of this law is , de temporibus & diebus pacis regis , intimating term-time , and here in the text the vacations are called dies pacis dei & sanctae ecclesiae , as i * said in the beginning . but pax dei , pax ecclesiae , & pax regis in other laws of edward the confessour , and elsewhere , have other significations also more particular . hora nona is here ( as in all authours of that time ) intended for three of the clock in the after-noon , being the ninth hour of the artificial day , wherein the saxons , as other nations of europe , and our ancestours of much later time , followed the judaical computation : perhaps till the invention and use of clocks gave a just occasion to alter it , for that they could not dayly tarry for the unequal hours . chap. x. the constitution of william the conquerour . this constitution of edward the confessour was amongst his other laws confirm'd by william the conquerour ; as not onely a hoveden , and those ancient authours testify , but by the decree of the conquerour himself , in these words ; b hoc quoque praecipio ut omnes habeant & teneant leges edwardi in omnibus rebus , adauctis his quae constituimus ad utilitatem anglorum . and in those auctions nothing is added , alter'd , or spoken , concerning any part of that constitution . neither is it likely that the conquerour did much innovate the course of our terms or law-days , seeing he held them in his own dutchy of normandy , not far differing from the same manner , having received the customs of that his country from this of ours , by the hand of edward the confessour , as in the beginning of their old customary themselves do acknowledge . the words touching their law-days or trials are these , under the title , de temporibus quibus leges non debent fieri : c notandum autem est quod quaedam sunt tempora in quibus leges non debent fieri , nec simplices , nec apertae , viz. omnia tempora in quibus matrimonia non possunt celebrari . ecclesia autem legibus apparentibus omnes dies festivos perhibet , & defendit , viz. ab hora nona die jovis , usque ad ortum solis die lunae sequenti , & omnes dies solennes novem lectionum & solennium jejuniorum , & dedicationis ecclesiae in qua duellum est deducendum . this law doth generally inhibit all judicial proceedings , during the time wherein marriage is forbidden , and particularly all trials by battail , ( which the french and our d glanvill call leges apparentes , alias apparibiles , vulgarly loix apparisans ) during the other times therein mention'd . and it is to be noted , that the emperour frederick the second in his e neapolitan constitutions includeth the trials by ordeal under leges paribiles . but touching the times wherein marriage was forbidden , it agreed for the most part with the vacations prescribed by edward the confessour , especially touching the beginning of them . of dies novem lectionum , we shall find occasion to speak hereafter . chap. xi . what done by william rufus . hen. 1. k. stephen , and hen. 2. as for william rufus , we reade that he pulled many lands from the church , but not that he abridged the vacation times assigned to it . henry the 1. upon view of former constitutions , composed this law under the title , de observatione legis faciendi , viz , ab adventu domini usque ad octabas ep●●haniae , & à septuagessima usque ad 15 dies post pascham , & festis diebus , & quatuor temporum , & diebus quadragessimalibus , & aliis legitimis jejuniis , in diebus veneris , & vigiliis a sanctorum apostolorum non est tempus leges faciendi , vel jusjurandum ( b nisi primo fidelitate domini vel concordia ) vel bellum , vel ferri , vel aquae , vel leges c exactiones tractari , sed sit in omnibus vera pax , beata charitas , ad honorem omnipotentis dei , &c. the copy of these laws is much corrupted , and it appeareth by florence wigorn's continuer , that the * londoners refused them , and put maud the empress to an ignominious flight when she pressed the observation of them . but in this particular branch there is nothing not agreeable to some former constitution . the word bellum here signifieth combats , which among our saxons are not spoken of , and by those of ferri vel aquae , are meant ordal . king stephen by his charter recited at malmesbury , confirmed and established by a generality † bonas leges & antiquas , & justas consuetudines . henry the 2d . expresly ratified the laws of edward the confessour , and william the conquerour , as c hoveden telleth us , saying , that he did it by the advice of ranulph glanvill then newly made chief justice of england ; which seemeth to be true , for that * glanvill doth accordingly make some of his writs returnable in octabi , or clauso paschae where the laws of edward the confessour appoint the end of lent vacation : and e gervascius tilburiensis also mentioneth the same return . chap. xii . the terms laid out according to these ancient laws . to lay out now the bounds of the terms according to these canons and constitutions , especially that ancient law of edward the confessour ; it thus appeareth , viz. hilary term began then certainly at octabis epiphaniae , that is the thirteenth day of january , seven days before the first return is now , and nine days before our term beginneth , and ended at the saturday next before septuagessima , which being movable made this term longer some years than in others . florentinus wigorniensis , and walsingham in his a hypodigma neustriae saith , — anno 1096. in octabis epiphaniae apud sarisburiam rex gulielmus rufus tenuit consilium in quo jussit gulielmo de anco in duello victi oculos eruere , & testiculos abscindere , & dapiferum illius gulielmum de alderi , filium amitae illius suspendi , &c. proceeding also judicially against others . though walsingham calleth this assembly consilium with an s , and wigorniensis concilium with a c , ( the word term perhaps not being in use in the days of william rufus ) yet it may seem to be no other , than an assembly of the barons , in the king's court of state , ( which was then the place of justice ) to proceed judicially against these offenders . for the barons of the land were at that time the judges of all causes , which we call pleas of the crown , and of all other belonging to the court of the king : so that the proceedings being legal and not parliamentary , it appeareth that it was then no vacation , and that the term was begun at octabis epiphaniae ; whereby it is the liklier also that it ended at septuagessima , lest beginning it , as we now do , some years might happen to have no hilary-term at all , as shall anon appear . and this our ancient use of ending the term at septuagessima is some inducement to think , the council of ertford to be depraved , and that the word there quinquagessima should be septuagessima , as the gloss there reporteth it to be in some other place : and as well gratian mistakes this , as he hath done the council it self , attributing it to ephesus , a city of ionia , instead of ertford a town in germany ; where burchard before him , and binius since , hath placed it . it comes here to my mind , what i have heard an old chequerman many years agoe report , that this term and trinity-term were in ancient time either no terms at all , or but as reliques of michaelmas and easter-terms , rather than just terms of themselves : some courses of the chequer yet encline to it . and we were both of the mind , that want of business ( which no doubt in those days was very little ) by reason suits were then for the most part determined in inferiour courts , was the cause of it . but i since observe another cause , viz. that septuagessima or church-time one while trode so near upon the heels of octabis epiphaniae ( i mean came so soon after it , ) that it left not a whole week for hilary-term ; and again , another while , trinity-sunday fell out so late in the year , that the common necessity of hay-seed and harvest , made that time very little , and unfrequented . for inasmuch as easter-term ( which is the clavis , as well to shut up hilary-term , as to open trinity-term , ) may according to the general council of nice , holden in the year 922. fall upon any day between the 22. of october exclusively , which then was the aequinoctium , and the 25 of april inclusively ( as the farthest day that the sunday following the vernal full-moon can happen upon ; ) septuagessima may sometimes be upon the 18. of january , and then they could not in ancient time have above 4. days term , and we at this day no term at all , because we begin it not till the 23. of january , which may be six days after septuagessima , and within the time of church-vacation . but what hilary-term hath now lost from the beginning of it , it hath gained at the latter end of trinity-term . and i shall speak more of this by and by . chap. xiii . easter-term . easter-term , which now beginneth two days after quindena paschae , began then as the law of edward the confessour appointed it , at octab. this is verified by glanvill , who maketh one of his writs returnable thus ; — summoneo per bonos summonitores quatuor legales milites de vicineto de stock , quod sint ad clausum paschae coram me vel justiciariis meis apud westmonasterium ad eligendum supra sacramentum suum duodecim legales milites . but , as it began then nine days sooner than it now doth , so it ended six or seven days sooner , ( viz. ) before the vigil of ascension , which i take to be the meaning of the law of edward the confessour , appointing the time from the ascension ( inclusive ) to the octaves of pentecost with ascension-eve to be dies pacis ecclesiae , and vacation . chap. xiv . trinity-term . trinity-term therefore in those days began as it now doth ( in respect of the return ) at octab. pentecostes , which being always the day after trinity-sunday is now by the stat. of 32 of hen. 8. appointed to be called crastino trinitatis . but it seemeth that the stat. 51. of hen. 3. changed the beginning of this term from crastino trinitatis to octab. trinitatis , and that therefore the stat. of hen. 8. did no more in this point than reduce it to the former original . as touching the end of this term , it seemeth also that the said stat. of 51. hen. 3. assigned the same to be within two or three days after quindena sancti johannis ( which is about the twelvth of july ) for that statute nameth no return after . bnt , for ought that hindreth by the canons , it is tanquam terminus sine termino ; for , there was no set canon or ecclesiastical law ( that i can find ) to abbridge the continuance thereof till michaelmas-term , unless the 7. days next before st , john baptist , were ( according to the canon of ertford ) used as days of intermission , when they fell after the octaves of pentecost as commonly they do , though in the year 1614. four of them fell within them . and except the ember-days next after holy rood ; for jejunia quatuor temporum , as well by the laws of canutus , and edward the confessour , as by all other almost before recited , are either expresly or implicitly exempted from the days of law. but when trinity-sunday fell near the feast of st. john baptist , then was the first part of this term so thrust up between those days of the church , that it was very short ; and the latter part being always very late did so hinder hay-seed and harvest following , that either the course of it must be shortned , or it must still usurp upon the time , allotted by nature to collect the fruits of the earth . for as religion closed the courts of law in other parts of the year , so now doth publick necessity stop the progress of them ; following the constitution of a theodosius , thus decreeing ; — omnes dies jubemus esse juridicos . illos tantum manere feriarum dies fas erit , quos geminis mensibus ad requiem laboris indulgentior annus excepit : aestivos fervoribus mitigandis , & autumnos fructibus discerpendis . this is also confirmed in the b c. — and in c gratian with the glosses upon them to which i leave you , but is of old thus expressed by d statius , as if it were ex jure gentium : certè jam latiae non miscent jurgia leges , et pacem piger annus habet , messésque reversae dimisere forum : nec jam tibi turba reorum vestibulo , querulique rogant exire clientes . the latian laws do no man now molest , but grant this weary season peace and rest ; the courts are stopt when harvest comes about , the plaintiff or defendant stirs not out . so the longobards ( our brethren as touching saxon original ) appointed for their vintage a particular vacation of 30 days , which paulus diaconus doth thus mention : proficiscentes autem eo ad villam , ut juxta ritum imperialem triginta : whereby it appeareth that this time was not onely a time of vacation , in those ancient days , but also of feasting and merriment , for receiving the fruits of the earth ; as at nabal's and absalom's sheep-shearing , and in divers parts of england at this day . so the normans , whose terms were once not so much differing from ours , might not hold their assizes or times of law , but after easter and harvest ; that is after the times of holy church and publick necessity ) as appeareth by their customary . and forasmuch as the * swainmote-courts are by the ancient forest-laws appointed to be kept fifteen days before michaelmas ; it seemeth to be intended that harvest was then done , or that in forests little or no corn was used to be sown . but is to be remembred , that this vacation by reason of harvest , hay-seed , vintage , &c. was not of so much solemnity as those in the other parts of the year , and therefore called of the civilians , dies feriati minùs solennes ; because they were not dedicated divino cultui , but humanae necessitati . therefore though law-business was prohibited on these days to give ease and freedom unto suiters whilst they attended on the store-house of the commonwealth ; yet was it not otherwise than that by consent of parties they might proceed in this vacation , whereof see the b decreta gregorii . chap. xv. of michaelmas-term according to the ancient constitutions . michaelmas-term ( as the canons and laws aforesaid leave it ) was more uncertain for the beginning than for the end . it appeareth by a fine taken at norwich , 18 hen. 3. that the term was then holden there , and began within the octaves of saint michael ; for the note of it is ; haec est finalis concordia facta in curia domini regis apud norwicum , die martis proximo post festum sancti michaelis , anno regni regis henrici filii regis johannis 18. coram tho. de mulet , rob. de lexint , olivero , &c. i observe that the tuesday next after st. michael can ( at the farthest ) be but the seventh day after it , and yet it must be a day within the octaves ; whereas the term * now is not till the third day after the octaves . but a gervasius tilburiensis , who lived in the days of hen. 2. hath a writ in these words : — n. rex anglorum , [ illi vel illi ] vicecomiti salutem . vide , sicut teipsum & omnia tua diligis , ut sis ad scaccarium [ ibi vel ibi in crastino sancti michaelis , vel in crastino clausi paschae ] & habeas tecum quicquid debes de veteri firma & nova , & nominatim haec debita subscript . viz. &c. by which it appeareth that the term in the exchequer , as touching sheriffs and accomptants , and consequently in the other parts , began then as now it doth , saving that the statute de scaccario , 51 hen. 3. hath since appointed , that sheriffs and accomptants shall come to the exchequer the monday after the feast of st. michael , and the monday after the * vtas of easter . so that this time being neither ferial nor belonging to the church , may justly be allotted to term affairs , if the octaves of saint michael have no privilege : more of which hereafter . the end is certainly prefixed by the canons and laws aforesaid , that it may not extend into advent . and it holdeth still at that mark ; saving that because advent sunday is moveable , according to the dominical-letter , and may fall upon any day between the 26th of november and the 4th of december , therefore the 28th of november ( as a middle period by reason of the feast and eve of st. andrew ) hath been appointed to it . howbeit when advent-sunday falleth on the 27th of november , as sometimes it doth , then is the last day of the term ( contrary to the canons and former constitutions ) held in advent , as it after shall more largely appear . chap. xvi . the latter constitutions of the terms . to leave obscurity and come nearer the light , it seemeth by the statutes of 51 hen. 3. called dies communes in banco , that the terms did then either begin and end as they do now , or that those statutes did lay them out , and that the statute of 36 ed. 3. cap. 12. confirmed that use : for the returns there mentioned are neither more nor fewer than * at this day . chap. xvii . how trinity-term was altred and shortned . trinity-term was altred and shortned by the statute of 32 hen. 8. chap. 21. which hath ordained it quoad sessionem , to begin for ever the fryday after corpus-christi-day , and to continue 19 days ; whereas in elder times it began two or three days sooner . so that corpus-christi-day being a moveable feast , this term cannot hold any certain station in the year , and therefore in the year 1614 , it began on st. john baptist's day , and the year before it ended on his eve. hereupon , though by all the canons of the church and former laws , the feast of st. john baptist was a solemn day , and exempt from legal proceedings in courts of justice ; yet it is no vacation day , when corpus-christi falleth ( as it did that year ) the very day before it : because the statute hath appointed the term to begin the fryday next after corpus-christi-day , which in the said year 1614. was the day next before st. john baptist , and so the term did of necessity begin on saint john baptist's day . this deceived all the prognosticators , who counting st. john baptist , for a grand day , and no day in court , appointed the term in their almanacks to begin the day after , and consequently to hold a day longer ; so deceiving many by that their errour . but , the aforesaid statute of 32 h. 8. changed the whole frame of this term : for it made it begin sooner by a return , viz. crastino sanctae trinitatis , and thereby brought octabis trinitatis which before was the first return , to be the second , and quindena trinitatis which before was the second , now to be the third ; and instead of the three other returns of crastino octabis , and quindena sancti johannis , it appointed that which before was no return , but now the fourth and last , called tres trinitatis . the altering and abbreviation of this term is declared by the preamble of the statute , to have risen out of two causes , one for health , in dismissing the concourse of people , the other for wealth that the subject might attend his harvest , and the gathering in the fruits of the earth . but there seemeth to be a third also not mention'd in the statute , and that is , the uncertain station , length and returns of the first part of this term , which , like an excentrick , was one year near to st. john baptist , another year far removed from it ; thereby making the term not onely various , but one year longer , and another shorter , according as trinity-sunday ( being the clavis to it ) fell nearer or farther off from st. john baptist. for if it fell betimes in the year , then was this term very long , and the two first returns of octabis and quindena trinitatis might be past and gone a fortnight and more , before crastino sancti johannis could come in : and if it fell late , ( as some years it did ) then would crastino sancti johannis be come and past , before octabis trinitatis were gone out . so that many times one or two of the first returns of this term ( for ought that i can see ) must in those days needs be lost . chap. xviii . how michaelmas-term was abbreviated by act of parliament 16. car. 1. cap. 6. the last place our statute-book affords upon this subject of the limits and extent of the terms is the stat. 16. car. 1. chap. 6. intituled , an act concerning the limitatiom and abbreviation of michaelmas-term . for , whereas by former statutes it doth appear , that michaelmas-term did begin in octabis sanctae michaelis , that statute appoints , that the first return in this term shall ever hereafter be à die sancti michaelis in tres septimanas , so cutting off no less than two returns from the ancient beginning of this term , viz. octabis sancti michaelis , & a die sancti michaelis in quindecim dies , and consequently making the beginning of it fall a fortnight later than before . wherefore the first day in this term will always be the 23d . day of october , unless it happen to be sunday , for then it must be defer'd till the day following , upon which account we find it accordingly placed on the 24. for the year 1681. this is all the alteration that statute mentions , and therefore for the end of michaelmas-term , i refer the reader to what our authour has said already in the 15th . chapter . it may not be amiss in persuit of our authour's method to set down the motives of making this abbreviation as we find them reckon'd up in the preamble to that statute . there we find , that the old beginning of michaelmas-term , was generally found to be very inconvenient to his majesty's subjects both nobles and others . 1. for the keeping of quarter-sessions next after the feast of st. michael the archangel ; 2ly . for the keeping their leets , law-days and court-barons : 3ly . for the sowing of land with winter-corn , the same being the chief time of all the year for doing it ; 4ly . for the disposing , and setting in order of all their winter husbandry and business ; 5ly . for the receiving and paying of rents ; 6ly . because in many parts of this kingdom , especially the most northern , harvest is seldom or never inned till three weeks after the said feast . all which affairs they could before by no means attend , in regard of the necessity of their coming to the said term , so speedily after the feast of st. michael the archangel , to appear upon juries , and to follow their causes and suits in the law. sect . v. other considerations concerning term-time . having thus laid out the frame of the terms , both according to the ancient and modern constitutions , it remaineth that we speak something of other points properly incident to this part of our division touching term-time , viz. 1. why the courts sit not in the afternoons . 2. why not upon some whole days , as on grand-days , double feasts , and other exempted days , and the reason of them . 3. why some law-business may be done upon some days exempted . 4. why the end of michaelmas-term is sometimes held in advent , and of hilary-term in septuagessima , sexagessima , and quinquagessima . 5. why the assizes are held in lent , and at times generally prohibited by the church . 6. of returns . 7. of the quarta dies post . 8. why i have cited so much canon , civil , feodal , and foreign laws in this discourse , with an incursion into the original of our laws . chap. i. why the high courts sit not in the afternoons . it is now to be considered why the high courts of justice sit not in the afternoons . for it is said in * scripture , that moses judged the israelites from morning to evening . and the romans used the afternoon as well as the forenoon , yea many times the afternoon and not the forenoon , as upon the days called endotercisi , or intercisi , whereof the forenoon was nefastus or vacation , and the afternoon fastus or law-day , as we shewed in the beginning . and the civilians following that law do so continue them amongst us in their terms at this day . but our ancestours and other the northern nations being more prone to distemper and excess of diet ( as the canon law noteth of them ) used the forenoon onely , lest repletion should bring upon them drowsiness and oppression of spirits ; according to that of st. jerome , pinguis venter non gignit mentem tenuem . to confess the truth , our saxons ( as appeareth by a huntington ) were unmeasurably given to drunkenness . and it is said in b ecclesiastes , vae terrae cujus principes manè comedunt . therefore to avoid the inconvenience depending hereon the council of nice ordained , that judices non nisi jejuni judicia decernant . and in the council of salegunstad it was afterward decreed , a. d. 1023 , ut lectio nicaeni concilii recitetur , which being done in the words aforesaid , the same was likewise there confirm'd . according to this in the laws of carolus magnus the emperour it is ordained , a l — lib. 2. ut judices jejuni causas audiant & discernant : and again in the b capitulars caroli & lodovici , nè placitum c comes habeat nisi jejunus . where the word comes , according to the phrase of that time is used for judex , as elsewhere we have it declared to the same effect in the capitular ad legem salicam : and out of these and such other d constitutions ariseth the rule of the canon law , that quae à prandio fiunt constitutiones inter decreta non referuntur . yet i find that causes might be heard and judged in the afternoon ; for in capitulars lib. 2 — 33 , and again lib. 4. cau. 16. it is said , causae viduarum pupillorum & pauperum audiantur & definiantur ante meridiem , regis verò & potentiorum post meridiem . this though it may seem contradictory to the constitutions aforesaid , yet i conceive them to be thus reconcilable : that the judges ( sitting then but seldom ) continued their courts both forenoon and afternoon , from morning till evening without dinner or intermission , as at this day they may , and often do , upon great causes : though being risen and dining , they might not meet again ; yet might they not sit at night , or use candle light , quòd de nocte non est honestum judicium exercere . and from these ancient rites of the church and empire is our law derived , which prohibiteth our jurours , being judices de facto , to have meat , drink , fire or candle light , till they be agreed of their verdict , it may here be demanded how it cometh to pass , that our judges after dinner do take assizes and nisi prius in the guild-hall of london , and in their circuits ? i have yet no other answer but that ancient institutions are discontinued often by some custome grating in upon them , and changed often by some later constitution , of which kind the instances aforesaid seem to be . for assizes were ordained many ages after by henry the second , as appeareth by the charter of beverly glanvill and radulphus niger , and nisi prius by * edward the first , in the statutes of westminster 2 ; though i see not but in taking of them the ancient course might have been continued if haste would suffer it . chap. ii. why they sit not at all some days . though there be many days in the terms , which by ancient constitutions before recited are exempted from law-business , as those of the apostles , &c. and that the a statute of ed. 6. appointed many of them to be kept holy-days , as dedicated , not unto saints , but unto divine worship , which we also at this day retain as holy-days : yet do not the high courts forbear sitting in any of them , saving on the feast of the purification , the ascension , st. john baptist , all-saints , and the day after , ( though not a feast ) called all-souls . when the others lost their privilege and came to be term-days i cannot find ; it sufficeth that custome hath repealed them by confession of the canonists . yet it seemeth to me , there is no provision made for it in the constitutions of our church under isleep archbishop of canterbury in the time of edward the third . for though many ancient laws and the decretals of gregory the 9th had ordained , judicialem strepitum diebus conquiescere feriatis ; yet in a synod then holden , wherein are all the holy-days appointed and particularly recited , no restraints of judicature or forensis strepitus is imposed , but a cessation onely ab universis servilibus operibus , etiam reipublicae utilibus . which though it be in the phrase god himself useth touching many great feasts , viz. a omne servile opus non facietis in iis , yet it is not in that when he instituteth the seventh day to be the sabbath , b non facies omne opus in eo , without servile , thou shalt doe no manner of work therein . now the act of judicature , and of hearing and determining controversies is not opus servile , but honoratum & planè regium , and so not within the prohibition of this our canon , which being the latter seemeth to qualifie the former . yea the canonists and casuists themselves not onely expound opus servile of corporeal and mechanical labour , but admit 26 several cases where ( even in that very kind ) dispensation lieth against the canons , and by much more reason then , with this in question . it may be said that this canon consequently giveth liberty to hold plea and courts , upon their festivals in the vacations . i confess that so it seemeth ; but this canon hath no power to alter the bounds and course of the terms , which before were setled by the statutes of the land , so that in that point it prevaileth not . why ? but there ariseth another question how it comes to pass that the courts sit in easter-term upon the rogation days , it being forbidden by the council of medard , and by the intention of divers other constitutions ? it seemeth that it never was so used in england , or at least not for many ages , especially since gregory the ninth ; insomuch that among the days wherein he prohibiteth forensem strepitum , clamorous pleading , &c. he nameth them not . and though he did , the glossographers say , that a nation may by custome erect a feast that is not commanded by the canons of the church . * et eodem modo posset ex consuetudine introduci , quòd aliqua quae sunt de praecepto non essent de praecepto , sicut de tribus diebus rogationum , &c. to be short , i find no such privilege for them in our courts , though we admit them other church rites and ceremonies . we must now shew ( if we can ) why the courts , sitting upon so many ferial and holy-days , do forbear to sit upon some others , which before i mention'd ; the purification , ascension , st. john baptist , all-saints , &c. for , in the synod under isleep before mention'd , no prerogative is given to them above the rest , that fall in the terms ; as namely , st. mark and st. philip and jacob , when they do fall in easter term , st. peter in trinity-term , st. luke ( before the late abbreviation by 16. car. 1. ) did fall , and st. simon and jude , doth always fall in michaelmas-term . it may be said , that , although the synod did prohibit onely opera servilia to be done on festival-days , as the offence most in use at that time ; yet did it not give licence to doe any act that was formerly prohibited by any law or laudable custome . and therefore if by colour thereof , or any former use ( which is like enough ) the courts did sit on lesser festivals , yet they never did it on the greater , among which ( majoris cautelae gratiâ ) those opera servilia are there also prohibited to be done on easter-day , pentecost , and the sunday it self . let us then see which are the greater feasts , and by what merit they obtain their privilege , that the courts of justice sit not on them . as for sunday , we shall not need to speak of it , being canonized by god himself . as for easter and whitsunday , we shall not need to speak of them neither , because they fall not in the terms : yet i find a parliament held , at least began on whitsunday . but touching feasts in general , it is to be understood , that the canonists , and such as write a de divinis officiis , divide them into two sorts , viz. festa in totum duplicia , & simpliciter duplicia : and they call them duplicia , or double feasts , for that all , or some parts of the service , on those days were begun voce duplici , that is , by two singing-men ; whereas on other days all was done by one . our cathedral churches do yet observe it : and i mean not to stay upon it , for you may see in the b rationale which feasts were of every of these kinds . the ordinary apostles were of the last , and therefore our courts made bold with them : but the purification , ascension , st. john baptist , with some others that fall not in the term , were of the first , and because of this and some other prerogatives were also called , festa majora , festa principalia , & dies novem lectionum , ordinarily , double feasts , and grand days . mention is made of them in an b ordinance 8. ed. 3. that writs were ordained to the bishops , to accurse all and every of the perturbers of the church , & c. every sunday and double feast , &c. but we must needs shew why they were called dies novem lectionum , for so our old rituale de sarum , styleth them , and therein lyeth their greatest privilege . after the arian heresie against the b , trinity was by the fathers of that time most powerfully confuted and suppressed , the church in memory of that most blessed victory , and the better establishing of the orthodox faith in that point , did ordain , that upon divers festival-days in the year , a particular lesson touching the nature of the trinity , besides the other 8. should be read in their service , with rejoycing and thanksgiving to god for suppressing that heresie : and for the greater solemnity , some c bishop , or the chiefest clergy-man present did perform that duty . thus came these days to their styles aforesaid , and to be honoured with extraordinary musick , church-service , robes , apparel , feasting , &c. with a particular exemption from law-trials amongst the normans , who therefore kept them the more respectfully here in england : festa enim trinitatis ( saith belethus ) digniori cultu sunt celebranda . in france they have two sorts of grand days , both differing from ours : first , they call them , les grand jours , wherein an extraordinary sessions is holden in any circuit , by virtue of the king's commission directed to certain judges of parliament ; secondly , those in which the peers of france hold once or twice a year their courts of faught justice ; all other courts being in the mean time silent . see touching this their loyscean de seigniors . to come back to england , and our own grand-days , i see some difference in accounting of them : durandus in his first chapter , and seventh book reckoneth the purification , ascension and st john baptist , to be grand-days , not mentioning all-saints ; but both he in his 34th . chapter , and belethus in his — do call it festum maximum & generale , being not onely the feast of apostles and martyrs , but of the trinity , angels and confessours , as durandus termeth it . and that honour and duty quod in singulis valet , potentiùs valebit in conjunctis . as for the feast of all-souls , neither durandus , nor belethus , nor any ancient of those times ( for they lived above 400. years since ) do record it for a festival . but my country-man walsingham the monk of st. albans sayth , that simon archbishop of canterbury in the year 1328. at a provincial council holden at london , did ordain , a quòd die parasceue & in commemoratione omnium animarum ab omni servili opere cessaretur . surely he mistook it ; for neither is it so mention'd in lindewood , reciting that canon , nor in the ancient copy of the council it self , where the two feasts canonized by him are the parasceue and the conception of the blessed virgin. yet doubtless , whensoever it was instituted it was a great feast with us , though no where else . for the old primer eboracensis ecclesiae , doth not onely set it down in the kalendar for a double feast , but appointeth for it the whole service , with the nine lessons ; for it is as a feast of the trinity . and though neither the statute of edward the 6. nor our church at this day doth receive it ; yet being formerly a vacation-day ( as it seemeth ) our judges still forbear to sit upon it , and have not hitherto made it a day in court , though deprived of festival rites , and therefore neither graced with robes , nor feasting . the feast also of st. peter and paul on the 29th . of june was a double feast , yet it is now become single , and our judges sit upon it . i confess i have not found the reason , unless that by canonizing st. paul and so leaving st. peter single , we allow him no prerogative above the other apostles , lest it should give colour for his primacy ; for to st. paul , as one born out of time , we allow no festival , either in the statute of edward 6. or in the almanacks and kalendars of our church . and why st. peter hath it not is the more observable , for that he not onely is deprived of the ancient dignity of his apostleship , contrary to the canons ( as the other are ; ) but of the privilege given him in that place by pope nicholas the 2d . in a bull to edward the confessour , as being patron of the paroch and dedication of westminster , where the terms are kept , and where by right thereof this day was also privileged from court-business . other festivals i enquire not after , as of st. dunstan and the rest that stand rubricate in old kalendars ; they being abrogated by old canons of our own church , or the statute of edw. 6. whereof i must note by the way that i find it repealed by queen mary , but not revived by queen elizabeth , or since . it seemeth that the statute of the 5. and 6. edw. 6 cap. 3. notwithstanding the repeal of it amongst a multitude of others by queen mary , anno 1. sessione 2. cap. 2. is revived again , though not by queen elizabeth , yet by ● jacobi cap. 25. in these words ; that an act made in the first year of the reign of queen mary , intituled an act for the repeal of certain statutes made in the time of king edw. the 6. shall stand repealed . i am carried from the brevity i intended , yet all this lyeth in my way ; nor is it out of it to speak a word of st. george's day , which sometimes falleth in easter-term , and is kept in the court royal with great solemnity , but not in the court judicial . though he stood before in the kalendar , and was the english patron of elder time , yet h. chichley , archbishop of canterbury gave him his greatness by canonizing his day to be a double feast and grand day , as well among the clergy as laity ; and that both the one and the other repairing to their churches should celebrate it ( as christmas-day ) free from servile-work , in ardent prayers for safety of the king and kingdom . the occasion of this constitution was , to excite k. henry the 5th . being upon his expedition for normandy ; and this , among many holy-days , was abolished by the stat. of 5. and 6. of edw. 6. yet it being the festival of the knights of the garter , it was provided in the * statute , that the knights might celebrate it on the 22. 23. and 24th . of april . other feasts there were of this nature ; as that of st. winifred on the 2d . of november , which is in effect no day of sitting , but applyed to the pricking of sheriffs . these are vanished , and in their room we have one new memorable day of intermitting court and law-business for a little in the morning , whilst the judges in their robes go solemnly to the great church at westminster on the 5th . of november yearly , to give god thanks for our great deliverance from the powder-treason , and hear a sermon touching it , which done they return to their benches . this was instituted by act of parliament 3. jacobi , cap. 1. and it is of the kind of those ferial days , which being ordained by the emperours , not by the popes , are in canon and civil law called feriati dies repentini . i will go no farther among the tedious subtilties of distinguishing days ; i have not been matriculated in the court of rome : and i confess i neither do nor can explain many objections and contrarieties that may be gathered in these passages . some oedipus or ariadne must help me out . chap. iii. why some law-business may be done on days exempted . in the mean time let us see , why some law-business may be done on days exempted , and sometimes on sunday it self , notwithstanding any thing above mentioned . for as in term time some days are exempted from term business , and some portion of the day from sitting in courts ; so in the vacation time and days exempted , some law business may be performed by express permission of the canon-law , according to that of the a poet in the georgicks , quippe etiam festis quaedam exercere diebus fas & jura sinunt — the synod of medard admitteth matters de pace & concordia : the laws of hen. 1. matters of concord and doing fealty to the lord. the decree of gregory the ninth , in cases of necessity , and doing piety , according to that of b prosper , non recto servat legalia sabbata cultu , qui pietatis opus credit in his vetitum . the rule is verified by our saviour's healing on the sabbath day . out of these and such other authorities of the laws ecclesiastical and civil , cited in the glosses , the canonists have collected these cases , wherein judges may proceed legally upon the days prohibited , and doe the things here next following . for matters of peace and concord , by reason whereof our judges take the acknowledgment of fines , statutes , recognizances , &c. upon any day , even the sabbath it self ; ( though it were better then to be forborn . ) for suppressing of traytors , thieves , and notorious offenders , which may otherwise trouble the peace of the commonwealth , and undoe the kingdom . for manumission of bondmen : a work of piety . for saving that which otherwise would perish : a work of necessity . for doing that , which , time overslipt , cannot be done : as for making appeals within the time limitted , &c. for taking the benefit of a witness that otherwise would be lost , as by death or departure . for making the son sui juris : as if , amongst us , a lord should discharge a ward of wardship . all which are expressed in these verses ; haec faciunt causas festis tractare diebus , pax , scelus admissum , manumissio , res peritura , terminus expirans , mora festi abesse volentis , cumque potestatis patriae jus filius exit . or thus according to panormitanus ; ratione appellationis , pacis , necessitatis , celeritatis , pietatis , matrimonii , latrocinii , & ubicunque in mor a promptum est periculum . so likewise by consent of parties upon dies feriati minùs solennes , viz. harvest , hayseed , &c. as we have said before . and divers others there are . see the a glosses . chap. iv. why the end of michaelmas-term is sometimes holden in advent ; and the octaves of hilary in septuagessima . but the terms sometimes extend themselves into the days of the church which we call vacation ; as when advent sunday falleth on the 27th of november , then michaelmas-term borroweth the day after out of advent ; and when septuagessima followeth suddenly upon the purification , hilary-term not onely usurpeth upon it and sexagessima ( which by the president of the church of rome here before mention'd it may do ) but also upon quinquagessima , shrove-tuesday , and quadragessima it self ; for all which there is matter enough in one place or a other already shewn . yet it is farther countenanced by the statute of 3 ed. 1. cap. 51. where it is thus provided ; forasmuch as it is great charity to doe right to all men at all times ( when need shall be ; ) by assent of all the prelates it was provided , that assizes of novel disseisin , mortdauncester , and darrain presentment , should be taken in advent , septuagessima and lent , even as well as inquests may be taken , and that at the special request of the king made unto the bishops . where it is to be noted , that inquisitions might be taken before this statute within the days prohibited , or church time , and that this licence extended but to particulars therein mentioned . chap. v. why assizes are holden in lent. it seemeth that by virtue of this statute , or some other dispensation from the bishops assizes began first to be holden in lent , contrary to the canons . i find in an ancient manuscript of the monastery of st. albans a dispensation of this kind thus entituled ; licentia concess . justic. reg. de assistenend . sacro tempore non obstante . pateat universis per praesentes nos richardum ( miseratione divinâ ) abbatem monasterii sancti albani , licentiam & potestatem authoritate praesentium dedisse dilecto nobis in christo domino johanni shardlow & sociis ejus justic. dom. regis assisas apud barnet ( nostrae jurisdictionis exemptae ) die lunae proximo ante festum s. ambrosii capiendas , juxta formam , vim & effectum brevis domini regis inde iis directi . in cujus , &c. anno domini , &c. sub magno sigillo . whether this was before or after the statute it appeareth not ; it may seem before , or that otherwise it had been needless . but i find a shardlow to be a justice of oier in pickering forest , 17 aug. an. 8. ed. 1. if it were after , it seemeth the writ to the justices extended to somewhat out of the statute , and that this licence was obtained in majorem cautelam . but to conclude , although we find not the reason of things done in ancient ages , yet we may be sure nothing was done against the rule of the church without special licence and dispensation . the feast of st. ambrose mention'd in the licence was on the fourth of april , which commonly is about a week or two before easter . and the abbat of st. alban , having exempt jurisdiction within the province of canterbury , granteth the dispensation to hold assizes in tempore sacro , as the rubrick explaineth it , lest the words [ nostrae jurisdictionis exemptae ] might be applied to some layick franchise : i assure my self there are many of this kind , if they might come to light . chap. vi. of the returns . of the returns i will not venture to speak much , but nothing at all of essoins and exception-days , for that draweth nearer to the faculty of lawyers , wherein i mean not to be too busie . the returns are set days in every term appointed to the sheriffs , for certifying the courts what they have done , in execution of the writs they received from them . and i take it , that in old time they were the ordinary days set to the defendants for appearance , every one of them being a se'night after another , to the end that the defendant according to his distance from the place where he was to appear , might have one , two , three or more of these returns , that is , so many weeks for his appearance , as he was counties in distance from the court where he was to appear . this is verified by the law of * ethelred the saxon king in case of vouching upon trover . gif he cenne ofer an scira . haebbe ân ƿucena fyrst ; gif he cenne ofer tra scira habbe tra ƿucena fyrst ; gif he cenne ofer iii. scira . haebbe iii. ƿucena fyrst ; ofer eall sƿa fela scira . sƿa he cenne . haebbe sƿa feala ƿucena fyrst ; if the vouchee dwell one shire off , let him at first have one week ; if he dwell two shires off , let him have two weeks ; if he dwell three shires off , let him have three weeks ; and for so many shires as he dwelleth off , let him have so many weeks . the law of a henry the first is somewhat more particular ; qui residens est ad domum suam summoniri debet de placito quolibet cum testibus . et si domi non est idem dicatur vel dapifero , vel denique familiae suae liberè denuncietur ; si in eodem comitatu sit , inde ad septem dies terminum habeat ; si in alia sit 15. dierum terminum habeat ; & si in tertio comitatu sit , 3. hebdomadae ; si in quarto , quartae hebdomadae , & ultrà non procedit ubicunque fuerit in anglia , nisi competens eum detineat * soinius ; si ultra mare est 6. hebdomadas habeat & unum diem ad accessum & recessum maris , nisi vel occupatio servitii regis , vel ipsius aegritudo , vel b tempestas , vel competens aliquod amplius respectet . the † statute of a marlebridge cap. 12. soundeth to this purpose ; in b assisis autem ultimae praesentationis & in placito quare impedit de ecclesiis vacantibus dentur dies de quindena in quindenam , vel de tribus septimanis in tres septimanas , prout locus fuerit propinquus vel remotus . and again , cap. 27. sed si vocatus , &c. ( ad warrantum coram justiciar . itinerantibus ) fuerit infra comitatum , tunc injungatur vicecomiti , quòd ipsum infra tertium diem vel quartum ( secundùm locorum distantiam ) faciat venire sicut in itinere justiciar , fieri consuevit . et si extra comitatum maneat , tunc rationabilem habeat summonitionem 15. dierum ad minùs secundùm discretionem justiciar . & legem communem . there was also another use of returns , as appeareth by the reformed customary of normandy , artic. 10th . some of them belonged to pleas of goods and chattels , which we call personal actions , as those of octab. some to pleas of land , and real actions , as those of quindena to quindena . nul n'est tenu de respondere de son heretage en mavidre tems que de quinizanie in quinizanie . the more solemn actions had the more solemn returns , as we see by the * stat. dies communes in banco , which i leave to my masters of the law. i will not speak of the returns particularly , more than that octab ▪ is sometimes reckon'd by 7. days , sometimes by 8 ; by 7. excluding the feast from which it is counted ; by 8. including it . and the word is borrowed from the constitutions of the church , where the seven days following easter were appointed to be ferial-days ( as we have shewed before ) in imitation of the seven days azymorum , following the passover in the levitical law. but in this ●●nner octab. trinitatis always includeth nine days , reckoning trinity-sunday for one , by reason the just octabis falleth on the sunday following , which being no day in court , putteth off the return till the next day after , making munday always taken for the true octab. unless you will count these two days for no more than one , as the * stat. de anno bissextili in the like case hath ordained . chap. vii . of the quarta dies post . touching the quartam diem post allowed to the defendant for his appearance after the day of return , it is derived from the ancient saxon , salique , french and german laws , where it was ordained , that the plaintiff should per triduum seu amplius adversarium expectare , usque ad occasum solis ( which they called sol satire , ) as appeareth abundantly in their laws , and in the formular of marcellus , as bignonius notes upon the same . to which also may be added that which occurreth in gratian cap. biduum vel triduum . but the original proceedeth from the ancient custome of the germans mentioned by tacitus ; † illud ex libertate vitium quòd non simul nec jussi conveniunt , sed & alter & tertius dies cunctatione coeuntium absumitur . he saith , ex libertate , because that to come at a peremptory time was a note of servitude , which the germans despised . chap. viii . why i have used so much canon and foreign law in the discourse , with an incursion into the original of our laws . i have used much canon and some other foreign laws in this discourse , yet , i take it , not impertinently , for as the western nations are , for the most part , deduced from the germans , so in ancient times there was a great agreement and affinity in their laws . — facies non omnibus una , nec diversa tamen , qualem decet esse sororum . they that look into the laws of our english saxons , of the saliques , french , almayns , ripurians , bavarians , longobards , and other german nations , about 800. years since , shall easily find , that out of them , and many other manners , rites and customs of the saxons and germans is the first part and foundation of our laws , commonly called the laws of edward the confessour , and common law. two other parts principally ( as from two pole stars ) take their direction from the canon-law and the laws of our brethren the longobards ( descending from saxon linage as well as we ) called otherwise the feodal-law , received generally through all europe . for in matters concerning the church and churchmen , legitimation , matrimony , wills , testaments , adultery , diffamation , oaths , perjury , days of law , days of vacation , wager of laws , and many other things , it proceeded , sometimes wholly , sometimes for the greater part , by the rules and precepts of the canon-law . and in matters touching inheritance , fees , tenures by knights service , rents , escheats , dower of the third part , fines , felony , forfeiture , trial by battail , &c. from the feodal-law chiefly ; as those that reade the books of those laws collected by obertus and gerardus may see apparently . though we and divers other nations ( according as befitteth every one in their particular ) do in many things vary from them ; which obertus confesseth to be requisite , and to happen often among the longobards themselves . i wish some worthy lawyer would reade them diligently , and shew the several heads from whence these of ours were taken . they beyond the seas are diligent in this kind , but we are all for profit and lucrando pane. another great portion of our common law is derived from the civil ( unless we will say that the civil-law is dervived from ours ; ) for dr. cowell , who hath learnedly travelled in comparing and parallelling of them , affirmeth , that no law of any christian nation whatsoever , approacheth nearer to the civil-law than this of ours . yet he saith that all of them generali hujus disciplinae aequitate temperantur , & quasi condiuntur . had he not said it , his book it self , intituled , institutiones juris anglicani ad methodum & seriem institutionum imperialium compositae & digestae , would demonstrate it : which bracton also above 300. years before right well understanding , not onely citeth the digests and books of the civil-law in many places for want of our common-law , but in handling our law persueth the method , phrase and matter of justinian's institutes of the civil-law . when and how these several parts were brought into our common-law is neither easily nor definitively to be expressed . those no-doubt of the canon-law by the prevalency of the clergy in their several ages , those of the feodal by military princes , at , and shortly after the conquest . and those of civil-law by such of our reverend judges and sages of ancient time , as for justice and knowledge sake sought instruction thence , when they found no rule at home to guide their judgments by . for i suppose they in those days judged many things , ex aequo & bono , and that their judgments after as responsa prudentium among the romans , and the codex theodosianus became presidents of law unto posterity . as for the parts given unto common-law out of the constitutions of our kings since the conquest , and before magna charta ; i refer them ( as they properly belong ) to our statute law , though our lawyers do reckon them ordinarily for common-law . but among these various heads of our law , i deduce none from the scots , yet i confess that if those laws of theirs , which they ascribe to malcolm , the second , who lived about 60 years before the conquest , be of that antiquity , ( which i cannot but question ) and that our book called glanvill be wholly in effect taken out of the book of their law verbatim , for the greatest part , called regiam majestatem , ( for they pretend that to be elder than our glanvill ; i must ( i say ) ingenuously confess , that the greatest part or portion of our law is come from scotland , which none i think versed either in story or antiquities will or can admit . to come therefore to the point ; if my opinion be any thing , i think the foundation of our laws to be laid by our german anestours , but built upon and polished by materials taken from the canon law and civil law. and under the capacious name of germans , i not onely intend our saxons , but the ancient french and saliques ; not excluding from that fraternity the norwegians , danes and normans . and let it not more mislike us to take our laws from the noble germans , a principal people of europe , than it did the conquering romans to take theirs from greece , or the learned grecians theirs from the hebrews . it is not credible that the britains should be the authours of them ; or that their laws after so many transmutations of people and government , but especially after the expulsion ( in a manner ) of their nation , or at least of their nobility , gentry and freemen , the abolishing of their language , and the cessation of all commerce with them , should remain or be taken up by the conquering enemy , who scarcely suffered one town in a county to be called as they named it , or one english word almost , ( that i yet have learned ) to creep into their language . admit that much of their servile and base people remained pleased perhaps as well with their new lords as with their old ; can we think that the saxons should take either laws or manners , or form of government from them ? but more expresly seneca speaking of claudius the emperour 's having made an absolute conquest of this island . * jussit & ipsum nova romanae jura securis tremere oceanum . in th' ocean isle new laws he set , which from the roman axe were fet . and more plainly herodian , speaking of severus the emperour's going on t of this island , * he left ( saith he ) behind him in that part of the island subject to the romans his youngest son geta , to administer law and the civil affairs thereof , and some of his ancient friends to be his councellours , taking his eldest son antonius for his wars against the barbarians . when the romans conquer'd this land , they neither removed the inhabitants nor brought any foreigners upon them , other than ( to govern and keep them in obedience ) some legions of souldiers , and small colonies . yet that they made an alteration of their laws , we may see in the scripture by the example of judaea . for though pompey obtained the kingdom there , rather by the confederacy with hyrcanus , than by right of conquest , ( and therefore suffer'd them to enjoy their rites of religion , with the liberties of most of their cities ; ) yet it being reduced into a province ( as this of ours was ) their laws were so changed , as that , by their own confession , john 18. 31. it was not lawfull for them to put any man to death . therefore our saviour and the two thieves were judged , and suffer'd upon the cross after the roman manner , not according to the laws of the jews , ( for their law never inflicted the cross upon any offender ) and the punishment of blasphemy wherewith they charged christ was stoning ; and the punishment of theft a quadruple restitution , or bondage in default thereof . as for the stoning of stephen , it was not judicial but tumultuous , an act of fury , and against law : in which course also they thought to have murthered st. paul , had not lysias prevented them , by sending him to his legal trial before caesar's judgment seat. by this we may conceive how the romans dealt with the britains touching their laws ; and the story of saint alban and amphybalus somewhat sheweth it : but what laws soever the romans made in britain , the saxons doubtless swept them all away , with the britains . there is certain proof of it ; for antonius made a constitution , that all nations under the roman empire should be called romans , and this was done when the northern people brake into the lower parts of europe , and made their habitation there . but more plainly seneca speaking of claudius the emperour 's having conquer'd this island , as above ; jussit & ipsum nova romanae jura securis tremere oceanum . in th' ocean isle new laws he set , which from the roman axe were fet . the old inhabitants , whom they expelled not but lived mingled with , were still called romans ; as we see in the ancient laws of the saliques , and burgundians , in cassiodorus and others , and their laws distinguished by the titles of lex barbara , and lex romana . but here in britain after the saxons had conquer'd , we never hear nor find any mention of lex romana , or of any roman : which sheweth , that both that , and the laws of the britains were expelled and driven away together , or that of the romans with the romans , and that of the britains with the britains . what the laws of the britains were , it remains at this day to be seen by a model of them in an ancient manuscript under the title of * the laws of hoel dha , ( that is hoel the good ; ) nothing consonant to these of ours at this day , or those of the saxons in time past . but we find by the red book in the exchequer , that the laws of hen. 1. do so concur in many things with them of the other nations we speak of , that sometimes he not onely citeth the salique law , and the rubuarian or belgique by name , but deduceth much of the text verbatim from them . and we find also a great multitude of words of art , names of offices , officers and ministers in our law , common in old time to the germans , french , saliques , longobards , and other nations , as well as to our saxons , danes and normans ; but not one to my knowledge that riseth from the british tongue , nor do we , to my knowledge , retain any law , rite or custome of the ancient britains , which we received not from the saxons or germans , as used also by them of old , before they came into britain . for these few words that are found in our law chirographer , protonotary , &c. whereby some argue the antiquity of our law to be from the druides , whom caesar and pliny report to have used the greek tongue , it is doubtless , that they come to us from the civil lawyers , and the one of them being a mongrel , half greek and half latine , could not descend from the druides , who had neither knowledge nor use of the latine tongue . they therefore that fetch our laws from brutus , multnutius , the druides , or any other brutish or british inhabitants here of old , affirming that in all the times of these several nations , ( viz. britains , romans , saxons , danes and normans ) and of their kings , this realm was still ruled with the self same customes that it is now govern'd withall ; doe like them that make the arcadians to be elder than the moon , and the god terminus to be so fixed on the capitoline-hill , as neither mattocks nor spades , nor all the power of men or of other gods , could remove him from the place he stood in . and thus i end . finis . notes, typically marginal, from the original text notes for div a61093-e120 a deinde constituit [ guilielmus conquaestor ] ut quater quotannis , &c. lib. 9. p. 154. l. 16. &c. definition . notes for div a61093-e500 a see sect. 5. cap. 6. notes for div a61093-e1580 greeks . † every month had about 6. more or less of them , so called because on them the prytanaean magistrates might hold court. * so called from the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , where their business was to sit onely on things inanimate , as when a peice of stone , timber or iron , &c. fell on a man , if the party that flung it were not known , sentence was past on that thing which slew him ; and the masters of this court were to see that thing cast out of the territories of athens . see the attick antiq. l. 3. chap. 3. sect. 4. † the month february , or , as others would have it march , when sacrifices were most usually offer'd to the goddess diana , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , cognomen dianae , quod est , jaculis cervos figens . romans . * lib. de moribus germ. cap. 40. † de bello gallico lib. ● . † de rep. angl. lib. 3. * lib. 3. a caus. 15. quaest . 4. c. 1. * lib. 6. cap. 245. à benedict . levit● , † bin. tom. 3. part. 1. sect. 2. circa annum christi 845. * concil . tom. 3. part . 2. pag. 142. in istius concil . cap. 2. † decret . cau. 15. quaest 4. c 1. * al. septuagessimâ . † cau. 22. ● 5. ca , 17. † cau. 15. q. 4. c. 1. legum cap. 3. * legum alured cap. 39. vide foedus eavardi & gu●●urni regum cap. 9. † see the aforesaid 39. chapter of the laws of k. alured . the synod of eanham . a 't was held between the years 1006. and 1013. see the authour's conc. britan. tom. ● . pag. 510. b the word synod here signifies more than council , not as 't is usually restrained to that of the clergy onely . c concil . eanham . can. 15. c concil . eanham . can. 15. c concil . eanham . can. 15. d can 16. e can. 17. f can. 18. canuti leg's cap. 17. a mat. 9. 15. mark. 2. 19. b leges ed. conf. c. 9. * sect. 2. a in hen. ● . pag. 600. b legum anglo — saxon. pag. 137. c custom : cap. 80. d lib. 4. c. 1. lib. 14. c. 1. 2. e lib. 2. 〈◊〉 . 31. a alii legunt . singulo . rum . b misi primo ] al. pro. c al. examinationis . * anno dom. 1142. † hist. nov. lib. 1. pag. 179. c in hen. 2. pag. 600. * lib. 2. cap. 11. e dial. de scacc. hilary-term . a pag. 441. lin. 18. a cod. lib. 3. tit. 12 de feriis . cap. 7. b tit. de feriis . ca. 5. c cau. 15. quaest . 4. d silvarum lib. 4. carm. 4. quod inscribitur . ad victorium marcellum . 1 sam. 25. 4. 2 sam. 13. 23. * swaiumote or swanimote , ( from the saxon sƿang i. e. a country clown or free holder , and mot or gemot conventus ) is a court of free holders within the forest. see 3 hen. 8. c. 18. b lib. 2. cap. 21. * before the abbreviation by 16. cat. 1. cap. 6. a dial. lib. 2. cap. 3. * utas ] i. e. octava , the eighth day after any term or feast . * anno 1614. in which year this tract was written . notes for div a61093-e11370 * exod. 18. 14. a hist. lib. 6. 1. b cap. 10. 13. a tit. b lib. cau. c archaed . verb. comes cap. 1. 15. d et alia cap. car. 6. 4. * 13 ed. 1. cap. 30. a an. 5. & 6. edv. 6. cap. 3. a lev. 23. 21 , 25. b ex. 20. 10 , 11. lev. 23. 3. * tabien . feriae sect. 10. why on some festivals , and not on others . the differences of ●●stivals . a vide duraudi lib. 7. c. 1. n 31. b durand . lib 7. ca. 1. b rast excom . 5. c belethus explicat . cap. 158. grand days in france . grand days in england . a tho. walsingham , hist. angl. pag. 129 the feast of st. peter and st. paul. st. george ' s day . * parag . 7. st. winifred . the 5th . of november . a virgil. georg. lib. 1. v. 268 , &c. b lib. ep. a cau. 15. q. 4. tit. de feriis c. 5. a as an. 1. 27. & 1. 26. hoveden p. 663. a in com . ejus . * leges ethelredi cap. 93. a legum hen. 1. cap. 41. * sonius m : ss . seld. b m : ss . cod. l. intempestas . † this statute was published anno. 52. hen. 3. anno. salut . 1267. a the same with marleborough in wilts , famous for nothing more than that this parliament was holden there . so coke institut . part 2. fol. 123. b coke ut suprà fol. 149. hath it thus , sed si warrantus ille fuerit infra comitatum , tunc , &c. * anno. 51. hen. 3. al●ered by the statute of 32. hen. 8. cap. 21. * anno 21. hen. 3. † lib. de morib . ger. manorum cap. 11. * senecs philosoph . de morte cl. caesaris . * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. herodiani hist. lib. 3. cap. 48. * these laws were made by hoel dha king of wales , about the year 940. and since the writing of this tract have been published to the world by our authour himself , in the first tome of his concilia britannica , pag. 408. statuta vetera & recentiora a methodical collection & abridgement of the statutes that relate to the knowledge and practice of the common-law / by d.f. laws, etc. england and wales. 1672 approx. 179 kb of xml-encoded text transcribed from 72 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2007-10 (eebo-tcp phase 1). a39612 wing f11 estc r32949 12797966 ocm 12797966 93994 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a39612) transcribed from: (early english books online ; image set 93994) images scanned from microfilm: (early english books, 1641-1700 ; 1034:14) statuta vetera & recentiora a methodical collection & abridgement of the statutes that relate to the knowledge and practice of the common-law / by d.f. laws, etc. england and wales. d. f. [16], 125 p. printed by john streator, eliz. flesher, and h. twyford, assignes of rich. atkyns ad ed. atkyns ...to be sold by g. sawbridge [and 12 others] london : 1672. reproduction of original in the british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 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that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -england -digests. common law -england. statutes -england. 2006-09 tcp assigned for keying and markup 2006-09 apex covantage keyed and coded from proquest page images 2006-11 john latta sampled and proofread 2006-11 john latta text and markup reviewed and edited 2007-02 pfs batch review (qc) and xml conversion statuta vetera & recentiora . a methodical collection & abridgement of the statutes that relate to the knowledge and practice of the common-law . by d. f. london , printed by iohn streater , eliz. flesher , and h. twyford , assignes of rich. atkyns and ed. atkyns , esquires . and are to be sold by g. sawbridge , j. place , j. belliager , w. place , t. basset , r. pawlet , c. wilkinson , t. dring , w. jacob , c. harper , j. leigh , j. amery , j. poole , booksellers in fleetstreet and holborne , a. d. 1672. cum gratia & privilegio regiae majestatis . preface . as general abridgements of the statutes of this realm have hitherto been and will alwayes continue to be of great use ; so now since they are become so voluminous , there seems to be a like usefulness , if not a necessity , of particular abridgements to direct those whose study and employment is more especially conversant in some peculiar practice of the law. some collections of this nature are already published : one concerning the office of a iustice of peace , under the title of statuta pacis , which comprehends a great part of the crown law. others relating to the kings revenue , as that of the customes , of the excise , another of the hearth money , all of great benefit in their several kinds . but those statutes that immediately relate to the general practice of the common law and the courts wherein the same is used , have not hitherto been collected apart , and are in a manner left , as the choice fruit upon the upper branches not to be seen for the clusters that hang below . this book therefore is designed for those statutes , wherein as there is no repetition of what hath been in any former particular abridgements : so neither is there any notice taken of the multitude of those other statutes , some whereof refer to a part of the realm only , as those of older time w ch concern the uniting of wales , and fixing jurisdictions there , and the like ; in counties palatine , and of later , for the drayning of the fenns which extend but to some countryes ; others are restrayned to peculiar jurisdictions as those of the sewers , of charitable uses , regulation of corporations , &c. others which ( though more general ) respect only the policy of the realm in preserving its religion , strength , trade , riches , and beauty , such are the statutes that concern the divine service and sacraments anniversary feasts and fasts upon special occasions , the militia revenue , navigation , fishing tymber , drapery , and several other manufactures , rebuilding of london , and many more of that kind . all which though of publique advantage , yet not having a direct aspect upon private rights and possessions , are forreign to the present design , and most proper for general abridgments , in which they are to be had : this being intended chiefly for the benefit of practisers and students of the common law , that in their practice and reading they might have a ready recourse to those statutes which particularly relate thereunto . it was not thought convenient to go beyond the time of edward the 3. since when the practice of the law has been most uniforme ; because most of the old statutes , as magna charta , merton , marlebridge , west . 1. 2. 3. and the rest till this time are generally but declaratory and affirmative of the common law ( as my lord cook has observed ) and may now by their antiquity and uninterrupted usage be said to be incorporated into the body of the common law , with which this treatise medleth not : the other parts of those antient statutes referring generally to such proceedings as now are wholly out of use , and therefore not proper to be inserted : such are those many chapters that concern pleadings and other proceedings in real actions now out of use , and are already in print by the name of magna charta , and other antient statutes in a little volume by themselves . here therefore such only are culled out as referr to the law as 't is now used and practised , wherein such care has been taken that nothing material is omitted : so that though it le not directly but collaterally within the design of this treatise , they are here mentioned , as the statute of hue and crye , because many actions are brought thereupon , and those of bankrupts being of general and dayly use &c. but such statutes as have abrogated or rescinded what formerly hath been in use by the dissolution of courts , alteration of tenures , abridgment of michaelmas term , and the like , are here omitted . it were to be wished that the statutes as they are here set down in order of time in the first table , were printed at large in a volume together by themselves , because of that general objection to abridgments , that they are not of unquestionable authority ; and it would be of further benefit to students if enterleaved , because many of the cases and reports that are extant are aptly referrable thereunto , which if collected with diligence and iudgment would be an excellent comment on the same . however these tables and abridgment are of extraordinary use : for as the first table shews what statutes were made in every particular kings raign , so the other furnisheth you with the common and known heads and titles of the com̄on law whereto every statute referreth : where at one view you may see what several statutes in several kings reigns have been made concerning such a branch , head or title of the common law , such as is used by practisers and students in their common place books . and since there is a great diversity in the methodising of those heads , as that of fitzherbert , brook , rastal , ash , and of late one more accurate by serjeant roles ; the reader may be pleased to take notice , that what he finds here , is digested ( as nearly as could be ) according to the last . first table . edward . 3. an̄o reg. cap.   4. 7. executors . 25. 5. executors . 31. 11. administrators . executors . 36. 15. pleading . ric. 2. 9. 3. attaint . error . 13. 17. resceipt . 15. 3. admiraltie . vide court. henr. 4. 2. 7. nonsuit . 2. 11. admiraltie . vide court. 4. 8. atturney .   13. judgment . 5. 8. ley gager . henr. 5. 1. 5. additions . vide briefe . 2. 2. corpus cum causa . vide habeas corpus .   3. libell . 9. 4. amendment . henr. 6. 4. 3. amendment . 8. 12. amendment .   15. amendment . 10. 4. apparance . vide default . 23. 10. sheriff . vide obligation . ric. 3. 1. 7. fines . henr. 7. 3. 7. damages and costs . 4. 20. actions popular .   24. fines . 11. 20. discontinuance . vide continuance . 19. 9. error .   20. damages and costs . henr. 8. 7. 3. avowrie . 21. 4. executor .   5. probate of wills. vide executors .   13. residence .   15. recoveries .   19. avowries . 23. 3. attai●   6. recognisance .   9. citation .   15. damages and costs . 24. 8. costs . 27. 10. uses and wills.   16. inrolment . 28. 13. residence . 31. 1. partition . 32. 1. wills. vide executors .   2. limitations .   5. execution .   9. maintenance .   28. leases . vide powers .   30. repleader .   32. partition .   33. entre congeable .   34. conditions .   36. fines .   37. rents .   38. mariages . vide baron & feme . 34 , 35. 5. wills. vide devise .   20. recoveries . edwar. 6. 1. 7. discontinuance . vide continuance . 2 , 3. 13. tithe . vide dismes . 5 , 6. 16. offices . phil. & mar. 1. sess . 2. 5. limitation . 4 , 5. 7. tales . vide tryal .   8. maidens . eliz. 1. 19. bishops leases . vide powers . 5. 23. excomunicato capiendo . v. excomengement 8. 2. damages and costs . 13. 5. fraudulent conveyances . vide fraud .   6. letters patents . vide pleading .   7. bankrupts .   10. leases and dilapidations . vide powers .   20. leases of parsonages . vide powers . 14. 8. recoveries .   9. tales . vide tryal . 18. 5. informers . vide action popular .   11. leases of spiritual livings . vide powers .   14. jeofailes . 27. 8. fraudulent conveyances .   5. demurrers .   13. hue and cry . 29. 5. informers . vide atturney . 31. 3. exigent and outlawry . vide utlagary .   5. actions popular .   6. simonie .   10. informers . vide atturney .   12. faires and markets . vide market . 43. 5. corpus cum causa . vide habeas corpus .   6. damages and costs .   8. executors .   12. policies of assurance . vide merchants . jac. 1. 3. bishops leases . vide powers .   15. bankrupts . 3. 8. delays of execution . vide execution . 4. 3. costs for the defendant . vide costs . 7. 5. officer impleaded . vide office. 21. 4. action popular .   8. certiorari .   12. officer impleaded . vide office.   13. jeofailes .   16. limitation .   19. bankrupt .   23. corpus cum causa . vide habeas corpus .   24. execution . car. 2. 13 sess . 2. 2. delays in execution . vide briefe and costs . 14. 21. sheriff . vide office.   23. atturnment . merchants .   24. bankrupts . 16. 2. abatement of writs of error . vide briefe .   5. delayes in extending statutes v. execution . 16 , 17. 8. arrest of judgment . vide execution . 17. 7. distress and avowry . vide replevin .   8. delays . vide execution . 19. 11. decease of person beyond seas . v. entry cong . 20. 4. error . 23. 9. costs and damages .   10. administrator . vide executors second table . actions popular . 4 h. 7. c. 20. 31 el c. 5. 21 jac. c. 4. 18 el c. 5. amendment . 9 h. 5. c. 4. 4 h. 6. c. 3. 8 h. 6. c. 12. c. 15. 27 el. c. 5. attaint . 9 r. 2. c. 3. 23 h. 8. c. 3. atturney . 4 h. 4. c. 18. 29 el. c. 5. 31 el. c. 10. avowrie . 7 h. 8. c. 4. 21 h. 8. c. baile . 13 car. 2. sess . 2. c. 2. bankrupts . 13 el. c. 7. 1 jac. c. 15. 21 jac. c. 19. 14 car. 2. c. 24. baron & feme . 32 h. 8. c. 38. briefe . 1 h. 5. c. 5. 16 car. 2. c. 2. certiorari . 21 jac. c. 8. conditions . 32 h. 8. c. 34. continuance . 1 edw. 6. c. 7. costs . 24 h. 8. c. 8. 43 el. c. 6. 4 jac. c. 3. 13 car. 2. sess . 2. c. 2. 22 , 23 car. 2. c. 9. court. admiraltie . 2 h. 4. c. 11. damages . 3 h. 7. c. 10. 19 h. 7. c. 20. 23 h. 8. c. 15. 8 el. c. 2. 43 el. c. 6. defalt . apparance . 10 h. 6. c. 4. devise . 27 h 8. c. 10. 32 h. 8. c. 1. 34 , 35 h. 8. c. 5. discontinuance . 11 h. 7. c. 20. dismes . 2 , 3 edw. 6. c. 13. dower . iointure . 27 h. 8. c. 10. entrie cong . 32 h. 8. c. 33. 19 car. 2. c. 11. error . 9 r. 2. c. 3. 6 car. 2. c. 2. 16 , 17 car. 2. c. 8. 17 car. 2. c. 8. 20 car. 2. c. 4. excommengement . 5 el. c. 23. execution . 32 h. 8. c. 5. 3 jac. c. 8. 21 jac. c. 24. 16 , 17 car. 2. c. 5. 71 c. 2. c. 8. executors . administrators . 31 edw. 3. c. 11. 21 h. 8. c. 15. 23 car. 2. c. 10. 4 edw. 3. c. 7. 25 edw. 3. c. 5. 21 h. 8. c. 4. 43 el. c. 8. fine . 1 r. 3. c. 7. 4 h. 7. c. 24. 32 h. 8. c. 35. fraud . 13 el. c. 5. 27. el. c. 4. habeas corpus . 2 h. 5. c. 2. 43 el. c. 5. 21 jac. c. 23. hue and cry. 27 el. c. 13. inrollment . 27 h. 8. c. 16. iudge . 20 r. 2. c. 3. ley gager . 5 h. 4. c. 8. libell . 2 h. 5. c. 3. limitation . 32 h. 8. c. 2. 1 sess . 2 p. m. c. 5. 21 jac. c. 16. maintenance . 32 h. 8. c. 9. market . 31 el. c. 12. nonsuit . 2 h. 4. c. 7. 13 car. 2. sess . 2. c. 2. obligation . 32 h. 6. c. 10. office. 5 , 6 edw. 6. c. 16. 7 jac. c. 5. 21 jac. c. 12. 14 car. 2. c. 21. partition . 31 h. 8. c. 1. 32 h. 8. c. 32. pleading . 36 edw. 3. c. 15. 13 el. c. 6. 43 el. c. 12. 14 car. 2. c. 23. powers . 32 h. 8. c. 28. 1 el. c. 19. 13 el. c. 10. 13 el. c. 20. 18 el. c. 11. 1 jac. c. 3. proces . 19 h. 7. c. 9. 13 car. 2. sess . 2. c. 2. prohibition . 23 h. 8. c. 9. recognisancc . 23 h. 8. c. 6. recoverie . 21 h. 8. c. 15. 34 , 35 h. 8. c. 20. 14 el. c. 8. rents . 32 h. 8. c. 37. repleader . 32 h. 8. c. 30. replevin . 17 car. 2. c. 7. resceipt . 13 r. 2. c. 17. simonie . 31 el. c. 6. spiritual persons . 21 h. 8. c. 13. 28 h. 8. c. 13. trial. 19 car. 2. c. 11. 4 , 5 p. m. c. 7. 14 el. c. 9. uses . 27 h. 8. c. 10. utlagary . 21 el. c. 3. action popular . 1. recovery in an action popular by covin shall be no bane in an action sued for the same thing bonâ side . 2. here the defend ’ attainted of collusion shall suffer 2 years imprisonment to be prosecuted within one year . 3. no release of a common person shall in this case discharge an action popular . 4. yet no collusion is in this case averrable , where the point of the same action , or the collusion it self hath been tryed by verdict . 5. informers heretofore resirained by order of any court , shall not pursue actions popular . 6. in popular actions the offence shall be laid to be done in the county where indeed it was done : otherwise if the defend ’ traverse and disprove that point , the plaint ’ shall be barr'd . 7. this act doth not restrain officers , which have lawfully used to exhibite informations , nor actions brought for champerty , buying of titles , extortion , offences against the statute of 1 el , 11. ( concerning the right landing of merchandises , and custome of sweet wines ) concealing of customs , &c. corrupt usury , forestalling , regrating or ingrossing , when the penalty shall amount to 20l. or above : for in all these cases the offence may be laid in any county . 8. popular actions , where the king onely hath the forfeiture , shall be commenced within 2 years ; where he hath onely a part , and the informer the rest , within one year . but this is to be understood , where a shorter time is not limited by any statute . 9. all suits for using unlawful games , or any art or mysterie without being brought up in it , and for not having bowes and arrowes according to the statute , shall be prosecuted at the assizes or sessions of the county , or at the leet within which the offence was committed , and not elsewhere . 10. actions popular which may be presented before iustices of assise , nisi prius , g. d. oyer and terminer , or of p. shall be prosecuted onely in the counties where the offences were committed , except for recusancy , maintenance , champerty , buying of titles , concealing of customes &c. or transporting of gold , silver , munition , wool , woolfells , or leather . 11. upon default of proving that the offence was committed in the same county , the defendant shall be found not guilty . 12. the informer shall make oath that the osfence was committed in the same county where the action is laid , and within one year before the suit commenced . 13. the defend ’ in a popular action , may plead the general issue , and yet give special matter in evidence . 14. an informer shall exhibit his suit in proper person , and pursue it by himself or by his attorney in court , and that by way of information or original action , and shall have no deputy ; and all this in pain of 10. pound and the pillory . 15. a note of the time of exhibiting the information shall be truly taken , and from thenceforth it shall be accounted to be of record , before which time no processe shall issue out upon it . 16. the clark that makes out the processe , shall indorse the informers name , and also the statute upon which the information is grounded in pain of 40 s. 17. no jury shall appear at westminster for a tryal upon any penal law , when the offence was committed above 30 miles from westminster , except the attorney general for some reasonable cause require the same . 18. no informer shall compound with any defend ’ before answer , nor then , but by consent of court , in pain of 10 l. and the pillory . 19. where the informer delayes or discontinues his suit , or otherwise is nonsuit or overthrown , the court shall assigne costs to the defend ’ to be immediatly levied by execution issuing out of the same court. 20. iustices of oyer and terminer , assize and peace , in their sessions have power to hear and determine these offences . 21. this act shall not restrain actions brought for maintenance , champerty , buying of titles , or imbruary , nor any certain person , or body politique , to whom any forfeiture or penalty is specially limited , nor certain officers , who have lawfully used to exhibite informations . amendment . 1. the justices before whom any default shall be found by misprision of a clerk , in one syllable or letter too much or too little , in any record or process , may amend the same as well aster judgment as before , so long as such record or process shall continue before them . 2. this shall not extend to any record or process whereby any person is out-lawed : nor to wales . 3. no judgment or record shall be reversed or annulled for error assigned by reason of the razing or interlining of any record , process , warrant , writ , pannel , or return : or of any addition , substracton or diminution of words , letters , titles , or parcel of letters found in the same . 4. the judges may reform all desects in any record , process , wards , plea , warr ’ , writ , pannel , or return , ( except appeals , indictments , of treason , or felony , and outlawries of the same , and the substance of the proper names , sur-names , and additions left out in original writs , exigents , and in other writs of proclamation contrary to he statute of 1 h 5 5. concerning additions ) so that by such misprision of the clerk no judgment shall be reversed or annulled . 5. variance alledged between a record and the certificate thereof , shall be amended by the judges . 6. if a record , process , writ , warrant , pannel , return ; or any parcel thereof be exemplified under the great seal , and inrolled , for any error assigned in the said record , &c. in any letter , word , clause , or matter varying , or contrary to the exemplification or enrollment , there shall be no judgment reversed or annulled . 7. the justices may amend the misprision and defaults of clerks of the court , or of sheriffs their clerks , and of all other officers whatsoever , found before them in any record or process , or the return of the same , by reason of writing one letter , or one syllable too much or too little ; except in records and processes within wales , and of felonies and treasons , and the dependants of the same . 8. after demurrer joyned and entred , the judges shall proceed and give judgment according to the right of the cause and matter in law , without regard to any defect in the proceeding , except such only as the party shall express , together with his demurrer . after which time no judgment shall be reversed by writ of error , or for any other defect , then such as he shall there mention ; and if there happen to be any other , the judges may amend there . 9. this act shall not extend to the proceeding in an appeal of felony or murder upon an indictment , presentment , or penal statute . attaint . 1. he in the reversion shall have an attaint or writ of error upon a false verdict found , or an erroneous judgment given against the particular tenant . 2. if the oath be found false or the judgment erroneous , and the tenant still in life , he shall be restored to his possession and issues , and the reversioner to the arrerages : but if he be dead , or be found of covin with the demandant , the reversioner shall have all : yet the tenant may traverse the covin by scire facias out of the judgment or writ of attaint , if he please . 3. upon every untrue verdict before iudges of record , ( except where the thing in demand extendeth not to the value of 40. l. or concerneth life ) the party grieved shall have an attaint against the pettie jury , and also against the party that hath the judgement thereupon . 4. the process here shall be summons , resummons and distress infinite , as well against the petty jury and the party , as against the grand jury , who shall be of the accustomed number , and have lands to the yearly value of 20 markes out of auntient demesne . 5. the distresse shall be awarded 15 dayes before the return of it , and shall be made upon the land of every one of the grand jury , as is used in other distresses . 6. albeit the defend ’ or petty jury or some of them appear not , yet the grand jury shall proceed . 7. if any of the petty jury appear , the plaint ’ shall assigne the false serement whereunto the petty jury shall have no other answer ( if they be the same persons , and the writ , process and assignement be good ) but that they made true serement , which shall be tryed by 24 of the grand jury , unless the plaint ’ hath before been nonsuited , or discontinued his suit , or had judgement against the jury for the same verdict . 8. howbeit that the defend ’ may plead that they gave a true verdict , or any other matter which may barre the attaint ; but notwithstanding such plea the grand jury shall neverthelesse enquire whether the first jury gave a true verdict , or no. 9. if the petty jury be found to have given an untrue verdict , they shall each of them forfeit 20 l. to be divided between the king and the plaint ’ , and incurr several fines at the discretion of the justices , and be ever after disabled to give testimony in any court . 10. if the defendants plea in barr be found against him , the plaint ’ shall have judgment to be restored to what he lost , with his reasonable costs and damages . 11. outlawry or excommunication shall be no plea against the plaint ’ in attaint ; and in the aforesaid process such day shall be given as in dower , but no essine or protection allowed . 12. if the grand jury appear not , so that the petty juryes verdict remain untried , the defalters shall upon the first distress forfeit 20 s. upon the 2 d. 40 s. and upon every distress after 5 l. the like penalty is also to be inflicted upon the tales . 13. the attaint is maintainable as long as any two of the the petty jury are alive . 14. an attaint shall also lye for a personal thing under the value of 40 l. in manner aforesaid , save only in such case the grand juror is to have lands worth 5 markes per annum out of auntient demesne , or to be worth a hundred markes in goods , and the forefeiture of each juror shall be but 5 l. 15. for want of sufficient iurors in one county a tales shall be awarded into another county at the discretion of the iustices . 16. an attaint shall also lye for him in reversion or remainder ; and also if in attaint the plaint ’ be nonsuit or discontinue his suit , he shall be fined at the discretion of the iustices . 17. all attaints shall hereafter be taken at the kings bench or common pleas and not elsewhere , and nisi prius shall be granted upon the distress ; at the discretion of the iustices also any of the petty iury may appear and answer by atturney . 18. as concerning the forfeitures , the several moyties shall be recovered by the king and parties respectively by ca : sa : or si : fa : or elegit , or action of debt against each of the petty jury : their executors or administrators having sufficient goods of the testators not administred . 19. judgement and execution of restitution to the plaint ’ , and of discharge of restitution to the tenant or defend ’ shall be given and had as in case of a grand attaint hath been used . 20. the nonsuit or release shall not prejudice his companions . 21. in every writ of attaint after the test these words shall be inserted per statutum continuatum usque annum 23 h. 8. dei gratiâ &c. atturney . 1. all atturneys shall be examin'd by the iustices , and by their discretion put into the roll. 2. those that are by them approved , shall swear truly to serve in their offices , and to make no suit in a foreign county . an insufficient atturney shall be put out by the like discretion of the iustices ; and their masters or clients shall have notice thereof , lest they be prejudic'd thereby . 3. as any dye or cease , the iustices shall appoint others , being vertuous , learned , sworn as aforesaid . 4. if an atturney be found notoriously in fault , he shall forbear the court , and be never admitted into any other court. 5. the treasurer and barons of the exchequer shall pursue the like course there at their discretion . 6. if any shall be sued upon any penal law in the kings bench , common pleas , or exchequer , where such person is baylable by law , or may appear by atturney , the person so sued shall at the day contained in the first process appear by atturney to defend the same , and shall not be urged to personal appearance , or to put in bayle to answer the same . 7. the said clause of 29 el. shall onely extend to natural born subjects or free denizens . avowry . 1. recoverers of lands , tenements and advowsons , their heires and assignes may distrain for rents , services and customes due and unpayd , and make avowry and justifie the same , and have like remedy for recovering them , as the recoverers might have had or done , albeit the said recoverers were never seised thereof ; and shall also have a quare impedit for an advowson , if upon avoydance any disturbance be made by a stranger , as the recoverers might have had , albeit they were never seised thereof by presentation . 2. here every avowant in any replegiare or second deliverance , if their avowry , conusans or justification be found for them , or the plaint ’ be otherwise barred , shall recover his damages and costs . 3. termer for years may falsifie a faigned recovery had against him in the reversion , and shall retain and enjoy his terme against the recoverer , his heires and assignes , according to his lease . 4. also the recoverer shall have like remedy against the termer , his executors and assignes by avowry or action of debt for rents and services reserved upon such lease , and due after such recovery , and also like action for wast done after such recovery as the lessor might have had , if such recovery had never been . 5. no stat ’ of staple merchant or execution by elegit shall be avoyded by such feigned recoveries , but such ten’ts shall have like remedy to falsifie such recoveries as is here provided for the lessee for years . 6. upon a replevin , an avowry may be made by the lord or conusee , and iustification by his baylife or servant upon the land holden of the said lord , without naming any person certain to be tenant thereof : the like law is also upon every writ sued of second deliverance . 7. in any replegiare or second deliverance for rents , services , customs , or damage feasant , if the avowry , conusance or iustification be found for the defendant , or the plaint ’ be nonsuit or otherwise barred , the desend ’ shall recover such damages and costs as the plaint ’ should have had if he had recovered . 8. both parties shall in such writs have like pleas , aid , prayers , ioynders in aid , as at the common law , notwithstanding this act ; pleas of disclaimer onely excepted . baile . 1. no person arrested upon any writ out of the kings bench or common pleas , upon which he is lyable by the stat ’ 23 h. 6. c. 10. shall be forced to give security or enter into bond with sureties for his appearance at the day in such writ , bill or processe specified in any sum above 40l . unless the cause of action be expressed particularly : and where such cause of action is not expressed , all sheriffs and officers shall let to baile persons arrested upon 40l . security for their appearance , according to the stat ’ 23 h. 6. 2. upon appearance by atturney in terme entered in court , where the process is returnable , the baile bond shall be satisfied and discharged , and after such appearance no amerciaments shall be estreated against any sheriff or officer for want of appearance ; and if the plaint ’ in some personal action declare not before the end of the next terme after appearance , nonsuit shall be entered against him , and costs taxed and levied , as in the stat ’ 28 h. 8. c. 15. 3. proviso this act extend not to capias utlagatum , attachments upon rescous , attachments of priviledge , or any other attachment for contempt whatsoever , issuing out of any of the said courts . banckrupts . 1. if any person ( subject or denizen ) exercising trade doth depart the realm , conceal him or her self , take sanctuary , suffer him or her self to be arrested , outlawed or imprisoned without just cause , to the intent to defraud his or her creditors being subjects born , he shall be deemed bankrupt . 2. the lord keeper or chancellor upon complaint in writing against any such bankrupt , may appoint honest and discreet persons to take such order with the body of the bankrupt whereever found , and also with the lands ( as well coppy as free ) hereditaments , annuities , offices , writings , goods , chattels and debts wheresoever known , which the bankrupt hath in his own right , with his wife , child , or children , or by way of trust , or any secret use ; and to cause the said premisses to be searched , rented , appraised and sold for the payment of the creditors rateably according to their debts , as in the discretion of such commissioners or the most part of them shall be thought fit . 3. the vendees of coppy-hold land shall compound with the lord for their fines , and then shall be admitted and make fealtie according to the custome of the mannor . 4. such of the commissioners as execute the commission shall upon the bankrupts request render him the account and also the overplus ( if any be ) unto him , his executors , administrators and assignes . 5. the commissioners have power to convene before them any person accused or suspected to have any of the bankrupts goods , chattels or debts , or to be indebted unto him , and for discovery thereof to examine upon oath or otherwise , as they or the most of them think fit . 6. the person refusing in that behalf to disclose or swear shall forfeit the double value of the goods and chattels so concealed , to be ordered and imployed by the commissioners or the most part of them . 7. the person demanding or detaining any of the bankrupts goods , chattels , lands , or debts not justly due , shall forfeit the double value to be levied , recovered and imployed as aforesaid . 8. if after all the creditors are paid out of the bankrupts estate and the forfeitures , any surplusage be , it shall be by the commissioners divided between the queen , her heires and successors , and the poor of the place where such bankrupts happen to be . 9. if any person indebted absent himself from his usual place of abode , upon conplaint the commissioners or the most of them shall award 5 proclamations to be made upon 5 sundry market dayes near the said place , commanding him to render himself to the commissioners or one of them ; which if he do not in convenient time , he shall be adjudged out of the queens protection , and the party wittingly receiving or concealing him , upon information to the commissioners or the most of them , suffer such imprisonment and pay such fine as the lord chancellor or keeper shall think fit . 10. the creditor not fully satisfied by this means may , notwithstanding this act , take his course at law for the recovery of the residue of the debt . 11. the estate which happeneth to the bankrupt by purchase or descent after he becomes a bankrupt , shall also be extendable by the commissioners , or the more part of them . 12. this act shall not extend to annual estates of land ( free or coppy ) by him conveyed before he became bankrupt , so that they were conveyed bonâ fide , and not to such as were privy to his fraudulent purpose . 13. every subject born or denizen , who using trade shall depart the realm , keep house , absent him or her self , to be arrested for debt not justly grown due , to be outlawed , imprisoned , fraudulently procure his person to be arrested or goods attached , depart from home , make any fraudulent grant of lands or goods , with intent to deceive his other creditors being subjects born , or being arrested lye in prison 6 months or more , shall be adjudged a bankrupt . 14. the bankrupt hereby described shall be proceded against as is limited by the 13 el. 7. in like maner as if he had been there so fully described . 15. any creditor shall be received to take his part if he come in within 4 months after the commission sued forth , and pay his part of the charge : otherwise the commissioners may proceed to distribution . 16. if a bankrupt grant his lands or goods , or transferr his debt into other mens names , except to his children upon marriage , they being of age to consent , or upon valuable consideration , the commissioners may notwithstanding sell them , and such sail shall be good . 17. if upon warning in writing left 3 times at the most usual place where he dwelt within one year before he became bankrupt , he appear not before the commissioners , they may cause him to be proclaimed at some publique place or places , and if upon 5 such proclamations he yield not himself , they shall by warrant cause him to be brought before them to be examined concerning his estate . 18. if the bankrupt shall refuse to be examined , the commissioners shall commit him until he conform ; or if being informed he commit perjury to the prejudice of the creditors to the value of 10l . or more , he shall be indicted for the same , and after conviction stand upon the pillory , and have one of his ears nailed thereto and cut off . 19. if any person be known or suspected to detain any of the bankrupts estate , and do not appear or send some lawfull excuse at the next meeting after warning given him , or appearing refuseth to be examined upon oath , the commissioners by warrant shall cause him to be arrested , and if he still refuse , shall commit him until he do submit . 20. the witnesses shall have convenient charges allowed them ratably by the creditors , and such of them as shall be perjured , and their procurers shall be indited upon the stat ’ 5 el. 9. 21. the forfeitures of this act shall be recovered by the creditors , and ( the costs of suit deducted ) shall be ratably divided amongst them . 22. the commissioners have power to assign the bankrupts debts to the creditors , and by such assignement they shall be recoverable as their proper debts . 23. no debtor shall be prejudiced by the payment of his debt to the bankrupt , hefore he have notice that he is bankrupt . 24. the commissioners shall make such accompt to the bankrupt , and likewise pay him such overplus , as by 13 e●iz . 7. is ordained , and the creditors being all satisfied the bankrupt may recover the remaining debts . 25. if any of the commissioners or other person imployed by them be sued for any act done by force of the commission , the defend ’ may plead not guilty , or justifie , and the whole matter shall be brought in evidence according to the very truth thereof , and if the verdict pass for the defend ’ he shall have his costs . 26. the commissioners shall proceed to execution notwithstanding the death of the bankrupt . 27. all laws made against bankrupts shall be construed beneficially for the creditors . 28. persons of trade and scriveners that procure protection except of parliament , and all such as by exhibiting petitions endeavour to compel their creditors to take less than their due debts , or to gain time for the payment thereof , or being indebted in 100 l. or more shall not satisfie the same within 6 months after the same grows due , and the debtor arrested , or within 6 months after the original writ sued out and notice given thereof in writing at the place of his abode , or after arrest escape out of prison , or procure enlargement by putting in common bayle , shall be adjudged bankrupt , and in case of arrest from the time of the arrest . 29. commissions and other proceedings provided by 13 el. 7. and 1 jac. 15. shall also be pursued against him that by this act is prescribed to be a bankrupt , and proceedings provided by this act shall be pursued against him that is described in the other 2. 30. the bankrupts wife shall also be examined upon oath , and if she appear not or refuse to be examined , she shall incurr the punishment inflicted by the former lawes , in like cases . 31. the bankrupt that fraudulently concealeth his goods , or tendreth not some just reason why he became bankrupt , shall after conviction be set in the pillory and lose one of his ears . 32. the commissioners may by themselves or others break open the bankrupts house or chests &c. where his estate is , or is reputed to be , and then seise and order his body or estate , as by the former laws is ordained . 33. in the distribution of the bankrupts estate , no more respect shall be had unto debts upon judgment , recognizances , specialties with penalties or the like , than to other debts . 34. the commissioners may proceed when the bankrupt by fraud makes himself accomptant to the king. 35. another mans goods in the bankrupts possession shall be also distributed by the commissioners as the bankrupts own goods . 36. the commissioners grant of the bankrupts entailed estate shall be good , except when the reversion or remainder is in the king. 37. no purchaser shall be impeached by this or the former act , unless the commission be sued forth within 5 years after he becomes bankrupt . 38. this act , as also all the former , shall extend to strangers , ( both aliens and denizens ) as well as to subjects born , as well to be relieved as also to be subject to the penalty thereof . 39. whereas divers noblemen , and gentlemen , not brought up in trade , have notwithstanding put great stocks into the east india and guiny company , it is declared that no person adventurer for putting in mony or merchandize into the said companies , or for adventuring or managing the fishing , called the royal fishing trade , shall be taken or reputed a merchant or trader within any stat ’ for bankrupt , or be lyable to the same . 40. provided , that persons trading or trafficking in any other manner , than in the said companies or fishing , shall be lyable to the commission of bankrupts . baron and femme . all marriages shall be adjudged lawful , that are not prohibited by gods law. brief . 1. in original writs , where exigent shall be awarded , addition of the defendants condition and dwelling shall be inserted . 2. outlawries otherwise prosecuted shall be void . 3. surplusage of additions shall not prejudice , albeit the writ do therein vary from the records and deeds . 4. the clerks of the chancery shall not omit such additions , in pain to be fined at the discretion of the chancellor . 5. original writs may be sued upon personal actions against prisoners in the fleet , and an habeas corpus granted to bring them to the bar , to answer any suit or declaration : being put in , and the defendant not appearing , judgement may be entred by nihil dicit , and the prisoner charged in execution upon notice hereof to the warden of the fleet by rule of court. 6. in actions of debt , and other personal actions , and ejectione firmae in any of the said courts , after issue joined to be tried by the jury , and after judgement obtained , there shall not need to be fifteen dayes between the teste and return of any venire fac ’ , hab ’ corpora jurator ’ , distringas , fieri fac ’ or cap ’ ad satisfac ’ , and the want of it shall be no error . 7. provided this extend not to writs of cap ’ ad satisfac ’ , where any exigent after judgement is to be awarded , nor to any cap ’ ad satisfac ’ , in order to make any bail triable . certiorari . certioraries shall not be allowed unless the indicted will become bound with sufficient sureties ( such as the justices of peace in sess ’ shall like of ) to pay to the prosecutor within one month after conviction such costs and damages as the said justices shall assess . conditions . 1. grantees of reversions may take advantage of conditions and covenants against lessees of the same lands , as fully as the lessors , their heirs or successors might have done . 2. lessees may also have the like remedy against the grantees of reversions , which they might have had against their lessors or grantors , their heirs or successors ; all advantage of recoveries in value , by reason of any warranty in deed or law by voucher or otherwise , only excepted . costs . 1. there shall be no costs awarded to the defendant , when any action is sued to the kings use . 2. in personal actions in the courts at westminster ( being not for land or battery ) when it shall appear to the judges ( and so by them signified ) that the debt or damage to be recovered amount not to the summe of 40 s , or above , the said judges shall award to the plaintiff no more costs than damages . 3. if the defendant or plaintiff be non-suit , or overthrown by lawful trial in any action whatsoever , the tenant or defendant shall have costs to be assessed and levied by the 23 h. 8. c. 15. 4. if any person sue a writ of error to reverse a judgement after verdict , and the said judgement is afterwards affirm'd , he shall pay to the defendant in the writ of error double costs , to be assessed by the court where such writ of error shall be depending . 5. in all actions of trespass , assault and battery , and other personal actions , wherein the judge at the trial of the cause shall not find and certifie under his hand upon the back of the record , that an assault and battery was sufficiently proved , or that the freehold or title of the land was chiesly in question , the plaintiff shall have no more costs than damages , in cases the jury find damages under 40 s. continuance . discontinuance . 1. the death of the king shall not discontinue any suit betwixt party and party ; neither shall the variance between the original and judicial process in respect of the kings name ●e material , as concerning any fault to be alledged therefore . 2. assises of novel disseisin , mortdancestor , juris u●rum , or attaints , shall not be discontinued by reason of death , new commissions , or associations , or the not coming of the same justices to any of them . 3. preferment of the demandant or plaintiff to be duke , archbishop , marquess , earl , vicount , baron , bishop , knight , justice of the one bench or the other , or serjeant at law , shall not make the suit abatable . 4. preferment of a justice of assise , gaol-delivery , or peace , or of any other commissioners to the dignities aforesaid , shall not lessen his power . 5. new justices of gaol-delivery may give judgement of a prisoner sound guilty of treason or felony , though he were reprieved by other justices . 6. no process or suit before justices of assise , gaol-delivery , oyer and terminer , or peace , or other of the kings commissioners shall be discontinued by a new commission , or by the alteration of any of their names . court. admiralty . 1. the admirals court shall not have cognizance of any thing done within the realm , but onely upon the sea. 2. the party grieved upon non-observance of the 13 r. 2. c. 5. shall by action upon his case recover double damages against the prosecutor in the admiralty , and the prosecutor shall also forfeit 10 l. to the king. damages . 1. when any person bound by a judgement shall sue ( before execution had ) a writ of error to reverse it , if the judgement be affirmed , the writ discontinued , or the party that sueth it be non-suit , the party against whom the writ is brought shall recover his costs and damages at the discretion of the justices before whom the said writ is sued . 2. if the plaintiff be non-suit or overthrown by lawful trial in any action , bill , or plaint , for trespass upon the 5 r. 2. c. 7. or for any debt or covenant upon specialty or contract , or for detinue , accompt upon the case , or upon any statute , the defendant shall have his costs , to be assessed by the judge , or judges of the courts , and to be recovered as the plaintiff might have recovered his , in case judgement had been given for him . 3. he that sues in forma pauperis shall not pay costs , but shall suffer such punishment as the justices or judge of the court shall think fit . 4. when any person shall sue forth of the kings bench any latitat , alias , and pluries capias , against any person who thereupon doth appear , and put in bail , if the plaintiff do not declare within three dayes after , or do after declaration delay or discontinue his suit , or be non-suit , the judges of that court shall thereupon award damages against the plaintiff . 5. the like shall be done in the courts of the marshalsea london , and all other corporations and liberties where the courts are kept de die in diem , but where they are not so kept , then the plaintiff must declare at the next court after appearance , unless he have longer time allowed him by the court. 6. if any shall malitiously ( for vexation and trouble ) cause or procure any person to be arrested or attached to answer in any of the said courts at the suit of any person , whereas there is none such , or without the consent and agreement of the party at whose suit such arrest and attachment is procured , the party so causing or procuring the same , and thereof convict by indictment , presentment , the testimony of two or more witnesses , or other due proof , shall suffer six months imprisonment without bail , and shall not be enlarged until he have satisfied the party grieved his treble damages , and besides shall forfeit unto him ( if he be known ) 10 l. to be recovered ( as also treble damages ) by action of debt , bill or plaint , in any court against the party so offending , his executors , or administrators , in which no essoign , &c. shall be allowed . 7. in personal actions in the courts at westminster ( being not for land or battery ) when it shall appear to the judges ( and so by them signisied ) that the debt or damages to be recovered amount not to the summe of 40 s. or above , the said judges shall award to the plaintiff no more costs than damages , but less at their discretion . defalt . apparence . 1. no filizer , exigenter , or other ossicer whatsoever in any suit shall make entry , that the plaintiff obtulit se in propria persona sua , unless the plaintiff before such entry made doth indeed appear in proper person before some of the justices of the place where the plea depends , and either by himself or some other credible person of his counsel , make oath that he is the same person in whose name that suit is commenced and prosecuted . devlse . testament . 1. every person having mannors , lands , tenements or hereditaments holden in socage , or of the nature of socage tenure , and not having any mannors , lands , &c. holden of the king by knights service , socage tenure in chiefe , nor of any other person by knights service , shall have power to give , dispose , will and devise as well by his last will and testament in writing , as otherwise by any act executed in his life , all such mannors , lands , &c. at his pleasure . 2. where the stat ’ 32 h. 8. c. 1. mentioneth mannors , lands , &c. of inheritance , it shall be expounded and taken of estates in fee simple . 3. every person having a sole estate in fee simple , or seised in coparcenary , or in common in fee simple , in any mannors , lands , tenements , rents , or other hereditaments in possession , reversion or remainder , and having no lands holden of the king , or of any other by knights service , may give , dispose , will or devise to any person or persons , ( except bodyes politick and corporate ) by his last will and testament in writing , or by act executed in his life by himself solely or by himself and others joyntly , severally , or particularly , or by all those wayes or any of them as much as in him of right is , all his said ma●nors , lands , tenements and hereditaments , or any of them , or any rents , commons , or other profits out of the same or any parcel thereof , at his free will and pleasure . discontinuance . 1. if a woman , that hath an estate in dower , for life , or in taile , jointly with her husband , or onely to her self , or for her use , in any lands &c. of the inheritance or purchase of her husband , or given to the husband and wife by the husbands ancestors , or any seised to the use of the husband or his ancestors , do , sole , or with an after-taken husbband , discontinue , or suffer a recovery by covin , it shall be void , and he to whom the land ought to belong after the death of the said woman , may enter , as if the woman were dead , without discontinuance or recoverie . 2. provided , that the woman may enter after the husbands death . but if the woman were sole , the recovery or discontinuance barreth her for ever . 3. this act extends not to any recovery , or discontinuance with the heir next inheritable to the woman , or by his consent of record enrolled . dismes . 1. every person shall without fraud yield and pay all predial tythes , as hath been used , or of right or custome they ought to have been paid . 2. none shall take or carry away any tythes payd , ( or that ought to have been payd as aforesaid ) before he hath justly divided and set forth for the use thereof , the 10 th part thereof , or otherwayes agreed for the same tythes with the parson , vicar , or other owner or proprietor or farmer thereof in pain to forfeit the treble value of the tythes so carried away . 2. at tything time it shall be lawfull for the owner ( claiming such predial tythes ) his deputy or servant , to see his said tythes be truly set out and severed from the nine parts , and the same quietly to take and carry away . 3. if any person carry away his corn , hay , or other predial tythes before they be set out , or willingly withdraw his tythes of the same , or other things whereof the tythes ought to be paid , or do let such owner to view , take and carry away such tythes , by reason whereof they are lost , impaired or hurt , that then upon due proof thereof before a spiritual judge the party so carrying away , withdrawing or stopping shall pay the double value of the tythe so taken , lost , withdrawn or taken away before costs of suit to be recovered before such ecclesiastical judge according to the ecclesiastical laws . 4. tythe of cattel feeding in a wast or common where the parish is not known , shall be payd by the owner of such cattel in the parish where he dwells . 5. none shall be compelled to pay tythes for lands , or other hereditaments , which by the laws and statutes of the realm , or by any priviledge or prescription , are not chargeable therewith , or are discharged by any composition real . 5. barren heath , and wast ground ( other then such as be discharged from tythe by parliament ) which hath heretofore payd no tythes by reason of the barrenness thereof , but be now improved and converted to arable ground or meadow , shall at the end of 7 years next after such improvement pay tithes ; or if they yield some small tythe before such improvement , they shall only pay that same small tythe during the first 7 years , but afterward shall pay the full tythe according to such improvement . 6. every person exercising merchandice , buying and selling , or any other art or fuculty , ( being such persons and in such places as heretofore have used to pay personal tythes within 40 years , or of right ought to have payd them , and not day labourers ) shall yearly at or before easter pay for his personal tythes the 10 th part of his clear gains , reasonable charges and expences being deducted . 7. handycraft men having used to pay tythes within 40 years shall still pay them . 8. the ordinary hath power to examine him that refuseth to pay his personal tythes by any lawfull meanes otherwise than by his own oath concering the payment of such tythes . 9. offerings shall be payd in the place where the party dwells at such 4 offering dayes as heretofore within the space of 4 years last past have been used for the payment thereof but in default thereof at easter . 10. parishes that stand upon or towards the sea coast , the commodities whereof consist much in fishing , shall pay their tythes as they have done within 40 years , and their offerings as aforesaid . 11. this act shall not extend to london , or canterbury , or their suburbs , or to any other town , or place , where the inhabitants have used to pay tythes by houses . 12. suites for substracting or withdrawing of tythes or other profits spiritual shall be prosecuted in the ecclesiastical court before the ecclesiastical judge who hath power ( no original or prohibition hanging ) to excommunicate the party disobeying the sentence , and if he stand excommunicate 40 dayes to certifie the excommunication ( after publication at the place or parish where such party dwells ) into chancery , and thereupon to require processe de excommunicato capiendo , to be awarded against the person so excommunicate . 13. before a prohibition shall be granted the party plaint ’ shall bring a true coppy of the libell exhibited into the ecclesiastical court concerning that suit , subscribed with the hand of the party , and thereunder shall be written the suggestion whereupon the party demandeth such prohibition ; and the libell thus ordered shall be delivered to the justices of the court where the prohibition is so demanded : and if such suggestion be not proved to that court by 2 sufficient witnesses within 6 monthes next after such prohibition granted , the other party shall upon request have consultation , the double costs and damages awarded by the said court , and may recover such costs and damages by action of debt . 14 ▪ this act shall not give power to any ecclesiastical judge to hold plea of any matter against the meaning of the statute of w. 2. c. 5. articuli cleri , circumspecte agatis , sylva caedua , the treatise de regia prohibitione , nor of 1 e. 3. 10. nor to any of them , nor where the kings court ought of right to have iurisdiction . 15. no tithes of marriage goods shall be paied in wales or the marshes thereof . dower . iointure . 1. where an estate is made in possession , or use to husband and wife , and his heires , or the heires of their two bodies , or to them for their lives , or for the wives life for her iointure , in any of these cases she shall not have dower : howbeit , upon a lawfull eviction of that iointure , she shall be endowed according to the rate of the husbands land whereof she was dowable . 2. such a iointure being made after marriage , the wife ( after her husbands death ) may refufe it and betake her to her dower , unless such iointure be made by act of parliament . entrie . 1. where a disseisor dieth seised of lands , that descent shall not take away the entry of the disseisee , or his heire , unless the disseisor had peaceable possession thereof five years next after such disseisin committed . 2. if any prisoner , person for whose life or life 's any estates have been or shall be granted remaining beyond sea , or otherwise absenting themselves the realm for 7 years , and no sufficient proof made of their lives , shall thereupon be accounted naturally dead ; and if thereupon any person shall be evicted out of any lands or tenements by virtue of the same act , and afterwards the person upon whose life the estate depends shall return , or be proved living , or to have been living at the time of the eviction , then the tenant or lessee who was ousted , or his executors &c. may reenter , repossess and enjoy the said land in their former estate , so long as the persons upon whose lives the estate depends shall live , and shall recover against the lessors &c. or other persons upon action for damages , the full profits , with lawfull interest . error . 1. he in reversion shall have a writ of error upon an erroneous judgment given against tenant for life . 2. for preventing abatement of writs of error upon judgment in the exchequer , enacted : that the not coming of the lord chancellor and lord treasurer or either of them at the day of the return of any writ of error , to be sued forth by vertue of the statute 31 ed. 3. c. 12. ( recited in the statute 31 el. c. 1. ) shall not cause any abatement , or discontinuance of any such writ of error . but if both the chief justices of either bench , or either of them , or any one of the said great officers , the lord chancellour , or lord treasurer , shall come to the exchequer chamber , and there be present at the day of the return of any such writ of error , it shall be no abatement or discontinuance : but the suit shall proceed , to all intents , as if the said lord chancellour and lord treasurer had come and been present at the day and place of return of such writ . 3. after a verdict of 12 men in any action , suit , bill , or demand , commenced after the 25 th of march 1665. in any of the courts of record at westminster , or courts of record in the county palatine of chester , lancaster , or durham , or court of the great session , or in any of the 12 shires of wales , judgment thereupon shall not be stayed or reversed , for default in forme or lack of forme , or lack of pledges , or but one pledge to prosecute returned upon the original writ , or for default of entring of pledges upon any bill or declaration , or for default of bringing into court of any bond , bill , indenture , or other deed whatsoever mentioned in the declaration or other pleading , or for default of allegation of the bringing into court of letters testamentary , or letters of administration , or by reason of the omission of vi & armis , or contra pacem , or for mistaking of the christian name , or sur-name , of the plaint ’ or defend ’ , demand ’ or tenant , summe or summes of money , day , month , or year , by the clarke in any bill , declaration , or pleading , where the right name , sur-name , summe , day of the month or year , in any writ , plaint , roll or record preceeding , or in the same roll or record , where the mistake is committed , is rightly alledged , whereunto the plaintiffe might have demurred , and shewen the same for cause : nor for want of the averrment of hoc paratus est verificare per recordum , or for not alledging , prout patet per recordum , or for that there is no right venue , so as the cause were tryed by a jury of the proper county or place where the acted is layd . 4. nor any judgment after verdict , confession by cognovit actionem , or relicta verificatione , shall be reversed for want of misericordia , or capiatur , or by reason that a capiatur is entered for a misericordia , or a misericordia for a capiatur : nor , that ideo concessum est per curiam is entered for ideo consideratum est per curiam ; nor for that encrease of costs after a verdict in any action or upon a nonsuit in replevin , are not entred to be at the request of the party for whom the judgment is given ; nor by reason that the costs in any acton whatsoever are not entered to be by consent of the plaint ’ : but that all such omissions , variances , defects and other matters of like nature , not being against the right of the matter of the suits , nor whereby the issue or tryal are alter'd , shall be amended by the justices and other iudges of the courts where such judgments are or shall be given , or whereupon the record is or shall be removed by writ of errour . 5. provided this act extend not to any writ , declaration or suit of appeal of felony or murther , nor any indictment nor presentment of felony , murther , treason , or other matter , nor to any processe upon any of them , nor to any writ , bill , action or information upon any penal statute , other than concerning customes and subsidies of tunnage and poundage . 6. and after the 20 th of march 1664. no execution shall be stayed in any of the aforesaid courts by writ of errour , or supersedeas thereupon after verdict and judgment in any action personal whatsoever , unless a recognisance with condition according to the former statute made 3 jac. c. 8. shall be first acknowledged in the court where such judgment shall be given . 7. in writs of errour to be brought upon any iudgment after verdict in any writ of dower , or of ejectione firmae , no execution shall be stayed , unless the plaint ’ in such writ of error shall be bound to the plaint ’ in such writ of dower or ejectione firmae in such reasonable summ as the court to which such writ of error shall be directed , shall think fit , with condition that if the judgment shall be affirmed in the said writ of error , or the writ of error discontinued in default of the plaint ’ therein , or that the said plaint ’ be nonsuit in such writ of error , that then the plaint ’ shall pay such costs , dammages , and summs of money as shall be awarded after such iudgment affirmed , discontinuance , or nonsuit ; and the court wherein such execution ought to be granted upon such affirmation , discontinuance or nonsuit , shall issue a writ to enquire as well of the mean profits , as of the damages by any wayes committed after the first iudgment in dower or ejectione firmae : and upon return thereof iudgment shall be given , and execution awarded for such mean profits and damages , and for costs of suit . 8. provided this act extend not to any writ of error to be brought by any executor or administrator , nor any action popular , nor to any other action which is or shall be brought upon any penal law or statute ( except actions of debt for not setting forth of tythes ) nor to any indictment , presentment , inquisition , information , or appeal . 9. this act to continue in force for three years , and to the end of the next session of parliament , after the said three years , and no longer . 10. in all actions , personal , real , or mixt , the death of either party , between the verdict and judgement , shall not be alledged for error , so as such judgement be entred within two terms after such verdict . 11. this act to continue for the space of five years , and from thence to the end of the next sessions of parliament . 12. judgement shall or may be given in any suit or writ , or writs of error in the exchequer , in the preseuce of the lord keeper , notwithstanding the vacancy of a lord treasurer , in such manner as hath been accustomed where there was present both the chancellor , and the lord treasurer . excommengement . 1. every writ de excommunicato capiendo shall be made in term time , and returnable in the kings bench the next day after the teste thereof , having 20 dayes betwixt the teste and return . 2. after the writ shall be sealed , it shall be forthwith brought into the kings bench , and there opened , and delivered of record to the sheriff or other officer , or other deputies to whom the execution thereof appertains , and then if the sheriff or other officer do not duly execute it , the justices shall amerce him at their discretion , and estreat the amercement into the exchequer . 3. at the return of the writ , the sheriff or other officer , &c. shall not be compelled to bring the party arrested into the kings bench , but only return the writ with a short declaration how it was executed , to the end the justices may proceed therein according to the tenor of this act . 4. if the sheriff , or &c. return a non est inventus , then shall issue out of the kings bench a capias returnable in term time two months ( at least ) after the teste thereof , with a proclamation to be made 10 dayes ( at least ) before the return in the county court , assise , gaol-delivery , or sessions , that the party shall within 6 dayes after such proclamation yield his body to the gaol , and there remain as a prisoner , in pain of 10 l. and what shall be done therein , and thereupon shall be returned by the sheriff , or &c. 5. if upon the return it appear that the party hath not rendred himself prisoner upon the first capias , he shall forfeit 10 l. more to be estreated as aforesaid , and then a second capias shall be awarded against him with a pain to forfeit 20 l. to be estreated by the justices as aforesaid , and then a third capias shall be awarded with like proclamation and pain , and then a fourth , and so infinitely , until he render himself prisoner , upon the several returns whereof he shall forfeit 20 l. to be estreated as aforesaid . 6. the party yielding his body shall be committed to prison in like sort as is he had been taken upon the excom . cap. 7. if the sheriff , &c. make a false return upon any of the said writs , he shall forfeit to the party grieved 40 l. 8. the bishops authority to receive submission , and deliver the excommunicate is saved according to the former usuage , viz. by a certificate thereof from the bailiff into the chancery , and then a writ from thence to deliver the prisoner . 9. in wales , the counties palatine of lancaster , chester , and durham , and ely , ( the cinque ports being jurisdictions exempt , where the queens writ runneth not ) a significavit ( being of record in chancery ) shall be sent by mittimus to the justices or head officers there , who shall then proceed against the excommunicate as the kings bench is above directed . 10. if in the excom . cap. the excommunicate have not a sufficient addition according to the statute 1 h 5. 5. or if in the significavit it be not contained that the excommunication proceeds upon some cause or contempt of some original matter of heresie , refusing to have his child baptised , refusing to receive the sacrament , to come to divine service , or errors in matters of religion or doctrine , incontinency , usury , symony , perjury in the ecclesiastical court , or idolatry , he shall not incurr the penalties aforesaid . 11. if the addition be with a nuper of such a place , the first capias and proclamation shall issue forth without any penalty : and in such case also if the party be proclaimed in a county where he is not for the most part resiant , he shall not incurr the penalties aforesaid . 12. persons in prison under age , non sane memory , shall not incur the penalties aforesaid . execution . 1. if lands delivered in execution on just cause be recovered without sraud from the tenant in execution before he shall have levied his whole debt and damages , he may have a scire fac ’ out of the court from whence he had his execution , returnable into the same court at a day 40 dayes at least after the date of such scire fac ’ ; at which day if the defendant being lawfully warned make default , or do appear and not plead a sufficient cause other than the former acceptance of the lands , to avoid the said suit for the residue of the said debt and damages , the said court shall award a new writ of execution for the levying thereof . 2. no execution shall be stayed upon any writ of error or supersedeas thereupon for the reversing of a judgement in any action of debt , or upon any contract in the courts at westminster , of the counties palatine of lancaster , or chester , or of the great sessions in wales , unless the plaintift with two sufficient sureties ( such as the court shall like of ) shall first be bound to the party ( for whom such judgement is given ) by recognizance in the same court , in double the summe adjudged , to prosecute the said writ of error with effect , and to pay , if the judgement be affirmed , all debts , damages and costs so adjudged , and all costs and damages for delaying the execution by the writ of error . 3. the parties or party at whose suit any person shall stand charged in execution for debt or damages recovered , their executors , administrators , may after the death of the person so charged in execution lawfully sue forth new execution against the lands and tenements , goods and chattels of the person deceased , in like manner as if the person deceased had never been taken in execution : howbeit this act shall not extend to lands sold lona fide after the judgement given , when the money raised thereupon is paid , or secured to be paid to creditors in discharge of due debts . 4. for further remedy against the staying of execution after judgement in part provided against by the stat ’ 3 jac. c. 8. no execution shall be stayed in any of the said courts by writ of error or supersedeas after verdict and judgement , in action of debt upon the stat ’ of 2 e. 6. for tythes , promise for payment of money , trover , covenant , detinue , or trespass , unless such recognisance in the same court be first entred as directed by the said statute , and if such judgement be affirmed , the party presenting such writ of error to pay double costs for such delay . 5. proviso this act shall not extend to any popular action , except 2 e. 6. nor to any indictment , information , inquisition , or appeal . 6. when any judgement , statute , or recognizance shall be extended , it shall not be avoided or delayed by occasion of omission of any part of the lands or tenements extendible , saving always the remedy of contribution against such person whose lands be or shall be extended out of such extent for time to come . 7. this act gives no extent or contribution against any heir within the age of 21 years , during such minority , further than might have been before this act. 8. provided this act extend only to such statutes as be for the payment of money , and to such extents as shall be within 20 years after the statute , recognizance , or judgement had . 9. this act to continue for three years , and from thence to the end of the next session of parliament , and no longer . 10. where any judgement after a verdict shall be had , by , or in the name of any executors or administrators , in such case an administrator de bonis non may sue forth a scire fac ’ , and take execution upon such judgement . 11. this act to continue for the space of five years , and from thence to the next sessions of parliament . executor . the ordinarys shall depute the next and most lawful friends of the intestate to administer the goods ; which deputies shall have the benefit and incurr the charge of an executor , and shall also be accountable to the ordinaries as executors . 2. administration of intestates goods shall be granted to the widdow , or next of kin to the intestate , or both as the ordinary shall think fit . 3. the ordinary or other person enabled to make distribution of the surplusage of the estate of the intestate shall distribute one third to the wife , and all the residue equally amongst the children and such persons as legally represent his children , in case any of them be dead , other than such child , or children ( not being heire at law ) who shall have any estate by the settlement of the intestate , or shall be advanced by the intestate in his life time by portion , or portions equal to the share that shall by such distributions be allotted to the other children to whom such distribution is to be made ; and in case any child ( other than the heire at law ) who shall have any estate by settlement from the said intestate , or shall be advanced in his life time by the intestate by portion not equal to the share which will be due to the other children by such distribution as aforesaid , then so much of the surplusage of the estate of the intestate to be distributed to such child or children as shall have any such land , or settlement from the intestate , or were advanced in his life time , as shall make the estate of all the said children to be equal as near as can be estimated : but the heire at law notwithstanding any land that he shall have by descent or otherwise from the intestate is to have an equal share in the distribution with the rest of the children without any consideration of the value of the land which he hath by descent , or otherwise from the intestate . 4. and in case there be no children nor any legal representatives of them , then one moyetie of the said estate to be allotted to the wife of the intestate , the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree , and those who legally represent them . 5. provided that there be no representatives amongst collaterals after brother and sisters children ; and in case there be no wife , then the estate to be equally distributed to , and amongst the children ; and in case there be no children , then to the next of kindred in equall degree of , or unto the intestate , and their legal representatives , and in no other manner whatsoever . 6. no such distribution shall be made till after one year after the intestates death , and every one to whom any share shall be allotted shall give bond with sureties in the said courts to secure the administrator pro rata , if any debts be afterwards recovered . 7. this act to continue for 7 years and from thence to the next session of parliament . 8. executors shall have an action for a trespass done to their testator , as for his goods and chattells carried away in his life , and shall recover their dammage , in like manner as he , whose executors they are , should have done if he had lived . 9. executors of executors shall have actions of debt , account , and of goods carried away of the first testators , and execution of statute merchants , and recognisances made unto him , and shall also answer to others so far forth as they shall recover of the first testators goods , as the first executors should have done . 10. that part of the executors which take upon them the charge of a will , may sell any land devised by the testator to be sold , albeit the other part , which refuse , will not joyne with them . 11. if any person shall obtain any goods , or debts of an intestate , or releases or other discharge of any debt or duty ( which belonged to the intestate ) by fraud ( or by procuring the administration to be granted to a stranger of mean estate and not to be found , with intent thereby to obtain the intestates estate ) and not upon valuable consideration , or in satisfaction of some just debt answerable to the value of the goods so obtained , in such case such person shall be chargeable as executor of his own wrong , so far as the value of the goods , or debts so obtained shall amount unto : howbeit he shall also be allowed such reasonable deductions , as other executors , or administrators ought to have . fines . 1. afine shall after the ingrossing thereof be openly read and proclaimed in the common pleas , the same term , and there the three next terms after , upon four several days , and in the mean time all pleas shall cease . 2. a transcript of the fine shall be sent to the justices of assize of the county where the land lyeth , to be there also proclaimed at every assize holden there that year , and then also all pleas shall cease . 3. an other transcript thereof shall be also sent to the justices of peace of the same county , to be in like sort proclaimed at their four sessions holden that year : and both the justices of assize and peace shall make certificate of such proclamation made , the second return of the term then next following . 4. a fine so proclaimed and certified shall conclude all persons both privy and strangers ( except women covert , other than such women as the parties to the fine , persons under age , in prison , out of the realm , or out of sound mind ) if they pursue not their right , title , claime , interest , by way of action or lawful entry within 5 years after the proclamations so made and certified as aforesaid . 5. the right of strangers which happens to come unto them after the fine is engrossed is saved , so that they pursue their right or title within 5 years aster it so comes to them : and here an action against the pernor of the profits is maintainable . 6. if the parties to whom such right or title comes , be covert , under age , in prison , out of the land , or of non sane memory , they or their heirs have time to pursue their right or title , within 5 years after such imperfections removed : so also have they in case they had right of title at the time of the fine levied . 7. fines at the common law have the same force they had before ; and a fine may be levied according to this statute or the common law , at the election of the parties . 8. every fine after the engrossing shall be proclaimed in the court the same term , and the 3 next , four several days in every term , and in the mean time all pleas shall cease . 9. the proclamations being so made , the fine shall conclude all persons both privyes and strangers , except persons under age , covert , out of the realm , or not of sane memory , being not parties nor privyes to the fine . 10. the right and interest that any person or persons , ( other than parties ) hath , or have at the time of the fine engrossed , is saved , so that they or their heirs , pursue such their right or interest by action or lawful entry within 5 years after the proclamation so made : so also is the right and interest saved , which accrues after the ingrossing of the fine , so that the parties having the same , pursue it within 5 years after it so accrues ; and in this case the action may be brought against the pernor of the profits . 11. if at the time of the fine ingrossed , or of such accruer as aforesaid , the persons be covert , ( and no parties to the fine ) under age , in prison , out of the realm , or of non sane memory , they or their heirs have time to pursue their actions within 5 years after such imperfection removed . 12. the exception , that none of the parties , nor any to their use had any thing in the lands at the time of the fine levied , this way or at the common law , at the pleasure of the parties . 13. fines at the common law have the same force they had before the making of this act , and a fine may be levied this way , or at the common law , at the pleasure of the parties . 14. all fines levied by any person or persons of full age , of lands intailed before the same fine , to themselves or to any of their ancestors in possession , reversion , remainder , or use , shall immediatly after the fine ingrossed and proclamations made , be a sufficient barre against them and their heirs , claiming only by such intail , and against all other claiming only to their use , or to the use of any heir of their bodies . 15. howbeit this act shall not barre the interest of any persons accrued , by reason of any fine levied by a woman , after her husbands death , contrary to the statute of 11 h. 7. 20. 16. a fine levied by him who is restrained by any express act of parliament so to do , shall be void , notwithstanding this act. 17. this act shall not extend to any fine heretofore levied of lands now in suit , or heretofore lawfully recovered in any court by judgement , or otherwise : nor to any fine of lands intailed by the kings letters patents , or any act of parliament , the reversion thereof at the time of such fine levied being in the king. fraud . 1. all fraudulent conveyances of lands , tenements , hereditaments , goods or chattels , and all such bonds , suits , judgements , and executions , made to avoid the debt or duty of others , shall ( as against the party only , whose debt or duty is so endeavoured to be avoided , their heirs , successors , executors or assigues ) be utterly void ; any pretence , feigned consideration , or &c. notwithstanding . 2. every of the parties to such a fraudulent conveiance , bond , suit , judgement , or execution , who being privy thereunto shall wittingly justifie the same to be done bona fide , and upon good consideration , or shall alien or assign any lands , lease , or goods , so to them conveyed as aforesaid , shall forfeit one years value of the lands , lease , rent , common , or other profit out of the same , and the whole value of the goods , and also so much money as shall be contained in such covenous bond ; and being thereof convicted , shall suffer half a years imprisonment , without bail : and here the said forfeitures are to be divided betwixt the queen , and the party grieved . 3. common recoveries against the tenant of the freehold , shall be good notwithstanding this act ; and so shall all estates made for procuring of a voucher in formedon : neither shall this act extend to grants made bona fide , and upon good consideration , to persons not privy to such collusions . 4. every conveyance , grant , charge , incumbrance , and limitation , of use or uses , of , in , or out of any lands , or other hereditaments made to defraud any purchaser of the same , in fee , or taile , for life , or years , shall ( as against such purchaser only , and every other person lawfully claiming from , by or under him ) be utterly void ; the said purchaser having obtained the same for money , or some other good consideration . 5. every of the parties to such fraudulent conveyances , or being privy thereunto , who shall justifie the same to be made bona fide , and on good consideration , to the disturbance and hinderance of the purchasor , or of any other lawfully claiming from , by , or under him , shall forfeit one years value of the lands , or other hereditaments so purchased or charged , to be divided betwixt the queen and the party grieved , and being thereof convicted , shall suffer half a years imprisonment without bail . 6. conveyances made upon good consideration , and b●na fide , shall be good , notwi●hstanding this act. 7. if lands be first conveyed with clause , provision , or condition of revocation , determination or alteration , and afterwards sold or charged for money or other good consideration , before the first conveyance was revoked , altered , or made void , according to the power given thereby ; in this case such first conveyances shall be void against the vendee , and all others lawfully claiming from , by , or under him : howbeit no lawful mortgage , made bona side , without fraud , shall be impeached by his act. 8. all statutes merchant , and of the staple , shall within six months after this acknowledgement be entred in the office of the clerk of recognizances , taken according to the statute of 23 h. 8. 6. and the clerk there ( upon shewing the same ) shall make entry thereof , for which he shall have 8 d. and no more . 9. every such statute , which is not within four months after the acknowledgment thereof delivered to be entred accordingly , shall be void against the purchaser of the lands chargeable therewith , and against his heirs , successors , executors and assignes . 10. the said clerk shall within the said six months make entry of every statute to him delivered , as aforesaid , and shall indorse thereupon the day and year of such his entry with his own name , in pain to forfeit for every statute so brought unto him , and not entred as aforesaid , 20 l. to be devided betwixt the queen , and the prosecutor . 11. the clerk shall take for the search of a statute but 2 d. for every such search , in pain to forfeit to the party grieved twenty times so much as he takes above , to be recovered in any court of record by action of debt , &c. 12. provided , that this act shall not extend to make good any purchase made void by reason of any former conveyance , so as the party so making void the same , his heirs or assignes , were the first day of this parliament in actual possession of the lands , out of which any such purchase , lease , charge , or profit was made . habeas corpus . 1. if a corpus cum causa , or certiorari be granted out of the chancery to remove one that is in prison upon an execution at another mans suit , he shall be remanded . 2. no writ of habeas corpus , or other writ sued forth to remove an action , shall be allowed , unless it be delivered to the judge , or officer of the court , before the jury appear , and one of them be sworn . 3. no writ to remove a suit commenced in an inferior court shall be obeyed , unless delivered to the steward , &c. of the same court before issue or demurrer joined ; so as such issue or demurrer be not joined within six weeks after the arrest or appearance of the defendants . 4. an action or suit once remanded , shall never afterwards be again removed . 5. when the thing in demand exceedeth not 5 l. the suit shall not be removed by any writ , save only by writs of error or attaint . 6. this act shall only extend to courts of record , where an utter barrester of three years standing is judge , recorder , steward , or &c. or assistant to such officer there , and not of councel in any action there depending . 7. neither shall this act extend to any action which cannot be tried in such inferiour courts . hue and cry. 1. the hundred where fresh suit shall cease , shall answer half the damages to the hundred where in the felony shall be committed , to be recovered in any court at westminster in the name of the clerk of the peace of the county wherein the felony was committed ; and here the death or change of the clerk of the peace shall not abate the suit . 2. when in this case damages are recovered against one or some few inhabitants of the hundred , and the rest refuse to contribute thereunto , two justices of peace ( 1 qu. ) dwelling within , or near the same hundred , shall for the levying thereof , set a tax upon every parish within that hundred ; according to which , the constables and headboroughs of every town shall tax the particular inhabitans , and levy the money upon them by distress and sale of goods , and deliver the money levied to the said justices , or some of them . 3. no hundred shall be chargeable when any of the malesactors shall be apprehended , or when the action is not prosecuted within one year after the robbery committed . 4. no hue and cry shall be deemed legal , unless the pursuit be both by horse and foot. 5. no person robbed shall maintain an action in this case , unless with all convenient speed he makes his robbery known to some near town , village , or hamlet , and within 20 dayes before the action brought , make oath before a justice of peace dwelling within or near the hundred where the robbery was committed , whether he know the parties that robbed him , or any of them ; and if he know , shall enter into sufficient bond before the same justice , to prosecute the person or persons so by him known , by indictment , or otherwise , according to law. inrollment . 1. bargains and sales to an use of inheritance of freehold must be by deed indented and inrolled within six months after the date thereof , in some court of record at westminster , or in the county where the land lieth , before the custos rotulorum , two justices of peace , and the clerk of the peace , or two of them , whereof the clerk to be one : and here the fee to be paid for such inrolment , when the land is not worth 40 s. per an is 2 s. and when it is more 10 s. to be equally divided betwixt the justice or justices then present , and the clerk of the peace , who ought to inroll them in parchment , and to deliver them unto the custos rotulorum within one year after . 2. this act shall not extend to lands , tenements , or hereditaments in corporations , where an officer or officers there have lawfully used to inroll deeds or other writings . iustices . no lord nor other shall sit upon the bench with the justices of assize , in pain of great forfeiture to the king , and the justices there commanded not to suffer it . iudgment . iudgments given shall continue , and the parties for whom they are so given , and their heires shall be in peace until they shall be attaint , or error if any be . ley gager . in actions of debt upon the arrearages of an account , feigning ( to the intent to put the defendants from their law ) that the same was found before their apprentices or servants , as auditors assigned therein , it shall be in the judges discretion upon examination of the attorneys ( or whom else they please ) to receive the defendants to their law , or to trie the same by enquest . libell . a copy of a libell grantable in the ecclesiastical court shall be presently delivered upon the defendants appearance . limitation . 1. seisin in a writ of right shall be within 60 years before the teste of the same writ . 2. in a mortdancester , cosinage , ayel , writ of entry sur disseisin , or any other possessory action upon the possession of his auncestor or predecessor , it shall be within 50 years before the teste of the original of any such writ . 3. in a writ upon the parties own seisin or possession , it shall be within 30 years before the teste of the original of the same writ . 4. in an avowry or cosinage , for rent suit , or services of the seisin of his auncestor , predecessoror , his own , or any other , whose estate he pretends to have ; it shall be within 40 years before the making of such avowry or cognisance . 5. formedons in reverter or remainder , and scire facias upon fines shall be sued within 50 years after the title or cause of action accrued and not after . 6. the party demandant , plaint ’ , or avowant that ( upon traverse or denier by the other party ) cannot prove actual possession , or seisin within the times above limited , shall be for ever after barred in all such writs , actions , avowries , cognizance , prescription , &c. 7. provided , that in any of the said actions , avowries , prescriptions &c. the parties grieved may have an attaint upon a false verdict given . 8. the statute of 32 h. 8. c. 2. shall not extend to a writ of right , of advowson , quare impedit , assize of darrein presentment , jure patronatus , writ of right of ward , writ of ravishment of ward , nor to the seisor of the wards body or estate : but the time of the seisin to be alledged in such cases , shall be as it was at the common law before the making of the said statute . 9. all writs of formedon in descender , remainder , or reverter , for any title or cause now in esse , shall be sued within 20 years next after this present session of parliament , and for any title or cause hereafter accruing , within 20 years after such title or cause so accruing : otherwise such title shall be for ever barred , and the party claiming utterly excluded from entry . 10. none now having any right or title of entry into any mannors , lands , tenements or hereditaments , now held from him or them , shall thereinto enter , but within 20 years next after the end of this session of parliament , or within 20 years next after any other title accrued ; and none shall at any time hereafter make any entrie into lands , tenements , or hereditaments , but within 20 years next after his or their right or title , which shall hereafter first descend or accrue to the same . 11. the titles of any infant , femme covert , non compos mentis , one imprison'd , or beyond sea , are saved so as they commence their suit within 10 years after such imperfections removed . 12. all actions upon the case , ( other then for slander , ) actions for accompt ( other then such as concern merchandise ) actions of trespasse , debt , detinue , trover , and replevin , shall be commenced within 3 years after this present session of parliament , or within 6 years after the cause of suit , and not after . 13. all actions of trespass , of assault , battery , wounding , and imprisonment , shall be commenced within one year after this sessions , or within 4 years after the cause of suit , and not after . 14. all actions upon the case for words shall be commenced within one year after this present session , or within 2 years after the words spoken , and not after . 15. provided , that if in any such actions judgment be given for the plaint ’ , and the same be reversed by error , or a verdict pass for him , and upon motion in arrest of judgment it is given against him , or if the defend ’ be outlawed in the suit , and after reverse the outlawry , in these cases the plaint ’ , his heires , executors or administrators , may commence a new action within a year after such judgment reversed , or given against the plaint ’ , or outlawry so reversed , and not after . 16. the right of action in the cases abovesaid is saved to an infant , femme covert , non compos mentis , a person imprison'd or beyond sea , as they commence their suit within the times above limited respectively , after their imperfections removed . maintenance . 1. none shall buy any pretended right or title to any land , unless the seller hath taken the profits thereof one whole year before such bargain , in pain that both the buyer and seller shall each of them forfeit the value of the same land , to be divided betwixt the king and the prosecutor . 2. none shall unlawfully maintain any suit or action , retain any person for maintenance , imbrace jurors , or suborn witnesses , to the hindrance of justice , or the procurement of perjury , in pain to forfeit for every such offence 10 l. to be divided betwixt the king and the prosecutor . 3. howbeit purchasing of a pretended title by him that is already lawfully possessed of the thing whereunto title is made , is lawful . 4. proclamations shall be made at the assises , of the statutes made against maintenance , champertie , embracery and unlawful retainers . 5. the offenders against this act shall be porsecuted within one year . market . fair. 1. every seller or exchanger of a horse in a fair or market , which being unknown to the toll taker , or book-keeper doth not procure one credible person that is well known unto him , to vouch the sale of the same horse ; also every false voucher , and the toll-taker , or book-keeper , that suffers such sale or exchange to pass , shall forfeit 5 l. to be divided betwixt the queen and the prosecutor : and besides , the sale of such horse shall be void . 2. the names of the buyer , seller and voucher , and the price of the horse , shall be enter'd in the toll-book , and a note thereof deliver'd to the buyer under the toll-takers or book-keepers hand , for which the buyer shall pay 2 d. 3. notwithstanding such sale and voucher as aforesaid , the right owner or his executors may redeem a stolne horse , if they claim him within 6 moneths after the stealing , at the parish , or corporation , where he shall find him , and make proof by 2 sufficient witnesses before the next justice of peace in the country , or before the head officer of a corporation , that the horse was his , and repay to the buyer such price for the horse as the same buyer shall upon his own oath before such justice or officer , testifie to have paid for him . nonsuit . 1. where before justices of assise the parties are adjourned for some difficultie in law upon the matter found , in this case the plaint ’ shall not be nonsuited , albeit the verdict pass against him . 2. unless the plaint ’ named in any writ , bill , or process in b. r. or c. b. shall put into the court a declaration against the persons arrested , in some personal action , or ejectione firmae of lands , or tenements , before the end of the term next sollowing after appearence , then a nonsuit for want of a declaration may be entred against the plaint ’ in the said courts respectively . obligation . sheriffes and other officers shall take no bond of any arrested person but for appearance , and to themselves onely , and shall not take for it more then 4 d. and bonds otherwise taken ( colore officii ) shall be void . office. 1. none shall bargain or sell any office or deputation , or any part thereof , or receive or take any money , fee , reward , or other profit , directly or indirectly , or any promise , agreement , bond or assurance , to receive any such profit for the same ; which office shall concern the administration or execution of justice ; or the receipt , controlment or payment of any of the kings money or revenue , or any accompt , aulnage , auditorship , or surveying of any of the kings lands , or any of his customes , or any administration or attendance in any custome-house , or the keeping of any of the kings towns , castles or fortresses , ( being places of strength or defence ) or any clerkship in any court of record , in pain that the bargainee thereof shall lose his place , and the bargainor be adjudged disable to execute the same ; and every such bargain and agreement shall be void . 2. provided , that this act shall not extend to any office or inheritance , or for the keeping of a park , house , mannor , garden , chace , or forest , nor to the two chief justices , or justices of assize , but that they may grant offices as they did before the making of this act : also all acts done by an officer ( removeable by force of this statute ) shall be good in law until he be removed . 3. an action brought against a justice of peace , maior or bailiffe of a corporation , headborough , portreeve , constable , tithingman , or collector of subsidies or fifteens , for any thing done by reason of their several offices , both they and all their assistants may plead the general issue , and yet give the special matter in evidence . 4. here if the verdict pass for the defendant , or the plaint ’ be nonsuit or discontinue his suit , the defendant shall be allowed double costs , to be recover'd as costs in other cases given to the defend ’ use to be recover'd . 5. the statute of 7 jac. 5. is confirmed , and church-wardens , sworn-men and overseers of the poor , together with their assistants are to be comprehended within the purview of the same statute . 6. an action brought against any the said officers , their deputies or assistants , shall be layed in the county where the fact was committed , and not elsewhere . 7. the unnecessary charges and tedious attendance in passing the accounts of sheriffs being very burthensome , it is enacted , that sheriffs shall not keep tables of receipt for any more then their own family , or retinue , nor shall send any presents to any judge of assise nor give any gratuity to any officer , nor have more then 40 men-servants , nor under 20 in any county in england , nor under 12 in wales , upon forfeiture of 100 l. for every such default ▪ proviso this clause not to extend to the sheriffs of london or middlesexs , nor westmerland , or any sheriff of a city and county , or town and county . 8. sheriffes in england shall not be charged to answer any illeviable seisure , farme , rent , debt , or other thing whatsoever , which was not writ or process to them to be levied , and the persons , lands and tenements , of which the same is leviable particularly expressed , but shall be discharged without petition , plea , or other trouble or charge whatsoever . 9. all seisures made before the 1 jac ▪ r. 1. and yet remaining upon the sheriffs accompts , and all seisures and debts pardoned , are discharged and to be left out of their accounts , and no process to issue for levying the same , nor any other rent or farme not particularly set forth , or which hath been unanswered for 40 years past , and all other dead farmes and seisures and all desperate illeviable and unintelligible debts , shall be removed out of the annual roll and sheriffs charge in the exannual roll , there to remain until revived by commission . 10. the several remembrancers shall enroll and certifie the engrosser of the great roll , all debts , chargeable upon sheriffs by their returns , into the exchequer upon writs of fi . fac . levari fac . capias , and other process , and all fines and amerciaments already set before the first day of february 1662. and all debts , fines and amerciaments hereafter set before the next term after returns of such fines and amerciaments set , that so they may be charged and comprehended within quietus est , upon pain of 40 l. upon the officer for every default , the one moytie to the king , the other to the party grieved . 11. and none shall be sheriff unless he have lands in the same county sufficient to answer the king and his people . 12. every sheriff having obtained a quietus est ( as by the act 21 jac. c. 5. he might ) the sheriff , his heires , executors lands and tenements , shall be clearly discharged of all accompts and debts whatsoever , unless he be prosecuted and judgment given within 4 years after the same ; and every officer by whose default process shall be sent contrary to this act , shall incurr the same penalty aforesaid . 13. this act not to extend to the counties of chester , lancaster , and durham , or the counties of wales , being counties palatine , as to the manner of their accompting , who are to accompt before the respective auditors as aforesaid . 14. not to extend to enjoyne the remembrancer to transcribe to the engrosser of the great roll any inquisitions or seisures , but such as have been formerly charged in the foreigne accompts of sheriffs , but inquisitions upon attainder and other forfeitures to be put in charge as formerly . 15. not to exclude his majesties remembrancer from writing forth process for his majesties debts , duties , outlawries , or other charge or process of leva : fa. at any persons suit to levy issues of lands seised , or venditioni exponas for goods , for any debt to the king , or upon outlawry , or to alter any pleading touching the same . 16. that no debt , duty , fine , or amerciament or seisure charged in the great roll of the pipe by any record of the kings remembrancer , nor any proceedings thereupon be stayed , compounded , or discharged , by order of any judgment entred in the said office of the kings remembrancer , where the original of such debt or charge remaines . 17. if any debts , seisures , fines , or other be not levied and payd upon process of summons of the pipe , the clerke of the pipe shall the next term after return of such process certifie the office of the kings remembrancer , who shall issue process for levying the same . 18. auntient and lawful fees belonging to the kings remembrancer not abridged by this act . 19 the act to continue to the end of the first sessions of the next parliament and no longer . partition . 1. ioyntenants and tenants in common of any inheritance in their own right , or in right of their wifes , in any mannors , lands , tenements or hereditaments , may be compelled to make partition by writ de partitione facienda as coparceners are compellable to do , and this writ shall be pursued at the common law . 2. that after such partition made they shall have aid of one another and of their heires to dereigne warranty and to recover pro rata as coparceners use to doe . 3. ioyntenants , and tenants in common , that have inheritance or freehold in any mannors , lands , tenements or hereditaments , shall be also compellable to make partition by the said writ to be pursued upon their case : howbeit such partition shall not be prejudicial to any but the parties to such partition , their heires and assignes . pleading . 1. all pleas which shall be pleaded in any court whatsoever , within the realm , shall be pleaded , shewed , depended , answered , debated , and judged in the english tongue , and entred and enrolled in the latin. howbeit the laws and customes of the realm , as also the terms and process shall be holden and kept , as before this time hath been used . 2. and exemplification of the inrollment of the letters patents by h. 8. e. 6. q. m. p. and m. q. el. or any of them , since the 4 th of februrary in the 27 h. 8. or hereafter to be granted by the queen , her heires , or successors , shall be of as good force to be pleaded , or shewed in behalfe of the patentees , their heires , executors and assignes , and every of them , and every other person , or persons , having any estate from , by or under them , or any of them , as well against the queen , her heires and successors , and all other persons whatsoever , as if the letters patents themselves were produced . policies of assurance . 1. the lord chancellor , or lord keeper shall award a standing commission ( to be yearly renued , or as often as to him shall seem meet ) for the hearing and determining of all such causes arising , and policices of assurance , as shall be entred in the office of assurance in london . 2. this commission shall be directed to the judge of the admiraltie , the recorder of london , 2 doctors of the civil , 2 common lawyers , and 8 grave or discreet merchants , or to 5 of them ; which commissioners or the greater part of them shall have power to hear and determine all such causes in a brief and summary course as to their discretion shall seem meet , without formality of pleadings or proceedings . 3. the commissioners have also power to summon parties , examine witness upon oath , and commit to prison such as contemn or disobey their orders , or decrees . they shall meet and sit once a week at the least in the office of assurance , or in some other convenient publick place , for the execution of the said commission , and no fees shall be there exacted by any person whatsoever . 4. if any be grieved by their sentence or decree , he may exhibit his bill in chancery for the reexamination thereof ; so as he first satisfie the sentence so awarded , or deposite with the commissioners the sum awarded , and then albeit he be imprisoned he shall be enlarged : and here the lord chancellor , or keeper hath power to reverse or affirme every such sentence or decree , and in case it be affirmed to award the party assured double costs . 5. no commissioner shall meddle in the execution of the commission wherein he is party , assurer , or assured , not until he hath taken his corporal oath before the major , and court of aldermen to proceed uprightly and indifferently between party and party : only the judge of the admiralty is excused from that oath . 6. upon some defects in the statute of 43 el. c. 12. it is enacted that the lord chancellor , or keeper of the great seal , shall yearly issue out one standing commission , authorising commissioners or any 3 of them , whereof a doctor of the civil law or a barrister of the common law be alwayes one ( of 5 years standing ) to make a court of policies of assurance and an act , as any five before might have done . 7. the said commissioners or any 3 of them impowered to summon parties and witnesses , and upon contempts and delays in the witnesses upon first summons and reasonable charges : and in the parties upon second summons to imprison offenders , or to give every commissioner having taken the oath before the lord major of london , to proceed uprightly in the execution of the said commission . 8. commissions may issue out of the court of admiralty for examining witnesses beyond sea , or in remote place by direction of the said commissioners , or any three of them , and decrees may be made against the body and goods , and against the executors , &c. and execution accordingly , and assess costs of suit as to them shall seem meet . 9. any of the said commissioners may administer an oath to any witness legally summoned , so as the adverse party have timely notice , to the end witnesses may be truly examined . 10. provided , that in no case execution be against body and goods for the same debt . 11. provided , that an appeal may be to the chancery as in the said former act. powers . 1. leases made by tenant in tail , or by him who is seised in the right of his wife , or church , they being of full age at the time of such lease made , shall be good and effectual in the law against the lessors , their wives , heirs and successors . 2. the statute shall not extend to any lease made of lands in the hands of any farmer by force of any old lease , unless such old lease expire within a year after the making of the new , nor to any grant to be made of any reversion of any manors , lands , &c. nor to any lease of any manors , lands , &c. which have not been let to farm , or occupied by farmers 20 years before ; such lease made , nor to any lease to be made without impeachment of waste , nor to any lease to be made for above 21 years or 3 lives from the day of the making thereof ; and that upon every such lease there be reserved so much yearly as hath been usually paid for the lands so let within 20 years next before such lease made , and the reversioners of the manors , lands , &c. so let , after the death of such lessor , or his heirs , may have such remedy against such lessee , his executors and assignes , as such lessor might have had against such lessee . 3. that all leases made by the husband , of manors , lands , &c. ( being the inheritance of the wife ) and she to seal to the same , and the rent shall be reserved to the huband and wife , the heirs of the wife , and here the husband shall not alien or discharge the rent , or any part thereof longer than during the coverture , unless it be by fine levied by husband and wife . 4. this act shall not extend to give liberty to take more farms or leases than might have been taken before this act , nor to any parson or vicar to make any lease otherwise than they might have done before . 5. all leases for years made within three years before the 12 of april in the 31 of h. 8. by writing indented under seal , by any person of full age , sane memory , and not lawfully contracted , or covert-baron , of any manors , lands , &c. wherein he or they have an estate of inheritance to his or their own use , at the time of the making thereof , and whereof the lessee or lessees , or their a signes , now have the possession by force of such lease or leases , and no cause of re-entry or forfeiture thereof had or made , shall be good in law against such lessors , their heirs and successors ; so as so much yearly rent be reserved for the same as was paid for the same within 20 years next before the making of such lease or leases , or else such lease or leases to be of no other force than they were before the making of this act. 6. no fine , feoffement , or other act done by the husband only of the inheritance of free-hold of the wife , shall make any discontinuance , or prejudice the wife or any other who is to enjoy it after her decease , the fines levied by the husband and wife only excepted . 7. this act shall not give liberty to the wife , or her heirs , to avoid any lease hereafter to be made of the wifes inheritance by the husband , wife , for 21 years or under , or three lives ; whereupon the accustomed yearly rent for 20 years before is reserved according to the tenor of this act . 8. this act shall not extend to the making good any lease made by any ecclesiastical person , which are made void by authority of parliament , or by any such person or other now attainted of treason . 9. all estates made by any arch-bishop , or other bishop , of any manors , lands , &c. parcel of the possessions of their bishoprick , or united or appertaining thereunto , to any person or persons , body politique or corporate , other than to the queen , her heirs and successors , and other than for the term of 21 years and 3 lives , from the time of such estate made , and whereupon the accustomed yearly rent or more shall be reserved and payable yearly during such term for 21 years or 3 lives , shall be void to all intents and purposes . 10. all leases , conveyances , or estates made by any master or fellows of any colledge , dean and chapter of any cathedral or collegiate church , master or gardian of any hospital , parson , vicar , or any other having any spiritual or ecclesiastical living , or any houses , lands , titles , or other hereditaments , being parcel of their colledge , cathedral church , chapter , hospital , parsonage , vicarage , or other spiritual promotion , or belonging thereunto , other than for 21 years , or 3 lives , from the making thereof , and whereupon the accustomed yearly rent shall be reserved and payable yearly during the term , shall be utterly void to all intents and purposes . 11. this act shall not make good any lease or other grant against the private statutes of any colledge or collegiate church . 12. this act shall not be extended to any lease hereafter to be made upon surrender of a former lease , or by reason of any covenant or condition contained in any former lease , and so continuing , so as the lease to be made contain not more years than the residue of the years of such former lease , nor any less rent than is thereby reserved . 13. all leases made by such persons as are mentioned in 13 el. 10. where another lease is in being not to be expired , surrendred or ended within three years next after the making such new lease , shall be void , and all bonds and covenants for the removing any such lease contrary to this act or the said statute of 13 el. 10. shall also be void ; howbeit this act shall not extend to any lease or leases heretofore made to any such person or persons . 14. upon complaint to the ordinary , and sentence given upon any offence committed by the incumbent against the statute 13 el. 20. whereby he ought to lose the profits of his benefice ; the ordinary within two months after such sentence given , and request made by the church-wardens , or one of them , shall grant the sequestration thereof to such inhabitant or inhabitants there , as to him shall seem convenient , and upon default in the ordinary , it shall be lawful for every parishioner there to retain his tythes , and for the church-wardens to take the profits of the glebe , and other rents and duties of such benefice to be employed to the use of the poor , until the sequestration shall be commited by the ordinary , and then the church-wardens or parishioners are to accompt to him or them to whom such sequestration shall be committed , and he or they shall imploy the said profits to such uses as by the said statute of 13 el. c. 20. are appointed , in pain to forfeit the double value of the profits withholden , to be recover'd in the ecclesiastical court by the poor of the parish . 15. all assurances of bishops lands to the king shall be void . process . 1. like process shall be hereafter had in actions upon the case sued in the kings bench , or common pleas , as in actions of trespasse or debt . 2. original writs may be sued upon personal actions in the fleet , and an habeas corpus granted to bring them to the barre to answer any suit and declaration ; being put in , and the defend ’ not pleading judgment may be entred by nihil dicit , and the prisoner charged in execution upon notice thereof to the warden of the fleet by rule of court. prohibition . 1. none shall be cited to appear out of the diocesse or peculiar jurisdiction where he or she liveth , except by some ecclesiastical , or other person within the diocesse , or other jurisdiction wherein he is so cited , for some offence or cause commited , or omitted , contrary to right or duty , or upon an appeal or other lawful cause , or when the judg dares not , nor will not cause him to be cited , nor is any way party to the suit , or at the instance of the inferiour judge to the superiour , where the law civil , or canon doth allow it , and all this in pain to forfeit double damages to the party grieved , and 10 l. to the king , to be divided betwixt him and the prosecutor . 2. the arch-bishop may cite for heresie in any diocesse within his province , upon consent or neglect of the bishop or judge there . 3. this act shall not restrain the jurisdiction of the prerogative court for probate of testaments . 4. the ecclesiastical judge shall take but 3 d. for a citation upon the pains aforesaid . recognisance . 1. the chief justices of the kings-bench and common pleas , or either of them , or ( in their absence out of the terme ) the major of the staple at westminster , and the recorder of london , jointly together , shall have power to take recognisances for the payment of debts in this forme following . noverint universi per praesentes nos a. b. and d. c. teneri & firmiter obligari joanni stile in cent ’ libr ’ sterling solvendis eidem ioanni , aut su● cert ’ attornat ’ hoc script ’ ostend ’ haered ’ vel execut ’ suis in tal ’ fest ’ &c. proxim ’ futur ’ post dat ’ praesent ’ , & si defecero , vel defecerimus in solutione debit ’ praedict ’ volo & conced ’ . vel sic . volumus & concedimus quod tunc currat super me , haered ’ , & execut ’ meos . vel , super nos & quemlibet nostrum , haered ’ & execut ’ nostros poena in statuto stapul ’ de debit ’ pro marchandisis in ead ’ emptis recuperand ’ , ordinat ’ & provis ’ . dat ’ tali die , anno regni regis &c. 2. such obligation shall be sealed with the seal of the recognisor or recognisors ; as also with such a seal as the king shall appoint for that purpose , and with the seal of one of the chief justices , or the seals of the said major of the staple and recorder , and every of the said justices ; and the said major and recorder shall have the custody of one such seal to be appointed by the king as aforesaid . 3. the clerke of the recognisances ( to be also appointed by the king ) or his sufficient deputie or deputies shall write and inroll such obligations in two several rolls indented , whereof one shall remain with such of the said justices , or with the said major and recorder , that take such recognisance , and the other with the writer thereof : also such clerke , or his deputie or deputies , shall be dwelling or abiding in london , and shall not be absent from thence by the space of two days in pain to forfeit 10 l. 4. the clerk or his deputie ( at the request of the creditors , their executors or administrators ) shall certifie such obligations in the chancery under his or their seal . 5. the recognisees of such obligations , their executors and administrators , shall have in every point , degree and condition , against the recognisors , their heires , executors and administrators , such processe , execution , commodity , and advantage , as hath been had upon an obligation of the statute of the staple , and shall also pay like fees for the same . 6. here the recognisor so bounden or otherwise grieved by such an obligation , shall have like remedy by audita querela , and all other remedies in law ; as upon obligations of the statute of the staple . 7. upon the sealing of the processe for the execution of every such obligation , the king shall have a halfe-penny in the pound . 8. the tenant by such a recognisance , his executors or administrators , being outed shall have like remedy , upon an obligation of a statute of the staple . 9. the justices , or the major and recorder's fee for taking such a recognisance , is 3 s. 4 d. the clarks fees is as much , and his fees for certifying such obligation is 20 d. and none of them shall take more in pain of 40 l. 10. from henceforth the major or constable of the staple shall take no recognisance of the statute of the staple , in pain of 40 l. except between merchants , being free of the same staples , for merchandise of the said staple between them lawfully bought and sold . 11. the forfeitures abovesaid are to be divided betwixt the king and the prosecutor , and proved by information , action of debt , bill or plaint , in which no essoin , &c. shall be allowed . recoveries . 1. a termer for years may satisfie a feigned recovery had against them in the reversion , and shall retain and enjoy his term against the recoverer , his heirs and assignes , according to his lease . 2. also the recoverer shall have like remedy against the termer , his executors or assignes , by avowry or action of debt , for rents and services reserved upon such lease , and due after such recovery , and also like action for waste done after such recovery , as the lessor might have had if such recovery had never been . 3. no statute of the staple , statute merchant , or execution by elegit , shall be avoided by such feigned recovery , but such tenant shall also have like remedy to falsifie such recoveries as is here provided for the lessee for years . 4. no feigned recovery hereafter to be had by assent of parties against any tenant or tenants in tail of any lands , tenements or hereditaments , whereof the reversion or remainder at that time of such recovery had shall be in the king , shall bind or conclude the heirs in tail , whether any condition or voucher be had in any such feigned recovery or not : but that after the death of every such tenant in tail , against whom such recovery shall be had , the heirs in tail may enter , hold and enjoy the lands , tenements and hereditaments so recover'd according to the form of the gift of tail , the said recovery notwithstanding . 5. and here the heirs of every such tenant in tail , against whom any such recovery shall be had , shall take no advantage for any recompence in value against the voucher and his heirs . 6. this act shall not extend to prejudice the lessee or lessees of such tenant in tail made by writing indented of any manors , lands , &c. for 21 years , or 3 lives , or under , whereupon the accustomed rent or rents is or shall be yearly reserved during the said term or terms , but the same lessee or lessees shall enjoy his or their term or terms , according to the statute of 32 h. 8. 28. this act notwithstanding . 7. all recoveries had or prosecuted by agreement of the parties , or by covin , against tenants by curtesie , tenants in tail , after possibility , &c. for term of life or lives , or of estates determinable upon life or lives , or of any lands , or tenements , or hereditaments , whereof such particular tenant is so seised , or against any other with voucher over of any such particular tenant , or of any having right or title to any such particular estate , shall from henceforth , as against the reversioners , or them in remainder , and against their heirs and successors , be clearly void . 8. this act shall not prejudice any person that shall by good title recover any lands , &c. without fraud , by reason of any former right or title : also every such recovery had by the assent and agreement of the person in reversion or remainder , appearing of record in any of the queens courts , shall be good against the party so assenting . rents . 1. the executors or administrators of tenant in fee-simple , in fee-tail , or for term of life , of rent-services , rent-charges , rent-secks , and fee-farms , upon whom any such rent or fee-farm was due and unpaid at the time of his death , shall have an action of debt for all the arrerages thereof against the tenant or tenants that ought to have paid them to their testator , or against the executors or administrators of such tenant or tenants ; and shall also distrain for the said arrerages upon the lands charged therewith , so long as they continue in the seisin or possession of such tenant in demesne , or of any other person proclaiming by or from him , in like manner as their testator might have done : and the said executors or administrators shall likewise for the same distress lawfully make avowry upon the matter aforesaid . 2. this act shall not extend to any manor , lordship , or dominion in wales , or the marches thereof , where the inhabitants have used time out of mind to pay to every lord or owner of such manors , &c. at their first entry into the same , any summe or summes of money , for the discharge of all duties , forfeitures and penalties wherewith the inhabitants were chargeable to any of their said lords , ancestors or predecessors , before their such entry . 3. if any person hath in right of his wife any estate in fee-simple , fee-tail , or for term of life , in any such rents or fee-farms , and the same happen to be due and unpaid in his wives life , such husband , after the death of his wife , his executors and administrators shall have an action of debt for the said arrerages against the tenant of the demesne that ought to have paid the same , his executors or administrators , and shall likewise distrain for the same , and make avowry , as he might have done if his wife were living : the like power hath tenant pur autre vie for arrerages due and unpaid in the life time of cestuy que vie . repleader . 1. in all actions after issue had , there shall be judgement given , notwithstanding any mispleading , lack of colour in sufficient pleading , or jeofail , miscontinuance , discontinuance , misconveying of process , mis-joyning of issue , lack of warrant of attorney of the party against whom the issue shall be tried , or any other default or negligence of any of the parties , their councellors or attorneys . 2. provided , that every attorney shall deliver , or cause to be delivered his or their sufficient and lawful warrant of attorney , to be entred of record for every action or suit wherein he is named attorney , to the officer or his deputy ordained for the receit and entring thereof in the same term , when the issue of the said action is entred of record , or before , in pain to forfeit 10 l. to the king , and to suffer imprisonment at the discretion of the justices of the court , where such action depends . replevin . 1. for more speedy and effectual proceeding upon distress and avowries for rents , enacted , that when any plaintiff in replevin by plaint or writ returned , removed or depending in any of the kings courts at westminster , the defendant making a suggestion in nature of an avowry or conusance for such rent , to ascertain the court of the cause of the distress ; the court upon his prayer shall award a writ to the sheriff of the county where the distress was taken , to enquire by the oathes of 12 good and lawful men of his bailywick touching the summe in arrear at the time of such distress taken , and the value of the goods or chattels distrained ; and thereupon 15 dayes shall be given to the plaintiff , or his attorney in court , of the sitting in such inquiry ; and thereupon the sheriffs shall inquire of the truth of the matter contained in such writ by the oath of 12 good and lawful men of his county ; and upon return of such inquisition , the defendant shall have judgement to recover against the plaintiff the arrerages of such rent , in case the goods or cattle distrained shall amount unto that value ; and if they amount not to that value , then so much as the value of the said goods and cattle so distrained shall amount unto , together with full costs of suit , and shall have execution thereupon by fieri facias , or elegit , or otherwise as the law shall require . and in case such plaintiff shall be non-suit after conusance or avowry made , and issue joyned , or if the verdict shall be given against such plaintiff , then the jurors that are impannelled or returned to enquire of such issue , shall at the prayer of the defendant enquire concerning the summe of such arrears , and the value of the goods and cattle distrained . and thereupon the avowant , or he that makes conusance shall have judgement for such arrerages , or so much thereof as the goods or cattel distrained amounts unto , together with his full costs , and shall have execution for the same by fieri facias or elegit , or otherwise , as the law shall require . 2. and if any judgement in any of the courts aforesaid be given upon demurrer , for the avowant , or him that maketh conusance for any rent , the court shall at the prayer of the defendant award a writ to enquire of the value of such distresse : and upon returne thereof judgment shall be given for the avowant , or him &c. for the arreares alledged to be behind in such avowry or conusance , if the goods , or cattel so distreined amount to that value : and if they shall not amount to that value , then for so much as the said goods or cattel so distreined shall amount unto , together with his full costs of suit : and shall have like execution as aforesaid . 3. provided that in all cases aforesaid , when the value of the cattel distreined as aforesaid shall not be found to be to the full value of the arreares distreined for , that the party to whom such arreares were due , his executors or administrators , shall from time to time distrein again for the residue of the said arreares . resceipt . 1. if any tenant for life , in dower , by the law of england , or in taile after possibility of issue extinct , be impleaded , and in the reversion come into the court and pray to be received to defend his right , at the day that the tenant pleadeth to the action or before , he shall be then received to defend his right , and after such receipt the business shall be hasted as much as may be by the law without any delay whatsoever of either side : and therefore here days of grace shall be given by the discretion of the judges between the demandant and the party so received , and not the common day in plea of land , unless the demandant will thereunto consent , lest the demandants may be too much delayed , because they must plead to two adversaries . 2. howbeit they in the reversion who so pray to be received , shall find sureties for the issues of the tenements demanded for the time that the demandants be delayed after the plea determined between the demandants and tenants , if the judgement pass for the demandant against them in the reversion , as well where the receipt is counterpleaded , as where it is granted . simonie . 1. if any person or persons having election or voice in the nomination or choice of any person to have place in any church , colledge , school , hospital , hall , or other society , shall take any reward directly or indirectly , or any promise or assurance thereof directly or indirectly , for such their election or voyce , that then their election shall be void : and that then such person that hath power to dispose thereof may dispose of the same as if the person before elected were actually dead . 2. if any person of such societies take any reward or assurance thereof directly or indirectly for resigning such place , the party giving it shall forfeit the double value thereof , and the party taking it shall be uncapable of such place , and also then the party to whom such place appertaines may dispose thereof as aforesaid . 3. at every election this statute and the statutes which concern election shall be read . 4. the forfeitures which shall be by this statute , shall be divided between the queen and the prosecutor . 5. if any person for any reward or assurance thereof directly or indirectly taken , doe present or collate any person to any benefice with cure of souls , dignity , prebend or living ecclesiastical , or give or bestow the same for any corrupt consideratio , nevery such presentation , collation , gift and bestowing , and every admission , institution or investiture and induction thereupon , shall be voyd , and from thenceforth the queen , her heires and successors may present or collate thereunto , or give or bestow the same for one turn only . 6. none shall give or take any such reward , or take , or make any assurance , in pain to forfeit the double value of one years profit of such spiritual promotion , and the person taking such promotion shall be disabled in law to enjoy the same . 7. if any person for any such reward or assurance thereof , except lawful fees , admit , institute , instal , induct , invest , or place any person in any spiritual promotion , the party so offending shall forfeit the double value of one years profit of such promotion , and such institution &c. shall be void ; and then the patron or other person to whom the next gift appertaines , may present or collate thereunto . 8. howbeit no lapse shall incurr upon any such violence untill 6 monthes after notice given by the ordinary to the patron . 9. if any incumbent of any benefice with cure of souls shall corruptly resigne or exchange the same , or shall corruptly take for resigning or exchanging the same , directly or indirectly , any benefit whatsoever , both the giver and the taker thereof shall lose the double value of the benefit so had , to be divided between the queen and the prosecutor . 10. penalties inflicted by the ecclesiastical law are not taken away by this statute . 11. if any person shall directly or indirectly , take any reward or other profit or assurance thereof , ( lawful fees only excepted ) to make a minister , or to give licence to preach , he shall forfeit 20 l. and the party so made a minister 10 l. and if the party so made a minister be instituted , inducted , or installed into any benefice within 7 years after , such induction &c. shall be void , and the party having the gift thereof may present or collate , as if he were dead . 12. the forfeitures of this act shall be divided between the queen and prosecutor . spiritual persons . residence . 1. no spiritual person shall take to farme ( to himself , or any other for his use ) any lands or other hereditaments for life , year or at will , in pain to forfeit 10 l. for every moneth he so continues the same , to be divided betwixt the king and the prosecutor . 2. this act shall not extend to any spiritual person for taking to farme any temporalties ( during the time of vacation ) of any archbishopricks , bishopricks , abbeys , priories , or collegiate , cathedral or conventual churchs , nor to any such person who shall render or make traverse upon any office , concerning his freehold . 3. no spiritual person shall ( by himself or any other for his use ) buy , to sell again , any cattel , victual or merchandise whatsoever , in pain to forfeit treble the value thereof , to be divided betwixt the king and the prosecutor , and every such bargain shall be void . 4. howbeit a spiritual person may buy horses , mares , cattle or other goods for his necessary use and employment , and in case they happen not to fit for his turn , may sell them again , so as this be done without fraud or covin . 5. also abbots , priors , abbesses , prioresses , provosts , presidents and masters of colledges and hospitals , and all other spiritual governours and governesses of any houses of religion , lands of the yearly value of 800 marks , or under , may use and occupy so much thereof for the maintenance of their houses , as they or any of their predecessors have done within 100 years last past , notwithstanding this act. 6. likewise spiritual persons not having sufficient glebe or demesne lands in right of their churches or houses , may notwithstanding this act , for the only expences of their houses , and for their carriages and journeys , take in farm other lands , and buy and sell corn and cattel for the only manurance and pasturage of such farms , so as if it be done for such purposes only without fraud or covin . 7. if any person , having a benefice with cure of souls of the yearly value of 8 l. or above , accept another with cure of souls , and he be instituted and inducted in possession of the same , immediately upon such possession thereof the first benefice shall be adjudged void , and then it shall be lawful for the patron thereof to present another , as if the incumbent had died or resigned ; any license , union , or other dispensation to the contrary notwithstanding . 8. every license , union or other dispensation obtained contrary to this act shall be void , and none shall obtain from rome or elsewhere any license , union , or toleration to receive any benefice with cure , in pain of 20 l. to be divided between the king and prosecutor . 9. provided , that every spiritual person of the kings councel may purchase license or dispensation to keep three benefices with cure ; and the chaplains of the king , queen , kings children , brethren , sisters , uncles or aunts may so keep each of them two . 10. also an archbishop and duke may have each of them six chaplains ; a marquess and earl five ; a vicount and other bishop four ; the chancellor , baron , and every knight of the garter three ; every dutchess , marchioness , countess and baroness , being widows , two ; the comptroller and treasurer of the kings houshold , the kings secretary and dean of his chappel , the kings almoner and master of the rolls , each of them two ; and the chief justice of the kings bench , and warden of the cinque ports , each of them one : and each of the said chaplains may purchase a licence or dispensation to keep two benefices . 11. likewise the brothers and sons of temporal lords born in wedlock , may purchase such license or dispensation to keep as many benefices with cure as the chaplains of a duke or arch-bishop ; and the brethren and sons of a knight born in wedlock may keep two . 12. provided , that the aforesaid chaplain shall exhibit ( where need shall be ) letters under the sign or seal of the king , or other their lord and master , testifying whose chaplain they be , or else not to enjoy such plurality of benefices . 13. also doctors and bachellors of divinity , doctors of law , and bachellors of law canon , admitted to their degrees by any of the universities of this realm and not by grace only , may purchase such license to keep two benefices with cure . 14. and because arch-bishops must use ( at the consecration of bishops ) eight chaplains , and bishops ( at giving of orders , and consecration of churches ) six , every of them may have two chaplains above the number limited . 15. every spiritual person that is advanced ( by colour of this act ) to keep more benefices with cure than is above limited , shall incurr the penalty above provided by this act. 16. every spiritual person promoted to any arch-deaconary , deanary , or dignity in a monastery or cathedral church , or other church conventual or collegiate , or being beneficed with any parsonage or vicarage , shall be personally resident and abiding upon his said dignity , prebend or benefice , or at one of them at least , in pain to forfeit for not being resident by the space of a month together or of 2 months ( to be accounted at several times in one year ) 10 l. to be divided betwixt the king and the prosecutor . 17. none shall obtain from rome ( or elswhere ) any licence or dispensation for non-residence , in pain of 20 l. to be forfeited as aforesaid . 18. howbeit this act shall not extend to any spiritual person in the kings service beyond sea , or upon any pilgrimage beyond sea , during the time that he shall be in the kings service , or upon the said pilgrimage , nor to any scholar abiding for study without fraud at any university within this realm , nor to any of the king or queens chaplains in ordinary , neither yet to any of the abovesaid chaplains which shall daily attend upon their lord or masters housholds , so long as they so attend without fraud , nor to the master of the rolls , or dean of the arches , the chancellor , or commissary of any arch-bishop or bishops , the 12 masters of chancery , or 12 advocates of the arches ( being clergy men ) so long as they execute their offices or places , or to any spiritual person being compelled by the injunction of the lord chancellor , or the kings council , to daily appearance to answer the law , so long as he shall be so enjoyned . 19. also a spiritual person ( being the kings chaplain ) may accept ( of the kings gift ) any benefices to what number soever without incurring the penalty of this act ; and also the king may licence his chaplains for non-residence upon their benefices , notwithstanding this act . 20. no spiritual person shall take in farme any parsonage or vicarage in pain to forfeit 40 s. for every week he or any other ( for his use ) so occupies the same , and also ten-times the value of the profit or rent that he makes thereof ; both which forfeitures are to be divided between the king and prosecutor . 21. provided , that no deanary , arch-denary , chancellorship , treasurership or chantership or prebend in any cathedral , or collegiate-church , nor parsonage that hath a vicar endowed , nor any benefice perpetually appropriate , shall be taken to be a benefice with cure of souls . 22. no spiritual person or any other for his use shall keep any tun-house or brew-house in pain to forfeit for every moneth so keeping the same 10 l. to be divided as aforesaid : howbeit he may make a brew-house for his own private use . 23. every duchess , countess , marchioness or baroness , being widdowes , shall retaine their priviledges concerning chaplains , notwithstanding intermarriages with other persons of lower degree . 24. all spiritual persons having possessions in right of their houses ( above the value of 800 markes ) may keep so much thereof as may be necessary for the maintenance of their houshold , notwithstanding this act , or may take a dwelling house with orchards and gardens for their dwelling , so as by colour thereof they take not liberty to be non-resident . 25. every spiritual person above the age of 40 years , ( the chancellor , vice-chancellor , comessary , rulers of colledges and halls , doctors of the chair , and readers of divinity in either of the universities onely excepted ) shall be resident upon one of their benefices according to the statute of 21 h. 8. 13. upon pain therein provided for non-residence . 26. also every beneficed person under the age of 40 years abiding in either of the universities shall not enjoy the priviledge of non-residence provided by the said statute of 21 h. 8. 13. unless he be present at ordinary lectures both in the house and schools , and in his proper person performe the exercises according to the statutes of the university where he so abides . 27. this statute shall not extend to any reader of any publick lecture in divinity , law , physick , philosophy , or humanity , or any of the literal sciences , nor to interpreters or teachers of the hebrew , chaldee , or greek tongues in either of the universities , nor yet to any person who shall repair thither to proceed doctor in divinity , law , physick , for the time of their proceedings there , according to the statutes of the said universities . trial. 1. in any action where the life or death of any person who hath remained beyond sea , or hath absented himself by the space of 7 years , shall come in question between the lord , or reversioner or tenant , the said reversioner or lessor may take exception to any of the jurors that his real estate is held by lease or coppy for lives , who upon proof shall be set aside as in other challenges . 2. a tales de circumstantibus may upon enquest for the king or queen by any authorised thereunto , or assigned by the court , or upon request by the prosecutor or his atturney , and by the command of the justices of assise or nisi prius in a suit commenced upon a penal statute . 3. in case the plaint ’ , or defend ’ refuse or forbear to pray a tales , it shall be granted by the justices of assise in england , and by those of oyer , and terminer in wales , chester , lancaster , and durham , at the prayer of the defend ’ or tenant , and that as well in suits upon penal laws as upon other tryals . vses . 1. where any person or persons stand or are seised of any honours , mannors , lands , tenements , rents , services , reversions , remainders , or other hereditaments to the use , confidence or trust of any other person or persons , or of any body politik , by reason of any bargain , sale , feoffment , fine , recovery , covenant , contract , agreement , will , or otherwise , in every such case , every such person and persons and body politick having such use , confidence and trust in fee-simple , fee-taile , for life or years , or otherways , or any use , confidence or trust in remainer or reversion , shall stand and be seised , deemed and adjudged to be in lawfull seisure , estate and possession of and in the honours , castles , &c. with their appurtenances of and in such like estates as they have in use , trust or confidence of or in the same : and the estate , right , title and possession of such person or persons as are seised of any lands , tenements or hereditaments to the use , confidence or trust of any such person or persons , or body politick , shall be deemed and adjudged to be in him or them , that have any such use , confidence or trust , of any such quality , manner or form or condition as they had before in or to the use , confidence or trust , that was in them . 2. when divers persons are so seised to the use , confidence or trust of any of themselves , they amongst them that have such use or trust shall likewise have the seisin , estate and possession in such quality , manner and condition as they had the use or trust . 3. howbeit the right , title &c. of all other ( except the person so seised to any use or trust ) is saved , and all former right , title &c. is also saved to them . 4. where any be seised to any use or intent , that another shall have a yearly rent out of the same lands cestuy que use of the rent shall be deemed in the possession thereof , of like estate as if he or she had the use , and shall distrain for non-payment of the said rent , and make avowrys , conusances and justifications , and use all other remedyes therein , as if the rent had been actualy granted to cestuy que use . vtlagary . 1. in every action personal , where an exigent shall be awarded , a writ of proclamation shall also be awarded and issue out of the same court of the same teste , and return with the exigent , and shall be delivered of record and directed to the sheriff of the county , where the defend ’ at the time of the exigent was dwelling , and shall contain the effect of the same action . 2. the sheriff shall thereupon make 3 proclamations , viz. one at a full county , another at the sessions , and the last one moneth at least before quint. exact . by virtue of the exigent at or near the church or chappel door of the parish , where the defend ’ was dwelling at the time of awarding the exigent , upon a sunday after divine service and sermon , or in case there be no sermon , after divine service ; and if he dwell in no parish , then in the parish next adjoyning to his place of abode ; and all outlawries otherwise had shall be void . 3. the officer for making the exigent and proclamation may take such fees for the same as are limited by the statute of 6 h. 8. 4. and the sheriff for making proclamation at the church door shall have 12 d. 4. in real actions , after summons upon the land ( 14 days at least before the return thereof ) proclamation of the summons shall be made upon a sunday , in forme aforesaid , in the parish where the land lies ; which proclamation shall be returned with the names of the summoners . 5. if the summons be not so proclaimed , no grand cape shall be awarded , but an alias and pluries summons , until a summons and proclamation be made according to this act. 6. before allowance of a writ of error , or reversing of an outlawry by plea or otherwise , the defend ’ in the original action shall put in bail , to appear and answer the plaint ’ , and also to satisfie the condemnation , if the plaint ’ begin his suit before the end of two terms next after the allowance of the said writ , or avoiding the outlawry . finis . notes, typically marginal, from the original text notes for div a39612-e7310 4 h. 7. c. 20. 31 el. c. 5. 21 jac. c. 4. 18 el , c. 5. notes for div a39612-e7710 9 h. 5. c. 4. 4 h. 6. c 3. 8 h. 6. c. 12. 8 h. 6. c. 15. 27 el. c. 5. notes for div a39612-e7980 9 r. 2. c. 3. 23 h. 8. c. 3. notes for div a39612-e8360 4 h. 4. c. 14 29 el. c. 5. 3. el. c. 10. notes for div a39612-e8530 7 h. 8. c. 4. 21 h. 8. c. 15. 21 h. 8. c. 19. notes for div a39612-e8720 13 car. 2. sess . 2. c. 2. notes for div a39612-e8870 13 el. c. 7. 1 jac. c. 15. 21 ja. c. 19. 14 car. 2. c. 24. notes for div a39612-e9450 82 h. 8. c. 38. marriage notes for div a39612-e9520 1 h. 5. c. 5. 13 c. 2. sess . 2. c. 2. delays in execution . notes for div a39612-e9760 21 iac. c. 8. notes for div a39612-e9810 32 h. 8. c. 34. notes for div a39612-e9870 24 h. 8. c. 8. 43 el. c. 6. 4 jac. c. 3. 13 car. 2. sess . 2 c. 2. 22 , 23 car. 3. c. notes for div a39612-e10100 1 e. 6. c. 7. notes for div a39612-e10220 13 r. 2. c. 5. confirmed by 2 h. 4. c. 11. notes for div a39612-e10360 3 h. 7. c 10. confirmed by 19 h. 7. c. 20. 23 h. 8. c. 15. 8 el. c. 2. 43 el. c. 6. notes for div a39612-e10650 10 h. 6. c. 4. confirmed by 18 h. 6. c. 9. notes for div a39612-e10720 32 h. 8. c. 1. 34 , 35 h. 8. c. 5. notes for div a39612-e10880 11 h. 7. c. 20. notes for div a39612-e10950 2 , 3 h 6. c. 13. notes for div a39612-e11280 27 h. 8. c. 10. notes for div a39612-e11350 32 h. 8. c. 33. 19 car. 2. c. 11. notes for div a39612-e11470 9 r. 2. c. 3. 16 car. 2. c. 2. 16 , 17 car. 2. c. 8. 17 ca● . 2. c. 8. death after verdict . 20 car. 2. c. 4. exchequer . notes for div a39612-e12070 5 el. c. 23. notes for div a39612-e12480 3● h. 8 c. 5. 3 jac. c. 8. 21 jac. c. 24. 16. 17. c. 2 c. 5. 17 car. 2. c. 8. notes for div a39612-e12890 31 el. 3. c. 11. 21 h 8. c. 5. 22 , 23 car. 2. c. 10. 4 e. 3. c. 7. 35 e. 3. c. 5. 21 h. 8. c. 4. notes for div a39612-e13190 1 r. 3. c. 7. 4 h. 7. c. 24. 32 h. 8. c. 36. notes for div a39612-e13500 13 el. c. 5. 27 el. c. 4. notes for div a39612-e13770 2 h. 5. c. 2. corpus cum causa . 43 fl. c. 5. 21 jac. c. 23 notes for div a39612-e13980 27 el. c. 13. notes for div a39612-e14090 27 h. 8. c. 16. notes for div a39612-e14200 20 r. 2. c. 3. justice of assise . notes for div a39612-e14260 4 h. 4. c. 23. notes for div a39612-e14300 5 h. 4 c. 8. notes for div a39612-e14360 2 h 5. c. 3. notes for div a39612-e14410 32 h. 8. c. 2. 1 p & m. sess . 2. c. 5. 21 jac. c. 16. notes for div a39612-e14820 32 h. 8. c. 9. notes for div a39612-e14910 31 el c. 12. notes for div a39612-e14980 2 h 4. c. 7. 13 car. 2. sess . 2. c. 2. notes for div a39612-e15100 23 h. 6. c. 10. notes for div a39612-e15170 5 e. 6 c 16. grant. 7 jac. c. 5. pleading . costs . 21 jac. c. 12. 14 car. 2. c. 21. sheriffs . notes for div a39612-e15690 31 h. 8. c. 32 h. 8. c. 32. notes for div a39612-e15810 36 e. 3. c. 15. 13 el. c. 6. notes for div a39612-e15970 43 el c. 12. 14 car. 2. c. 23. notes for div a39612-e16200 32 h. 8. c. 28. a fair leases . 1 eliz. c. 9. 13 el. c. 10. 18 el. c. 11. 1 jac. c. 3. notes for div a39612-e16600 19 h. 7. c. 9. 13 car. 2. sess . 2. c. 2. notes for div a39612-e16730 23 h. 8. c. 9. citation . notes for div a39612-e16810 23 h. 8. c. 6. notes for div a39612-e17040 21 h 8. 15. 34 & 35 h. 8. c. 20. notes for div a39612-e17220 23 h. 8. c. 37. notes for div a39612-e17330 32 h. 8. c 30. notes for div a39612-e17390 17 ca● . 2. c. 7. notes for div a39612-e17540 13 r. 2 c. 17. notes for div a39612-e17620 31 el. c. 6. notes for div a39612-e17800 21 h. 8. c. 13. 28 h. 8. c 13. notes for div a39612-e18160 19 car. 2. c. 11. challenge . 4 , 5 p. m. c. 7. tales . 14 el c. 9. notes for div a39612-e18360 7 h. 8. c. 10. notes for div a39612-e18480 31 el. c. 3. amicus reipublicæ. = the common-wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. with many other things very considerable for the good of the publick. all which are fully controverted and debated in law. by john march of grayes-inne, barister. march, john, 1612-1657. this text is an enriched version of the tcp digital transcription a89519 of text r202857 in the english short title catalog (thomason e1360_1). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 155 kb of xml-encoded text transcribed from 88 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a89519 wing m574 thomason e1360_1 estc r202857 99863013 99863013 115195 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a89519) transcribed from: (early english books online ; image set 115195) images scanned from microfilm: (thomason tracts ; 179:e1360[1]) amicus reipublicæ. = the common-wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. with many other things very considerable for the good of the publick. all which are fully controverted and debated in law. by john march of grayes-inne, barister. march, john, 1612-1657. [16], 160 p. printed by will. bentley, for francis eglesfield, at the marygold in s. pauls church-yard, london : 1651. the first leaf is blank except for fleuron. running title reads: the common-wealths friend. annotation on thomason copy: "may. 19". reproduction of the original in the british library. eng law -england -early works to 1800. a89519 r202857 (thomason e1360_1). civilwar no amicus reipublicæ. = the common-wealths friend: or an exact and speedie course to justice and right, and for preventing and determining of march, john 1651 28734 27 0 0 0 0 0 9 b the rate of 9 defects per 10,000 words puts this text in the b category of texts with fewer than 10 defects per 10,000 words. 2007-04 tcp assigned for keying and markup 2007-04 aptara keyed and coded from proquest page images 2007-08 robyn anspach sampled and proofread 2007-08 robyn anspach text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion amicus reipublicae . the common-wealths friend . or an exact and speedie course to justice and right , and for preventing and determining of tedious law-suits . with many other things very considerable for the good of the publick . all which are fully controverted and debated in law . by john march of grayes-inne , barister . interest reipublicae ut sit finis litium ▪ london , printed by will . bentley , for francis eglesfield , at the marygold in s. pauls church-yard . 1651. to the right honourable john bradshaw serjant at law , lord president of the councel of state . right honourable , when i had considered the meaness and weakness of this poor indeavour of mine , and your lordships depth of judgement and understanding ; i was extreamly disheartened and even ashamed to present it to your lordships view and consideration ; much more to begge your lordships patronage for it . but when i had likewise considered , what a sweet harmony of justice , honour , and integrity resides in your lordships breast , and how much you preferre the common good and welfare , before all private interests and relations whatsoever , and not doubting but your lordship might find somewhat in it corresponding with that noble , and truely generous publick spirit of yours ; i was then again imboldened to prostitute it before your lordships feet , humbly begging your patronage and protection for it ; and i the rather presumed upon it , because i know it will meet with enemies enough in these times ; such as love not changes or alterations , though for the better , and such i shall not need to care for , or fear ; so your lordship will deign to accept of it , and receive it into your favour ; which if your lordship shall be pleased to do , and to pardon the imperfections of it , it will be a great honour and incouragement to him , who desires nothing more , than to subscribe himself ( what indeed he is ) your lordships , and the common-wealths most humble servant . jo . march . to the reader . reader , when i considered long with my self , what happy times it had pleased god to let us injoy ; i mean these happy times of reformation ; in which men have liberty to discover truths , and to reason what may most tend to the good of the common-wealth ; and in which we have so many patrons , protectors , and advancers of justice , that , which is the onely supporter of all common-wealths and governments whatsoever . and when i had further considered , that somewhat , nay i may say , as much as the present extremities will permit , had been done by our parliament for correction , and amendment , or total expunging of some ill laws ; and much more indeavoured , which i doubt not will be accomplished in due time . i thought it my duty to cast my mite into this treasury ; and to declare and set forth somethings of our law worthy of serious consideration , and ( if i mistake not ) of reformation too . that which i offer is against some ancient practises or proceedings , and against some principles of our law ; and here i know it will be said to me , that contra negantem principia non est disputandum ; they are of so high a nature they ought not to be discussed ; especially having been ancient received uncontrolled laws in all ages . to this first i say , that a common error cannot make a law , no more than custom against reason ; there is no building of a law where reason is not the foundation . and therefore i hope , that if all , or any of those things which i have offered to consideration , shall be found light in that ballance , that they will find no allowance or approbation . but here some will say to me , as my lord cook saith upon the like occasion , qui rationem in omnibus quaerit , rationem confundit . to whom i say , that this may hold well in some things , and in some arts and sciences ; but , under favour , it ought not to be so in law ; law , if it be just and reasonable , binds men to obedience and submission thereunto , but it is unjust and tyrannical , and obliges not to submission , if it be unreasonable ; and that law must needs be suspected to be such , the reason whereof must not be inquired into . and littleton fol. 89. saith , that per rationes pervenitur ad legitimam rationem , reasoning is the way to find out the legall reason : and so likewise it is to discover the unjustness or opposition of any law to the common good . we have one rule in law , that the publick good and wel-fare is to be preferred before the private , and certainly that law that crosses that rule , is a very unjust and unequal law . all laws ought to have this for their basis , and their onely end and aim , the common good and safety . and that law is most rational , which looks most that way . and therefore certainly it is no confounding of reason ▪ but rather the advanceing of it to its perfection , to lay the law to this line , to put it to this tryal ; whether such or such a law , be most for the publick good and wel-fare , or not ? if it be , to continue it , if not , to abrogate and null it . we have another rule , that interest reipublicae ut sit finis litium . and i am certain , that you will find some of those things , which i have offered to consideration , ( that , as it much concerns the common-wealth , that strifes and controversies be ended , that peace and unity may be preserved : ) much tending to that end , and agreeable with that rule . and certainly that law , which most avoids and provides against contentious suits , and most indeavours the support of peace and quiet in a common-wealth , is the best and most reasonable law . and now to conclude , reader , i know that by this small work i shall contract the odium and ill will of many of my profession , who will cast in my teeth , that this is a bewraying of my own nest ; and a slinging dirt into the faces of our great and learned sages of the law ; or rather into my mothers face , whose milk i have suckt , and by whom i have been educated , and brought up to some small understanding thereof . to such i shall say ; that none more honours the law than my self , which i take in the general , to be as just and as perfect as any humane law in the world , yet i cannot judge it so absolutely perfect , as to have no fault or blemish in it , for that were to attribute absolute and infallible perfection in judgement to the makers ; which we know is not to be found on earth in any humane race . you know what the apostle saith , the first of the cor. 13. 9. for we know in part , &c. and if we know but it part , certainly our actions must needs be full of imperfection . and i hope none will judge me to love my studdy the less , because i desire to keep it clean ; gold is the purer for being refined : and the tree grows the better for pruning , and cutting off the exuberant and unnecessary branches , which suck the sap from the body , and are useless for any thing , but the fire themselves . if we have any hard and unreasonable branches of law , it is just to take them away , to lop them off , the body of the common-wealth will thrive the better ; and if that flourish , certainly lawyers must thrive too , and be in as great reputation as ever . for no living without law , and no better or more just law in the generall in the world , than the municipal law of england ; he approves the use , that labours to take away the abuse . nor am i single or alone in this indeavour of mine ; some have gone before me , and i doubt not others will follow , in a work of so great consequence , and tending so much to the common good . but not to hold you too long in an epistle , where the work is but short , if any notwithstanding what i have said , shall be offended with me ; it shall not much trouble me ▪ for i am resolved to be a friend to the common good , while those men seek their own good onely . i shall say no more but this ; amicus plato , amicus socrates , sed magis amica respublica ; onely i shall subscribe my self the faithfull friend and servant of the common-wealth of england . j. march . a table of the several questions . 1. whether it be reasonable , that he , who is seized of lands in fee-simple , to him and his heirs by descent , or gift , should have the absolute disposing power of the whole , and to disinherit his heirs ? pag. 2. 2. tenant in tail , with remainders over , suffers a common recoverie , whether this in law , or conscience , ought to bind the issue in tail , and the remainders over ? pag. 7. 3. whether it be consonant to reason , conscience , or for the good of the common-wealth , to arrest mens persons , and to detain them in prison for debt ? pag. 35. 4. whether the high court of chancerie , as the practice is there , be not a very great grievance , and burthen to the common-wealth ? pag. 55. 5. whether collateral warrantie stands with reason and conscience or no . pag. 68. 6. whether it be consonant to reason or conscience , that any mans plea should be adjudged nought , and avoided at any time for any matter of form , false latine , double plea , departure , or any other defect whatsoever , the case and matter it self sufficiently appearing upon the record , for which the action is brought ? pag. 74. 7. whether the many sorts of tedious and long conveyances now in use , stand with reason , and the good of the common-wealth or not ? pag. 85. 8. whether it be a just and reasonable law , that a child , born before marriage , and shortly after marriage happening , should be a bastard or not ? pag. 92. 9. whether tryal by jurie , as it is now in use , be agreeable to reason , and for the good of the publick or not ? pag. 99. 10. whether it be consonant to the word of god , or reason , that a man should lose his life for theft , and should incur so great a forfeiture and penaltie , as loss of all his estate , and corruption of his bloud . pag. 105. 11. whether it be a just and reasonable law that infants , under the age of twentie one years , shall not be charged with their debts ? pag. 112. 12. whether clergie be agreeable to reason and justice or no ? pag. 117. 13. whether the law , that a man shall not suffe death for man-slaughter , be not against the word of god ? pag. 122. 14. whether it be a reasonable law , that a man shall not have counsel upon an indictment of treason or felonie ? pag. 126. 15. whether actions for slanderous words , being meer contentious suits , ought in reason or conscience to be so much countenanced as they are ? pag. 129. 16. whether it be a reasonable law , that actions personal should die with the person ? pag. 134. 17. whether the law of judgement of penance , or pain fort & dure , against a man who is indicted of felonie , and stands mute , be agreeable to reason and conscience or not ? pag. 137. 18. whether the law of forfeiture of goods vvrecked at sea , be a reasonable law or not ? pag. 150. 19. good advise in case of making last vvills and testaments . pag. 155. amicus rei-publicae . the common-wealths friend . the first thing that i have purposed to discisse or treat of , is touching him that is seized of lands in fee-simple , and his disposing thereof ; and therein i shall onely propound this short question , that is ; whether it be reasonable , that he who is seized of lands in fee-simple , to him and his heirs , by descent , or gift , should have the absolute disposing power of the whole , and to disinherit his heirs . i do acknowledge the law to be , that he may dispose of the whole at his pleasure , and that a condition annexed to restrain him from it , is nought . for it is against the absolute purity of a fee-simple , that he should not have power to alien it . litt. sect. 360. for if such condition should be good saith litt. then it ousts him of all the power which the law gave him , which should be against reason , and therefore the condition is void . but if the condition were such , that the feoffee shall not alien to such a one , naming his name , or to any of his heirs , or of the issues of such a one , &c. or the like , which conditions do not take away all the powr of alienation , such condition is good . another reason that such condition is nought , is , because that he , who hath departed with all his estate to another , and hath no hopes of reverter , may not in reason annex such a condition to restrain the feoffee or alienee from such alienation . this i allow to be the law ; yet i beseech you give but leave to examine these things according to right reason , and judge according to that which may make most for the good of the common-wealth , and then i conceive it will be thought very hard , that any man should have an absolute disposing power of the whole , and disinherit his heirs . i intend this onely of a fee-simple descended from an ancestor to another , or of a gift to a man and his heirs ; for in case where a man , through his own labour and industry , hath purchased such an inheritance , it seems more reasonable for him to have the absolute disposal of it as he shall think fit ; for i know no reason , but that he who bought , may sell ; but where land descended to me , or was given to me and my heirs , in such case , for me to rob my heir of all that i never laboured for , and to give it to a stranger , seems to me unreasonable . i say , that he should have an absolute disposing power of the whole , seems unreasonable , but that he should have power to dispose 2 parts seems to stand with reason , so he leave the third part to descend ; for otherwise he shall be utterly unable to make a joyncture for his wife , to advance his children in marriage , or to pay his debts ; all which , a man is bound in conscience to do : therefore it were very unreasonable that he should be so fettered and bound in his estate , that he were not able to perform them . i am not ignorant , that when i give lands to a man & his heirs , the law saith , that the word [ heirs ] is by way of limitation , not of purchase ; yet when an estate so descends , or is given as aforesaid , the heir by the intention of the ancestor , and the donor , ought to have an estate in point of interest , as also in conscience , after the death of his father . for if a man should demand of such a one who intends to leave his lands to descend to an heir , or of the donor , whether he intended that his heir , or the donor should sell or give away the estate so descended or come , through their goodness , care , and providence , to a stranger , i know their answer would be , that they intended not a disinherison of the heir , but that the estate should descend & go to their heirs ▪ with the same freedom it descended or came to them ; but i would not be-mistaken , for i intend onely a third part to descend , for the reason aforesaid . but now let us examine the reason of the law afore-said ; and where the inconvenience lies . the reason is , that 't is against the purity and absoluteness of a fee-simple , not to have such disposing power ; where lies the inconvenience , that it is against a maxim of law ; nothing of prejudice either to the publick , or to any private or particular person . and then examine the reason of the other side , why such a tenant in fee-simple should have power onely to dispose of two parts , and leave the third to descend to his heir : because , it would agree with the intention of the ancestor , and likewise prevent the beggering of the heir , a thing too common with profuse and prodigal ancestors in these daies . so that i conceive it is evident to you , that the inconvenience lies on this side , and whether it is better to continue a maxim without reason ; or to alter it upon good grounds , i leave to the consideration of our sages ; and of this onely thus much ; the next thing i have to treat of is , common recoveries ; concerning which i shall propound this short case and question . tenant in tail , with remainders over , suffers a common recovery , whether this in law , or conscience , ought to bind the issue in tail , and theremainders over ? it is true , that through custom and long continuance , this is now become the common assurance of the land ; and i am not ignorant that this point received a full resolution by the other judges in marie portingtons case , in my lord cooks tenth book , that such recovery was good and binding , not onely to the issue in tail , but those in remainder likewise . yet i hope a man may now with freedom dispute it , since all conscionable honest men , that ever i met with , oppose it ; and i dare say , that policy and private interest first made this conveyance lawfull , or at least to seem so . and being that in the discourse of this case , it will be necessarie to know what the law was before the stat. of 13. e. 1. of intails , and the mischief of that law , which caused the making of that stat. for a remedy ; it will not be amiss if i cite the stat. wherein we shall find both the one and the other ; the mischief , and the remedy ; and then it will be easie to judge whether the mischief against which the act of 13. e. 1. was provided , doth not still continue by common recoveries , notwithstanding the remedy . but before i cite the stat. i cannot but put you in mind , that it hath been desired and proposed by some in print ( who either never read the said stat. or did not well understand it ) that the said stat. might be taken away ; the mischief at the common law revived , and the remedy suppressed . all that i shall say to such , is , that that law ( if we will believe our judges and sages of the law ) was made by very sage and wise men ; & therefore we ought to judge it to be made upon very good grounds and reasons , and so not to be repealed without better reason ; but i need say no more , for i doubt not you will find upon the reading of it , that it was made upon solid and profound reason , and so not to be altered upon any clarks or attornies motion . 13. e. 1. cap. 1. in gifts in tail the donors will shall be observed . first concerning lands , that many times are given upon condition , that is to wit , where any giveth his land to any man and his wife , and to the heirs begotten of the bodies of the same man and his wife , with such condition expressed , that if the same man and his wife die without heirs of their bodies between them begotten , the land so given should revert to the giver or his heir . in case also where one giveth lands in free marriage , which gift hath a condition annexed , though it be not expressed in the deed of gift , which is this , that if the husband and wife die without heir of their bodies begotten , the land so given shall revert to the giver or his heir . in case also where one giveth land to another , and the heirs of his body issuing , it seemed very hard , and yet seemeth to the givers and their heirs , that their will being expressed in the gift , was not heretofore , nor yet is observed . in all the cases aforesaid , after issue begotten and born between them ( to whom the lands were given under such condition ) heretofore such feoffees had power to alien the land so given , and to disherit their issue of the land , contrary to the minds of the givers , and contrary to the form expressed in the gift . and further , when the issue of such feoffee is failing , the land so given , ought to return to the giver , or his heir , by force of the gift expressed in the deed , though the issue ( if any were ) had died : yet by the deed and feoffement of them ( to whom land was so given upon condition ) the donors have heretofore been barred of their reversion , which was directly repugnant to the form of the gift . wherefore our lord the king , perceiving how necessary and expedient it should be to provide remedy in the foresaid cases , hath ordained , that the will of the giver , according to the form in the deed of gift manifestly expressed , shall be from henceforth observed : so that they , to whom the land was given under such condition , shall have no power to alien the land so given , but that it shall remain unto the issue of them to whom it was given after their death , or shall revert unto the giver , or his heirs , if issue fail ( whereas there is no issue at all ) or if any issue be , and fail by death , or heir of the body of such issue failing , &c. and if a fine be levied hereafter upon such lands , it shall be void in the law , and no claim needs , &c. here i have faithfully cited you the stat. word for word ; and what the common law was before the making of this stat. is apparent . estates now by force of that stat. called intails were at the common law fee-simple conditional . so that a man having such an estate before this stat. had power after issue had , to alien , and by that to barre the issue , and likewise him in reversion , and this is said by the stat. expresly to be contrarie to the minds of the givers , and contrary to the form expressed in the gift , and this was the great mischief at the common law . then comes this stat. and provides against the said mischief , that the will of the donor shall be observed , and that such donees in tail shall have no power to alien to barre their issues , or him in reversion . now certainly the best way of argument is upon the law it self , and that is pregnant and plain , that the donee after this stat. had no power to alien to barre his issue , or him in reversion . now i beseech you to what end was this stat. if notwithstanding a donee in tail might by a recovery barre his issue and him in reversion ; certainly had any such thing been known then , as a recovery , it would have been provided against as well as a fine , or otherwise a man might well question the wisdom of the makers of the law , notwithstanding they have received so great an applause by our sages of the law . the law hates vain and unprofitable things ; and had recoveries been known then , and not provided against , certainly no law could be more vain and unprofitable . but now to come to marie portingtons case in cooks tenth book , where this case is largely debated ; there you shall find the original of these common recoveries . there by those that argued against them , 't is said that 't was not invented till 12. e. 4. taltarum's case , that such recoveries should bind the estate tail upon a pretence of a fained recompence . to which it was said by the court upon judgement given , that judgement given against tenant in tail , with voucher and recompence in value , shall bind the estate tail , notwithstanding the said act of 13. e. 1. be the recovery upon good title , or not ; and that the judgement given in such case for the tenant in tail to have in value binds the estate tail , though that no recompence be had . and this they say was law in e. 3. time , for which they cite these books ( but here observe by the way , that those recoveries were not invented before that time , as themselves do agree , and of what validity such new invention can be against a stat. expresly against any alienation in such case , let any rational man judge . ) but for the cases they have cited , 15. e. 3. tit. brief . 324. by recovery in value by tenant in tail , the estate tail is barred , and he shall have a formdon of the land so recovered in value , with which agrees 42. e. 3. 53. and 44. e. 3. 21 , 22. octavian lumbards case , tenant in tail grants a rent charge to one who hath right to the land in tail for a release , it shall bind the issue , 48. e. 3. 11. b. jeffrey benchers case recovery in value by tenant in tail , shall bind the tail , and a formdon lies of the land recovered in value , with which agrees . 1. e. 4. fol. 5. 5. e. 4. 2. 6. for these books thus cited , that such recovery shall bind the issue in tail ; they are to be understood of a recovery upon good title , and of a real , not a fained recompence , for they all agree , that a form-don will lie of the land recovered in value ; so that it cannot be intended of a fained and pretensed recompence . i would fain know of any man , whether ever he heard of any action brought upon such recovery in value , as recoveries are now used ? are they not become the common course , and common way of conveyance for to barre estates in tail , and to cut off all remainders , without any possibility or expectance of recompence in value ? and do not the judges say before that it shall bind be it upon good title , or not , and though that no recompence be had ? so that a pretensed recompence by them must carry away a clear title , and defeat the stat. and the intention of the donor ? so that i do conceive , notwithstanding those books , that such recoveries should bind the estate tail upon a pretence of a fained recompence , was not till 12. e. 4. taltarums case . and the case of octavian lumbard , before cited agrees with this difference , between a real , and a fained recompence ; for i do agree , that a recovery upon good title , and a real recompence will barre the estate tail . the case of lumbard , that a grant of a rent by tenant in tail to one that claims a right to the land intailed , shall barre the issue , is , without question , good law , for this is to preserve the estate tail , and this is no fained but a real recompence ; not so in our case . besides , suppose those books should be intended ( as i conceive they cannot ) of a fained recompēce ; can any man say that any use or custom is good against a stat. had such fained recoveries been in use at the time of the making of the stat. of 13. e. 1. which no man doth , or can say , somewhat more might have been said for them ; but being invented after , it cannot be with reason that they should be of force to frustrate , yea , and nul , upon the matter , the stat. made before : and certainly ( as i have said before ) the makers of that law would have provided against this mischief as well as fines , had such recoveries been then in being , for otherwise vain and fruitless was that law , as indeed it is at this day . again , by those that argued against common recoveries in marie portingtons case ; it is said , that such recoveries are by divers acts of parliament marked and branded with the blemish of fiction and falsity ; as in the stat. of 34. h. 8. cap. 20. they are stiled fained and untrue recoveries ; and so in the stat. of 11. h. 7. cap. 20. 32. h. 8. cap. 31. and 14. el. cap. 8. they are named covenous , and had by collusion ; and therefore it stands with law and reason to provide for the preservation of reversions and remainders , against such fained and false and covenous recoveries . to this objection , and these stat. this answer is given ; and first it is said , that common recoveries is one of the main pillars , which supports the estates and inheritances in the state ; that is , reader : they must unjustly , ( because contrarie to the stat. and the form of the gift ) take away one mans inheritance , and establish or settle it in another , and this is called one of the main pillars of inheritances . but to the statutes ; for that of 34. h. 8. it is of gifts in tail by the king to his servants and subjects , for to incourage others and their issues , and therefore recoveries suffered by such tenants in tail , are well taxed by parliament to be fained and untrue , because they did take away the intention of the king . to which i answer , that they are so termed by that stat. not in relation onely to the defeating of the kings intention , but because they are so in themselves fained and untrue . besides are they so termed , because the intention of the king was thereby defeated ; why ? where there is the same reason , there ought to be the same law ; and in this case , is not the apparent intention of the donor in his gift defeated by such recovery contrary to the stat. which saith , that the will of the donor shall be observed . but it is further said in that case , that confirmat usum qui tollit abusum ; and that it was a barre in that case before that act of 34. h. 8. made to the contrarie ; certainly if it were an abuse in the kings case , it is no other in a common persons , and it were very happy if an act were likewise made against them in our case ; that we might not have them known for the future . for the stat. of 11. h. 7. when a woman advanced by the husband with a competent joyncture in tail suffers a recovery to barre the issues , this may well be said to be by covin. now i beseech you weigh the cases in the ballance of reason , and then judge whether they differ or no . is it not as much covenous for any tenant in tail who takes such estate to him and his issues to disherit his issues by such recovery , contrarie to the said stat. for the stat. of 32. h. 8. and 34. el. of a common recovery against tenant for life ; it may well be termed covenous and by collusion . to this i shall say no more but this , that certainly in our case there is as much of injustice , covin and collusion by suffering such common recoveries , as in any of the former . further it was said by those that argued against these recoveries ; that that opinion , that a common recovery could not be restrained by condition or limitation , was new and of late invention , and never heard before sir anthony mildmayes case 6. rep. fol. 40. for it was admitted to be restrained in the case of the earl of arundell 17. el. dyer , fol. 342. 343. and in the argument of scholasticas case , 12. e. com. 403. the said point of restraint of a common recovery was never moved : here observe , reader , another new invention , that these recoveries cannot be restrained by any condition or limitation ; so that there must be such a power given to support these recoveries , though against the letter of the stat. and the will of the donor , that no humane invention can prevent . as to the earl of arundels case , it is said that nothing is spoken to it by those who argued the case , and so no authority . to this i say , that certainly had the law been conceived to be such , that such recovery could not be restrained by condition , it would have been then urged , which rather concludes on this part . as to scholasticas case , all that my lord cook sayeth , is this , he much respects the reporter , and attributes due honour and reverence to the judges , but amicus plato , amicus socrates , sed magis amica veritas . though that it was not then thought on by the learned men of that time , yet my lord cook will have it to be law , and prefers his opinion , which he calls truth , which truth so called appears to be onely a new invention , before the contrarie supposed law of that time . and it is further said in portingtons case , that none ought to be heard to dispute against the legal pillars of common assurances of lands , and inheritances of the subjects . and it is likewise said , that at a parliament holden in the raign of q. e. in vernon and herberts case debated before the lords of parliament , hoord counsel with vernon invaied against these recoveries ; who was then reproved by dyer , ch. just . of the common pleas , who said , that he was not worthy to be of the profession of the law , who durst speak against common recoveries , which were the sinewes of the assurances of inheritances , and founded upon great reason and authority ; sed non omnis capit hoc verbum ▪ by this you may easily judge what most supported this assurance : for if lawyers must be silenced , it is no wonder if common recoveries pass for law . i know i shall not pass uncensured , as i have said before , hoords case will be mine , with advantage : but it shall not at all disturb my rest ; for having truth of my side , i care not who is against me : and certainly that councellor that is a councellor of the law deserves the sharpest reproof ; and since non omnis capit hoc verbum , as is said before , let me not be rebuked without reason ; and if any one can convince me in that , i shall with all humility submit to his judgement . lastly , it is said that d. 8. lib. 1. cap. 26. approves common recoveries , to bind as well in conscience , as in law . for my part i conceive that the better opinion there is against them ; and so i believe any man will judge that shall read the chapter , i shall faithfully recite the disputes and leave it to judgement , and therein first the manner and practise of suffering such recoveries ; the demandant shall suppose in his writ and declaration , that the tenant in tail hath no entry but by such a stranger , where neither the demandant nor the said stranger never had possession of the land , whereupon the tenant in tail shall appear , and by assent of the parties shall vouch the common vouchee , whom he knoweth to have nothing to yield in value ( now reader judge whether this be not a meer fiction of a recompence in value , ) and the vouchee shall appear , and the demandant shall declare against him , whereupon he shall take day to imparle in the same term , and at the day by the assent of the parties he shall make default , upon which because it is a default in despite of the court , the demandant shall have judgement to recover against the tenant in tail , & he over in value against the vouchee : and this judgement and recovery in value is taken for a barre of the tail for ever by reason of the recompence ; for by presumption the vouchee may purchase lands . thus you have the practise of a common recovery , which is nothing else but an invention to cut off intails , which hath been the ruin of many a family . but it is reasoned , that although such recoveries , in respect of the multitude of them , be spared , that they stand not with conscience : fo● by the stat. of 13. e. 1. when the ancestor is dead , intailed lands o● right belong to the heir , for that he is heir according to the gift . if the● thou be commanded not to covet , 〈◊〉 fortiori , that thou do not withhold thy neighbours house , &c. and although it may be objected , that tha● which is ordained by the law , may be adnulled by the law , there is not here like authority for the one , as for the other , for the tail is created by authority of parliament the most high court in the realm , and the disanulling thereof is by a covenous recovery upon false supposals , ( here you have trueth clothed in plain language . ) then as to another objection , viz. communis error facit jus , that is to be understood that a custom used against the law of man in some countrey shall be taken for a law , if the inhabitants be suffered so to continue it ; but these recoveries , although they have been long used , have alwayes been spoken against ( reader , observe that , who ever thou art ; and then i am sure i cannot justly be blamed : nor need i care to write against that , which hath been always spoken against . ) also this custom could have no lawfull beginning , and an evil custom is to be abolished : also a prescription against a stat. is void : and it is also moved , that in as much as there is no executed recompence that the law hath been taken , that the heir in tail is not barred of his formdon , and although the vouchee may purchase after the issue hath recontinued his own land , that herein is no inconvenience ; for that the issue shall be barred of the recompence in value , in that he hath recontinued his own land again , and so shall not have both . i dare not go so far as to allow a formdon for the issue in such case ( though enough hath been said to make that good too ) by reason of the many inconveniences that must of necessity fall thereupon , but it were happy ( as i have said before ) if such covenous and fained recoveries were taken away by act of parliament . but it may be objected ; that you would have tenant in fee-simple to have power to dispose two parts , for the reasons and intents aforesaid ; and why may not tenant in tail have the same power ? to which i give this short answer , that it is agreeable with the nature of a fee-simple to be alienable ; not so in case of an estate tail , for that is contrarie to the form of the gift , as the stat. is expresly ; and there is no power given by that stat. to the donee in tail to dispose of the estate in any case whatsoever ; and therefore he may not for the advancement of his relations , or satisfaction of his debts , defeat his issue , or in default of issue , those in the remainder , by alienation , contrarie to the form of the gift , and the intention of the donor . and now i shall conclude this dispute with a rule or two in law , and first the stat. said that the will of the donor must be observed in his gift , which stands with the reason and rule of the law , for cujus est dare ejus est disponere ; a man must take the gift with those qualifications , conditions , or limitations , that the donor is pleased to annex to it , and cannot alter it , if so , what becomes of common recoveries ? or how in law or reason can the donee in tail disherit his issues ; note , much less strangers in remainder : as if land be given to a. in tail , the remainder to b. in tail , &c. if a. suffers a recovery , this not onely binds his issue , but him in remainder likewise , which is extream hard and unreasonable , that the law contrary to the rules of law it self , should allow a stranger to do an act to my prejudice , for the rule is , that res inter alios actae alteri nocere non debent , other mens actions ought not to prejudiee a third person , how then can that stand with this rule of law , that tenant in tail should have powr to barre him in remainder by a recovery . another rule is , quod nostrum est sine facto vel defectu nostro amitti , seu ad alium transferri non potest , we cannot lose what is ours , nor can it be given from us without our own act or default , how then can it stand with this rule , that he in remainder should be barred by such recoverie as aforesaid ? i shall say no more , but wait the parliaments leasure ▪ and i doubt not , but this will in due time be altered . the next thing i am to treate of , is concerning the imprisonment of mens persons for debt , and in that i shall propose this short question . whether it be consonant to reason , conscience , or for the good of the common-wealth to arrest mens persons , and to detain them in prison for debt ? i know this is a case in which many men have vented their judgements in publick , and it hath not been without a solemn debate too in the parliament ; so that there is the less for me to do , and therefore i shall be but short in it . what reasons induced the parliament to continue this law , i know not , nor is it for me to examine ; however , i beseech you , let it not be taken amiss that i offer my reasons in it , and leave them to better judgements . in the first place i shall examine what the old law was , and when , and how this law of imprisonment of persons for debt crept in ; for it hath not been always used in england , and i may say in few other places of the world ; and where it is in use , there is care taken that they do not perish in prisō for want of necessary sustenance , but they and their families to be maintained out of their own estates ; and if they have none , the perverse and cruel creditor is to maintain them out of his proper estate ; and not to suffer them to perish for want of food , as they do commonly in england . the body of the defendant was not lyable to execution for debt at common law , for which see 13. h. 4. 1. but his goods , chattels , and corn , &c. by fieri facias , or levari facias within the year , and by the stat. of w. 2. by scire facias after the year , and by w. 2. cap. 18. an elegit was given of the moyety of the land ; which was the first act which subjected land to the execution of a judgement . but the common law which is the preserver of the common peace of the land , abhorres all force , as the capital enemy to it , and therefore against those who committed any force , the common law subjected their bodies to imprisonment , which is the highest execution , by which they lose their liberty , till they had made an agreement with the party , and fine to the king . and therefore it is a rule in law , that in all actions quare vi & armis , a capias lies , and where a capias lies in process , there after judgement , a capias ad satisfaciendum lies ; and there the king shall have a capias pro fine . then by the stat. of marlebridge 23. and w. 2. cap. 11. capias was given in an account , for at common law , the process in an account was distress infinite , and after by the stat. of 25. e. 3. cap. 7. the like proces was given in debt , as in account , for before this stat. the body of the defendant was not liable to execution , for the reason and cause aforesaid , all which you shall find in my lord cooks 3. book , sir william harberts case . here you see the original of the arresting of mens bodies , and taking of them in execution for debt ; which was by force of those few but ruinous distructive words in 25. e. 3. like proces in debt as in account ; these few words have ruined many , and almost numberless persons and families ; who , had they not been cloysterd up in prisons , might have lived to have got estates , and to have been able to discharge a good conscience in satisfaction of their debts , and providing for their families . for the proces by way of capias , or attaching of the person for debt , i know it will be said to me , if you will have that course taken away , what other will you provide convenient for gaining of our debts ? to this i answer , that that which i conceive most convenient in reason , and which hath been already proposed to the parliament , is by way of summons , as the original in the common pleas is ; and upon that ▪ if no appearance be , to have liberty to proceed with all vigour , and to have a judgement against the defendant for not appearing , as if he had appeared , and judgement had been thereupon obtained against him . onely this i must observe , that it is of necessity , that the service of the summons be sworn to , ( as it is in case of a subpoena in the chancery , ) before there be any further proceeding , otherwise , any man living may be abused , and extreamly suffer by the seisure of his estate upon execution , he having had no notice by way of summons of the said action . and this great advantage to the common-wealth there will be by the way of summons , that it will destroy all priviledged places , for a summons may be served , where there durst not be an arrest ; so that then there will be no protection of men against their creditours , but that such as have estates , shall , as in conscience they are bound , pay their debts , and not consume them in a corner , under the guard of any priviledge . the next thing , after the proces , and judgement , that is to be considered of is , what execution is most just and reasonable , and most agreeable to conscience , and the good of the common-wealth in such case ? in this we must consider what the scope , aim or end of the law is in such execution ; and that is , the satisfaction of the debt . then the next question is , which is the most just and probable way to attain to this end ? whether the taking of the body , or the estate ? to this i answer , that certainly the nearest , best , and most conscionable and rational way to attain to that end , yea and most equal too , is by seizing of the estate . the most equal it is certainly , and our law much delights in equalities ; for it is not equal justice that the body ( which is said in law to be the highest execution , and so without doubt it is , and much more to be valued then all worldly goods ) should be captivated and imprisoned , for any worldly pelf , or ingagement whatsoever , body for body , and estate for estate , is the most equal way of justice in the world . and it is the most rational , the readiest and best way for to get a satisfaction of the debt , and it is that which must pay it at last , if ever it be paid ; for this is but a slender satisfaction of the debt . and this great inconvenience he lies under that takes the body in execution , that he cannot , after he hath determined his election by this way of execution , during his life , take hold of his estate too . and heretofore it was a great question , whether if the party died in execution , it were not a satisfaction of the debt ; and though there were much variety of opinion in it , yet certainly the best was , that it was a satisfaction , so that the plaintiffe could not resort afterwards to , or take out execution upon the estate ; and for my part , i think it was the most just law , that he , whom nothing but the body could satisfie , should have no other satisfaction , this occasioned the making of the stat. of 21. of king james ; which provides remedy against the estate , notwithstanding the persons dying in execution . but i say , having thus determined his election by taking the body in execution , he is upon this great disadvantage that the debtors estate is free , and that which he would not take to satisfie his debt , happens for the most part to be wasted and consumed in prison . 't is frequent , that a wilfull creditor finds as stubborn a debtor ; and since nothing will satisfie him but the body , he must take that for satisfaction ; so that it is apparently contrarie to reason and common policie . 't is likewise under correction , the most conscionable way too ; and the contrarie , which is the taking of the person , the most unconscionable , especially as it hath been practised in england , for either the debtor hath an estate , or he hath none , if he hath an estate , it is all the justice in the world that that should be responsible for his debts ; if he hath none , what can be more unconscionable or unjust , than to keep his body in prison . lex non cogit ad impossibilia , the law requires not impossibilities at any mans hands , why then should one man so exact upon another ? besides , this renders a man utterly uncapable of ever giving satisfactiō , for by this he is wholly deprived of all possible means of discharging his ingagements . whereas had he his liberty , he may through gods blessing upon his honest indeavour , gain sufficient , not onely to satisfie his debts , but to raise a fortune for his posteritie . but this will not digest well with such , whose principle is , that if they have it not they will make dice of their bones , ( a saying that hath been ever too common in this place ) that is , they shall starve and perish in prison : and whether this be not meer and pure malice in such men , let all the world judge ; and if death shall thereupon follow , as too too often god knows it doth , i shall be bold to say , that such a creditor is as absolute a murderer , as if he had killed him with his own hand . for what makes murder , but malice prepensed to kill : and what else can that man have in his thoughts , who resolves his debtor shall rot and die in prison , though he knows he hath not wherewithall to satisfie . to such unmercifull , pittiless , cruel creditors , ( yea , and therein most cruel to themselves too , had they grace to consider it ) i shall say no more but this , that they cannot keep their poor creditors always in prison , death will at the length take pitty of them , bring a discharge and open the doors and let them out ; and there ( through their affliction , working them to true and unfained repentance and amendment of life ) i doubt not , ends their captivity : but let these take heed , that they be not one day cast into that black , dismal and infernal lake , from whence there is no redemption . but i know that it will be objected to me that debtors may conceal , or secretly convey over their estates to cousen their creditours , which cannot be discovered ; so that if their persons may not be imprisoned , creditors shall be wholy without remedy . to this first i say , that it is a rule in law , that nullum iniquum est in lege praesumendum , presumptions of fraude or deceite are not permitted in law , that is so just , that it conceives all men to be just likewise , till there appear something to the contrarie : and why should our thoughts be otherwse ? but it is so , men of corrupt lives , judge all others like themselves . i answer further , that such as are resolved to be dishonest , it is not imprisonment will make them otherwise ; and in such case if you take their persons , you are further from gaining of your debt than before , for you cannot then fasten upon their estates ; and let not the innocent suffer with the nocent , the willing and unable , with those that are able and unwilling . besides , how often is imprisonment made a meer cheat , even by the prisoners themselves to defraud their creditors , they willingly submitting themselves to a prison , to preserve their estates . but it is further objected , that if imprisonment of mens persons for debt should be taken away , it would be a great hinderance to trading , which is , as it were , the soul of every common-wealth , for then men would not dare to trust one another . to this i answer , trading driven upon credit seldom thrives ; and i may safely say , that many men , who are now beggers , had been rich men , had they had less trust and confidence , little profit without , is more than great with hazard and danger . i know no reason that any man should be trusted who hath not wherewithall to pay ; and certainly men in general , then thrive best , when they trust least ; and for my part , i judge that man worthy to lose his debt , who trusts to the security of a mans person onely . again , lex respicit finem , the law hath an eye to the end of all actions ; and as this is not the next way to get mens debts by the imprisonment of their creditors persons , ( as i have said , and proved before , ) so i beseech you to consider , who it is that gains by it ? it is certain the creditor , seldom , if ever , gains his debt the sooner . why , the onely gainers are , sheriffs , bayliffs , serjants , goalers and keepers of prisons , &c. these are they that grind the faces of the poor , that add affliction to affliction , and live upon the ruins of others ; these are the mala necessaria , the bloud-suckers , the leeches of the common-wealth ; evils they are , and great ones too , i am sure of it ; but did i say they were necessarie ? i must recall that word , otherwise , i must of necessity approve of the devil and his cursed instruments ; and hell and a prison have no small resemblance , onely there is more hopes of getting out of the one , than the other . a silver key , so long as a man hath it , will unlock the prison doors , and set him at liberty ; but if he shall make default in payment of his rents , or other extortions exacted of him , by the keeper , and his bloud-hounds , he shall quickly be hunted after , and fetched in again , and there remain untill he hath satisfied them ; that being done , he shall be restored to his former liberty ; but if his purss be not of considerable magnitude , it will soon be emptied ; and then , no longer pipe no longer dance ; the creditor shall be sure then to find him , and now nothing remains but the body , which the creditor so unwisely made choice of , for satisfaction of his debt . this i know to be the constant course of many keepers of prisons ; and the conditions of their prisoners ; and whether this be the way for creditors to get their debts or no , let any sensible understanding man judge . but lastly , it hath been said by some , that it doth indeed stand with reason and conscience , that where a man becomes unable , through the act , or hand of god , without any debauchery or default of his own , to satisfie his debts , that in such case he should not be detained in prison ; but if through his own default , in such case he deserves no mercie . to this i say , under favour , that though he be so impoverished through his own default , it is very hard , and to me unreasonable , that he should so suffer ; first , because that this is not gods method or way of dealing with poor sinfull man , for if god should inflict the severity of his justice upon us , but for one of a thousand sins that we commit against his divine majesty , no flesh living could be saved , why should we then so exact one upon another , as not to forgive one fault or transgression of our brother ; are we not required to be mercifull as our heavenly father is mercifull ? and do we not dayly pray that god would forgive us our trespasses , as we forgive them their trespass against us ? how then dare we harbour malice in our heart against our brothers ; since except we truly forgive , we are not to expect forgiveness ? consider with thy self how much thou art indebted to god , and if he ( as in justice he might ) should require that great debt at thy hands , nay , but one of a million , thou must inevitably go to prison , i , to that prison ( to which all earthly sufferings and torments are as nothing ) from which there is no redemption to all eternity ; and therefore forgive , as thou dost expect to be forgiven . again , this is not the way to satisfie the debt ( which is the end of the law in such executions ) but to ruin the party ; who , had he is liberty , might leave his former vanities and ill courses , and live to be able to make satisfaction of his debts ; god happily waits for thy reformation all thy life , do thou ( as in duty thou art bound ) deal so likewise with thy brother . i shall conclude all with this one word , let us consider those that are in bonds , as if we were in bonds together with them . the next i have considered to treat of , is the chancery and its power , and therein i shall propose this short question . whether the high court of chancery , as the practice is there , be not a very great grievance , and burthen to the common-wealth ? it is not my purpose , or the scope of my indeavour , to speak or write against a court of chancery , i know there is an absolute necessitie of it . equity said d. 8. lib. 1. cap. 16. is a right wiseness that considereth all the particular circumstances of the dead , the which also is tempered with mercie , and such an equity must be observed in every general rule of the laws of man , for summum jus , summa injuria , viz. if thou take all that the word of the law giveth thee , thou shalt sometimes do against the law . and therefore said d. 8. cap. 18. very well ; if it were ordained by statute that there should be no remedy upon equity in chancery , nor elsewhere , such a statute were against reason and conscience , and certainly so it were . he approves the use of any thing , that labours to take away the abuse . i am not ignorant , that the kings of this nation have ever had their court of chancery , and their chancellor or lord keeper of the great seal ; nor am i wholly unknowing of the power and authority of that court . in the chancery , saith my lord cook in his jurisdiction of courts , there are two courts , one ordinarie , coram domino rege in cancellaria , in which the lord chancellor or lord keeper of the great seal proceeds according to the right line of the laws and stat. of the realm , secundùm legem & consuetudinem angliae , and with this court , i purpose not to meddle , as being not within the limits & bounds of my present discourse . but the other court , that is extraordinary , according to the rule of equity , secundùm aequum & bonum ; and that is my work to treat of , and that you may see the necessity of this court , it is officina justitiae , out of which all original writs & all commissions , which pass under the great seal go forth , which great seal is clavis reipublicae , and for these ends this court is always open . and in this , the chancellor or keeper was sole judge , but he had power , if he pleased , to assist himself with the judges . and now i shall take freedom to let you know what the ancient rule was for this court of equity , which is very good . three things are to be adjudged in a court of conscience : covin , accident , and breach of confidence . all covins , frauds , and deceits , for which there is no remedy by the ordinary course of law . accident , as when a servant of an obliger , morgager , &c. is sent to pay the monies upon the day , and he is robbed , &c. remedy is to be had in this court , against the forfeiture , and so in the like case . the third is breach of trust and confidence , of which you have plentifull authorities in our books : but of this , this tast onely shall suffice ; and now to come to that which i intend , which is the present practise there , and therein i shall not meddle with the many great officers and their fees ; which is a very great burthen to the common-wealth , because that i do believe , that they are in a way of redress . but the first thing that i shall touch upon , is the multitude of suits that are there pending , so that it is impossible ( without the commissioners were more than men ) for them to receive a convenient dispatcht . i do acknowledge their great and indefatigable pains in that high and extraordinarie judicature , for which the common-wealth stands very much obliged to them : yet i know as men , they cannot exceed their strength and ability . this court hath received a great addition , not of jurisdiction , but of practise , by taking away of the court of wards , that great and oppressive court ; as likewise , by the fall of that unnecessarie court of requests . so that the business of this court is so great , and doth so much increase dayly , that the common-wealth will in a short time very much suffer through inevitable , not to be prevented , delay of justice . besides ; it is not unknown , that many suits are commenced there upon a suggestion of equity , meerly false , on purpose onely to hinder or delay the execution of justice at the common-law ; this likewise much advances the p●●ctice there , and is a very great prejudice to the common-wealth , by reason of such unjust and causless vexation . i hope no man will be so unreasonable as to misapprehend me here , or to judge , that in any thing i have said , i should lay the least imputation of fault upon the commissioners , no , i do not , i cannot , i know that all men who have to do in that court , do plentifully partake of their justice , yet i must say , as before , that it is impossible for them , through the infinite multiplicity of business there , to give a convenient dispatch to all . again , it seems to me , to be a great grievance and burthen to the common-wealth , to have a resort in matter of equity from a court of law , to chancery . we say in law , frustra fit per plura , quod fieri potest per pauciora , it is vain and idle for a man to go about , when he may find a neerer way home . the law loves not circuity of action , why then should men be forced to a court of equity , when the case is pending before the judges at law ? and why may not the matter of equity ( if any ) be determined by them without such further trouble or wheeling about , which is no small charge and expence to the people ? i know not but that they are in such case , the most proper chancellors ; and this will prevent a very great mischief and vexation to the people , which i have shown before , and that is , of resorting to the chancery upon pretence of equity , whereas in truth , it is onely to delay justice : a thing , then which , nothing more frequent and usual . besides , it is no strange thing for the judges to make themselves chancellors too , for i have known this case frequently in practice , that the judges , in debt upon a penal bond , have , upon a motion , forced the plantiffe to accept of the principal with costs and damages , and i am sure , the penalty in strictness of law being forfeited , this is judging and determining according to equity ; and why they may not do it as well in other cases , i understand not further , as i have said before : the chancellor may call the judges to his assistance , and peradventure he will call those ( as is most proper ) before whom the case was pending at law : is not this then a strange circuitie of action ? why might not the matter of equity have been as well determined by the judges , and so this great vexation have been prevented ? but to this it will be said , that this would be a total destruction of the court of chancery , and a gross confounding of law and equity , to make the judges judge of both . to this i answer , that we are wholly to respect the good of the common-wealth , and what tends most that way , certainly is most just and reasonable ; other relations ought to be subservient to that ; that is equal and good ought onely to be look't upon . but further , though this will much abridge the practice there , yet , it will not take it away ; and i am certain , the practice there needs some abatemēt ; or at last there will be an extream failer of justice . not destroy it , for there be many cases , which are so meerly and absolutely equitable , that they have not the least relation to law , nor can any action in such case be brought at law , as in all your cases of discovery , and the like . so that where the suit is onely proper there , and is not , nor cannot be brought in question at law , in such case it is reason that court should have a determining power in the matter of equity : and such cases onely , i am confident , will find work enough for the commissioners , and this will be a very great ease and benefit to the people . for the scruple of confusion , i know no reason , but that judges of law may as well judge of equity ; as judges of equity judge of law . nay more , are they not all lawyers ? i know it is no strange thing , for others to have been chancellors ; yea , it hath been common for bishops to exercise that great place of judicature ; how proper it was for them , in relation to their functions , as also to the place of judicature it self , i shall not dispute here , as not proper to that i intend ; but certain i am , none more proper judges of equity , then judges of law , nor can he be a competent judge of equity , that understands not the law : for equity is no other but an exception of the law of god , or of the law of reason , from the general rules of the law of man ; which exception is secretly understood in every general rule of every positive law ; therefore he that understands not the one , cannot well judge of the other . give me leave to urge one thing more , which i am sure would very much abate , and lessen vexatious and troublesome suits in chancery , and that is , that no plaintiffs should preferre a bill , but that he may swear it , as well as the defendant his answer , that such untruths as are now ( to the shame and scandal of our profession ) alledged and preferred in all , or most bills exhibited , may be prevented , that men may not lye ( pray pardon the coursness of the term , since the truth is so ) by toleration . to this i know it will be said , that some bills are meerly for discovery and the like , and so not to be sworn to ; to this i answer , that there is no bill but hath something positively alledged in it , and that me thinks seems reason , that every plaintiffe should swear to , the rather , for the honour of this high court , that men may not dare to forge falsities , and to present them to the commissioners for specious truths . i have one thing more to say , and with which i shall conclude ; and that is , that it seems very hard to me , that men should not have costs of suit , in some reason answerable to what they have necessarily expended in this court , as well as at law ; so that often the remedy proves as bad , if not worse , then the disease , and sure this cannot be agreeable to equity , it is not aequum , nor bonum ; neither good for the court , nor equal to the party . and this to my knowledge hath deterred many a man from prosecution in this court . i shall say no more but this , judge me according to equity , and then i know i shall not be condemned . the next thing i have resolved to treat of is , collateral warranties , & in that i shall propound this short question : whether collateral warranty stands with reason and conscience , or no ? and first i shall let you know what a collateral warranty is ; that you may the better understand the reason of this question . a collateral warranty is thus ; where a collateral ancestor ; as an uncle , releases to the discontinuee or disseisor of lands in tail , with warranty and and dyes , this barres the heir in tail , because the warranty descended upon him , who cannot derive any title from the uncle ; and though the warranty descends lineally ; yet it is said to be collateral , because the ancestor is collateral to the title . but to make the case more plain , i shall put one case out of littleton . sect. 709. if tenant in tail discontinues the tail , and hath issue and dies , and the uncle of the issue releases to the discontinuee with warranty , &c. and dies without issue , this is a collateral warranty to the issue in tail , because that the warranty descended upon the issue , who cannot convey himself to the tail by means of his uncle . and you must know , that this warranty is a barre without any assets , or estate descended from him that made the warranty , which is the great extremity of the case . the reason that my lord cook gives , why the warranty of the uncle , having no right to the land intailed , shall barre the issue in tail is , because that it is presumed that the uncle would not unnaturally disherit his lawfull heir being of his own bloud , of that right which the uncle never had , but came to the heir by another mean , except that he would leave him greater advancement . nemo praesumitur alienam posteritatem suae praetulisse . no man is presumed to preferre anothers posterity before his own . and in this case he further saith , that the law will admit no proof against that which the law presumes . and so of all other collateral warranties , for no man is presumed to do any thing against nature . it is well that my lord cook will offer some reason for it ; it is more than i find in d. s. lib. 1. cap. 32. for he saith , it is a barre in law and conscience , because that it is a maxim. but now let us examine the reason of my lord cook , and see whether it doth stand with conscience , reason , and the good of the common-wealth ; for my part , i judge not that to be law , nor worthy so to be considered , that is unreasonable , unconscionable , and against the common good . it is an unreasonable and unconscionable law , that a collateral ancestor who cannot claim any right to the land , should have power to barre me that am the heir to it by his release , and this is a case much more extream then that of recoveries , in some sence , because the uncle is a meer stranger , as to the estate , and this is against the rule of law , that acts done by strangers should prejudice a third person . yes , but saith my lord cook it is presumed , that the uncle would not disherit his heir of that , which he had nothing to do with , nor could not pretend any right to , except that he would leave him a greater advancement , and no proof must be against this presumption . a very strange presumption , how many uncles might a man find in this age , who for a small sum of money , would not care to disherit twenty heirs , if possibly so many could be , without the least scruple of conscience ; who neither have , nor consider of any other advancement to leave them . but there is a strong block in the way ; for against that presumption there must be no proof ; so that if he leave no estate or other advancement , it is all one as if he did , it is presumed he will , though happily it is known , he neither doth , nor can ; and that is sufficient to disherit his heir . yet the rule of law is , stabitur praesumptioni donec probetur in contrarium , the presumption is to be allowed , till the contrarie be preved , but no longer : and certainly if ever there were an unreasonable exception to any rule , this may pass for one . my lord cook saith , that it hath been attempted in parliament , that a statute might be made , that no man should be barred by a collateral warranty , but where assets descend from the same ancestor , but it never took effect , because saith he , that it would weaken common assurances , rot. parliament . 50. e. 3. num. 77. this is a reason urged in defence of common recoveries likewise , the english of it is but this , i may barre another man of his just and lawfull right , to fortifie a wrongfull title ; otherwise it would weaken common assurances ; i know no reason , but mens rights should be as much favoured as common assurances ; an heir as much as a purchasor . to conclude , i wish a second attempt were made in this present parliament , against these collateral warranties ; and then i should not despair of redress of so unreasonable a law , the next thing i am to treat of , is , pleadings , and therein i shall propound this question . whether it be consonant to reason or conscience , that any mans plea should be adjudged nought , and avoided at any time for any matter of form , false latine , double plea , departure , or any other defect whatsoever , the case and matter it self sufficiently appearing upon the record , for which the action is brought ▪ first , that i may clear the question of some things doubtfull in it , i have added to it , at any time , because in some cases and sometimes such defective pleas are already helpt by stat. as you will find after . i shall not need to inform you what matter of form is , the word it self sufficiently speaks it . double plea is , when a man in pleading alledges several things ; the one not necessarily depending upon the other , &c. departure is when a man goes from his former plea , and pleads some new matter , these will vitiate pleadings ; and put a man to a new action . but to the case it self ; m. littleton , i remember , saith , that pleading is one of the most honourable and profitable things in our law , and therefore advises his son to bend his indeavour to the gaining of the knowledge of it . i believe it indeed to be one of the most profitable things , ( i mean to the lawyer ) but the common-wealth suffers in it . for the matter of honour , i know not where it lies , except it be in this ; that such a one is said to be a subtile lawyer , a pick-lock of the law , one , who can discover a flaw or defect in any plea presently , if it be to be found : and this is the honour i believe , to be able to vex and trouble and undo people by various suits ; if this be the honour ( though i hope no man will therefore count me wholly ignorant of this knowledge , because i speak against it ) let who will take it for me . cook upon litt. fol. 303. 304. observes , that many a good cause is dayly lost for want of orderly and good pleading ; the more the pittie . and after he saith , when i diligently consider the course of our books of years , and terms from the beginning of the reign of e. 3. i observe that more jangling and questions grew upon the manner of pleading , and exceptions to form , then upon the matter it self , and infinite causes lost or delayed for want of good pleading , what a gross shame , and most unconscionable thing is this , that form should be insisted upon more than matter ; and the clyent should lose his case , or have it delayed , for formalities . the clyent sues not at law for to make cases or questions , or to occasion scruples about nice formalities , but to have justice done according to the truth of his case ; and this is the end of all law , to put an end to controversies , in doing right to the parties , without delay , or regarding any thing but the truth of the case it self . interest reipublicae ut sit finis litium , it very much concerns the common-wealth , that strifes be ended ; and not that one dispute or controversie should occasion another ; much less that contention should be about words , the matter layed aside , and the party depart , not as he came , but in a worse condition , his money fruitlesly expended , and his right , if not lost , suspended . my lord cook saith again , that it is worthy of observation , and so indeed it is , that in the reigns of e. 2. e. 1. and upwards , the pleadings were plain and sensible , but nothing curious , evermore having chief respect to matter not to forms of words ; i am sure we cannot say so of these latter times ; for i am confident , they were never more nice and captious than of late . then he said , that in the reign of e. 3. pleadings grew to perfection , both without lameness and curiousity . and that in the time of h. 6. the judges gave a quicker ear to exceptions to pleadings , than either their predecessors did , or the judges in the reign of e. 4. or since that time have done , giving no way to nice exceptions , so long as the substance of the matter were sufficiently shewed . i attribute much of honour and respect to my lord cook ; yet i shall crave that freedom , to deliver what is truth , and that is , as i have said before , that pleadings were never more curious and subtile than of late ; and never more nice exceptions given way to . i shall not here meddle with the order of pleading , as first to the jurisdiction of the court , secondly to the person , &c. which must be observed in their due course , or you lose the benefit of the former . nor yet with my lord cooks rules of pleading in his institutes , in which he is very large : i go not about to teach or inform you of the forms and subtleties of our pleas ; though they are worth the knowing , yea , and observing too , so that the clyent may not be prejudiced for want or defect of such forms . for the double plea , i cannot understand any just reason why it should not be allowed ; that reason which the law gives , is , that the court and jury may be invegled by such pleas ; i have inquired exactly into this reason , but cannot find how , or which way ; and i do profess my self one of my lord cooks non-intelligents too ; for he said the law in this point , is by them that understand not the reason thereof , misliked ; and i do acknowledge my self of their minds who say . nemo prohibetur pluribus defensionibus uti ; no man is prohibited to use several defences . and so likewise for the departure , i know no reason that any man should be barred or concluded from offering any other or new matter , but that any man , may at any time make the best of his own case ; certainly , judges ought to have principal regard to the truth of every mās case , that that may be discovered , thereby the better to inable them to give righteous and true judgement ; not to forms or words ; these are but apices legis , the meerbark , outside , and inconsiderable part of the law ; and indeed non sunt jura , they are not law . the rule that we have in pleading , that parols font plea ; that is , whatsoever the truth of his case is , that is his case , and that he must stand to , as he hath pleaded : and the other rule , that a mans plea shall be taken most strongly against himself , where it is doubtfull , these seem to me very hard and unreasonable ; it is strange to conclude any man , where there is a mistake in words , from laying open the truth of his case ; this , if any thing , is to invegle the court , and make them give an unjust judgement , and if they be informed of the mistake , and yet judge according to that , i doubt whether a rule of law , will another day be a good plea for them . besides , if a man shall but truely reason this case , he must needs judge it very unjust , that a man should suffer through anothers default , which is contrarie to the rule of law , for that saith , nemo debet puniri pro alieno delicto . now pray who is it that draws these pleas ? why the clerk or lawyer , according to the information he receives from his clyent ; can it then be agreeable to reason or conscience , that the mispleadings , or formal mistakes of these , whom i intrust , as being wholly ignorant thereof my self , should prejudice me ; again , is it not frequent , for the most learned men of the law , to erre , or at least , to differ in judgement , from the judges ? and yet not to be blamed neither , why then should i suffer for other mens faults , or defects in judgement ? by divers statutes made in the reign of h. 8. e. 6. q. el. and king james , it is provided , that after issue tried , after verdict , after demurrer ( except where the matter of form is specially demurred to ) that the judges do give judgement according to the right of the cause , and matter in law , and no matter of form , false latin , or variance , &c. to hinder it . these are good laws so far as they have gon , and i hope none that considers these will blame me ; for without doubt , the same or the like considerations , caused the making of them ; that justice or right might be advanced above all punctilioes or nice formalities . and since those are defective in many things , as common experience teacheth ; and the same reason that caused the making of them , may , and ought to perswade our great parliament to a total extirpation of such immaterial nicities ; i doubt not , in good time , we shall have an act made , which will fully answer our desires therein ; which will be much for the good and ease of the people , and no less beneficial to lawyers . the next thing that i shall treat of , is conveyances , and therin propound this short question ; whether the many sorts of tedious and long conveyances now in use , stand with reason , and the good of the common-wealth or not ? there are many sorts of conveyances in our law , and i doubt too many , to be for the good of the people ; as feoffements , fines , recoveries , bargains , and sales , covenants to stand seised to uses , &c. most of which , are so swelled and inlarged with many unnecessary covenants , and vain and idle repetitions and tautologies , which together with advise and counsel , are an intolerable charge and expence to the people . so that he that purchaseth but a small thing ( as happily not being able to go further ) he had as good , almost , be without it , and keep his money , as under-go the great charge and trouble in the assuring of it . i put a feoffement in the first place , as deserving the preheminence and prioritie of place , being the most ancient and best conveyance . o the innocencie of former ages , when a feoffement onely of some few lines was sufficient , and served to convey over the greatest estates . yet i am not in this case , to lay all the blame , if any , upon lawyers ; for as the innocencie of those times required not so many covenants and assurances to oblige men to the performance , and making good of their faith and engagements one to another : so the wickedness and corruption of these latter ages , are such , that men must be tied and bound , shackled , and fettered like wild and untamed cattel ; so that it even puzzels lawyers to find words enough to meet with the subtle devises , and over-reaching policies of most men ; and all little enough to keep them within the bounds and limits of justice and honestie . but to return to that i broke off from ; cook upon litt. fol. . 9. saith , that a feoffement is the most ancient and necessary conveyance ; ( note that reader ) both for that it is solemn and publick , and therefore best remembered and proved , and also for that it cleareth all disseisins , abatements , intrusions , and other wrongfull and defeasible estates , where the entrie of the feoffor is lawfull , which neither fine , recoverie , nor bargain and sale by deedindented and inrolled doth . and that this kind of assurance may find the better esteem and approbation , i shall first inform you what it is , & then shew you the venerable antiquitie of it ; feoffement is derived of the ancient word fe●dum , quia est donatio feodi ; because it is a giving of the fee ; for the ancient writers of the law , called a feoffement donatio , of the verb do , or dedi ; which is the aptest word of feoffement . and now you shall have the antiquity of it , out of no other author , but holy writ ; for saith my lord cook , that word ephron used , when he infeoffed abraham , saying , i give thee the field of machpelah over against mamre , and the cave therein i give thee , and all the trees in the field , and the borders round about ; all which were made sure unto abraham for a possession in the presence of many witnesses , genesis , cap. 23. vers. 11. and when the kins-man of elimelech gave unto boas the parcel of land that was elimelechs , he took off his shooe , and gave it unto boas in the name of seisin of the land , ( after the manner in israel ) in the presence and with the testimony of many witnesses , ruth ; cap. 4. ver. 7 , 8. deut. 25. 9 , 10. thus you have the antiquity likewise of a feoffement ; now this being the best , and most ancient conveyance , i know no reason it should not be most in use . cook upon litt. fol. 6. a. saith , that there are eight formal or orderly parts of a deed of feoffement , as the premisses , the habendum , &c. and yet he saith , all those parts were contained in very few and significant words ; haec fuit candida illius aetatis fides & simplicitas , quae pauculis lineis , omnia fidei firmamenta posuerunt . and a feoffement is good , without these formal parts , fol. 7. a. for if a man by his deed gives land to another and his heirs , without more saying , this is good , if he put his seal to the deed , deliver it , and makes livery accordingly . i have been the larger upon this conveyance , by way of feoffement , because i would have men in love with it ; and certain i am , it would be best for all men ( except lawyers , who i hope will be contented to abate something of their profit , to serve the common interest ) best in point of security , and in profit . onely add this to it , that a law be made , that it shall be a barre ( as a fine with proclamations , ) if it be inrolled , & five years pass with non-claim after the inrolment , and then it will be a great ease and advantage to the publick . but if it shall not be thought fit to alter the law in point of conveyencing , as it is now setled , why then i shall humbly begge this one boon of the parliament , in behalf of the publick ? and that is , that they would be pleased to make a law , that no scrivener , or other person whatsoever , other then lawyers , shall for the future make or draw any conveyance or assurance in law whatsoever , which shall after happen to be sealed and delivered , without the advice of counsel thereupon had , either before , or after the assurance drawn and made , under a good pain or penalty , if they shall do the contrarie : and this will be a means to prevent , many contentious suits , which dayly arise upon scruples and questions out of such conveyances drawn according to their formal ignorance . the next thing i shall dispute , is the law of bastardy ; wherein i shall set down this short doubt . whether it be a just and reasonable law , that a child born before marriage ; and shortly after marriage happening , should be a bastard , or not ? this is a case , in which the common-law differs from the civil and cannon-laws ; the common-law saith , that such a child is a bastard , the other laws , that it is legitimate . i shall give you the reasons of both sides , and then you may judge which is most reasonable . this very case is debated by fortescue , cap. 39. the civilians say , that maritagium subsequens tollit peccatum precedens ; that is , that by means thereof , the state of matrimony coming in place , extinguisheth the former sin , whereby else the souls of two persons should have perished ; and it is to be presumed , say they , that they were at their first copulation so minded , as the marriage after declareth . the canonists also say , that matrimonium subsequens legitimos facit quod sacerdotium . say we , the sin by the inter-marriage is somewhat abated ; not purged , or taken away ; & besides this would be a great increase of that sin , and an incouragement to it , if such children should be legitimate , and the parties would be less penitent , because so favoured . and fortescue being much for our law in this point , puts this case ; saith he , if a woman should have two children of two fornicators , & the one marries her , whether of these two children should be by this marriage legitimate ? for my part , i do conceive , under correction of better judgements , that the cannon and civil laws are most reasonable in this point ; though i do not conceive , that the sin is purged , or taken away by the inter-marriage , for that cannot be otherwise , than by true repentance for the sin committed : for which , this seems to me to be a great sign , otherwise i doubt whether they would have married or no . and i do conceive it ought to be intended , that they resolved upon marriage before , or otherwise it is not to be presumed that they would have married after : men usually hate those women they have carnally known , being pricked in conscience for the sin committed and therefore not likely to marry such , unless there were some former tye or obligation upon them , which mitigates the offence , and makes them perform their ingagement : and if it were not so , who in such case would so marry , knowing his issue to be bastard by the common law . to that that is said , that it would be an increase and incouragement to commit that sin , if the law should be so taken , that the issue should in such case be legitimate . to this i answer , that i rather conceive the contrarie , that it would very much lessen and abate the committing of that sin ; for it will make them the rather eschew it , and take up resolutions of marriage ; for , as i have said , men seldom marrie that woman they have carnally known , especially having issue before hand , being the more frightened from it , by this hard law of bastardy . for that objection , that if such issue should be legitimate , the parties would be less penitent , because so favoured . to that i answer , that certainly it would make them much more penitent , when they shall live together in the state of matrimonie ; and put them more in mind of their former offence , which certainly they would less think of were they divided ; and i think a greater sign of penitence cannot be , than the subsequent matrimonie . besides , by legitimating of such issue , this great convenience would follow , that it would much abate and take off the scandal and reproch of the world , and incourage men in such case to matrimonie ; whereas otherwise they usually add sin to sin , one bastard begets more , so that once having under-gone the reproch and shame , they never consider the sin , but are more hardned in it . for the case put by fortescue , of two fornicators having got several children by one woman , and the one after marrying her , which shall be legitimate . this i conceive may receive a very short answer ; for if the party that got the child be known , we may easily judge which shall be legitimate . my lord cook upon litt. saith , fol. 244. that if the issue be born within a moneth or a day after marriage , between parties of full lawfull age , the child is legitimate ; by which we may conclude , that if it be born so short a time after marriage , that it is legitimate , for certainly the same reason for both . now i say this , that if we may go so near bastardy , and yet be legitimate , i know no reason ; that coming so near legitimation , it should be a bastard , and this in favour of legitimation . but besides , the sins are equal , and therefore i know no reason but the punishment should be so too , a day doth not aggravate the sin , why then should a day bastardise the issue . cook upon littleton , fol. 245. matrimonium subsequens legitimos facit quòad sacerdotium , non quoad successionem , propter consue●udinem regni quod se habet in contrarium . and therefore at a parliament holden , 20. h. 3. for that to certifie upon the kings writ , that the son born before marriage is a bastard , was contra commanem formam ecclesiae , rogaverunt omnes episcopi ; magnates , ut consentirent , quod nati ante matrimonium essent legitimi , sicut illi , qui nati sunt post matrimonium , quoad successionem haereditariam , quia ecclesia tales habet prolegitima : et omnes comites & barones una voce responderant , quod nolune leges angliae mutare , quae haec usque usitat●e sunt & approbatae . and i do confess that the statute of merton 20. h. 3. cap. 9. confirmeth this opinion . had there been a reason given in this statute ▪ or by the lords , to make good the use and approbation ; it had been somewhat to convince a man of the justice of this law , but since there is none , i hope that a nolunt mutare , shall not make the law one whit the more reasonable : it is not what we will not do , but what ought to be done that ought to poize in judgement . nevertheless , i submit all to graver judgements . the next thing that i question , is ; whether tryal by jury , as it is now in use , be agreeable to reason , and for the good of the publick , or not ? when i had seriously considered with my self , how great a burden lies upon such mens shoulders , who are of a jury ; and of what great importance this way of tryal is to all men of this common-wealth ; the lives and fortunes of all men being subject , and lyable to their verdict and judgement . and when i had further thought with my self , that although this be the most exact and equal way of tryal in the world , for men to be judged by their peers ; and that not by one or two onely , but by 12 men of the neighbour-hood . and therefore saith my lord cook upon litt. 1. a jurer ought to be dwelling most near to the place where the question is moved ; and such are presumed to be best conusant of the matter of fact . 2. he ought to be most sufficient both for understanding that his ignorance may not mislead him ; ) & competency of estate ( that he may not be corrupted through poverty , or necessity . ) 3. he ought to be least suspitious , that is , to be indifferent , as he stands unsworn , and then he is accounted in law , liber & legalis homo ; otherwise he may be challenged , or excepted against , and not suffered to be sworn . the most usual way of trial ( saith he ) is by twelve such men ( it were well if they were ) for ad quaestionem facti non respondent judices . and matters in law the judges ought to decide , for ad quaestionem juris non respondent juratores : and certainly this is the most equal and just way of trial. for the institution and right use of this trial by twelve men , and wherefore other countreys have them not , and how this trial excels others ; see fortescue at large , cap. 25 and 29. again , the law hath taken such care for equalitie and right in such trials ; that the law hath inflicted a most heavie doom and judgement in case they give a false verdict , by way of attaint against the jurie : for which you may see cook upon litt. fol. ●94 . and fortescue , cap. 26. yet for all this , when i again consider what weak and ignorant juries are for the most part returned , i cannot sufficiently wonder and lament , that mens lives and fortunes should depend upon such mens verdicts . that such men ( as many of them are ) who have not had so much good literature , as to be able to read , should be judges and disposers ( as upon the matter they are ) of other mens lives and estates . but here it may be objected by some , that the trials are before the learned judges of the law , who may direct them , and satisfie them in their doubts ; and therefore there is no such fear of injustice , as is supposed . this i conceive is sufficiently answered before , in that the law is , that the jury are the onely judges of matters of fact , and in that , they may judge according to their own conscience ; and are not bound in such case , to ask advise of the judges , or if they do , they are not tied to follow it : nor , in truth , ought the judges in such case to direct them , ( though in matter of law , of which they indeed are the proper judges , they may and ought to do it ) their work is onely truly and faithfully to repeat the evidence on both sides , and so to leave it to the jurie . my lord cook saith , that in ancient time they were twelve knights : and fortescue saith , that the juries are very oft made , specially in great matters of knights , esquires , &c. cap. 29. fol. 67. though this be of as high consequence and concernment to the publick , as may be , yet i shall not desire , that there should be twelve knights , or twelve esquires to every jurie ; for so in defect of them , there would be often a failer of justice ; and besides , some cases are so small and inconsiderable in themselves , that a mean and ordinary jurie , may be sufficient for that purpose . but this i shall humbly desire , that in all cases which touch a mans life , or his estate , to any considerable value , there may be twelve able understanding gentlemen returned of the jurie , such as are known in their countrey to be men of competent worth for so great an imployment . this would very much advance right , and determin disputes and controversies ; which now frequently are again revived , by reason of the verdicts of weak and unable juries . and it were happie for the publick , if an act were made to that purpose . the next thing i shall discuss , is the loss of life in case of theft , and the forfeiture thereupon . in which the question is , whether it be consonant to the word of god , or reason , that a man should lose his life for theft , and should incur so great a forfeiture and penaltie as loss of all his estate , and corruption of his bloud ? it is true , there is a commandment against it , thou shalt not steal : but there is no penaltie inflicted upon those that do . but by the judicial law , exod. 22. vers. 1. if a man steal an ox or a sheep , and kill it , or sell it , he shall restore five oxen for the ox , and four sheep for the sheep : and vers. 4. if the theft be found with him alive ( whether it be ox or ass , or sheep ) he shall restore the double . so that by that law , there ought to be a restitution , but no life was then in danger . but to this it will be said , that that law was given to the jews onely to observe , and doth not extend to us . to this i say , that had it been an equal and just law to suffer death in such case , without doubt it had been imposed upon them to observe ; for in the chapter before , murder is made death ; life for life , that is equal punishment : but life for any wordly or temporal substance whatsoever , holds not the least equalitie of proportion ; for one mans life is of greater value and esteem , than all the treasure upon the earth . man is the image of god , and therefore certainly we ought to deal tenderly with his image . and if god who hath the sole absolute power and dominion over all his creatures , thought not fit to give the magistrate , who is his vicegerent here upon earth , such power over the lives of men , but hath reserved it to himself ( except in case of murder ) how dare then any power or authoritie what soever usurp it ? the civil law ( if we may believe fortescue ) is more agreeable to the word of god , for he saith , cap. 49. that the civil laws do judge open theft to be satisfied by the recompence of four fold , and private theft by the recompence of double : so not to suffer death by their law . i do not write this to incourage men in this heinous crime ( which is too too common in these times ) no , far be it from me so to do ; for i know if there be not a severe law against it , there will be no injoying any thing that a man hath ; the law of propertie will be of little force ; but that there may be some other way of punishment , as by banishment , slavery , or the like , which may be as effectual to terrifie men , & keep them from it ; so that we do not take away the life of man , over which there is no jurisdiction given in such case by god ; we having no precept , rule , or warrant for it . and now to me , the forfeiture and penaltie in such case , is no less unreasonable , is it not too much to lose the life ? and yet will not that satisfie ; but thereby also his bloud be corrupted ; and all his estate forfeited ; so that his issue is not inheritable to him ; nor to any other ancestor ; nor can this corruption of bloud ( it is so high ) be restored otherwise , than by act of parliament . and if he were noble or gentle before , he and all his children and posteritie , are by this made base and ignoble , in respect of any nobilitie or gentrie which they had by their birth . for my part , i think there cannot be a more rigid and tyrannical law in the world , that the children should thus extreamly suffer for the crime and wickedness of the father ; the innocent for the nocent . it is true , that as the apostle saith rom. 5. that by one man sin entered into the world , and death by sin ; but he goes further , and so death went over all men , in whom all men have sinned . we all sinned in adam , therefore no wonder if death fall upon all . god hath the supream soveraign power over all his creatures , and so may inflict what punishment he pleaseth upon them for their sins , & who dares question it , or say it is unjust ? and yet god deals not thus severely with man ; for in the 18. of ezek. he reproveth the israelites for using this proverb . the fathers have eaten sowr grapes , and the childrens teeth are set on edge ; and saith , they shall use it no more : for that soul that sinneth , it shall die ; and after verse the 20. the same soul that sinneth , shall die ; the son shall not bear the iniquity of the father , &c. thus you may see the great mercie of god , whose greatest severity were but justice . doth not this extreamly condemn the injustice of that law ▪ which so severely punisheth the children for the transgression of the father , a wicked father may have a good child , and shall such a one be ruined through the wickedness of the father : his estate wholly lost , and not onely disinherited through his corruption of bloud , as to his fathers estate , but also made incapable of taking any thing by descent from any other ancestor ? a more rigorous law certainly was never made . but i know it will be said , that the reason of the severity of this law , is the more to deterre and affrighten men from this sin , which is so frequent amongst us ; ut metus ad ●mnes , paena ad paucos , &c. to this i answer , that it is not lawfull nor warrantable , for men to make unjust and tyrannical laws to keep men from sinning ; and to put them in execution : punish the offending father , but not the innocent children . the custom of gavel-kind is more reasonable , for though the father be hanged , the son shall inherit ; for the custom is , the father to the bough , the son to the plough . i shall conclude it with this , that i hope one day to see this custom become the common-law of england : the next thing i have in consideration , is , touching the debts of infants under the age of 21 years ; and therein i propose this question . whether it be a just and reasonable law , that infants under the age of 21 years , shall not be charged with their debts ? first , we are to know what the age of discretion is for man or woman ? what full age ? the age of discretion for a woman in judgement of our law is 12. for a man 14. full age is 21. and under that age they are said to be infants in law , and under that age they have not power to dispose of their estates , not are they liable to pay their own debts ; it is true , that for necessaries , as cloaths , dyet , schooling , & the like , they are liable , but for those neither they cannot give a penal bond , a bill they may , and it shall bind them . in general , an infant may better his condition , he can not make it worse ; this i confess to be law , yet it seems very hard to me , that an infant should not be liable to pay such debts , as he shall ow for any thing had , or received after the age of discretion ; especially , when i consider what the law is in other cases of infancy . by custom , he may make a lease at his age of 15. and it shall bind him . cook upon littleton fol. 45. b. nay further , by custom he may make a feoffement at 15. years , 5. h. 7. 41. 11. h. 4. 33. now no custom is lawfull , that is not reasonable . and yet further , an infant of the age of discretion , nay under , may suffer death for murder , or theft , nothing more common . 3. h. 7. 12. an infant betwixt 10. and 12. gave a man several wounds till he died , and then he drew the body into the corn ; for which he was convicted ? but it is true , that judgement in that case was respited for his tender age , but many justices that he was worthy of death . note , an infant of 9. years killed another , and it was adjudged , that he should be hanged , quia malitia supplet aetatem . but execution was respited to have pardon ; see the assises . a woman infant within age killed her mistris , and was burnt for it , see likewise the assises . again , an infant shall not avoid a marriage at the age of discretion , made , and contracted by him . cook upon litt. fol. 79. now i argue thus ; if an infant may do the greater , why is it not reason that he should do the less ? if he may be chargeable for things of a much higher nature , why not for those that are of a lower ? by custom he may sell his estate ; by law , he may suffer death for felony : and may contract matrimonie ; things of much greater consequence to himself : why then in reason should he not be liable to the payment of his debts ? my lord gook saith , that argumentum a majori ad minus , an argument from the greater to the less , is a good argument in law . besides , he is as much obliged in reason and conscience , to pay his debts , as a man of full age , why then the law should not tie him to it , i know no reason : i mean for debts contracted after the age of discretion : and if the law then judges him to be discreet , why should it not make him just & honest . men of themselves naturally are too prone to injustice and unrighteous dealing one with another , therefore very unfit that they should receive the least incouragement to it . how frequent a thing is it for men in such case , to take the advantage of infancy ; and most unjustly to cousen their creditors of their just debts , which in conscience they are bound to satisfie . but here it will be objected , that it is the creditours fault to trust such a one who is under age , and therefore if he suffer , he may thank himself . to this i answer , that though the ignorance of law will not excuse a man , the ignorance of fact will , and how a man should know such a one to be an infant , since many , nay most men may , and do deceive their judges by their looks ; i cannot think or imagine . and he that shall inquire his customers age , may sit still in his shop and blow his fingers , for any thing else that he shall have to do . i shall say no more but this , that certainly , that law is most just , that gives the least liberty or advantage of fraud or deceit to men . the next thing i shall speak of , and in that i shall be very short , is , clergy , and in that i shall propound this short question . whether clergy be agreeable to reason , and justice , or no ? clergy is , when a man is convicted of man-slaughter , or any other crime or offence , for which he may have his book , and thereupon prayes his clergy , that is , that he may have his book , which being granted , the ordinary , being a clergy man , and heretofore in stead of the bishop who is the ordinary , opens the book , and turns him to a place to read , and reading , the court demands whether he reads as a clerk , if the ordinarie saith that he doth , he saves his life by it , and is onely burnt in the hand . we must know , that the original of this use of clergy , was at that time when the world was in its minority ; i mean this little world , and there were but few clerks , or learned men ; and then in favour , and for incouragement of learning , as also for supply of places which were destitute of men of such abilities , this law or priviledge of clergy was invented and approved of for saving of such mens lives in some cases , for the reasons aforesaid ; and this was the reason that women could not have their book , because they could not be clerks . now i would fain know of any one , whether the cause , or reason of the making of this law holds to this day or not ? if it doth not , what reason can there be to continue it ? for the rule of law is , cessante causâ , cessat effectus , the cause ceasing , the effect likewise ceaseth . and that it doth not , nothing more evident , for certainly ( god be thanked for it ) england never more abounded with learned men , than it doth now : and therefore no want of such clerks as they are . that this law stands not with reason , i shall offer these things to consideration ; first , the slightness and inconsiderableness ( especially as the case stands now ) of the thing it self , that reading of a line or two should save a mans life ; by which the crime is no way answered or satisfied for . secondly , it may prove very unjust , for if several men be convicted of one and the same offence , one may happily read , the other not , so that the one shall thereby save his life , and the other suffer ; which cannot stand with justice . but where they are both equally guiltie , and so have deserved death ; yet to pardon one may be just , for that the one may have been a more notorious offender than the other , and so not deserving the least favour , but for one to have power to save himself , and not the other , that i judge very hard and unreasonable . lastly , ( if there were reason in the thing it self ) the difficultie of the tongue , and in many places , the character being an old letter too , and so hard to be read , makes it very unreasonable . so that i may safely say , were it not through the favour of the court , not one of twentie could save their lives by reading . since therefore there is no ground for the continuance of this law ( as there is not for any that wants reason for the support of it ) i think it were better in such cases , where clergy is allowable , that they should be onely burnt in the hand , as women are , and so set at liberty ; which nevertheless i submit to graver judgements . the next i shall write of is the distinction in law , betwixt murder and man-slaughter ; and therein put this short question . whether the law , that a man shall not suffer death for manslaughter be not against the word of god ? the distinction in law betwixt murder and man-slaughter , is thus ; murder is , when one is slain with a mans will , and with malice prepensed or fore-thought : as where two falling out one day , appoint the field the next day , and then meet according , and one of them is slain , this is murder in the other ; being done premeditatedly & upon cool bloud ; and for this a man shall not have his clergy , but shall suffer death . homicide , or man-slaughter , as it is legally taken , is when one is slain with a mans will , but not with malice prepensed ; as where two being together fall out , and both draw upon each other , and one kils the other , this being done upon hot bloud , is but man-slaughter , for which he shall have his clergy , and save his life . now , how this distinction stands with the word of god , that we are to consider , by the judicial law ; exod. 21. 12. he that smiteth a man , and he die , shall die the death . and numb. 35. vers. 16. and if one smite another with an instrument of iron ( or with a stone , or other instrument , as is said in the verses following ) that he die , he is a murtherer , and the murtherer shall die the death , saith the marginal notes , wittingly and willingly ; and certainly in the case of man-slaughter , the man is wittingly and willingly killed . i could cite many other places to the same purpose , but these are sufficient . now in these places it is said , that he that kils another shall die the death ; here is no such qualification , or distinction , as murder and manslaughter . it is true that where a man kills another unawares , per infortunium , as we say in law , which we call chancemeddly ; in such case , because it was not done with his will , it pleased god in mercy , to provide sanctuaries , or cities of refuge , for such offenders , to flee unto to save their lives ; and the onely punishment was , that they were to continue there unto the death of the high-priest . so in our law where one is slain casually and by misadventure , without the will of him that doth the act , he shall not die for it , but instead of the cities of refuge aforesaid , ( that he may not go altogether unpunished , who was the cause of anothers death , ) he forfeits all his goods and chattels for it . it is plain and evident therefore by the word of god , that he that wilfully killeth another , shall suffer death for it , whether it were in hot , or cool bloud , it differs not : how then can that law be just ( be it upon what politick principles soever ) that saves the life of such an offender ? other satisfaction can be none , and if god requires that , how dare we do the contrarie ? he that killeth a man in heat of bloud , deserves to be hanged when it is cool . and it is a sad and dolefull thing to consider , how many thousands of lives this law hath taken away ; by incouraging others to commit the same offence , considering their lives were not in danger . i shall conclude it , with that in the numb. cap. 35. vers. 33. bloud defileth the land : and the land cannot be cleansed of the bloud that is shed therein , but by the bloud of him that shed it . the next thing that comes in consideration , is concerning counsel in treason or felony ; and in that i shall propound this short question . whether it be a reasonable law , that a man shall not have counsel upon an indictment of treason or felony ? that the law is such , it is admitted , and without dispute ; and the reason that is given for it , is , that the indictment being heretofore at the suit of the king , the king intended nothing but justice with favour ; and therefore he would be contented that the justices should help forth the parties as far as reason and justice may suffer ; and that in all things that pertain to the form of pleading , the judges shall so instruct the parties , that they incurre no damage thereby . this reason at the first aspect , seems very plausible ; but better dived into , i doubt it will not appear so . do not we know , that though the judges were sworn to do right between the king and his people ; that yet they were the more immediate counsel of the king ? and though a poor man might happily find justice , as having nothing but a life to lose , i doubt , it did not always fare so with the rich ? and therefore , heretofore , when any gentleman had committed any crime for which his life was in danger , it was usual to inquire in the first place , what estate he had , and if it was answered , a good estate , it was thereupon replied , that is enough to hang him . then he had no sooner committed the offence , but his estate was begged of the king by some great courtier , and what relation there was then between the judges and the court , we very well know , but to say no more but this , suppose it shall so fall out , that the judge be a weak ignorant man himself , before whom the tryal is , ( as we have not been wanting of the like experience in our age ) who then shall advise the prisoner ? is not this then a case of great extremity and injustice ? to conclude , in the most petty , ordinary , and inconsiderable action that is , the law allowes a man counsel ; why then should it be denied him in a case of the highest concernment to him that can be , his life ? if he shall have counsel in lesser things , why not in greater , where there is most need of it ? we say , that life is one of the laws favourites , but it is not so dealt withall in this case ; but now the court is gone , i hope this law will in time be altered . the next thing to be considered is , actions for slanderous words , in which i make this question ; whether actions for slanderous words , being meer contentious suits , ought in reason or conscience to be so much countenanced , as they are ? never did these actions more abound , to the great and intollerable vexation of the people than they do now . and it were to be wished ( and certainly never in a better time than now ) that the greatest part of them were suppressed , that words onely of brangle , heat , and choler , might not be so much as mentioned in those high & honourable courts of justice . for i profess for my part , i judge of them as a great dishonour to the law , and the professors thereof ; especially when i consider , that they are used onely to promote the malice , and vent the spleen of private jarres , and discontents amongst men . yet i do not condemn all actions for words neither , for it is just and equal , that where a mans life , livelyhood , or reputation ( which is dearer and nearer to him than the former ) is much prejudiced and indangered by such scandals , that in such case the offender should be inforced by action to make compensation . but that a man should flee to the law out of malice , and make the courts of justice maintainers of every small and vain brabble , this seems to me utterly unlawfull and intollerable amongst christians . i cannot but take notice of that which wray , chief justice said in cooks 4. book , that though slanders and false imputations are to be repressed , because that oftentimes à verbis ad verbera perventum est , men fall from words to blows . yet he saith , that the judges have resolved , that actions for scandals should not be maintained , by any strained construction or argument , nor any favour extended for supportation of them ; and he adds the reason of it , because they do abound more in these dayes , than in times past , and the intemperance and malice of men increases ; et malitiis hominum est obviandum ; and further adds , that in our old books , actions for scandals are very rare , & such as are brought , are for words of eminent slander , and of great ●●portance . this must needs be acknowledged to be a most exact and true observation ; for , if i miscount not i find but nine reported cases for words from e. 3. time , ( in which they began ) to q. elis. and then they extreamly multiplied , and so have done ever since , to the great shame and dishonour of the law . and certainly these are very much against religion and peaceable conversation amongst men . and how much doth s. paul in all of his epistles decry , and labour to depress as much as possibly may be , all vain brabbles , strifes , debates , and contentions , which tend to the disturbance of the common-peace ? and i am confident nothing more tending that way , than such idle , frivolous actions as these are ; and to those that go to law for scandalous words ( except in extra●●●inarie cases ) a man may justly use the words of the apostle , that it is so , that there is not a wise man among them . and it were to be wished , that men would be more carefull of the management of this little , yet unruly member , in which is seated either heaven or hell ; this is that which often proves the greatest good , or the greatest evil to most men : which causes dissentions amongst men in families , kingdoms , and common-wealths ; wherefore i could wish , that every man would take up the saying of the prophet david , and carefully observe it ; i will take heed to my wayes , that i offend not with my tongue ; i will keep my mouth as with a bridle . but now i beseech you , give me leave , and i shall in a word inform you how these frivolous contentious actions may be very much abated , if not wholly taken away : let no words be actionable , which do appear to have been spoken in choller and passion ; or if actionable , yet let the plaintiff recover no more in damage , than he can upon oath make appear , that he was really and actually damnified by the speaking of them , and if this were provided by act of parliament , these actions would be as strange , and as rarely brought for time to come , as they were in former ages ; for nothing incourages the bringing of them more , than the intollerable , unjust , and excessive damages usually recovered by them . i shall conclude with this ; though the tongues of men be set on fire , i know no reason wherefore the law should be used as bellows to blow the coals . the next thing that i am to consider , is concerning actions that die with the person ; and therein the question is in short but this . whether it be a reasonable law that actions should die with the person ? the rule is actio moritur cum persona ; now what those actions are that shall die with the person is the thing to be inquired into , and first negatively , quicquid oritur ex contractu vel conventione non moritur cum persona , whatsoever arises by way of covenant or contract doth not die with the person . affirmatively all actions that are said in law to be meerly personal , as trespas , debts upon simple contract , battery , words , debts upon an escape against a keeper of a prison , &c. and such in law die with the person , and no action can be brought against the executors . this seems to me to be a very hard law , and a failer of justice , that i should suffer against law , and that the death of him that doth the wrong , there being no act or default in me , should take away my remedy . it is true that the law in case of a bond , covenant , or the like , binds the executor , though he be not named ; and what is the reason ? because the executor represents the person of the testator ; why then , upon the same reason , should not a personal tort of the testators , as well bind the executor ? besides , it is a rule in law , that the act of god , ( as it is here in case of death ) shall prejudice no man ; why then in such case should it take away my action ? again , there is another rule in law , that lex non debet deficere conquerentibus in justitia exhibenda ; the law ought not to be defective in exhibiting justice to complainants . but in this case , the law is defective in justice , if the inevitable fate of death shall take away my action . there is likewise another rule in law , that lex nulli facit injuriam , the law injures no man ; but i say in this case , it injures me , if it deprives me of my action by the death of the person . in fine , where ever there is a damage , there ought , in reason , to be a satisfaction for it , which ought not to be taken away or otherwise discharged , but by my act that am damnified , which i submit to judgement . the next thing that i shall debate , is concerning paine fort & dure , and in that propound this question . whether the law or judgement of penance , or pain fort & dure , against a man , who is indicted of felony , and stands mute , be agreeable to reason and conscience , or not ? this law or judgement of penance , or pain fort & dure ; is that which we commonly call pressing to death ; which is used in such case , where a man is indicted of felony , upon matter evident and proveable ( for in case of an appeal , this judgement cannot be given nor doth it hold in case of treason , or petit larceny ) and thereupon stands mute ; in such case , saith the statut● of westminst. 1. cap. 12. solent mises en la prison fort & dure ▪ &c. that is they shall have strong and hard imprisonment . by the way i shall here observe , that the words of this law do not extent to pain , but onely to fort & dure , to hard and strong imprisonment , and therefore since that law , i cannot understand the ground or reason of that cruel and heavy judgement which is given in such cases ; hard and strong imprisonment may be inflicted upon such an offender ( according to that law ) without pressing , and starving to death by famine and cold ; nor can i conceive those words to extend to death ▪ but admitring the law were such . i shall , ( that all may understand the reason of the law , ) before i go any further , let you know , what it is to stand mute ▪ and in what case a man may be said to stand mute ; and what the judgement thereupon is . my lord cook in his 2 part of his institutes , fol. 177. upon the foresaid statute , saith , that a man may stand mute two manner of wayes ; first , when he stands mute without speaking of any thing , and then it shall be inquired , whether he stood mute of malice , or by the act of god , if it be found by the act of god , then to proceed , and the judges to make inquiry and to allow him all pleas , as if he had not stood mute . and the words ( of malice ) are remarkable , for it may be , the prisoner in truth cannot speak , and yet being not mute by the act of god , he shall be forthwith put to his penance ; as if the delinquent cut out his own tongue , and thereby become mute . another kind of mute is , when the prisoner can speak , & perhaps pleads not guilty , or pleads a plea in law , and will not conclude to the enquest , according to the foresaid act , or speaks much , but doth not directly answer , &c. to be short , when in the end he will not put himself upon the enquest , that is , de bono & malo , to be tried by god & the countrey ; then the foresaid act is sufficient warrant , if the cause be evident , or probable , to put him to his penance ; but if he demurre in law , and it be adjudged against him , he shall have judgement to be hanged ; so if he challenge above the number of 36. he shall be hanged , and not have pain fort & dure . i shall not inquire what the common law was before the making the said statute , whether the prisoner then stading mute should be hanged , as some held , and as at this day it is , in case of high treason , and , as they say , in case of appeal ; or whether then in favour of life he should neither have pain fort & dure , nor have judgement to be hanged , but to be remanded to prison , untill he would answer , according to others . but the first thing i shall consider , is , what the judgement , which the foresaid act calleth fort & dure , is , and then what the reason should be , that so severe a judgement is given in that case ; and then we may easily judge , whether it be consonant to reason and conscience ? the judgement is , that the man or woman shall be remanded to the prison , and laid there in some low and dark house , where they shall lie naked on the bare earth without any litter , rushes , or other clothing , and without any garment about them , but something to cover their privy parts , and that they shall lie upon their backs , their heads uncovered and their feet , and one arm shall be drawn to one quarter of the house with a cord , and the other arm to another quarter , and in the same manner shall be done with their legs , and there shall be laid upon their bodies iron and stone , so much as they may bear , and more , and the next day following , they shall have three morsels of barley bread , without any drink , and the second day they shall drink thrice of the water that is next to the house of the prison ( except running water ) without any bread , and this , shall be their dyet untill they be dead . well might my lord cook stile it ( as he doth after ) a strange and stupendious punishment , for when i first read it , i was even amazed and astonished at it , that such a law should be tollerated amongst christians , much more amongst protestants , strict professors of christianity , putting to death with such aggravations of torture and miserie , is rarely to be heard or read of , except amongst heathens , turks , and infidels . here is a dying three manner of wayes , ( though all but one death , which will at last nonplus tyranny , and put a period to all such like tortures ) onere , fame , & frigore , by weight , famine , and cold ; and therefore , saith my lord cook , this punishment ( if it were executed according to the severity of the law ) should be of all other the most grievous and fearfull . i confess i have not been an eye-witnes , nor would i for all the world , of any mans suffering in that kind , though it be every years experience of some mēs undergoing that death , and i do believe according to the severity of the law too , for it lies not in the power of the judge , much less of the executioner , any way to lessen or mitigate it , after judgement past . but now for the reason of this heavy and terrible judgement , which is ; according to the foresaid act , because he refuseth to stand to the common law of the land , that is , lawfull and due trial according to law , and therefore his punishment for this contumacy , without comparison is more severe , lasting , & grievous , than it should have been for the offence of felony it self , and for the felony it self , it cannot be adjudged without answer . a very strange thing , that a man should suffer ten fold more for his wilfull obstinacy in refusing to put himself upon a legal tryal , than he should for his crime or offence , which is a hundredfold greater ; more for the lesser , than the greater offence , more for contumacy , than murder . the punishment ought to agree , and to hold proportion with the offence , and not to exceed it . the rule of law is , that a man ought to be punished according to his offence ; and the statute of magna charta , cap. 14. is , that a man shall be punished secundum modum delicti , according to the manner of his offence , but certainly here is not the least equality or proportion between the offence and the punishment . contumacy the offence , pressing and starving to death , the punishment . it is true , that god having genes . 9. 6. commanded the murtherers bloud to be shed by man ( the murtherers not the thiefs ) and thereby enstated the power of the sword on the supream magistrate , not onely permits him , and makes it lawfull for him so to punish such malefactors , but commands and requires him so to do , as his minister to execute wrath ; for he ought not to bear the sword in vain ; but this commission is not given to him absolutely , & arbitrarily , to use as he list , though he may take away the murtherers life , yet he hath no rule nor warrant to take it away by cruel and exquisite tortures and torments ; that is praeter mandatum , beside the command . mercie is one of gods attributes ; and even the very sum and body of the scripture : therefore tyrannie must needs be against the mind and will of god , religion & christianity . taking away mēs lives by cruel tortures is diabolical and heathenish ; it is the divils part to torture and torment , and it is no strange thing for wild beasts to be cruel , but that homo homini daemon , one man should act the part of the divil with another ; or that christians should be cruel ; this is contrary to our education and profession . the magistrate , for prevention of sin and wickedness , may severely punish and correct , yea , and in some case take away the life too ; but not tyrannically . barbarity and inhumanity suits not with magistracie . the prophet david cals magistrates gods ; and certainly they approch then nearest to the deity , when they shew mercie . questionless it was a high and great aggravation of the sin of the jews in torturing of our blessed saviour by that most cruel death of the cross . but to this it will be said , that that was wholly unjust in the jews , not so here ; because it is an execution of justice . to this i say , that it is in no case just , to take away mans life by lingring and cruel tortures ; this turns the execution of justice into sin , and makes the law it self unlawfull . but it may be objected , that it is the parties own fault that he stands mute , and will not plead to be tried ; & volenti non fit injuria ; seeing he will so suffer , there is no injury done him ; and therefore not to be pittied . to this i say , let him suffer death for this his obstinacie , as he should if he had been tried , and found guilty ; and as the law was , if we believe some , before the foresaid statute , which is a satisfaction equal to the highest crime or offence whatsoever against man ; but let this cruel and barbarous law of paine fort & dure be taken away , and expunged out of our books , never to be revived . silence may contract guilt , but ought not so to aggravate punishment ; and certainly a mans folly or obstinacie , will not excuse or extenuate the magistrates cruelty . but to conclude , i cannot pass by that gracious and mercifull act of this present parliament , which hath taken away that barbarous and tyrannical law of quartering of men in case of treason ; and doubtless , this law , if strictly examined , will be found as tyrannical , if not more than the other , and if it shall appear that there is as much reason to take away this , as that , i hope it will not continue long after it . i shall say no more but this ; gratious and mercifull laws concludes the governours to be men ; but tyrannical , beasts . the last thing i shall debate is concerning wreck of sea ; and in that propound this question . whether the law of forfeiture of goods wrecked at sea , be a reasonable law , or not ? i am not here to meddle with flotsam , that is , where goods float upon the sea ; nor with jetsam , where goods are cast into the sea to prevent shipwreck , nor yet with lagan , where they are fastened to any thing that they may be discovered ; for of these i may say ( in regard it is uncertain upon what coast they may be cast , or whether driven ) capiat qui capere potest ; ketch that ketch can , but with wreck of sea , and that is such goods onely , which upon a shipwreck , are cast or left upon the land by the sea , and this onely is wreck . the ground of this wreck of sea , was , as it is said , that goods being so wrecked , the property was in no man , and therefore the law gave them to the king , who was lord of the narrow seas , who was bound to scowr the seas of pyrats and petty robbers , towards the charge of the same , this was the foundation of this law . and now it is fit to know , what the common law was before the statute of 3. e. 1. d. s. saith , that by the common law goods wrecked upon the sea were immediately forfeited to the king , but i rather believe bracton lib. 3. 33. 135. that there shall be no wreck where the owner comes and avows the goods to be his ; observe there that that is indefinite at any time , and that were a reasonable law . and cook lib. 5. sr. henry constables case , it is said , that the statute of 3. e. 1. was but a confirmation of the common law , then certainly the law was the same before , as it is now by that statute . and by that statute of 3. e. 1. cap. 4. concerning wrecks of the sea , it is agreed , that where a man , a dog , or a cat , escape quick out of the ship , that such ship nor barge , nor any thing within them , shall be adjudged wreck , but to be saved and kept by the sheriff , &c. so that if any sue for , and prove the goods his , within a year and a day , they shall be restored , otherwise to remain to the king , &c. so that the law is , that if but a dog or cat escape alive out of the ship , then not to be adjudged wreck , otherwise it is . now to me this seems a very hard law , that a man should lose his estate there being no act , or default in him , which is contrarie to the rule of law : and as i have said before , there is another rule in law , that the act of god shall prejudice no man ; and for my part , i cannot judge an act of parliament made against this rule , to stand with reason . this is afflictionem afflictis addere , to add affliction to affliction , and to throw him quite down that is a falling : certainly there cannot be any thing more against reason and religion , than for to add burthen to burthen , sorrow to sorrow : when the afflicting hand of god is upon a man , 't is sad and miserable to meet with such as jobs friends . for a man in an impetuous dreadfull storm and tempest , to be tossed to and fro at sea , by the raging and swelling billows thereof , every moment expecting nothing but destruction ; and at the last , to be ship-wrecked and swallowed up in the merciless deep , and after all , to have this further aggravation of miserie , that if nothing escape alive , the goods to be forfeited , or if any thing escape alive , if not a man , to be confined to a year and a day to prove the propertie , when that it is almost an impossible thing for friends to be informed of the sad misfortune , the men being all cast away ; this seems to me a very hard and strange law . but to this it may be said , that the goods may be bona peritura , and if libertie should not be given to dispose of them , after such time no claim being made , they may perish , and so nobodie be advantaged thereby . to this i say , 't is true , it may be so ; therefore i conceive it just , as in case of estrays , so in this case , that a law should be made , by which it should be provided , that notice should be given of such a shipwreck and such goods taken up , by way of proclamation , in all the port-towns and other chief cities of merchandise ▪ and then if claim be not made within the same time , the forfeiture may be more reasonable . and we ought to be invited to this the rather , considering it was the hand of god which brought this affliction , and therefore let us not add forfeiture of estate to loss of life , if possibly it may be prevented . the next and last thing i shall discourse of , is wills , and of that onely by way of advise . good advise in case of making last wills and testaments . the onely advise that i shall give to men in this case , is , that they would make their last wills and testaments in their health , with the advise of lawyers , not of parsons or scriveners , who know nothing but meer matter of form , and like carriers horses keep their rode ; judging their forms to serve all cases ; by which they raise infinite disputes and controversies , and often undo many men . nor is it a prejudice for any man to make his will ; since that in law he may revoke it when he pleaseth ; for voluntas est ambulatoria usque ad mortem . i confess in the case of wills , the favour of the law to be very great , for that they are conceived generally to be made in extremis ; for 't is a maxim of the common law , quod ultima voluntas testatoris est perimplenda secundum veram intentionem suam , & reipublicae interest suprema hominum testamenta rata haberi . that is , that the last will of the testator is to be fulfilled , according to his true intention : and it concerns the common-wealth , that mens last wills and testaments be ratified and confirmed . the law is to be thanked for this care , not themselves , and let not this incourage men in the neglect of that which often causes so much debate and dissention ( even to an irreconcilableness ) amongst a mans children and kindred ; & without doubt it is a dutie required at every mans hands , whom god hath blessed with a fortune , that he avoid that as much as possibly may be . and here i shall give you my lord cooks directions concerning making of wills , ( which indeed is very excellent ) in his third book fol. 36. buttler and bakers case ; where he saith , touching wills , of which you have many good matters in the said case , my advice is to all that have lands , that you would , by the advice of learned counsel , by act executed , make assurances of your land , according to your true intent , in full health and memorie , to which assurances , you may add such conditions or provisoes of revocation as you please ; for i find great doubts and controversies from day to day to arise , upon devises made by last wills , sometimes in respect of the tenures of the land ( which now thanks be to god is taken away ) sometimes by pretences of revocations , which may be made easily by word , also in respect of obscure & insensible words , and repugnant sentences , the will being made in haste , and sometimes pretending that the testator , in respect of extreamitie of pain , was not of sane memorie , and divers others scruples and questions are moved upon wills ; but if it pleaseth you to devise lands by will ; 1. make it by good advise in your full memorie , and inform your counsel truely of the estates and tenures of your lands , and by the grace of god , the resolutions of the justices in this case will be good direction to counsel learned , to make your will according to law , and by this to prevent questions and controversies . 2. 't is good if your will concern inheritance , to make it indented , and to leave one part with a friend , lest after death your will be suppressed . 3. at the time of publication of the will ; take credible witnesses , who may subscribe their names to it . 4. if it may be , let all the will be written with one and the same hand , and one and the same parchment and paper , for doubt of alteration , addition , or diminution . 5. let the hand and seal of the devisor be put to it . 6. if it be in several parts , let his hand and seal be put , and the names of the witnesses subscribed to every part . 7. if there be any interlining , or rasure in the will , let there be made a memorandum of it . 8. if you make any revocation of your will , or of any part of it , do it by writing , by good advise ; for upon revocations by wills , insue controversies , some of the witnesses affirming of it in one manner , and others in another manner . reader , you may observe , that the scope of my labour herein , is to avoid as much as may be , all unnecessarie strifes & debates whatsoever , which made me add likewise these directions concerning making of wills ; which if well observed and followed , will prevent many contentious suits , and debates in law , and much tend to the peace and good of this common-wealth . finis . the laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the 29 of apr. 1686 by a noble earl, alexander, earl of morray, lord doun and abernethie, &c., secretary of state for the kingdom of scotland, his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. 1686 approx. 147 kb of xml-encoded text transcribed from 17 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2003-11 (eebo-tcp phase 1). a58629 wing s1253 estc r15416 13144673 ocm 13144673 98053 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a58629) transcribed from: (early english books online ; image set 98053) images scanned from microfilm: (early english books, 1641-1700 ; 778:11) the laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the 29 of apr. 1686 by a noble earl, alexander, earl of morray, lord doun and abernethie, &c., secretary of state for the kingdom of scotland, his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. moray, alexander stewart, earl of, d. 1701. cromarty, george mackenzie, earl of, 1630-1714. 32 p. printed by the heir of a. anderson ..., edinburgh : 1686. reproduction of original in huntington library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose 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that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -scotland. 2003-07 tcp assigned for keying and markup 2003-08 apex covantage keyed and coded from proquest page images 2003-09 john latta sampled and proofread 2003-09 john latta text and markup reviewed and edited 2003-10 pfs batch review (qc) and xml conversion the laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland , defender of the faith. holden at edinburgh the 29. of april 1686. by a noble earl , alexander earl of morray , lord doun and abernethie , &c. secretary of state for the kingdom of scotland , his majesties high commissioner for holding this parliament , by vertue of a commission under his majesties great seal of this kingdom . vvith the special advice and consent of the estates of parliament . collected and extracted from the registers and records of parliament , by george viscount of tarbat , lord mcleod , and castle-haven , &c. clerk to his majesties councils , registers , and rolls , &c. edinburgh printed by the heir of andrew anderson , printer to his most sacr●d majesty , anno dom. 1686. cum privilegio . god save king james , the seventh . laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland , defender of the faith. holden at edinburgh the 29 of april 1686. i. act of dissolution of the lands of cesnock and duchal . may 18. 1686. our soveraign lord , and estates of parliament , taking into their consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , the gr●●t and faithfull services done to his majesty , and his royal b●●ther , of ever blessed memory , by iohn lord viscount of melfor●● one of his principal secretaries of state , and his constant zeal 〈◊〉 faithfulness to the interest of the crown , and particularly , tha● his majesty was sensible of the many journeys made by the said ●ohn viscount of melfort , from scotland to the court of england , upon occasions of great importance , to the service of the crown and government , for most of which he had no allowance , at least none suitable to his expenses ; and that he had faithfully executed several offices of great trust , as lieutenant general and master of the ordnance , lieutenant governour of the castle of edinburgh , thesaurer deput , and secretary of state for his majesties ancient kingdom of scotland ; in which imployments he did very well behave himself ; that he was instrumental in the defeat of the rebels at bothwell-bridge , was diligent against the rebels thereafter ; and at great pains and charges in the circuits , for the shires of lanerk , stirling , renfrew and dumbarton , in the year 1684. and that he had performed several other good and acceptable services . as also his majesties commissioner , as having speciall warrand and instruction from his majesty , having proposed to the estates of parliament , that his majesty judging it fit for the interest of his crown , and the good and wellfare of this kingdom , to purchase and acquire from the said iohn viscount of melfort , the lands , baronies and others aftermentioned , wherein the said viscount stands heretably infest , viz. the lands and barony of muirhall , comprehending therein the lands of inverneil , kilmo●r , dounanoltich , craigmoiral , kilbryd , kilmorich , auchinbreck , melfort , kenmore , knaps , kilmorie , kilberrie , auchinsalloch , imstremich , barleamich , dounarderie , eunichan , kildalban , dargachie , cariedale , drummoir , crear , oib , muirhall , and several other lands , teinds and rights mentioned in the charter thereof , granted by his majesty to the said iohn viscount of melfort , of the date the nineteenth day of march 1686. which did formerly pertain to sir duncan campbel of auchinbreck , iohn campbel of melfort , iohn campbel of knap , dougal campbel of kilberrie patrick mccairter of imstremich , eivor mccivor of askins , donald mcaveish of dounarderrie , neill campbel of evneichan , campbel of kildalban , iohn campbell of dargathie , duncan campbell of cariedale , alexander mcmillan of douniemoir , donald mcneill of crear , alexander mcerverlich of oib , alexander campbel of oitter , william denholm of westsheill , mr. alexander campbell advocat , collin campbell elder of allangreig , and duncan campbell younger thereof , and stuart younger of cultness , and which fell in his majesties hands by the forefaulture of the forenamed persons ; and likewise the lands and barony of melfort , , comprehending the superiorities and the feu-duties of the lands of rayra , and the isle of loung , the lands of torsay , the lands and isle of shennay , the lands of daginneish , armadie , auchnasoul , ragray and of many other lands , particularly mentioned in the charter thereof , granted by his majesty , under his majesties great-seal , to the said iohn viscount of melfort , of the date the day of 1685. which superiorities and feu-duties pertained formerly to archibald campbel , late earl of argile , and fell in his majesties hands by his forefaulture , excepting only the superiorities and feu-duties of glen ▪ ila , balquhan , spitletown of balquhan , edinample and menstrie , which are reserved to the said viscount of melfort , the saids lands and baronies being of a vast and great extent , and containing great superiorities , and as lying and being situat in the highlands , and formerly belonging to the late earl of argile , and others of his party , who were involved in the late rebellion , and forefault for their accession thereto , has always been subject to disorders , which might indanger the publick peace , which being in his majesties hands . and his royal authority and interest concurring , may restrain and prevent the same , and his majestie conceiving it just and reasonable , that the said iohn viscount of melfort , in lieu and place of the foresaids lands and baronies formerly belonging to him , and which at his majesties desire , he is willing to resign in his majesties hands , ad perpetuam remanentiam , should have a full recompence and satisfaction for the same . and his majesty designing to give and dispone in permutation and excambion thereof , the lands and barony of riccartoun ; the lands and barony of cesnock and galstoun , with the tower of cesnock and pertinents ; the lands and barony of barr ; the lands and barony of castlemains and cumnock ; the lands and barony of hainring ▪ ross , all lying within the sheriffdom of air , formerly pertaining to sir hugh and sir george campbels , sometime of cesnock : the lands and barony of duchall , and the lands of porterfield , with the pertinents which pertained to porterfield , sometime of duchall ; and all other lands , teinds and rights whatsomever , belonging to the said sir hugh and sir george campbels , and porterfield ; and upon their forefaulture did come in his majesties hands , and are annexed to the crown by the fourty two act of the first session of this current parliament , dated the sixteenth day of iune 1685. and albeit his majesty be satisfied that the said transaction and excambion , is of advantage to his majesty and his crown , and for the good and wellfare of this real ● , upon the considerations foresaid ; and that the lands and others which the said viscount of ●elfort is willing to resign in his majesties hands , are of greater yearly rent and value ; y●● his majesty has thought fit , re integra , to propose the same in plain parliament , that they m●● seriously ponder , and consider the said particular services , done and performed by the said vi●●ount of melfort , to his majesty and his crown ; and the foresaid proposal , as to the transact●on and excambion above-mentioned , and give his majesty their advice , judgement and determination thereanent : and the estates of parliament after mature deliberation , treating and consulting anent the premisses , being fully satisfied and convinced , that either the said particular services , done and performed to his majesty by the said viscount of melfort , ( the truth whereof is sufficiently known , and did appear to them ) or the foresaid permutation and excambion , are just , sufficient and important reasons , concerning both his majesties interest , and the publick good and wellfare of this kingdom , that they should advise and consent to his majestes giving and disponing the saids lands , baronies and others above-exprest , to the said iohn viscount of melfort , his heirs and assigneys ; and for that effect , that the saids lands should be dissolved from the crown ▪ and from the said act of annexation . therefore , his majesty , with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands and barony of riccartoun ; the lands and baronies of cesnock and galstoun , with the tower of cesnock and pertinents ; the lands and barony of bar , the lands and barony of castlemains and cumnock ▪ the lands and barony of haining-ross , all lying within the sherifdom of air , formerly pertaining to the said sir hugh and sir george campbels , sometime of cesnock ; and the lands and barony of duchal , and the lands of porterfield , with the pertinents , which pertained to porterfield , sometime of duchall ; and all other lands , teinds and rights whatsomever , belonging to the said sir hugh and sir george campbels , and porterfield , may be disponed to the said viscount and his forefaids ; and for that effect has dissolved , and hereby dissolves the same from the crown , and patrimony thereof ; and from the foresaid act of annexation , made the sixteenth day of iune one thousand six hundred eighty five ; and from all other acts of annexation , and from all clauses , qualities and conditions therein-contained : and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , having proceeded upon the advice and deliberation of the estates of parliament , re integra ; and found by the saids estates , to be for great , weighty and reasonable causes , concerning the goop , wellfare and publick interest of the whole kingdom ; first proposed and advised , and maturely pondered and considered , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said viscount of melfort and his foresaids , of the lands , and others particularly and generally above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength and effect of a general law or act of parliament , and shall be as valid and effectual to the said viscount of melfort , and his foresaids , for the security of the lands , baronies and others above-exprest , as any other act of dissolution granted by his majesty , or his royal ancestors ; with advice and consent of the estates of parliament , in favours of whatsoever person at any time hereafter . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , shall not be understood to fall under , or be comprehended in any act salvo jure , to be past in this , or any other session of this current parliament ; but is hereby excepted therefrae in all time coming . ii. act for the better inbringing of his majesties supply . may 26. 1686. our soveraign lord considering , that by a clause in the act of convention of estates , iuly 10. 1678. it is provided , that persons lyable in payment of the supply then imposed , should not be holden to produce discharges , or receipts of the samen , after the tenth day of june 1686. years . and seing there is a great part of the cess and supply yet resting unpayed , for which no diligence is done ; therefore , his majesty , with advice and consent of the estates of parliament , statuts , ordains and declares , that the particular collectors in each shire , for whom the commissioners are answerable , shall be lyable in all time coming , to do diligence by quartering , or denunciation against the deficients , at the head burgh of the respective shires where they live ; and declares the said diligence so to be used , shall be sufficient to stop and interrupt the prescription , and make the deficients lyable , notwithstanding of the clause in the foresaid act , finding them not lyable to produce their discharges after the said day : and because the time prescribed by the said act , is now near elapsed . therefore , his majestie with advice and consent foresaid , does prorogat the same untill the first day of november next ; to the effect , the particular collectors may do diligence in the mean time . likeas , his majesty and the estates of parliament , statutes and ordains in time coming , that all cess which shall not be payed w●thin six moneths after the same falls due , shall bear annualrent after elapsing of the said six mone●hs , albeit horning or other diligence be not used for the same . and whereas by the act 3. par. 3. ch. 2. the number of foot to be imployed in parties for quartering upon the deficients , is declared to be six foot for every 1000. pounds of deficiency , and so proportionally ; which number is not sufficient , nor proportionable to the number of horses or dragoons appointed by the same act. it is therefore hereby ordained and declared , that the number of foot hereafter to be imployed , shall be fifteen for each 1000 pounds scots , and so proportionally ; and the number of horses and dragoons to continue as formerly . and likewise statutes and ordains , that if the parties appointed to quarter , shall not exact their quartering money every twenty days at least , that they shall not have power to exact the same thereafter , it being always competent to the parties , in case they get not voluntar payment , to poynd therefore ( within the said time ) any goods belonging to the persons on whom they are quartering , in the ordinary way appointed by law. and it is hereby enacted and declared , that deficient money shall only be due to parties , so long as they are actually quartering within the shire , and that the quartering money shall commence and be payed according to the foresaid act of convention of estates . iii. act ordaining interlocutors to be subscribed by the iudges . may 26. 1686. our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that from and after the first of november next , all interlocutors pronounced by the lords of council and session , and all other judges within the kingdom , shall be signed by the president of the court , or the judge pronouncer thereof : and his majesty , with advice foresaid , prohibits and discharges the clerks upon their peril , to extract any acts or decreets , unless the interlocutors , which are the warrands thereof , be signed as said is : declaring hereby the extracts which shall be given out otherways , to be void and null . iv. act ordaining all executions to be subscribed by the witnesses , without necessity of stamping . may 26. 1686. our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that in time coming , all citations before the lords of session , and citations before any other judges , civil or criminal , which formerly by law or custom used to be in writ , and all executions of letters of horning , inhibition and others whatsoever , be subscribed by the executer thereof , and the witnesses ; otherwise to be null and void . and that the same shall not be quarrellable for the want of stamping , any law or practick to the contrary notwithstanding . v. act anent the session . may 26. 1686. our soveraign lord , with advice and consent of the estates of parliament , statute and ordain , that the ordinary dyets for sitting of the session , shall be thus regulated for the future , viz. the winter-session , shall sitt down the first of november , and rise the last of february : and the summer-session shall sitt down the first day of iune , and rise the last of iuly ; and that this present act shall take effect from the first of november 1686. and that notwithstanding of the seventh act of the third parliament of king charles the second , of ever glorious memory , which is hereby rescinded . vi. act for the christmas vacans may 26. 1686. our soveraign lord , with advice and consent of his majesties three estates assembled in parliament , statutes , ordains and declares , that the christmas vacation of the session or colledge of justice , shall yearly , and in all time-coming , continue and endure from the twentieth of december , to the tenth day of ianuary inclusivè ; any former law , act or custom to the contrary notwithstanding . vii . act of dissolution of the lands and barony of torwoodlie , in favours of lieutenant-general drummond . may 28. 1686. our soveraign lord , and estates of parliament , taking into their serious consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , the great and faithful services done and performed to his majesties royal father king charles the first , and his royal brother king charles the second ( of ever blessed memories ) and to his majesties self , since his accession to the crown , by lieutenant-general drummond , commander of all his majesties forces within the kingdom of scotland ; and considering the particular services done by him , in his ready and chearful joyning with the forces , levied in the year 1648. for rescuing the sacred person of his majesties royal father , out of the hands of his rebellious english subjects , by whom he was then kept prisoner ; and with the forces levied in ireland , for the service of the crown , in the year 1649. under the command of the duke of ormond , then lord lieutenant of ireland ; and his brave and chearful concurring with the royal armies , both in scotland and england , in the year 1651. which was the occasion of his suffering great loss , and a grievous long imprisonment ; and his resolute and couragious appearing in arms against the usurpers in the year 1653. being cloathed with a commission of major-general : and considering also , that after the hopes of the loyal party were absolutely cut off , by the prevalency of the usurpation , the said lieutenant general drummond having indured the greatest hardships and miseries , under the influence of tyrannical powers , made a generous choice , rather to undergo exile and banishment from his own native countrey , than submit upon any terms to , or comply with an unlawful and usurped authority , and that upon a call from his majesties royal brother , after his restauration , he left a splendid and honourable imployment under the emperour of russia , to give obedience to his native prince , and that since his return to this kingdom , he did good and signal service , as major-general in the defeat of the rebels , and suppressing the rebellion , raised in the year 1666. and in his painful and faithful performance of the office of master-general of the ordnance , for divers years ; and in his good and successful conduct of his majesties forces , as lieutennant-general against the late rebells and conspirators , who under the command of the late earl of argile , designed to overturn the government of this nation ; and upon many other occasions , hath given pregnant proofs of a firm and steady loyalty : and all the saids great and memorable services and sufferings , being proposed and laid open in plain parliament , to the end , the three estates might give his majesty their judgement , advice and determination , re integra , whether the same were true , good and reasonable causes of publict government , for dissolving the lands and barony of torwoodlie , formerly pertaining to pringle sometime of torwoodlie , with all other lands , heretages and rights , which belonged to him ; from the crown , and which came in his majesties hands , through the crimes of treason , and laese majestie , acted , committed and done by the said pringle , and the doom and sentence of forefaulture , given and pronounced against him for the same , upon the day of one thousand six hundred eighty five years , and were annexed to the crown by the fourty two act of the first session of this current parliament ; and the said estates of parliament , after long and mature deliberation , and treating and consulting anent the premisses , being fully satisfied and convinced , that the particular services and sufferings above-mentioned , done , performed and undergone by the said lieutenant-general drummond ; the truth whereof is clearly known and did appear to them , are just , weighty and important reasons , concerning both his majesties interest , and the publict good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands and barony of torwoodlie , and others above-exprest , to the said lieutenant-general drummond , his heirs and assigneys ; and for that effect , that the saids lands should be dissolved from the crown , and from the said act of annexation : therefore , his majesty , with advice and consent of the estates of parliament , decerns , ordains and declairs , that the saids lands and barony of torwoodlie , and all other lands , heretages and rights , sometime belonging to the said pringle late of torwoodlie , and which came in his majesties hands , and were annexed to the crown in manner foresaid , may be be disponed to the said lieutenant-general drummond , and his foresaids ; and for that effect , has dissolved , and hereby dissolves the same from the crown , and patrimony thereof ; and from the foresaid act of annexation , made the sixteenth day of iune one thousand six hundred eighty and five years , and from all other acts of annexation , and from all clauses , qualities and conditions therein contained ; and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution having proceeded upon the advice and deliberation of the estates of parliament , re integra ; and found by the saids estates to be for great , weighty and reasonable causes , concerning the good , wellfare and publict interest of the whole kingdom , first proposed and advised , and maturely pondered and considered in plain parliament , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said lieutenant-general drummond and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength , and effect of a general law , or act of parliament , and shall be as valid and effectual to the said lieutenant-general drummond , and his foresaids , for their security of the lands and barony of torwoodlie , and others above exprest , as any other act of dissolution , granted by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsoever person at any time heretofore , and that notwithstanding of any former gift or grant , given by his majesties royal brother , to the said lieutenant-general drummond , which shall no ways weaken or infringe this present act of dissolution , or his majesties grant of the lands and others above-exprest , to follow thereupon . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution shall not be understood to fall under , or be comprehended in any act , salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted therefra in all time coming . viii . additional act anent high-ways and bridges . may 28. 1686. our soveraign lord , with advice and consent of the estates of parliament , ratifies and approves the sixteenth act of the first session of the second parliament of king charles the second , of blessed memory , entituled , act for repairing high-ways and bridges : and the ninth act of the second session of the same parliament , and ordains the same to be duly observed in time coming : and for the more effectual prosecution of these acts , his majesty , with advice foresaid , doth authorize and require the commissioners for his majesties supply in the several shires , to meet with the justices of peace , and act in the same manner as they are warranted to do by the foresaid acts , with power to them at their first meeting to choose their own clerk ; and declares , that any five of the whole number shall be a quorum , excepting the shires of clakmannan , kinross and cromartie , wherein three to be a quorum ; and ordains the first dyet of their meeting for this year , to be the last tuesday of iune next ; and that the sheriff of the shire , or his depute , cause intimate that dyet , and the first dyet of meeting yearly thereafter , at each paroch kirk , upon the sunday before , under the pain of five hundred merks scots . and in case any of the justices of peace , or commissioners of supply , residing within the shire , shall be absent the said last tuesday of iune next , or the first dyet of meeting yearly thereafter , they shall be fined by the quorum mett , in twenty merks scots , for ilk dyets absence ; and in case a quorum of them shall not meet , the sheriff or his depute is hereby impowered to fine each of the absents in twenty merks scots ; which fines shall be applyed for reparation of the high-ways and bridges : and whereas by the foresaid act in the year 1669. the time for the inhabitants to work at the reparation of the high-ways , is appointed not to exceed six days yearly the first three years , and four days yearly thereafter : his majesty in regard of the present condition of the high-ways and bridges , doth , with advice foresaid , ordain that these working days shall be six yearly , for the space of five years , from and after the last tuesday of iune next ; and seing it falls out sometimes , that bridges and ferries are upon the confines of two shires , and it being just that both shires in that case should be burthened with the expence of reparation ; his majesty with advice foresaid , doth ordain the justices of peace , and commissioners of supply in both shires to meet and adjust the expence of the said reparation proportionally according to the respective valuations of these shires ; and that the sheriffs of these shires or their deputs conveen them ; and in case they do not meet , grants warrant to direct general letters for charging them to that effect . and his majesty with advice foresaid , declares , that the several shires and burghs , shall be holden to repair the present standing bridges within their respective bounds , and being repaired to uphold the same , and if they suffer them to fall , his majesties privy council is hereby impowered to fine them in as much as will repair or rebuild these bridges . and it is hereby ordained , that where customs are collected at bridges , or causeys , the same shall be imployed in the first place for repairing these bridges and causeys . ix . act of annexation of the baronies of muir-hall and melfort to the crown . june 8. 1686. our soveraign lord , and the estates of parliament considering , that by the first act of the present session of this current parliament , the lands and barony of riccartoun , the lands and barony of cesnock and galstoun , with the tower of cesnock and pertinents ; the lands and barony of bar ; the lands and barony of castlemains ; the lands and barony of haining-ross , and the lands and baronie of duchal and porterfield , with all other lands , teinds and rights whatsomever , which formerly belonged to sir hugh and sir george campbels , sometime of cesnock and porterfield , sometime of duchall , were dissolved from the crown and patrimony thereof , to the end the same might be conveyed , and disponed in favours of iohn lord viscount of melfort , one of his majesties principal secretaries of state , his heirs and successors , as a just recompence and reward of the good and faithful services , done and performed by him to the crown and kingdom , particularly exprest in the said act , and in lieu and place of the lands and baronies after-mentioned , wherein the said viscount of melfort stood infest under the great seal , and which were found expedient and necessar by the estates of parliament , to be purchast and acquired from him by his majesty , for the causes likewise mentioned in the said act , viz. the lands and barony of muirhall , comprehending therein the lands of inverneil , kilmoir , dounanoltich , craigmoirall , kilbryd , kilmorich , auchinbreck , melfort , kenmore , knaps , kilmorie , kilberrie , auchinsolloch , imstremich , barleamich , dannarderie , eunichan , kildalban , dargachie , cariedale , drumoir , crear , oib , muirhall , and several other lands , teinds and rights , mentioned in the charter thereof , granted by his majesty to the said iohn viscount of melfort , of the date the ninteenth day of march one thousand six hundred eighty six years , which did formerly pertain to sir duncan campbel of auchinbreck , iohn campbel of melfort , iohn campbel of knap , dougall campbel of kilberrie , patrick mccairter of instremich , eiver mceiver of askins , donald mcaveish of dounarderrie , neil campbel of evaichan , campbel of kildalban , ohn campbel of dargathie , duncan campbel of cariedale , alexander mcmillan of dounie moir , donald mcneil of crear , alexander m●erterlich of oib , alexander campbel of otter , william denholm of westshiell , mr. alexander campbel advocat , colin campbel elder of allangreig , and duncan campbel younger thereof , and stuart younger of cultness , and which fell in his majesties hands , by the forefaulture of the forenamed persons : and likewise the lands and barony of melfort , comprehending the superiorities and feu-duties of the land of rayra , and the isle of loung ; the lands of torsay , the lands and isle of shennay , the lands of lagianeish , armadie , auchnasoul , ragray , and of many other lands , particularly mentioned in the charter thereof , granted by his majesty , under his majesties great seal , to the said john viscount of melfort , of the date , the day of one thousand six hundred eighty five years ; which superiorities and feu-duties pertained formerly to archibald campbel late earl of argile , and fell in his majesties hands by his forefaulture , excepting only the superiorities and feu-duties of glen-ila , balquhan , spittletoun , ednample and menstrie , which are reserved to the said viscount of melfort : and also considering , that in pursuance of the design and intent of the said act of dissolution , and in prosecution thereof , the kings most excellent majesty , and the said john viscount of melfort , have entered into , and perfected a contract of the date the 24. and 28 days of may ; one thousand six hundred eighty six years , whereby his majesty hath disponed to the viscount of melfort and his heirs therein mentioned , the lands and baronies of riccartoun , cesnock and others above-exprest : and on the other part , the said viscount of melfort hath disponed in favours of our soveraign lord the kings majesty , and resigned in his majesties hands , ad remanentiam , the lands and baronies of muirhall and melfort , comprehending the whole lands , superiorities and feu-duties above-specified , excepting and reserving to the said viscount of melfort , as is before excepted and reserved ; and his majesty now intending , that the lands , baronies , and others disponed and resigned by the viscount of melfort , in favours of his majesty , should be annexed to the crown , and incorporat with the patrimony thereof : therefore his majesty , with advice and consent of the estates of parliament , has annexed , united and incorporat , and hereby units , annexes and incorporats to the crown of this his ancient kingdom , to remain inseparable therewith in all time coming , the lands and barony of muirhall , comprehending the whole lands and others above-mentioned , viz. the lands of inverneil , killmore , dounanoltich , craigmuirhall , kilbryd , kilmorich , auchinbreck , melfort , kenmore , knap , kilmore , kilberrie , auchinsalloch , instremich , barleamich , dounarderie , eunichan , kildalban , dargachie , cariedale , drumoir , crear , oib , muirhall , and remanent lends , teinds , and rights mentioned in the foresaid charter thereof , granted by his majesty to the said iohn viscount of melfort ; and likewise , the foresaids lands and barony of melfort , comprehending the superiorities and the feu-duties of the lands of rayra , and the isle of loung , the lands of torsay , the lands and isle of shenney , the lands of dagneish , ardmadie , auchnasoul , ragray ; and whole remanent lands , particularly mentioned in the charter thereof , granted by his majesty , under his majesties great seal , to the said iohn viscount of melfort , excepting only the foresaid superiorities , and feu-duties of glen-isla , balquhan , spittletoun of balquhan , ednample and menstrie , which are reserved to the said viscount of melfort ; and it is hereby statute and declared , that the saids lands , baronies and others above-mentioned , with the teinds thereof , excepting as is before excepted , shall remain with his majesties crown in all time coming , and that the same , or any part thereof , shall not , nor may not be given away in fee and heretage , nor in frank-tenement , liferent-pension or tack , except for the full duty , which may be gotten from , and payed by the tennents , or by any other manner of alienation , right or disposition whatsomever to any person or persons of whatsomever estate , degree or quality they be , without advice , decreet and deliberation of the whole parliament , and for great , weighty and reasonable causes , concerning the good , wellfare and publick interest of the whole kingdom ; first to be proposed , and to be advised and maturely pondered and considered by the estates , re integra , before any previous grant , right , or deed be given , made or done by his majesty , or his successors , concerning the disposition of the saids baronies , and others foresaids , or any part thereof , which may any ways predetermin them or the estates of parliament , and prejudge the freedom of their deliberation and consent ; and if at any time hereafter it shall be thought fit to dispon , or grant any right of any part of the saids lands , superiorities , offices , teinds and others . it is declared that the general narrative of good services , weighty causes and considerations shall not be sufficient ; but the particular causes and considerations , whereupon his majesty , and his successors may be induced to grant , and the estates to consent to such rights , are to be exprest , that it may appear , that the same is not granted thorow importunity , or upon privat suggestions or pretences : but for true , just , and reasonable causes , and considerations of publick concernment . and farther , it is declared , that if any general act of dissolution of his majesties property , shall be made at any time hereafter , the lands , baronies and others above-mentioned , now annexed , shall not be understood to fall , or be comprehended under the same ; and if the lands and others foresaids , hereby annexed , or any part thereof , shall be annalzied or disponed , or any right of the same shall be granted , otherways than is appointed and ordained in manner above-mentioned ; his majesty , with consent foresaid , doth statute and declare ; that all dispositions , infeftments and other rights of the saids lands , and others now annexed , or any part thereof , which shall be granted contrary to this present act , with all acts of dissolution and ratification , and other acts of parliament concerning the same , shall be from the beginning , and in all time thereafter , void , null , and of no effect ; and notwithstanding thereof , it shall be lawful to our soveraign lord and his successors for the time , to take back , and receive at their pleasure , for their own use , without any process of law , the lands and others above-rehearsed , hereby annexed , or any part thereof , which shall be annallzied or disponed , and these in whose favours any such rights or alienations shall be made , shall be accomptable for , and lyable to refound and pay all profits , intromissions , or benefits taken , uplifted or imployed by them , in the mean time ; and it is declared , that all other clauses , articles and provisions contained in any former act or acts of annexation , to the advantage of his majesty , and his crown , are , and shall be holden as repeated and insert herein . likeas his majesty , with advice and consent of the estates of parliament , doth ratifie and confirm the foresaid contract , past between his majesty and the said viscount of melfort , in the whole heads , clauses , articles , and provisions of the same , with the resignation made by vertue of the procutry therein contained by the viscount of melfort ▪ in his majesties hands , of the foresaids lands , baronies , and others hereby annexed to the crown , together with the signature granted by his majesty to the said viscount of melfort , and his heirs of the foresaids lands , baronies and others dissolved from the crown , dated the day of one thousand six hundred eighty six years ; and the charter under the great seal , precepts and instruments of seasin to follow thereupon ; and decerns and declares this present ratification to be as valid , effectual and sufficient to all intents and purposes , as if the foresaid contract , signature and other writs or rights confirmed , were all verbatim herein ingrossed ; and his majesty and estates of parliament dispenses with , and supplies the generality of these presents for now and ever . x. act ordaining pursuers to furnish the act to the defenders , whereon they are to depone . june 8. 1686. our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that in actions before the lords of session , and all other judges within the kingdom , where by the act of litiscontestation , the defenders oath is only required , and nothing to be proven upon his part ; that the pursuer shall be obliged to furnish the defender with the act , whereon he is to depone , within fourty eight hours after the pursuer or his procurator shall be required ; otherways that the defender shall not be holden to depone , but the ordinary shall dismiss him , the foresaid requisition being always made , after elapsing of the term assigned by the act , and before the term be circumduced at the the pursuers instance ; and where the defenders in exhibitions do depone negative , and the defenders in processes for making arrested goods forthcoming , depone either affirmative or negative , that the clerks and macers dues shall be payed by the pursuer , and not by the defender ; with certification , if the pursuer do not make payment thereof , the defender shall not be holden to depone , but may be dismissed by the ordinary . xi . act for winter-herding . june 8. 1686. our soveraign lord , considering the prejudice and damnage , which the liedges do sustain in their planting and inclosures , through the not herding of nolt , sheep and other bestial in the winter time , whereby the young trees and hedges are eaten and destroyed ; doth , with advice and consent of his estates of parliament , statute and ordain , that all heretors , liferenters , tennents , cottars and other possessors of lands or houses , shall cause herd their horses , nolt , sheep , swine and goats the whole year , aswell in winter as summer , and in the night time shall cause keep the same in houses , folds or inclosures , so as they may not eat or destroy their neighbours ground , woods , hedges or planting , certifying such as shall contraveen , they shall be lyable to pay half a merk toties quoties , for ilk beast they shall have going on their neighbours ground , by and attour the damnage done to the grass or planting ; and declares , that it shall be lawful to the heretor , or possessor of the ground , to detain the saids beasts , untill he be payed of the said half merk for ilk beast found upon his ground , and of his expenses in keeping the same ; and this but prejudice of any former acts of parliament , made against destroyers of planting and inclosures . xii . act for cleansing the streets of edinburgh . june 8. 1686. our soveraign lord , considering the many complaints of the nastiness of the streets , vinds , closses and other places of the city of edinburgh , which is the capitall city of the nation , where the chief judicatories reside , and to which his majesties liedges must necessarly resort and attend ; as also , the great trouble that does arise to his majesties liedges , and the inhabitants , by the great numbers of clamorous beggars ; repairing in and about the said city of edinburgh , therefore , his majesty with advice and consent of the estates of parliament , decerns and ordains the present magistrats of edinburgh , and their successors , to lay down effectual ways for preserving the said town of edinburgh , cannongate and subburbs thereof , from the nastiness of the streets , vinds , closses , and other places of the said burgh , and for freeing and purging the same of these numerous beggars which repair in , and about the said burgh , and that under the pain of 1000. merks yearly , to be payed by the magistrats , who shall be in office , to the lords of session , to be applyed by them for the end and use foresaid ; declaring , that the magistrats who are in office , and who shall be found negligent of their duty , shall have no relief of their said fine , out of the common good of the said burgh , or by stenting the inhabitants : as also , his majesty , with advice and consent foresaid , for the further incouragement of the magistrats of edinburgh , present and to come , in the said matter ; does statute and ordain , that the lords of council and session , shall receive from the magistrats of the said city , or others ; all proposals which the saids lords shall judge rational to the effect above-mentioned ; and for that effect , authorizes and impowers the lords of session , with advice and consent of the magistrats , to impose such taxes upon all the inhabitants , burgesses and others , within the said town , cannongate and suburbs thereof , as they shall find just and necessar , for purging and cleansing the said town of the foresaid nastiness , and that all execution by horning or summar poynding , proceed against the inhabitants for payment of their proportions : and recommends to the lords of session , to meet with the magistrats , and to proceed in the said matter . as well in time of vacans , as in the time of session ; and ordains the present magistrats and their successors , to put all such acts and ordinances as shall be agreed upon , and settled by the lords of session , for the effect above-mentioned , to vigorous execution , under the pain and certification above-mentioned , to be incurred by the magistrats yearly , in case the said city of edinburgh be not effectually cleansed , and purged of the foresaid nastiness and beggars , without any relief to the magistrats out of the common-good of the said burgh , or from the inhabitants . xiii . act of dissolution in favours of the duke of gordon . june 8. 1686. our soveraign lord , and estates of parliament , taking to their consideration , the many signal services done and performed to his majesty and his royal ancestors by the family of huntly , for many ages , with the eminent sufferings of several of the representatives of that family , for their constant adherence to the true interests of the crown , and the great services and sufferings of george marquess of huntly , grand-father to george now duke of gordon , who for his loyalty to his majesties royal father , of blessed memory , was by the then rebels condemned , and thereafter cruelly murdered on a scaffold : and also , taking into their consideration the constant loyalty , great services and merits of the said george duke of gordon , who has fully answered and improven the high and honourable characters of loyalty and nobility , derived unto him by his predecessors , and his readiness by himself , his friends and followers , in subduing the late rebellion . as also , his majesty and estates of parliament , considering that mr. robert baillie , sometime of ierriswood , being upon the 24 day of december 1684 found guilty by an assise of the crime of high treason , was forefaulted by his majesties justice-general , justice-clerk , and commissioners of justiciary . and by the 42 act of the first session of his majesties current parliament , the lands and barony of mellarstanes , and all other lands , teinds and rights whatsomever , pertaining to the said mr. robert baillie , were unite , annexed , and incorporat to the crown of this his majesties ancient kingdom ; and the saids lands and barony of mellarstanes and fawns , with the pertinents lying within the lordship of gordon , huntly , parochin of and sheriffdom of berwick , did anciently belong to , and were holden of the said george duke of gordon , and his predecessors , and are specially contained and ingrost in their , and his infeftments , under the great seal of this kingdom : and his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , that his majesty upon the considerations foresaid , and as a mark of his royal bounty and favour , resolved to bestow on the said duke of gordon , the lands which did anciently hold of his family in the merse , as well as such as yet hold of himself , all of which belonged to the said mr. robert baillie , late of ierriswood : and the estates of parliament , after mature deliberation , treating and consulting anent the premisses ( re integra ) being fully satisfied and convinced , that the foresaid services and sufferings , done and endured by the said george duke of gordon , his predecessors and himself , for his majesty and his royal ancestors ; the truth whereof is sufficiently known , and did appear to them , are just , sufficient and important reasons , concerning both his majesties interest , and the publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands and barony of mellarstanes and fawns , with the pertinents above-exprest , to the said george duke of gordon , his heirs and assigneys : and for that effect that the saids lands should be dissolved from the crown , and from the said act of annexation . therefore his majesty , with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands and barony of mellarstanes and fawns , with the pertinents formerly pertaining to the said mr. robert baillie sometime of ierriswood , may be disponed to the said george duke of gordon , and his foresaids ; and for that effect has dissolved , and hereby dissolves the same from the crown , and patrimony thereof , and from the foresaid act of annexation , and from all other acts of annexation , and from all clauses , qualities and conditions therein-contained : and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , having proceeded upon the advice and deliberation of the estates of parliament ( re integra ) and found by the saids estates , to be for great , weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom , first proposed and advised , and maturely pondered and considered , before any previous grant , or other right or deed , given , made , or done by his majesty , in favours of the said george duke of gordon , and his foresaids , of the lands above-written , with the pertinents , or any part or portion of the same , doth fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength and effect of a general law , or act of parliament , and shall be as valid , and effectual to the said george duke of gordon , and his foresaids , for their security of the saids lands and barony of mellarstanes and fawns above-exprest , with the pertinents , as any other act of dissolution granted by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsomever person , at any time heretofore . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution shall not be understood to fall under , or be comprehended in any act salvo iure , to be past in this or any other session of this current parliament , but is hereby excepted therefrom in time coming . xiv . act against importing irish-victual or cattel . june 14. 1686. our soveraign lord , with advice and consent of the estates of parliament , does ratifie and approve the 3 act 3 sess. par. 2. ch. 2. against the importing of irish-victual , with this alteration , viz. that all the victual that shall be imported , shall be sunk and destroyed , and the seizer or discoverer , in place of the third part of the victual allowed him by the foresaid act , for his reward , shall have the boat , bark , or vessel wherein the said victual shall be imported , to dispose of at his pleasure , together with the half of the fines , by the foresaid act imposed upon the importers , recepters and heretors , and the other half of the saids fines to belong to his majesty : as likewise his majesty , with advice and consent foresaid , enacts and ordains , that no horse , mare , or cattel whatsomever , shall be imported from ireland to this kingdom , under the pain and penalty of forefaulture , of the horse , mares , or cattel that shall be imported , and further of paying the sum of an hundred merks scots for each beast that shall be so imported , the one half of both the beasts and fines to belong to the seizer and discoverer , and the other half to his majesty : as likewise , that no person within this kingdom , resett or buy any horse , mares or nolt , that they know to be imported out of ireland , under the pain of an hundred merks scots for each beast , besides the forefaulture of the beasts themselves , the one half to belong to the discoverer , ( he always pursuing and instructing the same importation within six moneths after ) and the other half to his majesty ; and recommends to the lords of council , to nominat and appoint such persons as they shall think fit for seeing this act put in execution . xv. act declaring that inhibitions shall not be prejudged by recognition . june 14. 1686. our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that in time coming , no inhibition duly execute , shall be prejudged or disappointed by the debitors , doing deeds after the inhibition inserting recognition ; but that the lands falling under recognition , shall be burdened with the prior inhibition and ground thereof . xvi . act for burying in scots linen . june 14. 1686. our soveraign lord , for the encouragement of the linen-manufactures in this kingdom , and prevention of the exportation of the moneys thereof , by importing of linen , doth , with advice and consent of his estates of parliament , statute and ordain , that hereafter no corps of any persons whatsoever , shall be buried in any shirt , sheet , or any thing else , except in plain linen , or cloth of hards , made and spun within the kingdom , without lace or point ; discharging from henceforth the making use of holland , or other linen-cloth made in other kingdoms , all silk , hair , or woolen , gold or silver , or any other stuff whatsoever , than what is made of flax or hards , spun and wrought within the kingdom , as said is , and that under the pain and penalty of 300 pounds scots , toties quoties , for a noble-man , and 200 pound for each other person , whereof the one half to the discoverer , and the other half to the poor of the parish , where the saids corps shall be so interred : and for the better discovering of the contraveeners , it is hereby further statute and ordained , that every minister within the kingdom , shall keep a book , containing an exact account and register of all persons , buried within their said parish ; as also , that some one or more of the relations of the person deceated , or other credible person ( tennants in the countrey and cottars being always excepted ) shall within eight days after such interment , bring a certificat upon oath in writing , witnessed by two famous persons to the minister , declaring , that the said person was woond or wrapt in manner herein-prescribed ; which certificats are to be recorded by the minister or reader of the parish gratis , without exacting any money therefore . and if no relation of the party buried , or other person shall bring such a certificat , within the said time of eight days , that then and in that case , the goods and gear of the party deceast , shall be , and are hereby declared , to be lyable to the foresaid forefaulture , to be pursued at the instance of the minister of the said parish , before any judge competent ; and in case the parties prove litigious by advocating , or suspending the said sentence ; the saids judges are hereby authorized and impowered to modifie expenses as they shall find cause : and if such persons died in familia , the father and mother , or other relations , in whose family they die , are hereby declared lyable for the said fine : and it is hereby statute and ordained , that if the minister in whose parish any such corps shall be so interred , prove negligent in pursuing the contraveeners within six moneths after the said burial , he is hereby declared lyable for the said fine , the one half to the poor , and the other half to the discoverer , to be divided in manner foresaid . as also , his majesty , with advice foresaid , statutes and ordains , that no wooden coffin shall exceed an hundred merks scots , as the highest rate for persons of the greatest quality , and so proportionally for others of meaner quality , under the pain of two hundred merks scots for the contravention . xvii . act for writing seasins by way of book . june 14. 1686. our soveraign lord , taking into his consideration , that seasins do extend to great length by reason of inserting and repeating of the whole provisions of the charter therein ; therefore his majesty , with advice and consent of his estates of parliament , for the more easie and commodious perusal thereof , statutes and ordains , that it shall be lawful for parties , if they think fit , to cause write and extend their seasins by way of book , the attestation of the nottar condescending upon the number of the leafes in the book , and each leaf being signed by the nottar and witnesses , to the giving of the seasin ; and ratifies all seasins already written by way of book , by warrand of his majesties privy council . xviii . act appointing the publication of the testimonies of witnesses . june 14. 1686. our soveraign lord considering how much it does import and concern the good and interest of his majesties liedges , and the due administration of justice , that witnesses be distinctly and fully examined , and their depositions written in plain and clear words , as they are given ; therefore , his majesty with advice and consent of the estates of parliament , statutes and ordains , that in all processes presently depending , or to be intented before the lords of privy council , lords of session , and all other judges within this kingdom , the witnesses who are made use of , and adduced therein , shall be examined in presence of the parties , or their advocats , they being present at the diets of examination ; and that there be publication of the testimonies of the witnesses in the clerks hands , allowed to the parties gratis , before advising , to the effect parties may have copies thereof , if they think fit , any law or act of parliament , custom or usage to the contrary , notwithstanding . xix . act anent the registration of seasins and reversions . june 14. 1686. our soveraign lord considering , that where seasins and other writs and diligences appointed to be registrat , are duly presented to the keepers of registers , it is their duty to cause carefully book and registrat the same , for the security of the party , and intimation of the liedges ; therefore his majesty , with advice and consent of his estates of parliament , statutes and ordains , that where seasins and other writs are presented to the keepers of registers , and delivered back to the party , bearing , a record and attestation under their hand that the same are registrat ; it shall make the same sufficient and valid for the security of the party , albeit by the omission or negligence of the keeper of the register , or his deputs , they should not be found booked or insert in the register ; and to the effect that all deputs entrusted with the care and keeping of the registers , may faithfully do , and execute their office ▪ his majesty with advice and consent foresaid , statutes and ordains , that in case by their omission or negligence , any writs presented to them , and marked with their hands to be registrat , shall not be found booked and insert in the register , the saids deputs , guilty of such omission and negligence , shall be punishable as forgers of the publict registers and records , and shall be lyable in damnage and prejudice to any party who shall be prejudged by the said omission or negligence . and his majesty with advice foresaid , statutes , ordains and declares , that these presents shall no ways derogat from the 16th act of the 22 parliament k. ia. the 6th . entituled , act anent the registration of reversions , seasins and other writs , which shall remain in its full force and strength in all points , as before the making of this present act. xx. act anent the nomination of the clork to the iustices of peace . june 14. 1686. our soveraign lord , and estates of parliament , considering that by a clause in the 16th act of the last session of this current parliament , anent iustices of peace ; the saids justices are allowed to nominat their own clerks , which is a right and priviledge , belonging to the secretaries of state , the clerkships of the justices of peace being dependences of the secretaries office ; therefore , his majesty , with advice and consent of the estates of parliament , has repelled , cassed and annulled , and hereby repells , casses and annulls the foresaid clause in the sixteenth act of the last session of this current parliament , allowing the iustices of peace to nominate their own clerks , and declares the same to have no force , strength , nor effect from the beginning , and to be null and void in all time coming . xxi . act in favours of john adair , geographer , for surveying the kingdom of scotland , and navigating the coasts and isles thereof . june 14. 1686. our soveraign lord , and estates of parliament , taking into their consideration , that exact geographical descriptions of the several shires within this kingdom , will be both honourable and useful to the inhabitants ; and the hydrographical description of the sea-coasts , isles , creiks , firths and lochs , about the kingdom , are not only honourable and useful , but most necessary for navigation , and may prevent several ship-wracks , the want of such exact maps , having occasioned great losses in time past : and likewise , thereby forraigners may be invited to trade with more security on our coasts ; and considering , that iohn adair hath given notable experiments of his great skill , diligence , and qualifications , for performing so good a work ; and having signified his willingness to perform the same , on allowance of competent expence ; therefore his majesty , with conent of the estates of parliament ▪ doth ordain and enact , that one shilling scots be exacted out of ilk tun , from all the ships , and other vessels above eight tunns , within this kingdom , ( excepting lighters , and fisher-boats ; ) and two shilling scots out of each forraign ship , yearly , for the space of five years next ensuing , commensing from whitsunday this year 1686. and this for defraying the charge of hydrographical maps , for the use of the sea-men , which one shilling , and two shilling respectivè per tun , is hereby ordained to be collected by the several collectors of his majesties customs , who are to deliver the same to the general collector , or fermer of his majesties customs , yearly upon oath , at the term of martinmas , and the same to be payed in to any , the lords of his majesties privy council shall appoint to receive the same , to be given to the said iohn adair , as the saids lords shall appoint , at the said term , ilk year , during the space above-written ; and the saids collectors are also to deliver to the said iohn adair , subscribed lists of the saids ships , with their respective burdens , as the ground of their charge yearly : and the said iohn adair is to give account yearly at martinmas , of what progress he hath made , as to the hydrographical maps to his majesties privy council , or such as they shall commissionat for inspecting the same . as also , for defraying his expence , for drawing of the maps of the several shires , it is statute and ordained , that the sheriffs of each respective shire , baillies of regality , stewarts of stewartry , shall , at the desire of the said iohn adair , when he comes to their shire or bounds , for the end aforesaid , call the heretors in the said shire : and it is hereby recommended to them , to appoint a suitable encouragement for defraying the expence of surveying the said shire , to be collected by the collector of his majesties supply , immediatly after the said meeting . as likewise , that they appoint one or two knowing men , in each paroch , to go alongst with the said iohn adair , when he is actually surveying the same , to design unto him the particular places of each paroch , for the more exact performance of the said work ; and ordains the collector thereof to deliver what shall be collected to the said iohn adair , upon his presenting the draught of the map , to the respective sheriffs , or others foresaid . and likewise , the said iohn adair , giving account yearly to his majesties privy council of his diligence therein , and when the said geographical and hydrographical maps are perfected . the care of having the same printed in a good edition , is recommended to his majesties privy council . xxii . act and commission for plantation of kirks , and valuation of teinds . june 14. 1686. forasmuch , as his majesties father , of ever blessed memory , out of his royal care and zeal for the reformed religion within this kingdom , and the maintainance and provision of the ministry and churches thereof , and the peace of the kingdom , and for preventing and settleing all differences , that did , or might arise betwixt titulars , and others having right to teinds , and heretors , concerning the leading and drawing of their teinds ; and immediatly after his attaining and succeeding to the crown , gave forth and emitted his royal declaration anent the premisses , and the other particulars therein-specified : and in pursuance of the ends foresaids , divers laws and acts of parliament were made in the year of our lord 1633. his said majesty being then present in his royal person , and since divers acts of parliament , and commissions have been made , given and renewed to that purpose , and particularly by the 15 act of the 3 session of the 2 parliament of king charles the second , his majesties umquhile royal brother , of ever blessed memory . and his majesty being resolved , and desirous to prosecute so good a work for the universal good of his subjects , and especially for the encouragement of the ministers of the gospel ; therefore , his majesty with advice and consent of his estates of parliament , gives full power and commission to his majesties officers of estate for the time being , and to or any thirteen of them to be a quorum , whereof three of every estate , with one of the officers of estate , to meet and conveen at edinburgh , the day of years , and such other place or places , times or dyets , as they shall appoint , to value and cause be valued , whatsomever teinds , great or small , parsonage or viccarage within this kingdom , which are yet unvalued ; declaring , that where the viccarage of any paroch is a several benefice , and title from the parsonage , the same shall be severally valued , to the effect the titulars or ministers serving the cure , having right to the said viccarage , be not frustrated of the true worth thereof ; with power to the saids commissioners , or quorum foresaid , to appoint committees , or sub-committees of their own number , and to grant sub-commissions , and to receive reports from them , and to approve or disapprove the same , as they shall find just ; and to rectifie whatsoever valuations , led , or to be led , to the enorm prejudice of the titulars , or the hurt and detriment of the church , and prejudice of the ministers maintainance and provisions . providing always , likeas it is hereby expresly provided and declared , that where valuations are lawfully led against all persons having interest , and allowed by former commissions , the same shall not be drawn in question , nor rectified upon pretence of enorm lesion , at the instance of the minister , ( not being titular ) or at the instance of his majesties advocat , in respect of his majesties annuity , except it can be proven that collusion was used , betwixt the titulars and heretors , or betwixt the procurator-fiscal and the heretors and titulars : which collusion is declared to be , when the valuations are led with the diminution of the third part of the just rent : which diminution shall be proven by the parties oath , and with power to the saids commissioners , or quorum foresaid ; where ministers are not already sufficiently provided , or have not localities already assigned to them for their stipends , out of the teinds within the paroches where they serve the cure , according to the quantities , proportions and rules contained in the 19 act of the par. 1633. to modifie , settle and appoint constant local stipends to each minister out of the teinds of the paroch where they serve the cure ; with power also to the saids commissioners , to grant recompence by prorogation of tacks to parties , for all augmentations of stipends which are granted since the year 1630. or shall be granted , and that effeiring to the augmentations already granted , or to be granted , as the saids commissioners shall think fit . and sicklike , to disjoyn too large and spacious paroches , to cause erect and build new churches , to annex and dismember churches , as they shall think convenient ; and to take order that every heretor and liferenter shall have the leading and buying of their own teinds , if they be willing , according to the rules prescribed by the 19 act , and commission granted by his majesty , with consent of his estates of parliament , in anno 1633. and the acts of parliament therein-mentioned : with power to determine all questions concerning the prices of teinds , betwixt titulars and others having right thereto , and the heretors , and to appoint such securities in favours of titulars and others having right to teinds , for their prices , to be granted to the heretors , and others lyable in payment of valued duties , or buyers of the saids teinds , and in favours of the ministers , as to their maintainance , as the saids commissioners shall think fitting , according to the rules set down in the said act 1633. and each heretor , whose teinds belongs to titulars of erection , to have power and liberty to buy the teinds of his own lands , whether valued or not , within the space of three years after the date of this act , with this declaration always , that in case the impediment , during the time foresaid , flow from the titular , by reason of his minority , or other inability ; in that case the heretor who offered to buy his own teinds , within the space foresaid , shall have place so soon as the impediment shall be removed , to buy his teinds , notwithstanding of the expyring of the years , and space after-exprest . and it is declared , that if the heretor be minor , and his tutor neglect the buying of his teinds within the foresaid space , the minor shall have action for two years after his minority , to compell the titular to sell his saids teinds ; and generally , with power to the saids commissioners to decide and determine in all other points , which may concern the drawing or leading of teinds , the selling or buying of the same , or payment of the rates thereof , contained in the former acts of parliament , or set down in the general determination , given out by his majesties royal father of blessed memory ; and if any person or persons shall find themselves grieved , and complain of the injustice , or exorbitancy of any decreet or sentence given in any of the commissions during the time of the late troubles , with power to the saids commissioners , to take the same to their consideration , and alter , anull , or allow the saids decreets and sentences as they shall find just ; and it is always provided and declared , that the arch-bishops and bishops , and other beneficed persons , being ministers , and their successors , shall not be prejudged of the rents whereof their predecessors were in actual and real possession ; and which by the laws of the kingdom were due to them in anno 1637. or whereof they are presently in possession , and that they shall be no further bound , but according to the conditions and provisions exprest in the submissions made by the bishops to his majesties royal father of blessed memory , of the date , the day of 1628. and registrat in the books of commission for surrenders and teinds , upon the 15 day of iuly 1631. and whereas it may fall out , that some of the commissioners may be unable to attend the service through death , sickness , or other known impediment . therefore , his majesty declares , that he shall be careful to fill their places with other persons qualified , whose oaths ( for faithfull discharging of the same ) shall be taken by the lord chancellor , or in his absence by the lord president of the commission for the time ; and ordains this present commission to endure ay and while the same be discharged by his majesty . and the acts , decreets and sentences thereof to have the force , strength and effect of a decreet or sentence of parliament ; and the lords of session to grant letters of horning , poynding and others necessar to be direct upon the said decreets and sentences , in manner contained in the foresaids commissions , and his majesty with consent foresaid , hereby discharges all former commissions , declaring the same to be expyred . xxiii . commission for regulation of iudicatures . iune 14. 1686. our soveraign lord from his royal and princely care of the good and welfare of this his ancient kingdom , being desirous to prevent and redress all abuses and unwarrantable exactions within the same , especially in offices of publick trust , and in the dispensation of justice , to the effect the same may be speedily and impartially administrat with as little trouble and expence to his subjects , as the nature of such affairs and proceedings can admit of . and his majesty likewise considering , that his dearest brother , king charles the second of blessed memory , having by a commission under the great seal of this kingdom , of the date the 21 of september 1669. for the same end and design , impowered and authorized the persons therein-mentioned , to make such rules , orders and constitutions , as might prevent the same in time-coming ; and who in pursuance of the said commission , did agree upon cetain articles of regulation , relating to the session , justice-court and exchequer ▪ all which are ratified by the 16 act of the 3 session of the 2 parl ▪ k. ch. the second : but the saids commissioners were not able through the shortness of time , fully to perfect and accomplish so great and necessary a work , as the good and interest of the kingdom requires . and his majesty being now fully resolved to prosecute so good a work for the universal good of his subjects , and to perfect the same , that his subjects may be convinced , and sensible of their great happiness and prosperity under his protection and government ; therefore his majesty , with advice and consent of his estates of parliament , gives full power , warrand and commission to whereof the number of to be a quorum , to meet and conveen at edinburgh , the day of years , and thereafter at such times and dyets as they shall appoint ; and with power to the saids commissioners to take full and exact tryal of all abuses , and other exorbitancies or exactions , which are practised in prejudice of his majesties liedges , in any offices of judicature , or others within this his ancient kingdom ; and to take tryal and information by all manner of probation thereanent , and how the saids abuses have creept in , and from what time , and to take notice and tryal of the authors and committers thereof ; and to transmit an exact and perfect accompt of the same to his majesty , that he may signifie his royal pleasure , and give what directions therein he thinks just . and for the effectual preventing and restraining the same in time coming . his majesty with advice and consent foresaid , does hereby authorize and impower the foresaids persons , or quorum thereof , to make such orders , acts , and constitutions for regulating the same in time coming , as they shall find just , under such penalties and certifications to be incurred by the contraveeners , as the saids commissioners shall find necessary in that behalf . all which acts , ordinances and constitutions made by the saids commissioners , and approven under his majesties royal hand . his majesty , with advice and consent foresaid , does ratifie , approve and confirm , and decerns and ordains the same to be put to execution , and to have full force , strength and effect against the contraveeners in all time coming . as likewise his majesty , with consent foresaid , does hereby authorize and impower the saids commissioners , to prescrive and set down clear and distinct rules for the inferiour judicatures in this kingdom , as to their competency , and the nature of their jurisdictions , that his majesties leidges may be at a certainty , and not be put to trouble and expence by being called and forced to compear and attend before different courts for the same cause , hereby inhibiting and discharging the saids judges , to proceed or determine in any other actions or causes , than what shall be found by the saids commissioners to be proper and competent for their jurisdictions ; declaring all such acts and decreets to be given and pronounced by them , in matters not competent to their jurisdictions . to be null and void , and the judges to be lyable to the damnage and prejudice of the party grieved , and to be punishable at the sight of the lords of privy council , for transgressing their jurisdiction . and to the effect , so just and necessary a work may meet with no obstruction from the negligence , or not attendance of the foresaids commissioners . his majesty , with advice and consent foresaid , statutes , ordains and declares , that the commissioners , who without a just and lawful excuse , ( to be allowed by such of the commissioners who shall meet ) shall not attend the dyets of meeting appointed , or to be appointed for carrying on of the said work , shall incur the pain of tolies quoties , to be disposed of by the commissioners , as they shall think just ; and for which , letters of horning and poynding are hereby granted : and it is hereby declared , that this commission shall continue and endure , during his majesties pleasure , and ay and while the same shall be recalled , or discharged by his majesty . xxiv . act anent an humble offer to his majesty for an imposition upon certain commodities , for defraying the expence of a free coynage , and other matters relating to the mint . iune 14. 1686. our soveraign lord , and the estates of parliament , considering the great advantages that may accresce to this his ancient kingdom , by encouraging the importation of bullion to be coyned in his majesties mint , and that a free coynage is of all others the greatest encouragement for that end . and the estates of parliament taking into their consideration , that the charge and expences of a free coynage cannot be supported , without their giving unto his majesty a suitable found for the same ; therefore , they do out of a due sense of his majesties great care for the prosperity of this his ancient kingdom , humbly offer unto his majesty twelve shillings scots for each ounce of bullion imposed by the eight act of the first session of the second parliament of king charles the second , upon the several commodities therein-specified , viz. spainlsh , rhenish and brandy wines of all sorts , each tun fourteen pound and eight shilling scots money ; french wines of all sorts , every tun seven pound four shillings scots ; paper for printing and writing of all sorts , every six rims twelve shillings scots ; gray-paper every twelve rims twelve shillings scots ; dails every thousand , three pounds scots ; single-trees every thousand three pounds scots ; double-trees every thousand six pounds scots ; double double-trees , and all other great fir-timber , every thousand twelve pounds scots ; steel every hundred weight twelve shillings scots ; iron and iron-work , beaten of all sorts , every tun one pound four shillings scots ; onyons and apples , every two barrels twelve shillings scots ; mum-beer , every barrel , two pounds eight shillings scots ; prunes every tun two pound eight shillings scots ; raisins , currans and figs , every tun six pounds scots ; iron pots of all sorts , every duzon twelve shillings scots ; soap every barrel , one pound four shillings scots ; suggar-candy every hundred weight , six pound scots ; copper-kettles , brass-pans , and all other made work in brass or copper , yetlin or beaten , every hundred weight two pound eight shillings scots ; mader , every thousand weight three pounds scots ; harts of all sorts , every three dozen one pound four shillings scots ; window-glass of all sorts , every chest twelve shillings scots ; lemons and oranges , every thousand twelve shhillings scots ; hopes of all sorts , every hundreth weight , twelve shillings scots , spanish-leather , marikin , tanned-leather , wild-leather , and all other sorts of leather , except muscovia-leather , every hundred weight twelve shillings scots ; gloves of all sorts , each duzon twelve shillings scots ; whale-bone , or ballen , every two hundred weight twelve shillings scots : and his majesty , with advice and consent of his estates of parliament , doth hereby rescind and annull the eight act of the second parliament , first session of king charles the second , and in all time-coming , statutes and ordains , that the above-mentioned sums upon the foresaids commodities , imported into this kingdom , shall be ▪ payed in to the tacks-men and collectors of his majesties customs , by the merchants or other importers of the saids goods , before they break bulk , in the same way and manner that his majesties customs upon forraign commodities are payed in by the merchants and others ; and ordains the general-collectors , tacks-men and farmers of his majesties customs , to compt yearly in exchequer for the whole imposition above-specified , according to the rate of twelve shillings scots per ounce , in stead of the ounce of bullion formerly payed in in specie by the merchants , and to make a general aeque for their several sub-collectors . and his majesty , with advice and consent foresaid , doth hereby annex the foresaid imposition for ever unto the imperial crown of this kingdom , to remain with his majesty , his heirs and lawful successors , in all time-coming , for supporting the charge and expence of a free coynage , and for paying the sallaries of the officers of mint . and his majesty , with advice and consent of the estates of parliament , doth hereby appropriat and set apart the foresaid imposition , allanerly for the use of the said mint , and the supporting the charge of a free coynage . and his majesty , with advice and consent foresaid , doth hereby command and require the tacks-men and collectors of his customs , and their deputs , to keep the said imposition a-part by it self , and to pay the same quarterly to the lords commissioners of his majesties thesaury , thesaurer-principal , and thesaurer-deput for the time-being , who are hereby required to keep the saids moneys and imposition a-part by it self , separat and distinct from all other his majesties customs , and revenues ; and his majesties cash-keeper , or receivers , are hereby commanded to keep a-part the said moneys in a secure chest by it self , whereof the general , or master of mint , is to have one key , and the cash-keeper or receivers another key , and the said chest is not to be opened without the general or master of the mint be present ; nor shall the saids moneys be delivered but at such times as his majesty , or his privy council shall think sit , to the general and master of his majesties mint , for payment of the sallaries of the officers thereof , and for the desraying the expence and charge of a free coynage ; and for the further encouragement of merchants and others , to import bullion , his majesty with advice and consent of his estates of parliament , statutes and ordains , that any merchant or other person , as well strangers as natives , who shall import into this kingdom , and bring in to his majesties mint , any quantities of bullion , or silver of the finenesse of eleven deniers , two grains , which is hereby declared to be the standart of finenesse of this kingdom in all time coming , they shall receive out again from the general , or master of his majesties mint , for all such quantities imported by them , weight for weight in his majesties coyn ▪ of the standart of finenesse , and the species aftermentioned ; that is to say , for each pound scots of sixteen ounces , conform to the standart pile of scots weight , now in his majesties mint , one pound of sixteen ounces of his majesties current coyn , without being lyable to any charge or expence whatsoever for essaying , melting , supporting of waist in coynage of the saids quantities of bullion , or silver of the standart of eleven deniers , two grains fine aforesaid ; and for every pound of silver that shall be brought in to the mint , to be essayed , melted down , and coyned as aforesaid , that shall be finer upon essay than the standart of eleven deniers , two grains aforesaid , there shall be delivered for the same to the merchants , or other importers thereof by the officers of the mint , so much more than a pound , as the same doth in proportion and value amount unto the finenesse and value , and for every pound of silver that shall be brought in to the mint to be essayed , melted down , and coyned as aforesaid , that shall be courser or baser than eleven deniers , two grains fine , there shall be delivered by the officers of the mint , so much less than a pound , as the same doth fall short in fineness and value . it is always hereby declared , that it shall not be lawful to the officers of the mint , to import or bring in to be coyned any bullion , either in their own name , or in the name of others , with certification , if they contraveen , it shall be holden a malversation in their office , and punished according to the laws of the kingdom ; and statutes and ordains , that there shal be three piles of weight , whereof one to be keeped in exchequer , one by the dean of gild of edinburgh , and the third in the mint-house . and likeas , that there shall be a standart , or printed table keeped in the mint-house , of the value of money or bullion , according to the denominations of weights used in the mint of deniers , grains , primes and seconds ; and the ordinary denominations of pounds , ounces , drops and grains , by which merchants or others may know what they are to give in , or get out , when their bullion doth arise above , or fall below the standart appointed . and his majesty and estates of parliament , do hereby statute and ordain , that there shall be no preference in point of essaying , or coynage ; but that all siler brought in , and delivered in to the mint , to be essayed & coyned , shall be essayed , coyned and delivered out to the respective importers , according to their order and times of bringing in , and delivering the same to the mint , and not otherwayes , so as he that shall first bring in and deliver any silver to be coyned , shall be holden and accounted the first person to have the same essayed , coyned and delivered , and he or they that shall bring in the silver next , to be accounted the second person , to have the same essayed , coyned and delivered , and so successively in course , and that the silver brought in , and coyned as aforesaid , shall be in the same order delivered to the respective bringers in thereof , their heirs , executors and assigneys , successively without preference of one before another , and not otherways ; and if any undue preference be made in entering of any silver , or delivering out of coyned money , contrair to the true intent and meaning of this act , by any officer , or officers of the mint , or their deputs and servants , then the party or parties offending , shall be lyable to legal execution , as for a just debt , and to pay the value of the silver brought in and not entered , and delivered according to the true intent and meaning of this act , with interest , besides cost and damnages to the party or parties grieved , and shall over and above ipso facto be deprived , lose and amit their office or offices : providing always , that it shall not be interpreted any undue preference , to incur any penalty , in poynt of delivery of moneys coyned , if the officer , or officers , their deputs or servants shall deliver out , or pay any moneys coyned to any person or persons that do come and demand the same upon subsequent entries before others , that did not come to demand their moneys in their order and course , so as there be so much money reserved as will satisfie them , which shall not be otherways disposed of , but kept for them . and for the better clearing of what quantities of bullion , are from time to time delivered in to his majesties mint : as likwise , what quantities of silver do pass his majesties irons , his majesty , with advice foresaid , does statute and ordain , that there shall be a clerk , or book-keeper in the mint-office , who shall be obliged to keep two registers or records , in fair parchment-books , and in one of them , set down the times of in-giving the several quantities of bullion , by the merchants and others , in presence of the in-giver ; which book shall be made patent to any that shall require the same gratis , under the pain of deprivation : as likewise to receive subscribed accompts from the master-warden , counter-warden , and the essay-master , of all the quantities of silver coyned in his majesties mint , according to the standart and fineness ; which accompt so given in to him , he is to record in his other register , and the whole officers of the mint , or their deputs , for whom they shall be answerable , are to subscribe the same quarterly , to the effect , that it may be known what quantities of silver are past his majesties irons from time to time . and likewise , that the several officers of the mint are to keep particular books of record in their respective offices as formerly ; all which registers are to be made and keeped upon their highest perril ; and for the more orderly and clear performance hereof , it is hereby statute and ordained , that the master of his majesties mint for the time-being , or his deput , shall at the time of the delivery , and entry of any silver in the said mint , give to the bringer , or bringers in thereof to be coyned , a note , or recept under his hand , denoting the weight , fineness , and value thereof , together with the day and order of its delivery in to the said mint , bearing in the body of it , a clause of registration ; it being always hereby expresly provided , that the master of his majesties mint shall be obliged to deliver back again to the in-bringers , any quantitie of bullion he shall receive from them , in his majesties coyn , within the space of ten days , if the bullion do not exceed six thousand pound scots ; and on fifteen days , if it do not exceed twelve thousand pound scots : and in case the quantity be greater , within twenty days , and in case of failzie , the merchants or importers , shall have legal diligence against him , by charging him with horning , upon registration of his note aforesaid , with interest , by and attour cost and damnage therefore ; and for the further encouragement and assurance of such as shall import , and bring in to his majesties mint , any quantities of silver to be coyned , his majesty and estates of parliament , statutes and ordains , that'no confiscation , forefaulture , seisure , arrestment , stop , or restraint whatsomever , shall be made in the said mint , of any silver brought in to be coyned , or by reason of any embargo , breach of peace , letters of mark , or reprysal , or war with any forraign nation , or upon any other account or pretence whatsoever , publick or privat ; but that all silver brought in to his majesties mint , within this kingdom to be coyned , shall truly , and with all convenient speed , be coyned and delivered out to the in-bringers thereof , their heirs or assigneys , according to the rules and directions of this act. and his majesty and estates of parliament , further enact and declare , that the general , or master of his majesties mint , shall be obliged to give the coynage free to any merchant , strangers , or others importers , or in-bringers of bullion ; and in case the general or master of his majesties mint , shall refuse to accept of , enter and coyn any quantity , or quantities of bullion , to be brought in by the merchants , or others into his majesties mint , the general , or master for such refusal ( the merchant or importer taking instruments in a nottars hand thereupon ) shall ipso facto be deprived of their offices respective ; it being always hereby provided , that in case the quantities of bullion to be imported , shall exceed the stock of money granted to his majesty for supporting of a free coynage , in that case the general , or master of his majesties mint , is to make application to the lords of privy council , and to acquaint their lordships therewith , to the end , that by their appointment , the commissioners of his majesties thesaury , thesaurer-principal , or thesaurer-deput for the time being , may furnish and advance eighteen pounds scots money , for every stone that shall be brought in by merchants , or others to be coyned in the mint , until the next parliament , or session of parliament thereafter , shall take unto their consideration , the manner of re-imbursing his majesty for the said advance . it being always hereby declared , that the officers of the mint shall not be lyable to the obligation aforesaid , for refusing to coyn any such quantities brought in to the mint to be coyned , in case upon any accident , the commissioners of his majesties thesaury , thesaurer-principal , or thesaurer-deput for the time being , shall refuse or delay to pay eighteen pound scots per stone for the coynage aforesaid . and his majesty and estates of parliament , for certain weighty considerations , do hereby statute , ordain , and declare , that in all time coming , the species of current coyn within this kingdom , shall be , five shillings , ten shillings , twenty shillings , fourty shillings , and sixty shillings scots pieces , to be coyned of the standart of fineness and weight aftermentioned , viz. the sixty shillings scots pieces is to weigh , according to the denomination of weights used in the mint , twenty one deniers , eighteen grains , ten primes , eighteen seconds ; and in the ordinary denomination of weights , fourteen drop , eighteen grains : and in regard that the sixty shilling scots piece of the weight aforesaid , cannot be brought to a certain number , to make up a scots pound weight , without fraction ; therefore it is hereby declared , that the lesser species of coyn shall be delivered to the merchant , or others importers of bullion , to make up the just weights ; and when it shall fall out , that the fraction is less than a five shilling scots piece , in that case the merchant , or importer shall have such a proportion of a five shilling piece clipped off , and delivered to him , as may make up the just quantity of a pound weight , by which means there will be in a scots pound weight , according to the standart pile of weights now in the mint , seventeen sixty shilling pieces , one twenty shilling piece , one ten shilling piece , one five shilling piece , and a small fraction of three shilling four pennies scots ; the fourty shilling scots piece is to weigh according to the denomination of weights used in the mint , fourteen deniers , twelve grains , seven primes , and four seconds , and according to the ordinary denomination of scots weight , nine drop , twenty four grains , whereof twenty six , and one ten shilling piece , one five shilling piece , and a small fraction of three shilling four pennies scots , makes a pound weight ; the twenty shilling piece is to weigh according to the denomination of weights used in the mint , seven deniers , six grains , three primes , fourteen seconds , and according to the ordinary denomination of scots weight , four drop , thirty grains , whereof fifty two , and one ten shilling piece , one five shilling piece , and a small fraction of three shilling four pennies scots , makes a scots pound weight ; the ten shilling piece is to weigh according to the denomination of weights in the mint , three deniers , fifteen grains , one prime , nineteen seconds , and according to the ordinary denomination of scots weight , two drop , fifteen grains , whereof one hundred and five , one five shilling piece , and a fraction of three shilling four pennies scots , makes a scots pound weight ; the five shilling piece is to weigh , according to the denomination of weights in the mint , one denier , nineteen grains , twelve primes , twenty one seconds , and according to the ordinary denomination of scots weight , one drop , seven grains and a half , whereof two hundred and eleven , and a fraction of three shilling four pennies scots makes a scots pound weight . it is always hereby provided , that if upon tryal , it shall be found that the weight of the several species of the money appointed by this act , shall be any way prejudicial to the interest or trade of this kingdom , that in that caice his majesty , with advice of his privy council , may rectifie or alter the same as they find cause ; but because it may sometime fall out casually , that money be not coyned and fabricat exactly in all things , to the true standarts of weight , and fineness above , and after-specified : therefore his majesty and estates of parliament , statute and ordain , that if it shall casually fall out , that any species of coyn to be coyned for the future within this kingdom , be lighter or heavier than the standart of weight aforesaid , the officers of the mint may deliver the same , providing always it be meerly accidental and casual , and do not exceed the quantities afterspecified , viz. two grains over , or under the true weight of every sixty or fourty shilling piece , one grain over , or under the true weight of every twenty shilling , ten shilling , or five shilling scots piece , above-specified , appointed to be coyned by this present act : as also , if the money in the species foresaid to be coyned , shall fall out accidentally to be a grain finer , or courser than the true standart of eleven denier , two grains upon every twelve ounces weight , so to be coyned , the officers of the mint may deliver out the money to the merchants , or others , according to these remeeds of weight and fineness above specified ; it is hereby always expresly provided , that the officers of the mint shall by rio means work and fabricat the money with regard to the remedies foresaid , as they will be answerable at their highest peril . and it is statute and ordained , that they shall keep an exact record of all these remedies , both of weight and fineness , and compt for the same yearly in exchequer , for his majesties use ; and appoints and ordains in all time coming , that the essay-master shall take two pieces of every journal , that he shall cut off so much of one of the pieces as will make an essay , and shall put up the remainder , and the other whole piece , with the reported essay ▪ all which shall be put into the pix , the wairden , or counter-wairden , being always present , which is to be opened once every year in the moneth of december , at the sight of the privy council . and it is hereby declared , that the tryal of the pix being made , the whole silver in the pix is to be returned to the master as his own , and the say-master is to have no part of it ; the pix shall have three keys , one to be kept by the lords of thesaury , or thesaurer for the time being , one by the general , and one by the warden ▪ principal of the mint ; and his majesty , with advice and consent foresaid , doth statute and ordain , that all the money to be coyned for the time to come within this kingdom , shall be lettered and grained round the edges , that is to say , the sixty and fourty shilling pieces shall be lettered , the twenty , ten shilling , and five shilling scots pieces shall be grained round the edges , the particular impression , inscriptions , and reverses ; as likewise what poportion of each species of money shall be coyned in each stone weight of silver , are hereby left and recommended to the lords of his majesties privy council , who are by this present act fully impowered to consider and cognosce upon the fineness and weight of the gold coyn , when his majesty shall think fit to grant warrant for the same , and to regulat , appoint and determine the fineness , weight and species of the said gold coyn , and to ordain and appoint such impression , inscription and reverse , as they shall see cause . and his majesty and estates of parliament do further statute and ordain , that no copper shall be coyned without his majesties express warrand ; and that all copper which shall be coyned conform to his warrand , shall be coyned in two penny and six penny scots pieces , and that fourty of the six penny pieces , and sixscore twelve of the two penny pieces shall make a pound : and recommends to the lords of privy council , to appoint tryal to be taken of the weight of every journal of copper , before it go out of the mint-house , and what profit shall arise by the coynage of the copper , the officers of the mint shall be lyable to compt for the same to the exchequer . and his majesty and estates of parliament , do hereby further statute and ordain , that the sum of twelve thousand pounds scots of the imposition aforesaid , imposed by this present act , upon the commodities above-specified , shall be in all time coming set apart for payment of the officers-fees , maintaining of the fabrick of the mint , and providing new tools , and other incident charges relating to the mint , in manner after-specified , viz. the general of the said mint , the sum of three thousand six hundred pounds scots as his fee and sallary ; the sum of two thousand four hundred pounds scots to the master of the mint , and this over and above the sum of eighteen pounds money for every stone of silver that shall be coyned and passed his majesties irons , to be payed to him out of the remainder of the said imposition , for supporting a free coynage as aforesaid ; the sum of one thousand two hundred pounds scots money to the principal wairden ; the sum of one thousand two hundred pounds scots to the essay-master ; the sum of seven hundred and twenty pounds scots money to the counter-wairden ; the sum of six hundred pounds scots to the sinker or graver ; the sum of four hundred and eighty pounds scots money to the clerk or book-keeper ; the sum of three hundred thirty three pounds six shilling eight pennies scots to the clerk of the bullion , who is to be clerk for the time to come to this new imposition , as he was formerly to the bullion , or twelve shilling per ounce payed in lieu thereof ; to the master-smith , the sum of three hundred and sixty pounds scots , as their fees and sallaries ; and the sum of eleven hundred six pound thirteen shilling four pennies scots , to be payed in to the general and master , for maintaining the fabrick of the mint-house , providing of new tools , and other incident charges reraling to the mint , for which they are to compt yearly to his majesties exchequer , and the overplus ( if any shall be ) to go to the stock of free coynage aforesaid : the which sum of twelve thousand pounds scots for the officers of the mint , and other expenses thereof , is to be payed to the general and master of the said mint , together with the sum of eighteen pounds per stone to the master for the coynage of the money , at four terms in the year , viz. candlemass , whitsunday , lambmass and martinmass yearly ; and the said payment to commence from and after the first of november next . and his majesty and estates of parliament , further statute and ordain , that no heads , sweeps or chizel of any gold or silver to be coyned in his majesties in t , shall pass his majesties irons without taking a second essay thereof , as if the same were newly brought in to the mint to be coyned ; and to the effect that all matters relating to the coynage and mint , may be equally ordered and regulated according to this present act , and in such further ways and manner as his majesty and his privy council shall think fit . it is hereby recommended to his majesties privy council , by some of their number , to try every journal of coyn by it self distinctly , and to take exact tryal of all matters relating to the coynage , both as to the weight and fineness of the money , and other matters relating to the said mint , twice every year , viz. in the moneths of iuly and december yearly , and to call before them the whole officers of the mint , and to examine their proceedings , and to inspect their books , and to sign and subscribe approbations thereof , as they shall see cause : and this without prejudice of the said officers of the mint , their compting yearly to the lords of his majesties exchequer and thesaury , for all matters commited to their trust. xxv . act rescinding a clause in the addresse , made by the parliament , against the late earl of argile . iune 15. 1686. our soveraign lord taking into his consideration the 36 act of the first session of this parliament , intituled , act anent the address of the estates of parliament , of his majesties ancient kingdom of scotland , to his sacred majesty , against the arch-traitor , archibald campbel , sometime earl of argile ; and that his majesty from his unparalleled clemencie , and goodness , has been graciouslie pleased to pardon and indemnifie several persons , who were accessorie to , and involved into the said rebellion , notwithstanding the estates of parliament from their zeal to his majesties service , and detestation of the said rebellion , did by their address humbly desire , they should for ever be incapable of mercie , and that any of his majesties subjects who should interceed for them any manner of way , should incur the pain of treason ; and in regard his majesty did make no signification of his royal pleasure , as to the said address : therefore his majesty with advice and consent of his estates of parliament , casses , annuls and rescinds that clause in the same address , as to the exercise of his majesties mercy , or the intercessions of any of his majesties subjects , made or to be made in that behalf : and declares the same clause to have no strength , force , nor effect from the beginning , and to be null and void in all time coming . xxvi . act dissolving the lands and estates of earlestoun , craichlaw , and caitloch from the crown . iune 15. 1686. our soveraign lord taking to his royal consideration , that his late majesty and his royal brother of ever glorious memory , by charter under the great-seal of this his majesties ancient kingdom , of the date at windsor-castle , the eleventh day of may , 1680 years , upon the account of sir theophilus ogilthrop , lieutenant colonel main , and captain hendry cornowall , their loyalty and service performed to the crown , did give , grant and dispone to them , their heirs and assigneys , the lands and estates of earlestoun , craichlaw and caitloch , and others more fully specified in the said charter , whereupon they were infest , and the said right ratified in parliament ; and which lands and estates fell in his late majesties hands , by the forefaultur of mr. william and alexander gordons , elder and younger of earlstoun , iames gordon of craichlaw , and mr. william ferguson of caitloch . likeas his late majesty , by his letter of the eleventh of may one thousand six hundred eighty directed to the lords commissioners of his highness thesaury , upon information that the saids three estates did exceed six hundred pounds sterling per annum , which his majesty was pleased to promise should be made good unto them , ordered , that before the said gift past in exchequer , the saids lords should take their security to pay the superplus , if any were , that the saids estates should be found to exceed the foresaid rent , and the debts payable out of the same by law , in such manner , and to such uses as his majesty should think fit thereafter to direct . and in like manner , his majesty by another letter , directed to the saids lords , of the 15th of february 1681. required them to take sufficient security of the saids persons for payment of their share of the expence disbursed out of his late majesties thesaury , towards the suppressing of the rebellion in the year 1679 , not exceeding two years rent of the saids forefaulted estates , and accordingly the saids donatars granted security to the saids lords in the terms foresaids . as also , our soveraign lord considering , that his majesty by his letter of the last of october 1685. upon the consideration that the saids estates did not exceed , but are rather considerably short of the saids six hundred pounds sterling per annum , and of the great trouble and expence , the said sir theophilus ( who also acquired the other two parts from main and cornowall ) was , and is exposed to , in attaining to the possession of the saids three forefaulted estates , and being desirous the same should be made fully effectual to him , free of all future trouble and inconvenience . therefore , as a further mark of his favour to the said sir theophilus , and in consideration of his great loyalty and service , authorized and required william duke of queensberrie , his majesties thesaurer-principal for the time , thesaurer-deput , and remanent lords of exchequer , to deliver to him the said security , and ordained the same to be delet out of the records of exchequer , which accordingly was done , and an act thereupon past the eight of ianuary last ; and further upon consideration of the said sir theophilus his constant loyalty and adherence to the crown , and signal evidence given by him thereof in the late rebellion of the late duke of munmouth , did order his right trusty and familiar cousen and counsellor , alexander earl of murray , conjunct-secretary of state for the kingdom of scotland , and his majesties high commissioner therein for the time , to represent the matter in parliament for a dissolution of the saids three forefaulted estates from the crown , to which the same were annexed in the last session of parliament , holden at edinburgh the sixteenth day of iune , one thousand six hundred eighty five years , which annexation proceeded upon a supposition that the yearly rent exceeded six hundred pound sterling a year ; whereas now upon serious examination it is found short ; which considerations being this day proponed in plain parliament , and the estates of parliament having fully pondered and considered the whole matter , and the truth thereof being sufficiently known , and made appear to them , by production of the foresaid charter , act of exchequer , and other evidences requisite ; and by the said lord high commissioner his grace , his declaration in pluin parliament , in name of , and by warrand from his majesty : his majesty and estates of parliament , after mature deliberation , finds the same just , sufficient , and reasonable causes for advising his majesty to dissolve the saids three forefaulted estates , all particularly mentioned in the said charter , from the crown , that the same may pertain , and belong to , and remain with the said sir theophilus ogilthrop and his foresaids , as their own proper heretage , heretably and irredeemably in all time coming ; and therefore , his majesty with advice and consent of the estates of parliament , has dissolved , and hereby dissolves the same lands and three forefaulted estates aforesaid from the crown and patrimony thereof , and from the said act of annexation , and from all clauses , conditions and qualifications therein-contained ; and finds , decerns and declares , that the foresaid dissolution having proceeded upon the grounds , causes , and deliberation aforesaid in plain parliament , does satisfie all the conditions , clauses and qualifications contained in the foresaid act of annexation , past the said last session of parliament , and shall have the force , strength , and effect of a general law and act of parliament , and shall be as valid and effectual to the said sir theophilus ogilthrop and his foresaids , for their security of the saids lands and estates as any dissolution granted by his majesty or royal ancestors , with advice and consent of their estates of parliament for the time , in favours of whatsomever person or persons at any time heretofore , and that notwithstanding of any clauses , conditions , or qualifications contained in the said act of annexation ; and notwithstanding of any security granted by the saids donatars , or any of them in exchequer . and his majesty with consent foresaid , hereby ratifies , approves and confirms the said act of exchequer , and grounds thereof in all points . and lastly , his majesty and estates of parliament , finds and declares , that this present act shall not fall under the act salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted forth thereof , in all time coming . xxvii . act of dissolution of the lands of grange in favours of sir thomas kennedy , lord provost of edinburgh . iune 15. 1686. our soveraign lord , and estates of parliament taking into their serious consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and proponed in plain parliament , the loyalty and fidelity of sir thomas kennedy lord provost of edinburgh , and the good and acceptable services performed by him to the crown and kingdom , in the diligent suppressing of the late tumult within the city of edinburgh , and since ; and considering also the service done by the said sir thomas kennedy , against the rebels at bothwell-bridge ; and likewise the constant loyalty and eminent services and sufferings of lieutenant-collonel thomas kennedy of kirkhill his father , and his firm adherence to the crown , in so far as the said lieutenant collonel kennedy having attended the late king of ever blessed memory at worcester fight , he was then taken prisoner , and detained eighteen moneths in the kingdom of england , and afterwards sent prisoner to leith , from whence after he had stayed some while , he was transported to air , and kept prisoner there until the year 1659. and his estate in the mean-time sequestrat , and possest by the usurpers , and himself absolutely ruined : all which services and sufferings being proposed and laid open in plain parliament , to the end the three estates might give his majesty their advice , judgement and determination re integra , whether the same were good and reasonable causes for dissolving from the crown , the lands of grange , formerly pertaining to thomas kennedy sometime of grange , with all other lands , heretages and rights which belonged to the said thomas , and which fell in his majesties hands , through the doom and sentence of forefaulture , given and pronounced against him upon the day of one thousand six hundred years , by the lords of justiciary for the crime of treason and laes-majesty , committed by the said thomas , and were annexed to the crown by the fourty two act of the first session of this current parliament : and the saids estates of parliament , after mature deliberation , and treating and consulting anent the premisses , being fully satisfied and convinced , that the saids particular services and sufferings , done , performed and undergone by the said sir thomas kennedy , lord provost of edinburgh , and lieutennant collonel thomas kennedy his father , the truth whereof is sufficiently known , and did appear to them , are just , sufficient and important reasons , concerning both his majesties interest , and publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the foresaids lands of grange , and others above-exprest , to the said sir thomas kennedy , his heirs and assigneys ; and for that effect , that the saids lands should be dissolved from the crown , and from the said act of annexation . therefore his majesty , with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands of grange , formerly pertaining to the said thomas kennedy sometime of grange , and all other lands , heretages and rights , which belonged to him , and which came in his majesties hands , and were annexed to the crown in manner foresaid , may be disponed to the said sir thomas kennedy lord provost of edinburgh , and his foresaids ; and for that effect , has dissolved , and hereby dissolves the same from the crown and patrimony thereof , and from the foresaid act of annexation , made the sixteenth of iune one thousand six hundred and eighty five , and from all other acts of annexation , and from all clauses , qualities and conditions therein contained : and his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution having proceeded upon the advice and deliberation of the estates of parliament re integra , and found by the saids estates to be for great , weighty and reasonable causes , concerning the good , welfare , and publick interest of the whole kingdom , first proposed and advised , and maturely pondered and considered , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said sir thomas kennedy and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength and effect of a general law or act of parliament , and shall be as valid and effectual to the said sir thomas kennedy and his foresaids , for their security of the lands and others above-exprest , as any other act of dissolution past by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsomever person or persons at any time heretofore ; and declares that this act shall not be comprehended under the act of salvo iure , to be past in this present session , or any subsequent session of this current parliament , but is hereby excepted therefrom . xxviii . act dissolving the lands of cultness , north-berwick and goodtries from the crown iune 15. 1686. our soveraign lord , and estates of parliament , taking into their consideration , that his majesties commissioner , as having special warrand and commission from his majesty , having proposed and expounded in plain parliament , the great and faithful services done to his majesty , and his royal brother of ever blessed memory , by iames earl of arran , first gentleman of his majesties bed-chamber , and his constant zeal and faithfulness to the interest of the crown ; and particularly , the said earl of arran his extraordinary expenses , when imployed by his majesties said dearest brother , as envoy to the french king , and of his activeness against the late earl of argile , and the other rebels associat with him in the year 1685. for which he had no allowance , at least not suitable to his expenses ; and that he had faithfully executed the saids offices , and did very well behave himself therein ; and that he was instrumental in the defeat of these rebels , and had performed several other good and acceptable services : all which being proposed and laid open in plain parliament , to the end the three estates might give his majesty their judgement , advice and determination re integra , whether the same were true , good and reasonable causes of publick concernment , for dissolving the lands and barony of cultness , lying within the sheriffdom of lanerk , and the lands of north-berwick , lying within the constabulary of haddingtoun , and al 's the lands of goodtries , with the teinds and pertinents thereof , lying within the sheriffdom of edinburgh , sometime pertaining to thomas and david stuarts , late elder and younger of cultness , together with all other lands , annualrents , and others pertaining and belonging to them , from the crown , and which fell and became in his majesties hands , through the crimes of treason and laes-majestie , acted , committed and done by them , and either of them , and the doom and sentence of forefaulture , given and pronounced against them for the same , upon the and days of and 1685 years , and were annexed to the crown , by the fourty two act of the first session of this current parliament , and by the act of this present session of parliament : and the saids estates of parliament , after long and mature deliberation , treating , and consulting anent the premisses , being fully satisfied and convinced , that the particular services and expenses above-mentioned , done , performed and expended by the said iames earl of arran , the truth whereof is clearly known , and did appear to them as just , weighty and important reasons , concerning both his majesties interest , and the publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands of cultness , north-berwick , goodtries , and the other lands above-written , with the pertinents , to the said iames earl of arran , his heirs or assigneys ; and for that effect , that the saids lands should be dissolved from the crown , and from the saids two acts of annexation : therefore , his majesty with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands and barony of cultness , and lands of north-berwick and goodtries above-written , sometime belonging to the saids thomas and david stuarts , late elder and younger of cultness , with all other lands , heretages , annualrents and others belonging to them , or either of them , which came in his majesties hands , and were annexed to the crown in manner foresaid , may be disponed to the said iames earl of arran and his foresaids ; and for that effect , have dissolved , and hereby dissolves the same from the crown and patrimony thereof , and from the saids two acts of annexation , the one made the 16 day of iune 1685. and the other made the day of may 1686. and from all other acts of annexation ; and from all clauses , qualities and conditions therein contained . and his majesty , with advice and consent foresaid , finds , decerns and declares this present act of dissolution , having proceeded upon advice and deliberation of the estates of parliament re integra , and found by the saids estates , to be for great , weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom , first proposed , advised and maturely pondered and considered in plain parliament re integra , and found by the saids estates to be for great , weighty and reasonable causes , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said iames earl of arran , and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the two foresaids acts of annexation , and shall have the force , strength and effect of a general law and act of parliament , and shall be as valid and effectual to the said iames earl of arran and his foresaids , for their security in the saids lands of cultness , north-berwick , goodtries , and others above-exprest , with the pertinents , as any other act of dissolution granted by his majesty , or his royal ancestors , with advice and consent of their estates of parliament , in favours of whatsoever person at any time heretofore . likeas , his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution is , and shall not be understood to fall under , or be comprehended in any act salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted therefrom in all time coming . it is always hereby declared , that this act of dissolution of the lands of north-berwick , which did once belong to the said thomas stuart , sometimes of cultness , shall not prejudge the senators of the colledge of justice , as to their right and interest in these lands , who are hereby declared preferable for the same . xxix . act of dissolution in favours of the late earl of tarras . iune 15. 1686. our soveraign lord and estates of parliament taking into their consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , the great benefite and advantage that did arise to the crown and government of this kingdom , by the full and sincere confession made by walter late earl of tarras , of several matters and circumstances , relating to the late horrid conspiracy , the discovery whereof , did in a great measure contribute towards the preventing the fatal consequences and effects , which so apparently threatned the peace of his majesties dominions : as also the promises and assurances given to him at the time of the said discovery of his princes bounty and favour upon that account : all which being proposed and laid open in plain parliament , to the end the three estates might give his majesty their judgement , advice and determination re integra , whether the same were true , good and reasonable causes , for dissolving from the crown , the lands of robertoun , howcleuch and borthwick-mains , with the pertinents which formerly appertained to the said walter , late earl of tarras , and came in his majesties hands through the doom and sentence of forefaulture , given and pronounced against him before the lords of his majesties justiciary , upon the day of one thousand six hundred years , and were annexed to the crown , by the 42 act of the first session of this current parliament : and the saids estates of parliament , after mature deliberation , and treating and consulting anent the premisses , being fully satisfied and convinced , that the particular services done and performed by the said walter , late earl of tarras , in his confession and discovery foresaid , and the benefit and advantage thereby accruing to the crown and kingdom , and the promises and assurances given to him of his princes bounty and favour , the truth whereof is sufficiently known , and was made appear to them , are just. weighty and important causes , concerning both his majesties interest , and the publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands of robertoun , howcleuch and borthwick-mains , with the pertinents , to the said walter late earl of tarras , his heirs and assigneys : and for that effect , that the same should be dissolved from the crown , and from the foresaid act of annexation . therefore , his majesty with advice and consent of the estates of parliament , decerns , ordains and declares that the saids lands of robertoun , howcleuch and borthwick-mains , with the pertinents , may be disponed to the said walter , late earl of tarras , and his foresaids ; and for that effect , has dissolved , and hereby dissolves the same from the crown and patrimony thereof , and from the foresaid act of annexation , made the sixteenth day of iune one thousand six hundred eighty five , and from all other acts of annexation , and from all clauses , qualities and conditions therein-contained . and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , having proceeded upon the advice and deliberation of the estates of parliament re integra ; and found by the saids estates , to be for great , weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom , first proposed and advised , and maturely pondered and considered before any previous grant or other right or deed , given , made or done by his majesty , in favours of the said walter late earl of tarras , and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions , and qualifications contained in the foresaid act of annexation , and shall have the force , strength , and effect of a general law , or act of parliament , and shall be al 's valid and effectual to the said walter late earl of tarras , and his foresaids ▪ for their security of the lands and others above-exprest , as any other act of dissolution , granted by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsoever person at any time heretofore . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution shal not be understood to fall under , or be comprehended in any act salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted therefrom in all time coming . xxx . act anent the measure of bark ▪ iune 15. 1686. our soveraign lord and estates of parliament , taking to their consideration the great prejudice that does arise through the uncertainty of the measure of bark within this kingdom ; do statute and ordain , that the constant measure of bark in all time coming shall be as follows , viz. that twenty two gallons shall be the measure of one boll of unbeaten bark , and so proportionally for lesser measures , and that the linlithgow barly measure , shall be the measure for all small beaten mallowie bark ; and prohibites and discharges all persons whatsomever , to make use of any other measures than the measures aforesaid , in buying or selling of bark in time coming , under the pain of an hundred pounds scots , toties quoties , beside the forefaulture of the bark , so bought or sold. xxxi . act in favours of john meikle founder , and others of that trade . iune 15. 1686. his majesty and estates of parliament taking to consideration , the great advantage that the nation may have by the trade of founding , lately brought into this kingdom by iohn meikle , for casting of bells , cannons , and others such useful instruments , do for encouragement to him , and others in the same trade , statute and ordain , that the same shall enjoy the benefit and priviledges of a manufacture in all points , as the other manufactures newly erected , are allowed to have by the laws and acts of parliament , and that for the space of nineteen years next following the date hereof . xxxii . act salvo i●re cujuslibet . iune 15. 686. our soveraign lord , taking to consideration , that there are several acts of ratifications , and others past and made in this session of parliament , in favours of particular persons , without calling or hearing of such as may be thereby concerned or prejudged ; therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that all such particular acts , and acts of ratification past in manner foresaid , shall not prejudge any third party of their lawful rights , nor of their actions and defences competent thereupon , before the making of the saids particular acts , and acts of ratifications ; and that the lords of session , and all other judges of this kingdom , shall be obliged to judge betwixt parties , according to their several rights , standing in their persons , before the making of the saids acts : all which are hereby exponed , and declared to have been made , salvo iure cujuslibet . xxxiii . act of adjournment . iune 15. 1686. the kings majesty declares this parliament current , and adjourns the same to the 16 day of august next , 1686. and ordains all members of parliament to attend that day : and that there be no new election of commissioners from shires or burghs , except upon the death of some of the present commissioners . collected and extracted from the registers and records of parliament , by tarbat , cls. reg. a table of the printed acts . 1 act of dissolution of the lands of cesnock and duchal . pag. 3 2 act for the better inbringing of his majesties supply . pag. 5 3 act ordaining interlocutors to be subscribed by judges . pag. 6 4 act ordaining all executions to be subscribed by the witnesses , without necessity of stamping . pag. ibid. 5 act anent the session . pag. ibid. 6 act for the christmas vacans . pag. ibid. 7 act of dissolution of the lands and barony of torwoodlie , in favours of lieutenant general drummond . pag. 7 8 additional act anent high-ways and bridges . pag. 8 9 act of annexation of the baronies of muir-hall and melfort to the crown . pag. 9 10 act ordaining pursuers to furnish the act to the defenders , whereon they are to depone ▪ pag. 11 11 act for winter-herding . pag. ibid. 12 act for cleansing the streets of edinburgh . pag. ibid. 13 act of dissolution in favours of the duke of gordon . pag. 12 14 act against importing irish-victual , or cattel . pag. 13 15 act declaring that inhibitions shall not be prejudged by recognition . pag. ibid. 16 act for burying in scots ▪ linen ▪ pag. 14 17 act for writing seasins by way of book . pag. ibid. 18 act appointing the publication of the testimonies of witnesses . pag. 15 19 act anent the registration of seasins and reversions . pag. ibid. 20 act anent the nomination of clerks to the justices of peace . pag. ibid. 21 act in favours of iohn adair , geographer , for surveying the kingdom of scotland , and navigating the coasts and isles thereof . pag. 16 22 act and commission for plantation of kirks , and valuation of teinds . pag. 17 23 act for regulation of judicatures . pag. 18 24 act anent an humble offer made to his majesty for an imposition upon certain commodities , for defraying the expence of a free coynage , and other matters relating to the mint . pag. 20 25 act rescinding a clause in the address , made by the parliament , against the late earl of argile . pag. 24 26 act dissolving the lands and estates of earlstoun , craichlaw , and caitloch from the crown . pag. 25 27 act of dissolution of the lands of grange in favours of sir thomas kennedy , lord provost of edinburgh . pag. 26 28 act dissolving the lands of cultness , north-berwick and goodtries from the crown . pag. 27 29 act of dissolution in favours of the late earl of tarras . pag. 28 30 act anent the measure of bark . pag. 29 31 act in favours of iohn meikle founder , and others of that trade . pag. ibid. 32 act salvo iure cujuslibet . pag. ibid. 33 act of adjournment . pag. 30 a table of the acts and ratifications past in the second session of his majesties first parliament , and which are not here printed . protestation by some noble-men and others , concerning their precedency in the rolls of parliament . his majesties letter to the parliament , with the parliaments answer . act for several yearly fairs and weekly mercats to some noble-men and others . act of dissolution of the lands of ochiltrie , in favours of william cochran . act dissolving from the crown , lands which held of other superiours than the king. act in favours of the dutches of hamilton , anent the office of justice-general , in the isle of arran . act and reference to the council anent the importation of prohibited goods . act in favours of the shire of ross. act rescinding a commission granted the last session of parliament anent the estate of argile . act rescinding the 33 act of the first session of this current parliament . act adding some commissioners of supply and justices of peace to several shires . act in favours of monsieur culbert , marchio de schanko . act in favours of sir alexander gibson . act for rebuilding the bridge of ugie . act in favours of robert cuninghame of achinhervie . act in favours of the duke of gordon . act in favours of mr. walter birnie minister . act appointing the earl of morray , and lord doun in his absence , conveener in the shire of inverness . ratification in favours of the duke of gordon . ratification in favours of the earl of perth , lord high chancellor . two ratifications in favours of the dutches of buccleugh . ratification in favours of the earl of middletoun . ratification in favours of the earl of dumbartoun . two ratifications in favours of the viscount of melfort . two ratifications in favours of the viscount of tarbat . ratification in favours of general drummond . ratification in favours of the laird of balnagoun . ratification in favours of sir thomas stuart of gairntullie . ratification in favours of sir iames stuart of bute . ratification in favours of sir iames caddel of muirtoun . ratification in favours of sir colin campbel of aberurquhile . ratification in favours of sir archibald cockburn of langtoun . ratification in favours of sir thomas kennedy , lord provost of edinburgh . ratification in favours of sir charles stuart and sir william ker. ratification in favours of sir william sharp of stonny-hill . ratification in favours of sir iohn gordon advocat . ratification in favours of the laird of inverneity . ratification in favour of hugh mcleod of cambiscurrie . ratification in favours of mr. alcxander mclean of ottar . ratification in favours of iohn reid of bara . ratification in favours of captain edward burd . ratification in favours of mr. william gordon advocat . ratification in favours of george keith of criechie . ratification in favours of iames urquhart of knockleith . ratification in favours of robert miln his majesties mr. mason . ratification in favours of lady mary bruce and william cochran . finis . the laws and acts made in the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the twenty third day of april 1685, by his grace william duke of queensberry ..., his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george viscount of tarbet, lord mcleod, and castle-haven, &c. ... laws, etc. scotland. 1685 approx. 199 kb of xml-encoded text transcribed from 24 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2003-11 (eebo-tcp phase 1). a58628 wing s1252 estc r472631 13144680 ocm 13144680 98054 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a58628) transcribed from: (early english books online ; image set 98054) images scanned from microfilm: (early english books, 1641-1700 ; 778:10) the laws and acts made in the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the twenty third day of april 1685, by his grace william duke of queensberry ..., his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george viscount of tarbet, lord mcleod, and castle-haven, &c. ... laws, etc. scotland. cromarty, george mackenzie, earl of, 1630-1714. scotland. parliament. [2], 39, [3] p. printed by the heir of andrew anderson ..., edinburgh : 1685. reproduction of original in huntington library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -scotland. 2003-07 tcp assigned for keying and markup 2003-08 apex covantage keyed and coded from proquest page images 2003-09 rina kor sampled and proofread 2003-09 rina kor text and markup reviewed and edited 2003-10 pfs batch review (qc) and xml conversion the laws and acts made in the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland . defender of the faith. holden at edinburgh the 23. of april 1685. by his grace william duke of queensberry , marquess of dumfreis-shire , earl of drumlanrig , and sanqhuar , viscount of nith , torthorwald , and ross , lord dowglas of kinmount , midlebie , and dornock , &c. lord high thesaurer of scotland . his majesties high commissioner for holding this parliament , by vertue of a commission under his majesties great seal of this kingdom . with the special advice and consent of the estates of parliament . collected and extracted from the registers and records of parliament , by george viscount of tarbet , lord m c leod , and castle-haven , &c. clerk to his majesties council , registers , and rolls , &c. edinburgh ▪ printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. 1685. cum privilegio . god save king james the seventh . laws and acts made in the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland . defender of the faith. holden at edinburgh the 23. of april 1685. i. act for security of the protestant religion . april 28. 1685. our soveraign lord , with consent of the estates of parliament conv●…ned , ratifies and confirms , all the acts and statutes formerly past , for the securitie , liberty , and freedom of the true church of god , and the protestant religion , presently professed within this kingdom , in their whole strength and tenor ▪ as if they were here particularly set down and exprest . ii. a declaration and offer of duty by the kingdom of scotland , with an annexation of the excise to the crown . april 28. 1685. the estates of parliament now conveened by his majesties soveraign authority , taking into their consideration , how this nation hath continued now upwards of two thousand years in the unaltered form of our monarchical government , under the un-interrupted line of one hundred and eleven kings , whose sacred authority and power hath been upon all signal occasions , so owned and assisted by almighty god , that our kingdom hath been protected from conquest , our possessions defended from strangers , our civil commotions brought into wished events , our laws vigorously executed , our properties legally fixed , and our lives securely preserved ; so that we and our ancestors have enjoyed those securities and tranquillities , which the greater and more flourishing kingdoms have frequently wanted . those great blessings we owe in the first place to divine mercy ; and in dependance on that , to the sacred race of our glorious kings , and to the solid , absolute authority wherewith they were invested by the first and fundamental law of our monarchy ; nor can either our records , or our experience instance ▪ our being deprived of those happy effects , but when a rebellious party did by commotions and seditions invade the kings soveraign authority , which was the cause of our prosperity , yet so far hath our primitive constitution , and fundamental laws prevailed against the innovations and seditions of turbulent men , as that these interruptions never terminated , but either in the ruine , or at least the suppression of these who at any time did rebel or rise in opposition to our government . and since so many ages hath assured to us the great advantages , which flow down to all ranks of people from the happy constitution of our monarchy , and that all our calamities have ever arisen from seditious invasions upon these sacred rights ; therefore , the estates of parliament for themselves , and in name of the whole kingdom ▪ judge themselves obliged to declare ; and they do declare to the world , that they abhor an detest , not only the authors and actors of all preceeding rebellions against the soveraign , but likewise all principles and positions which are contrary , or derogatory to the kings sacred , supream , absolute power , and authority , which none , whether persons , or collective bodies can participat of , any manner of way , or upon any pretext ▪ but in dependance on him , and commission from him . and as their duty formerly did bind them to owne and assert the just and legal succession of the sacred line as unalterable by any humane jurisdiction ; so now , they hold themselves on this occasion obliged for themselves , and the whole nation represented by them , in most humble and dutiful manner , to 〈◊〉 the hearry and sincere offer of their lives and fortunes , to assist , support , defend , and 〈◊〉 king iames the seventh , their present glorious monarch , and his heirs , and lawful successors , in the possession of their crowns ▪ soveraignty , prerogatives , authority , dignity , rights , and possessions , against all mortals : and withall , to assure all his enemies , who shall a●…venture on the disloyalty of disobeying his laws , or on the impiety of invading his rights , that such shall sooner weary of their wickedness , then they of their duty ▪ and that they firmly resolve to give thei●… intire obedience to his majesty without reserve , and to concur against all his enemies , forraign or intestine . and they solemnly declare , that as they are bound by law , so they are voluntarly and firmly resolved , that all of this nation , betwixt sixty and sixteen , armed , and provided according to their abilities , shall be in readiness for his majesties service , where , and as o●…t as it shall be his royal pleasure to require them . and since the excise of inland and forraign commodities granted to king charles the second , of ever blessed memory , by the 14. act of the parliament 1661 , during all the days of his lifetime , and prorogate by the 8. act of the parliament 1681. for five years thereafter , will shortly terminat . and the estates of parliament considering the usefulness of this grant , to support the interest of the crown ; do as the first evidence of their sincerity in the foresaid tender of their duty , humbly and unanimously offer to his most sacred majesty king iames the seventh , their present monarch , and to his lawful heirs , and successors , in the imperial crown of scotland , the said excise of inland and forraign commodities , exprest in the said 14. act of parliament 1661 to be collected in the manner prescribed by the said 8. act of the parliament 1681. for ever . and his majesty , and estates of parliament , by the force of this act , have united , annexed , and incorporated ; and unites , annexes , and incorporats the same to the crown of this realm , to remain therewith in annexed property in all time coming : and in respect that the alteration in the method of collecting the inland excise from what it was by the act 1661 , to that prescribed by the 8. act , parliament 1681. will require some time to establish it in collection . therefore , his majesty , with consent of the estates , continues the collection prescribed by the 14. act , parliament 1661 , for the said inland excise for six moneths , from the first of may next allanerly . iii. act concerning citations in processes for treason . may 1. 1685. our soveraign lord , with advice and consent of the estates of parliament , do hereby ratifie and approve , the former custom used by his majesties commissioners of justiciary , in proceeding against pannals already in prison , and indicted for treason , upon twenty four hours ; but for the future , his majesty allows such pannals to be cited on fourty eight hours ; and if the pannals represent such defences to the commissioners of justiciarie within that time , as may need an exculpation . his majestie with advice foresaid , allowes the saids commissioners to delay the trial till the days elapse , to which the exculpation is to be rais'd . iv. act concerning witnesses in processes for treason . may 1. 1685. our soveraign lord , and estates of parliament , do statute and ordain , that such as being cited to be witnesses in the cases of treason , field , or house conventicles , or church irregularities , do refuse to depone , they shall be lyable to be punished as guilty of these crimes respectively , in which they refuse to be witnesses : it being alwayes hereby declared , that these depositions so emitted , shall not militate against the deponent himself any manner of way . v. act declaring it treason to take or owne the covenants . may 6. 1685 our soveraion lord , and estates of parliament , do hereby declare , that the gi●…ing , or taking , of the national covenant , as explained in the year 1638. or of the league and covenant , ( so commonly called ) or writing in defence thereof , or owning of them as lawful , or obligatory on themselves or others , shall infer the crime and pains of treason . vi. act obliging husbands to be liable for their wives fynes . may 6. 1685. our soveraign lord , considering , that the lords of his privy council , and other●… commissionated by his majestie and them , have fyned husbands for their wives withdrawing from the ordinances , doth with advice and consent of the estates of parliament , declare the said procedure to have been legal , and ordains the same to be observed in all time coming ▪ and ratifies all decreets and sentences granted against husbands for such fynes : reserving alwayes power to the lords of his majesties privy council , to absolve , or mitigat the fynes of such husbands as are known to be of loyal principles . vii . act anent porterfield of duchall , and concealing of supply given to rebels . may 6. 1685. our soveraign lord , and estates of parliament , do ratifie , approve , and confirm the sentence of forfaulture pronounced by the commissioners of justiciary against iohn porterfield , sometime of duchall , and the interlocutors , and whole procedure of the saids commissioners in that process . and declares that the same was conform to the laws of this kingdom . and in general , statutes and declares , that the concealing , and not revealing of supplys given to , or demanded for traitors forfaulted for treason against the kings person or government , is treason , and to be judged accordingly . viii . act against preachers at conventicles , and hearers at field-conventicles . may 8. 1685. our soveraign lord , considering the obstinacy of the fanatical party , who notwithstanding all the laws formerly made against them , persevere to keep their house and field-conventicles , which are the nurseries and rendezvouzes of rebellion . therefore , his majesty , with consent of his estates in parliament , doth statute and ordain , that all such as shall hereafter preach at such fanatical , house , or field-conventicles , as also , such as shall be present as hearers at field-conventicles , shall be punished by death , and confiscation of their goods . ix . act for the more effectual payment , and inbringing of his majesties rents and revenues . may 8. 1685. our soveraign lord , and the estates of parliament , considering the great neglect and remissness of the sheriff , stewarts , baillies of bailliaries , and regalities , and their deputs , in their discovering , collecting , and inbringing of his majesties rents and revenues constant and casual ; and of the feuars and other vassals , who are lyable for the rents and duties of his majesties property , and the chamberlains thereof , whereby the payment of the same is fallen very much in arrear ; and the compting yearly in the moneth of iuly , according to former acts of parliament , is greatly neglected . therefore , the better to prevent the same for the future , his majesty , with advice and consent of the estates of parliament , not only ratifies and approves all former laws and acts of parliament made for in-bringing his majesties rents , and particularly the 15th act , 3d session of the first parliament k. charles the 2d , ordaining the same to be put in full execution , conform to the tenor thereof ; but likewise , further statutes and declares , that in all time coming , whatsoever sheriff , stewart , baillie of bailliarie , or regality , or their deputs , or chamberlains of his majesties proper rents respectivè , shall delay , or neglect to compear and compt yearly in exchequer , in the moneth of iuly , and accordingly receive their aeques , and exoneration of all that can be charged on them , as due and payable by them to his majesty ; that immediatly after they shall be charged and denunced for the same , at the mercat cross of edinburgh , conform to the former laws and practice ; and the horning and denunciation shall be duely registrat , that persons so denunced and registrat , shall ipso sacto , amit , loss and tyne ( during their life-time ) their offices of sheriff-ship , stewartry , bailliary , or chamberlanry , whether the same be heretable , or during life , or pleasure ; and it shall not be lawful for them by themselves , or their deputs , to exerce , or officiat therein at any time thereafter ; but the same shall vaik and fall in his majesties hands , without any declarator , or process of law : as also that all feuars , and other vassals of his majesties property , who shall neglect , or delay to compear yearly in the said moneth of iuly , in exchequer , and make compt and payment of the feu , blench , or taxt-ward-duties and others , due and payable by them , and receive their aequies and exonerations thereof accordingly ; so as two years thereof shall run together unpayed , and that they shall be therefore charged , denunced , and registrat , as is abovementioned , that immediately after the said denunciation , and registration , they shall be lyable for the double of the whole ●…eu , blench , taxt-ward , or other duties , then due and payable by them , and all execution shall passe against them therefore , sicklike as if the same were mentioned , and contained in the reddendoes of their infeftments ; and that by and attour , and but prejudice of the penalties formerly imposed , and payable by the said non-accomptants , conform to former laws . and it is further statute and ordained , that all sheriffs , stewarts , baillies of bailliaries and regalities , their clerks , and clerk-deputs shall be holden and obliged , to send lists from time to time to the lord high thesaurer , thesaurer deput , or clerks of exchequer , of all wairds and marriages , as well simple as taxt , that shall happen to fall and vaik in time coming , or that are already fallen within their respective jurisdictions , bearing the time of the decease of the person by whom the same vaiks , and of the successor , and their age , and whether married or not ; certifying all such clerks , as shall not , before the first-day of november next to come , report in exchequer the lists under their hands , of all such bygone casualities fallen , preceeding the date hereof , and thereafter from time to time , within six moneths after the same shall happen to fall and vaik , if the persons die within the kingdom ; that they shall amit , lose and tyne their office of clerk-ship , to be immediately disposed on , by these who shall have right thereto , without any declarator , or other process whatsoever ; and to the effect , they may the better know the tenor of the holding of all lands within their respective jurisdictions , his majesty , with advice forsaid , ordains the saids sheriffs , stewarts , baillies of bailliaries , and regalities , and their deputs , at the next michaelmass head-court , and at such other dyets , as they shall think convenient , to cause all the vassals within their respective jurisdictions produce before them their charters , to the effect the clerks may record the reddendoes thereof in their books , who are ordered immediately thereafter to return them to the parties , without payment of any money for the same . and ordains letters of horning to be directed against those who shall fail to produce their charters , as said is ▪ and it is hereby declared , that in all time coming , when poynding is used for the kings proper rents , the apprising of the goods poynded may be al 's legally done upon the ground of the lands allenarly , as if the samine were apprised at the mercat cross of the head burgh of the jurisdiction , notwithstanding of any law , or practice in the contrary . x. act concerning iudicial confessions before the commissioners of iusticiary . may 8. 1685. the kings majesty , and estates of parliament , do hereby statute and declare , all confessions of parties , after they have received an indictment in the case of treason against the kings person or government allenarly , emitted before the commissioners of justiciary , sitting in judgment , and subscribed by the pannal , or by the saids judges , in the case where the pannal owns the confession , as it is reduced in writ , and yet either cannot , or refuses to subscribe , shall be considered as a judicial confession , and shall be as probative to assizes , as if the same had been emitted in presence of the assize , notwithstanding of the 90. act of the 11 parliament of king iames the sixth , and that if assizers assoilzie , notwithstanding of such confessions , they shall be lyable to a process of errour ; and this law to be of force only to the next session of parliament ; and the 90. act of the 11. parliament of king iames the sixth , is to continue in its full force as to all the rest of its tenor and contents . xi . act obliging persons to accept offices . may 8. 1685. our soveraign lord , with advice and consent of his estates of parliament , do hereby statute and declare , that if any of his majesties subjects within this his ancient kingdom , shall refuse to accept the office of magistrats , justices of peace , constables , officers in the militia , or any other employment laid on them by the king or council , they shall be fyneable for their said contempt , unless they can propone such reasonable excuses as may satisfie the lords of his majesties privy council , to whom the execution of this act is remitted ; and this without prejudice of any former right or priviledge given to the royal burrows for obliging burgesses to accept of offices and employments within burgh . xii . act of supply . may 8. 1685. the estates of parliament , calling to mind the many great blessings they have , and do enjoy , under the protection of the royal government , and especially by the many deliverances from the rebellious insurrections and designs of fanatical traitors , from whom they could expect no less then confusion in religion , oppression in their estates , and cruelty against their persons and families : and that the terrour of his majesties forces hath been very instrumental for procuring our present security ; but considering , that not only these enemies continues their inveterat hatred against king and people , but that their frequent disappointments have heightned their melice to despair ; and that the present forces may be too few to undergo all the fatigue which his majesties service , or the protection of the countrey doth require . and to demonstrat to all seditious men , that this nation is resolved to bestow all they have in the kings service , rather than to be exposed to the least of their insults . do therefore , for themselves , and the nation represented by them , make a hearty and dutiful offer to his majesty of two hundred and sixteen thousand pounds yearly , payable at two terms , viz. whitsunday and martinmass , each year , beginning at whitsunday next 1685 , and so furth termly , and that over and beside the five moneths cess already imposed on this kingdom by the 3. act of the parliament 1681 , whereby there will be four moneths cess payable at each term hereafter , beginning at whitsunday next 1685. and as a further evidence of their entire affection to the sacred person of his present majesty , they humbly and heartily offer a continuation and prorogation of the said four moneths cess termly , from the said term of whitsunday 1685 inclusivè , during all the terms of his majesties lifetime ( which god almighty long preserve , ) that being the greatest of our earthly wishes , as it is the chief of our temporal felicity and glory . and for the better and more speedy inbringing of payment of the saids eighth moneths cess , the kings majesty , with advice and consent of the estates of parliament , nominats , appoints , and ordains the persons underwritten to be commissioners within the respective shires , for ordering and uplifting of the saids eighth moneths cess , viz. for the shire of edinburgh . the earl of lawderdale , the earl of lothian , the viscount of oxfuird , the viscount of tarbet , the lord torphichen , the master of balmerinoch , the lord advocat , the lord justice clerk , the lord reidfuird , the lord edmingstoun , the lord newbyth , sir iohn maitland of ravelrig , sir iohn dalmahoy of that ilk , sir william nicolson of that ilk , sir iohn fowlis of ravelstoun , sir alexander gibson of pentland , sir iohn clerk of pennycook , sir william drummond of hathorndean , sir patrick nisbet of dean , sir iohn young of leny , sir william murray of newtoun , hugh wallace of inglistoun , sir iohn ramsey of whitehill , sir robert baird of sauchtounhall , sir william sharp of stony-hill , sir william binning of wallyford , sir iames dick of priestfield , henry trotte●… of mortounhall thomas craig of riccartoun , alexander nisbet of craigintinny , robert miln of barntoun , patrick hamilton of falla , iohn cunninghame of woodhall , mr. walter pringle of graycruik , mr. iames deans of woodhouslie , mr. rodorick mackenzie of prestounhall , mr. david watson of sauchtoun , iohn fowlis of ratho , iames baird younger of sauchtounhall , iames murray younger of deuchar , charles murray of hadden , sir william hope of grantoun , mr. iames hunter of murrayes , the eldest baillie of musselburgh for the time , the eldest baillie of dalkeith for the time ; the earl of perth , sheriff-principal , conveener , and in his absence the lord collingtoun . for the shire of haddingtoun . the earl of wintoun , the earl of tweddale , lord yester , lord elibank , lord belhaven , sir iohn sinclair of lochead , archibald murray of spott , mr. robert lawder portioner of belhaven , archibald sydeserf of roughlaw , sir andrew ramsey of waughtoun , francis kinloch of gilmertoun elder , sir william baird of newbyth , patrick brown of colstoun , iames dowgall of nunland , robert hepburn of beer●…oord , iohn seaton of barns , sir robert sinclair of stevinson , sir iames stansfield of new-milns , richard cockburn of clerkingtoun , sir iames hay of linplum , george swintoun of chesters , mr. george halyburton of egglescairney , sir iohn lawder of fountainhall , george brown younger of colstoun , adam cockburn of ormstoun , adam hepburn of humbie , david hepburn of randerstoun , iohn wedderburn of gosford , sir iohn nisbet of dirltoun , william congleton of that ilk , sir george sutie of balgone , sir iohn ramsey of westerfalside , iohn seton of st. germans , sir william hamilton of prestoun , george morison of prestongrange , iohn sleich provost of haddingtoun , william mccall baillie there , iames forrest baillie in dumbar , charles maitland baillie in north-berwick , the earl of wintoun conveener , and in his absence george brown younger of colstoun . for the shire of berwick . iames earl of hume , the lord harcars , mr. charles home of aytoun , sir william nicolson of cockburnes-path , sir iohn sinclar of lonformagus , sir alexander don of newtoun , sir iohn hume of blackader , sir iames cockburn of that ilk , archibald cockburn of borthwick , sir patrick hume of burns-bank , iohn rentoun of lambertoun , sir iames cockburn of riselaw , iohn ker of west-nisbit , william cockburn of west-winsheil , mr. alexander brown of thorny-dykes , william ramsay younger of edingtoun , iohn edgar of wedderly , henry troiter of mortounhall , andrew ker of moristoun , andrew ker of little-dean , iames nicolson of trabroun , iohn dunce of growel-dykes ; iohn hall of old-cambuss , iames cockburn of whin-rigg , william cockburn of caldra , mr. henry hume of keams , ioseph dowglas of edringtoun , henry sinclar of wouldforland , george hume of saint leonards , mr. patrick craw of heugh-head , charles swintoun younger of mersingtoun , iames brown younger of blackburn , iames pringle of ruthchester , thomas rochead of whitsumhill , iames peter of chapel , thomas falconer of kincorth , mr. iames dowglas of earnslaw , mr. iohn cockburn of easter-winsheil , mr. duncan forbes of uxstoun , iohn sleich of greengelt ; sir archibald cockburn elder of lantoun , or in his absence his eldest son , conveener . for the shire of roxburgh . the earl of lothian , the lord cranstoun , the lord iedburgh , the lo. newbottle , sir william ker of greenhead , sir francis scot of thirlestane , sir william elliot of stobs , sir william bennet of grubit , henry mcdougal of mckerstoun , sir iohn scot of ancrum , sir robert pringle of stitchel , sir patrick scot of lang-newtoun , william ker of chatto , francis scot of gorron-berry , iohn ker of frogtoun , william scot of raeburn , andrew ker of little-dean , charles murray of hadden , mr. patrick don of advocat , robert scot of horslihill , thomas m cdowgal younger of m ckerstoun , iohn scot of rennel-bourn , george rutherford of fairnintoun , iames don of smelholm , iohn halyourtoun younger of murehouselaw , thomas rutherfoord of knowsouth , gledstoun of that ilk , andrew ainsley of black-hill , the provest of iedburgh , robert fae bailie of melross , robert eliot of midlem●…ln , robert eliot of lairistoun , thomas scot of quislet , william murray younger of hadden , mr. francis pringle sheriff-deput , william eliot of grange , langladge of that ilk ; sir william dowglas of cavers , conveener . for the shire of selkirk . the earl of traquair , the lord elibank , mr. william hay of drumelzier , sir francis scot of thirlstain , iames murray of philip-hauch , sir patrick murray of deuchar , thomas scot of whitslad , iohn riddel of hayning , hugh scot of gallosheils , alexander pringle of yair , iames murray of deuchar younger , iames scot of bowhill , thomas scot of todrig younger , william scot of braidindows , ker of sunderlandhall , gideon murray of sundhope , francis scot of gilmanscleuch , andrew plumber of midlesteid , iohn currer of howden , william mithilhill , late baillie in selkirk ; the laird of drumelzier conveener . for the shire of peebles . iames earl of mortoun , iames lord aberdour , charles earl of traquair , iohn earl of tweddale , iohn lord yester , collonel iames dowglas of skirling , william hay of drumelzier , sir archibald murray of black-barony , sir william murray of stainhope , iohn veitch of davick , richard murray of spittle-hauch , iames geddes of kirkoord , iohn hay of haystoun , william burnet of barns , iames williamson of cordrono , iohn brown of scotstoun , iohn dycks of whitslad , george hunter of pollwood , david plenderleith of blyth , william burnet of keilzie , alexander horsburgh younger of that ilk , james nasmith of posso ▪ alexander murray of hall-myre , john murray of cringilty , john balfour of kilzia , robert burnet of little-orinstoun , william horsburgh of that ilk , lawson younger of cairmuire , the provost of peebles for the time , alexander baillie younger of callands , james russel of slipperfield , alexander hamilton of coldwall , james chisholm of hayrhope , pennicook of romano , william morison of prestoungrange ; collonel james dowglas of skirling conveener . for the shire of lanerk . william duke of hamiltoun , james marquess of dowglass , james earl of arran , alexander lord blantyre , john hamiltoun of eldershaw , john hamilton of kilkerscleuch , william baillie of littlegil , john carmichael of boningtoun , alexander menzies of culteralloes , mr. andrew brown of dolphingtoun , james moorhead of persielands , christopher baillie of walstoun , james somervel of gladstanes , sir george lockhart of carnwath , john somervel of spittel , james lockhart of cleghorn , the laird of lee , menzies of castlehil , gavin hamilton of raploch , john hamilton of broomhill , william hamilton younger of raploch , sir robert hamilton of silvertoun-hill , iohn robertoun of ernock , iames oswald of fingaltoun , iohn hamilton of barncluith , the bailies of hamiltoun for the time , iohn hamilton of blantyre-ferm , sir william maxwel of calderwood , alexander steuart of torrens , robert cunninghame younger of gilbert-field , sir william fleming of fairholm , the baillie of the regality of glasgow for the time , mr. hugh corbet of hardgray , corbet of tollcorse , mr. archibald roberton of bedlay , iames dunlop of gardenkirk , iames muirhead of bradiesholme , william cleiland of faskine , cochran of ruch-soals , alexander cleiland of that ilk , iohn hamilton of wood-hall , george muirehead of stevinstoun , sir iohn harper of cambushnethem , william hamilton of wishaw , patrick hamilton of green , alexander hamilton of dalzell , william inglis of murdochstoun , william cleiland younger of hairshaw , the duke of hamiltoun conveener . for the sheriffdom of nithsdail and dumfreis . william duke of queensberry , iames earl of drumlanrig , iohn earl of carnwath , william earl of annandale , lord william dowglas , sir robert dalzel of glenae , sir iames dowglas of kelhead , sir robert greirson of lagg , sir thomas kirk patrick of closburn , sir robert lourie of maxweltoun , sir iames iohnstoun of wasteraw , sir patrick maxwel of springkell , thomas charters of ammifield ; iohn carruthers of holl-mayns ; william dowglas of dornock ; iohn dalzell younger of glenae ; iohn ferguson of craigdorroch ; iames iohnston of corre-head ; dowgal maxwell of cowhill ; robert maxwell of carnsalloch ; george maitland of eccles ; iohn greirson of cappinoch ; william crichton of crawfoord-toun ; matthew hairstains of craigs ; iohn craik of stewartoun ; iames menzies of enoch ; iames carruthers , chamberlain to the earl of annandail ; the sheriff deput of dumfreis for the time ; the provost of dumfreis for the time ; the duke of queensberry conveener . for the sheriffdom of wigtoun : the earl of galloway , robert steuart of reavingstoun , sir andrew agnew of lochnaw , william steuart of castle-stewart , sir charles hay of park , sir godfrey m cculloch of myrtoun , sir william maxwel of murreth , sir david dumbar of baldoun ▪ iames dumbar of mochrum , patrick mcdougal of logan , william mcdougal of garfeland , iohn steuart of phisgil , iames agnew of lochnaw , sir iohn dalrymple of stair , iohn blair of dunskey , andrew agnew of sheuchan ▪ george steuart of tonderghie , iohn vauce of barnbarroch , iohn ferguson of doweltoun , james gordon of craiglaw , william coultran , provost of wigtoun , gilbert neilson of craigcastle ; the earl of galloway conveener . for the sheriffdom of air. the earl of dumfreis , the lord boyd , the lord cochran , the laird of craigie , the laird of blair , iohn chalmers younger of gaitgirth , major thomas kennedy of baltersane , william wallace of sewaltoun , mr. rorie m ckenzie of dalvenan baillie of carrick , james whitefoord of dunduff , john hamilton of inchgoterick , iohn wallace of cames-skan , william steuart of showood , hugh wallace of galrigs , hugh kennedy of donan , robert fullartoun of craighal , the lord montgomery , the lord creichtoun , the lord bargany , the laird of culzean , sir david cunninghame of robertland , alexander kennedie of kilhenize , cathcart of carletoun , hugh wallace of inglistoun , the laird of penustoun , iohn boyl of kelburn , andrew brown of boghead , robert wallace of underwood , robert crawfoord of crawfoordstoun , the provost and bailzies of air for the time , the provost of irwing for the time ; the earl of dumfreis conveener . for the sheriffdom of dumbartoun . the laird of luss , the laird of ardingaple , the laird of kilmahew , the laird of ardoch younger , the laird of colgrean , mr. iames smollet of stainflet , robert grahame of callingade , alexander m caulay of dureling , glaud hamilton of cochnay , william bonteir of mildiving , walter m caulay of stuck , iohn kirkmichael , chamberlain to the earl of wigtoun , the magistrats of dumbartoun for the time ; the laird of orbistoun conveener . for the sheriffdom of bute . the duke of hamiltoun his grace , the bailie in arran for the time , the earl of eglingtoun , ninian bannatyne of kames , charles steuart of killcatton , john boyl of kellburn , mr. iohn steuart of ascog , mr. robert steuart advocat , archibald steuart of kinwhinlick , ninian steuart of largiezian , robert steuart of macknack , iohn steuart of linchael , culbert steuart of ardinho , archibald glass , sheriff-deput of bute , robert ballantine of lewbas , the magistrats of rothesay for the time , sir iames steuart , sheriff of bute , conveener . for the sheriffdom of renfrew . the earl of glencairn , the earl of dundonald , the lord montgomery , the lord cochran , the lord ross , the lord blantyre , the lairds of houstoun elder and younger , the laird of blackhall , the laird of orbistoun , the laird of johnstoun , the laird of bishoptoun younger , the lairds of greenock elder and younger , the laird of hellie , the laird of barrochan , thomas crawfoord of carsburn elder , thomas crawfoord of carsburn younger , the laird of new-wark , the laird of over-pollock , the laird of scotstoun , the laird of jordon-hill younger , iames oswald of fingaltoun , colin campbell of blythswood , the lairds of bargarran elder and younger , robert hall of fullbar , william hamilton of fergusly , iohn hamilton of barr , robert lawder of auld-house , the laird of cathcart younger , the laird of glanderstoun , the laird of dargwell younger , the provost and baillies of renfrew for the time , the bailies of paisley for the time , iohn pollock of falside ; the lord montgomery , conveener . for the sheriffdom of striveling . the duke of hamiltoun , the earl of callender , the lord elphingstoun , mr. william livingston of kilsyth , iames seton of touch , iohn murrays of polmais elder and younger , michael elphingston of quarrel , iames bruce of pow-fowlis , alexander bruce of kinnaird , iames livingston of westquarter , archibald stirling of carden , hugh patersons elder and younger of bannockburn , iohn stirling of craigbonet , iames forsyth of taylcortoun , robert bruce of achenbowie , david moir of leckie , james edmonstoun of broich , william buchannan of drumakeil , george stirling of herbert-shire , mr. adam campbel of gargannock , sir hope of carse , alexander napier of culcreuch , sir charles areskin of alva ; the earl of mar conveener . for the sheriffdom of linlithgow . william duke of hamiltoun ; james earl of arran ; george lord livingstoun ; walter lord torphichen ; general dalzel ; walter dundas of that ilk , thomas drummond of riccartoun ; james cornwal of bonhard elder ; walter cornwal of bonhard younger ; james hamilton of bancrief ; alexander hamilton of grange ; patrick murray of livingston ; alexander cochran of babachlaw ; william sharp of houstoun elder ; thomas sharp of houstoun younger ; james dundass of philipston elder ; james dundass of philipston younger ; sir alexander livingston of craigingal elder ; alexander livingstoun of craigingal younger ; sir john dalrymple of newlistoun ; sir william hope of grantoun ; mr. william dundass of kincavil ; captain dalzell of binns ; james monteith of old-cathie ; john hamilton of dachmont ; mr. john fairholm of craigiehall , mr. iohn hay of woodcockdale ; george drummond of carlourie ; alexander miln of carriden ; robert miln of barntoun ; iohn dundass of manner ; baillie of pollkennet ; the earl of linlithgow , conveener . for the sheriffdom of perth . iames earl of perth lord high chancellor of scotland , iohn marquess of athol lord privy seal , patrick earl of strathmore , iohn earl of broad-albion , david viscount of stormount , andrew lord rollo , george lord kinnaird , patrick master of kinnaird , leiutenant general drummond of cromlix , iames grahame of orcholl , iohn drummond of deanstone , iohn hadden of glenagies , sir iohn drummond of machinnie , iohn drummond of pitkellonie , sir robert murray of abercairny , sir patrick murray of auchtertyre , gavin drummond of belliclon , sir george drummond of milnab , thomas grahame of balgown , thomas hay of balhoussie , iohn stewart younger of gairntully , george drummond of blair , david drummond younger of invermay ▪ thomas moncrief of that ilk , mr. robert ross of invernethy , mr. patrick ker of kilmount , mr. alexander carnagie younger of kinfauns , sir patrick threepland of fingask , patrick hay of kirkland , sir alexander lindsay of evelick , thomas blair of balthaick , mr. iohn blair of balmyle , andrew blair of inchshiral , sir iohn hay of mury , mr. francis montgomery of inchlesly , david kinloch of bardoch , iames ramsey of bamff , iames ogilvie of clunie , william stuart of balid , thomas stuart of stentone , patrick stuart of bellechen , sir iames campbel of lawers , sir iohn murray of drumcairn , sir colin cambpel of aberuchill , colin camphel of monzie , thomas stuart of ladywell , menzies younger of weem , david haliburioun of pitcur , iohn gray of crichie , haliburtoun of fothrens , iames blair of ardblair , iohn mitchel of byres , iames grahame of garvoch , patrick smith of methven , walter stuart of kincarathie , iohn murray of pitculan , mr. iames elphingstoun of comrie , iohn buchannan of arnpryer , alexander stuart of annat , mr. david grahame tutor of gorthie , iohn murray of stravan , william paton of pannols , iohn williamson of barnhill , iohn murray of arthurstoun , mr. patrick morray of dollary , charles stewart of rotmell , alexander robertson of struan , sir william stirling of ardoch , adam drummond of meginch , iohn stuart of fass , kinloch of gourdie , patrick murray of keiler , donald robertson of kilachangie , iames stuart younger of orart , henry murray of lochlan ; the marquess of athol conveener . for the sheriffdom of kincardin . the earl of marischal , the earl of southesk , the earl of midletoun , the viscount of arbuthnet , the lord halcartoun , the lord president of the session , sir charles ramsey of balmain , sir alexander falconer of gl●…nfarquhar , sir david carnagie of pittarow , the laird of laurenstoun , the laird of lyes , the laird of balbegno , the laird of halgreen , the laird of elsick ▪ the laird of pitgarvie , george keith sheriff deput ▪ mr iames falconer of phesdo , iohn dowglas of tilliwhillie , william barcla●… of balmaqueen , william ramsey of woodstoun , iohn barclay of johnstoun ; the earl of marischal conveener . for the sheriffdom of aberdeen . george duke of gordon , iohn earl of errol , george earl marischal , william lord keith , charles earl of mar , iames earl of dumfermling , george earl of panmure , iohn earl of kintore , william lord inverury , george earl of aberdeen , william lord forbes or the master his son , alexander lord salton , or the master of salton , alexander lord pitsligo , or the master his son , the lord frazer , alexander irving of drum , sir alexander seton of pitmedden , sir george nicolson of kemnay , sir john forbes of craigyvar , sir james baird of auchmedden , sir george gordon of edinglassie , john gordon of rothemay , john gordon younger of fechill , alexander gordon tutor of pitlurg , john gordon of knockespack , sir james gordon of lessmoir , the laird of udney younger , robert udney of auchterellon , sir george skeen of fintray , patrick dun of taartie , mr. alexander cuming of b●…ness , mr. alexander forbes of foverane , samuel forbes younger of foverane , john ross of rosehill , alexander frazer of streichen , sir henry guthrie of kinnedward , william mowat of balquholly , james keith of tilligonie , sir william keith of ludwhairn , john forbes of lesly , sir john forbes of monymusk elder , william forbes of monymusk younger , patrick lesly of buchquhain , leith of whitehaugh , alexander cuming of coulter , elphingstoun of glack younger , the laird of dyce younger , mr. james gray of balgony , alexander skein of that ilk , sir thomas burnet of lyes , sir george gordon of geight , sir alexander burnet of craigmyle , robert gordon elder of clunie , robert gordon younger thereof , james urquhart of knockleith , menzies of pitfodels , james innes of drumgask , adam gordon of achainachie , francis ross of achlossin , gordon of kochlarachie , sir robert innes of kinnermonie , john gordon of braichley , mr. thomas gordon of buthley , francis dugit of auchinhoove , forbes younger of echt , david edie of new-wark , mr. thomas gordon of crimomnagate , gordon of badaiscoth , william gray of creichie , robert ross younger of achlossin , william thoires younger of muresk , john gordon of nethermoor , thomas forbes of watertoun , charles gordon of brelack , adam gordon of glenbuckit , gordon of tarpersie , mr. alexander irving of lernie , john gordon of hallhead , mr. robert irving of cults , forbes of tulloch , bisset of lessindrum younger , james gordon of bodome , frazer of streichen , caddel of asswanly , john gordon of cairnborrow , francis gordon younger of craig , sir charles maitland of pittrichie , thomas forbes elder of echt , george morison of pitfure , arthur forbes of brux , george garioch younger of kinstaret , james more of stonywood , mr. james elphingstoun of logidurno , patrick l●…sly of kincraigie , alexander ross of tilliesnaught , william forbes of camphel , mr. james keith of anquhorsk , andrew watson baillie in peterhead , william gordon of newtyle , alexander donaldson of little drumwhindle , mr. richard irving of kirktoun , james gordon of daach , robert burnet of elrick , james forbes of savock , the laird of fetterneir , john logie of boddom , leith of newlands , lesly of little warthell , the laird of craigyvar younger , robert simp●… son of thornstoun , james chalmers of balbirthno , the laird of bal●…lig younger , george paton of grandom , thomas menzies of kinmundie , mr. george richard of aldnigh , henry forbes of boynday , john udney of cultercullen , mr. robert innes of blairtoun ; the earl of errol conveener . for the shire of innerness . the duke of gordon , the earl of morray , the lord doun , the lord lovat , the laird of m cintosh , the laird of m cleod , the laird of grant , the laird of glengerrie , sir donald m cdonald , the laird of kilravock , the laird of clava , hugh frazer of belladrum , alexander frazer of kinnaries , john grant of corrimoney , donald m cintosh of kellochy , william frazer of daltulich , donald m cqueen of corribroch , james frazer of rilik , alexander m cintosh of farr , angus m cintosh of kellochie younger , john m cintosh of dalmegotter , farquhar m cilvray of dunmackglass ▪ m cdonald of benbonula , m cdonald of castletoun ; the lord lovat conveener . for the sheriffdom of nairn . the laird of calder , or in his absence his eldest son , the laird of kilravock , or in his absence his eldest son , alexander rose of clava , duncan forbes of cullodin , alexander brodie of leathine james dunbar of boath , david sutherland of kinsterie ; the laird of calder conveener . for the sheriffdom of cromarty . george viscount of tarbat , john master of tarbat , the chamberlain of cromarty for the time , sir george m ckenzie of rosehaugh his majesties advocat , his chamberlain for the time , alexander urquhart of newhall , and john urquhart fiar thereof his son , george dallas of st. martins , and mr. james dallas younger thereof his son , william urquhart of braelangwell , alexander clunes of dunskeith , andrew frazer of bannance ; the viscount of tarbet conveener . for the sheriffdom of argyle . the earl of perth lord high chancellor , iohn marquess of athol , the earl of broad albion , campbel of lochneil , the laird of mclean , lachlan m clean of brolos , lachlan m clean of torlus●… , m clean of argour , m clean of lochbuy , m calaster of tarbet , m cdonald of largie , the laird of lamont , the laird of m cnaughtain , the laird of calder elder and younger , john m cnaughtain sheriff deput of argyle shire , stuart of apin , or his tutor , archibald lamount of silvercraig , john campbel of carrick , john campbel of duneen , john campbel of glendarnel , archibald m clachlan of craiginterrie , archibald campbel of invera , donald campbel of graignish , alexander campbel of dunstafnish ; the laird of brolos conveener . for the sheriffdom of fife . colin earl of belcarras , iohn lord lindores , david lord new-wark , the lord dunkell , sir david balfour of forret , sir thomas stuart of balcaskie , sir andrew ramsay of abbotshall , sir charles halket of pitfirrin , sir william bruce of kinross , sir henry wardlaw of pittrevie , george durie of pitluskar , alexander spittel of leuchat , robert moutray of roscobie , sir alexander bruce of broomhall , mr. james robertson of newbigging , mr. james alexander of kinglassie , john skeen of halyards younger , mr. alexander malcolm of lochor , david beatoun of balfour , james beason of curden , sir john malcolm of innertick , robert bailie of balmeddieside , george moncreif of reidie , james prestoun of dumbrea , sir john aitoun of that ilk , michael malcolm of neth-hill , james carmichael of bamblea , the master of burley , james crawford of monquhey , scot of pitlochy , john skeen of halyards , sir thomas hope of craighall , john balfour of ferm , sir philip anstruther of ilk , arthur forbes of rires , lindsey of wormounstoun elder , robert smith of giblistoun , sir alexander areskin of cambo , david scot of scots-tarbet , john cuninghame of barns , hamilton of kilbrakmont , andrew bruce of earlshaugh , sir william sharp of scotscraig , robert trotter of lawhill , didinstoun of samfoord , william anstruther fiar of that ilk , mr. james balfour of randerstoun , alexander monipenny of pitmills , forbes younger of rires , david balcanquell of that ilk , david balfour of grange , sir michael balfour of denmiln , stuart of rosyth , sir david arnot of that ilk , james ar●…ot of woodmiln , mr. archibald hope of rankilor ; the earl of belcarras conveener . for the shire of kinross . iohn lord burghlie , sir david arnot of that ilk , robert dowglas of kirkness , sir john malcolm of innerteil , john halyday of tilliboll , mr. alexander crawford of claslochie , james banken of colden , george berill portioner of kinneswood , patrick robertson of smiddiehill , the baillie of kinross for the time , sir william bruce of kinross sheriff principal , or his deputs conveener . for the sheriffdom of forfar . the earl of strathmore , and lord glames , the earl of southesk , and lord carnagie , the earl of airly , and lord ogilvy , the earl of panmure , the earl of northesk , the earl of midleton , the viscount of arbuthnet , the lord lindores , sir david falconer president of the session , sir george m●…kenzie of rosehaugh , his majesties advocat , sir patrick lyon of carss , mr. james maule of balumby , mr. henry maule of kelly , mr. james carnagie of phinheaven , david lindsay of edzell , james carnagy of balnamoon , david haliburtoun of pitcur , collonel john grahame of claverhouse , james scot of logie , david fotheringhame of powrie , sir john wood of bonytoun , william durhame , sometime of ardown , now of grange , james crichtoun of ruthven , gilbert auchinleck of that ilk , john guthrie of that ilk , alexander carnagie sheriff deput of forfar , john ouchterlauny of guynd , mr. john wishart of balgavie , one of the commissars of edinburgh , robert young of auldbar , john ogilvie of pitmeves , david grahame of fintrie , gray of crichie ; the earl of southesk conveener . for the sheriffdom of bamff . the duke of gordon , the earl of airly , the earl of finlater , the lord oliphant , the lord bamff , sir patrick ogilvie of ●…oyn , sir james baird of ach●…eddine , sir george gordon of edinglassie , the laird of troup , george keith of northfield , sir henry guthrie of kinnedward , grant of denlugus , walter stuart of bog , james ogilvie of poldavie , thomas ogilvie in bogtoun , alexander hay of a●…bath , mr. john and alexander abercrombies elder and younger of glassach , george gordon of 〈◊〉 , patrick gordon of claistirum , alexander gordon of glengerrack , john ogilvie of kimpcairn , ogilvie younger of kimpcairn , innes of edinkeith , of kilmach , anderson younger of westertoun , john grant of balindalloch , the laird of park ▪ gordon , provost stuart , baillie fi●…e , baillie john gordon , the laird of grant , patrick grant of elchies , alexander duff of kethmore , john gordon younger of edinglassie , alexander duff of braco , james gordon of camdell , patr●…ck stuart of tanachie , hay of raneies , john gordon of baldornie , francis gordon of achintoul , ogilvie of cantly , john gordon of auchynachie , john gordon of rothemay , john gordon of dallouchy ; the duke of gordon conveener . for the sheriffdom of kircudbright . the viscount of kenmore sir david dunbar of baldoon , sir robert grierson of lagg , sir robert lowrie of maxweltoun , sir godfrey 〈◊〉 of myrtoun , sir robert maxwel of orchartoun , rodger gordon of torquhen , grierson of bargatton , muir of carsincarrie , m●…guffock of rusco , thomas lidderdale of isle , richard murray of brochtoun , andrew herron of kerucht●…e , david dunbar of machnemore , maxwel of newlaw , hugh wallace of inglistoun , john m cgie of balmagie , william stuart of levinstoun , gordons elder and younger of shirmeirs ; the laird of lag conveener . for the sheriffdom of sutherland . john lord strathnaver , the lord rea , james lord duffus , the laird of balnagown , sir robert gordon younger of gordinstoun , sir george monro of culrain , sir john gordon of doll , sir robert gordon of embo , robert gordon of rogart , rodorick m cleod of cambuscurrie , adam gordon of dalpholly , the laird of bighouse , aeneas m cleod of leadmore , robert gordon of carrel , robert gray of sk●…bo , patrick dumbar of sudderay , mr. alexander gordon of rovie , john dumbar of torrobel , hugh monro of eriboll , john monro of inveran , john gray of arboll , mr. john gordon younger of carrel , sheriff deput , m●…key of skeray , william m ●key of borrey , hugh m ckey younger thereof ; the lord strathnaver conveener . for the sheriffdom of caithness . the earl of broad-albion , john lord glenurchy , sir james sinclair of may , sir george sinclair of clyth , john sinclair of murkle , william sinclair of dumbeath , sinclair of brimes , david murray of clerden , mr. james innes of sandside , mr. alexander calder of a●…gingail , robert campbel of breanegle●…s , john sinclair of freswick , laurence calder of lyneger , george sutherland of fo●…s , john sinclair of ulbster , robert sinclair of durren , robert campbel of 〈◊〉 , the sheriff deput of caithness for the time , alexander smart of wester , the baillies of thursso for the time , the earl of broad-albion●… chamberlain in caithness for the time , william dumbar of hemprigs , john sinclar of stircog , james sutherland of ausada●…l , mr. robert dumbar of orkingail , alexander sinclar younger of d●…nbaith , patrick sinclar of southd●…n , sinclar as brabster , sinclar of hemster , james sinclar of lybster , james sinclar of hoy ; the earl of broad-albion , or the sheriff deput of caithness for the time conveener . for the sheriffdom of murray . the duke of gordon , the earl of murray , the earl of dumfermling , the lord duffus , the lairds of innes , the laird of coxtoun , the laird of cubin elder , the laird of muirtoun , the laird of gordinstoun younger , the laird of brodie , sir robert dumbar of grangehil , the laird of grant , the laird of easterelchis , the laird of dunfail elder , the laird of grange , charles mckenzie of earnside , thomas tulloch of tanochie , david steuart of newton , alexander dowglas of spyny , the laird of bellandolloch , john innes of quadrain , walter innes of black-hills , alexander innes of dunkintie , john cuming of logie , john dumbar of boges , william brody of coutfi●…ld , the lord doun conveener . for the sheriffdom of orkney and zetland . the stewart for the time and his deputs , archibald steuart of burrow , william dowglas of egleshay , william craigy of cairsay , iames grahame of grams-hall , william ballenden of stenhouse , henry grahame of breckness , robert steuart of new-wark , george balfour of pharay , steuart of burgh , iames steuart of grahamsay younger , william mudy of melsetter , david craigy of oversandy , the commissar of orkney for the time , iames baikie of tankerness , iohn buchannan of sandyside , george grahame of grahametoun , george trayl of holland , andrew bruce tutor of munis , laurence stuart of bigtoun , laurence sinclar of quandel , george seen of essilmonth , arthur sinclar of house , robert hunter of luna , patrick umphra of sand ; the stewart-principal , or his deput , conveener . for the sheriffdom of clackmannan . the earl of mar , george viscount of tarbat , the laird of ava , iohn ki●…ie of gogour , robert miln of tiliallan , george abercrombie of bruce of kenet , the laird of tillicoutry , the laird of tillibody , mr. francis mastertoun of parkmiln , george stirling , the baillie of alloway for the time , the laird of ava conveener . for the sheriffdom of ross. the earl of seaforth , the viscount of tarbat , the master of tarbat sir george monro of culrain , sir george m ckenzie of rosehauch , the laird of belnagoun , the laird of foulis younger , sir alexander mckenzie of cull , murdoch m ckenzie of fai●…burn , mr. rodorick mckenzie of kinchulidrum , sir rory m ●kenzie of findon , alexander m ckenzie of kilcovy ; kenneth mckenzie of suddy ; sir donald bain of tulloch , alexander mckenzie of belmaduffie ; ●…odorik m cleod of cambiscutrie ; alexander m ckenzie of bellon ; iohn munro of fyres , lachlan m cintosh of kinrara ; alexander m ckenzie of 〈◊〉 ▪ mr. iohn bain of delnies ; colin m ckenzie younger of kincraigie ; hugh munro of new●…ore ; kenneth mckenzie of scatwall ; william ross of invercharron ; alexander m ckenzie of aplecorss , william ross of kindies , mr. george paterson of seafield , george ross of moringy , rory m ckenzie younger of redcastle , donald m ckenzie of meddat , alexander m ckenzie of ardloch , mr. iames m cculoch of baliquith , alexander ross of little tar●…el , matthew robertson of dochcarty , alexander sutherland of inchfuir , murdoch m ckenzie of ardross , kenneth mckenzie of dochmaloag , robert barbar of mulderg , alexander ross of easterf●…rn , ●…ugh monro of teaninik ▪ david fer●…e of tarlogie , iames ross of mount-eye ; the earl of seaforth conveener , or in his absence the ma●…er of tarbat . and ordains the first meeting of the saids commissioners , for the several shires , to be at the head-burghs thereof , upon the day of next , and appoints the major part of the saids commissioners , named for the respective shires , to be a quorum at their first meeting , who are to appoint the next dyet of meeting , and the major part of such as shall meet at the second dyet , or upon advertisement from the conveener , at any other dyet , to be a quorum : with power to the saids conveeners , for the saids shires respectiv●… , to call the commissioners foresaids , at such dyets thereafter as they shall think necessary , for the effectual execution of this act ; and remits to his majesties privy council , to nominat such other persons to be commissioners upon the death of any of the fore-named persons . and for the bu●…ghs , his majesty with advice foresaid , nominats and appoints the magistrats of the same , for the time being , with power to them to choice stent-masters within their respective bounds ; which commissioners of shires and bu●…ghs , are hereby ordained to accept , and discharge their trust , as they shall be answerable ; and that at their acceptation thereof , to take their oaths of alleadgeance , supremacy , declaration and test , and oath de sideli administratione . and his majesty , with advice foresaid , doth hereby impower the said●… commissioners to prescrive and set down such rules and orders within the respective shires and burghs , as may be most effectual for the speedy and easie raising , levying , and bringing in of the said supply ; and ordaining , and doing every other thing that may concern the same : and particularly , with power to them to choice their own collectors , for in-gathering of the said supply , for whom they are to be answerable , and other officers ( except the clerks who are to be named by the clerk of register ; ) and ordains that no clerk shall officiat in the said office , either in shire or burgh , without a new deputation from the said clerk of register : and that the saids commissioners shall at the first meeting , choice their collectors , for in-gathering of the said supply . and the saids commissioners are hereby ordained to receive the saids collectors and clerks accordingly , and to allow them such fees to be payed by the shires and burghs , as they shall think fit ; and which fees are hereby declared to be over and above the foresaid supply , and no part of the same : and which collectors and clerks are to take the oaths appointed by law. and the kings majesty , with advice and consent of his estates , ordains all execution , real and personal , to pass at the instance of the collector general , and the collectors of the respective shires and burghs , against all persons deficient in payment of their proportions as formerly . and also , impowers the commissioners by their officers , to arrest , poynd and distrenzie the goods ; and imprison the persons of the deficients , ay and while they make payment of their just proportions , and necessary expences . and for the more ready and effectual payment , doth also impower the commissioners , and collector-general , to quarter upon deficients , with this express proviso , that every horse-man that shall be upon the place , shall have only free single quarter alloted to him upon the persons deficient , or by quartering in burghs and villages , as the commissioners shall appoint to be satisfied , and payed , by the deficients , and not by these on whom they are quartered , except where they themselves are deficient , and in that case to have fifteen shilling scots a-day , from the time of presenting the order to the collector upon whom they are to quarter , until he give them a list of the deficients , and the sums wherein they are deficient , and thereafter to quarter upon the deficients ; and each dragooner , to have ten shilling scots a-day , and each foot-man to have four shilling scots , or his dyet , as the commissioners shall order ; and the commanders of the party of horse , dragooners , or foot , to have only double-quarter , or pay of an horse-man , dragooner , or foot-man , as he serves . and declares , that in order to the quarters , and matters relating to the ▪ inbringing of this supply , any three of the commissioners shall be a quorum , and who are impowered to proportion upon , and raise from the deficients , the expence and charge of their deficiency , and to see payment made to these on whom the souldiers are quartered , who were not deficient . and further , his majesty , for satisfaction of his good subjects , is graciously pleased to declare , that all officers and souldiers , horse , dragooners and foot , shall make due and punctual payment of their quarters , local , and transient , as the same shall be appointed by the foresaids commissioners , according to the rates of the countrey ; and in case the souldiers do not pay their quarters , that the quarters be stated betwixt the quarter-masters , or other officers , and any two of the commissioners ; and the accompts being stated and sitted , that they be payed , or allowed by the respective collectors , in the first end of what is due by the shire , or burgh , where the saids quarters are owing : providing the saids quarters exceed not two parts of their pay ; and which stated accompts are to be allowed to the respective collectors , by the collector-general , and to be by him retained off , the first end of the troops , or companies pay. and in case the officers remove before their accompts can be stated ; in that case , the collectors of the shires and burghs , are to retain , what after tryal , the saids three commissioners shall find resting , till the accompts be stated in manner foresaid . and his majesty , with advice of his estates , doth declare , that no persons lyable in any part of this supply , shall be holden to produce their discharges , or recepts of the same , after ilk fifth year , commencing from the date of this act , unless where diligence hath been done by denunciation , before elapsing of the said fifth year . xiii . act for taking the test. may 13. 1685. our soveraign lord , with consent of the estates of parliament , statutes and ordains , that all protestant heritors , liferenters , and others having right to liferents , i●…re mariti , wodsetters , tacksmen , having tacks for longer time than for eighteen years : all masters of ships , and such other burgesses , and inhabitants of burgh●… , whether of royalty , regality , or barrony , as are not heretors , and who shall be appointed by the privy council , shall take the test prescrived by the sixth act of the parliament 1681. before the first day of november , for all such as live be-south the river of tay ; and before the first day of ianuary next , for all be-north tay. and for that end , that all noblemen , and their eldest sons above the age of eighteen years , shall compear before his majesties privy council : all masters of ships , and burgesses aforesaid , shall compear before the provost or bailliffs of the burgh to which they belong , and all others foresaid , before the sheriff of the shire where they live , at some time before the said days ; and there shall swear and subscrive the said test before the judge and clerk of the court , with certification , that such as fail in swearing and subscribing the test as said is , shall be punished in such pecunial sums as the secret council shall determine ; to be disposed of by his majestie , at his royal pleasure . it is alwayes declared , that this act extends not to women . and all clerks are hereby ordained , to send in lists of such as have taken the test , within their respective jurisdictions , to the clerks of his majesties privy council , before the first day of february next to come , under the pain of losing their office , and to be punished otherwayes as the privy council shall determine : but such as have already sworn and subscribed , shall not be obliged to renew it on this occasion . and further , his majesty with consent foresaid , doth ratifie and approve what is already done , in offering the test by his majesties privy council , justice court , or any commissionate from any of them , or by sheriffs , and other magistrats , declaring the same to have been good service to the king and countrey . xiv . act explaining the ninth act of the parliament 1669 , concerning prescriptions . may 13. 1685. our soveraign lord , considering , that at making of the ninth act of the 1. session of the 2. parliament of king charles the 2. concerning prescriptions , in that part of it relating to actions proceeding upon warnings , spulzies , ejections , arreistments , or for ministers stipends , and others foresaid ; the cases that existed before that act were not taken into consideration : therefore , his majesty with consent of his estates of parliament , statutes and ordains , that all such actions proceeding upon any diligence mentioned in that act , already intended either before the said act 1669. or since , shall prescribe within five years after the date of this act , if they be not wakened within that time : and all actions to be raised hereafter upon the foresaids grounds shall prescribe in five years , if they be not wakened within that time . and his majestie wills and declares , the foresaid 9th act to stand in full force as to the rest of the tenor thereof . xv. act explaining the tenth act of the parliament 1669 , anent interruptions . may 13. 1685. our soveraign lord , considering , that the clause concerning citations used for interruption , mentioned in the 10. act of the 1. session of the 2. parliament of king charles the 2. hath left the case of such citations before the said act undetermined . his majesty therefore , with consent of his estates of parliament , statutes and ordains , that all citations used for interruptions preceeding that act , shall prescribe within seven years after the date of this act , if they be not renewed within that time . and further statutes and ordains , that in citations for interruption as to rights of lands and wakenings thereof , copies of the citation shall be affixed on the most patent door of the paroch church , and that over and beside what is required by the said act anent these executions . xvi . act anent iustices of peace . may 13. 1685. our soveraign lord , considering the many advantages which his leiges might have had , if the justices of peace had exerced their function , with that diligence which the law required , and the many evils , especially in ecclesiastick disorders and irregularities , which might have been prevented by their care . for remeid whereof in time to come , his majesty , with the consent of his estates in parliament , doth hereby ratifie , approve , and confirm the 8. act of the parliament 1617 , intituled , act anent the iustices for keeping of the kings peace and constables . the 25. act of the parliament 1633. and the 38 act of the parliament 166●… , intituled , commissions and instructions to the iustices of peace and constables , in the whole heads , articles and clauses contained in them . and further , his majesty gives full power , authority and commission to the saids justices , to put the laws in execution against all who shall be guilty of conventicles , irregular baptisms and marriages , withdrawing from church ordinances , and other such disorders , in so far as they are not capital , conform to the laws made thereanent ; and where the crime is capital , they are to secure the persons , and acquaint the sheriff , or other judge ordinary thereof : and it is declared , that in their proceedings against church irregularities , baptisms , marriages and conventicles ▪ the justices may proceed immediately without waiting any time after the crimes are committed , and their clerk is appointed to send information of their proceedings once in the quarter , to the clerks of the council , as they will be answerable . and for their further encouragement , his majesty allows unto the saids justices of peace , the fynes of all , except heritors , which shall arise from these delinquencies judged by them , to be employed for explicating of their jurisdiction as they shall think fit , and for discovering of what the fynes of heritors shall amount to . the clerks of these courts are hereby appointed to send a subscribed list of them to the clerks of exchequer , in the first week of november yearly , under the pain of deprivation : and his majesty with advice foresaid , allows the justices to nominat their own clerks at their first meeting . attour , his majesty and estates foresaid , give full power , authority and commission , to the lords of his majesties privy council , upon the deceass of any of the justices of peace , to nominat others in their place , and to ●…et down and impose penalties upon such of the justices as shall not keep and observe the dyets prefixed for their several and particular meetings , according to former acts , and an act made in this parliament ; and with power likewise to the saids lords of privy council to enlarge and amplify the power and authority of the saids justices of peace , if they shall find it necessary and expedient : and what the council shall decreet and determine there-an●…nt , find and declare , that the same shall have the force , strength and power of an act of parliament . it is alwayes declared , that sheriffs , stewarts , and baillies of bailliaries , regalities , and barronies , are to remain in the possession and exercise of their former rights , according to the laws of the kingdom : any thing in this act notwithstanding . xvii . act for taking the oath of allegiance . may 22. 1685. our soveraign lord , with consent of the estates of parliament , doth ratifie , confirm , and approve what hath been done by his majesties privy council , justice court , and these commissionat by them , in banishing , imprisoning , or fyning such as refused to take and swear the oath of allegiance , and to assert the royal prerogatives mentioned in the 11. act , parliament 1. of king charles the second . and further ordains all the subjects of this kingdom to take and swear the oath of allegiance , and to assert the said prerogatives , whenever they shall be required , either by the privy council , justice court , or any commissionat by them , and that under the pain of banishment , imprisonment , or such other pains and punishments as shall be determined by the privy council , justice court , or commissioners foresaid , not reaching to life or limb. xviii . act concerning vacant stipends . may 22. 1685. our soveraign lord , with consent of the estates of parliament , statutes and declares , that the vacant stipends of all churches in time coming , shall be employed on pious uses within the respective paroches by the patron , and more particularly for the building and repairing of bridges , repairing of churches , or entertainment of the poor , as the patron shall determine yearly ; and if he fail therein , he shall lose his right of presentation for the next vice. it is always provided , that the vacant stipends in the diocesses of st. andrews , edinburgh , dunkel , dumblain , and breichen , for five years , shall be employed for repairing of the gair-bridge , crawmond-bridge , and new-liston-bridge , and for the use of the university of st. andrews ; the vacant stipends of the diocesses of glasgow , and galloway , for the same number of years , to the use of the colledge of glasgow ; and these vacant stipends within the diocess of aberdene , and diocesses be-north the same , for the use of the old and new colledges of aberdene , and repairing of the bridges within these diocesses ; excepting the vacancies of the diocess of orknay ( which are hereby ordained to be applyed for reparation of the cathedral church of kirkwall , during the the said five years ; ) and that at the determination and appointment of such persons as shall be nominat by the privy council , for overseeing thereof : which five years aforesaid , shall commence from this present year 1685 , and so continue consequutively , during the said space . and his majesty , with consent foresaid , declares , that after expiring of these five years , the vacant stipends do belong to the patrons , to be employed by them for pious uses within the respective paroches aforesaid ; but prejudice always of the maintainance of the ministers manse , during the time of the vacancy , out of the first and readiest of the vacant stipends , conform to former acts of parliament ; and that not only during the said five years , but in all time coming . it is always hereby declared , that this act is not to be extended to the vacancies of these churches whereof the kings majesty is patron , nor to mensal and patrimonial churches belonging to bishops . xix . act ratifying the priviledges of the senators of the colledge of iustice. may 22. 1685. our soveraign lord , with advice and consent of his estates of parliament , doth ratifie , approve and confirm , all priviledges , liberties , freedoms and immunities , given and granted by his majesty's royal predecessors , to , and in favours of , the ordinary senators of the colledge of justice , and whereof they are in possession ; and all acts of parliament made and conceived in their favours , and speciallie but prejudice of the generality foresaid , doth ratifie the 8. act of the 2. session of the 2. parliament of king charles the second , concerning the immunity of the ordinary lords of session , from all burdens imposed , or to be imposed by the parliament : and declares , that this ratification shall be as sufficient and effectual , as if all these priviledges and immunities , and acts of parliament concerning the same , were specially exprest , and at length insert herein . xx. act for preserving game . may 27. 1685. our soveraign lord , and estates of parliament , now presently conveened , taking to their consideration , the great decay of game in this his ancient kingdom , especially in the low countries , notwithstanding of all the laws and acts of parliament , and acts of privy council made thereanent by his royal predecessors , which does principally proceed through the not vigorous execution of the saids laws and acts , and not exacting of the fines and penalties therein-contained . therefore , our soveraign lord , with advice and consent of the estates of parliament now presently conveened , does revive , renue , ratifie , and approve all the former laws and acts of parliament made for preserving of the game , and the act of his majesties royal brother ( of blessed memory ) king charles the second , with the advice of his privy council , of the date the 9. day of iune , 1682 years , with the whole laws and acts of parliament therein-narrated , of which act the tenor follows , a proclamation , reviving the laws anent hunting , hawking , fishing : and appointing masters of the game ▪ charles , by the grace of god , king of great-britain , france , and ireland , defender of the faith ; to macers of our privy council , or messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting ; we taking to our consideration the great prejudice the kingdom doth sustain in the decay of deer , roes , and wild-fowl , and that there is not only danger of an utter decay of so useful creatures , but the manly exercises of hunting and hawking , is like to be altogether neglected ; and albeit our royal progenitors have made many good laws to prevent and repair this great evil and mischief , and against the destroying of smolts and trouts with creels , and other engines , anent cruives and zairs , steeping of lint in rivers , lochs and burns , where fishes are ; which good laws , although they be yet in force unrepealled , yet by the distraction of the late times , they have been less regarded these many years by gone , to the enorm lesion of our people , and contempt of our authority : have therefore , with advice of our privy council , thought fit to revive all the laws that stand yet unrepealled or innovate , for preserving of doe , roe , hares , and wild-fowl , and especially the 31 act of the 23 parliament of k. iames the sixth , whereby all persons who are not heretors , are prohibited to hunt or hawk , and that neither heretor or other shoot deer or roe in time of snow : as also , the 11 act of the 4 parliament of k. iames the fifth , and 210 act of the 14 parliament of k. iames the sixth , by which , letters are ordained to be direct , charging all keepers of his majesties forrests , to permit no pasturage within the marches of the forrests , but that they seize and escheat them , under the pain of loss of their office ; and that forresters of forrests belonging to privat men , shall apprehend such as travel with guns or dogs in forrests , and carry them to the nearest sheriff , stewarts of stewartries , baillies of bailliaries and regalities , or justices of peace , to be secured , to answer as accords of the law ; and that all such of the leidges who shall be required to concur to apprehend such persons , give ready obedience , as is ordained by the forrest laws , cap. 15. and cap. 22. and these who conceal them , be fined as art and part of the said fault . and further , we do hereby forbid all shooting of hares , or herron at any time , under the pains contained in the acts of parliament made thereanent . item , that all persons forbear to slay any muir-fowl , heath-fowl , partridge , quail , duck , or mallard , tale or atale , or tormichan , from and after the first day of lent , to the first of iuly yearly , according to the 108. act , parliament 7. k. iames 1. excepting water-fowl with hawks in dredging-time . item , the 23 act , parl. 16. k. iames 6. forbidding the killing of muir-fowl-pouts before the first of iuly , heath-pouts before the first of august , or partridge or quail before the first of september yearly . item , we revive the 48 act , parl. 4. k. iames 4. forbidding muirburn after the last of march , and the masters to be lyable for all upon their land. and further , we considering that setting-dogs , and other engines for killing of fowl , is a great cause of the scarcity of game ; we do hereby prohibite and discharge all persons , to have or use setting-dogs , unless he be an heretor of one thousand pound of valued rent , and have express license of the masters of our game within their several bounds , under the pain of five hundred merks . toties quoties , in case of sailzie . and we do hereby discharge all common fowlers , and shooters of fowl , or any persons , except they be domestick-servants to noblemen or gentlemen , who are heretors of one thousand pounds scots of valued rent , to have or make use of setting-dogs , or fowling-pieces , under the pain of escheat of such dogs or guns , and imprisonment of their persons for the space of six weeks , toties quoties . item , we revive the 210 act , parl. 14. k. iames 6. whereby shooting , hunting , or hawking within six miles of our palace are prohibited , under the pains therein contained , without express license of the masters of the game : and seing the fowls , hares and roes are already so far destroyed , that there is ground to fear a total decay thereof , we therefore with advice foresaid , do revive the 23 act , parl. 16. k. iames 6. forbidding all selling or buying of deer , roe , hares , muir-fowl , tormichan , heath-fowls , partridge , or quail , for the space of seven years next ensuing the 20 day of iune instant year 1682 , under the pains contained in the said act ; and for the better discovery of the contraveeners , we do hereby give warrand to the masters of our game , their deputs , or others impowered by either of them in their respective bounds , to make search for any of the saids deer , roe , hates , muir-fowl , tormichan , heath-fowl , partridge , or quail so killed in any suspect place , within or without burgh , as well the buyers , as sellers in mercat , or outwith the samine , or fowlers , and to seize , search , secure and confiscate the same for their own use . item , we do hereby revive the 51 act , parl. 6. q. mary , forbidding hunting on other mens ground without leave of the owner . and whereas by the 11 act , parl. 1. k. iames 1. cruives and zairs set on fresh water without express infeftments of salmond-fishing , are ordained to be destroyed and put away for ever , and that where cruives are allowed by infeftments , that ilk heck be three inch wide , which is ratified by the 73 act , parl. 10. k. iames 3. and by the 87 act , parl. 14. k. iames 2. it is statute that no man set vessels , creels , weirs , nets , or any other engine to hinder smolts from going to the sea , and that coups , masses , nets . prins set on waters that has course to the sea be destroyed , and who holds them up , to be lyable as destroyers of red fishes . item , that all millers that slays smolts or trouts with creels , or any other engine ; or any who dams or laves , shall be punishable as slayers of red-fish , conform to the 73 act , parl. 5. k. iames 3. and where the transgressours has no means , they are appointed to be put in prison , irons , or stocks , for the space of one moneth upon their own expenses ; and if they have it not of their own , to be fed on bread and water , conform to the 89 act , parl. 6. k. iames 6. and by the 13 act , parl. 18. k. iames 6. the steeping of lint in rivers , lochs , or burns where fishes are , is discharged , and that under the pain of fourty shilling scots , toties quoties , and confiscation of the lint : which good and ancient laws yet standing unrepealled or innovate , we have thought fit hereby to revive and ordain to be put in execution ; ordaining hereby the masters of our game to require all heretors and others , to throw down all cruives and zaires set on fresh waters , without express infestment of salmond-fishing , betwixt and the first day of iuly next , under the pain of an hundred pounds scots , to be uplifted off these who refuse , and the sheriffs and their deputs to give speedy justice therefore , when desired by the masters of the game , or their deputs . and we appoint the several sheriffs and their deputs , stewarts of stewartries , bailiffs of regalities and their deputs , and magistrats of the next adjacent burrows to concur with the masters of game , for throwing down of the saids cruives , creels , nets , and engines , when they shall be required ; and if the saids judges be found negligent , that the foresaid penalty be uplifted off themselves , according to the 68 act , parl. 9. of q. mary . and to the effect the saids laws may receive the more vigorous execution , we do hereby commissionate the persons following to be masters of game , within the respective bounds after-specified , viz. our chancellor for the time being , for the three lothians , and town of edinburgh , and shire of bathgate ; the earl of mar , for stirling shire ; sir george mackenzie of tarbet , lord clerk register , for clakmannan shire ; the earl of belcarras , for fife ; and sir william bruce of balcaskie , for kinross ; the marquess of athol , lord privy seal , for perth shire ; the earl of perth , for the stewartries of strathern , monteith , and balquhidder ; the earl of southesk , for forfar shire ; the earl of marischal , for the shire of kincardin , and for all below mormouth hill , and the water of eugie in bamff shir●… ; and the earl of airly , for all the rest of bamff shire ; the earl of dumfermling , for all betwixt crathus , bannachie , and the sea in aberdeen shire ; the earl of kintore , in all above that in the said shire ; the earl of murray , for all from spey to ness , high and low , comprehending elgin , nairn , and innerness shire , to lochness ; the earl of seaforth , from ness to conan , high an●… low , comprehending cromarty shire ; sir george mackenzie of tarbet , lord clerk register , from conan to portnaculter , and okel-water , and on the west from lochew to cuiliscuack ; the lord duffus , for sutherland , excepting assint , which is in the last division ; the earl of caithness , for caithness ; the stewart of orkney , for orkney ; for argile and bute , the sheriff for the time being ; the earl of home , for the shire of berwick ; the sheriff o●… roxburgh , for the shire of teviotdale ; the lord duke of hamilton , for lanerk shire ; the earl of kilmarnock , for the shire of air ; the lord of yester , for peebles shire ; the earl of glencairn , for the shire of renfrew ; the marquess of montross , for the shire of dumbartoun ; the laird of burghtoun , for the shire of wigtoun ; the earl of galloway , for the stewartry of kirkcudbright ; and the marquess of queensberry , lord high thesaurer , for the shire of dumfreis . hereby impowering and warranting them to put the standing laws in execution , in so far as concerns the preserving of forrests , wild-fowl , and fishing , especially the laws and ordinances above-specified . and we require all our judges ordinar , in their respective bounds and jurisdictions , to give speedy justice thereupon , in favours of the saids masters of our game , or their deputs , when they delate or pursue delinquents before them , as they will be answerable upon their duties and offices . and all sheriffs , mayors , other officers , and fiscals of their respective courts , are ordained to cite delinquents before these courts , as they shall be informed thereof , and witnesses to prove the samine , and to prosecute them until final sentence be pronounced against them , and thereafter see these sentences put to due and lawful execution , the expenses whereof is to be payed out of the first and readiest of the fines of the delinquents so uplifted , at the sight of the respective masters of game , under the pain of deprivation , and further censure in case of neglect , as our council shall find cause . and for further enabling our saids masters of game , we impower them to appoint deputs , one or moe , for whom they are to be answerable , as well for their diligence as fidelity . and that their saids deputs themselves , no●… none by their connivance , take upon them to contraveen this proclamation , and destroy the game ; and to encourage them in so good service to us , and our people , we hereby allow our parts of all fines and unlaws due to us by our laws , for the crimes relating to forrests , game , and fishing , in favours of the saids masters of our game , within their respective bounds , and during the time we shall think fit to imploy them in the said service ; withall certifying them , that if they be remiss or negligent in their duty , they are to be discharged of their offices , and fined by our privy council , as they shall find cause . and we declare our said commission is to continue and endure for the space of seven years after the date hereof , and until we , or our privy council think fit to recall the same . and that we have recalled our former proclamation anent game of the fourth of march , 1680. our will is herefore , and we charge you strictly , and command , that incontinent , these our letters seen , ye pass to the mercat-cross of edinburgh , and other mercat-crosses of the head-burghs of the several shires of this kingdom , and other places needful , and there by open proclamation , make publication of the premisses , that none pretend ignorance . given under our signet at edinburgh , the 9. day of june , 1682 years . and of our reign the thirtieth and fourth year . and does strictly require and command all our masters of game , sheriffs , and other magistrats , and their deputs , and all heretors , and liferenters , and proper wodsetters , within their respective bounds , to be diligent and vigilant in time coming , in putting the saids acts and laws therein contained to full and due execution . and does hereby require all our judges , before whom our masters of game , or others , shall pursue the contraveeners , to give them full and speedy justice , as they shall be answerable . and for the preservation and increase of partridge , muir-fowl , heath-fowl , and quails ( which are so much decayed of late . ) our soveraign lord , with consent foresaid , does statute and ordain , that no person or persons whatsoever shall make use of setting-dogs with nets , for taking or killing of partridges , muir-fowls , heath-fowls , or quails , within any part of this our ancient kingdom , for the space of seven years , immediatly after the publication hereof , under the penalty of fourty merks scots for each fowl that shall be so killed , or taken , to be payed by the killers or takers to our masters of game , and their deputs , or others who pursues the same : and whoever shall shoot hares , shall pay fourty merks scots for each hare that he shall shoot . xxi . act against stealing of dogs and hawks . may 27. 1685. our soveraign lord , and estates of this present parliament , taking to their consideration , the great prejudice and inconveniencies that has , and does dayly fall out through the stealing and keeping of hawks and dogs that has strayed and got away from their rightful owners , by persons that has no right or interest to do the same , does statute and ordain , that whosever hereafter shall steal a hawk out of the nest , or air , or take a collar from a dogs neck , or vervel from a hawk with the masters name or style thereon , shall be pined in the sum of five hundred merks scots ; and whosoever shall give away , or sell any hawk , or dog , which is not his own , shall be fined in the sum of one hundred pound scots ; as also , that whosoever does get a dog straying , having the collar above-named , or hawk with bells or vervels that has got away from her or his master , and does take the said hawk or dog into his possession , shall be obliged within fourty eight hours after the said dog or hawk shall be so taken by him , to send and book the same in the sheriff-clerk his books , ( where the waith-goods are booked , ) the dog by the kind , collar , and marks , and the hawk by the kind , and vervels , if it have any , for which there shall be payed to the sheriff-clerk six shillings eight pennies scots , which the owner of the hawk or dog shall be obliged to repay , together with two shillings scots for each mile that the bearer shall be sent to the sheriff-clerk , or booking of the said dog or hawk ; and in case the dog or hawk shall not be claimed by letter , or otherways , by the just owner , within six moneths after it shall be so booked in the sheriff-clerk of the shire , where the dog or hawk shall be taken , his books ; then and in that case , the dog or hawk shall belong and appertain in property to the possessor , and the owners shall not be heard thereafter to claim the same ; and if the taker and keeper of any hawk or dog , shall failzie to cause book the same in manner above-specified , he shall pay the sum of fourty pounds scots of penalty to the owners , if they shall pursue the same before any judge competent . xxii . act concerning tailzies . may 27. 1685. our soveraign lord , with advice and consent of his estates of parliament , statutes and declares , that it shall be lawful to his majesties subjects to tailzie their lands and estates , and to substitute heirs in their tailzies , with such provisions and conditions as they shall think fit , and to affect the saids tailzies with irritant and resolutive clauses , whereby it shall not be lawful to the heirs of tailzie , to sell , annailzie , or dispone the saids lands , or any part thereof , or contract debt , or do any other deed whereby the samine may be apprised , adjudged , or evicted from the others substitute in the tailzie , or the succession frustrate or interrupted , declaring all such deeds to be in themselves null and void ; and that the next heir of tailzie may immediatly upon contravention , pursue declarators thereof , and serve himself heir to him who died last infeft in the fee , and did not contraveen , without necessity any ways to represent the contraveener ; it is always declared , that such tailzies shall only be allowed in which the foresaid irritant and resolutive clausesare insert in the procuratories of resignation , charters , precepts , and instruments of seasing : and the original tailzie once produced before the lords of session judicially , who are hereby ordained to interpose their authority thereto , and that a record be made in a particular register-book , to be kept for that effect , wherein shall be recorded the names of the maker of the tailzie , & of the heirs of tailzie , and the general designations of the lordships and barronies , and the provisions and conditions contained in the tailzie , with the foresaid irritant and resolutive clauses subjoyned thereto , to remain in the said register ad perpetuam rei memoriam , and for which record , there shall be payed to the clerk of register and his deputs , the same dews as is payed for the registration of seasings , and which provisions and irritant clauses shall be repeated in all the subsequent conveyances of the said tailzied estate to any of the heirs of tailzie ; and being so insert , his majesty , with advice and consent foresaid , declares the samine to be real and effectual , not only against the contraveeners and their heirs , but also against their creditors , comprysers , adjudgers , and other singular successors whatsoever , whether by legal or conventional titles . it is always hereby declared , that if the saids provisions and irritant clauses shall not be repeated in the rights and conveyances , whereby any of the heirs of tailzie shall brook or enjoy the tailzied estate , the said ommission shall import a contravention of the irritant and resolutive clauses against the person and his heirs who shall omit to insert the same , whereby the said estate shall ipso facto fall , accresce , and be devolved to the next heir of tailzie , but shall not militat against creditors , and other singular successors who shall happen to have contracted bona fide with the person who stood infeft in the said estate , without the saids irritant and resolutive clauses in the body of his right . and it is further declared , that nothing in this act shall prejudge his majesty , as to confiscations or other fines , as the punishment of crimes , or his majesty or any other lawful superiour of the casualities of superiority which may arise to them out of the tailzied estate , but which fines and casualities shall import no contravention of the irritant clause . xxiii . act ratifying the opinion of the lords of session , anent these who refuse to depone anent the late treasonable proclamation , 1684. june 2. 1685. our soveraign lord , with advice and consent of the estates of parliament , ratifie , approve and confirm an opinion given by the lords of council and session , upon the day of november 1684. whereby they find , that if any of his majesties subjects , being questioned by his majesties judges , or commissioners , if they owne a late traiterous proclamation , in so far as it declares a war against his sacred majesty , and asserts , that it is lawful to kill all such as serve his majesty , or who shall not dissown the same ; are thereby guilty of high treason , and are art and part of the said treasonable declaration : and also ratifies , approves and confirms all processes of treason , led , or to be led thereupon in time coming . xxiv . act ordaining that tennents be obliged by their tacks to live regularly ▪ june 2. 1685. our soveraign lord , with advice and consent of the estates conveened in parliament , do statute and ordain , that all masters , whether heretors , liferenters , proper wodsetters , tutors , tacks-men , donators of wards , or liferents , shall in all time-coming , insert in all tacks to be set by them to their tennents , as well in burgh as landward , an express clause , whereby the tennent shall oblige himself , that he , his family , cottars and servants , shall live peaceably and regularly , free of all fanatical disorders , under the pain of the tennent , cottar , or servant contraveening , their losing the half of their moveables respective , each for their own fault ; and where there is no written tacks , that all the tennents shall enact themselves in the masters court book , or in the town court books within burgh , or give bond , to that effect , and in the tenor foresaid . which enrolment of court is to be subscribed by the tennent , or if he cannot write , by the clerk of the court in his name ; and if the master , or any of the persons foresaid shall fail herein , they shall pay an years rent of the lands , set otherwise ; a third part whereof to the discoverer , if he prove the same , and two parts to the kings majesty : and all masters and others foresaids , who have lands already set in tack , without the saids clauses , are hereby ordained to renew the same , and insert the said clauses in them , betwixt and whitsonday one thoùsand six hundred eighty and six , or to take an obligement apart from the tennent , bearing these clauses , otherwise to remove summarly ; such tennents as refuse to accept them on the saids conditions , notwithstanding of any former tacks , which in this case are hereby declared void and null . and in case the tennents will not immediatly remove , that the master may commit them to prison . and it is hereby statute and ordained , that if any tennent shall refuse to renew his tack , enact himself , or give bond in the terms foresaid , he shall be lyable to pay to his master an years rent of the lands set to him . and this but prejudice or derogation to all former acts of parliament , whereby masters are obliged for their tennents , in the manner therein-specified . xxv . act ratifying two acts of parliament and a proclamation of council , anent apprehending of rebels . june 2. 1685. our soveraign lord , with advice and consent of his estates of parliament , ratifies and approves the 124 act par. 12 of king iames the sixth , entituled , act anent the duty of sheriffs and iudges ordinary , their deputs and clerks : as also , the 144 act of that same parliament , entituled , act for punishing the resetters of traitors and rebels , in the whole heads , clauses and contents of them ; together with a proclamation by his majesties privy council , dated the eight of iuly 1682. entituled , anent the discovery of persons in arms , and apprehending of rebels , in the whole contents thereof : of which proclamation the tenor follows . a proclamation , anent the discovery of persons in arms , and apprehending rebells and fugitives . charles , by the grace of god , king of great-britain , france and ireland , defender of the faith , to our lyon king at arms , and his brethren heraulds , macers of our privy council , pursevants , and messengers at arms , our sheriffs in that part conjunctly and severally , specially constitute greeting : albeit by the blessing of almighty god , upon our royal endeavours , the many attempts of his and our enemies ( made most impiously under pretence of religion and zeal , against the laws of god , of nature , of nations , and of this our kingdom , designing the overthrow of religion , government , liberty and property ) have been frequently disappointed and defeated , and their malice turned upon their own heads , and that the many acts , both of mercy and justice , exerc'd by us , conform to the laws of god and the kingdom ; and the great prudence , vigilance , moderation and justice , of our dearest and only brother , during his abode in , and government under us , of this our ancient kingdom , have had such happy success , as to bring our good subjects to further abhorrence of fanaticks and their impieties , and most of these who were misled by the lying spirit of some of their pretended ministers , are shrunk from these wayes , whereof they are justly ashamed , so that our people are brought nearer to that dutiful and peaceable deportment which becomes christians and subjects : yet some are so indefatigable in malice , as to continue and stir up others to disturb that peace and tranquillity , which our people may enjoy under our reign : in so much as of late , some traitors , runnagates , and fugitives , have convocat towards the number of eighty , with forbidden weapons , and in unlawful manner , near to tala-lin , in the shire of peebles ; and the people in that countrey , have been so defective in the duties of loyal subjects , or good countrey-men , as to neglect giving timeous notice of such meetings or actings , either to our council , the sheriff of the shire , or the commanders of our forces , who were nearest to them ; and this neglect of theirs being not only a breach of duty in them , but of very bad example , and dangerous consequence , if practised by others on such emergments ; we therefore by our royal authority ▪ and also in conformity to the whole course of our laws ▪ particularly to the 144 act of the 12 parliament king iames the 6. and 7 act , parliament 1 king iames 1. do hereby strictly require and command , all the subjects and inhabitants within this our kingdom , whether in burgh or land , upon knowledge or information , that any number of men do convocat unlawfully in arms , or appear in company in any place , or where any one or two of such , as are declared traitors or fugitives from our laws , on treasonable accounts , shall repair , that they shall with all diligence give intimation therof to our chancellour , and such others of our secret council , as shall be at edinburgh : as also , without del●…y , that they give information to any commander of our forces , who shall be nearest to the place where the said unlawful convocation , or such traitors and fugitives are , and to the sheriff of the shire , stewart of the stewartry , bailie of the regality , or magistrates of burrows , where the said meeting , or persons appear , or are informed to be , and that within the space of one hour at most , for every three miles distance they are at the time from edinburgh , or from the nearest commander of the forces , sheriffs , and other magistrates foresaid . and farder , we do hereby require and command our saids sheriffs , bailies , and magistrates , upon any such information given to them , that they call together competent numbers of our good subjects , and with these , do exact diligence , at the utmost of their power , to search , seek , and apprehend these who are so met , and to present them to justice , and to follow them until they be apprehended , or expelled out of their jurisdiction , and on their flight , they are immediatly to acquaint the magistrates of the next shire , whither they are fled ; who are hereby required to do the like diligence ; and so from shire to shire , until they be apprehended , or expelled forth of this realm : and in case any hurt or skaith fall out in the pursuit , or in apprehending of these so unlawfully convocat , the actors thereof are to be free , and unpunished in any manner of way ; with certification , that these whoever fails in their said respective duties , whether it be the magistrats , in not pursuance , or our other subjects , in not giving timeous information within the space foresaid , or in not rising with , and assisting the magistrats in their forementioned duties , they shall be held and repute as disaffected to our government and service , and as art and part , and connivers with them in their said unlawful designs and convocations , and undergo the punishment due to these who were of the said unlawful convocation , by the laws of this our kingdom . and we hereby of new , intimat to all our subjects , that whoever shall intercommune with , reset , supply , shelter , or give any comfort to any declared traitors or fugitives ; or who shall conceal , reset , or shelter any who do convocat in manner foresaid ; that such resetters or assisters , shall be proceeded against , as if they were guilty of the crimes whereof these traitors and fugitives are guilty , according to the just rigor of our laws . our will is herefore , and we charge you strictly and command , that incontinent , these our letters seen , ye pass to the mercat cross of edinburgh , and the whole mercat crosses of the head burghs , and whole paroch kirks of this kingdom , and other places needful , and there , in our name and authority , by open proclamation , make publication of our royal will and pleasure in the premisses , that none may pretend ignorance , but give chearful and punctual obedience thereto ; the which to do , we commit to you conjunctly and severally , our full power , by these our letters , delivering them by you duely execute , and indorsed again to the bearer . given under our signet at edinburgh , the eighth day of july , one thousand six hundred eighty two years , and of our reign , the thirtieth and fourth year . and declares the same shall have the effect of an act of parliament . and ordains the saids acts and proclamation to be put vigorously in execution . xxvi . act concerning adjudications for fines . june 2. 1685. our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that all adjudications and apprysings , led , or to be led for fines imposed , or to be imposed by his majesties privy council , commissioners of justiciary , or any other his majesties judges , for the crimes of reset , intercommuning , concealing of treason , conventicles , irregular-baptisms , marriages , or other church disorders , or irregularities , where the adjudication or comprysing does not exceed , or shall be restricted to lands , not exceeding the value of the fines imposed , the legal shall expire within year and day after deducing of the adjudication or comprysing . and it is hereby declar'd , that in case of competition and concourse of several diligences , within year and day , betwixt the king or his donator , and a creditor , which by the law comes in pari passu : the king or his donator shall be preferr'd , and have his election of his proportion of the lands , of which the legal shall expire within year and day , in manner foresaid ; that proportion not exceeding the sum contained in the adjudication . and it is hereby declared , that this act is only to be extended to adjudications for fines already imposed , or to be imposed betwixt and the next session of parliament . xxvii . act for securing sea-passengers . june 2. 1685. our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that all masters of ships who bring home any passenger who is not a sea-man and of his ship-company , shall at his arrival , and before he suffer the saids passengers to depart , bring them before the nearest magistrat , that the saids passengers may give account of themselves , so as to free them of all suspition to the said judge , who is to secure them until they give such an account : and also , forbids an prohibites any master of any ship , to export any passenger who is not a sea-man , and of their ship-company , until he bring the said passenger before the next magistrat , to whom they shall give account of themselves in manner foresaid , and the master of the ship shall have a testificate of his so doing , under the said magistrats hand and seal before whom he compears , ( for which he shall pay only half a merk , ) under the pain of such fines , and personal punishment as his majesties privy council shall think fit to inflict on the master of any ship , who contraveens this law. and this to continue during his majesties pleasure . xxviii . act and commission for plantation of kirks , and valuation of teinds . june 2. 1685. forasmuch , as his majesties father of ever blessed memory , out of his royal care and zeal for the reformed religion within this kingdom , and the maintainance and provision of the ministry and churches thereof , and the peace of the kingdom , and for preventing and settling all differences that did or might arise betwixt titulars , and others having right to teinds , and heretors , concerning the leading and drawing of their teinds ; and immediatly after his attaining and succeeding to the crown , gave furth and emitted his royal declaration anent the premisses , and the other particulars therein-specified ▪ and in pursuance of the ends foresaids , divers laws and acts of parliament were made in the year of our lord 1633 , his said majesty being then present in his royal person ; and since , divers acts of parliament , and commissions have been made , given , and renewed to that purpose , and particularly by the 15 act of the 3d session of the 2d parliament of k. charles the second ▪ his majesties umqu●…ile royal brother , of ever blessed memory ▪ and his majesty being resolved , and desirous to prosecute so good a work , for the universal good of his subjects , and especially for the encouragement of the ministers of the gospel . therefore , his majesty , with advice and consent of his estates of parliament , gives full power and commission to his majesties officers of estate for the time being , and to the arch-bishop of st. andrews , the arch-bishop of glasgow , the bishop of edinburgh , the bishop of dunkell , the bishop of galloway , the bishop of isles , the bishop of breichen , the bishop of dumblane , the bishop of aberdeen ; the duke of hamiltoun , the marquess of dowglas ▪ the earl of ●…ol , the earl of marischal , the earl of mar , the earl of strathmore , the earl of linlithgow , the earl of southesk , the earl of tweddale , the earl of belcarras ; the lord president of the session ▪ the lord pitm●…dden , the lord forr●… , the lord r●…dfoord , the lord boyne , the lord d●…irn , the lord balcaskie , sir william bruce of kinross , sir george lockhart of carnwath , sir archibald cockburn younger of lantoun , hugh wallace of inglistoun ; sir george drummond of miln-nab ▪ charles murray of hadden , alexander mill of carri●… , sir alexander bruce of broomhall , sir patrick murray , iames iohnstoun provost of glasgow , mr. robers innes writer to the signet , sir george skeen provost of 〈◊〉 ▪ iames fl●…her burgess of aberdeen , iohn dempster of 〈◊〉 ▪ or any eleven of them , to be a quorum ▪ whereof two of every estate , to m●…et and conveen at edinburgh , the day of year●… , and such other place or places , times or die●…s , as they shall appoint , to value and cause be valued whatsoever teinds , great or small , parsonage , or vicarage within this kingdom , which are yet unvalued ▪ declaring , that where the vicarage of any paroch is a several benefice and title from the personage ▪ the same shall be severally valued , to the effect the titulars or ministers serving the ●…re , having right to the said vicarage , be not frustrated of the true worth thereof , with power to the saids commissioners ▪ or quorum foresaid , to appoint committees , or sub ▪ committees of their own number , and to grant sub commissions , and to receive reports from them , an●… to approve or disapprove the same as they shall find just , and to rectifie whatsoever valuations led , or to be led to the enorm prejudice of the titulars , or the hurt and detriment of the church , and prejudice of the ministers maintainance and provisions . providing always , likeas it is hereby expresly provided and declared , that where valuations are lawfully led against all persons having interest , and allowed by former commissions , the same shall not be drawn in question , nor rectified upon pretence of enorm lesion at the instance of the minister ( not being titular , ) or at the instance of his majesties advocat , in respect of his majesties annuity , except it can be proven that collusion was used betwixt the titulars and heretors , or betwixt the procurator-fiscal and the heretors and titulars , which collusion is declared to be , when the valuations are led with the diminution of the third part of the just rent , which diminution shall be proven by the parties oath ; and with power to the saids commissioners or quorum foresaid , where ministers are not already sufficiently provided , or have not localities already assigned to them for their stipends out of the teinds , within the paroch , where they serve the cure , in so far as the same will amount to , according to the quantities , proportions , and rules contained in the 19 act of the parliament 1633 , to modifie , settle , and appoint constant local stipends to each minister , out of the teinds of the paroch where they serve the cure ; with power also to the saids commissioners , to grant recompence by prorogation of tacks to parties for all augmentations of stipends which are granted since the year 1630 , or shall be granted , and that effeiring to the augmentations already granted , or to be granted , as the saids commissioners shall think sit . and sicklike , to disjoyn too large and spacious paroches , to cause erect and build new churches , to annex and dismember churches as they shall think convenient , and to take order that every heretor and liferenter shall have the leading and buying of their own teinds , if they be willing , according to the rules prescribed by the 19 act and commission granted by his majesty , with consent of his estates of parliament in anno 1633 , and the acts of parliament therein-mentioned , with power to determine all questions concerning the prices of teinds betwixt titulars and others having right thereto , and the heretors , and to appoint such securities in favours of titulars and others having right to teinds for their prices , to be granted to the heretors and others lyable in payment of valued duties , or buyers of the saids teinds , and in favours of the ministers as to their maintainance , as the saids commissioners shall think fitting , according to the rules set down in the said act 1633 ; and each heretor whose teinds belongs to titulars of erection , to have power and liberty to buy the teinds of his own lands , whether valued or not , within the space of three years after the date of this act : with this declaration always , that in case the impediment during the time foresaid flow from the titular by reason of his minority , or other inability , in that case , the heretor who offered to buy his own teinds within the space foresaid , shall have place so soon as the impediment is removed to buy his teinds , notwithstanding of the expiring of the years and space after-exprest ; and it is declared , that if the heretor be minor , and his tutor neglect the buying of his teinds within the foresaid space , the minor shall have action for two years after his minority , to compell the titular to sell his saids teinds . and generally , with power to the saids commissioners to decide , and determine in all other points which may concern the drawing or leading of teinds , the selling or buying of the same , or payment of the rates thereof , contained in the former acts of parliament , or set down in the general determination given out by his majesties royal father , of blessed memory . and if any person or persons shall find themselves grieved , and complain of the injustice or exorbitancy of any decreets or sentences given in any of the commissions during the time of the late troubles , with power to the saids commissioners to take the same to their consideration , and alter , annul , or allow the saids decreets and sentences , as they shall find just . and it is always provided and declared , that the arch-bishops and bishops , and other beneficed persons , being ministers , and their successors , shall not be prejudged of the rents whereof their predecessors were in actual and real possession , and which by the laws of the kingdom were due to them in anno 1637 , or whereof they are presently in possession ; and that they shall be no further bound , but according to the provisions and conditions exprest in the submissions made by the bishops to his majesties royal father , of blessed memory , of the date the day of 1628 years , and registrat in the books of commission for surrenders and teinds , upon the fifteenth day of iuly 1631. and whereas it may fall out , that some of the saids commissioners may be unable to attend the service , through death , sickness , or other known impediment , therefore , his majesty declares , that he shall be careful to fill their places with other persons qualified , whose oaths ( for faithful discharging of the same ) shall be taken by the lord chancellor , or in his absence , by the lord president of the commission for the time . and ordains this present commission to endure ay and while the same be discharged by his majesty , and the acts , decreets , and sentences thereof , to have the force , strength , and effect of a decreet or sentence of parliament , and the lords of session to grant letters of horning , poynding , and other necessars to be direct upon the saids decreets and sentences in manner contained in the foresaids commissions . and his majesty , with consent foresaid , hereby discharges all former commissions , declaring the same to be expired . xxix . act concerning citations before circuit courts . june 2. 1685. our soveraign lord , with advice and consent of the estates of parliament , do hereby ratifie and approve the practice of the circuit courts , in citing persons even for treason , upon porteous rolls by messengers , or sheriff-officers , without imploying heraulds or pursevants , which because of the circumstances of the time , place and number of the pannals cannot be done in circuit courts : and declare that for the future , it shall be lawful to cite before circuit courts after that manner . it is alwayes hereby provided , that in cases of treason , the messenger or sheriff-officer , and witnesses to the citation shall be sworn upon the verity thereof . xxx . act approving the narrative of the plot. june 4. 1685. our soveraign lord , with advice and consent of his estates of parliament , having read , seen and considered a narrative of the late horrid inhumane conspiracy by that execrable traitor , archibald campbel , sometime earl of ●…rgile , and others , and the papers , ciphers , and instructions whereon the same is founded ; they do find and declare , that there has been a pernicious and treacherous conspiracy , carried on by him and others ; and they therefore approve the discovery of the said plot , by the extraordinary pains , exactness and industry of the lords of the secret committee ; together with the narrative drawn and printed by authority of the lords of his majesties privy council , as good and acceptable service done by them for the security of his sacred majesty , and this his ancient kingdom . xxxi . act for security of the officers of state and others : june 4. 1685. our soveraign lord , considering the great and acceptable services done to his majesty by the secret committee , his majesties privy council , and his other judges and officers ; and being desireous to secure them for their actings and omissions in his majesties service , in most ample form ; doth therefore , with advice and consent of his estates of parliament , indemnifie and secure all and every one of his majesties present officers of state , the members of the secret committee , lords of the privy council , and all his majesties judges , both civil and criminal , the officers of the army , and all others who have acted by his majesties commissions , or by commission from his privy council , against all pursuits or complaints that can be raised against them any manner of way , for their actings in his majesties service : as likewise for their omissions , and wherein they have fallen short of their duty , and that as fully as if every particular crime or misdemeanour were particularly specified in a remission under his majesties great seal , or contained in an act of indemnity ; requiring all his majesties judges to interpret this indemnity in the most ample and favourable sense , as they will be answerable . xxxii . act concerning the militia . june 4. 1685. our soveraign lord , with consent of his estates of parliament , considering that it may contribute for the ease of the people , to have the ordinary rendezvouzes of militia discharged , unless extraordinary occasions should otherwise require : therefore they discharge all rendezvouzes of the militia in time coming , during his majesties royal pleasure ; and until his pleasure be so declared , that no leaders , nor assisters shall be lyable for furnishing , and contributing to buy or maintain horse or foot on that account ; and they recommend to the secret council to take such courses for disposing of the militia arms in the respective shires , as shall seem most expedient for his majesties service ; but prejudice alwayes of the continuance of the former , and present constitution of the militia , during the present rebellion . xxxiii . act for security of the records . june 4. 1685. our soveraign lord , and estates of parliament , considering of how great importance it is to the leidges , that the records and registers be securely keeped ; do therefore ordain , that all clerks within the kingdom , who keep such registers as are , or have been in use to be delivered in to the clerk register , to be preserved in his majesties general-register-house , shall give in all their registers and books preceeding the first of august 1675 ▪ before the first of november 1685. to be keeped by the clerk of register ; and that hereafter they shall keep only ten years records in their own hands , for the use of the leidges ; with certification , that these who failzies , shall incur such pains and penalties as the lords of session shall think fit . and it is hereby declared , that no privat grant made by any clerk register , shall excuse them from obedience to this act , which tends so much to the security of the people , and preservation of the records . xxxiv . act for poll-money . june 4. 1685. our soveraign lord , with consent of the estates of parliament , statutes and ordains , that for relief of heretors , and others lyable in the supply , granted to his majesty by this present parliament , that their vassals who pay no part of the cess ; and also their own , and their vassals tennents , sub-tennents , and others living upon their land , shall be taxed , and pay in to the saids heretors yearly , during the said supply , the sums of money following : viz. each gentleman , above the quality of a tennent , a proportion to be appointed by the heretor , not exceeding six pounds scots yearly for himself , his wife and children ; each tennent , and other inhabitant , above the quality of a trades-man or cottar , a proportion not exceeding four pounds for themselves , their wives and children : and each trades-man , cottar or servant , a proportion not exceeding twenty shilling scots yearly for themselves , their wives and children ; and it is ordained that the heretors shall have the same execution for raising of the saids sums , as for their mails and duties . xxxv . act anent messengers fees. june 4. 1685. our soveraign lord , with advice and consent of the estates of parliament , statute and ordain , that it shall be in the power of the sheriffs , stewarts , bailies of regalities , justices of peace , and magistrats of burghs royal respective , within whose bounds any legal diligences shall be used , to modifie the prices and charges craved by messengers , for execution of their offices from any of his majesties leidges upon the complaint of the parties , either for , or against whom the messengers were imployed . xxxvi . act anent the address of the estates of parliament of his majesties ancient kingdom of scotland , to his sacred majesty , against the arch-traitor archibald campbel , sometime earl of argile . june 11. 1685. the estates of parliament , taking to their consideration the great happiness conferred on this nation by almighty god , in having been for so many ages governed and protected by a long and continud succession of glorious and just monarchs , and when they had very just reason to expect a further continuance and increass in this happiness , from the auspicious entry of your sacred majesty to the possession of your undoubted right , and from your extraordinary justice , prudence , courage and conduct , they cannot but with horror reflect on the unparalelled treachery of that hereditary and arch-traitor , archibald campbel , late earl of argile , who after that our late merciful king had restored his family , notwithstanding it had been guilty of a dreadful tract of rebellion , bloodshed , and oppression , and had raised it to a greater lustre and estate than ever it had formerly arrived at ; yet he did imploy that power the king had invested him with , to support that traiterous and fanatical party , and to oppress all who had served the king against his father in the late rebellion ; and being more led by the inveterat treachery , in which he had been educated , then remembring the great favours so undeservedly bestowed upon him , he committed these crimes for which he was justly forefaulted ; and in prosecution of them , he has at last absolutely pluckt off the mask , by invading this your majesties ancient kingdom , and his own native countrey ▪ and by endeavouring to defame in a publick proclamation , the late king and your sacred majesty , robbing and spoiling such innocent and loyal men as would not joyn with him , and associating to him these barbarous miscreants , who did undertake to assassinat your majesty , and your royal brother , as rumbold the maltster , now passing by the name of bowls , who at the ry was to have committed the said horrid assassination ; these also who actually murdered iames late arch-bishop of st. andrews , as iohn balfour of kinloch , george fleming in balbuthy , and these other assassins who have rendered almost every mans life unsecure : from all which just resentments , we judged it our duty in all humility , to address to your most sacred majesty , and with all earnestness to implore , that the said archibald campbel , late earl of argile , that execrable traitor , should be for ever secluded from your majesties favour , and that your majesty would be pleased to declare , that he , his family , and the heretors , ring-leaders and preachers who have joyned with him in this rebellion , should be for ever declared uncapable of mercy , and bearing any honours , or enjoying any estate within this kingdom , and to discharge under all highest pains , all your majesties good subjects to interceed for him or them , any manner of way ; and that all such as shall interpose for their restauration , shall incur the pain of treason ; and that your majesty would be pleased in your royal prudence , to inquire who have been the assisters and abaters , either at home or abroad , of this treasonable invasion , by which your majesties government has been so highly injured , and maliciously arraigned , and this your kingdom , so disturbed and harrassed ; to the end your majesty may declare your high displeasure against them , and every one of them , to the terror and example of others ; in return of all which , we the estates of this your majesties ancient kingdom , do hereby most cordially and sincerely , offer with ou●… lives and fortunes , to assist your majesty against this , and all other traitours , their adherents and associats . xxxvii . act for the clergy . june 13. 1685. our soveraign lord , considering how just and necessary it is , and how much it imports the honour of his government , that the persons of the arch-bishops and bishops , and all others the orthodox and loyal clergy , be protected from the sacrilegious assaults , violence , outrages and assassinations of fanatical , impious and bloody-men , who to the scandal of religion and humanity , do maintain the pernicious and horrid principles of rebellion , violence , murther and assassination , and to practise accordingly ; doth with advice and consent of his estates in parliament , not only ratifie and confirm all former laws and acts of parliament , made for the security of the persons of the clergy , particularly the fifth act , first session , second parliament , charles the second ; fourth act , second session , second parliament , charles the second ; and fifteenth act , third parliament , charles the second . but further , his sacred majesty from his just abhorrence of , and indignation against all such horrid and inhumane principles and practices , doth with advice and consent foresaid , of new , statute and ordain , that whatsoever person or persons shall be found guilty of assaulting the lives of bishops , or other ministers , or of invading or robbing their houses , or actually attempting the same , shall be punished with death , and the confiscation of all their goods ; and if any regular minister shall happen to be assassinated or murthered , the parochioners of that paroch wherein he is assassinated , shall pay such sums as the privy council shall determine ; which sum shall be bestowed to the use and behove of the wife and children of the said minister , at the sight of the privy council ; and if he hath neither wife nor children , it is hereby declared to belong to the nearest of the said ministers kindred ; and the legal and conform parochioners are to have relief , and to be re-imbursed by the noneconform parochioners , or others , who shall be proven to have had accession thereunto , at the sight of the privy council . and the estates of parliament make their humble address to his majesty ▪ for conferring a competent encouragement and reward to such persons as shall make effectual discoveries , or shall apprehend any who commit any of the violences foresaid , either upon bishops , or ministers in their persons or goods respectively ; and if there shall shappen any slaughter , or mutilation to be committed in apprehending such persons ; his majesty with consent foresaid , doth hereby indemnifie the persons imployed , and all such as shall assist in apprehending of them ; and declareth them free of all question or trouble for the same , in all time thereafter . and his sacred majesty being firmly resolved to conserve and maintain the church in the present state and government thereof , by arch-bishops and bishops , and not to endure , nor connive at any d●…rogation from , or violation of it ; doth therefore , with advice and consent of his estates assembled in this parliament , ratifie , approve and confirm all former laws and acts of parliament made and passed in the reigns of his royal grand-father , king iames the sixth , his royal father king charles the first , and royal brother king charles the second of glorious , memories : restoring the church to its ancient and right government by arch-bishops and bishops , and redintegrating the estate of bishops to the exercise of their episcopal function ; and to all the priviledges , immunities , dignities , jurisdictions and possessions which was enjoyed by , or by the laws of the kingdom was due to their predecessors , in the year 1637. and ordains them to stand in full force , as publick laws of the kingdom , and to be put in execution in all points , conform to the tenor thereof , as if they were herein all specially repeated and expressed : and in pursuance of his majesties royal resolution therein , his majesty with advice foresaid , doth recommend to all his ministers of state , lords of his privy council , and all other judges and magistrats , to take the persons and interests of the loyal and orthodox clergy , under their special care and protection ; that all laws , acts and statutes , made in their favours , may receive due and ready obedience from all his majesties subjects . xxxviii . act concerning the registration of writs in the books of session . june 13. 1685. our soveraign lord , with advice and consent of the estates of parliament , considering , that there have been in all time by-past , only three offices of the ordinary clerks of session , and that the erection of any moe of these offices is unnecessary , and may be prejudicial to the leidges , therefore , statutes and ordains , that there be only three offices of ordinary clerks of session in time coming , and that there be no moe then two persons conjoyned in each of these offices , which shall remain intire in the full extent thereof , without alteration , division , or dismemberation of any part of the same . and statutes and declares , that they as clerks to the session , and their successors have the only right to be clerks as deputs to the lord register , to all processes which are competent before the lords of session , and to the registrating and extracting of all writs registrat in the books of council and session , and have right to all priviledges , profites and emoluments , whereof the saids clerks are in possession : and for the better securing of the leidges , both as to the registration and preservation of principal writs , statutes and ordains , that the clerks of the session keep an exact register a part in every one of their offices for registration of all writs , and that they appoint one or two fit , diligent , and faithful persons in every office , to receive in the writs given in to be registrat , from whom they are to take caution for their registrating , recording , and safe preserving of these writs . and appoints , that there shall be two minut-books kept in every office , in the one whereof there shall be set down the title of writs given in to be registrat , the name of the giver in , and the date of the ingiving ; which is to be subscribed by the clerk , or his substituts foresaids , and all writs so given in , shall be booked within the space of one year after the ingiving ; and if any party , or one employed by him , shall desire up a writ given in , within the space of six moneths after its ingiving , then the title of the writ , the name of the party , and the date of both ingiving and outgiving of the said writ shall be insert in the other minut-book , and be subscribed by the receiver thereof , that as the one minut-book doeth charge , so the other minut-book may discharge the clerk of such writs , and that no writ given in , shall be taken out after the same is booked ; and the clerks are to begin the foresaid method of the saids two minut-books , from the first day of august next ensuing ; and when the time come●… that these registers are to be given in to the general register house , the two minut-books are likewise to be given in with them subscribed by the clerk ; and the deput appointed by the lord register for keeping of the saids registers , shall subscribe other doubles of the saids minut-books , which are to keeped by the clerks for information of the leidges in their offices . and the clerk of register , or his deput , are hereby ordained to keep all principal writs in a secure room , distinct from the room where the registers are keeped : as also , further ordains the clerk of register once in the year to visite the registers in every chamber , as he shall be answerable . and because many writs are registrat incompetently outwi●…h the jurisdiction , to the great prejudice of the leidges , ( such registrations being void and null , and consequently all execution following thereupon . ) therefore , statutes and ordains , that no clerk of inferior court for the future , presume to registrat any writs in his books , either for conservation , or where execution is to pass against any party that dwells without the jurisdiction , under the pain of deprivation , and of five hundred merks of penalty , the one half to his majesty , and the other half to the party pursuer . likeas , his majesty , with consent foresaid , ratifies and approves the gifts granted by the clerk register to the present ordinary clerks of session , of their respective offices , in the whole heads , tenors , and contents of the same ; declaring these presents to be as effectual , as if the saids gifts were verbatim here insert . and in respect that by this act , there is a great addition to the clerk register his care and trouble , as well as to the peoples security , therefore , it is ordained , that there shall be twenty shilling scots payed to the clerk register in place of the merk formerly payed to him and his predecessors for each subscription ▪ xxxix . act in favours of planters , and inclosers of ground . june 13. 1685. our soveraign lord , with advice and consent of the estates of this present parliament , for the encouragement of inclosing of ground and planting of trees , does ratifie and approve all former laws and acts of parliament made in favours of inclosers of ground and planters of trees , and particularly the 41 act , parl. 1. charles 2. intituled , act for planting and inclosing of ground . and because the time prescribed in the said act is now elapsed , they statute and ordain , that the whole heads contained in the said act be observed for the space of nineteen years next to come , commencing from the date hereof . and likewise , ratifies and approves the 17 act , parl. 2. charles 2. intituled , act for inclosing of ground . and ordains the same to be observed in all time coming . and further , statutes and ordains , that hereafter no person shall cut , break , or pull up any tree , or piel the bark of any tree , under the pain of ten pounds scots for each tree within ten years old , and twenty pounds scots for each tree that is above the said age of ten years , and that the havers or users of the timber of any tree that shall be so cut , broken , or pulled up , shall be lyable to the same penalty , except he can produce the person from whom he got it , and if the person that shall be so convicted be not able to pay the fine , then he shall be decerned to work a day for each half me●…k contained in the said fine to the here●…or whose planting shall be so cut or broken : as likewise , statutes and ordains , that no person shall break down or fill up any ditch , hedge , or dike , whereby ground is inclosed , and shall not leap or suffer their horse , nolt , or sheep to go over any ditch , hedge , or dike , under the pain of ten pounds scots , toties quoties , the half whereof to be applyed to the heretor , and the other half for the mending and repairing of bridges and highways within the paroch at the sight of the sheriff , stewart , or justices of peace before whom the contraveeners shall be pursued . xl. act of annexation of the offices belonging to the late earl of argile . june 16. 1685. our soveraign lord , with advice and consent of the estates of parliament , considering how dangerous it hath always been to the peace and quiet of this kingdom , to bestow too many heretable jurisdictions , office●… , and superiorities upon any of his majesties subjects , living in the remot high-lands , and that by such helps as these , the family of argile did in the last age , as well as this , commit , and maintain their execrable treasons , and oppress and enslave his majesties faithful and loyal subjects , and that the jurisdictions , offices , superiorities , and constabulaties after-specified are now fallen in his majesties hands , by the sentence and doom of forfaulture given and pronounced against archibald campbel late earl of argile , by the commissioners of justiciary upon the day of . therefore , his majesty , with consent foresaid , do unite , annex , and incorporat to his crown of this his ancient kingdom , to remain inseparably with the same in all time coming , the offices of justice general of all the isles of scotland , except orkney and zetland , of the shires of argile and tarbet , and of all the remanent lands and estate belonging to the said late earl in scotland , the heretable lievetenand●…y of argile and tarbet shires , the heretable chamberlainry of both these shires , the office of admirality of all the lands belonging to him the said archibald campbel , the right of the commissariot in so far as it belong'd to the late earl , the office of the kings master-houshold within scotland , the heretable sheriff-ship of argile and tarbet shires , the heretable crownership , and toshdorich , or mayorship in these shires ; as also that half of the casualities belonging to the king and prince formerly dispon'd by his majesty and his predecessors to the earl of argile and his predecessors , viz. the half of the wairds , reliefs , marriages , non-entries , escheats , amerciaments , and of all casualities whatsoever belonging to the king and prince within the saids shires ; and sick like , the patronage of all kirks and prebandries which any manner of way did belong to the said late earl and his predecessors ; and in like manner , the constabularies , of the castles of craignish , tarb●…t , carrick , duni●…e , swine ; and dunstaffnige , with the profits , rents , and emoluments belonging thereto ; as also , the superiorities of all and whatsoever lands belonging to the earl of ●…road-albion , lord lovat , iohn m cleod of herreis , the heirs of the late lord m cdonald , of donald m●…donald of moydart , of the laird of m●…lean , mclean of lochbuy , m clean of torlosk , and of the other heretors holding of the late earl of argile in the isles of mull , iura , tir●…e , of the lands belonging to the lairds of calder , locheall , achinbreck , m cnaughtan , arkinless , m●…alaster of tarbat , arbruchell , duncan of lundy , campbel of 〈◊〉 , the lairds of orms●…y and lochnell , together with the superiority of the burgh of inverary , and the property of the house , castle , and parks of inverary ; declaring that the generality hereof , shall be as sufficient , as if each part of the saids lands , and every patronage , were particularly herein exprest . and that this present annexation is affected with all the conditions and provisions as to the way and manner of alienation and dissolution mentioned and exprest in the former act of parliament , annexing to the crown the lands of the earl of tarras , lord melvill , and others . xli . act declaring the greenland-fishing to be a manufactory . june 16. 1685. our soveraign lord , with consent of his estates of parliament , considering the great advantage which may accrew to this kingdom by encouraging the greenland-fishing , whereby vast sums of money will be kept within the kingdom , and by the export of oyl and whale-bone considerable sums of money brought into the kingdom . do therefore declare the greenland-fishing an manufactory , and to have all the priviledges and immunities made in favours of any other manufactory , or fishing-company ; and that all a●…l or drinking-beer made use by the ships to be sent to greenland , and an butt of brandy for each ship yearly shall be free from excise , imposition , custom , or any dues whatsoever . and the greenland-fishing being much prejudged by the importing of forraign soap , or whalebone , the customers quitting the one half of the duty imposed by act of parliament upon imported soap . do therefore , expresly prohibite and discharge the fermorers of his majesties custom , or others , from quitting or abating any of the said duty due by law upon imported whale-bone or soap ; and if it be discovered , that they shall quite or abait any of the said duty , that the said soap or whale-bone shall be confiscate , the one half to his majesty , and the other half to the discoverer , and the tacksmen or collector who shall be found so guilty , to be censured by his majesties privy council or exchequer , as they judge fit . xlii . act of annexation of several lands to the crown . june 16. 1685. our soveraign lord , and estates of parliament , considering that the traitors after-mentioned , have of late been forefaulted upon processes of treason , intented at the instance of sir george m ckenzie , his majesties advocat , against them , both before the high court of parliament , and the commissioners of justiciary ( viz ) sir iohn cochran of ochiltry , sir patrick h●…me of polwart , thomas steuart of cultness , pringle of torwoodlie , george late lord melvil , david montgomery of lainshaw , sir hugh campbel of cesnock , sir george campbel younger of cesnock , mr. robert martin , sometime clerk to the justice-court , walter late earl of tarras , mr. robert bailie of ierriswood , thomas kenedy of grange , porterfield of duchal , mr. william and alexander gordons , late of earlstoun elder and younger , iames gordon younger of cra●…en : and his majesty and estates of parliament , being desirous to annex the whole lands , barronies , teinds , annualrents , roums , possessions , milns , woods , fishings and others , which pertained to the fore-named persons , any manner of way , to the crown , for the better supporting the dignity of his royal estate , and the expenses of his government : his majesty does therefore , with advice and consent foresaid ▪ ratifie and confirm the saids decreets of forefaulture ; and ordains the same to be of full force , strength , and effect in all time coming , holding and willing this their ratification to be as sufficient and effectual , as if the saids decreets , and whole tenors thereof were insert herein . and further , his majesty with consent foresaid , doth unite , annex and incorporat to his crown , of this his ancient kingdom , to remain inseparably therewith in all time coming , all and whatsoever lands , lordships , baronies , heretages , roums , possessions , milns , woods , fishings , tacks , steedings , teinds , annualrents , patronages , wodsets , expired apprysings and adjudications , castles , towers , fortalices , houses , biggings , yairds , orchyairds ; annexis , connexis , tennents , goods and aikers , and all other heretages , lands and estates whatsomever , pertaining and belonging to the fore-named persons , rebels and traitors above-mentioned , or any of them , by whatsomever manner of way , right or title , and wherein they , or any of them , have been , or might have been in possession , or to which they , or any of them have succeeded , or may succeed , as representing any person , and where the same ly within this realm , of whatsomever name , title , bounding , or designation the same be of , dispensing with the foresaid generality ; and declaring the same to be as sufficient , as if every particular , roum , land or barony pertaining to the fore-named , forefaulted rebels and traitors , or any of them , and which can any manner of way fall under their forefaultries , were herein particularly condescended on and exprest ; and particularly , but prejudice of the foresaid generality , the lands , baronies , and others after-mentioned , which formerly pertained to these of the saids traitors after-named ; viz. the lands and barony of ochiltry , the lands and barony of trabeanch , the lands of chalmerstoun , the lands of kinowdouns , and flownstoun , the lands of craigman , the lands of brownstoun , beaches , the lands of green-hill , and the superiorities and feu-duties of the twenty pound land of carbel , all lying within the sheriffdom of air , with the whole pertinents thereof , which pertained to the said sir iohn cochran , sometime of ochiltrie ; the lands and barony of polwart , the lands and barony of greenlaw , red-path , with the rights of patronages , and whole pertinents thereof , and lands of pertaining to the said sir patrick hume , sometime of polwart , lying within the sheriffdom of berwick ; the lands and barony of cultness , lying within the sheriffdom of lanerk ; and the lands of north-berwick , lying within the constabulary of haddingtoun , which pertained to the said thomas steuart , sometime of cultness ; the lands and barony of torwoodlie , with the pertinents thereof , lying within the lordship of ettrick-forrest , and sheriffdom of selkirk , sometime pertaining to the said pringle of torwoodlie ; the lands , lordship and barony of mony-mail , comprehending the lands , patronages , and baronies mentioned in the infeftments thereof , lying within the sheriffdom of fife , and particularly , comprehending the lands and baronies of raith , and balweirie , sometime pertaining to the said george lord melvil ; the ten merk land of lainshaw , and teinds thereof , the ten merk land of kirkbryd , with the miln and pertinents , the five pound land of milnstoun-fleet , the five merk land of over and nether ▪ peacock lands , with the miln and pertinents , with the tower and fortalice , called castlesturt , and lands of brockholmer , all lying within the bailiary of cunningham , and sheriffdom of air , the lands of over-cassilioun , extending to a three merk land , with the teinds and pertinents , lying within the said bailiary and sheriffdom , all formerly pertaining to the said david montgomery , sometime of lainshaw ; the lands and barony of riccartoun , the lands and barony of cesnock and galstoun , with the tower of cesnock , and pertinents , the lands and barony of bair , the lands and barony of castlemains , the lands and barony of hayningress , all lying within the sheriffdom of air , and the lands of newhal , lying within the sheriffdom of fife , formerly pertaining to the said sir hugh and sir george campbels , sometime of cesnocks ; the lands and barony of hughchester , the mains of borthwickshiels , lying within the shire of roxburgh , the lands of robertoun and howeleuch-miln , and pertinents thereof , lying in the sheriffdom of selkirk , the lands and steedings of alemuir , , lying in the said shire , the lands of cassock , tameucher , and glenderig , lying in eskaldemuire , the lands of harden , mabenlan , hichchester , and borthwick-walls , lying in the sheriffdom of roxburgh , formerly pertaining to the said walter , sometime earl of tarras ; the lands and barony of ierviswood , lying within the sheriffdom of lanerk , the lands and barony of mellerstains , lying within the sheriffdom of roxburgh , formerly pertaining to the said mr. robert bailie , sometime of ierviswood , the lands of grange , and heretable office of bailiary of monkland , lying within the bailiary of carrick , and sheriffdom of air , formerly pertaining to thomas kennedy , sometime of grange , the lands and barony of duchal , and pertaining to porterfield , sometime of duchal ; the lands and barony of earlestoun , the lands and barony of kenmuir and others , formerly pertaining to the said william and alexander gordons , late of earlestoun , lying within the sheriffdom of wigtoun , and stewartry of kirkcudbright respective ; the lands and barony of craiglaw and others , formerly pertaining to the said iames gordon younger of craiglaw , together with all other lands , teinds and rights whatsomever , belonging to the remanent of the saids traitors , or to all or any of them , or whereof they were in possession , or to which they might have succeeded any manner of way , with all lands , teinds and others , castles , towers , fortalices , milns , multures , fishings , annualrents , reversions , patronages of kirks and teinds , personages and viccarages , and all and whatsomever mines of gold , silver , copper and other minerals within the foresaid bounds , and belonging to the saids forefaulted traitors , with all other parts , pendicles and pertinents , casualities , priviledges , jurisdictions , offices , and others whatsomever , pertaining to the same : all which , his majesty with consent foresaid , doth unite and annex to his crown , declaring the generality foresaid to be as sufficient to the intent and effect foresaid , as if each part , parcel and pertinents of the saids lands , offices , patronages , priviledges and others belonging to the saids traitors , or any of them , and whereof they were in possession , were herein exprest . and it is statute and declared , that the saids lordships , lands , baronies , teinds and others respectivè above-mentioned , annexed to the crown in manner-foresaid , shall remain therewith in all time-coming ; and that the same , or any part thereof , shall not , nor may not be given away in fee and heretage , nor in frank , tenement , liferent , pension , or tack , except for the full duty , which may be gotten from , and payed by the tennents , or by any other manner of alienation , right or disposition whatsomever , to any person or persons , of whatsomever estate , degree , or quality they be , without advice , decreet , and deliberation of the whole parliament , and for great weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom ; first to be proposed , and to be advised and maturely pondered and considered by the estates re integrâ , before any previous grant , right or deed be given , made or done by his majesty , or his successors , concerning the disposition of the saids lordships , baronies and others , or any part thereof , which may any wayes predetermine them , or the estates of parliament , and prejudge the freedom of their deliberation and consent . and if at any time hereafter it shall be thought fit to dispone , or grant any right of any part of the saids lands , superiorities , offices , teinds and others ; it is declared , that the general narrative of good services , weighty causes and considerations , shall not be sufficient ; but the particular causes and considerations , whereupon his majesty and his successors may be induced to grant , and the estates to consent to such rights , are to be expressed , that it may appear that the same is not granted through importunity , or upon privat suggestions or pretences , but for true , just , and reasonable causes and considerations of publick concernment . and further , it is declared , that if any general act of dissolution , of his majesties property , shall be made at any time hereafter , the saids lands and others above-mentioned , and annexed , shall not be understood to fall , or be comprehended under the same : and if the saids lands , and others foresaid , or any part thereof , shall be annalzied or disponed ; or any right of the same shall be granted otherwise then is appointed , and ordained in manner above-mentioned , his majesty with consent foresaid , doth statute and declare , that all dispositions , infeftments , and other rights of the saids lands , and others foresaid , or any part thereof , which shall be granted contrary to this present act , with all acts of dissolution and ratification , and other acts of parliament concerning the same , shall be from the beginning , and in all time-coming , void and null , and of no effect ; and notwithstanding thereof , it shall be lawful to our soveraign lord , and his successors for the time , to take back and receive at their pleasure , for their own use , without any process of law , the lands and others above annexed , or any part thereof , which shall be annalzied , or disponed , and these in whose favours any such rights , or alienations shall be made , shall be accomptable for , and lyable to refound and pay all profits , intromission , or benefit taken , uplifted , or enjoyed by them , in the mean time . and it is declared , that all other clauses , articles and provisions , contained in any former act , or acts of annexation , to the advantage of his majesty and his crown , are , and shall be holden , as repeated , and insert herein : but it is hereby always declared , that if any of the saids lands hold of a sub-altern vassal , that it shall be lawful to his majesty to present a vassal to the intermediat superiour . to the end his majesty may thereby apply the mails and duties of these lands so holden , to his majesties own use . it is always hereby declared , that the annexation of the lands of north-berwick , as belonging to the said thomas stuart , sometime of cultness , shall not prejudge the senators of the colledge of justice , as to their right and interest in these lands , who are hereby declared preferable for the same ; reserving also lieutennant collonel , theophulus ogilthrop , and major mayn , and captain cornwal his authors , the rights and grants made to them respectivè by his late majesty , in so far as concerns the lands gifted to them , to be bruiked and enjoyed by them , ay and until they be satisfied by his majesty , or by their own intromissions . xliii . act in favours of the inhabitants of orkney and zetland . june 16. 1685. our soveraign lord considering the great distance of the islands of orkney and zetland from the town of edinburgh , the ordinary place of justice , and the uncertainty of passage by sea , and the many fresh waters and other ferries in the way by land ; doth with advice and consent of his estates of parliament , statute and ordain , that all summons to be intented against the inhabitants of orkney and zetland , before the lords of privy council , the lords of session , and before the commissioners of justiciary , and letters of horning and law-borrows upon their decreets , or by their warrand , shall be execute in time coming upon fourty days ; but prejudice always of letters to be raised upon writs registrated of consent of parties , where , by the clause of registration , the party consents that execution should pass on a shorter time . xliv . act for a standart of miles . june 16. 1685. our soveraign lord , thinking it fit , that there should be a fixed standart for measuring and computation of miles , and that the whole isle of britain should be under on certain kind of commensuration , doth therefore with consent of the estates of parliament , statute and ordain , that three barley corns set lengthways , shall make an inch , as it is already used ; that twelve inches shall make a foot of measure , which is to be the only foot by which all work-men , especially masons , wrights , glasiers and others are ordained to measure their work in all time coming , under the pain of an hundreth pounds , toties quoties ; three of these foot 's are to make a yard , as three foot and one inch makes a scots eln , and a thousand seven hundreth and sixty yards are to make a mile , which is to be made the standart of computation from place to place in all time coming . xlv . act in favours of sir william bruce , for enlarging the shire of kinross . iune 16. 1685. our soveraign lord , and estates of parliament , considering the smalness and extent of the sheriffdom of kinross , and jurisdiction thereof , to support and maintain the state and rank of a distinct shire , as it is , and anciently has been , and that it will be of great advantage and ease to his majesties lieges , the several heretors , residenters and inhabitants within the parochs of portmock , cleish and tilliboal ( excepting alwayes , and reserving the jurisdiction of the lands of carnboe , bridge-lands , cruick , and cruick-miln , lying in the said paroch of tilliboal , and stewartry of strathern , whereof iames earl of perth , lord high chancellour is heretable stewart , out of this present act , which is hereby declared to be without prejudice thereunto , infringement thereof , or incroachment thereupon , or to the detriment of the said heretable stewartry in any manner of way whatsomever ) and to the heretors of these several parts and portions of land , lying in the paroch of kinross , and in the shires of fife and perth ; and of the barony of cuthilgourdy , lying in the shire of perth , and belonging to sir william bruce of kinross baronet , heretable sheriff of the said shire of kinross , be disjoyned from the saids shires of fife and perth ; and jurisdictions thereof , and joyned , annexed , and united to the shire of kinross , and jurisdiction thereof , unto which the saids parochs and lands ly contigue , and most conveniently : and that iohn marquess of athol , sheriff principal of the sheriffdom of perth ; and margaret countess of rothes , and the deceast charles , earl of hadingtoun her husband , heretable sheriff of the shire of fife , have for their respective interests , consented to the disjunction of the saids lands , and parochs above-mentioned , from the saids shires of fife and perth , and to the uniting them to the said shire of kinross , and heretable jurisdiction thereof , in favours of the said sir william bruce , heretable sheriff of the same , with the burthen of the valuation , and all other publick burthens laid on , or to be laid on the same : therefore his majesty and estates of parliament , upon the considerations foresaid , hereby dismember and disjoyn the saids several parochs of portmock , cleish and tilliboal , and whole lands contained therein ( reserving the jurisdiction of the saids lands , as is above reserved ) and the saids parts and portions of land , in the paroch of kinross , lying within the saids shires of fife and perth , and the saids lands and barony of cuthilgourdy , from the saids shires of fife and perth , and jurisdictions thereof , for now and ever ; and adjoyn , unite , annex , and incorporat the same to the said sheriffdom , and heretable sheriff-ship of kinross ; and statute , ordain and declare them in all time coming , to be a part of the shire of kinross , in and to all effects and purposes , and in particular in point of jurisdiction , judicatures , civil and criminal , and in all matters privat and publick whatsoever ; and in the ordering , casting and collecting of cess , excyse , militia , out-reeks of levies , and mending of high-wayes , as amply and freely as any other shires do , or may do within this kingdom ; discharging hereby all other sheriffs and their deputs , and justices of peace within the saids shires of fife and perth from exercing any power of jurisdiction over any of the saids lands and parochs foresaids , heretors and inhabitants thereof , in any time coming , as being now only answerable to the sheriff-court of kinross , and justices of peace within the same ( reserving alwise to the said iames earl of perth , and his heirs , the jurisdiction of the saids lands of cruik , cruik-miln , carnboe and bridg-lands , as heretable stewart of the said stewartry of strathern ) and in respect that formerly the publick burthens , cess , excise , militia , and mending of high-wayes , and other publick concerns , were ( because of the smalness of the shire of kinross , and that for many years , the right and interest thereof was broken , and divided in the hands of many creditors ) casten in , and mannaged with the publick concerns of fife ; and the shire of kinross being now enlarged , and that interest brought in , and made intire again in the person of the said sir william bruce ; therefore his majesty , with consent foresaid , separates the said shire of kinross from fife , as to all these publick concerns and actings , as well the lands contained therein formerly , as these annexed thereto by this present act ; and from the shires of fife and perth respectivè , in all matters whatsoever that relate to , pertain , and fall within the precinct , and jurisdiction of the said shire of kinross , as it is now established and comprehended by this present act , and to consist of the parochs of kinross , urwell , portmock , cleish , and tilliboal , and whole lands lying within the saids parochs , and of the saids lands and baronies of cuthilgourdie , with the burthen of the valuation of the saids parochs and lands ; and liberating and freeing the saids respective shires of fife and perth , proportionally of the burthen thereof ; and particularly ( without prejudice of the generality foresaid ) of all cesses , excise , militia , out-reeks of horse and foot , high-wayes , and all other publick burthens , and impositions laid , or to be laid upon these lands , disjoyned from the saids shires of fife and perth , and annexed to kinross in manner foresaid ; and particularly , liberats the shire of fife of the valuation of the lands formerly contained in the shire of kinross , and of the valuation of the lands that are now disjoyned from the shire of fife , and adjoyned to the shire of kinross , amounting both to the sum of eighteen thousand five hundreth and sixteen pounds scots money . and also , particularly liberats and frees the shire of perth of the valuation of the saids lands , hereby disjoyned from the shire of perth , and now annexed to the shire of kinross , extending to the sum of one thousand , seven hundreth and eighteen pounds , six shilling eight pennies , scots money , making up the saids two valuations , in the whole , the sum of twenty thousand , two hundreth and thirty four pounds , six shilling , eight pennies , scots money , which is declared to be the full and compleat valuation of the shire of kinross hereafter , and the rule of proportioning the publick burthens laid on , or to be laid on the said shire of kinross . willing and appointing the heretors , inhabitants and possessors of the saids lands , in all time coming , to answer to the courts of the said sheriffdom of kinross , and to be lyable to the jurisdiction of the sheriffs thereof , in all causes , civil and criminal , competent to an sheriffs cognition , and to be holden , reputed and esteemed in all time hereafter , a part of the said shire of kinross , to all effects , and particularly ( without prejudice of the generality foresaid ) with the burthen of all cess , excise , and other impositions whatsoever , militia and other out-reeks , collecting and ordering thereof : and that in all retours , rights , dispositions , charters and infeftments of the saids lands , they be designed in all time-coming , to ly within the said sheriffdom of kinross : and that all denunciations , and executions of hornings , apprysings , inhibitions , adjudications , publications of interdictions ▪ and other legal diligences against the heretors , possessors and inhabitants of the saids lands , with all brieves , proclamations and others , be used and execute at the said mercat cross of kinross , head-burgh of the said shire , in like manner , and to the same effect , as these executions are used at the head-burgh of any other shire ; and in case there be any mistake in the casting of , and inserting in this act the sums of the valuation above-mentioned , to the prejudice of any of the saids other shires . his majesty with consent foresaid , ordains the commissioners of cess and excise of the saids other shires , to meet , adjust , and settle the saids proportions ; and being so adjusted , to signifie the same to the lords of his majesties privy council , under their hands , that the same may be recorded in the books of privy council , for a rule hereafter . as also , his majesty , with consent of the saids estates of parliament , considering that by the sixteenth act of the twenty second parliament of his majesties dearest grand-father , king iames sixth , in anno 1617. ( entituled act anent registration of seasins , reversions and other writs ) that for the great ease of the lieges , the saids registers were established in the burgh of couper in fife , for the whole lands lying in the bounds of the saids sheriffdoms of fife and kinross , or were to be established in any other place or places more convenient : and that now for the greater ease and accomodation of the leiges , it is thought more fit and convenient , that the said register be kept at kinross , head-burgh of the shire thereof , for the whole lands , as well formerly lying within , as now annexed to the same shire : therefore his majesty , and estates of parliament foresaids , statute and ordain , that in all time coming , there be a publick , particular register , for registrating seasins , renunciations , reversions , discharges of reversions , grants of redemption , and other writs , enjoyned to be registrated by the said former act of parliament ▪ keeped by the clerk of registers , and his deputs , at the said burgh of kinross , for the whole lands , as-well formerly lying within the said shire of kinross , as now annexed thereto , within the space , to the same effect , and with the like conditions mentioned and contained in the foresaid act , in anno 1617. for registration of seasins , reversions , &c. and lastly , his majesty and estates of parliament foresaids , hereby ratifie and approve , in favours of the said sir william bruce , and his heirs-male , tailzie , and others contained in his infeftments of the estate of kinross , the twenty ninth act of the first parliament of his majesties dearest father , king charles the first of ever blessed memory ( entituled , act in favours of the earl of morton and the lord dalkeith his son , anent the loch of loch-levin , and preservation of the fishes thereof ) and ordains the said act to be put to execution by the said sir william bruce , and his foresaids , and his and their deputs and bailies , after the form and tenor thereof . it is alwise hereby declared , that this act , and every part thereof , is but prejudice to the said sir william bruce ▪ and his heirs of any other iurisdiction of regality or bailiary , formerly belonging to him of any of the saids lands , either formerly belonging , or now annexed to the said shire of kinross . xlvi . act salv●… jure cujuslibet . june 16. 1685. our soveraign lord taking to consideration , that there are several acts of ratification , and others past , and made in this session of parliament , in favours of particular persons , without calling or hearing of such as may be thereby concerned , or prejudged ; therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that all such particular acts , and acts of ratification past in manner foresaid , shall not prejudge any third party of their lawful rights , nor of their actions and defences competent thereupon , before the making of the saids particular acts , and acts of ratification ; and that the lords of session , and all other judges of this kingdom , shall be obliged to judge betwixt parties , according to their several rights standing in their persons , before the making of the saids acts : all which are hereby exponed , and declared to have been made , salvo jure cujuslibet . xlvi . act of adjournment to the last tuesday of october . june 16. 1685. the kings majesty declares this parliament currant ▪ and adjourns the same to the last tuesday of october next , 1685. and ordains all members of parliament to attend that day : and that there be no new elections of commissioners from shires or burghs , except upon the death of some of the present commissioners . collected and extracted from the registers and records of parliament , by tarbat , cls. reg. a table of the printed acts . 1 act for security of the protestant religion . pag. 1 2 a declaration and offer of duty by the kingdom of scotland , with an annexation of the excise to the crown . pag. 2 3 act concerning citations in processes for treason . pag. 3 4 act concerning witnesses in processes for treason . pag. ibid. 5 act declaring it treason to take , or owne the covenants . pag. ibid. 6 act obliging husbands to be lyable for their wives fines . pag. ibid. 7 act anent porterfield of duchal , and concealing of supply given to rebels . pag. 4 8 act against preachers at conventicles , and hearers at field-conventicles . pag. ibid. 9 act for the more effectual payment , and inbringing of his majesties rents and revenues . pag. ibid : 10 act concerning judicial confessions before the commissioners of iusticiary . pag. 5 11 act obliging persons to accept offices . pag. ibid. 12 act of supply pag. 6 13 act for taking the test. pag. 15 14 act explaining the 9th act of the parliament 1669. concerning prescriptions . pag. ibid. 15 act explaining the 10th act of the parliament 1669 , anent interruptions . pag. 16 16 act anent iustices of peace . pag. ibid. 17 act for taking the oath of allegiance . pag. 17 18 act concerning vacant stipends . pag. ibid. 19 act ratifying the priviledges of the senators of the colledge of iustice. pag. 18 20 act for preserving game . pag. ibid. 21 act against stealing of dogs and hawks . pag. 21 22 act concerning ●…ailzies . pag. ibid. 23 act ratifying the opinion of the lords of session , anent these who refuse to depone anent the late treasonable proclamation , 1684. pag. 22 24 act ordaining that tennents be obliged by their tacks to live regularly . pag. ibid. 25 act ratifying two acts of parliament , and a proclamation of council , anent apprehending of rebels . pag. 23 26 act concerning adjudications for fines . pag. 24 27 act for securing sea passengers . pag. 25 28 act and commission for plantation of kirks , and valuation of teinds . pag. ibid. 29 act concerning citations before circuit courts pag. 27 30 act approving the narrative of the plot. pag. ibid. 31 act for security of the officers of state and others . pag. ibid. 32 act concerning the militia . pag. 28 33 act for security of the records . pag. ibid. 34 act for poll-mony . pag. ibid. 35 act anent messengers fees. pag. 29 36 act anent the address of the estates of parliament of his majesties ancient kingdom of scotland , to his sacred majesty , against the arch-traitor , archibald campbel , sometime earl of argile . pag. ibid. 37 act for the clergy . pag. 30 38 act concerning the registration of writs in the books of session . pag. 31 39 act in favours of planters , and inclosers of ground . pag. 32 40 act of annexation of the offices belonging to the late earl of argile . pag. ibid. 41 act declaring the green-land-fishing to be a manufactory . pag. 33 42 act of annexation of several lands to the crown . pag. ibid. 43 act in favours of the inhabitants of orkney and zetland . pag. 36 44 act for a standart of miles . pag. ibid. 45 act in favours of sir william bruce , for enlarging the shire of kinross . pag. ibid. 46 act salvo iure cujuslibet . pag. 38 47 act of adjournment . pag. 39 a table of the acts , and ratifications , past in the first session , of his majesties first parliament , and which are not here printed . protestation by some noblemen , and others , commissioners from shires , and burghs , concerning their precedency in the rolls of parliament . his majesties letter to the parliament , with the parliaments answer . record of the production of the patent of honour granted by his majesty to the viscount of tarbat and his admission . act for several yearly fairs , and weekly mercats , to some noblemen , and others . act in favours of the viscount of tarbat . act in favours of the lord advocat . act ratifying and approving the late earl of argiles forfaulture . act ratifying and approving the sentence of forfaulture against the late mr. robert baillie of ierviswood . act ratifying and approving the sentence of forfaulture against hamilton of monckland . act for a commission anent the estate of the late earl of argile . act in favours of the viscount of tarbat , for changing an high-way . remit from the parliament to the kings majesty concerning the earls of roxburgh and lothian . act concerning trade and manufactories . act for a commission of trade . commission for regulation of inferiour judicatories . decreet and sentence of forfaulture against sir iohn cochran . decreet and sentence of forfaulture against sir patrick home of polwart . decreet and sentence of forfaulture against pringle of torwoodlie . decreet and sentence of forfaulture against mr. robert martine , sometime clerk to the justice court. decreet and sentence of forfaulture against thomas stuart of cultness . decreet and sentence of forfaulture against mr. robert ferguson . decreet and sentence of forfaulture against the late lord melvill . decreet and sentence of forfaulture against the lairds of cessnock elder and younger . decreet and sentence of forfaulture against david montgomery of langshaw . act in favours of the children of sir william primrose . act remitting the processes of treason depending before the parliament , to the justice court. act reducing the conversion of the ancient few-duties of the estate of argile . act for sowing pease and beans , and inhibiting the casting up of ground within the shi●…e of aberdeen ▪ act in favours of the burgh of innerness . act in favours of the burgh of aberdeen . act in favours of david areskine of dun. act in favours of the town of dalkeith . act in favours of sir patrick frazer of doors . act in favours of the town of linlithgow . act for exacting a petty custom at several bridges . ratification in favours of the duke of gordon . protestation the earl of marischal against the same . protestation the bishop of aberdeen against the same . protestation the earl of finlater against the same . protestation the laird of drum against the same . protestation sir iohn gordon in behalf of the duke of gordon , against the foresaids protestations . ratification in favours of the earl of mar. ratification in favours of the earl of monteith . three ratifications in favours of george viscount of tarbat . ratification in favours of the royal colledge of physicians . protestation the town of edinburgh against the same . ratification in favours of mr. roderick mackenzie of prestounhall . ratification in favours of the earl of southesk . ratification in favours of hugh wallace of inglistoun . ratification in favours of mr. iohn richardson , and iohn drummond . protestation sir iames rocheid , and iames hamilton against the same . ratification in favours of aeneas m cleod . ratification in favours of sir robert lowrie of maxweltoun . ratification in favours of duncan toshich of monyvaird . ratification in favours of collonel iames dowglas , and robert bartoun . ratification in favours of the apothecaries in edinburgh . protestation the chirurgian-apothecaries against the same . ratification in favours of christopher irving . ratification in favours of collonel barclay of ury , and his son. ratification in favours of the trades of edinburgh . protestation the trades of the cannongate against the same . ratification in favours of the bonet-makers and litsters of edinburgh . protestation the weavers of the cannongate against the same . ratification in favours of the burgh of innerness . ratification in favours of iohn scot of comistoun . ratification in favours of iames miln . ratification in favours of mr. david dewar advocat . ratification in favours of donald m cdonald of moydart . ratification in favours of sir william bruce of kinross . ratification in favours of sir iohn murray of drumcairn . ratification in favours of the laird of drum. ratification in favours of sir george mackenzie , his majesties advocat . ratification in favours of iames caddel of muirtoun , with an erection of the lands of blackstoh in an burgh of barony . ratification in favours of the baxters of edinburgh . protestation the baxters of the cannongate against the same . ratification in favours of mr. david grahame tutor of gorvy . ratification of an act of convention of the burrows in favours of the burgh of barony of cromarty . ratification in favours of mr. roderick mackenzie of dalvenan . ratification in favours of iohn lawder of fountainhall , and sir iohn lawder his son. ratification in favours of sir iohn gordon of rothemay . protestation the town of forrest , against iames caddel of muirtouns ratification . act in favours of the bishop of the isles . decreet of precedency in favours of the earl of strathmore . finis . an argument delivered by patrick darcy, esquire by the expresse order of the house of commons in the parliament of ireland, 9 iunii, 1641. darcy, patrick, 1598-1668. this text is an enriched version of the tcp digital transcription a36769 of text r17661 in the english short title catalog (wing d246). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 203 kb of xml-encoded text transcribed from 73 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a36769 wing d246 estc r17661 11740387 ocm 11740387 48487 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be 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(eebo-tcp ; phase 1, no. a36769) transcribed from: (early english books online ; image set 48487) images scanned from microfilm: (early english books, 1641-1700 ; 487:21) an argument delivered by patrick darcy, esquire by the expresse order of the house of commons in the parliament of ireland, 9 iunii, 1641. darcy, patrick, 1598-1668. 144 p. by thomas bourke, waterford [waterford] : 1643. royal arms (not in steele) on t.p. reproduction of original in bodleian library. eng law -ireland -history and criticism. a36769 r17661 (wing d246). civilwar no an argvment delivered by patricke darcy esqvire, by the expresse order of the house of commons in the parliament of ireland, 9. iunii, 1641. darcy, patrick 1643 35180 41 0 0 0 0 0 12 c the rate of 12 defects per 10,000 words puts this text in the c category of texts with between 10 and 35 defects per 10,000 words. 2006-09 tcp assigned for keying and markup 2006-09 aptara keyed and coded from proquest page images 2008-07 taryn hakala sampled and proofread 2008-07 taryn hakala text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion an argvment delivered by patricke darcy esqvire , by the expresse order of the house of commons in the parliament of ireland , 9. iunii , 1641. royal blazon or coat of arms printed at waterford by thomas bourke , printer to the confederate catholicks of ireland , 1643. 5. iunii , 1641. by the commons house of ireland in parliament assembled . forasmuch as m. patricke darcy , by a former order of this house , was appointed prolocutor , at the conference with the lords , touching the questions propounded to the iudges , and their pretended answers to the same ; it is hereby ordered , and the said m. darcy is required , to declare and set forth , at the said conference ; the manifold grievances , and other causes and grounds that moved this house , to present the said questions to the lords house , to be propounded as aforesaid , and to give particular reasons for every of the said questions . copia vera . extract . per phil. fern . cleric . parl. com. an argvment delivered by patricke darcy esqvire , by the expresse orders of the commons-house of the parliament of ireland ; at a conference with a comittee of the lords house , in the dyning roome of the castle of dublin , 9. die iunij 1641. upon certaine questions propounded to the iudges of ireland in full parliament ; and upon the answers of the said iudges to the said questions . and in the conclusion , a declaration of the commons house upon the said questions . the qvestions . questions , vvherein the house of commons humbly desired , that the house of the lords would be pleased to require the iudges to deliuer their resolutions . in asmuch as the subjects of this kingdome , are free , loyall , and dutifull subjects to his most excellent majesty their naturall liege , lord & king ; and to be governed only by the common lawes of england , & statutes of force in this kingdome , in the same manner & forme , as his majesties subjects of the kingdome of england , are and ought to be governed , by the said common lawes , and statutes of force in that kingdome ; which of right the subjects of this kingdome doe challenge , and make their protestation to be their birth-right , and best inheritance ; yet , in asmuch as the unlawfull actions and proceedings of some of his majesties subjects , & ministers of iustice of late yeares , introduced and practised in this kingdome , did tend , to the infringing and violation of the lawes , liberties , and freedome , of the said subjects of this kingdome , contrary to his majesties royall and pious intentions . therfore the knights , citizens and burgesses in parliament assembled , not for any doubt , or ambiguity , which may be conceived , or thought of , for , or concerning the premisses , nor of the ensueing questions , but for manifestation and declaration of a cleere truth , and of the said lawes and statutes already planted , and for many ages past , setled in this kingdome . the said knights , citizens and burgesses , doe therefore pray the house of the lords may bee pleased to command the iudges of this kingdom ; forthwith , to declare in writing their resolutions of and unto the ensuing questions , and subscribe to the same . 1. whether the subjects of this kingdome be a free people , and to be governed , only , by the common lawes of england , and statutes of force in this kingdome ? 2. whether the iudges of this land doe take the oath of iudges , and if so , whether under pretext of any act of state , proclamation , writ , letter , or direction , under the great , or privie seale , or privie signet , or letter , or other commandment from the lord lieutenant , lord deputy , iustice , iustices , or other chiefe governor , or governors of this kingdome ; they , may hinder , stay , or delay , the suite of any subject , or his iudgment , or execution thereupon ; if so , in what case , and whether , if they doe hinder , stay or delay , such suite , iudgement or execution thereupon , what punishment doe they incurre for their deviation and transgression therein ? 3. whether the kings majesties privie councell , either with the chiefe governor , or governors of this kingdome , or without him or them be a place of iudicature , by the common lawes , and wherein ; causes betweene partie and partie , for debts , trespasses , accompts , possession , or title of land , or any of them may be heard and determined , and of what civill causes they have iurisdiction , and by what law , and of what force is their order or decree in such cases , or any of them ? 4. the like of the chiefe governors alone . 5. whether grants of monopolies be warranted by the law , and of what , and in what cases , and how , and where , and by whom are the pretended transgressors against such grants punishable , and whether by fine , mutillation of members , imprisonment , losse and forfeiture of goods or otherwise , and which of them ? 6. in what cases the lord lieutenant , lord deputy , or other chiefe governor , or governors , of this kingdome , and councell ; may punish by fine , imprisonment , mutillation of members , pillorie , or otherwise , and whether they may sentence any to such , the same , or the like punishment for infringing the comands of , or concerning any proclamations , or monopolies , and what punishment doe they incurre that vote for the same ? 7. of what force is an act of state , or proclamation , in this kingdome , to bind the libertie , goods , possession , or inheritance of the natives thereof , whether they or any of them can alter the cōmon law , or the infringers of them loose their goods , chattells , or leases , or forfeite the same , by infringing any such act of state , proclamation , or both , and what punishment doe the sworne iudges of the law that are privy councellors incurre that vote , for such acts , and execution thereof ? 8. are the subjects of this kingdome subject to the marshall law , and whether any man in time of peace , no enemy being in the field with banners displaied , can be sentenced to death , if so , by whom , and in what cases , if not , what punishment doe they incurre , that in time of peace execute marshall law ? 9. whether voluntary oathes taken freely before arbitrators for affirmance , or disaffirmance of any thing , or the true performance of any thing be punishable in the castle chamber , or in any other court , and why , and wherefore ? 10. why , and by what law , or by what rule of policie is it that none is admitted to reducement of fines , and other penaltie in the castle chamber , or councell-table , untill he confesse the offence for which he is censured , when as revera he might be innocent thereof , though suborned prooffes or circumstance might induce a censure ? 11. whether the iudges of the kings bench , or any other iudges of gaole delivery , or of any other court , and by what law doe , or can deny the copies of indictments of felony , or treason , to the parties accused contrary to the lawes ? 12. what power hath the barons of the court of exchequer ; to raise the respite of homage , arbitrarily , to what rate they please , to what value they may raise it , by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the fees , when as escuadge is the same , for great and small fees , and are proportionable by parliament ? 13. whether it be censurable in the subjects of this kingdome , to repaire unto england , to appeale to his majestie for redresse of injuries , or for other lawfull occasions , if so , why , and in what condition of persons , and by what law ? 14. whether deanes or other dignitaries of cathedrall churches be properly , and de mero jure donative by the king , and not elective or collative , if so , why & by what law , & whether the confirmation of a deane de facto of the bishops grant be good & valid in law or no , if not by what law ? 15. whether the issuing of quo-warrantoes out of the kings bench , or exchequer , against burroughes that anciently and recently sent burgesses to the parliament , to shew cause why they sent burgesses to the parliament , be legall , or if not , what punishment ought to be inflicted upon those , that are , or hath been the occasioners , procurers , and iudges of , and in such quo-warrantoes ? 16. by what law are iurors that give verdict according to their conscience , and are the sole iudges , of the fact , censured in the castle-chamber , in great fines , and sometimes pillored with losse of eares , & boared through the tongue , and marked sometimes in the forehead , with a hot iron , and other like infamous punishment ? 17. by what law are men censurable in the castle-chamber , with the mutillation of members , or any other brand of infamy , and in what causes , and what punishment in each case there is due without respect of the qualitie of the person or persons ? 18. whether in the censures in the castle-chamber regard be to be had to the words of the great charter ( viz ) salvo contenemento , & c ? 19. whether if one that steales a sheepe , or commit any other felony , & after flyeth the course of iustice , or lyeth in woods or mountaines upon his keeping , be a traytor , if not , whether a proclamation can make him so ? 20. vvhether the testimony or evidence of rebels , traytors , protected theeves , or other infamous persons , be good evidence in law to bee pressed upon the tryalls of men for their lives , or whether the iudge or iurors ought to be iudge of the matter in fact ? 21. by what law are fayres and markets to be held in capite , when no other expresse tenure be mentioned in his majesties letter-pattents , or grants of the same fayres and markets , although the rent or yearely summe be reserved thereout . copia vera . extract . per phil. fern . cleric . parl. com. the answer and declaration of the ivdges , vnto the questions transmitted from the honorable house of commons unto the lords spirituall and temporall in parliament assembled , whereunto they desired their lordships , to require the said iudges answers in writing forthwith . may 25. 1641. in all humblenesse the said iudges doe desire , to represent unto your lordships , the great sence of griefe that they apprehend out of their feare , that they are falne from that good opinion , which they desire to retayne with your lordships and the said house of commons in that ( notwithstanding their humble petition and reasons to the contrary exhibited in writing , and declared in this most honorable house ) your lordships have over-ruled them , and often commanded their answers unto the said questions , although they have informed your lordships , and still with assurance doe averre , that no president in any age can be shewen that any iudges before them were required or commanded to give answer in writing , or otherwise unto such generall , or so many questions , in such a manner in parliament , or elsewhere , unlesse it were in that time of king richard the 2d . which they humbly conceive , is not to be drawne into example . and therefore they yet humbly supplicate your lordships so farre , to tender their profession and places , and their relation , to his majesties service , as to take into your serious considerations , the reasons that they have annexed to this their answer , before their answer be entred , or admitted , among the acts of this high court , and that if your lordships in your wisdomes , shall after thinke fit to give any copies of their answers , that for their iustification to the present and succeeding times your lordships will be pleased to require the clerke of this most honorable house , that no copies may be given of the said answers without the said reasons . 2. secondly the said iudges humbly desire your lordships to be pleased , to be informed , that the words in his majesties writs , by which they are commanded to attend in parliament , are , that the said iudges shal be present with the lords-iustices or other chiefe governor and your lordships , at the said parliament , called pro arduis & urgentibus regni negotijs super dictis negotijs tractaturi & consilium suum impensuri : and they desire your lordships to take into your consideration whether any advice may be required by your lorpships , from them , but concerning such particular matters , as are in treaty and agitation and judicially depending before your lordships , upon which your lordships may give a judgement , order , or sentence , to be recorded among the records and acts of this honorable house , and whether they may be commanded by your lordships , to subscribe their hands unto any opinion or advice they shall give upon any matters in debate before your lordships there , and whether your lordships can conceive any finall resolution upon the matters contayned in the said questions . 3. thirdly , although the said questions are but twenty two in number , yet they say , that they contayne at least fifty generall questions , many of them of severall matters , and of severall natures , within the resolution of which most of the great affaires of this kingdome , both for church and common-wealth , for late yeares may be included ; and therefore the said iudges do openly aforehand professe , that if any particular , that may have relation to any of those questions shall hereafter come judicially before them , and that eyther upon argument or debate ( which is the sive or fann of truth ) or discovery of any generall inconvenience , to the king or common-wealth in time ( which is the mother of truth ) or by further search or information , in any particular , they shall see cause , or receive satisfaction for it , they will not be concluded by any answer , they now give to any of these generall questions : but they will upon better ground and reason with their predecessors the iudges in all ages with holy fathers , councels , and parliaments , retract , and alter their opinion according to their conscience and knowledge , and the matter and circumstances of the cause as it shall appeare in judgement before them , it being most certayne that no generall case , may be so put , but a circumstance in the matter or manner may alter a resolution concerning the same . 4. fourthly , the succeeding iudges , and age notwithstanding any answer given by the now iudges , may be of another opinion then the now iudges are , without disparagment to themselves , or the now iudges , in regard that many particular circumstances , in many particular cases may fall out , that may alter the reason of the lawes , in such a case ; which could not be included or foreseene in a generall question , or answer thereunto : and therefore they desire your lordships to consider of what use such answers may be , to the present and future times . 5. fifthly , many of the said questions , as they are propounded ( as the said iudges humbly conceive ) doe concerne his majesty in a high degree , in his regall and prerogative power , in his government , in his revenue , in the iurisdiction of his courts , in his martiall affaires , and in his ministers of state , so that the said iudges considering their oathes , & the duty which by their places they owe unto his majesty humbly conceive they may not with safety give answer thereunto , without speciall licence from his majesty , and therefore they still humbly pray your lordships ( as formerly they did ) not to presse any answers from them untill his majesties princely pleasure , therein be signified . 6. sixtly , if the matters of these questions which ayme at some abuses of former times , were reduced into bils , they conceive it were the speedy way to have such a reformation which might bind the present times , and posteritie , and in such proceeding they ought and would most cheerefully contribute their opinions & best endevors , but in such a course ( as they apprehend it ) which points at punishment they have reason to bee sparing in giving any opinion further then the duty of their places doth command from them . 7. seventhly , although it may be conceived , that the answering of such and so many generall questions , by the now iudges may contribute some helpe to the reformation now so much desired , yet no man knoweth but this new president in propounding of such questions to iudges in succeeding times ( as the iudges & frame & constitution of the common-wealth may be ) may fall out to bee most prejudiciall to the state and common-wealth . 8. eightly , most of the matters in severall of the said questions , are already by your lordships and the said house of commons voted and represented to his majesty for grievances , and therefore no opinions of the iudges , under favour are needfull or to bee required thereunto , unlesse the same shall come in further agitation and discussion in this honorable house . 9. the iudges opinions are not usually called upon in parliament , but when upon debate great and difficulte points in law doe arise , where , this most honorable house doth thinke fit to command their opinions , but no resolutions , doe belong unto the said iudges , in parliament , but unto your lordships ; yet in the front and preamble of the said questions , the resolution of the said questions by the iudges , is forthwith desired , to be required by your lordships in writing , although the first question , viz. whether the subjects of this kingdome be a free people , &c. be positively , resolved by the preamble to the said questions , in which it is likewise declared that the said iudges answers thereunto , are not desired for any doubt or ambiguitie which may be conceived or thought of , for , or concerning the premisses , nor of the said questions ; but for manifestation and declaration of a cleere truth , and of the lawes and statutes already planted and setled in this kingdome : and they say that it is impossible , to make any manifestation or declaration of law , or statutes , which may hold or be usefull , upon such generall questions as most of these are , namely . by what law ? in what cases ? of what ? and which of them ? of what power ? of what force ? how ? where ? by whom ? why ? wherefore ? what punishment ? by what rule of policy ? in what condition of persons ? in regard that the next succeeding iudges may be of another opinion , and that a circumstance may alter the reason of this law , in many particular cases , which the wit of man is not able to forsee , or give a generall rule in . and they say that to give answers unto such questions as might give any satisfaction to your lordships , or to the honorable house of commons , would make up a great volume , and require more time than your lordships have afforded unto the said iudges , considering their great toyle , in their circuites the last short vacation , their other imployments in the common-wealth , and their daily attendance on your lordships in parliament , and the ordinary courts of iustice : and yet least they might seeme to come any way short in performance of that duty , which they confesse to be due unto your lordships , or be wanting in promoting or advancing the common-wealth , which they beleeve to be aymed at by the said questions , though it may seeme to drawe damage or prejudice upon their particulars , they doe in all humblenesse present unto your lordships , the ensuing answers unto the said questions which is as much as by their oathes or in the duty they owe unto his sacred majesty ( before his princely pleasure bee therein signified ) they can answer thereunto . 1. to the first , they answer , that the subjects of this kingdome are a free people and are , for the generall to bee governed onely by the common-lawes of england and statutes of force in this kingdome , yet they say that as in england , many statutes are growen obsolete , and out of use , and some particular ancient lawes ( aswell in criminall as in civill causes ) have beene changed by interpretation of the iudges there , as they found it most agreeable to the generall good of the common-wealth , and as the times did require it ; so , our predecessors the iudges of this kingdome as the necessitie of the times did move them , did declare the law in some particular cases otherwise than the same is practised in england , which the now iudges cannot alter , without apparent diminution of a great part of his majesties standing revenue , and opening a gap for the shaking and questioning of the estates of many of his majesties subjects , and the overthrowing of severall iudgements , orders , decrees , which depend thereupon . for example , if it be found by office of record , sufficient for forme that a man was killed in actuall rebellion , and at the time of his death was seized of lands , hereditaments , goods , or chattels , by the constant declaration of law , and practise of former times here , the crown was intituled to such lands , goods , and chattels , and many mens estates depend thereupon , and yet the law is not so taken in england , so if one or more commit felony , and then stand out upon his or their keeping , and hee or they will not submit themselves to be tryed by the law , but being in that state doe robbe or spoyle and terrifie his majesties people , wherby the countrie is disquieted , this by the constant opinion of our predecessors in this kingdome hath beene adjudged a leavying of warre within the statute 25. edw. 3. and so consequently treason . also by the common received opinion & practise in this kingdome , the vvife is to have a third of all the goods , chatels and credits of her husband ( the debts being payed ) although he dispose of all by his will from her : and yet the constant practise is otherwise in england , and other instances of that kind , might be made , so that the words ( onely ) must receive a benigne exposition before the first question can receive a generall answer , in the affirmative . secondly , many causes of great weight and consequence in this kingdome , are to bee decreed and ordered by equitie in the proper courts of equitie , and in course of state at the councell-board , and by particular customes , and contrary to law , for which the common-law and statutes of force in this kingdome give no remedie . thirdly , there are severall other lawes of force in england , and ireland so farre as they have been received , which though some would have to be part of the common-law of england , yet we find them particularly distinguished from it in our printed bookes in parliament rolles in england , as lex est consuetudo parliamenti , jura belli , ecclesiasticall or canon law in certaine cases , civill law in some cases not onely in ecclesiasticall courts , but in the courts of constable and marshall , and of the admiralty , and upon particular occasions , in the other courts lex mercatoria , &c. 2. to the second , they say that the iudges of this kingdome doe take the oath of iudges , which oath is specified amongst the statutes in 18. edw. 3. and is after explaned by the statute of 20. edw. 3. and that they may not stay , hinder , or delay the suite of any subject , or his judgement , or execution thereupon ( otherwise then according to the law and course of the court , where they sit ) under pretence of any act of state , proclamation , writ , letter , or direction under the great or privy seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputy , iustice , iustices , or other chiefe governor of this kingdome , most of which , doth appeare by their oath expressed in the said statutes , and the said statute of 2● . edw. 3. cap. 8. and the statute of 28. edw. 3. cap. 2. as to barons of the exchequer . and that as they know no punishment due to iudges , for their deviations & transgressions , without other aggravation ; so they know no punishment layd downe by any law against them for their deviations and transgressions , in hindering staying , or delaying of iustice , contrary to their said oath , other then what is declared in their said oath , and the statute of 20. edw. 3. 3. to the third , they say that it is part of their said oath , as iudges , that they shall not counsell or assent to any thing that may turne to the damage or disherison of our soveraigne lord the kings most excellent majestie , by any manner of way or colour . and that they shall give no advice or counsell to any man great or small in no cases , wherein the king is a party , and they shall doe and procure the profit of the king and his crowne , in all things where they may reasonably doe the same ; and that in the explanation of their said oathes , by the statute of 20. edw. 3 ▪ cap. 1. it is declared that they shall give no counsell to great men , nor small , in case where the king is party , or which doth or may touch the king in any point . and as your lordships have beene honorably pleased by an order of this honorable house , bearing date the first of march anno dom. 1641. annoque regni caroli decimo sexto to give way , that they should not be compelled to answer any part of those questions , which did concerne his majesties prerogatives or were against their oathes so they humbly represent unto your lordships , that they conceive that the answering of the particulars of this question , doth concerne both , for that the kings privie counsell as the question tearmes it , or the councell-board , is a court of his majesties high prerogative , where all proceedings are before him , and his counsell , or before his governor ( who doth immediately , to many purposes represent his majesties person ) and the counsell . and where the great affaires of state concerning his majesties honor , government , profit , and of great persons and causes concerning the common-wealth , which , may not conveniently be remedied by the ordinary rules of common-law , and many other causes have beene treated , of , and managed . and as his majesty is the fountayne of all iustice , with in his kingdomes and may grant cognizance of pleas unto his subjects , and corporations , and may by his commission authorize whom he shall thinke fit , to execute many branches of his authoritie , so they humbly conceive , it doth not stand with their oathes or duties of their places , who are but iudges of the ordinary courts of iustice , before his majesties pleasure signified in that behalfe , to search into the commissions or instructions of the chiefe governor and counsell , or to give any opinion concerning the limits , jurisdiction , orders , decrees , proceedings , or members of that high court , and that the king hath a prerogative for the hearing some of the matters in this question specified before his chiefe governor ; we beseech your lordships to cast your eyes on the statute of 28. h. 6. cap. 2. in this kingdome , where after m●●ters are directed to be sent to the ordinary courts , yet the kings prerogative is expressely saved , notwithstanding all which his gracious majesty ( for whom it is most proper ) hath of late beene pleased to limit the proceedings of that board by his instructions in print . 4. to the fourth , they answer as to the third . 5. to the fift they say that generally all grants of monopolies , whereby trading , manufacture , or commerce is restrayned , & the profit which should goe to many hindred & brought into a few hands , are against law , the liberty of the subject and the good of the common-wealth , though they carrie never so faire a pretence of reforming abuses , and that the pretended transgressors against such grants are not at all punishable by any rule of law , that they know of , and yet they say , that they conceive that his majestie , that is , the head and father of the common-wealth may restrayne the use and importation and exportation of certaine commodities , or confine the same into a few hands for a time where there may be likelyhood of his majesties profit , ( which is the profit of the common-wealth , ) and no apparent prejudice to the common-wealth doth appeare , and that when time shall discover such prejudice , then such restraints ought to cease ; so if a man by his owne invention at home , or travell , observation , or charge abroade doth introduce a new profitable , and usefull trade or profession into the common-wealth , in such cases his majesty may lawfully grant & licence the only making of such commoditie or teaching or using of such trade for a certayne time , and the transgressors against such warrantable grants , may be punished by payment of damages unto the patentee , in an ordinary course of iustice , or otherwise , as the nature of the offence and matter doth deserve ; and as the consequence and importance of the matter may be to the king , state , or common-wealth . and they say that the matter , manner , restrictions , limitations , reservations , and other clauses contayned in such grants or licences , and the commissions or proclamations , thereupon and undue execution thereof , and severall circumstances may make the same lawfull or unlawfull , whereof they are not able to give any certayne resolution ( before some particular commes in judgement before them ) neyther are they otherwise able to answer the generall in the particulars of the said question , of what , in what cases , how , where , and by whom , or which of them , wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne cases of monoplies , printed authorities , and written reports , and unto the statute of 21. ia. in england concerning monopolies , and the severall exceptions and limitations therein . 6. to the sixt , they say they can no otherwise answer then they have already in their answer to the third question , for the reasons therein setforth . 7. to the seventh , they say , that a proclamation or act of state cannot alter the common-law , and yet proclamations are acts of his majesties prerogative , and are , and alwayes have beene of great use , and that the contemners of such of them as are not against the law , are and by the constant practise of the star-chamber in england have beene punished , according the nature of the contempt , and course of the said court , and although acts of state , are not of force to bind the goods , possessions , or inheritance of the subject , yet they have beene of great use for the setling of the estates of very many subjects in this kingdome , as may appeare in the report of the case of irish gavelkind in print . and further to that question they cannot answer for the reasons in their answer unto the third question set forth . 8. to the eight , they say , that they know no ordinary rule of law , by which the subjects of this kingdome are made subject to marshall-law in time of peace , and that they find the use thereof in time of peace , in england , complayned off , in the petition of right , exhibited to his majestie in the third yeare of his raigne , and that they conceive the granting of authority and commission for execution thereof , is derived out of his majesties regall and prerogative power , for suppressing of suddaine and great insolencies and insurrections , among armies , or multitudes of armed men lawfully or unlawfully convented together , ( the right use wherof in all times hath beene found most necessary in this kingdome ) and further to that question they cannot answer , for that as they conceive , it doth concerne his majesties regall power , and that the answering of the other part of the question doth properly belong to another profession , whereof they have no cognizance . 9. to the ninth they say , that as the taking of any oath before any but such iudges or persons as have power to give or demaund an oath , for decision of controversies , is by most divin● in most cases counted to be a rash oath , and so an offence against god , within the third commandement , so the prescribing and demaunding of a set oath by any that cannot derive power so to doe from the crowne ( where the fountaine of iustice under god doth reside ) is an offence against the law of the land , and as for voluntary and extra judiciall oathes , although freely taken before arbitrators or others , they say ( as this kingdome is composed in many particulars , as the nature & consequence of the cause , or the quality of the person who taketh , or before whom the same is taken , may concerne the common-wealth , or the members therof ) such taking of such oathes or proceeding or grounding on such oath in deciding of controversies , according to the severall circumstances , that may occurre therein , or the prejudice , it may introduce to the common-wealth , may be punishable by the common-law , or ( if it grow unto an height or generall inconvenience to the common-wealth or members thereof ) in the castle-chamber ; for though such an oath be voluntary , yet in most cases , it is received by him , that doth intend to ground his iudgment thereon , and after the oath is taken , the arbitrator , or he that intends to yeeld faith to the party , that tooke the oath , doth examine him upon one or more questions , upon the said oath , unto the answer whereof , hee doth give faith and assent , trusting on the said oath . and whereas oathes by gods institution were chiefly allowed to bee taken before lawfull magistrates , for ending of controversies , yet common experience doth teach in this kingdome , that oftentimes orders and acts grounded on such voluntary oathes , beget strife , and suits ; and commonly such orders when they come to bee measured by rules of law , or equitie in the kings courts become voyde , after much expence of time , and charge that we say nothing of that , that thereby many causes proper to the kings courts are drawn ad aliud examen , and thereby the kings justice and courts often defrauded and declined . 10. to the tenth , they say , that they are not iudges of rules of policie , but of law , and that they know no certayne rule of law , concerning reducement of fines . the same being matters of his majesties own meere grace , after a man is censured for any offence : and that they know no law , that none shall be admitted to reducement of his fines or other penalties in the courts in the question specified , untill he confesse the fact for which he was censured . but forasmuch as the admittance to a reducement after conviction , for an offence , is matter of grace and not iustice ; it hath beene the constant course of these courts both here and in england , for cleering of his majesties justice ( where the partie will not goe about to cleere himselfe , by reversall of the censure or decree ) not to admit him to that grace , untill he hath confessed the justnesse , of the sentence pronounced by the court against him . and that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence , according to which , they give sentence against him or them , in terrorem after which , when the partie shall make the weaknesse of his estate appeare , or that the court is otherwise ascerteyned , that they doe of course proportion the censure , or penaltie , having regard to his estate . 11. to the eleventh , they say , that neither the iudges of the kings bench ( as they informe us , that are of that court ) or iustices of gaole delivery , or of any other court , doe or can by any law they know , deny the copies of indictments , of felony , or treason , to the partie only accused as by the said question is demanded . 12. to the twelfth , they say , that where lands are holden of the king by the knights service , in capite , the tenant by the strict course of law ought in person to doe his homage to the king , and untill he hath done his homage , the ancient course of the exchequer hath beene & yet is , to issue processe of distringas out of the second remembrance office , to distrayne the tenants ad faciendum homagium or pro homagio suo respectuādo , upon which processe , the shiriffes returneth issues . and if the tenant doe not therupon appeare and compound with the king , to give a fine for respite of homage , then the issues are forfeyted to the king for his contempt , but if he appeare , then the court of exchequer doth agree with him to respite his homage for a small fine , wherein they regulate themselves ▪ under the rate expressed and set downe in england by vertue of a privie scale in the 15. yeare of queene elizabeth , whereby the rates are particularly set downe , according to the yearely value of the lands , which rates are confirmed by act of parliament in 1. iacob . regis cap. 26. in england , before which time there was not any such certayntie , but the same rested in the discretion of the court by the rule of common-law , and so it doth at this day in ireland , howbeit we conceive that the court of exchequer here doe well to regulate their discretions by those rates in england , and rather to be under then to exceede the same , which the barons there doe , as they doe informe us , that are iudges of the other courts . 13. to the 13. they say , that they know no rule of law or statute , by which it should be cēsurable , in the subjects of this kingdome to repayre into england , to appeale unto his majesty for redresse of injuries , or for other their lawfull occasions , unles they be prohibited by his majesties writ , or proclamation or , other his command . but they find that by the statute of 5. rich. 2. the passage of the subject out of the realme , is prohibited without speciall licence , excepting noblemen , & others in the said statute specially excepted , & some inference to that purpose may be made upon the statute of 25. hen 6 cap. 2. in this kingdome . 14. to the 14. they say , that some deanries & dignities , not deanes or dignitaries ( as the question propounds it ) are properly , & de mero jure donative by the king , some elective , & some collative , according to the first foundation & usuage of such churches , & they humbly desire that they may not be required to give any further answer to this question ; for that it may concerne many mens estates which may come judcially in question before them 15. to the 15. they say , that they conceive that where priviledges are claymed by any body politicke , or other , the kings counsell may exhibite à quo-warranto to cause the parties clayming such priviledges , to shew by what warrant they clayme the same , & that the court cannot hinder the issuing of processe at the instance of the kings atturney , or hinder the kings atturney to exhibite such informations . but when the case shall upon the proceedings be brought to judgment , then & not before the court is to take notice and give judg●ment , upon the merite & circūstances of the cause , as upon due consideration shal be conceived to be according to law , in which case the iudges or the kings atturney ( as they conceive ) ought not to be punished by any ordinary rule of law or statute that they know . but for the particular case of quo-warranto for that it hath beene a great question in this present parliament , & so concernes the highest court of justice in this kingdome , & also concernes two other of his majesties courts of justice , & therin his majesties prerogative in those courts , they say that they cannot safely deliver any opinion therein , before it comes judicially before them , and that they heare it argued and debated by learned counsell on both sides . 16. to the sixteenth they say , that although the iurors be sole iudges of the matter of fact , yet the iudges of the court are iudges of the validitie of the evidence , and of the matters of law arising out of the same , wherein the iury ought to be guided by them . and if the iury in any criminall cause betweene the king and party , give their verdict contrary to cleere and apparent evidence delivered in court , they have beene constantly , and still ought to be censured in the star-chamber in england , and castle-chamber here , for this misdemeanor in perverting the right course of justice , in such fines and other punishment as the merites & circumstances of the cause doth deserve , according to the course of the said courts , for that their consciences ought to be directed by the evidence , and not to bee misguided by their wills or affections . and if the iury know any matter of fact , which may eyther better or blemish their evidence , they may take advantage thereof , but they ought to discover the same to the iudges . and they say that this proceeding in the court of castle-chamber is out of the same grounds , that writs of attaint are against a iury that gives a false verdict , in a court of record at the common-law betwixt partie and partie , which false verdict being found by a iury of twenty foure , notwithstanding that the first iurie were iudges of the fact , yet that infamous judgement was pronounced against the first iury , which is next or rather worse then judgment to death , and did lay a perpetuall brand of perjury upon them , for which reason it was anciently called the villanous judgement , and they say that the law to direct the punishment for such offences is the course of the said court , which is a law as to that purpose , & the statute of 3. henr. 7. cap. 1. and other statutes in force in this kingdome . 17. to the seventeenth , they say , they can answer no otherwise , then they have in their answer to the next precedent question . 18. to the eighteenth , they say , that in a legall construction the statute of magna charta in which the words salvo contenemento are mentioned is only to be understood of amerciaments & not of fines , yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons . 19. to the nineteenth , they say , that if one doth steale a sheepe or commit any other felony , and after flyeth the course of justice , or lyeth in woods , or mountaynes upon his keeping , yet doth he not thereby become a traytor , neyther doth a proclamation make him so , the chiefe use whereof in such a case is , to invite the partie so standing out to submit himselfe to justice , or to forewarne others of the danger they may runne into by keeping him company , or giving him mayntenance , and reliefe whereby he may the rather submit to iustice . 20. to the twentieth , they say , that the testimony of rebels , or traytors under protection of theeves , or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life , and so is his majesties printed instructions , as to persons condemned , or under protectiō , yet the testimony of such persons not condemned & being fortified with other concurring proofe , or apparant circumstances may be pressed upon any tryall , and for discovering of their fellowes , abetors , or relievers as the circumstances may offer themselves in their examinations , especially if before they confesse themselves guiltie of the offence in imitation of the approver at the common-law , whereof no certaine rule may be given . and it neede not be made a question here , whether the iurors or iudges ought to be iudges of the matter of fact , it being positively layd downe in the sixteenth question that they are . and though their false verdict doth convince , or not convince the prisoner , yet they may be questioned , and punished for a false verdict , as in their answer to the sixteenth is already declared . 21. to the twentie one , they say , that that question is now judicially depending , and hath beene already solemnely argued in his majesties court of vvardes , in which court their assistance for declaration of the law therein is already required . and therefore they humbly desire they may not be compelled to give any opinion touching that point untill it be resolved there . 22. to the twentie two , they say , that they doe conceive , that there is no matter of law contayned in the said question , yet for the further satisfaction of your lordships , they say that upon view of an act of state , bearing date at his majesties castle of dublin the twenty fourth of december 1636. grounded upon his majesties letters of the fift of iuly then last past , it appeared unto them that foure shillings in the pound , as of his majesties free gift and reward , out of the first payment of the increase of rent reserved to his majestie , was allowed to the iudges that were commissioners and attended that service . and we humbly conceive that the receiving of that foure shillings in the pound , of his majesties bountie , stands well with the integrity of a iudge , and those iudges did informe them that they did not avoyde any letters-patents upon the commission of defective titles but received such to compound as submitted for the strengthning of their defective patents and titles , and such as would stand upon the validity of their grants were left to the tryall at law . and that the compositions made after the said grants of the foure shillings in the pound were made according to rules and rates agreed upon by all the commissioners before his majesties said letters or the said act of state , and not otherwise . george shurley . hu. cressy . vvilliam hilton . edw. bolton . iames barry . sa. mayars . iam. donellan copia vera . extract per phil ▪ percivall . mr darcies reply to the answer of the ivdges . my lords , his majesties most humble and faithfull subjects , the knights , citizens , and burgesses in parliament assembled representing the whole commons of this realme calling to mind the late invasion made upon the lawes and just rights , have heretofore presented unto the lords house certaine questions of great weight and moment , to the end their lordships might thereunto require the answer of the iudges in writing , which being long sithence accordingly commaunded by their lordships , the iudges have of late delivered in , a writing to the lords house by them styled , an answer unto the said questions , which being sent to the commons house to be taken into consideration , and the same & all the partes thereof being weighed in the ballance of the grave judgement , and knowledge of the said house of commons , the said answer was upon question voted to be ( minus pondus habens ) and not to merit the name of an answer . this my lords being the occasion of this conference , the house of commons appointed me , a feeble organ , to utter part of their sense of the style and manner of this writing , and to declare part of those reasons which satisfied their judgements ; that , the said writing was short and insufficient ( o utinam ) that were all . my lords , the iudges had divers moneths time to answer plaine questions ( plaine , i speake of those who would be plaine ) the house of commons a few dayes onely to consider of that intricate writing . my powers are weake , and the infirmities of my body are visible , both in part occasioned by an high hand , i should therefore faint under the weight of this burden ; but that the taske is not great , i doe represent to your lordships by way of rehearseall onely some partes of those reasons and authorities which were gathered and ripened to my hands by the house of commons . my lords in matters of importance the course hath beene ancient and not yet deserted , to begin with prologues or exordiums , the worke is not mine i will onely ( in nomine sanctissimae trinitatis ) make my entrance upon the matter of this conference which is a generall concernment ; a great concernment of the whole kingdome : and to that purpose i will declare the causes and reasons which moved or rather inforced the house of commons , for to disgest and propound the said questions , and to make it appeare that none of them is ( idea platonica ) none of them circumventing , and all depending now or of late . to mantayne the preamble to questions ( viz. ) that this nation ought to bee governed by the common-lawes of england , that the great charter and many other beneficiall statutes of england are here of force , by reasoning or argumentation , were to alter a foundation layd 460. yeares past , and to shake a stately building thereon erected by the providence and industrie of all the ensuing times and ages : this is so unanswerable a truth and a principle so cleere , that it proveth all , it needeth not to be proved or reasoned . reasons why the questions were propounded . the reason for the first was , the late introduction of an arbitrary government in many cases by some ministers of estate contrary to the lawes and statutes aforesaid , a government contrary to the just freedome & property of his majesties people , in their lives , estates and liberties , whereas the subjects governed by the lawes of england are and ought to be free subjects , the late disuse therefore of those lawes in execution , and the measure of justice being squared by the lesbian line of uncertaintie , as contrary to the lawes aforesaid , as any ( oppositum is in objecto ) produced the first question , and i hope not improperly . the reason for the second in part ariseth out of the oath of a iudge 18. edw. 3. to be found among the printed statutes polton fol. 144. and out of the statutes of 20. edw. 3. cap. 1. 2. & 3. polton fol. 145. this oath is comprehensive and extends to the iudges , the barons of the exchequer , and iustices of gaole-delivery , and their associats . this great and sacred oath contaynes severall branches . first , well & lawfully to serve the king & his people in the office of a iustice . secondly , not to counsell or consent unto any thing tending to the kings damage or disinherison . thirdly , to warne the king of his damage when hee knowes it , fourthly , to doe equall iustice to rich and poore , &c. without respect of persons . fiftly , to receive no reward . sixtly , to take no fee of any other then the king . seventhly , to commit such as breake the peace in the face of iustice . eightly , not to mantayne any suite . ninthly , not to deny iustice notwithstanding the kings letters or commandements , and in that case to certifie the king of the truth . tenthly , by reasonable wages to procure the profits of the crowne . eleventhly , if he be found in default , in any the matters aforesaid , to bee in the kings mercie , body , lands , and goods . the second reason principally moveth from the following particulars ; in the kings bench the major-part of the iudges denyed his majesties writ of prohibition to the late court called the high commission , in a cause meerely temporall . the foure courts of iustice durst not proceede in any cause depending before the chiefe governor , or at the counsell-board upon paper petitions , or rather voyde petitions , these paper-petitions being the oblique lines aforesaid , grave iudges of the law were commonly assistants , and more commonly referrees in the proceedings upon these paper-petitions , in what causes ? in all causes proper for the cognizance of the common-law , and determinable by writs of right , and petitions of right , and so to the most inferior action , the like of the courts of equitie , whether this be lawfully to serve the king and his people , or whether the king , was at losse by the non-prosecuting of the causes aforesaid in their proper orbes , by originall writs , which might afford the king a lawfull revenue , and likewise by the losse of fines , and amerciaments , naturall to actions at the common-law , or whether the losse aforesaid was made knowne to his majestie , or who consented to the kings damage therein , or whether this be a denyall of justice ? to deferre it upon paper orders or commaunds , be conformable to that oath , i will pretermit ; yet your lordships may even in this mist discerne a cleere ground for the second question . the motive which in part stirred the third , and fourth questions , was the infinity of civill causes , of all natures without exception of persons , without limitation of time proceeded in , ordered , decreed , and determined upon paper-petitions at counsell-board , & by the chiefe governor alone ; the commons of this kingdome observing the iudges of the law who were counsellors of estate , to have agreed and signed unto such orders , the iudges of the foure courts , and iustices of assize in all the partes of the kingdome to bee referrees upon such proceedings , wherby these new devises , were become so notorious , that as all men heavily groaned under them , so no man could bee ignorant of them . by the colour of proclamations more & more frequent , and of the orders , and acts of state at counsell-board , which were in a manner infinite , and other proceedings mentioned in these questions , these effects were produced ; first imprisonment , close imprisonment , of such numbers , that a great defeate in a battle could hardly fill more gaoles and prisons , then by these meanes were surcharged in ireland , secondly by seizures made by crewes of catchpoles and caterpillers , his majesties leige people lost their goods , as if lost in a battaile , nay worse without hope of ransome ; thirdly possessions were altered , and that so often , and so many , that more possessions were lost by these courses in a few yeares , then in all the courts of iustice in ireland in an age or two ; the fourth effect was this , after liberty was taken away , propertie altered , and possession lost , by the wayes aforesaid , that was not sufficient , the subject must be pillored , papered , stigmatized , and the image of god so defaced with indignities , that his life became a continuing death the worse of punishments , in these feates were advising , and concurring some grave and learned iudges of the land , who were counsellors of estate , as by their signatures may appeare . the house of commons finding as yet no warrant of president , nor countenance of example in the law of england , to beare up the courses aforesaid , have drawne the said questions from the effects aforesaid . my lords , the liberty , estate in lands or goods , the person of the subject ; nay his honor and spirit being invaded , altered , and debased in manner aforesaid , there remayned yet one thing , his life : see how this is brought into play , nothing must escape , were not the gates of ianus shut up , was not the kings peace universall in his three kingdomes , when a peere of this realme , a counsellor of the kings , a great officer of state was sentenced to be shot to death in a court marshall , what the cause was , what defence was permitted , what time given , and what losse sustayned ? i submit to your lordships , as therein most neerely concerned , were not others actually executed by marshall law , at such time as the kings iustice in his courts of law , was not to be avoyded by any person whatsoever . this was in part the ground of the eight question . this question is plaine , a late introduced practise here , contrary to former use , and no appearing president to warrant such prosecution for a voluntary oath , and the great benefit , and quiet accrewed to his majesties people by arbiterments conceived by consent of parties , hath in part occasioned this question . heretofore this confession was not required , for the iustnesse of the iudgements was then able enough to beare them up , and if the judgement in some case had beene otherwise , what force can the confession of a delinquent add to a iudiciall act , this is part of the reason for this question . a complaint exhibited in the house of commons touching the denyall of the copy of a record , which the complaynant undertooke to iustifie , in part raised this question . in king iames his time , by an order conceived in the court of exchequer upon great debate , and warranted by ancient presidents the respite of homage was reduced to a certaintie , viz. two shillings sixe pence sterling ▪ for a mannor yearly , and so for townes , and other portions of land , this course was alwayes held untill now of late the respite is arbitrarily raysed as appeares by the second remembrances certificate , viz. i finde that anciently before the beginning of king iames his raigne , every mannor payed three shillings foure pence irish per annum , & every towne-land , twentie pence irish per ànnum , as a fine for respite of homage , but cannot finde any order or warrant for it , untill the fifth yeare of the said kings raigne , and there , in easter terme 1607. i finde an order entred directing what homage every man should pay a copy whereof you have already from mee , the preamble of which orders sheweth that , that matter had beene long depending in the court undecided , which induceth me , to beleeve that there was no former president or order in it . about three yeares after , the freeholders of the countie of antrim as it should seeme , finding this rate to be too heavy for them , they petitioned to the lord chichester then lord deputy for reliefe therein , & i finde his lordships opinion to the court thus recorded . i know much of the petitioners . lands is waste , and no part of it improved by any manner of husbandrie , other then in grazing of cattle , and in sowing of little oates . and the proprietors of the land , to be for the most part very poore , and needie , and the two children of neale mac hugh to be yet under age ; wherefore i thinke it fit that the court of exchequer should consider thereof , and rate the respite of homage accordingly for a time , untill the countie be better inhabited , and these men made to understand that it is not an imposition , but a lawfull duty and payment due to his majestie . this is my advise and opinion for the present , xxx . die april . 1610. arthur chichester . vpon this the said freeholders were admitted to pay but foure pence irish every twogh of land , it consisting of sixteene towne-lands , and according to this rate they still payed untill the yeare 1630. and then the court taking notice of the unequalitie of it , made this order , 5. febr. 1630. after this i finde that all his majesties tenants did conforme themselves to the said order of 1607. untill easter terme 1637. in which terme this ensuing order was made which is the last that i can finde recorded in my office . henry vvarren . i finde by the payments made in the late queen elizabeths time that the rates of homage payed was according to the said order of 1607. henr. vvarren . divers were actually imprisoned and long kept in close restraint , for none other cause then in dutifull manner & be seeming termes to have made knowne their particular complaints to his sacred majesty imprisonment of this kind was frequent , therefore it is not improper to demaund by what law it was done . many have lost great estates and possessions by orders of the counsel-bord , although the deanes elected , or actuall deanes confirmed their estates , if no donation from the crown were found upon record to the confirming deane , and this after that by verdict at the common-law the deanrie was found to be elective , this question therefore is not improper . after such time as this parliament was agreed upon at counsell-board to bee summoned ; some persons having prepared bloudy and destroying bils to be past as lawes , and intending to defeate by act of parliament very many of his majesties faithfull subjects of this kingdome of their estates and liberties , and having obtayned some undue elections by threates or intreaties , & mistrusting that all should run cleere before them , have caused twenty foure corporations to bee seized , upon the returne of the first summons in severall quowarrantees procured by sir richard osbalston late atturney generall to shew cause why they sent burgesses to the parliament , the said corporations having formerly sent burgesses to the parliament , even to the last parliament , by meanes whereof the said corporations sent no burgesses in the beginning of this parliament , from this act being done in a legall court against the high court of parliament sprung this question , which my lords is of consequence , if parliaments be so as without question they are . the faith which the common-law giveth to verdicts , the iurors being iudges of the fact , the late usage of that great court growing to the punishment of iurors , and others in greater numbers by heavier fines , and more shamefull punishments without respect to estate , age , sex or qualitie then was or can be observed in all precedent times , and the just sense thereof , moved the house of commons to propound these questions . my lords , a poore fellow stole or was accused to have stolne a sheepe , feare , or guilt , or both brought him to the mountaynes , another relieved him , the reliever was executed as a traytor , and after the principall submits to tryall and judgment , and was acquited , this example my lords i hope may warrant the question . the testimony of such infamous persons , have brought men of qualitie to their tryall , for their lives and being acquited the iurors being of very good ranke , were heavily censured in the castle-chamber , aswell by fines surmounting their abilities , as by most reprochfull punishments , upon these acts , the question is grounded . there being no warrant in the printed law , or otherwise for ought yet appearing for to make this a tenure in capite , the constant course of the court of wards taking it to be no tenure in capite , since the erection of that court untill trinitie terme 1639. it was then and not before certified a tenure in capite by the then atturney of that court , who said that the iudges concurred with him in that opinion , by which meanes counsell did not then argue , and the next terme after were denyed to be heard , ne aliquid contra responsum prudentum this being done in the court of wards , the question did spring from thence . the two and twentieth question was not yet agitated in the house of commons nor brought thither , therefore my lords that may be deferred to a further conference ; by this which i have opened being the smaller part of those weighty reasons delivered unto mee by the house of commons , yet the best i can for the present remember , i hope your lordships are satisfied that those questions were not intrapping , fayned , or circumventing , or phantazies , as formerly i touched . in the next place i will labour to give your lordships a more cleere satisfaction , that those questions grounded upon sufficient and apparant reasons , and causes doe deserve cleare and satisfactorie answers , and to remove all doubts , the questions i will no more call questions , i will humbly style them causes of weight and consequence , wherein the lords and commons of this realme on the behalfe of themselves and their posteritie in after times , are plaintifes , and only delinquents of an high nature are defendants , in this high court of parliament . it is not unworthy your lordships consideration ; to whom the questions were put , i answer unto the iudges of the land , who are , and sure i am ought to be first etate graves , secondly , eruditione praestantes , thirdly , usu rerum prudentes , fourthly , publica authoritate constituti . the persons unto whom being thus qualified , the place where , is most considerable , it is the high court of parliament , the iudges are called thither ( circa ardua & urgentia negotia regni ) of the whole kingdome what to doe ( quod personaliter intersint , cum rege ac cum caeteris de consilio suo super dictis negotijs tractaturi consiliumque impensuri . ) therefore they are not called thither to bee ciphers in augurisme , or tell clockes , no , those great causes are mentioned in their writ , and upon that great oath , they are to give faithfull counsell and make direct answers to your lordships in all things wherein ( ardua & urgentia regni ) are concerned , and whether ? that concernment doe comprehend the matters aforesaid . i doe humbly offer to your lordships great consideration most of the matters included in those questions are solemnely voted in both houses as grievances , as may appeare by the petition of remonstrance , the iudges could not be ignorant of this , and do take notice of the same in their preamble . my lords , in the third place no man is more unwilling to discover the nakednesse of my fathers , if any be , then i am , yet the question being not whether the arke should be rescued from the philistines , but whether it should be preserved against the negligence of some ophni and phines in their hands that have the custodie of it , therefore i must obey , and as i am commanded i will offer unto your lordships , how the preamble and answers of the iudges might bee sufficient , and wherein they are both defective and dangerous . the iudges in the first reason of their preamble , insist much upon the want of president in this kinde , onely one president in the raigne of king richard the seconds time , which they pray may not be drawne into example . my lords , this reason requires a more cleere explanation which wee hope shall be demaunded in due time . it urgeth us to this just protestation , that before the best flower in his majesties royall garland should wither , wee shall be ready to water the same with showers of our bloud , even to the last drop in his majesties service , and with our lives and substance will mantayne the just prerogative of our gracious lord king charles and his posteritie , whom wee pray god to flourish on earth over us and ours , untill all flesh bee convoked before the last great tribunall ; yet my lords that president might be spared by the iudges , of this no more for the present , i will not exasperate , had they pleased , more naturall presidents might be stood upon , and easily found , and even in that ill remembred president ; if the iudges in richard the seconds time had made direct and lawfull answers , they had escaped punishment and prevented many inconveniences which ensued . my lords , if presidents be necessarie , of many i will enumerate a few , deutronomy cap. 17 vers. 8. si difficile & ambiguum , &c. almightie god directs us the way to truth , deutronom . cap. 32. vers. 7. interroga patrem tuum , &c. the romanes sent to greece for a declaration of their lawes , in causes like to happen , tit. liv. decad. 3. fol. 45. g. lancelotus de ecclesiasticis constitutionibus tit. 3. canonum alij sunt decreta concjliorum , alij statut ' îalij dicta sanctorum , rottoman de iure civili tit. 4. praetorum dicta & responsa prudentum , which cannot bee without questions , venerable bede lib. 1. cap. 27. s. augustine demaunded generall questions ; m. sleiden super eadmerum , fol. 171. vvilliam the conqueror did call to the iudges , to declare and compile edgars lawes , and s. edwards lawes , which were buried , and forgotten , by the interruption of the danish governement . in the time of king henr. 3. certaine knights of ireland , desired resolutions in england concerning coparcenerie and received resolutions according to the lawes of england , and this in parliament , as appeares in the statute called statut . de hiber . 14. henr. 3. in the printed booke . ordinationes factae de statut ' terr' hiberniae at large in the roll of 7. edw. 2. parte prima , memb. 3. & 18. rot ' claus. anno 2. edw. 3. membr. 17. rex concedit quod ad primum parliamentum omnes hiberni qui volue●int legibus utantur angliae sine cartis inde fiendis . rot. claus. anno 5. edw. 3. parte prima membr. 25. the same law in case of wardships . ordinationes pro regimine hiberniae 5. edw. 3. pat ' membr. 25. & 35. edw. 3. parte prima , memb 9. which consilium ought to bee understood of the parliament as hereafter i will declare . ordinatio facta de ministris regis in hibernia claus. 18. edw. 3. parte secunda memb. 9. & 17. & ann. 20 edw. 3. parte prima in dorso , & anno 25. edward . 3. membr. 30. my lords , i have not yet learned how sillogismes can be made , or answers cathegoricall , without propositions . i am as ignorant after what manner ordinances or reformation could bee made without questions or propositions . it may be objected that the word quere or question is new , that word was nothing strange in edward the thirds time , rot. parliament , 21. edw. 3. num . 41. the commons in parliament prayed that it may be inquired how , it comes to passe that the king hath no benefit of his land of ireland , considering hee had more there then any of his ancestors , may it not be as lawfull to inquire in this parliament , wherefore the king is in debt , and yet his people here gave him more supplies then to any of his ancestors , or wherefore his lawes are not observed , i find no difference . in the printed yeare booke 2. rich. 3. fol. 9. the king propounded severall questions to the iudges in the star-chamber in cases not then depending . their second reason , is fully answered to the first , and for more cleare satisfaction , the words of the writ , which bring them hither , are viz. to give counsell circa ardua & urgentia negotia regni , the matters now in agitation are maxime ardua , maxime urgentia . the yeare bookes of law doe prove provisiones & ordinationes , and no cause is said to bee depending f. n. b. 32. d. 39. edw. 3. 7. b. thorp . the lords being assembled can make ordinances as strong as a statute , by the opinion of that iudge such ordinances cannot be avoyded , but in parliament , an act or statute may bee avoyded or repealed in parliament . where they say that the questions though in number but twenty two , yet they include fifty two questions , that all the affaires of church & common-wealth may bee included in the resolution thereof , and that they will not bee concluded by their answers to the same . my lords , the house of commons made the questions so many as they are for the more cleare explanation of their candid intentions , and not for difficultie , whereas they might reduce them to fewer , but to the end the answers might be the more punctuall , and satisfactorie unto positive points , and knowne law , and the custody of the law , the great treasure of the land , being committed by his sacred majesty to their trust , to the end they should declare how ? and after what manner , they issued and dispensed that treasure , and discharged that great trust ? and not to bee bound by their resolutions in parliament ; for iudges are and ought to bee bound by resolutions in parliament , and not parliaments by them . to their fourth reason , what succeeding ages will doe , we do well hope , they will not do amisse , that no occasion shall bee administred hereafter which may inforce the house of commons to propound the like questions . that by reason the kings prerogative and the concernment of his other interests they cannot answer without his majesties especiall direction , considering the duties of their places and their oathes . my lords , it is manifest that by their oathes they are bound to interprete the lawes truely betweene the king and his people , and betweene partie and partie , and if in any case granted , it cannot be denyed when the common-wealth desires a declaration of the law in certaine points , wherein they conceive their just liberties to have beene invaded , least under colour of prerogative which the parliament holds to be sacred , some ministers may presume ( as of late they have endevored ) to destroy the peoples just liberties . in the ordinarie courts of iustice , the iudges upon oath are bound to afford the subject iustice against the king , and all others , and are appointed by his majesty for that purpose , all writs are in his majesties name in the kings bench , the pleas are styled coram rege , letters-patents and writs originall are teste me ipso , the king is therefore present in parliament , being the highest tribunall , where in truely he sits in the exaltation of royaltie and greatnesse . therefore the commands of all his ordinary courts are the commands of the king , much more commands in parliament , where his presence is more apparant and essentiall then in all other courts of this kingdome . it appeares copiously by the great charter , and by constant practise of all parliaments since that time , that all courts and iudges were regulated by parliaments , as for the kings prerogative , or revenue , the iudges cannot bee ignorant , but the parliament is and ever hath beene the best mantayner of his just prerogatives , the best overseer of his revenue , which if it fall short , they onely are able and willing to supply . it is true , that the abuses of former times might be reformed for the future by bils to bee past as statutes yet that is away about , and we may not loose the possession of our lawes , and just liberties nor by new statutes admitt impunitie , or give countenance to past offences , statutes of this kind sufficient were already enacted and passed in former ages . the declaration of a knowne law , and the manifestation of wholesome statutes already established well may helpe the common-wealth , for the present , but cannot in any probabilitie fall out hereafter to be prejudiciall to the state or commonwealth , and there is no president or example of any such prejudice . it is confessed that most of the matters contayned in the questions are alreadie voted for grievances in both houses , and that very justly , but how the law is therein , remaynes yet to be declared , as to this present parliament , which i hope in due time shall bee declared , according to law and justice , as in many parliaments before the same or the like hath beene often done . where they doe againe insist upon the want of president , and withall that in the preamble to the questions , the protestation cleares the law . this word president strikes close unto us , i have answered it before by presidents , yet some more presidents i will offer as often as they speake the word president 7. 8. elizabeth dy. fol. 241. b. placit. 49. the kings atturney demanded the opinion of the iudges , 9. elizab. dy. 261. placit. 28 , casus hiber . where the iudges of england signed their opinions to questions propounded by the iudges of ireland , 11. eliz. dy. fol. 282. b , plac . 26. casus hiber . 19. & 20. elizab. dy. 360. the case of arraignement of a peere , the like 13. càroli by all the iudges of england ; the earle of ormonds case , and yet in none of these cases the matter was depending before them . notwithstanding the protestation may cleare the law , yet in all precedent ages , lawes cleare in themselves , for their greater honor and countenance , they have beene declared and enacted in parliament . the law declared by magna charta was cleare before , yet it was enacted 9. henr. 3. and in thirty parliaments since cooke 8. 19. b. primes case the statute of praerog . regis . and the statute of 25. edw. 3. of treasons , is declarative and so are many other statutes . adam eate the forbidden fruite , cain killed his brother , god demaunded whether this was done , yet he could not be ignorant of the fact . the first article in the civill and canon law courts , is , whether there is such a law all this is done for illustrations sake . my lords , the ground of the questions , and the preamble to the writing styled an answer , kept me so long , that i feare much to have trespassed upon your patience ; and yet the importance of the cause urgeth me to importune your lordships favour a little further . this question is short and yet comprehensive , that we are a free people , is confessed to my hands , to that part of the answer i doe not except , the second part of the question is , whether wee are to be governed by the lawes of england and statutes of force in ireland onely . first though i need not prove it , yet it is cleare we ought to bee so governed , matth. paris . historia maiori fol , 121. sir iohn davis discovery of ireland fol. 100. king henry the second held a parliament at lismore in ireland , in which parliament leges & consuetudines angliae fuerunt gratanter acceptae by the representative body of this whole nation , magna charta and other beneficiall statutes of england , are here in the red booke of the exchequer in , and since king iohns time , and so is gervasius tilberiensis of the course and officers of the exchequer , in the white booke of the exchequer of ireland , leges & consuetudines angliae received in ireland by parliament & otherwise this appeares , 9. iohn . pat membr. 2. 1. henr. 3. pat . memb. 13. 10. hen. 3. pat . membr. 4. 12. henr. 3. claus. membr. 8. by which words , and by the constant practise of all ages since , this kingdome was governed , and ought to be so by the law of england , as the law of the land , which law as it was alwayes here received , consists of three parts . first , the common-law . secondly , the generall customes of england . thirdly , statutes here received . the common-law that is cleared already , customes as tenant by the curtesie . inne-keepers to be responsible for things within their houses , or the like when we speake of a custome in the law , it must be intended a generall custome over the realme , and no particular custome . and this appeares by the yeare bookes of 37. henr. 6. fol. 5. 21. henr. 7. 17. 18. particular customes , as gavelki●d , boreugh , english-tenant right , or the like are not to be intended when wee speake generally of custome , and these customes are warranted by the common-law of england , being not contrary to the same , but praeter legem , so there may bee and are particular customes here praeter legem , and yet not contrary to law , as in many corporations and countries , so the wives third of goods is good in england , by the custome of many counties and places , f. n. b. 122. 7. edward . 4. 21. 40. edw. 3. 38. 17. edw 2. f. detinue 58. therefore it is not contrary to law , that such a custome is here , over all the kingdome , and yet if any man aske the question ; by what law wee are governed , there is no proper answer , other then by the law of england . and for the statutes of england generall statutes were received in this kingdome , some at one time , some at another , and all generall statutes by poynings act , anno 10. henr. 7. but no other statute , or new introducting law , untill the same be first received and enacted in parliament in this kingdome , and this may appeare by two declarative statutes the one 10. henr. 4. the other 29. of henr. 6. the law of england as it is the best humane law , so it is a noble and sociable law , and for the more cleere discerning of the truth and equall administration of iustice it referres many causes to their genuyn and naturall proceedings as maritime causes to the court of admiralty , co. institutes 260. 361. stamford . 57. b. co. 5. 106. 107 , constables case , and there the proceeding is by the civill law , co 8 47. b. matters beyond the seas are determined in the court of constable and marshall ; cookes institutes 391. b. matters of latin the law referres to grammarians , com. fol. 122. matters meerely ecclesiasticall to bee tryed and determined in the proper courts coke 7. 43 b 8. co. 68. 5. co. 57. 1. r. 3. 4. matters of merchandize to marchants , 34. henr. 8. dy , 52 & 54. many other cases upon this learning are to be found ; co. 9. fol. 30. 31. 32. strat. marclads case , yet in all these and the like cases the tryall and determination thereof , are bounded and controuled by the rules of the common-law , they are as rivers which are necessary to run through the land , to helpe the inhabitants thereof , but if they overflow the bankes , the bankes are made higher and stronger to suppresse their violent current , so in all the cases aforesaid , and the like . the common-law hath limitted the proceedings , if they exceede their bounds , witnesse the prohibitions in all our bookes , and the statutes of provision and praemunire , and cases there upon in many ages , by which it is manifest that the supreame , and governing law , are the common-law , common-customes , and statutes of the realme , and the rest , but ministers and servants unto it , brevia remediana are onely by the common-law , mandatoria , may bee in the said other cases , 7. co. calvins case dy. 176. so that the answer as to the words ( in the generall ) is short and ought to be positive . as to the courtes of equitie they have beene ancient in england , and the courts of eqnity here , ought to bee guided by the constant proceedings in england in ages past , i meane not , by this or that chancellor but by that naturall and just equity in the courts here observed . this equitie is of absolute necessitie in many cases ( ipsae etenim leges capiunt ut jure regantur ) and therefore is included within the law of the land , and not to bee devided from it , as out of this writing it may bee inferred . as to the case of killing in rebellion to operate an attaynder , if this bee no law in england it cannot bee law here , vide dame-hales case com . 263. a. 8. edw. 3. 20. fitz dower 106. cromptons iurisdiction fol. 84. a. by which it may be urged , that it is an attaynder for that hee prevented the judgement of law by fighting against the crowne , and by his killing therein , which ensued his unlawfull and trayterous act , but i observe to the contrary , the books of 7. henr. 4. 32 b. & cook . 4. 57. sadlers case . i doe confesse that in england statutes may be obsolete as the statute of vvilliam butler , by which the heire may have an action of wast , rastall 5. 21. all the books are contrary , and so is the statute of merton of disparagment as to an action to bee brought for the same , so are some antiquated lawes , 40. edw. 3. 42. 42. ass . 8. & 25. one present & aiding to murder was accessary , but now is principall 4. hen. 7. 18. com. 99. & 100. a vicar could not anciently have an action against a parson , 40. edw. 3. 28. finchden the law is now otherwise , and so of an entry upon a feoffee with warranty sit fol. 23. 24. in the case of disparagement , give the reason , because that those statutes and lawes were never used , therfore obsolete , our case is nothing like , for life , liberty , and propertie being in debate , but an obsolete law is no law in force . therefore the answer as to that is defective . as to the case of a fellon upon his keeping and terrifying of the people , i conceive the answer is uncertaine and dangerous , if such a fellon raise an armed power against the crowne and terrifie that way no doubt this is treason within the statute of 25. edw. 3. or the equity of it , and by the statute of 10. hen. 7. cap. 13. in ireland , statuto hiberniae fol. 62. but if such terrifying be without raising armes , or by committing the same or the like fellonies , it is no more then the case of purse-takers by force in the high wayes of england , many a man was terrified thereby in salisbury-plaine , and yet no treason ; and if there be no statute here , which is not in england , to make it treason certainly it cannot be treason ; since the conquest , writ of error have been brought for to reverse iudgments given in the kings bench here , in the court of kings bench in england , no course here which is contrary to law , can alter the law of england , therefore , to what purpose is a declaration of iudges here , contrary to the law there . this writ of error is a writ framed in the register and appeares by common experience . i will offer a notable case which i saw adjudged in the kings bench in england , pasc . 18. iacobi for stafford against stafford in a writ of error for to reverse a iudgment given in the kings bench in ireland when sir vvilliam iones was chiefe iustice here , in an ejectione firme , for that in the declaration there was contained among other things ducentas acras montani . sir vvilliam iones being in england , affirmed the course here , to have been so , and vouched many notable presidents , thereupon an order was conceived that sir iames ley , sir humphry vvinch , and sir iohn denham knights , who were formerly chiefe iustices here should certifie the course , who made report that the course in ireland was and ought to be , in writts originall and iudiciall to be directed by the register , in pleading to be guided by the books of entries , and thereupon the iudgement was reversed , and the chiefe iustice mountague said , that if they did not proceed in ireland according to law , they should learne it , and so i conclude that the answer to the first question , is insufficient . as touching the second question , which is concerning the oath which this iudges doe take , the question is whether the iudges of the land doe take the oath of iudges ? and if so , &c. the answer of the iudges to the first part is , that they confesse they take the oath of iudges , which is specified amongst the statutes in 1● . edw. 3. and 20. edward . 3 as i said before , and that they may not stay , hinder , or delay the suite of any subject or his judgement or execution there upon , otherwise then according to the law and course of the court , where they sit under pretence of any act of state , proclamation , writ , letter , or direction under the great seale , or privie seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputy iustice , iustices or other , chiefe governor of this kingdome , most of which doth appeare by their oath expressed , expressed in the said statutes , and the statute of 2. edw. 3. c. 8. and the statute of 20. edw. 3. as to the barons of the exchequer , and as they know no punishments due to the iudges for their deviations and transgressions without other aggravation , so they know no punishment layd downe by any law against them for their deviations and transgressions , in hindering , staying , or delaying of iustice , contrary to their said oath other then what is declared in their said oath , and the statute of 20. edw. 3. i conceive the answer is not a full and perfect answer to the question . for where the question is whether the iudges under pretext of any act of state , proclamation , writ , letter or direction under the great , or privie seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputie , iustice , or iustices , or other chiefe governor or governors of this kingdome , they may hinder , stay , or delay the suite of any subject , or his judgement , or execution thereupon ; if so , in what cases , and whether , if they doe hinder , stay , or delay such suite , judgement , or execution thereupon , what punishment doe they incurre for their deviations and transgressions therein . to this they answer , that they may not stay , hinder , or delay the suite of any subject , or his judgement , or execution therupon otherwise then according to the law , & course of the court , where they sit , under pretence of any act of state , proclamation , writ , letter , or direction , under the great or privie seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputy , iustice , or iustices , or other chiefe governor , or governors of this kingdome , whereas they ought to have expressed the particular of this exception , for by that clause , it is supposed , or may be strongly implyed , that in some cases they may hinder , stay , or delay the suite of any subject , or his judgement , or execution therupon , under pretext of any act of state , proclamation , letter , or direction under the great or privie seale , or privie signet , or other commandement from the lord lieutenant , lord deputy , iustice , iustices , or other chiefe governor , or governors of this kingdome , which they ought to have expressely layd downe , the question being if they may stay , hinder , or delay the suite of any subject upon any such pretext , then to set forth in what cases , which ought to be particularly answered unto . in the next place the question is , if they doe stay , hinder , or delay such suite , judgement , or execution therupon , then to set forth what punishment they doe incurre for their deviation , or transgression therein . vnto this they answer , they know no punishment due to the iudges for their deviation , and transgressions without other aggravation , this i conceive is an implication , that there is a punishment where there is matter of aggravation , and therefore it ought to be expressed what matter of aggravation they intend the same to be . they further say , they know no punishment : layd downe by any law against them , for their deviations or transgressions in hindering , staying or delaying of iustice contrary to their oath , other then what is declared in their said oath , and the statute of ●0 . edw. 3. this i conceive not to bee a full answer , in respect the punishment layd downe in that oath , is in a generality ; viz. that the iudges so offending contrary to their oath , are to be at the kings will of body lands and goods , which they should declare , and expresse how farre that punishment extendeth in their bodies , lands , and goods . whether imprisonment of their bodies , or in their lives , and whether in forfeiture of their lands goods , or how else ? the breach of an oath is a very high offence , and the higher it is , that the matter it doth concerne is the greater , and therefore it is much , secundum subjectam materiam . it is to be considered to whom the oath of a iudge is made , and what matter it doth concerne . to the first the oath is made to god , the king and to the common-wealth . for the matter , it is concerning the true and equall administration and distribution of iustice to the people . if the iudge doe offend contrary to his oath , he commits breach of the trust reposed in him by the king , besides the violation of his oath . looke upon trust betweene common persons . a man makes a lease for yeares , the lessee makes a scoffment , this is a forfeyture of his estate by the common-law , by reason of the breach of trust . lessee for life in an action brought against him prayes in ayde of a stranger : this is a forfeyture of his estate . a quid iuris clamat brought against lessee for life , he claymes a fee , which is found against him , this is a forfeyture of his estate . so much for breach of trust . to come unto a false verdict given by a iurie , which is a breach of their oath , they being sworne ad veritatem dicendam . for this false verdict an attaynt lyeth at common law against the petit iury . the judgement at the common-law in an attaynt importeth eight grievous punishments . 1. quod amittat liberam legem in perpetuum . 2. quod forisfaciat omnia bona & catalla sua , 3. quod terrae & tenementa in manus domini regis capiantur , 4. quod uxores & liberi extradomus suas eijoiantur , 5. quod domus suae prostrentur , 6. quod arbores suae extirpentur , 7. quod prata sua arentur , 8 & quod corpora sua carceri mancipentur . so odious is perjurie in the eye of the common-law . it followeth therefore that the breach of the oath of a iudge , materia considerata , in regard it tends to the subversion of iustice , is an offence of an higher nature deserving a farre greater punishment in his body , lands , and goods , as i conceive . this question is very short and as plaine , it is no more then whether the councell-table be a iudicatorie , in civill causes betweene subject and subject for lands , goods , or chattels , and by what law . the answer is wholly ad aliud . but it is answered fully by the great charter capit . 11. 9. henr. 3. communia placita non sequantur curiam nostram , common-pleas , which are the pleas in question shall not follow the kings court , againe cap. 29. no freeman shall be taken , imprisoned , put off his freehold , liberties & free customes , &c. other then by the lawfull judgement of his peeres , as by the law of the land . this great assurance in the 38. chap. of the same statute was granted for the king and his successors to all his people , and was confirmed in thirty parliaments as i said before cooke . 8. the princes case . by the statute of 5. edw. 3. cap. 9. 25. edw. 3. cap. 4. 28. edw. ● ; cap. ● . 42. edw. 3. cap. 1 & ● . the great charter is againe confirmed , and not onely so but proceedings contrary to the same , before the king or his counsell are declared voyde . the king is to observe and mantayne the law , the iudge by his oath , 18. edward . ● . is bound to doe right betweene the king and his people , and that right strengthens the kings prerogative , presidents or practise contrary to so many statutes are of no use , in many ages past encroachments were made upon these just liberties , which were alwayes removed by parliaments . yet i must confesse that of all antiquity some pleas have beene held in the kings royall house , as in the court held by the marshall of the kings houshold for things arising within the verge , fleta , lib. 2. cap. 2. but when that court exceeds its due bounds , declaratory statutes were alwayes made to meete them as mischiefes in the common-wealth , when they medled with land or the like , as appeares by the statute of articule super chartam 28. edw. 1. 15. r. 2. cap. 12. all these statutes my lords , and many more to this purpose are undenyably of force in this kingdome , and none of them can be with impunitie said to be obsolete or antiquated . my lords , they raise another doubt , viz that as the king may grant cognizance of pleas to corporations , or the like , and therefore to the councell-table ; if this neede an answer , i will answer it thus , that a grant of cognizance never was , neyther can it be otherwise , then to proceede per legem terrae , or per judicium parium , & in the same manner as courts doe proceede at common-law , and not upon paper petitions , or summary hearings such cognizance was never granted , the king is at losse by such proceedings , he looseth fines upon originals , he looseth amerciaments , and fines incident to every judgement at common-law , as i said before , i he subject undergoeth an inconvenience . first the law will decline , writs originall will by disuse be forgotten , clerks who should draw them discouraged to learne , legall proceedings out of doores being the foundation of the law , and in stead of regular and orderly proceeding , rudenesse and barbarisme introduced , the subject will loose the benefit of his attaynte and writ of error ; by which the law might relieve him against false verdicts or erroneous judgments he will loose the benefit of his warranty , which might repaire a purchaser , in case his acquired purchase were not good . whereas if a iudge or iuror doe wrong , the remedy is at hand , but against the lord deputy and councell , who will seeke for it ? therefore the countenance of this iudicature in common-pleas , is against the kings prerogative , and the peoples just rights : both which the iudges ought to maintaine , and likewise against the intent of your lordships order . my lords , as in england , the said severall statutes were made to prevent the inconveniences aforesaid , one good statute was made in ireland , 28. henr. 6. cap. 2. irish statut . fol. 15. which directs matters of interest to be determined in the common-pleas , matters of the crowne in the kings-bench , matters of equity in the chancery : this law , if there were no more , regulates the proceedings in this kingdome . the iudges insist upon the words in the end of that statute , viz. saving the kings prerogative . my lords , this was stood upon at the late great tryall in england , and easily answered , for by the common-law , the king may by his prerogative , sue in any of the foure courts , for his particular interest , although it be contrary to the nature of that court , for he may sue à quare impedit in the kings bench , & the like , yet so as the said suite be bounded by the rules of law , i will demaund a question whether the king may bring à quare impedit in paper , at the councell-board , the kings now atturney , i am confident will answer me , he cannot ▪ the word salvo or saving is in construction of law of a thing in esse or existente , and no creative word , 26. ass . pla . 66. and cannot in the kings case be construed to overthrow the law , nor many expresse , and positive acts of parliament . my lords , in all humblenesse and dutie i will and must acknowledge his majesties sacred and lawfull prerogative , whereof the king himselfe is the best expositor , in his answer to the petition of right , poltons stat . fol. 1433. he declares that his prerogative is to defend the peoples libertie , and the peoples libertie strenghtens the kings prerogative , the answer was a kingly answer , and ( more ●ajorum ) this is conformable to the great charter , and to all the statutes before recited . the government of england being the best in the world , was not onely royall , but also politicke , some other princes like cain , nemrod , esau , and the like hunters of men , subverted lawes ; the kings of england maintayned them , and did never assume the power to change or alter the lawes , as appeares by fortescue that grave and learned lord chancellor in king henry the sixts time de laudibus legum angliae cap. 9. fol. 25. and in the same booke cap. 36. fol. 84. nor to take his peoples goods , nor to lay taxe , nor tallage upon them , other then by their free consent in parliament , this appeares by the booke cases in 1● . henr. 4. fol. 14. 15. 16. the great case of the awlnage of london , and in the case of toll-travers and toll-through 14. henr. 4. 9 37. henr. 6. 27. 8. henr. 6. 19 all agreeing , nor to alter the nature of land as by converting land at common-law to gavelkind , or borrough english or e conuerso ; as to the estate , otherwise as to the person of the king ple. com. the lord barclyes case fol. 246. 247. yet it is most true that the law of the land gives the king many naturall and great prerogatives , farre beyond all other men , as may appeare in the said case fol. 243. but not to doe wrong to any subject , com. 246. the person of the king is too sacred to doe a wrong in the intention of law ; if any wrongs bee done his minister● are authors and not the king ; and the kings just prerogatives , by the kings royall assent in parliament were bounded , limited and qualified , by severall acts of parliament , as if tenant in cap. did alien at common-law without licence , this was a forfeyture of his estate plo : com. case of mines fol. 332. the statutes of 2. edw. 3. cap ▪ 14. makes this only finable , & the statute of magna charta cap. 21. takes away the kings prerogative , for cutting woodes where he pleased : many other cases there are upon this learning . by this great iustice and bounty of the kings of england , the kings grew still greater and more permanent . the people became free and wealthy , no king so great as a king of rich & free people . if the councell-table may retaine cognizance of causes cōtrary to the law , & to so many acts of parliament , why may they not avoyde all acts of parliament aswell ? this no man will affirme , nor they intend . my lords , two objections seeme to stand in my way . first , the multitude of presidents countenancing the cognizance of the councell-board in the matter aforesaid , some in ancient times , and of late in great clusters & throngs . secondly , that in book cases it appeares , the iudges of law did take advice in their iudgements with the kings counsell , as 40 ed. 3. fol. 34. 39. ass . placito primo 35. edw. 3. fol. 35. 19. edw. 3. fitz . iudgement . 174. in answer to the first , as for the multitude of presidents ( hinc illae lachrymae ) there is our griefe , i find in our bookes that presidents against law , doe never bind , there is no downe right mischiefe . but a president may be called upon , to beare it up ; iudicandum est legibus non exemplis , cooke , 4. fol. 33. mit●ons case cooke 11. fol. 75. magdalen colledges case cooke . 4. fol. 94. slades case , multitudo errantium non parit errori patrocinium . i answer to the second that in those yeare books of edw. 3. it is true , that the iudges appealed to the kings councell for advice in law , but who gave the iudgment ? the iudges , and what iudgement ? a legall iudgement , and no paper or arbitrary iudgment . if this objection were materiall , i might answer further , that the councell here may bee understood , the great councell ( viz. ) the parliament ( propter excellentiam ) vide cooke , 6. 19. 20. gregories case . by the stat . of 4. edw. cap. 3. 14. and 36. edw. 3. c. 10. rastall , fol. 316. parliaments were then to be held once a yeare , the booke of 39. edw. 3. fol. 35. in the case of a formedon ; may well warrant this explanation of those books , the bishops , abbots , earles and barons mentioned in the said books , may be well taken to be the lords house , which might sit by adjournements in those times of frequent parliaments , my lords , i kept you too long upon this question , i will be as short in the next . and so i conclude the answer as to this point is no answer , and whether the matters therein comprized be of dangerous consequence i submit to your lordships . if the chiefe governor and councell of this kingdome cannot heare or determine the causes aforesaid , surely the chiefe governor alone cannot doe it , all i have said to the third i doe apply to this question , together with one president worthy your observation in 25. edw. 1. claus. m. 20. where i have an authenticke coppie ( viz. ) claus. vicessimo quinto eaw primi m. 20. rex dilecto & fideli suo iohanni vvogan . iusticiario suo hiberniae salutem ; cum intellexerimus quod vos comunia placita quae totis temporibus retroactis , per brevia originalia de cancellaria nostra hiberniae placitari , deberent , & consueverunt , per billas & petitiones vacuas jam de novo coram vobis deduci facitis , & etiam terminari , per quod , feodum sigilli nostri quo utimur in hibernia , & fines pro breuibus dandis ad alia commoda quae nobis inde solent accrescere di versimode subtrabuntur , in nostri & incolarum partium , illarum , damnum non modicum , & gravamen . nolentes igitur hujusmodi novitates fieri per quas nobis damna gravia , poterunt evenire , vobis mandamus quod si ita est , tunc aliqua placita comunia , quae per brevia originalia de cancellaria nostra praedict● de jure & consuetudine , hucusque visitata habent terminari per petitiones & billas coram vobis deduci , placitari , aut terminari de caetero nullatenus praesumatis , per quod vobis imputari debeat aut possit novum , incommodum , in hac parte . teste rege apud shestoniam , xxiij . die martij . convenit cum recorda , vvilliam collet . your lordships , may see that in edward the firsts time the king took notice , first , that the said petitions were void . secondly , that his revenues were thereby impaired . thirdly , that it was against the custome of the land of ireland . fourthly , that it was to the grievance of the people of ireland . fifthly , he comanded iohn vvogan , then chiefe governor , not to presume to deale in the like proceedings thereafter ; i marvaile not a little , wherefore the iudges in our time after so many acts of parliament since 25. edw. 1. should make any doubt or question to answer this cleerly . my lords , i humbly desire not to be misconstrued in the debate of this question , my meaning is not to pry into his majesties just prerogatives . qui enim majestatem scrutatur principis , corruet spelndore ejus , the old saying in english is as good , he that hewes a block above his head , the chipps will fall into his eyes . the question warrants no such scrutinie , i may not officiously search into it . the question is onely , whether grants made of monopolies to a subject be good in law , and whether by pretext of such grants the kings free people may loose their goods by seisures , or may be fined , imprisoned , pillored , & papered , &c. those things have been done and acted in many cases , where the monopolites were iudges and parties , in which case if an act of parliament did erect such a iudicatorie , it were void , as against naturall iustice , cooke 8. 118. a doctor bonhams case ; i speake to that thing , that odious thing , monopolie , which in law is detestable cooke 11. 53. b. the taylors of ipswich case , by which any subject is hindered to exercise his lawfull trade , or lawfully to acquire his living , and the condition of a bond being to restraine any man from his trade , the bond is void in law , 2 hen. 5. 5. b. in this case the iudge hull swoare ( par dieu ) if hee who tooke this bond , were present he would fine him to the king , and commit him to prison , by which case i observe , that the consent of the partie cannot make it good ; that a patent of any such monopolies is a grievance against the common wealth , and consequently voyd in law , the case was of cards which is observable cook 11. 85. 86. 87 &c. & darcy & allens case there is a condition tacite or expresse in every grant of the kings , ita quod patriamagis solito non gravetur vel oneretur , vid. fitz. n. br . fol. 222. cod. ad quod damnum . this learning is so cleare as to monopolies thus stated , that i will dwell no longer upon them , as i hope they may no longer reside among us . the answer is insufficient ; as in the case of a new invention of manufactory or the like ; in such cases a patent may be good they say for certaine yeares , whereas the yeares ought to be competent , ten thousand years are certaine , but not competent , and they who offend are to give damage in an ordinary court of iustice to the patentee , unto which they adde ( or otherwise ) oh , this arbitrary word ) the like arbitrary advice of others ( i feare ) hath occasioned this question . where monopolies were clearly voyde , punishments were inflicted upon . the honest man , and the monopolist escaped , they answer nothing to the losse of goods , heavy fines , mutillation of members , the before recited statutes direct cleare answers to these particulars . my lords , the statute of magna charta cap. 30. ( quod omnes mercatores tam indigenae quam alienigenae ) have free passage sine omnibus malis tolnetis , & consuetudinibus ex anglia & in anglia , nisiantea publicè prohibiti fuerunt , the subsequent statutes declaring many oppressions and grievances occasioned by restraints in trade and commerce made trade free for victuall and merchandises , and in them nisi , &c. is omitted as the statute of 9. edw. 3. c. 1. 25. edw. 3. cap. 2. 2. rich. 2. cap. 1. 11. rich. 2. cap. 7. 16. rich. 2. cap. 1. these statutes give double damage to the party and the offender to be imprisoned . the statute of 21. iacob , c. 3. in england , against monopolies , in the exception of new inventions limits the time to a reasonable number of yeares , viz. fourteene yeares or under , whether the heavie punishments aforesaid , can be in this case especially the private interest of a subject being therein onely or mainly concerned , magna charta cap. 29. gives me a cleere answer and satisfactory ; nullus liber homo capiatur , imprisonetur , disseifietur vel aliquo modo destruatur , &c. nisi per judicium parium & legem terrae , if this be law or a lawfull statute as no doubt it is , the question is soone answered . my lords , by this time you know , how the innocent was actually punished , in these cases ; now it is time , and not improper to shew how the nocent ought to be punished , who tooke unlawfull monopolies , & seised the subjects goods by violence , imprisoned , fined , mutilated , and destroyed the kings people , and caused all the evils that depended therevpon ; for that , my lords , it is not within my charge , yet i hope it shall not remaine unrepresented by the house of commons , nor unremembred by your lordships in due time . to this the iudges answered nothing , but with a reference to their answer to the third , whereas in truth this comprehends two matters besides of great weight and consideration , first whereas the third question concerneth the decision at counsell-board of matters of interest onely , this question is of matters of punishment , in an extrajudiciall way , secondly this question demands knowledge of the punishment due to such as vote for such extrajudiciall punishments , to these mayne matters there is no answer at all . my lords , the statutes and authorities before mentioned upon the third and fourth questions against the determination at councell-board , or before the chiefe governor in matters of interest , do cleare this businesse , as to the punishments depending upon those interests , although not è converso . and as for such as voted , and acted therein if they besworne iudges of the law , the before recited oath of 18. edw. 3. declares enough . his majesty at his coronation is bound by oath to execute justice to his people according to the lawes , this great trust the king commits to his iudges , who take a great oath to discharge this trust , if they fayle therein . sir vvilliam thorp in edward the 3. time for breaking this oath in poore things , was indicted thus . quia praedictus vvillielmus thorp habuit sacramentum domini regis erga populum suum , ad custodiendum , illud fregit malitiosè , falsé & rebellitèr , quantum in ipso fuit , this extends to a iudge onely who tooke that oath , & habuit leges terrae ad custodiendum . the trust betweene the king and his people is threefold ; first as betweene soveraigne and subject , secondly , as betweene a father and his children , under pater patriae ; thirdly , as betweene husband and wife , this trust is comprehensive of the whole body politicke , and for any magistrate or private person to advise , or contrive the breach of this trust in any part , is of all things in this world the most dangerous ( vae homini illi . ) first , i doe conceive that an act of state or proclamation cannot alter the common-law , nor restrayne the old , nor introduce a new law , and that the same hath no power , or force to bind the goods lands , possessions , or inheritance of the subject , but that the infringing thereof is onely a contempt , which may bee punished in the person of the delinquent , where the proclamation is consonant , and agreeable to the lawes , and statutes of the kingdome , or for the publicke good , and not against law , and not otherwise punishable . i do conceive , that a proclamation is a branch of the kings prerogative , and that the same is usefull and necessary in some cases , where it is not against the law , wherein the publicke weale is interested , or concerned , but that any clause therein , contayning forfeyture of the goods , lands , or inheritance of the subjects , is meerely voyde ; for otherwise this inconvenience will ensue , that proclamations or acts of state , may bee made in all cases , and in all matters to bind the libertie , goods , and lands of the subjects ; and then the courts of iustice that have flourished for so many ages may be shut up , for want of use of the law , or execution thereof , and there is no case where an offence is committed against law , but the law will find out away to punish the delinquent . the king by his proclamation , may inhibit his subject that he shall not goe beyond sea out of this realme without his licence , and this without any writt , or other commandement to his subject . for perchance the king may not finde his subject , or know where he is , and if the subject will goe out of the kings realmes contrary to this proclamation , this is a contempt , and he shall be fined to the king for the same , as saith fitz-herbert , that such a proclamation can prohibit the kings subjects to repayre into england , for england is our mother , and though the sea divide us , that sea is the kings , and therefore it is not pars extra in this sense . it seemes by the lord chauncellor egertons argument upon the case of post nati , that a proclamation cannot binde the goods , lands , or inheritance of the subjects . a provision was made in haec verba , promissum est coram domino rege archiepiscopus , comitibus , & baronibus quod nulla assis ultimae praesentationis de caetero capiatur de ecclesiasticis praebendatis , nec de praebendis , but i doe not finde any forfeyture or penaltie upon the libertie , goods , or lands of him that would bring an assize of daren , presentment for a prebendary . i doe finde that a provision was made in haec verba promissum est à consilio regis quod nullus de potestate regis franciae respondeat in anglia antequam anglici de jure suo in terra regis franciae , &c. yet by that provision no forfeyture upon the lands , or goods of him who sued a frenchman in england at that time . it is true that a custome may bee contrary to the law , and yet allowable , because that it may have a lawfull commencement , and continuall usage hath given it the force of a law , consuetudo ex certa rationabili causa vsitata privat communem legem , but no proclamation or act of state may alter law . for example sake , at common-law a proclamation cannot make lands devisable , which are not devisable by the law , nor alter the course of descent . the king by his letters-patents cannot doe the same , nor grant lands to bee ancient demesne at this day , nor make lands to be descendible according the course of gavelkind or borrough english , unlesse that the custome of the place doth warrant the same , nor gavelkind land to be descendible according the course of law , à fortiori an act of state , or proclamation , which i hold to bee of lesse force then the kings patent under the great seale cannot doe it . and in the case of irish gavelkind , it is not the proclamation , or act of state , that did abolish , or alter it , but the very custome was held to be unreasonable and repugnant to law . if an act of state bee made , that none within the kingdome shall make cards but iohn at stile , this act is voyde , for the king himselfe , cannot grant a patent under his great seale , to any one man for the sole feazance of cards ; so it is of all proclamations or acts of state , that are to the prejudice of trafficke , trade or merchant affaires , or for raysing of monopolies , or against the freedome and libertie of the subjects , or the publicke good , as i said before . also if proclamations , or acts of state may alter the law , or bind the libertie , goods , or lands of the subjects , then will acts of parliaments bee to no purpose , which doe represent the whole body of the kingdome , and are commonly for creating of good and wholesome lawes . therefore i conceive , that all proclamations made against law , are absolutely voyde , and that the infringers thereof ought not to loose , or forfeyte their liberty , goods , or lands . and for the punishment of such iudges that vote herein , i referre to the sixt , they deny to answer to this question . this answer is generall and dangerous withall , it is generall , viz. they know no ordinary rule of law for it , they ought to declare the law against it , the right use of it here they commend , and yet they doe not describe that right use , therefore they commend two things , the one the life of a subject to be left to marshall law in time of peace , the other they leave it likewise discretionary when they describe not the right use , their last resort is to the kings prerogative . i have said before , that lawyers write the king can doe no wrong , and sure i am our king meanes no wrong , the kings of england did never make use of their prerogative to the destruction of the subject , nor to take away his life nor libertie , but by lawfull meanes . i conceive this advise should become the iudges , other advise they find not in their law bookes ; the statute of magna charta cap. 29. and 5. edw. 3. cap. 9. the petition of right , the third of king charles in full parliament declared , tell them , nay doe convince them , that no man in time of peace can bee executed by marshall law . my lords , i could wish the iudges had timely stood in the right opposition to the drawing of causes proper for the kings courts to an aliud examen , the improper and unlawfull examen thereof on paper petitions , whereby the kings iustice , and courts were most defrauded , whereas an arbitrement being a principall meane to compose differences arising betweene neighbours , and to settle amitie betweene them , without expence , of time or money was a course approved by law , all our bookes are full of this . it is by consent of parties by arbitrators indifferently chosen , bonds for performance thereof are not voyde in law , and iudgements given upon arbitrements , and such bonds in our bookes without question or contradiction to the lawfullnesse of an arbitrement or bond in proper cases , the principall good wrought by them , was the hindering of suites , & debates at law , therfore that exception fals of it selfe , then i am to consider , how far an oath in the particular is punishable , i will not speake of an oath exacted , or tendered , that is not the question , the question is of a voluntary oath , which the arbitrator cannot hinder , i speake not to the commendation of any such oath , nor doe i approve of any oath , other then that which is taken before a magistrate , who derives his authoritie from the king , the fountaine of iustice , but onely how farre this oath is punishable by the late statute , 10. caroli fol. 109. a prophane oath is punished by the payment of twelve pence , & no more , vide stat . of : marl. cap 23. 52. hen. 3. viz. nullus de caetero possit distringere liber ' tenentes suos &c. nec jurare faciat libere tenentes suos contra voluntatem suam , quia nullus facere potest sine praecepto domini regis , which statute teacheth us , that an exacted or compulsive oath , is by the kings authority , a voluntarie oath is not reprehended , 19. edw. 4. 1. a. it was not reprehended in the case of an arbitrement , this voluntarie oath is punishable in the star-chamber , as the iudges would affirme , which i conceive to bee against the law : first , for that wee cannot learne any president in england for it , it was but lately introduced here , therefore the house of commons is unsatisfied with the answer to this question , in boyton and leonards case in the star-chamber in ireland , boyton was dismissed in a case to this purpose about the yeare 1630. or 1631. it hath beene the late introduced course of the castle-chamber , and councell-table not to admit the party censured to the reducement of his fine , before hee acknowledged the justnesse of the sentence pronounced against him , and that for divers reasons , first , the course of a court being as ancient , as the court , and standing with law is curiae lex , as appeareth by our bookes , 2. co. 16. b. lanes case 17. long 5. edw. 4. 1. but if it be a course introduced de novo in mans memorie , or a course that is against law , it cannot be said to be lex curiae , for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati . let us therefore examine the course alleadged here , in both those points , and if it be found to faile in eyther of them it is to be rejected . as to the first , i cannot find or read any president of it untill of late , and the usage of it for a few yeares cannot make it to be cursus curiae which ought to bee a custome used time beyond the memory of man . as to the second , it is confessed by the iudges , that they know no law to warrant this course , let us see then whether it be against law , or standeth with the law , and i conceive it is against law for divers reasons . first , by the common-law , if a judgement be given against a man after a verdict of twelve men , which is the chiefe and cleare proofe which the law looketh upon , or upon a demurrer after solemne argument he shall in the one case have an attainte against the iury , & in the other a writ of error to reverse the judgement ; but in this case by the confession of the justnesse of the sentence all the meanes to reverse the sentence is taken away , and therefore contrary to law , and reason . whereas by the common-law , fines ought to bee moderate secundum quantitatem delicti in reformationem & non in destructionem , of late times , the fines have beene so high in destruction of the party in the castle-chamber , as his whole family and himselfe , if hee did pay the fine should bee driven to begge , and without performance of the sentence hee could not be admitted to reverse the sentence , in respect of all which , howbeit in his conscience he is not guiltie , yet to gaine his libertie , and save part of his estate , hee is necessitated to acknowledge the justnesse of the sentence , so that the confession is extorted from him , and consequently is against law . third reason if the fine were secundum quantitatem delicti , as it ought to be without danger of destruction , the reducement of the fine had not been so necessarie : and therefore no just ground for this confession . lastly , the confession of the party after sentence doth rather blemish the sentence then any way cleare it , for the confession comming after the sentence , which ought to be just in it selfe can adde nothing to it but draw suspition upon it , and in that respect a confession is strayned , the racke used by the course of the civill law in criminall causes , to cleare the conscience of the iudge to proceede to sentence , is intollerable in our common-law . and therefore this course being an innovation against law , & without any reasonable ground ; the said iudges ought in their said answer to declare so much , to the end a course might bee taken for abolishing the same . this answer i will not now draw into question , i could wish the rest were answered no worse . what power have the barons of the court of exchequer to rayse the respite of homage arbitrarily , &c. vnto this they answer , that untill the kings tenant by knights service in capite hath done his homage , the ancient course of the exchequer hath beene , and still is , to issue processe , to distrayne the tenants ad faciendum homagium , or ad faciendum finem pro homagio suo respectuando , upon which processe the sheriffe returnes issues , and if the tenant doe not appeare , and compound with the king to give a fine for respite of homage , then the issues are forfeyted to the king . but if the kings tenant will appeare , the court of the exchequer doth agree with him to respite his homage for a small fine . they say further , that it resteth in the discretion of the court by the rule of the common-law to lay downe a fine for respite of homage , according to the yearely value of the said lands , which i conceive to be very unreasonable and inconvenient , that it should lye in the power of any to assesse a fine for respite of homage , such as to him shall be thought meete in discretion , for if so hee may raise the fine to such a summe , as may exceed the very value of the lands . neyther hath the same beene the ancient course , for it appeares by severall ancient records , and by an order of the court of exchequer made termino pascae 1607. that there should be payed for respiting of homage for every towneship xx . d. irish , and for every mannor xxxx . d. irish , and that such as hold severall houses , acres , or parcels of land , which are not mannors , nor towneship shall pay for everie hundred and twentie acres of land , meadow , and pasture , or of any of them xx . d. irish , and no more , and according to that rate , and proportion if a greater , or lesser number of acres , and for every house without ground iiij . d. irish , and of cottages , or farme houses which bee upon the lands , no fine to bee payed for them solely alone . and i conceive where a man holdeth severall parcels of land of the king by severall homages , that in such case he is to pay but for one respite of homage onely and no more , for that a man is to doe homage but once , and consequently to pay for one respite of homage onely . the late course in the exchequer here hath been contrary , whereas in their answer they goe in the exchequer , according to the statute of primo iacobi cap. 26. in england , under their favour they goe cleare contrary , for that statute was made in confirmation , and pursuance of former orders in the exchequer : whereas the barons here goe directly contrary to the ancient course and order of the exchequer in this kingdome , more of this in my reason or ground for this question . so i conclude their answer to this is short . my lords , the question contaynes two points , first , whether the subject of this kingdome is censurable for to repayre into england , to appeale to his majesty for redresse of injuries , or for his lawfull occasions ; secondly why , what condition of persons , and by what law ? the first part of the iudges their answer is positive and full , viz. they know no law or statute for such censure ( nor i neyther ) and could wish they had stayed there . in the second part of their answer , they come with an if , viz. unlesse they be prohibited by his majesties writ , proclamation , or command , and make mention of the statute of 5. rich. 2. cap. 2. in england , and 25. henr. 6. cap. 2. in ireland , i will onely speake to the second part of this answer . my lords , the house of commons in the discussion of this point tooke two things into consideration , first what the common-law was in such cases ; secondly , what alteration was made of the common-law by the statute of 5. rich. 2. cap. 2. in england , and 25. henr. 6. cap. 2. in ireland , as to the subjects of ireland . as for the first the register hath a writ framed in the point , viz. the writ de securitate in venienda quod se non divertat ad partes extras sine licentia domini regis , fitz. natur. br . fol. 85 the words of this writ cleares the common-law in the point , it begins with a datum est nobis intelligi , &c. the king being informed that such person or persons in particular doe intend to goe , whether ad partes exteras , viz. foraigne countries , to what purpose , to prosecute matters to the prejudice of the king & his crowne , the king in such a case by his writ , warrant , or command under the great seale , privie seale , privy signet or by proclamation , may command any subject not to depart the kingdome without the kings licence ; this writ is worthy to be observed , for the causes aforesaid therein expressed , the writ extendeth only to particular person or persons , & not to all the subjects of the kingdome , no man can affirme that england is pars extera as to us , ireland is annexed to the crowne of england , and governed by the lawes of england : our question set forth the cause , viz. to appeale to the king for iustice , or to goe to england , for other lawfull causes , whereas the said writ intends practises with foraigne princes to the prejudice of the king and his crowne ; at the common-law , if a subject in contempt of this command went ad partes exteras , his lands , and goods ought to be seized , 2. & 3. philip . & mary dy. 128. b. and yet if the subject went to the parts beyond the seas before any such speciall inhibition , this was not punishable before the statute of 5. rich. 2. cap. 2. as appeares , 12. & 13. elizab. dy. 296. a. so that before the inhibition , the law was indifferent , now the question is at common-law , whether the subject of ireland having no office , can be hindered to appeale or goe to the king for iustice : the king is the fountaine of iustice , and as his power is great to command , so the scepter of his iustice is as great , nay the scepter hath the priority , if any be , for at his coronation , his scepter is on his right side , & his sword on his left side to his iustice he is sworne , therefore if any writ , commandement or proclamation bee obtayned from him , or published contrary to his iustice , it is not the act of the king , but the act of him that misinformed him , then will i adde the other words of the question , viz. or other his lawfull occasions , as i said before in the case of a writ of error in the kings bench of england , or in the parliament of england , which are remedies given by the law , therefore the common-law doth not hinder any man to prosecute those remedies which are given to everie subject by the same a scire facias may be brought by the king in england to repeale a patent under the great seale of ireland of lands in ireland , 20. henr. 6. fol. a. an exchange of lands in england for lands in ireland is a good exchange in law , 8. ass . placit. 27. 10. edw. 3. fol. 42. tempor . edw. 1. fitz voucher 239. what law therefore can prohibit any subject for to attend this scire facias in england , or to make use of his freehold got by exchange . the law being thus , then it was considered , what alteration was wrought by one branch of the statute of 5 rich. 2. cap. 2. by which the passage is stopped out of the kingdome ( lords , notable marchants , and the kings souldiers excepted ) i conceive this statute doth not include ireland , i never heard any irishman questioned upon this statute for going into england , nor any englishman for comming into ireland untill the late proclamation by the statute 34. edw. 3. c. 18. in england , all persons which have their heritage or possessions in ireland , may come with their beasts , corne , &c. to and fro , paying the kings dues . the statute of 5. rich. 2. did never intend by implication to avoyde the said expresse statute of edw. 3. betweene the kings two kingdomes , being governed by one law , & in effect the same people , the words of the statute of 5. rich. 2. are observable , the principall scope of it is against the exportation of bullion , in the later part there is a clause for licences to be had in particular portes , by which i conceive that the customers of those portes may grant a let passe in such cases . it is therefore to be considered , whether that branch of the said statute of 5. rich. 2. was received in ireland , i thinke it is cleare it was not , for by the statute 10. henr. 7. cap. 22. in ireland , all the generall statutes of england were received in ireland with this qualification , viz. such as were for the common and publicke weale , &c. and surely it cannot be for the weale of this kingdome , that the subjects here be stayed from obtayning of iustice , or following other lawfull causes in england . the statute of 25. henr. 6. cap. 2. in ireland , excuseth absentes by the kings command , and imposeth no other penaltie ; so that upon the whole matter , this question is not answered . for so much as they doe answer of this question , the answer is good , for there is no doubt to be made but deaneries are some donative , some elective , and some may be presentative according to the respective foundations . i will only speake of a deane de facto , if a deane bee made a bishop and hath a dispensation decanatus dignitatem in commenda in the retinere , the confirmation of such a deane is good in law . this was the case of evans and acough in the kings bench in england ter. 3. caroli , where doctor thornbow deane of yorke was made bishop of limmericke with a dispensation to hold in the retinere after his patent , and before consecration it was adjudged his confirmation was good ; and yet if a deane be made a bishop in any part of the world , this is a cession , co. 5. 102. a. vvindsors case , davis rep. 42. 43. &c. the deane of fernes his case , & 18. elizab. dy. 346. the confirmation of a meere laicus being deane is good , though he be after deprived , 10. eliz. dy. 273. 12. & 13. elizab. dy. 293. although the deane be after deprived by sentence declaratorie , yet his precedent confirmations are good . so i conceive that a deane , who hath stallum in choro & vocem in capitulo during all the time of his life , and never questioned , and usually confirmed all leases without interruption is good ; and to question all such acts , 40. 50. 100. yeares after , is without president especially in ireland , untill of late yeares , and in this kingdome few or no foundations of bishopricks or deaneries can bee found upon any record , therefore i conceive the iudges ought to answer this part of the question . my lords , i know you cannot forget the grounds i layd before for this question , nor the time nor the occasion of the issuing of quo warrantoes , nor what was done thereupon in the court of exchequer . now remayneth to consider of the answer to this positive question , the answer is too generall , viz the parliament is concerned therein , and so are two other courts of iustice , and likewise the kings prerogative is interested therein , wherefore they cannot answer till the matter come in debate and be argued before them . the consideration of the court of parliament will much conduce to the clearing of this question , co. preface to the fourth reporte , the exposition of lawes ordinarily belongeth to the iudges , but ( in maximis difficillimisque causis ad supremum parliament ' iudicium ) cooke preface to the ninth report , describes that supreame court in this manner ( si vetustatem spectes est antiquissima , si dignitatem , est honoratissima , si jurisdictionem , est capacissima ) of this enough , the learning is too manifest , that it is the supreame court , nay the primitive of all other courts ; to that court belongs the making , altering or regulating of lawes and the correction of all courts and ministers . looke upon the members of it , first the king is the head , who is never so great nor so strong , as in parliament where he sits insconced with the hearts of his people ; the second are all the lords spirituall & temporall ▪ the third the knights , citizens & burgesses , these three doe represent the whole common-wealth . looke upon the causes for which they are called ( circa ardua & urgentia negotia regni ) looke upon the priviledges of it , if any member or members servant thereof bee questioned , or any thing ordered against him , in any other court sitting the parliament , or within forty dayes before or after , all the proceedings are voyde by the lawes and statutes of this realme , the not clearing of this question is against the kings prerogative , which is never in greater splendor or majestie then in parliament , and against the whole common-wealth therein concerned as aforesaid , the king hath foure councels , the first is commune concilium , which is this councell , secondly magnum concilium , which is the councell of his lords ; thirdly the privie councell for matters of estate ; fourthly the iudges of his law , co. institut . 110. a. then by what law or use can the inferiour of these foure councels question the first supreame and mother councell , i know not , the state of the question considered , which is of burroughs , who anciently and recently sent to the parliament , by the same law , that one member may bee questioned , forty eight members may bee questioned as was done in our case in one day , six such dayes may take away the whole house of commons , and consequently parliaments , especially as this case was , for upon the returne of the first summons foure and twenty corporations were seized , the learning therefore is new , that it should rest in the discretion of the sheriffes , who might make unfaithfull returnes , and of three barons in the exchequer , who have no infallibilitie , to overthrow parliaments , the best constitutions in the world . search hath beene made in the two bookes of entries , in old natura brevium , and in all the yeare bookes that are printed , there is not one president that in any time ever so badde , such à quo-warranto was brought in , co. entries 527. a à quo-warranto was brought against christopher helden , and others to shew cause , why they claymed such a borrough , &c. which is nothing to our purpose , the quo-warrantoes in the question , and those which were in the exchequer , did admit them borroughs , and yet required them to shew cause why they sent burgesses to the parliament , this is oppositum in objecto , to admit them burgesses , and to question their power to send burgesses , which were formerly , both anciently and recently so admitted in parliament , master littleton , the first booke we reade cleares this question , sectione 164. there are ancient townes called borroughs , the most ancient townes of england , all cities were borroughs in the beginning , and from them come burgesses to the parliament , so that in effect if an ancient borrough , ergo , they sent burgesses to the parliament ; all these ancient townes in england , did remayne of record in the exchequer , 40. ass . plac . 27. in ireland they doe remayne of record in the parliament rolles , the tryall of them is by the record it selfe , and not otherwise ; if a towne send burgesses once or twice , it is title enough to send ever after , 11. henr. 4. 2. so if a peere called once by writ , and once sitting as a peere , co. institut . fol. 9. b. hee is a baron ever after . in the foure ordinary courts they have priviledge for the meanest of their members , or servants , why not the parliament . it was the custome of the ancient grave iudges to consult with parliaments in causes of difficultie & weight , a parliament was then to be at hand , they did not stay to advise with them in a point which concerned the parliament , so neerely and which was of the greatest weight of any cause that ever was agitated in the kingdome : in our books , & all the entries it is true and cleare , that quo-warrantoes are brought and ought to bee brought against such as clayme priviledges , franchises , royalties , or the like flowers of the crowne : but to question burgesses in this nature is to question the kings prerogative in an high degree ; priviledges take from the king , parliaments adde , and give unto him greatnesse and profit , in parliaments he sits essentially , in other courts not altogether so , but by representation , what greater disservice could bee done the king , then to overthrow parliaments , how shall subsidies bee granted , or the kingdome defended , how shall ardua regni be considered ? oh the barons of the exchequer , i wot will salve all these doubts . i may not forget my lords , how the law of the land , & the whole common-wealth is herein concerned , and upon that i will offer a case or two , if a statute be made wherein the private interest of a subject , or the generall interest of the common-wealth be enacted , the king by his letters-patents cannot dispence with this statute , co. 8. 29. a. princes case , though they be with à non obstaute , nor make any grant , non obstante of the common-law , therefore i conclude this question . first , that it is against the kings prerogative , to issue such à quo-warranto , as is here stated . secondly it is against the common-wealth , as destructive of parliaments , and consequently of government . thirdly this is no priviledge but a service done to the king & whole common-wealth , which cannot receive so much as a debate but in parliament . fourthly all the proceedings in the excheqver , touching this parliament were coram non judice , as was already voted in both houses , as for the punishment , we come not to urge your lordships to punish other then with reference to that which i said before , viz. the oath . these two questions have so neere a relation , the one to the other meeting in the center of the castle-chamber , that i will speake to them at once or as to one question . my lords , if that golden meane , and mediocritie which regulated the power of that great court in former times had not beene of late converted and strayned unto that excesse wee saw , these questions had never beene stirred , but many things being extended to their uttermost spheare , or i feare beyond the same enforce mee , although unwillingly and slowly , to looke upon our lawes and just rights . the answer to the sixteenth , viz. whether iurors giving their verdicts according to their conscience , may be punished in the castle-chamber by fines excessive , mutillation of members , &c. i finde in my lord barcklayes case , placit. com. 231. from the beginning , the usuall tryall at common-law was devided betweene the iudges and the iurors , matters of fact were and are tryable by the iurors , and matters in law by the iudges , the antiquitie of this tryall appeares , glan . fol. 100. b. in henr. the seconds time , bracton 174. briton , fol. 130. a. fortescue , de laudibus legum angliae , fol 54. & 55. so much being cleared they being , iurati ad dicendum veritatem , are iudges of the fact , co. 9. 13. a. dowmans case , & 25. &c. strata marcellas case , and infinite other authorities , they are so farre iudges of the fact , that although the partes bee estopped to averre the truth , yet these iudges of the fact shall not be so estopped , because they are upon their oath , co. 2. 4. b. goddards case , co. 4. 53. a. raw-hins case , 1. henr. 4. 6. a. &c. they are so far iudges of the fact , that they are not to leave any part of the truth of the evidence to the court , co. 1. 56. b. chauncellor of oxfords case , nay they may finde releases and other things of their knowledge not given in evidence , 8. ass . plac . 3. co. 10. 95. b. doctor leyfields case , what is done by iudges , shall not bee tryed by iurors , co 9. strata marcellas case 30. ergo è converso ; but if any doubt in law ariseth upon the evidence , there is a proper remedie by bill of exception by the statute of vv. 2. cap. 30. which co. 9 dowmans case , fol. 13. a. saith to be in affirmance of the ancient common-law , as to this point of law , the iudges of the law are iudges of the validitie of the evidence , but under favour not of the truth of the fact , as it is set forth in the answer ; if the iudges of the law doe erre in matter of law , the party grieved hath his remedie by writ of error , but hee is not punishable if practise or misdemeanor doe not appeare , 2. rich. 3. fol 9. 10. fitz natur. br . 243. e. 27. ass . 18. 4. henr. 6. and other bookes by the same reason the iudges of the fact , if they goe according to their conscience as our question is stated , if the iury in this case goe contrary to their evidence , the common-law gives a full remedy by attainte , wherein the judgement is ●ost heavie if the iurors have done amisse as i said before to another question , yet in this action the law gives credit to the verdict before it be falsified , for if a judgement be given upon this verdict and after an attainte is brought , no super sedeas can bee in this writ to hinder the partie who recovered from his execution , 5. henr. 7. 22. b. 33. henr. 6. 21. otherwise in a writ of error . your lordships therefore may see what faith is given to verdicts at common-law , i observe the notable case of 7. henr. 4 41 b. where gascoigne answereth the king that would give judgement contrary to his private knowledge . as for the next part of these two questions , it was the late height of punishments , and the drawing of more causes to that court , then in former times , moved this debate , out of the statute of 3 henr. 7. cap. 1. concerning this court . i make these observations , first , that the iudges of that court according their discretion may examen great offences , secondly , that they may punish according to the demerits of delinquents after the forme of the statute thereof made , thirdly , in like manner & forme as they should or ought to be punished if they were convict by the due order of the common-law for the first , what discretion this is , we finde in our books , co. 5. fol. 100. rookes case , discretion is to proceede within the bounds of law and reason , at common-law a man in a leete is fined but in ten groats for a light bloudshed ; in the castle-chamber a noble-man for an offer of a switch to a person inferior to him , upon provocation perhaps given , was fined in foure thousand pound , committed to long imprisonment , and low acknowledgements were imposed on him . for the second and third observations , if men of quality and ranke were pillored , papered , stigmatized , and fined to their destruction , in cases where if they had beene convicted by due order of law , they could not be so punished by any law or statute , i humbly offer to your lordships sad and grave consideration . and whether these courses be warranted by the said statute of 3. henr. 7. cap. 1. or by any other law or statute of force in this realme , and if all iurors bee brought to the castle-chamber , what shall become of that great and noble tryall , by which all the matters of our law regularly are tryable ; and so i conclude that the answers to these two questions are not satisfactorie . whether in the censures in the castle-chamber , regard be to be had to the words of the great charter , viz. salvo contenemento , &c. i conceive that in the censures in the castle-chamber , regard is to bee had to the words of the great charter , viz. salvo contenemento , &c although in the great charter , and in the statute of vvestminst . 1. cap. 6. amerciamentum and misericordia are expressed and not fines or redemptio , because a fine and an amerciament are in the old yeare bookes used promiscuously as synonima , for one and the same thing , and therefore in 10. edw. 3. fol. 9. & 10. the iurors of the abbot of ramseis leete , being sworne , and refusing to present the articles of the leete , were amerced and there it is resolved , because all did refuse to present , all shall be amerced , but when the same shal be imposed or affeared , shall bee imposed severally upon each of them secundum quantitatem delicti salvo contenemento suo , yet the summe there imposed was revera à fine , and not an amerciament as an amerciament is now taken , and here with agrees , 4. eliz. dy. 211. b. in these words ( if the iurors of a leete refuse to present the articles of the leete , according to their oath , the steward shall assesse a fine upon every of them ) and godfries case , 11. rept ' . fol. 42. b. 43. a. secondly if by intendment of law , as the law was conceived at the time of the making of the statutes of magna charta and vvestm. 1. fines and amerciaments had not beene or taken to be synonyma , the feazors of those acts would not have so carefully provided remedy in case of amerciaments , which were alwayes moderate , and wherein à moderata misericordia did lie for all men , ab enumeratione partium , viz. comites & barones non amercientur & miles & liber homo amercientur & salvo contenemento suo , mercator salva merchandiza sua , villanus salvo vvainagio , clericus salvo laico , feoudo , &c. and have thought of no redresse or moderation of fines , which are more grievous , and of late times infinitely swolne above amerciaments , for in 19. edw. 4. fol. 9. and 21. edw. 4. fol. 77. the amerciament of an earle baron , &c. is but five pounds , and of a duke ten pounds , yet a barons ancient fee or livelyhood consisteth of foure hundred marks land per annum , an earles of foure hundred pounds , a dukes of eight hundred pounds per annum . thirdly , amerciaments imposed upon those that have the administration of iustice executiō of the kings writs , for their commission or omission , contrary to their dutie are out of the letter of magna charta , are indeede fines and to bee imposed and taxed by the iudges , yet are they called misericordiae , because great moderation and mercy must be used in taxing of them , grisleyes case , 8. rep. fol. 48. a. b. fourthly , in case fines bee not within these words of magna charta , amercietur salvo contenemento , &c. yet ought they by law to be reasonable and not excessive , for every excesse is against law , excessus in requalibet , jure reprobatur communi , as excessive distresse is prohibited by the common-law 41. edw. 3. fol. 26. so is excessive and outragious ayde , as appeares by the statute of vvestm. 1. cap. 35. and by glanv . l. 9. fol. 70. an assize lies for often distrayning because it is excessive , and therefore against law an excessive fine , at the will of the lord is an oppression of the people , 14. henr. 4. fol. 9. if tenant in dower have rich villains or tenants at will and shee by excessive taxes or fines make them mendicants , it is waste in the eye of the law , 16. henr. 3. fitz. waste 135. register ' iudiciale , fol. 25. if the fines of coppy-holders be uncertaine , the lord of the mannor , cannot exact unreasonable and excessive fines , & the unreasonablenesse of the fines shall bee determined by the iudges having respect to the value of the coppy-hold , 4. rep. fol. 27. b. the king before the making of magna charta had rationabile reliuum of noblemen and it was not reduced to any certaintie , yet ought it to have beene reasonable and not excessive , co. institut . 83. b. they say that in a legall construction , the statute of magna charta , in which the words salvo contenemento are mentioned , is onely to be understood of amerciaments and not of fines , yet where great fines are imposed in terrorem , upon the reducements of them , regard is to bee had to the ability of the persons . now whereas they alleage that upon the reducements of fines , regard is to bee had to the estate of persons , i humbly conceive that makes but little , eyther for the ease or securitie of the subject , or the providence or wisedome of the law , for that such reducements are not grounded upon any rule of law , but rest meerely in the kings grace and bountie , which if the prince should withdraw , and leave the subject to the law , in what case he is in , i leave it to your lordships . if there bee no rule in this case , it may rest in the arbitrarie will of foure or five persons in that court to destroy any man , & in their will to reduce as they please , but never to reduce before confession of the sentence which is destructive , wherein perhaps therei 's no infallibilitie , magna charta , cap. 29. nullus liber homo aliquo modo destruatur , & e. and so i conclude as to this answer . this answer as it is here is sufficient , yet contrary to their answer ; to the first question upon the same point , and so contrary , that both are incompatible . my lords , i am come to the life of man , after that god concluded the worke of the whole world saying to every particular & erant valde bona , to make the worke compleat creavit hominem ad imaginem & similitudinem suam . aristotle in his treatise de natura animalium saith that unum vivens est magis dignum ; which is man , that creature which alone is more perfect and noble then all the world besides . the common-law of the land hath three darlings , life , libertie , and dower , the former recited statutes give protection to three things , to life , estate , and libertie , the life of man is the eldest child admitted to the favour of the law , and the first and chiefe within the protection of these statutes , the other two are but ministers and servants unto it , the tryall of this life by the law and statutes aforesaid is regularly judicium parium , to multiply cases upon so plaine a learning , were but passe time , or wast time , your lordships have other businesse of weight and consequence : the proofe which taketh away this life with infamy , which corrupts the bloud of him and his posterity , defeates the wife and innocent children of their fame and substance , surely ought to be cleare and convincing proofe . the case of an approver is the onely case wee finde in our law , where a person infamous may accuse another for his life , this accusation cannot take away the life of any man , otherwise then by a legall tryall , viz. by a tryall of iurors , who ought to have other good proofe before they finde a subject guilty , or by both , wherein the approver hazards his owne life , which is sacred unto him by the law . this approver is not received in another felony , or treason then he himselfe is guiltie of by confession , of the fact , nor for his reliefe , after hee commits the crime confessed , stamford pleas of the crowne , fol. 142. 143. for notorious rebels or malefactors , i finde not any booke in law to give countenance unto such testimony . i finde in the fourth article of the kings printed booke of instructions , that such testimony shall not be pressed when any man stands upon tryall of his life . the iudges doe answer well to one part , viz. that such testimony is not convincing , but they goe further that the testimony of such persons , not condemned concurring with other proofe or apparant circumstance may bee pressed upon the tryall of a man for his life ; the said article in the instructions saith it shall not be pressed at all , no law warrants such pressure . it is quite different from the case of an approver , who confesseth himselfe guiltie , and who is limitted to the crime whereof he is guiltie , a rebell is left at large to prove any crime , nay the reliefe of himselfe . the testimony mentioned in the question differs in all things from the approver , therefore they cannot bee resembled ; the concurrence of such testimonie with other proofes is not materiall , for other proofe will doe the deede without this bad concurrence , and so will a violent presumption , as if two goe safe into a roome , one of them is found stabbed to death the other may suffer , this presumption is inevitable the law of god , the lawes and statutes of the realme protect and preserve the life of man , it were therefore hard to take away by circumstance such a reall and noble essence . this concurrence marrs the evidence , it helps it not . if one gives false testimonie once by the ancient law , his testimonie shall never be received againe , leges canuti regis , lamb . saxons lawss , fol. 113. p. 34. much lesse where they are notorious ill doers , this and the reason and ground of this question already opened , will i hope give your lordships satisfaction . for this question , i will state it without any tenure reserved by expresse words as the question is put , whether the reservation of rent , or annuall summe will rayse this to bee a tenure in capite ; i conceive it will not for sundrie reasons . first from the beginning there have beene fayres and markets , and no president , booke-case , or record , to warrant the new opinion in this case before trinitie terme 1639. in the court of wards . secondly the practise of that court was alwayes before to the contrary in the same , and the like cases . thirdly , it is a thing as the question is of new creation , and never in esse before , for this see the bookes of 3. henr. 7. 4. 12. henr. 7. 19. 15. e. 4. 14. 46. e. 3. 12. 21. henr. 6. 11. stamford prerogative 8. therefore there is no necessitie of a tenure thereof ; upon the conquest it was necessarie that all lands should be held by some tenure for the defence of the kingdome . 1. the statute of quia emptores terrarum , &c. praerogativa regis speake of feoffator , feoffatores , &c. therefore a tenure i meane this tacite or implyed tenure was originally onely intended of land . 2. the king may reserve a tenure in all things not mainerable by expresse reservation or covenant , 44. edw. 3. 45. fitz. natur . brevium , 263. &c. but that is not our case . 3. heere it is left to construction of law , which is aequissimus iudex , and lookes upon the nature of things , and therefore in cases that include land , or where land may come in liew therof , a tenure may be by implication , as a mesnalty a reversion expectant upon an intayle & the like , 10. edw. 44. a. 42. edw 3. 7. fitz. grants , 102. and divers other bookes . 4. no tenure can be implyed by reason of a rent , if the rent be not distreynable by some possibility of its owne nature upon the thing granted , as appeares by 5. henr. 7. 36. 33. henr. 6. 35. 40. ed. 3. 44. 1. henr. 4. 1. 2. 3. fitz-cessabit . 17. 5. the distresse upon other land is the kings meere prerogative like the case of buts co. 6. 25. a distresse may be for rent in other land by covenant . 6. this is no rent because it issueth not out of land . 7. if the patentee here had no land , there can be no distresse in this case . 8. this is a meere priviledge , it issueth out of no lands , and participates nothing of the nature of land , all the cases of tenures in our bookes are eyther of land or things arising out of land , or some way or other of the nature of land , or that may result into land , or that land by some possibilitie may result into it ; therefore i humbly conceive that new opinion is not warranted by law or president . these my lords , are in part the things , which satisfied the house of commons in all the matters aforesaid , they are now left to the judgement and iustice of your lordships . qvestions propovnded in parliament and declarations of the law thereupon in parliament . whither the subjects of this kingdome bee a free people , and to be governed onely by the common-lawes of england , and statutes of force in this kingdome . the subjects of this his majesties kingdome of ireland , are a free people , and to be governed onely according to the common-law of england , and statutes made & established by parliament in this kingdome of ireland , and according to the lawfull customes used in the same . vvhither the iudges of this land doe take the oath of iudges , and if so , whether under pretext of any act of state , proclamation , writ , letter or direction under the great or privie seale or privie signet or letter or other commandment from the lord lieutnant , lord deputy , iustice , or other chiefe governor , or governors of this kingdome , they may hinder , stay , or delay the suite of any subject , or his iudgement or execution thereupon , if so , in what cases , and whether if they doe hinder , stay or delay such suite , judgement or execution thereupon , what punishment doe they incurre for their deviation and transgression therein ? that iudges in ireland ought to take the oath of the iustices or iudges declared and established in severall parliaments of force in this kingdome and the said iudges or any of them , by colour , or under pretext of any act of state , or proclamation or under colour , or pretext of any writ , letter , or direction under the great seale , privie seale , or privie signet from the kings most excellent majestie , or by colour or pretext of any letter or commandement from the chiefe governor or governors of this kingdome ought not to hinder or delay the suite of any subject , or his judgement , or execution thereupon and if any letters , writs , or commaunds come from his majestie or any other , or for any other cause to the iustices , or to other deputed to doe the law and right according to the usage of the realme in disturbance of the law , or of the execution of the same , or of right to the parties , the iustices and other aforesaid ought to proceed , and hold their courts , and processes where the pleas and matters bee depending before them , as if no such letters , writs , or commaundments were come to them , and in case any iudge , or iudges , iustice , or iustices bee found in default therein , he or they so found in default ought to incurre and undergoe due punishment according the law , and the former declarations and provisions in parliament in the case made and of force in this kingdome , or as shall be ordered , adjudged , or declared in parliament . and the barons of the exchequer , iustices of assize , and goale-delivery if they be found in default as aforesaid , it is hereby declared that they ought to undergoe the punishment aforesaid . vvhether the kings majesties privie councell eyther with the chiefe governor , or governors of the kingdome , or without him or them , be a place of iudicature , by the common-lawes , and wherein causes betweene party , and party for debts , trespasses , accompts , possession , or title of lands , or any of them , and which of them may bee heard and determined , and of what civill causes they have jurisdiction , and by what law , and of what force is their order or decree , in such cause or any of them ? that the councell-table of this realme eyther with the chiefe governor or governors is no iudicatorie wherein any action reall , personall , popular , or mixt , or any suite in the nature of the said actions or any of them can or ought to bee commenced , heard , or determined , and all proceedings at the councell-table , in any suite in the nature of any of the said actions are voyde ( especially causes particularly provided for ) by expresse acts of parliament of force in this kingdome onely exempted . the like of the chiefe governor above . the proceedings before the chiefe governor , or governors alone in any action , reall , personall , popular , or mixt , or in any suite in the nature of any of the said actions are coram non iudice and voyde . vvhether grants of monopolies be warranted by the law , and of what , and in what cases , and how and where , and by whome are the pretended transgressors against such grants punishable ? and whether by fine , mutillation of members , imprisonment , losse and forfeyture of goods or otherwise and which of them ? all grants of monopolies are contrary to the lawes of this realme , and therefore voyde , and no subject of the said realme ought to bee fined , imprisoned , or otherwise punished for exercising or using their lawfull liberty of a subject , contrary to such grants . in what cases the lord lieutenant , lord deputie , or other chiefe governor or governors of this kingdome and councell may punish by fine , imprisonment , mutillation of members , pillory or otherwise , and whether they may sentence any to such , the same , or the like punishment for infringing the commaunds of or concerning any proclamation , of and concerning monopolies , and what punishment doe they incurre that vote for the same ? the lord lieutenant , lord deputy , or other chiefe governor or governors , and councell of this realme , or any of them , ought not to imprison any of his majesties subjects , but onely in cases where the common-lawes or statutes of the realme doe enable and warrant them so to doe , & they ought not to fine , or to censure any subjects in mutillation of members , standing on the pillory , or other shamefull punishment in any case , at the councell-table , and no subject ought to be imprisoned , fined , or otherwise punished for infringing any commaunds , or proclamation for the support , or countenance of monopolies : and if in any case , any person or persons shall bee committed by the commaund or warrant of the chiefe governor , or governors and privie councell of this realme , or any of them , that in every such case , every such person or persons so committed , restrayned of his , or their libertie , or suffering imprisonment upon demaund , or motion made by his or their councell , or other imployed by him or them for that purpose unto the iudges of the court of kings-bench , or common-pleas , in open court , shall without delay upon any pretence whatsoever , for the ordinarie fees usually payed for the same have forthwith granted unto them , or him a writ or writts of habeas corpus , to be directed generally to all , and every sheriffe , gaoler-minister , officer or other person , in whose custody the party or parties so committed or restrayned shall be , shall at the returne of the said writ , or writs , and according to the commaund thereof upon due and convenient notice thereof given , unto him at the charge of the party or parties who requireth or procureth such writ or writs , and upon securitie by his or their owne bond , or bonds given to pay the charge of carrying backe the prisoner , or prisoners , if hee or they shall bee remanded by the court , to which he or they shal be brought , as in like causes hath beene used , such charges of bringing up and carrying backe the prisoner or prisoners to be alwayes ordered by the court , if any difference shall arise there about , to bring , or cause to be brought the body , or bodies of the said partie , or parties so committed , or restrayned unto & before the iudges , & iustices of the said court from whence the same writ or writs shall issue in open court , & shall then likewise certifie , the true cause of such his , or their detayner , or imprisonment , & and thereupon the court after such returne made , and delivered in open court , shall proceed to examine and determine , whether the cause of such commitment , appearing upon the said returne be just and legall or not , and shall thereupon doe what to justice shall appertayne , eyther by delivering , bayling , or remanding the prisoner , or prisoners . of what force is an act of state , or proclamation in this kingdome to bind the libertie , goods , possessions , or inheritance of the natives thereof , whether they or any of them can alter the common law or the infringers of them , loose their goods , chattels , or leases , or forfeyte the same by infringing any such act of state , proclamation or both , and what punishment doe the sworne iudges of the law , that are privy councellors , incurre that vote for such acts and execution thereof ? an act of state , or proclamation in this kingdom , cannot bind the libertie , inheritance , possession , or goods of the subjects of the said kingdome , nor alter the common-law , and the infringers of any such act of state , or proclamation ought not to forfeyte lands , leases , goods , or chatels for the infringing of any such act of state or proclamation . and the iudges of the law who doe vote for such acts of state , or proclamation are punishable , as breakers and violaters of their oathes of iudges . are the subjects of this kingdome , subject to the marshall law , & whether any man in time of peace , no enemie being in the field , with banner displaid , can be sentenced to death , if so , by whom , and in what causes ? if not , what punishment doe they incurre , that in time of peace execute marshall law ? no subject of this kingdome ought to bee sentenced to death , or executed by marshall-law in time of peace , and if any subject be so sentenced , or executed by marshall-law , in time of peace , the authors & actors of any such sentence or execution , are punishable by the law of the land for their so doing , as doers of their owne wrong , and contrarie to the said law of the land . vvhether voluntary oathes taken freely before arbitrators for affirmance , or disaffirmance of any thing , or for the true performance of any thing be punishable in the castle-chamber , or any other court , & why or wherfore ? no man ought to bee punished in the castle-chamber , or in any other court , for taking a voluntary oath before arbitrators for affirmance or disaffirmance of any thing , or the true performance of any thing in civill causes , nor are the arbitrators before whom such voluntary oathes shall be taken punishable . vvhy and by what law , or by what rule of policie is it that none is admitted to reducement of fines , and other penalty in the castle-chamber or councell-table untill he confesse the offence for which he is censured ; when as revera hee might bee innocent thereof , though suborned proofes , or circumstance might induce a censure ? by the lawes and statutes of the realme , no man is bound , or ought to be compelled to acknowledg the offence layd to his charge , or the justnesse of any censure past against him in the castle-chamber , or at the councell-table , nor ought to bee detayned in prison , or abridged of his liberty , or the reducement of his fine , stayed or delayed , untill he doe acknowledge such offence or the iustnesse of such censure . and it is further declared that no such inforced or wrested cōfession , or acknowledgment can or ought to debarre , or hinder any subject from his bill of reversall , or review of any sentence or decree past , or conceived against him in the castle-chamber , or in any other court . vvhether the iudges of the kings-bench , or any other iudge of gaole-delivery , or of any other court , and by what law , doe or can deny the copies of indictments of felony or treason , to the parties accused contrary to the law . the iudges of the kings-bench , or iustices of gaole-delivery , or the iudges of any other court , ought not to deny copies of indictments of felonies , or treason to the parties indicted . vvhat power hath the barons of the court of exchequer , to rayse the respite of homage arbitrarily , to what rate they please , to what value they may rayse it , by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the fees , when as escuage is the same for great and small fees and are proportionable by parliament ? the barons of the exchequer ought not to rayse the respite of homage above the usuall rates appearing in and by the course and presidents of that court continued untill the yeare of our lord god , 1637. and the raysing thereof since that time was arbitrary and against the law , and the barons of the exchequer , ought not to distinguish between the respite of homage upon any diversity of the true values of the knights fees . vvhether it be censurable in the subjects of this kingdome to repaire into england to appeale to his majesty for redresse of injuries , or for other lawfull occasions ; if so , why , & what condition of persons and by what law ? the subjects of this kingdome may lawfully repayre into england , to appeale to his majesty for redresse of injuries , or for other their lawful occasions ; & for their so doing , ought not to be punished or questioned upon the statute of 5. of k. rich. the 2. nor by any other law , or statute of force in this kingdome ( eminent officers & ministers of state , commanders & souldiers of his majesties army . the iudges and ministers of his majesties courts of iustice , and of his highnesse revenue and customes , whose attendance is necessary requisite , by the lawes & statutes of the realme only excepted . ) vvhether deanes or other dignitaries of cathedrall churches be properly and de mero jure donatiue by the king , and not elective or collative ; if so , why , and by what law , and whether the confirmation of a deane de facto of the bishops grant be good and vallid in law , or no ? if not , by what law ? deaneries or other ecclesiasticall dignities of this realme , are not de mero jure donative , but some are donative , and some elective , and some are collative , according to their respective foundations , and the confirmation of the bishops grant by a deane de facto having actually stallum in choro , & vocem in capitulo , together with the chapter is good in law . vvhether the issuing of quo-warrantoes , out of the kings-bench , or exchequer against borroughs , that anciently and recently sent burgesses to the parliament to shew cause why they sent burgesses to the parliament , be legall ? if not what punishment ought to be inflicted on those that are or hath beene the occasioners , procurers , and iudges of , and in such quo-warrantoes ? the issuing of quo-warrantoes out of the court of kings-bench , court of exchequer , or any other court against boroughs , that anciently or recently sent burgesses to the parliament , to shew cause why they sent burgesses to the parliament , and all the proceedings therein are , coram non iudice , illegal and voyde , and the right of sending burgesses to the parliament is questionable in parliament onely , and the occasioners , procurers , and iudges in such quo-warrantoes and proceedings are punishable as in parliament shall be thought consonant to law and iustice . by what law are iurors , that give verdict according their conscience , and are the sole iudges of the fact , censured in the castle-chamber in great fines , and sometimes pillored with losse of eares , & boared through the tongue , and marked sometimes in the forehead with a hot iron , and other like infamous punishment ? iurors are the sole iudges of the matter in fact , and they ought not for giving their verdict to bee bound over to the court of castle-chamber , by the iudge or iudges , before whom the verdict was , or shall be given . by what law are men censurable in the castle-chamber , with the mutillation of members , or any other brand of infamy , and in what cases , and what punishment in each case there is due , without respect of the qualitie of the person or persons ? no man ought to bee censured in the castle-chamber , in the mutillation of members , or any other brand of infamy , otherwise , or in other cases then is expressely limitted by the statutes of this realme in such cases provided ? vvhether in the censures in the castle-chamber , regard be to be had , to the words of the great charter , viz. salvo contenemento , &c. in the censures of the castle-chamber , especially regard ought to bee had to the words of the great charter , viz. salvo contenemento , &c. vvhether if one that steales a sheepe , or commits any other felony , and after slieth the course of iustice , or lieth in woods or mountaines upon his keeping , be a traytor , if not , whether a proclamation can make him so . a felon who flies the course of iustice , & lieth in woods , mountaines , or elsewhere upon his keeping is no traytor , and a proclamation cannot make him a traytor . vvhether the testimonie or evidence of rebels , traytors , protected theeves , or other infamous persons bee good evidence in law , to be pressed upon the tryals of men for their lifes , or whether the iudges , or iurors ought to be iudge of the matter in fact ? the testimony of convicted , or protected rebels , traytors , or fellons , is no sufficient evidence in law upon the tryall of any person for his life , and the credit of the testimony of persons accused or impeached , and not convicted of felony or treason , ought to be left to the iury who are sole iudges of the truth , and validity of the said testimony . by what law are fayres and markets to bee held in capite , when no other expresse tenure bee mentioned , in his majesties letters-patents , or grants of the same fayres and markets , although the rent or yearely summe be reserved thereout ? the king grants lands to be held in free and common-soccage , as of a castle , or mannor by letters-patents under the great seale , and by the same letters-patents , or by other letters-patents , grants a fayre and market , reserving a yearly rent or summe without expressing any tenure as to the said fayre or market , the said fayre or market , is not held by knights-service in capite or otherwise in capite . copia vera , ex ' per phil : fern : cleric . parl. com. finis . faults escaped . pag. 9. l. 19. insteed of causes reade cases , p. 40. l. 6. for the , reade their , p. 44. l. 10. for wages , reade wayes , p. 56. l. 17. for best , reade least , p. 57 , lin , 18. for rottoman , reade hotoman , ibid. l. 21. for master sleyden , say selden , p 61. l. 3. & is omitted before that p. 63. l. 19. for strike , r. stick , p. 64. l. 14 , for primes case say princes case , p. 67 , l , ultima for strata marclad , say strata marcella . p. 68. l , vlt. for here , say there . p , 70 , l , 1 , for sit , say litt. ibid. l , 2 , for give say gives . p , 70 , l , 22 , for writ , say writs . p , 72 , l , 1. for this , the , p , 7● , l , 23. for as say or . p , 86. for willielmi collet ▪ say willielmus collet . p. 87 , l , 12 , for monopolites , monopolists . p , 88 , l , 8 , for cod. say c. p , 93 , l , 19 , for promissum est , say provisum est , p , 94 , l , 2 , for promissum , say provisum p , 97 , l , 21 , for the say this . p , 109 ▪ l. 3 , for thornbow , say thorn borow , pag , 116. l. 7. for placit. com. say plo. com. ibid. l , 19 ▪ for partes say parties , p , 121 , l , 7 , non is omitted , p , 122 , l , vltim , for relivuum , say relevium . notes, typically marginal, from the original text notes for div a36769e-110 preamble to the questions . 1. q. 1. rat . 2. q. 2. rat . 3. & 4. q. 3. & 4. ratio . 5. 6. 7. q. 5. 6. 7. rat . 8. q. 8. rat . 9. q. 9. rat . 10. quest . 10. ratio . 11. quest . 11. ratio . 12. q. 12. rat . the second remembrancers certificate . 1. iunii , 1641. 13 quest . 13. ratio . 14. quest . 14. ratio . 15. q. 15. rat . 16. quest . 16. ratio . 17. quest . 17. ratio . 18. q. 18. rat . 19. quest . 19. rat . 20. que . 20. rat . 21. quest . 21. rat . hopperus de vera iuris prudentia . pag. 118. lord chancel . egerton de postnat . fol. 17. ● . ratio . poltons stat . fol. 8. atchi . tu●ris lond. cambd. anals hibern . 2. ratio . 3. ratio . 4. ratio . 5. ratio . 6. ratio . 7. ratio . 8. ratio . 9. ratio . genes . c. 3. vers. 7. &c. 4. vers. 8. 1. quest . 1. answer archi. turris london . stat. hiberniae . 67. a. 2. quest . 2. answe . 5. ed. 4. 2. 36. hen. 6. 29. 14. hen. 7. 13. 3. quest . 3. answ. sir thomas tempest knight . 1. object . 2. object . 1. resp. 2. resp. ad 2. object . 4. quest . 4 answer archiv . turris londin . de comunibus placitis per billas coram iusticiariis hiberniae nequaquam terminandis . 5. quest . 5. answer 6. quest . 6. answer ▪ 7. quest . 7. answer ▪ natura br. fol. 85. in se briefe de securitate inveniend . quod non se divertat ad partes extras pars extra cannot be intended the kings dominions . fol. 12. & 13. natura br. 32. 19. hen. 3. fitz her. darien presentment 23. ● . hen. 3. fitz her. dower . 179. 35. henr. 6 , 26. 37. hen. 6. 17. 49. edw. 3. 4. 11. co. 86. 8. quest . 8. answer ▪ 9. quest . 9. answer 10. quest . 10. answ . 11. quest . 11. answ . 12. quest . 12. answ . vide 5. henr. 7. 9. a. prescription to impound cattle untill amends be done according to his will , not good . this appeares by severall records in hen. 6. & hen. 7 ▪ time in the secōd remembrancers office in ireland . 24. hen. 8 ▪ b fealty ▪ & homage 8. 13. quest . 13. answ . 14 quest . 14. answ . vide 2. & 3. phil. & ma 〈…〉 e 123. b. 15. quest . 15. answ . co. inst. 109. stat. hib. 3. edw. 4. cap. 1. co. 4. 34. bozoons case . 16. quest . 16. answ . 17 : quest . 1. answ . verba statut. lo. visc . clanmoris . 18. quest . 18. answ . 19. quest . 19. answ . 20. quest . 20 answ . gen. cap. 1. v. 31. gen cap. 1. v. 27. 21. quest . 21. answ . 48. edw. 3. 9. 33. h. 6. 7. 8. hen. 7. 12. co. 6. 6● co. 9. 123. question 1. declaraon . question 2. declaraon . question 3. declaraon . questio● 4. declaration . question 5. declaraon . question 6. declaration . question 7. declaration . question 8. declaration . question 9. declaration . question 10. declaration . question 11. declaration . question 12. declaration . question 13. declaration . question 14. declaration . question 15. declaration . question 16. declaraon . question 17. declaraon . question 18. declaration . question 19. declaration . question 20. declaration . question 21. declaiation . the laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william, by the grace of god, king of scotland, england, france and ireland, defender of the faith holden and begun at edinburgh, may 9. 1695 by john marquess of tweeddale ... with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. 1695 approx. 207 kb of xml-encoded text transcribed from 39 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2003-11 (eebo-tcp phase 1). a58639 wing s1269 estc r40608 19409740 ocm 19409740 108831 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a58639) transcribed from: (early english books online ; image set 108831) images scanned from microfilm: (early english books, 1641-1700 ; 1678:1) the laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william, by the grace of god, king of scotland, england, france and ireland, defender of the faith holden and begun at edinburgh, may 9. 1695 by john marquess of tweeddale ... with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. cromarty, george mackenzie, earl of, 1630-1714. tweeddale, john hay, marquess of, 1626?-1697. [2], 67, [8] p. printed by the heirs and successors of andrew anderson ..., edinburgh : 1695. 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that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -scotland. scotland -history -1689-1745. 2003-07 tcp assigned for keying and markup 2003-08 spi global keyed and coded from proquest page images 2003-09 john latta sampled and proofread 2003-09 john latta text and markup reviewed and edited 2003-10 pfs batch review (qc) and xml conversion the laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william , by the grace of god , king of scotland , england , france and ireland , defender of the faith. holden and begun at edinbvrgh , may 9. 1695. by john marquess of tweeddale , earl of gifford , viscount of walden , lord hay of yester , and lord high chancellor of this kingdom . his majesties high commissioner for holding the same , by vertue of a commission under his majesties great seal of this kingdom . with the special advice and consent of the estates of parliament . collected and extracted from the registers and records of parliament , by george viscount of tarbat , lord m cleod , and castlehaven , &c. clerk to his majesties councils , exchequer , registers and rolls , &c. edinbvrgh , printed by the heirs and successors of andrew anderson , printer to his most excellent majesty , anno domini 1695. cvm privilegio . laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william , by the grace of god , king of scotland , england , france , and ireland , defender of the faith. holden at edinbvrgh the 9 day of may , 1695. i. act for a solemn fast. may 16. 1695. the estates of parliament , taking to their consideration , the great important war , wherein his majesty continueth to be necessarly engaged , for defence of the true reformed religion , the safety of this , and his other kingdoms , and the recovery and establishment of the rights , liberties and peace of the rest of christendom , so much at this time invaded and disturbed , with the continual hazards , to which his majesties sacred person is thereby exposed ; as likewise the dangers which do thence threaten this kingdom , and all that can be dear to his majesties good subjects therein , either as christians , or men , both by invasion from abroad , and the froward disaffection , and restless machinations of evil and unnatural countrey-men at home ; and how much it is the duty and interest of all good men , for these causes , and on this occasion , to implore the mercy , favour and blessing of almighty god , for preservation of his majesties royal person , and directing , assisting and prospering him in all his counsels and undertakings : and more especially , that god would countenance and assist him in the present war , give him success to his arms by sea and land , and defeat all the designs , counsels and practices of his secret and open enemies , both at home and abroad , for the preservation of the true protestant religion , securing the safety of these kingdoms , and the happy restoring the peace of europe . and the synod of lothian and tweeddale , now met at edinburgh , having made application to my lord commissioner for this end : therefore his majesty , with advice and consent of the said estates of parliament , doth hereby command and appoint , that the second thursday of iune next , being the thirteenth day of the said moneth , be set apart as a day of solemn fasting and humiliation , for making prayers and supplications to god , for the ends above-mentioned ; and that the said day be religiously and strictly observed by all persons within this kingdom : and ordains all ministers to read these presents publickly in their congregations a sunday at least before the said second thursday of iune next , appointed for keeping the said fast ; certifying such of the leidges who shal not give due obedience , or shal contemn or neglect the keeping and observing the said day and duties , that they shal be proceeded against by fyning , not exceeding one hundred pounds scots money , and warrands and commands the sheriffs , stewarts of stewartries , lords and baillies of regalities , and their deputs , justices of peace , magistrats of burghs within their several jurisdictions , to proceed against the persons guilty , and exact the fines accordingly , to be applyed , the one half to the judge , and the other half to the poor of the paroch ; and certifying such ministers as shal fail in their duty , in not reading this proclamation , and observing the duties therein prescribed , they shal be processed before the lords of his majesties privy council . and hereby requires all sheriffs , stewarts , lords and baillies of regalities , and their deputs justices of peace , magistrats of burghs , and their clerks , to make report to the lords of his majesties privy council , of these ministers who shal fail of their duty herein . and ordains these presents to be printed , and published at the mercat cross of edinburgh , and hail remanent mercat orosses of the head burghs of the several shires , and stewartries within this kingdom , that none may pretend ignorance : and that copies be dispatched in the usual manner , to the sheriffs and stewarts , baillies of regalities , or their deputs , and magistrats of burghs ; as likewise to all ministers , that they may seriously exhort all persons to a sincere and devout observance of the premisses . ii. act regulating citations before the parliament . may 28 , 1695. his majesty , with the advice and consent of the estates of parliament , finding it necessary that the order of summonding privat parties to appear before them be cleared and regulat , do therefore statute and ordain , that the manner of summonding privat parties , in actions raised either before , or during the sitting of the parliament , shal be for hereafter , and from the day and date hereof in this manner , viz. that in prosecution of protests for remeid of law , the party at whose instance summonds is to be granted , may give in his bill , containing the matter of his cause or complaint , signed by himself , or an advocat for him , which being subscribed by one of the six clerks of parliament , and presented before the sitting of the parliament , to any of the officers of state , or the time of the sitting of the parliament , to the lord chancellor , or president of the parliament for the time , or any of the said officers of state , the same may be by them past in course , and that as to all other causes that may be brought before the parliament , summonds and warrands for citation shal for hereafter only be granted by deliverance either of parliament in time of parliament , or of the lords of session upon a summar citation , to abide neither continuation or roll , in praesentia , in the recesses and intervalls of parliament , upon a bill containing subscribed and presented as above , and no otherwise : which warrands for citation being granted , summonds in his majesties name shal be thereon directed , to macers , if the party cited be within the town of edinburgh , for summonding the said party , if within the said town of edinburgh , on fourty eight hours , and if elsewhere within the kingdom , ( excepting orkney and zetland ) upon fifteen days warning , or if in orkney or zetland , upon fourty days personally , or at his dwelling house ; or if without the kingdom , upon sixty days warning , at the mercat cross of edinburgh and peer and shoar of leith , to compear before his majesty , and the said estates of parliament , where and when the parliament shal be appointed to meet , or shal be met for the time , with continuation of days , and with certification . and also , for summonding of witnesses , as is usual before the lords of council and session , which summonds to be expede by deliverance , as said is , shal pass under the signet of the session ; and the party at whose instance the same is raised , shal pay to the clerk of parliament or session aforesaid , for writing and subscribing of the bill and letters , the sum of twelve pound scots and no more , on any pretence whatsoever , and for affixing the signet the sum of three pounds scots and no more : declaring that if any adjournment of parliament one or more shal happen to interveen , betwixt the giving of citations , in manner foresaid , and the day of compearance , the foresaid summonds shal nevertheless still stand in force , for obliging the parties and witnesses summoned to compear at the day to which the parliament shal be adjourned , and when ever the same shal first meet . and furder , it is hereby declared , that at the said day of compearance before the parliament , being so met , or any other lawful day thereafter , it shal be leasome to the clerks of parliament , at the desire of the party pursuer , to call the foresaid summonds , after the opening of the house , and before the sitting down of the parliament , at the patent gate of the parliament-house , and if the party summoned compear , to mark the same , that the summonds with the executions , and the other peices produced by the pursuer may be given out to see and answer , to the effect the same may be seen and returned , within six days in the common form , and so the cause or complaint may be ready prepared for the parliament , to proceed therein , when the same shal be again called in their presence : providing always , that no decreets be given out in absence , but upon special application to , and sentence pronounced by the parliament , and no otherwise . and excepting always from this act , all summonds of treason , and for other publick crimes , and executions , and processes thereupon , which are to proceed as formerly . and lastly , providing that the foresaid citations to be made by deliverance of the lords of session , shal found no exception of prejudiciality against any party , in any action , may be raised , until the foresaid citation be called before , and sustained by the parliament . iii. act adjourning the summer-session till the first of july 1695. may 30. 1695. our soveraign lord considering that the sitting of the parliament , begun the ninth of may instant , may continue for the month of iune next , whereby the leidges cannot attend the summer session in its ordinar time ; do therefore ; with advice and consent of the estates of parliament , adjourn the session , ( which should be in course the first of june next ) to the first of iuly next , continowing all actions and causes depending before the lords of session to the said first of july : and his majesty dispenses in the mean time , with the sitting of all inferior courts , as if the session had not been adjourned , and notwithstanding of the sitting of the parliament : and further declares , that the time and space to run , betwixt the said first of iune and the first of iuly , shall not be reckoned in any short prescription . and ordains these presents to be published at the mercat-cross of edinburgh , and to be forthwith printed , that the leidges may be thereby certified thereof . iv. act anent the iustice court. iune 7 , 1695. our soveraign lord , for the better regulating of the justice court , and facilitating and more sure ordering of the form and method of process therein used : do therefore , with advice and consent of the estates of parliament , statute and ordain , that in all time coming , the use and custom hitherto observed in that court of advocats or procurators their dictating , and the clerks writing of the defences , duplies , triplies , quadruplies and so forth for the defender and pursuer be discharged and laid aside , and that in place thereof , his majesties advocat or other advocats or procurators for the pursuer , with the advocats or procurators for the defender or pannel debate the relevancy viva voce , and that after the said dispute viva voce is ended , then time be allowed by the lords and judges of the said court , to the effect after-mentioned , and that the kings advocat , or advocats , or procurators for the pursuer , do within the space of fourty eight hours , give in to the clerk his information in writing subscribed with his hand , that the advocats or procurators for the pannel may take it up , and give in their answers in writing also under their hands , within other fourty eight hours , which information and answers , shall be by the clerk recorded in the books of adjournal , in place of the foresaid written dispute formerly in use , and then at the advising the said information and answers , shall be first read in open court , and if any thing be found new on either side , and not noticed by the other party , the parties or judges shall point the same to the other party concerned , and hear both parties thereon viva voce , the clerk minuting in presence of , and at sight of the said judges what is so further debated , and then the said judges shal proceed to the advising . and his majesty with advice and consent foresaid , ratifies , approves , and confirms the whole rights , powers and priviledges of the said court of justice , and of the lord justice general , lord justice clerk and other judges , and all other members thereof . and it is further hereby statute and ordained , that in all capital crimes wherein inferior criminal courts were hitherto restricted , to try and execute within three suns , this time shall be hereafter restricted to the tryal and sentence only , but not to the time of execution , which is hereby left to the discretion of the judge , not exceeding nine days after sentence . v. act anent principals and cautioners . iune 7. 1695. his majesty and the estates of parliament , considering the great hurt and prejudice , that hath befallen many persons and families , and oft times to their utter ruine and undoing , by mens facility to engage as cautioners for others , who afterwards failing , have left a growing burden on their cautioners without relief : therefore , and for remeid thereof , his majesty with advice foresaid , statutes and ordains , that no man binding and engaging for hereafter , for and with another conjunctly and severally , in any bond or contracts for sums of money , shall be bound for the said sums for longer than seven years after the date of the bond , but that from and after the said seven years , the said cautioner shall be eo ipso free of his caution ; and that whoever is bound for another , either as express cautioner , or as principal , or co-principal , shall be understood to be a cautioner , to have the benefit of this act ; providing , that he have either clause of relief in the bond , or a bond of relief apart , intimat personally to the creditor at his receiving of the bond , without prejudice always to the true principals , being bound in the whole contents of the bond or contract ; as also , of the said cautioners being still bound , conform to the terms of the bond within the said seven years , as before the making of this act ; as also providing that what legal diligence by inhibition , horning , arrestment , adjudication , or any other way , shall be done within the seven years by creditors against their cautioners , for what fell due in that time , shall stand good , and have its course and effect after the expyring of the seven years , as if this act had not been made . vi. act regulating the sale and payment of bankrupts estates . iune 18 , 1695. his majesty with advice and consent of the estates of parliament , for the further clearing and explaining of former laws , anent the sale of bankrupts estates , statutes , enacts , and declares , that it shall be lawful to all purchasers of bankrupts estates , after the space of one year , counting from the decreet of sale , and to such as have obtained decreets of sale , after the term of whitsunday one thousand six hundred and ninety six years , to consign the whole price offered , with the annualrent due at the time of the consignation , or so much thereof , as remains in the hands of the purchaser , over and above what is warrantably payed to creditors preferred by the lords of session , in the hands of the magistrats and town council of edinburgh , and their thesaurer for the time , who are hereby obliged and ordained to receive the same , upon their receipt in the terms after-mentioned : and for the greater benefit of the creditors , are further allowed to keep in their hands the consigned money , for the space of a year from the next term of candlesmass , whitsunday , lambmass , or martinmass after the consignation , upon payment of three per cent of annualrent , ay and while it be called for : and the said magistrats , town council , and thesaurer of edinburgh for the time , shall be , and are hereby obliged to make forthcoming , the consigned money in whole , or in part , with the annualrent thereof , at three per cent as said is , according as they shal be ordered by the saids lords of session , with certification if they failzie , that they shall be charged with horning for that effect , and shall be thereafter lyable , not only in the tenth part of the principal sum , called for in name of penalty ; but also in the ordinary annualrent of the said principal , ay and while the compleat payment thereof . and because purchasers of lands affected with liferents , have retention of a share of the price : it is hereby declared , that the purchaser shall be allowed to consign what remains in his hands , after the decease of the liferenter in manner foresaid ; he always , making due intimation of the consignation to the creditors who got the rest of the price . and his majesty with consent foresaid , statutes , enacts , and declares , that the purchaser paying the price offered to the creditors , according as they are or shall be ranked and preferred by the lords of session , or consigning the same in manner foresaid , shall be for ever exonered , and the security given for the price , shall be delivered up to be cancelled , and the lands and others purchased and acquired , disburdened of all debts or deeds of the bankrupt or his predecessors , from whom he had right , and that the bankrupt , his heirs , or appearand heirs , or creditors without exception of minority , not compeating or conceiving themselves to be prejudged , shall only have access to pursue the receivers of the price and their heirs , and reserving to the minor leased his relief as accords : and further , his majesty with advice and consent foresaid , doeth hereby authorise the lords of session , to grant warrant for charging the magistrats and thesaurer of edinburgh for the time , to make payment of the sums consigned to the several creditors according to their preferences , upon the saids creditors their several applications to the lords , and consigning in the clerks hands , dispositions and conveyances in favours of the purchasers , in so far as their several rights may affect the purchase ; as also , in case any debate remain undetermined amongst the creditors anent their preferences , it shall be lawful to the saids lords , upon application of the saids creditors , to grant warrand for uplifting and employing the sums consigned , upon sufficient security bearing annualrent . vii . act for six months supply upon the land-rent . iune 20. 1695. the estates of parliament taking into their consideration , the dangers that still threaten this kingdom , by reason of the continuance of the present war , which visibly require the keeping up of the standing forces , and the supplies necessary for their maintainance ; do therefore humbly and cheerfully for themselves , and in name of this kingdom whom they represent , make offer to his majesty of a supply of four hundred thirty two thousand pound , extending to six months cess ; which new supply , is to be raised and uplifted out of the land-rent of this kingdom in the same manner , and conform to the proportions of the shires and burghs contained in the sixth act of the second session of this current parliament , dated the seventh day of iune 1690 , providing always that the proportions of burghs , be rated and payed as their tax-roll now is , or that be settled by themselves ; and this supply to be payed in two parts , either answering to three months cess , viz. two hundred and sixteen thousand pounds as being the first half thereof , to be payed betwixt and the first day of august , in this present year one thousand six hundred and ninety five : and the other two hundred and sixteen thousand pound , as the other half thereof , betwixt and the first of february , one thousand six hundred ninety six years . and his majesty considering , that this supply is granted for such a necessary use , doth with advice and consent of the estates of parliament , declare , that no person or persons shall be exempted from payment of their proportions of this supply for their lands , upon any pretext whatsoever ( excepting mortified lands , and the lands of new-milns , belonging to the woolenmanufactory there , for which mortified lands , and lands of new-milns , deduction is to be allowed in the quota of the respective shires ) notwithstanding of any former law , priviledge , or act of parliament in the contrary . and his majesty with advice and consent foresaid , doth nominat and appoint the same persons , who are named in the foresaid act of parliament , who are alive , and have qualified themselves according to law , or shall qualifie themselves betwixt and the last tuesday of iuly next to come , and such others as have been since nominat by the privy council , to be commissioners for ordering and uplifting this supply ; with the same power to them , to choice their own clerk , and to do every thing that may concern the said supply , as is prescribed and appointed by the said act , holding the same as repeated herein , and ordains the same execution to pass for in-bringing thereof , as is provided by that act in all points . and ordains the first meeting of the said commissioners for the shires , to be at the head burghs thereof upon the third tuesday of iuly next , at ten of the clock , for the shires on this side of the river of tay : and the last tuesday of iuly next , for the shires benorth tay. and requires the sheriffs and stewarts , or their deputs , to intimat the same to the commissioners of the respective shires and stewartries , with power to them to appoint their subsequent dyets of meeting and their conveener from time to time : and also to appoint collectors with sufficient caution , as they shall think fit . and commits to his majesties privy council , upon the death or not acceptance of any of the commissioners of supply , appointed by this act , to nominat and appoint others in their places . and his majesty with advice and consent foresaid , does declare , that all clauses contained in the former acts of parliament , and convention of estates , in relation to the inbringing of the cess , and quartering , and anent ryding mony , shall stand in full force as to this supply now imposed , in the same manner as if they were insert herein ; except in so far , as these acts of parliament or convention , are innovat or altered by the foresaid sixth act of the second session of this current parliament . and it is hereby declared , that no persons lyable in payment of this supply , shall be holden to produce their discharges or receipts of the same , after three years from the respective terms of payment , unless diligence be done by denunciation before elapsing of the said three years . and because by the supply hereby granted , the land-rent and burghs of this kingdom are only burdened ; and it being just that the personal estates in money , should bear some proportion of the burden : therefore , his majesty with advice and consent foresaid , statutes and ordains , that every debitor owing money within the kingdom at six per cent of interest , shall in the payment of his annualrents for one year , have retention in his own hands of one of six of the said annualrents , and this retention to be for the whole year , viz. from whitsunday one thousand six hundred and ninety five , to whitsunday one thousand six hundred and ninety six years . and it is hereby declared , that it shall be usury for any creditor , not to grant the said retention . follows the quota of supply , payable monthly by the several shires of the kingdom . the sheriffdom of edinburgh , the sum of three thousand one hundred and eighty three pounds , eight shillings scots money monthly . the sheriffdom of haddington , the sum of two thousand seven hundred and eighty two pounds , six shillings . the sheriffdom of berwick , the sum of two thousand eight hundred and thirteen pounds , one shilling . the sheriffdom of roxburgh , the sum of three thousand six hundred and eighty six pounds , seventeen shillings , six pennies . the sheriffdom of selkirk , the sum of nine hundred and four pounds , nine shillings . the sheriffdom of peebles , the sum of one thousand and fourty two pounds , eight shillings . the sheriffdom of lanerk , the sum of three thousand and ninety one pounds , twelve shillings . the sheriffdom of dumfreis , the sum of two thousand seven hundred and twelve pounds , seventeen shillings . the sheriffdom of wigton , the sum of one thousand and four pounds , fifteen shillings . the stewartry of kirkcudbright , the sum of one thousand six hundred and seventy four pounds , eleven shillings . the sheriffdom of air , the sum of three thousand eight hundred and seventy pounds , five shillings . the sheriffdom of dumbarton , the sum of seven hundred and sixty four pounds , ten shillings . the sheriffdom of bute , the sum of three hundred and eight pounds , eight shillings , and eight pennies . the sheriffdom of renfrew , the sum of one thousand three hundred and fifty three pounds , seven shillings . the sheriffdom of striviling , the sum of one thousand seven hundred and fifty four pounds , four shillings , and six pennies . the sheriffdom of linlithgow , the sum of one thousand one hundred and sixty nine pounds , eighteen shillings . the sheriffdom of perth , the sum of five thousand and thirty eight pounds , fourteen shillings . the sheriffdom of kincardine , the sum of nine hundred and eighty four pounds , one shilling . the sheriffdom of aberdeen , the sum of four thousand and seventy seven pounds , nineteen shillings . the sheriffdom of inverness , the sum of one thousand two hundred and thirteen pounds , one shilling , and six pennies . the sheriffdom of ross , the sum of one thousand one hundred and thirty one pounds , six shillings . the sheriffdom of nairn , the sum of two hundred and seventy seven pounds , sixteen shillings . the sheriffdom of cromarty , the sum of two hundred and fourteen pounds . the sheriffdom of argyle , the sum of one thousand nine hundred and fourty seven pounds , ten shillings , and nine pennies . the sheriffdom of fife and kinross , the sum of five thousand one hundred and seventy two pounds . the sheriffdom of forfar , the sum of three thousand two hundred and seventy three pounds , fifteen shillings . the sheriffdom of bamff , the sum of one thousand one hundred and fifty pounds , four shillings . the sheriffdom of sutherland , the sum of three hundred and thirty six pounds . the sheriffdom of caithness the sum of five hundred & ninety nine pounds , five shillings . the sheriffdom of elgin , the sum of one thousand and fifty nine pounds , five shillings . the sheriffdom of orkney and zetland , the sum of one thousand and eighty eight pounds , ten shillings . and the shiriffdom of clackmannan , the sum of three hundred and fifty two pounds , seven shillings and three pennies scots money . follows the quota of supply , payable monthly by the several burghs of the kingdom . the city of edinburgh , the sum of three thousand eight hundred and eighty pounds scots monthly . the burgh of perth , the sum of three hundred and sixty pounds . the burgh of dundee , the sum of five hundred and sixty pounds . the city of aberdeen , the sum of seven hundred and twenty six pounds . the burgh of stirling , the sum of one hundred and seventy two pounds . the burgh of linlithgow , the sum of one hundred and fifty six pounds . the city of st. andrews , the sum of seventy two pounds . the city of glasgow , the sum of one thousand and eight hundred pounds . the burgh of air , the sum of one hundred and twenty eight pounds . the burgh of haddington , the sum of one hundred and ninety two pounds . the burgh of dysart , the sum of thirty pounds . the burgh of kirkaldy , the sum of two hundred and eighty eight pounds . the burgh of montrose , two hundred and fourty pounds . the burgh of couper , one hundred and eight pounds . the burgh of anstruther-easter , eighteen pounds . the burgh of dumfreis , the sum of two hundred and thirty pounds . the burgh of inverness , the sum of one hundred and eighty pounds . the burgh of burnt-island , the sum of seventy two pounds . the burgh of innerkeithing , the sum of thirty pounds . the burgh of kinghorn , the sum of fourty two pounds . the burgh of breichin , the sum of fifty four pounds . the burgh of irwine , the sum of sixty pounds . the burgh of jedburgh , the sum of one hundred and two pounds . the burgh of kirkcudbright , the sum of thirty six pounds . the burgh of wigton , the sum of thirty six pounds . the burgh of dumfermling , the sum of ninety pounds . the burgh of pittenweem , the sum of thirty pounds . the burgh of selkirk , the sum of seventy two pounds . the burgh of dumbarton , the sum of thirty pounds . the burgh of renfrew , the sum of thirty six pounds . the burgh of dumbar , the sum of sixty pounds . the burgh of lanerk , the sum of sixty pounds . the burgh of aberbrothock , the sum of fifty four pounds . the burgh of elgin , the sum of one hundred and thirty eight pounds . the burgh of peebles , the sum of sixty six pounds . the burgh of crayl , the sum of thirty six pounds . the burgh of tain , the sum of thirty pounds . the burgh of culross , the sum of twenty four pounds . the burgh of bamff , the sum of fourty two pounds . the burgh of whythorn , the sum of eight pounds . the burgh of forfar , the sum of twenty four pounds . the burgh of rothsay , the sum of thirty pounds the burgh of nairn , the sum of nine pounds . the burgh of forres , the sum of twenty four pounds . the burgh of rutherglen , the sum of twelve pounds . the burgh of north-berwick , the sum of six pounds . the burgh of anstruther-wester , the sum of six pounds . the burgh of cullen , the sum of eight pounds . the burgh of lauder , the sum of thirty pounds . the burgh of kintore , the sum of nine pounds . the burgh of annand , the sum of twelve pounds . the burgh of lochmabban , the sum of eighteen pounds . the burgh of sanquhar , the sum of six pounds . the burgh of new galloway , the sum of six pounds . the burgh of kilrenny , the sum of eight pounds . the burgh of fortrose , the sum of eighteen pounds . the burgh of dingwal , the sum of eight pounds . the burgh of dornoch , the sum of eighteen pounds . the burgh of queens-ferry , the sum of fifty four pounds . the burgh of inveraray , the sum of twenty four pounds . the burgh of inverury , the sum of twelve pounds . the burgh of week , the sum of twenty pounds . the burgh of kirkwal , the sum of seventy two pounds . the burgh of inverbervy , the sum of six pounds . the burgh of stranraer , the sum of twelve pounds . mr. john buchan agent for the burrows to make up the quota for the burrows one thousand two hundred pounds scots . follows the commissioners of supply , ordered by the parliament to be given in by the noblemen and commissioners from the several shires ; in place of those dead , or not qualified , since the year 1690. for the shire of edinburgh . the lord ross , sir john gibson , dalmenie , sir robert dickson of sornebeg , sir george hamilton of barnton , carlops , rickarton-craig , james murray of poltoun , mr. james dalrymple of killoch , baillie alexander calderwood in dalkeith , sir james stewart his majesties advocat , sir william baird of newbyth , baillie john nairn in dalkeith . for the shire of haddingtoun . the earl of roxburgh , lord alexander hay , mr. alexander hume of crichne● , william purvis younger of ewfoord , james moor of bourhouses , john hay of athirstoun , john hay of east-hope , james rew of chesters , mr. hugh dalrymple of north-berwick , sir john clerk of pennycook , james hume of gamilshiels , david maitland of soutrac , william skirvine of plewlandhill , thomas hamilton of olive-slob , hoptouns chamberlain , patrick cockburn of clerkingtoun younger , wauchope of stotincleugh , james m cmorlan of the earl of haddingtouns chamberlain . for the shire of roxburgh . the earl of roxburgh , the laird of riddel younger , the laird of mangertoun , the laird of boon-jedburgh , the laird of timpenden , john scot of weems , william turnbull of langraw , walter cairncross of hilslop , james lithgow of drygrains younger , robert davidson of hownam , andrew young of oxnam-side , robert davidson of marchcleugh , mr. archibald douglas brother to cavers , gideon eliot of northsymptoun , william scot of burnhead . for the shire of selkirk . the earl of roxburgh , francis scot of balzielie , william eliot of borthwick-brae , george curror of hartwood-burn , william ogilvy of hartwood-myres , the laird of gala younger , the eldest baillie of selkirk for the time , mr. john murray sheriff deput of selkirk . for the shire of peebles . adam murray of cardon , alexander monteith of chappel-hill , alexander veitch younger of glen , william burnet of barns , john law of netherurd . for the shire of lanerk . the earl of wigtoun , the earl of selkirk , james master of carmichael the laird of lee , sir william hamilton of whitelaw , one of the senators of the colledge of justice , sir william stewart of castle-milk , john baillie of welstoun , john somervel of gladstones , allan lockart younger of cleghorn , gawin hamilton of raploch , the laird of blackwood younger , the laird of ferm younger , the laird of shiel-hill , william somervel of corehouse , mr. archibald hamilton of dalserff , the laird of munkland , the laird of boigs , john hamilton of udstoun , james anderson of stobcorss , the laird of cultness younger , john wardrop of drummarnock , the laird of mauldsly , the laird of braidisholm . for the shire of wigtoun . james earl of galloway , william stewart younger of castle-●ewart , patrick m cdowal of culgrot , john dalrymple son to the master of stairs . for the shire of air. the earl of lowdoun , the lord kennedy , the lord bargeny , mr. william cochran of kilmaronock , the laird of langshaw younger , the laird of dunlap , the laird of ralstoun , sir archibald muir of thorntown , james crawfurd of newark , thomas boyd of pitcoun , the laird of crawfurdland younger , mr. alexander crawfurd of fergusnil , john crawfurd younger thereof , james cochran of mayns-hill , neivin of munkriding , william cunninghame of ashinyards , john dalrymple son to the master of stairs , sir iohn cochran of ochiltrie , iohn cochran of waterside , faucher of gilmils-croft , william baillie of munktoun , iames campbel of iurebank , the lairds of logan elder and younger , hugh crawfurd of drumdow , hugh dowglass of garallan , adam aird of catharin , iames m cadam of waterhead , the laird of dunduff , kennedy younger of drumellan , iames riddoch of midtown baillie of cumnock , mr. william crawfurd of dalragills , david boswal of brae-head , david kennedy of kirkmichael , mr. iohn schaw of drumgrains , hugh kennedy of bennan . for the shire of renfrew . porterfield of duchil , iames hamilton of aikenhead , gawin ralstoun of that ilk , ludovick houstoun of iohnstoun younger , hall of fulbarr maxwells of southbarr elder and younger . for the shire of stirling . the lord forrester , the lord cardross , the laird of bedlormie , iohn ross of nuick , archibald buntin of balglass , george buchannan of ballachrum , thomas buchannan of roquhan , iohn buchanan of cralgyvairn , walter buchannan of balfunning , iohn m clauchlan of auchintroig , duncan buchannan of harperstoun , iohn forrest of pardiven , david forrester of denovane , iohn cuthil of stonniewood , iames rankin of balhumilzear , thomas crawfurd of manuel-miln , iohn campbel younger of douan , robert forrest of bankhead , mr. iohn areskin present governour of the castle of stirling , robert hay of candy , archbald naper of bankell . for the shire of linlithgow . the earl of annandale , the lord cardross , lord iohn hamilton , lieutenant collonel iohn areskin , iohn dalrymple son to the master of stairs , iames dowglass of pompherstoun , david dundass of philipstoun , patrick dickson of westbinnie , iames hamilton of badderston , iames carmichael of pottieshaw , the laird of duntarvie , the laird of barbachlay , the laird of wrae , the laird of duddingstoun younger , patrick dundass of breastmiln . for the shire of kincardine . john arbuthnet of fordown , george allardice of that ilk , mr. james keith of auchorsk sheriff-deput of kincardine , william forbes younger of moniemusk , alexander ross of tullisnaucht , david melvil of pitgarvie , william strauchan of strath . for the shire of aberdeen . mr. patrick ogilvie of cairnbulg , william frazer of broadland , the laird of innercald , mr. james scougal , mr. robert forbes of birsmore , the eldest baillie of frazersburgh for the time being , the laird of mouny , john forbes of tulliegrig , alexander leslie of little-wartle , mr. alexander frazer of powis , john forbes of innerdraen , alexander keith of kidshill , william hay of earnhill . for the shire of inverness . james grant of gallowie , patrick grant of rothiemurchus , robert grant of garthinmore , patrick grant of raick , james grant of tulloch , william grant of dalliechappel . for the shire of cromartie . hugh rose of kilravock , john urquhart of craighouse , alexander mackenzie of bellon , aeneas mackleod of catboll , mr. roderick mackenzie in tarrel , kenneth mackenzie of culbo , adam gordon of dalfollic , roderick mackenzie of navitie . for the shire of argile . james campbel younger of ardkinglass , patrick campbel of duntroon , colin campbel chamberlain to the earl of argile , dougal campbel younger of kilberrick , neil macneil fiar of teynish , robert campbel fiar of carrick , archibald campbel of clunes baillie of yla , ronald campbel of laggan-lochan , george campbel of dall , archibald campbel of shindarlin , donald campbel of glencaradel , john campbel baillie of jura , archibald campbel of craigage , angus campbel younger of skipnedge . for the shire of fife . the lord yester , the master of yester , the laird of lundie , sir alexander bruce of broomhall , mr. alexander anstruther of newark , the laird of durie , mr. john prestoun of drumraw , thomas beaton of tarvit , the laird of murdocairnie , macgill younger of rankeillor , the laird of kirkness , the laird of dowhill , mr. robert beaton of craigfoodie younger , the laird of bannochy younger , the laird of dinboig , mr. david scrimzeour of kirkmore , john dempster younger of pitliver , weems of bogie younger , the laird of bandone , john melvil of carskirdo , the laird of balcanquel younger , mr. john mitchel of balbairdie , lundie of baldastard , george moncreiff of sauchope , john hay of naughtoun younger , walter boswell of balbertoun , alexander swinton of strathore , james maxwel of achibank , james clelland of piddennis . for the shire of forfar . the laird of loggie younger , the laird of strickathro , the laird of smiddiehill younger , the laird of rossie younger , mr. james lyel of balhall . for the stewartry of kirkcudbright . james earl of galloway , lord bazile hamilton , patrick horron of kirrachtrie , john mackie of palgown , alexander mackie younger of palgown , mackulloch of bareholm , william muir tutor of cassincarrie , william gordon of schirmoirs , robert gordon of garerie , james gordon of largmoir , robert gordon of airds , william maxwel younger of newlands , robert macklellan of barmagaleim , charles macklellan of collin , andrew corsan of balmagan , grier of dalscerth . for the shire of sutherland . george monro of culrain , aeneas mackleod of catboll , david ross of innerchasly , and david sutherland younger of kinnald . for the shire of caithness . alexander sinclair of braibster , mr. john campbel commissar of caithness , james murray of clairdon , mr. william caldell of galshfield , daniel budge of tostingall , william sutherland of geese , john sinclair of forss , donald williamson of banaskirk , patrick murray of pennyland , george sinclair of barroch , david sinclair of freswick . for the shire of elgin . ludovick dumbar of grainge , joseph brody of milntown , the laird of innes younger , alexander brody of duncairn , robert cumming of relugus . for the shire of ross. the laird of gairloch , john mackenzie of cowle younger , colin mackenzie uncle to the laird of gairloch , mr. simon mackenzie of allans , george monro of lamelair younger , colin robertson of kindeis , lauchlan mackenzie of assin younger , david monro tutor of fyress , robert monro of auchnagart , hector monro of daan younger , aeneas macleod of catboll , william ross of easterfearn , mr. charles mackenzie of loggy , mr. alexander mackenzie of dachmaluick younger , mr. alexander ross of pitkearie , abraham lesly of findrossie , mr. george mackenzie of bellamuckie , roderick macleod of cambuscutrie , ronnald bayn of knockbayn , john bayn younger of tulloch , mr. colin mackenzie of muir , alexander forrester of cullinald younger . viii . act for a company tradeing to affrica and the indies . june 26. 1695. our soveraign lord taking into his consideration , that by an act past in this present parliament , intituled act for encouraging of forraign trade ; his majesty for the improvement thereof , did with advice and consent of the estates of parliament , statute and declare , that merchants more or fewer may contract and enter into such societies and companies , for carrying on of trade , as to any subject of goods or merchandise to whatsomever kingdoms , countries , or parts of the world , not being in war with his majesty , where trade is in use to be , or may be followed , and particularly , beside the kingdoms and countreys of europe , to the east and west indies , the streights , and to trade in the mediterranian , or upon the coast of affrica , or in the northern parts , or elsewhere as above : which societies and companies being contracted and entered into , upon the terms and in the usual manner , as such companies are set up , and in use in other parts consistant always with the laws of this kingdom : his majesty with consent foresaid , did allow and approve , giving and granting to them and each of them all powers , rights and priviledges , as to their persons ; rules and orders , that by the laws are given to companies allowed to be erected for manufactories ; and his majesty for their greater encouragement , did promise to give to these companies , and each of them his letters patent under the great seal , confirming to them the whole foresaid powers and priviledges , with what other encouragement his majesty should judge needful , as the foresaid act of parliament at more length bears . and his majesty understanding that several persons as well forraigners as natives of this kingdom , are willing to engage themselves with great sums of money in an american , affrican , and indian trade to be exercised in and from this kingdom ; if inabled and incouraged thereunto by the concessions , powers and priviledges needful and usual in such cases . therefore , and in pursuance of the foresaid act of parliament , his majesty with advice and consent of the saids estates of parliament , doth hereby make and constitute iohn lord belhaven , adam cockburn of ormistoun , lord justice clerk , mr. francis montgomery of giffen , sir iohn maxwell of pollock , sir robert chiesly present provest of edinburgh , iohn swintoun of that ilk , george clark late baillie of edinburgh , mr. robert blakewood , and iames balfour merchants in edinburgh , and iohn corss merchant in glasgow , william paterson esquire , iames fowlis , david nairn esquires , thomas deans esquire , iames cheisly , iohn smith . thomas coutes , hugh frazer , ioseph cohaine , daves ovedo , and walter stuart merchants in london , with such others as shal joyn with them within the space of twelve moneths after the first day of august next , and all others , whom the foresaid persons and these joyned with them , or major part of them being assembled , shal admit and joyn into their joint-stock and trade , who shal all be repute , as if herein originally insert to be one body incorporate , and a free incorporation , with perpetual succession , by the name of the company of scotland trading to affrica , and the indies : providing always , likeas , it is hereby in the first place provided , that of the fond or capital stock that shall be agreed to , be advanced and imployed by the foresaid undertakers , and their co-partners ; the half at least shal be appointed and allotted for scottish men within this kingdom , who shal enter and subscribe to the said company , before the first day of august , one thousand six hundred and ninety six years : and if it shall happen , that scots men living within this kingdom , shal not betwixt and the foresaid term , subscribe for , and make up the equal half of the said fond or capital stock , then and in that case allannerly , it shall be , and is hereby allowed to scots men residing abroad , or to forraigners , to come in , subscribe , and be assumed for the superplus of the said half , and no otherwise : likeas , the quota of every mans part of the said stock whereupon he shal be capable to enter into the said company , whether he be native or forraigner , shall be for the least one hundred lib. sterl . and for the highest , or greatest three thousand lib. sterl . and no more directly nor indirectly in any sort : with power to the said company to have a common seal , and to alter and renew the same at their pleasure , with advice always of the lyon king at arms ; as also to plead and sue , and be sued ; and to purchass , acquire , possess , and enjoy lordships , lands , tenements , or other estate real or personal of whatsoever nature or quality , and to dispose upon and alienate the same , or any part thereof at their pleasure , and that by transferrs and assignment , made and entered in their books and records without any other formality of law , providing always , that such shares as are first subscribed for , by scots men within this kingdom shal not be alienable to any other than scots men living within this kingdom ; that the foresaid transfers and convoyancies as to lands and other real estate ( when made of these only and a part ) be perfected according to the laws of this kingdom anent the convoyance of lands and real rights , with power likewayes to the foresaid company , by subscriptions or otherways , as they shall think fit to raise a joint stock or capital fond of such a sum or sums of money , and under and subject unto such rules , conditions and qualifications , as by the foresaid company , or major part of them when assembled shal be limited and appointed to begin , carry on and support their intended trade of navigation , and whatever may contribute to the advancement thereof . and it is hereby declared , that the said joint stock or capital fond , or any part thereof , or any estate , real or personal , ships , goods , or other effects of and belonging to the said company , shal not be lyable unto any manner of confiscation , seisure , forfaulture , attachment , arrest or restraint , for and by reason of any embargo , breach of peace , letters of mark or reprisal , declaration of war with any forraign prince , potentate , or state , or upon any other account or pretence whatsomever ; but shal only be transferable , assignable , or alienable in such way and manner and in such parts and portions , and under such restriction , rules and conditions , as the said company shal by writing in and upon their books , records and registers direct and appoint , and these transfers and assignments only , and no other shal convoy the right and property , in and to the said joint stock , and capital fond and effects thereof above-mentioned , or any part of the samen , excepting always as is above-excepted , and that the creditors of any particular member of the company may by their real diligence affect the share of the profit falling , and pertaining to the debitor , without having any further right or power of the debitors part and interest in the stock or capital fond , otherwise than is above-appointed , and with this express provision , that whatever charges the company may be put to , by the contending of any of their members deceased , or of their assigney , creditors or any other persons in their rights : the company shal have retention of their charges and expenses in the first place , and the books , records , and registers of the said company or authentick abstracts , or extracts out of the same are hereby declared to be good and sufficient for evidents in all courts of judicator , and else where . and his majesty with advice foresaid , farder statutes and declares , that the said iohn lord beilhaven , adam cockburn of ormistoun , lord justice clerk , mr. francis montgomery of giffen , sir iohn maxwel of pollock , sir robert chiesly present provost of edinburgh , iohn swintoun of that ilk , george clark late baillie of edinburgh , mr. robert blakewood , and iames balfour merchants in edinburgh , and iohn corss merchant in glasgow , william paterson esquire , iames fowlis , david nairn esquires , thomas deans esquire , iames chiesly , iohn smith , thomas coutes , hugh frazer , ioseph cohaine , daves ovedo , and walter stuart merchants in london , and others to be joyned with , or assumed by them in manner above-mentioned , and their successors , or major part of them assembled in the said company , shall and may in all time coming by the plurality of votes agree , make , constitute , and ordain all such other rules , ordinances and constitutions as may be needful for the better government and improvement of their joynt stock , or capital fond in all matters and things relateing thereunto : to which rules , ordinances , and constitutions , all persons belonging to the said company , as well directors as members thereof , governours , or other officers , civil or military , or others whatsoever shall be subject , and hereby concluded ; as also to administrat and take oaths de fideli , and others requisit to the management of the foresaid stock and company . and the said company is hereby impowered to equipp , fit , set out , fraught , and navigat their own , or hired ships , in such manner as they shall think fit , and that for the space of ten years from the date hereof , notwithstanding of the act of parliament one thousand six hundred and sixty one years , intituled act for encouraging of shipping and navigation , where with his majesty with consent foresaid dispenses for the said time allanerly , in favours of the said company , and that from any of the ports or places of this kingdom , or from any other parts or places in amity , or not in hostility with his majesty , in warlike or other manner to any lands , islands , countreys , or places in asia , affrica , or america , and there to plant collonies , build cities , towns , or forts , in or upon the places not inhabited , or in , or upon any other place , by consent of the natives and inhabitants thereof , and not possest by any european soveraign , potentate , prince , or state , and to provide and furnish the foresaid places , cities , towns , or forts with magazines , ordinances , arms , weapons , ammunition , and stores of war , and by force of arms to de end their trade and navigation , collonies , cities , towns , forts , and plantations , and other their effects whatsoever ; as also to make reprisals , and to seek and take reparation of damnage done by sea , or by land , and to make and conclude treaties of peace , and commerce with the soveraigns , princes , estates , rulers , governours , or proprietors of the foresaid lands , islands , countreys , or places in asia , affrica , or america ; providing always , likeas , it is hereby specially provided , that all ships imployed by them shall return to this kingdom with their effects , under the pain of confiscation , forefaulture , and seizure of the ship and goods , in case of breaking of bulk before their return , excepting the case of necessity , for preserving the ship , company and loadning allanerly . and his majesty with consent foresaid , doth farder statute and ordain , that none of the leidges of this kingdom shall , or may trade or navigat to any lands , islands , countreys , or places in asia , or affrica , in any time hereafter , or in america , for , and during the space of thirty one years , to be counted from the passing of this present act , without license and permission in writing from the said company : certifying all such as shall do in the contrair hereof , that they shall forefault and omit the third part of the ship , or ships , and of the cargo , or cargoes therein imployed , or the value thereof , the one hal to his majesty as escheat , and the other half to the use and benefit of the said company : for the effectual execution whereof , it shall be lawful to the said company , or any imployed by them , to seize the saids ships and goods in any place of asia , or affrica , or at sea upon the coasts of asia , or affrica , upon the transgression foresaid , by force of arms , and at their own hand , and that without the hazard of incurring any crime , or delinquency whatsomever on account of the said seizure , or any thing necessarly done in prosecution thereof , excepting always , and without prejudice to any of the subjects of this kingdom to trade and navigat , during the said space to any part of america , where the collonies , plantations , or possessions of the said company shall not be settled . and it is further hereby enacted , that the said company shal have the free and absolute right and property , onely relieving and holding of his majesty , and his successors in soveraignity , for the onely acknowledgment of their allegeance , and paying yearly a hogshead of tobacco , in name of blench-duty , if required allanerly , in , and to all such lands , islands , collonies , cities , towns , forts , and plantations , that they shall come to establish , or possess in manner foresaid ; as also , to all manner of treasures , wealth , riches , profits , mines , minerals , fishings , with the whole product and benefit thereof , as well under as above the ground , and as well in rivers and seas , as in the lands thereto belonging , or from , or by reason of the same in any sort , together with the right of government and admirality thereof ; and that the said company may by vertue hereof grant and delegat such rights , properties , powers , and imunities and permit and allow such sort of trade , commerce , and navigation into their plantations , collonies , cities , towns , or places of their possession , as the said company from time to time shall judge fit and convenient : vvith power to them to impose and exact such customs , and other duties upon and from themselves , and others treading with , and coming to the said plantations , cities , towns , places and ports , and harbours thereof , as the company shal think needful for the maintainance and other publick uses of the same , holding always , and to hold the whole premisses of his majesty , and his successors kings of scotland , as soveraigns thereof , and paying only for the same , their acknowledgement and allegeance , with a hogshead of tobacco yearly , in name of blench duty , if required , for all other duty , service , claim or demand whatsomever . with power and liberty to the said company to treat for , and to procure and purchase such rights , liberties , priviledges , exemptions and other grants , as may be convenient for supporting , promoting , and enlarging their trade and navigation from any foreign potentate or prince whatsoever , in amity with his majesty ; for which the general treaties of peace and commerce betwixt his majesty and such potentates , princes , or states shal serve for sufficient security , warrand and authority , and if contrair to the saids rights , liberties , priviledges , exemptions , grants , or agreements , any of the ships , goods , merchandise , persons , or other effects whatsoever , belonging to the said company , shal be slopt , detained , embazled , or away taken , or in any sort prejudged or damnified ; his majesty promises to interpose his authority , to have restitution , reparation and satisfaction made for the dammage done , and that upon the publick charge , which his majesty shal cause depurse , and lay out for that effect . and farder , it is hereby statute , that all ships , vessels , merchandise , goods , and other effects whatsoever belonging to the said company , shal be free of all manner of restraints , or prohibitions , and of all customs , taxes , cesses , supplies , or other duties imposed , or to be imposed by act of parliament , or otherwise , for and during the space of twenty one years , excepting alwise the whole duties of tobacco and suggar , that are not of the growth of the plantations of the said company . and farder , it is enacted , that the said company by commission under their common seal , or otherwise as they shal appoint , may make and constitute all and every their directors , governours , and commanders in chief , and other officers civil or military by sea , or by land ; as likewise that the said company may inlist , inroll , agree and retain all such persons subjects of this kingdom , or others whatsoever , as shal be willing and consent to enter in their service or pay , providing always that they uplift or levy none within the kingdom to be soldiers , without leave or warrand first obtained from his majesty , or the lords of his privy council , over which directors , governours , commanders in chief , or other officers civil or military , and others whatsoever in their service and pay , the company shal have the power , command and disposition both by sea and land. and it is farder statute , that no officer civil or military , or other person whatsoever within this kingdom , shal impress , entertain , stop or detain any of the members , officers , servants or others whatsoever , off , or belonging to the said company , and in case the said company , their officers or agents , shal find or understand any of their members , officers , servants , or others aforesaid to beimpressed , stopped or detained , they are hereby authorized and allowed to take hold of , and release the foresaid person impressed or stopped in any part of this kingdom , either by land or water ; and all magistrats and others his majesties officers civil and military , and all others are hereby required in their respective stations , to be aiding and assisting to the said company , under the pain of being lyable to all the loss , dammage , and detriment of the said company , by reason of the foresaid persons their neglect . and farder that the said company , whole members , officers , servants , or others belonging thereto , shal be free , both in their persons , estates , and goods , imployed in the said stock and trade , from all manner of taxes , cesses , supplies , excises , quartering of souldiers transient or local , or levying of souldiers , or other impositions whatsoever , and that for and during the space of twenty one years . and lastly , all persons concerned or to be concerned in this company , are hereby declared to be free denizons of this kingdom , and that they with all that shal settle to inhabit , or be born in any of the foresaid plantations , collonies , cities , towns , factories , and other places that shal be purchast and possest by the said company , shal be repute as natives of this kingdom , and have the priviledges thereof . and generally , without prejudice of the specialities foresaid , his majesty with consent foresaid , gives and grants to the said company , all power , rights and priviledges , as to their persons , rules , orders , estates , goods and effects whatsoever , that by the laws are given to companies allowed to be erected for manufactories , or that are usually given in any other civil kingdom or common-wealth , to any company there erected for trade and commerce . and for the better establishment and greater solemnity of this act and gift , in favours of the said company , his majesty doth farder ordain letters patent to be expede hereupon , containing the whole premisses vnder the great seal of this kingdom , for doing where of per saltum ▪ thir presents shal be sufficient warrand both to the director and chancellor , or keeper of the great seal , as use is in like cases . ix . act adjourning the session till the first day of november 1695. iune 27. 1695. whereas , by a former act in this session of parliament , the sitting of the session was adjourned until the first day of iuly next , which time being found yet too short , his majesty , with advice of the estates of parliament , continues the foresaid adjournment until the first day of november next to come , in the terms , and with the qualifications contained in the said first act of adjournment of the session in all points . x. act for pole-money . iune 27. 1695. the estates of parliament taking to their consideration , that in regard of the great and eminent dangers that threaten this kingdom from forraign enemies , and intestine disaffection , and the designs of evil men , and that our coasts are not sufficiently secured against privateers ; and that therefore it is necessar , that a compleat number of standing forces be maintained , and ships of war provided for its necessary defence ; as also considering , that beside the supplie upon the land-rent , other fonds will be requisit for the foresaid end , do for one of these fonds freely and chearfully offer to his majesty an subsidy to be uplifted by way of pole-money , and for making of which offer effectual , his majesty , with advice and consent of the estates of parliament foresaid , doth statute and ordain , that all persons of whatsoever age , sex , or quality , shal be subject and lyable to a pole of six shilling , except poor persons who live upon charity , and the children under the age of sixteen years , and in familia of all these persons whose pole doth not exceed one pound ten shilling scots . that beside the said six shilling imposed upon all the persons that are not excepted : a cottar having a trade shal pay six shilling more , making in the hail twelve shilling for every such cottar . that for each servant shal be payed by the master , for which the master is impowred to retain the fourtieth part of his yearly fee , whereof bountieth to be reckoned a part , ( excepting livery cloaths ) in the number of which servants are understood , all who receive wages or bountieth for any work , or imployment whatsoever , for the term or the year as they have , or shall serve , and in case they be not alimented in familia with their masters , then if they be not above the degree of a cottar or hynd , they are to have two third parts of wages and bountieth , or if above the said degree one third part of wages and bountieths , first deduced for their aliment . that all sea-men pay twelve shilling scots in name of pole. that all tennents pay in name of pole to the king , the hundreth part of the valued rent , payable by them to the master of the land , and appoints the master of the ground to adjust the proportions of this pole amongst his tennents , according to the respective duties payable by them in money or victual , effeiring to his valued rent . that all merchants , whether sea-men , shop-keepers , chapmen , tradesmen and others , whose free stock and means ( not including workmens tools , houshold-plenishing , nor stocks of tennents upon the farms and possession ) is above five hundreth merks , and doth not extend to five thousand merks , shal be subject and lyable to two pound ten shilling of pole. and that all these ( not including as above ) whose free stock and means is above five thousand merks , and does not extend to ten thousand merks , shal be subject to four pound of pole. that all merchants , whether sea-men , shop-keepers , chapmen , trades-men and others ( not including as above ) whose free estate and stock extends to , or is above ten thousand merks in worth and value , shall be lyable to ten pound of pole. that all gentlemen so holden and repute , and owning themselves to be such , and who will not renounce any pretence they have to be such , and which renunciations shal be recorded in the herauld . register gratis , shal be subject and lyable to three pound of pole-money , if they be not otherways classed , and upon another consideration be subject to a greater pole. that all heretors of twenty pounds , and below fifty pounds of valued rent , be subject and lyable to twenty shilling of pole-money . that all heretors of fifty pounds and below two hundred pounds of valued rent , be subject and lyable to four pounds of pole-money . that all heretors of two hundred pounds , and under five hundred pounds of valued rent , be lyable to nine pounds of pole-money . that all heretors of five hundred pounds or above the same , and under one thousand pounds of valued rent , be subject and lyable to twelve pounds of pole-money , and that they pay half a crown for each of their male-children living in familia . that all heretors of one thousand pounds of valued rent , and above the same , and all knight baronets and knights , be subject and lyable to twenty four pounds of pole-money , and that they pay for each of their male-children in familia three pounds . that all lords pay fourty pounds of pole-money . that all viscounts pay fifty pounds of pole-money . that all earls pay sixty pounds of pole-money . that all marquesses pay eighty pounds of pole. that all dukes pay an hundred pounds of pole. that the sons of noblemen pay according to their ranks , viz. all dukes eldest sons as marquesses , and their youngest sons as earls . all marquesses eldest sons as earls , and their youngest sons as viscounts . all earls eldest sons as viscounts , and their younger sons shal be lyable in twenty four pounds of pole. all viscounts , and lords sons shal be lyable in twenty four pounds of pole. that all widows whose husbands would have been lyable to one pound ten shilling of pole or above , are to be subject and lyable to a third-part of their husbands pole , except heiresses , who shal be subject to the same pole their predecessors would have been . that all nottars and procurators before interior courts , and messengers at arms , are to be subject and lyable to four pounds of pole-money . that all writers not to the signet , agents and clerks of inferior civil courts , and macers and under-clerks of session , shal pay six pounds of pole-money . that all advocats , clerks of soveraign courts , writers to the signet , sheriffs and their deputs , commissars and their deputs , doctors of medicine , appothecaries , chyrurgeons , and others repute doctors of medicine , pay twelve pounds of pole. that all commissionat officers of the army upon scots pay shal be lyable in two days pay for their pole. that all persons who are to pay the said respective poles , tho they be poled in different capacities , are only to pay at the highest rate above-mentioned , and that always over and above the general pole. and for the better stating , ordering and uplifting of the said pole , his majesty with advice foresaid , a statutes and ordains , that the commissioners of assessment or their quorum , shall meet and conveen at the ordinar place of their meeting , upon the second tuesday of august , one thousand six hundred ninety five years ; or shall appoint such other heretors as they shall think fit , and there shall divide the whole commissioners , whether present or absent , or shall appoint such other heretors as they shall think fit , into such divisions as they shall think meet , appointing paroches one or more for commissioners one or more , as they shall see convenient , to meet the last tuesday of the said moneth of august , at the respective places to be appointed , impowering the saids commissioners to take up rolls and lists of all the poleable persons within the respective bounds appointed to them , containing the names , qualities and degrees of the several persons , and of the value of the estates belonging to them , conform to the said act. and ordains the magistrats of burrows royal to meet the third tuesday of the said month of august , and to take up rolls and lists of all the poleable persons within the respective burghs , containing their names , qualities and degrees , and the value of their estates ; and which commissioners and magistrats of burghs are to give intimation at the kirk-door upon a sunday , upon three days warning at least to the persons to be poled , to compear before them at the paroch-church , and give up their names , qualities , degrees , and values of their estates , to the effect the respective poles may be stated and set down by the said commissioner , or commissioners of assessment , or magistrats of burghs respective , and which rolls the saids persons are to give up , or send under their hand , if they can write , otherwise if they cannot write , their name , quality , degree , and estate , shal be marked by the clerk , as they give it up , excepting tennents , whose names , and the pole-money payable by them , shall be given and sent by their masters under their hand , with certification , that such as do not compear , or send under their hands their names , qualities , and value of their estates , or do give up their quality , degree , or value of their estates , otherways than it should be , they shall be lyable in the quadruple of their pole , the equal half whereof shall belong to the informer , who shall make the same appear . and which lists and rolls , being so made up within the respective sub-divisions , shall be recorded and booked in a register of the shire , or burgh for that purpose : whereof there shall be an abstract sent to the lords of the thesaurie , betwixt and the first of october , one thousand six hundred ninety five years , containing the number of the persons in the several classes and ranks above specified , with the extent of their pole. and his majesty , with advice and consent of the saids estates of parliament , ordains the foresaid pole-money to be payed at the term of martinmass , one thousand six hundred ninety five years , or within thirty days thereafter , at the respective paroch kirks , where the persons concerned dwell , for which discharges are to be given to the payers gratis . and requires the commissioners of assessment , and magistrats of burghs , or the farmers , in case the same shall be set in farm , to cause intimation to be made for the payment thereof , at the kirk-doors of the several paroch-kirks upon the first sunday of october one thousand six hundred ninety five . certifying such as shall not make punctual payment at the said term of martinmass , one thousand six hundred ninety five , or within the said thirty days thereafter , shall be lyable in the double , if paying within other thirty days thereafter , or if failzieing after both the saids thirty days , in the quadruple of their pole : and ordains execution to be used against them for the same , by poynding of their readiest goods , or imprisoning their persons ; the foresaid poynding and imprisonment alwayes proceeding upon the sentence of one of the commissioners for the assessment , or any other inferior judge where the person lives . likeas his majesty with advice and consent foresaid , hereby impowers the lords of privy council , to order and appoint such furder methods and courses as they shall judge fit for stateing and inbringing of the pole-money aforesaid , and to allow out of the said pole-money such charges and expenses as shall be necessary for execution of this act. and his majesty and estates aforesaid , do hereby strictly appropriat , destinat , and appoint the sums to be raised by this act , for the ends and uses above-specified , conform to his majesties letter , whereof three hundred thousand pound to be bestowed in the first place , for providing and maintaining of the ships of war for one year , and which money the lords of thesaury are hereby ordained to furnish and answer to the commissioners of admirality , when called for , to the effect above-specified : and also the lords of privy council are hereby fully impowered to decide and determine all questions and difficulties hereby undetermined , that may arise anent the premisses . and lastly , it is hereby declared , that no persons lyable in payment of this pole , shall be holden to produce their discharges , or receipts of the same , after the term of martinmass , one thousand six hundred ninety six years , conform to his majesties letter . xi . act against blasphemy . june 28. 1695. our soveraign lord with advice and consent of the estates of parliament , does hereby ratifie , approve , and confirm the twenty first act of the first session of the first parliament of king charles the second , intituled , act against the crime of blasphemy , in the hail heads , clauses , and articles thereof , and ordains the same to be put to due and punctual execution : and farder , his majesty with advice and consent foresaid , statutes and ordains , that whoever hereafter , shall in their writing or discourse , deny , impugn , or quarrel , argue , or reason against the beeing of god , or any of the persons of the blessed trinity , or the authority of the holy scriptures of the old and new testaments , or the providence of god in the government of the world , shall for the first fault be punished with imprisonment , ●ay and while they give publick satisfafaction in sackcloth to the congregation , within which the scandal was committed . and for the second fault , the delinquent shall be fyned in an years valued rent of his real estate , and the twentieth part of his free personal estate , ( the equal half of which fines , are to be applyed to the use of the poor of that paroch , within which the crime shal happen to be committed , and the other half to the party informer , ) besides his being imprisoned , ay and while he make again satisfaction ut supra . and for the third fault , he shall be punished by death as an obstinat blasphemer : likeas , his majesty with advice and consent foresaid , hereby authorizes , and strictly requires , and enjoyns all magistrats , and ministers of the law , and judges within this kingdom , to put this present act in execution as to the first fault . and does hereby impower and require all sheriffs , stewarts , baillies of bailliaries , and regalities , and their deputs , and magistrats of burghs , to put this present act in execution as to the second fault . and as to the third fault , his majesty with advice and consent foresaid , remits the execution of this present act to the lords of his majesties justiciary . xii . act against irregular baptisms and marriages . iune 28. 1695. our soveraign lord considering , that the baptizing of children , and solemnizing of marriage by the laws and custom of this kingdom , and by the constitutions of this church , have alwise been done by ministers of the gospel authorized by law , and the established church of this nation ▪ and that notwithstanding thereof , several ministers now outed of their churches do presume to baptize children , and solemnize marriage without proclamation of banns , or consent of parents , and sometimes within the forbidden degrees : therefore , his majesty with advice and consent of the estates of parliament , strictly prohibits and discharges all outed ministers , to baptize any children , or solemnize marriage betwixt any parties in all time coming , under the pain of imprisonment , ay and while he find caution to go out of the kingdom , and never to return thereto , and remits the execution of this act to the ministers of the law , who are to assist to the execution of the twenty third act of the fourth session of this parliament , for settling the quiet and peace of the church : declaring alwise , that this present act is without prejudice to the acts of parliament already made against privat and clandestine marriages , which are hereby declared to stand in full force , and that execution may proceed on the saids acts at the instance of the parties concerned , or of the procurator-fiscals of the jurisdictions , where they shall happen to be questioned . xiii . act against prophaneness . iune 28. 1695. our soveraign lord , and estates of parliament , considering that the twenty fifth act of the second session of this current parliament , intituled , act against prophaneness , and the acts generally and particularly therein-ratified , has not taken the wished effect , through the negligence of the magistrats , officers , and others concerned to put the same in execution ; do hereby authorize , and strictly require and enjoyn all sheriffs and their deputs , stewarts and their deputs , baillies of baillities and regalities and their deputs , magistrats of burghs-royal and justices of peace within whose bounds any of the sins forbidden by the saids laws shal happen to be committed , to put the saids acts to exact and punctual execution , at all times , without necessity of any dispensation ; and against all persons , whether officers , souldiers , or others without exception ; with this certification , that such of the saids judges as shal refuse , neglect or delay to put the saids laws in execution , upon application of any minister , or kirk-session , or any person in their name , giving in information , and offering sufficient probation against the offender , that every one of the saids judges swa refusing , neglecting , or delaying , shal toties quoties be subject and lyable to a fyne of one hundred pounds scots , to be applyed for the use of the poor of the parish , where the scandal complained on was committed : declaring hereby that the agent for the kirk , the minister of the parish , or any other person , having warrand from him , or from the kirk session within the parish whereof the scandal complained on was committed , shal have good interest to pursue before the lords of session , any of the foresaid judges , who shal happen to refuse , neglect , or delay to put the saids laws against prophaneness to exact and punctual execution , who are hereby ordained to proceed summarly , without the order of the roll , and that it shal be a sufficient probation of their refusal , neglect or delay , if the pursuer instruct by an instrument under a nottars hand , and witnesses thereto subscribing and deponing thereupon , that he did inform the saids judges of the said scandal , and offered a sufficient probation thereof , unless the judge swa pursued condescend and instruct , that within the space of ten days after the said application , he gave order to cite the party complained on , to compear before him , within the space of ten days , and that at the day of compearance he was ready and willing to have taken cognition and tryal of the scandal complained on , and instruct and condescend on a relevant reason , why the said laws were not put in execution against the person complained on . xiv . act for restraining the prophanation of the lords day , by keeping weekly-mercats on munday and saturnday . iune 28. 1695. our soveraign lord considering , that there is much occasion given for profanation of the lords-day , by keeping of weekly-mercats on munday and saturnday , and that for preventing of this abuse , there are several acts of parliament prohibiting the keeping of weekly-mercats the saids days within royal-burghs ; but the saids acts not comprehending the burghs of regality and barrony , and weekly-mercats in villages and kirk-towns , the saids burghs , villages and kirk-towns are necessitate to keep their weekly-mercats on the saids days , conform to the special acts of parliament made in their favours ; and yet many of the saids burghs , villages and others would most willingly alter and change the saids mercat days , if they were but impowered and authorized for that effect . therefore , his majesty with the advice and consent of the estates of parliament , does not only ratifie and approve the saids acts of parliament made against the keeping of weekly-mercats upon mundays and saturndays within royal-burghs , but likewise does declare it leisume and lawful to all burghs of regality and barrony , and villages , and kirk-towns , whose weekly-mercats are kept the saids days , to change and alter the same : and the saids burghs , villages , and others are hereby authorized to choise and appoint any other days of the week they think fit for the keeping and holding of the saids weekly-mercats , they always making timous intimation of the said change to the next adjacent burghs , and providing they pitch not upon the mercat-day of any burgh-royal next adjacent , or of an other mercat-town within four miles . and that this act be not extended against fleshers within royal-burghs , who may keep mercats of fleshes in their respective burghs , upon these days , this act notwithstanding . xv. act for encouragement of preachers at vacant churches be-north forth . iuly 5. 1695. our soveraign lord considering that there are many churches vacant upon the north-side of the water of forth , which cannot be soon legally planted , nor in the interim otherways supplyed than by the presbytries in whose bounds they ly , theit imploying some preachers who are not setled in churches to preach in the saids vacant churches for some time , and that the intertaining of these preachers out of the first end of the vacant stipends of the paroches to which they preach , during their service , is a most proper pious use within the paroch : therefore his majesty , with advice and consent of the estates of parliament , for encouraging of the said preachers swa to be imployed by the presbytries , doth hereby destinat , appoint and allow out of the first end of the vacant stipends of the respective churches , at which they shall preach by invitation or appointment , of the respective presbytries within whose bounds the samine do ly , to every one of the said preachers twenty merks scots , for their preaching each lords day , forenoon and afternoon , in the said vacant churches , and that whether the saids preachers be imployed by the presbytry to preach at one church , or at several churches by turns within their bounds ; declaring hereby a testificat under the presbytries hands , bearing that such a person hath upon their invitation preached so many lords days at such a church within their bounds , or at such and such churches within their bounds by turns , shall be a sufficient probation thereof , whereupon the saids preachers shall by vertue of this present act , have power and undoubted right to al 's many twenty merks , out of the first and readiest of the vacant stipends of the respective paroch-churches , as the said certificats shall bear them to have preached lords days thereat : and for preventing the trouble and expenses the said preachers would be put to in recovering payment of the saids allowances hereby granted effeiring to their services , if each of them should pursue for their own part , out of the particular vacant stipends of the respective churches at which they shall preach . his majesty with advice and consent foresaid , doth hereby impower the respective presbytries within whose bounds the respective vacant churches do ly , to grant commissions to such persons as they sha'l think fit for uplifting al 's much out of the first end of the vacant stipends , within their bounds where the said preachers shal serve at their invitation , as will pay and satisfie the saids allowances hereby granted to the persons invited by them to preach thereat , accompting ut supra for each lords days service ; with power to the said factors , to uplift , and if need be , to pursue for the same before the judge ordinary of the bounds ; discharging all advocations , as also suspensions , save upon consignation , and with this declaration , that if at the discussing of the suspension , the letters shall be found orderly proceeded , the wrongous suspender shall be decerned in a fifth part more , which factor shall be obliged to compt to the said preachers , who shall be imployed by the presbytries for the said allowances , to be uplifted by them ▪ according to the number of days to be contained in the presbytries certificat . likeas , his majesty with advice and consent foresaid , for encouragement of the said factors , and defraying their expenses , does hereby allow to every one of the said factors so to be appointed by the said presbytries , as much as corresponds to a tenth part of the said allowances , which they are to uplift further for their own use , out of the first end of the said vacant stipends , and with the benefit of the provisions above-mentioned . xvi . act anent the ease of annualrents due by persons restored , and anent the creditors diligence to be vsed against them . iuly 5. 1695. for as much as by the general act rescissory of fines and forfaultures in this current parliament , the consideration of the ease that was to be given to the persons thereby restored of the bygone annualrents due by them , and if the same ought to be granted to their cautioners , and what time diligence should be superseded against them , for payment of their principal sums , and such annualrents to which they were to be lyable , was remitted to the commission of fines and forfaultures therein-named , that they might report their opinion thereof to the parliament , which is not yet done ; and it being the interest of the persons restored , and their creditors , to have the same now determined : therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that during the time the persons restored by this present parliament were dispossessed of their estates , they and their cautioners are to be free of the payment of annualrents , unless that the party restored either hath recovered all or some part of his rents , from which he was excluded by the forfaulture ; in which case the person restored , and not the cautioner , shall be lyable to the payment of the annualrents during the time of his being dis●ossest , in swa far as he hath recovered the same , or otherways that the party restored may recover all or some part of the said rent due during the years that he was dispossest , in which case the party restored shall have no ease of any by gone annualrents , but upon his assigning to his creditors , with warrandice from his own fact and deed , any action competent to him for recovering all or any part of the said rents due during the time of his being dispossest ; declaring always , that when a cautioner for a person restored , did actually pay without collusion before the revolution , either principal sum or by gone annualrents ▪ or any part thereof , or had his lands adjudged therefore before the said revolution , or having given a bond , or suffered decreet before the revolution , hath made payment , or had his lands adjudged since the revolution , the foresaid ease and benefit granted in favours of the person restored , is no ways to be obtruded against the cautioner in that case . as also , it is hereby statute and ordained , that where persons restored have made payment since the revolution of any annualrents , for these years during which they were dispossest of their estates , it shall be leisume for them to retain al 's much in their own hand of the principal sums and annualrents yet resting , as extends to the foresaid annualrents swa payed by them , ( the annualrents unpayed being always discounted in the first place ) and where the debt is altogether payed , the party restored shall by vertue of this act , have action of repetition against his creditor , for refounding the said annualrents payed out by him for the years during which he was excluded from the possession of his estate by the forfaulture . likeas , his majesty with advice and consent foresaid , statutes and ordains , that it shall be leisume to the creditors of persons restored by this parliament , to affect the debitors estate for payment of their principal sums and annualrents resting ( except such annualrents whereof they are liberat by this present act , ) and that immediatly furth and after the date hereof , discharging hereby all personal execution against the persons restored for payment of any principal sums due by them before their forfaulture , till wh●●sunday next to come , in the year of god one thousand six hundred and fourscore sixteen years , after which all personal diligence shall be competent against the persons restored , unless they dispone and put the creditor in possession of as much of their estate ( whereof the creditor is to have his election , except as to the house , park and mains ) as will satisfie the principal sum and annualrents thereof resting , and not hereby given down at the ordinar rate of the countrey where the lands ly , and that free of incumbrances , which is to be done at the sight of the lords of session in a suspension , to be raised by the persons restored , upon the said offer redeemable , nevertheless within the space of five years for payment of what is resting of the creditors debt , discounting his intromissions ; and declaring always , that how soon the creditor shall be excluded from the possession of the saids lands swa to be disponed to him by the person restored , it shall be leisume to the creditor , immediatly thereafter , to use all manner of diligence personal and real for recovering of his debt for which the lands were disponed to him . likeas , his majesty , with advice and consent foresaid , statutes and ordains , that where a person restored offering to dispone his lands to his creditors , cannot purge and disburden the lands offered of real incumbrances , by the sight of the lords , and put the creditor in the free possession thereof , swa that he will be lyable to the personal diligence of his creditors after whitsunday one thousand six hundred fourscore sixteen years , that then if he demand the benefit of a cessio bonorum , the lords of the session are hereby allowed to grant the same to him upon his calling of his creditors , and making faith , and disponing in the common form , without necessity of his being imprisoned the time of raising or obtaining thereof , or of wearing the habit , after obtaining of the same . and likeways , it is hereby declared , that where any person during the standing of the said forfaulture now rescinded , did acquire any debts due by the person restored , they shall have action allannerly against the person restored for the sums truely payed out by them , and annualrent thereof , and shal lose all benefit of their compositions & eases , and his majesty and the estates of parliament , do hereby remit the case of the deceast william muir of caldwell , for repetition of by-gone rents , and all other cases of forfault persons restored depending before them , to be determined by the lords of session , excepting such cases wherein reports have been prepared by the commission for fines and forfaultures for the parliament , in which the pursuer may at his option futher insist , till the decision thereof before the parliament or lords of the session . xvii . act anent the mint . iuly 5. 1695. our soveraign lord , considering that by the act of parliament one thousand six hundred and eighty six intituled , act anent an humble offer to his majesty for an imposition upon certain commodities , for defraying the expense of a free coinage , and other matters relating to the mint ; the foresaid expense of a free coinage , and several matters relating to the mint were indeed settled , but neither so perfectly nor so fully as experience hath since discovered , but that there is still need and place for a further regulation : doth therefore , with advice and consent of the estates of parliament , statute and ordain , that notwithstanding it be recommended by the said act to the lords of his majesties privy council , to try by some of their number , every journal of coin by it self distinctly , and that twice every year , viz. in the month of iuly and december yearly , yet seing the foresaid distinct tryal of every journal hath been found both a tedious and superfluous labour , and is not practised any where else , it shal be leisom for the said lords of his majesties privy council , to make the said tryal by such of their number as they shal think fit , not of every journal of coin by it self distinctly , but by taking and making tryal of any one or more single journals , as they shal think fit , and then to cause melt down in one mass or lignat , the rest of the journals , to be at that time tried , and to take an essay of the mass so melted down , as said is , which shal stand for the whole , but prejudice always to the said lords of council to make distinct tryals of the hail foresaid journals , as they shal see cause , as also , still recommending to them the exact tryal of all matters relating to the coinage , at the foresaid two times above-specified , in manner mentioned in the said act , and that notwithstanding of the foresaid act , which is innovat in so far as the same is inconsistent with this present act. xviii . act anent the quorum of the commission of teinds . iuly 5. 1695. our soveraign lord the kings majesty , considering that there are many actions depending before the lords , and others commissioners , for plantation of kirks , and valuation of teinds , which cannot be decided and determined , in respect that the saids commissioners have not met so frequently as was necessary , by reason of the difficulties of getting a quorum , whereby the leidges have been much prejudged ; for remei●ing whereof , our soveraign lord , with advice and consent of the estates of parliament , statutes and ordains , that seven commissioners , whereof one of every state shal be an sufficient quorum , who being present at the down-sitting and constituting of the meeting : the withdrawing of one or more of any of the three states , after constituting of the meeting , shal not breach the quorum , seven of the commissioners of the other state or states being still present , without prejudice to the officers of state to be still members of the said commission , tho the presence of one or more of them be not necessary to constitute the foresaid quorum . and his majesty , with consent foresaid , does hereby ratify and approve the twenty fourth act of the fourth session , and thirtieth act of the second session of this current parliament , in the hail heads , articles , and clauses thereof , excepting in so far as the samen is innovat be this present act ; and the saids commissioners are hereby appointed to meet every wednesday in the afternoon , during the sitting of the session . xix . act anent the duty on scots muslin . iuly 5. 1695. our soveraign lord , with advice and consent of the estates of parliament , statute and ordain , that in all time coming , all muslin , plain or stript , or camrick , and all sorts of linen under whatsomever name or designation , manufactored within the kingdom , shal at the exporting thereof pay custom only as scots linen , conform to the book of rates . xx. act anent the post-office . iuly 5. 1695. our soveraign lord considering , that for the maintainance of mutual correspondence , and preventing of many inconveniences that happen by privat posts , several publick post-offices have been heretofore erected , for carrying and receiving of letters by posts to and from most parts and places of this kingdom , and that the well ordering thereof , is a matter of general concern , and of great advantage , as well for the conveniences of trade and commerce , as otherways ; and to the end that speedy and safe dispatches may be had , and that the best means for that end , will be the settling and establishing a general post-office : therefore , his majesty with advice and consent of the estates of parliament , statutes , ordains , and appoints an general post-office to be be keeped within the city of edinburgh , from whence all letters and pacquets whatsoever , may be with speed and expedition sent into any part of the kingdom , or any other of his majesties dominions , or into any kingdom or countrey beyond seas , by the pacquet that goes sealed for london , at which said office , all returns and answers may be likeways received ; as also , that a master of the said general-letter-office shall be from time to time appointed by his majesty , his heirs , and sucessors , by letters , patents , under the privy seal of this kingdom , by the name and title of his majesties post-master-general ; or otherways , that the said office may be set in tack by the lords of his majesties thesaury and exchequer , as his majesty and his saids successors shall think most expedient : and that the said master of the said office , or tacks-man for the time respectively , and his deput or deputs authorized by him for that effect , and his and their servants , and no other person or persons whatsoever , shall from time to time have the receiving , taking up , or ordering , dispatching , sending posts with speed , and delivering of all letters and pacquets whatsoever , which shall from time to time be sent to and from , all and every the parts and places of this kingdom , to and from his majesties dominions , or places beyond seas , where he shall settle , or cause to be settled , posts or running messengers for that purpose : excepting such letters as are sent by any person or persons , to and from any place within this kingdom by their own servants , or by express sent on purpose about their own affairs , and letters directed along with , and relating to goods sent , or to be returned by common carriers allenarly : and where post-offices are not erected , and posts settled , his majesty with consent foresaid , allows the custom of sending by carriers or others as formerly , ay and while such offices be established and no longer . and farder , his majesty with advice and consent foresaid , statutes and enacts , that the said post-master-general , or tacks-man and their respective deputs and substitutes , and no other person or persons whatsoever , shall provide and have in readiness , sufficient horses and furniture for ryding post to all persons , ryding to and from all the parts and places of scotland where any post roads are , or shal be settled and established : but prejudice to the use of hyring of horses , which are not to ride post as formerly . and sicklike , his majesty with advice and consent foresaid , statutes , enacts , and ordains , that it shall be lawful for the said post-master general , or tacks-man and their saids deputs , to ask , exact , and receive , for the portage and convoyance of all such letters , which he or they shall so convoy , carry , or send post as aforesaid , and for providing and furnishing horses for ryding post as aforesaid , according to the several ra●es and sums after-mentioned , which they are not to exceed , viz. all single letters to berwick , or any part within fifty miles of edinburgh two shilling , double four shilling , and so proportionally ; all single letters to any place above fifty miles , and not exceeding a hundred miles , to pay three shilling , double six shilling , and so proportionally , all single letters to any place in scotland above a hundred miles , to pay four shilling , double eight shilling , and so proportionally : declaring nevertheless , that all single letters with bills of loadning or exchange , envoys , or other merchant accompts inclosed and sent to any place within the kingdom , shall be onely considered as single leters ; all pacquets of papers to pay each one as triple letters : and it shall be lawful for the said post-master-general , tacks-man , and their deputs , to ask , exact , take , and receive from every person , to whom he or they shall furnish horses , furniture , and guide for ryding post in any of the post roads aforesaid , three shilling scots for ilk horse hire for postage for every scots mile . and in like manner , his majesty with advice and consent foresaid , strictly prohibits and discharges , all other person or persons whatsoever , as well single , as bodies pollitick or incorporat , excepting the said post-master-general , or tacks-man , and their deputs , and the servants of noblemen , gentlemen , and others , in the cases particularly above-excepted allenarly , to carry , receive , or deliver any letters for hire , or to set up or imploy any foot post , horse post , or to settle post-masters within their jurisdictions , under the penalty of twenty pounds scots for every transgression , and an hundred pounds scots for each moneths continuance thereof , after intimation be is made to them in the contrair , and the saids penalties to be pursued for , before any judge competent , the one half thereof to be applyed for the use of the informer , and the other half for the use of the said post-master-general , or tacks-man respective ; and that no common carrier presume to carry any letters to , or from any places within this kingdom , where post-offices are settled , excepting the case aforesaid : certifying all such as do in the contrary , that upon seizure of any such carrier with the letters about him , or being convicted thereof before any judge competent , he shall be imprisoned six days for ilk fault , and fyned in the sum of six pounds scots , toties quoties : and because , it is not onely expedient for his majesties government , but likeways for the advancement of the trade of this kingdom , that a settled correspondence by weekly posts , be established with his majesties subjects in the kingdom of ireland , and that the said kingdom of ireland , will not be at the expense for maintaining the pacquet boats for passing to and from this kingdom ; therefore , his majesty with advice and consent foresaid , ordains and appoints the said general-post-master or tacks-man , to keep and maintain pacquet boats to go weekly , ( wind and weather serving , ) from port-patrick in this kingdom to donachadee in ireland , to carry and receive all letters to be sent betwixt this kingdom and the kingdom of ireland , and that the expense bestowed on these pacquet boats , be allowed to the said general-post-master or tacks-man , in part of his intromissions with the profits of the said general-letter office , or out of the tack duty when the same is set in tack or farmed , not exceeding the sum of sixty pounds sterling money yearly . and his majesty with consent foresaid , ordains and commands all the sheriffs , stewarts , baillies of regalities or royalties , magistrats of royal burghs , justices of peace , and all other judges and magistrats whatsoever , al 's well in burgh a● landward , to concur with and assist the post-master-general , tacks-man and their deputs , in the discharging of his trust , for rendring this act effectual for the ends above-written , and putting the same to all due and lawful execution within their respective bounds . and his majesty with consent foresaid , statutes and ordains , that no person or persons of whatsoever degree or quality , presume to stop , molest , hinder , or impede the several posts , al 's well foot posts , as horse posts authorized by , or bearing warrand from the said post-master-general , tacks-man , or their successors in office , by night or by day , under the pain and penalty of one thousand pound scots , attour the reparation of the damnages to any party lesed thereby ; far less to detain , rob , or take away any pacquets , under the pains contained in the acts of parliament . and his majesty with consent foresaid , ordains and appoints the said post-master-general , tacks-man and his said deputs , and their successors in their several offices , to take the oath of allegiance and subscribe the same with the assurance , appointed to be taken by all persons in publick trust , by the third act of the third session of this current parliament . and his majesty with consent foresaid , ordains general letters to be directed at the instance of the said general-post-master , or tacks-man , and their successors in office , against their several deputs , for the tack-duties of their respective offices , as is allowed for in-bringing any part of his majesties revenue . and lastly , the lords of his majesties privy council , are hereby authorized and impowered to take care , that particular post-offices be established over all the kingdom at places most convenient , and the times of parting of posts with letters , and of their running , be duly settled and published ; and generally , that this act be punctually observed and execute , and do all other things to make the same effectual for the true end and intent thereof . and ordains this present act to be published and printed , that none may pretend ignorance . xxi . explanatory act anent the excise of brandy . iuly 5. 1695 ▪ forasmuch as many actions have been commenced and pursued before the lords commissioners of thesaury and exchequer , to the great vexation and expense of the leidges , anent the meaning of the act of parliament first of december 1673 , intituled , act concerning the importation and excise of brandy ; by which act six shilling scots are imposed upon each pint , to be payed by the retailers in small 's ; and under pretence of the word retailers in the said act , the sub-taxmen and collectors have forced the leidges to pay for the same two or three times , and the merchants importers have been likewise charged therefore , notwitstanding that by the said act retailers are onely lyable . for remeid of which , our soveraign lord with consent of the estates of parliament , does hereby declare , that the six shilling upon the pint of brandy , shall hereafter be payable onely by toppers and retailers in small 's , who sell brandy by pints , gills , and lesser quantities than pints in taverns , shops , cellars , and the like , where the same is immediatly consumed , and by no others , notwithstanding of any former practice in the contrair . xxii . act against intruding into churches without a legal call and admission thereto . iuly 5. 1695. our soveraign lord considering , that ministers and preachers , their intruding themselves into vacant churches , possessing of manses and benefices , and exercing any part of the ministerial function in paroches , without a legal call and admission to the saids churches , is an high contempt of the law , and of a dangerous consequence tending to perpetuat schism . therefore , his majesty with advice and consent of the estates of parliament , statutes and declares , that whoever hereafter shall intrude themselves into any church , or shall possess manse or benefice , or shall exercise any part of the ministerial function within any paroch , without an orderly call from the heretors and eldership , and legal admission from the presbytry within whose bounds it lies , shall be incapable of enjoying any church , or stipend , or benefice within this kingdom , for the space of seven years after their removeal from the church , and quiting possession of the stipend and benefice into which they intruded : likeas , his majesty with advice and consent foresaid , does hereby remit the execution of this present act to sheriffs , stewarts , baillies of bailliaries , and regalities , and their deputs , and to magistrats of burrows royal , who are hereby authorized and required , to remove and declare incapable , ut supra , all these , who shall hereafter intrude into churches within their respective jurisdictions , upon complaint from the presbytry , or any person having warrand from the presbytry , within whose bounds the saids intrusions shall happen to be made hereafter ; and that upon citation of ten days : ordaining hereby letters of horning and caption to be direct in communi forma , upon decreets to be given by the saids inferior judges , for compelling the saids intruders to remove from the saids churches and manses , and to quite possession of the saids stipends and benefices , and to desist and cease from exercing any ministerial acts within the saids paroches , into which they shall hereafter intrude . likeas , his majesty doeth hereby recommend to the lords of his majesties privy council to remove all these , who have already , since the establishment of this present church government , intruded into vacant churches , without an orderly call from the heretors and eldership of the paroch , and a legal admission from the presbytry within whose bounds the saids churches lies : as also , to take some effectual course for stopping and hindering these ministers , who are , or shall be hereafter deposed by the judicatories of this present established church ; from preaching or exercising any act of their ministerial function , which they cannot do after they are deposed , without a high contempt of the authority of the church , and of the laws of the kingdom establishing the same . xxiii . act anent lands lying run-rig . iuly 5. 1695. our soveraign lord and the estates of parliament taking into their consideration , the great disadvantage , arising to the who●e subjects , from lands lying run-rig , and that the same is highly prejudicial to the policy and improvement of the natio● , by planting and inclosing , conform to the several laws and acts of parliament of before made thereanent : for remeid , his majesty with the advice and consent of the said estates , statutes and ordains , that wherever lands of different heretors ly run-rig , it shall be leisum to either party to apply to the sheriffs , stewarts , and lords of regality , or justices of peace of the several shires where the lands ly ; to the effect , that these lands may be divided according to their respective interests , who are hereby appointed and authorized for that effect ; and that after due and lawful citation of all parties concerned , at an certain day , to be prefixed by the said judge or judges . it is always hereby declared , that the saids judges , in making the foresaid division , shall be , and are hereby restricted , so as special regard may be had to the mansion-houses of the respective heretors , and that there may be allowed and adjudged to them the respective parts of the division , as shall be most commodious to their respective mansion-houses and policy , and which shall not be applicable to the other adjacent heretors : as also , it is hereby provided and declared , that thir presents shall not be extended to the burrow and incorporat acres , but that notwithstanding hereof , the same shall remain with the heretors to whom they do belong , as if no such act had been made . xxiv . act for obviating the frauds of appearand heirs . iuly 10. 1695. our soveraign lord considering the frequent frauds and disappointments that creditors do suffer , upon the decease of their debitors , and through the contrivances of appearand heirs , in their prejudice : for remeid thereof , and also for facilitating the transmission of heretage in favours of both heirs and creditors , his majesty , with advice and consent of the estates of parliament , statutes and ordains , that if any man since the first of ianuary one thousand six hundred and sixty one , have served , or shal hereafter serve himself heir ; or by adjudication on his own bond , hath since the time foresaid succeeded , or shal hereafter succeed , not to his immediate predecessor , but to one remoter , as passing by his father to his goodsire , or the like ; then , and in that case , he shal be lyable for the debts and deeds of the person interjected , to whom he was appearand heir , and who was in the possession of the lands and estate to which he is served , for the space of three years , and that in so far as may extend to the value of the said lands and estate , and no further ; deducing the debts already payed : as also , with this order , as to the time past , that all the true and lawful debts of the appearand heir , entering as said is , and already contracted , with the true and real debts of the predecessor to whom he enters , shal be preferred in the first place . as also , his majesty , with advice and consent foresaid , statutes and ordains , that if any appearand heir for hereafter , shal without being lawfully served or entered heir , either enter to possess his predecessors estate , or any part thereof , or shal purchase , by himself , or any other to his behoove , any right hereto , or to any legal diligence , or other right affecting the same , whether redeemable or irredeemable , otherwise than the said estate is exposed to a lawful publick roup , and as the highest offerer thereat , without any collusion ; his foresaid possession or purchase shal be repute a behaviour as heir , and a sufficient passive title to make him represent his predecessor universally , and to be lyable for all his debts and deeds , sicklike as if the said appearand heir , possessing or purchasing , as said is , were lawfully served and entered heir to his said predecessor : declaring always , likeas , it is hereby declared , that the said appearand heir may bring the said estate to a roup , whether the estate be bankrupt or not . and it is further statute , that where rights or legal diligences , affecting their predecessors estates , shal be found settled in the person of any such near relation , to whom the appearand heir to the foresaid predecessor may also succeed as heir , the appearand heirs possessing by vertue of the said rights and diligences , except upon lawful purchase by publick roup , as said is , shal not only be a passive title , but the said rights and diligences in the person of the said near relation , shal only be sustained as valid to exclude the predecessors creditors , in so far as can be qualified and instructed , that these rights and diligences were truly and honestly purchased for payment of sums of money , and no further . and moreover , his majesty , with advice and consent foresaid , statutes and ordains , that for hereafter any appearand heir shal have free liberty and access to enter to his predecessors cum beneficio inventarii , or upon inventary , as use is , in executories and moveables , allowing still to the said appearand heir , year and day to deliberate , in which time he may make up the foresaid inventary , which he is to give up upon oath , full and particular as to all lands , houses , annualrents , or other heretable rights whatsoever , to which the said appearand heir may , or pretends to succeed ; which inventary to be subscribed by him before witnesses , duly insert and designed , shal be given in to the clerk of the sheriff court of the shire , where the defuncts lands and heretage lye ; or in case the defunct had no lands or heretage requiring seasin , to the clerk of the shire , where the defunct deceased : to which inventary , the sheriff , or sheriff-deput , with the clerk of the court , shal also subscribe in judgement , and record the same in their registers , and give extracts thereof , for all which , the upgiver of the said inventary shal pay no more to the court and clerk thereof , on any account , than the ordinary price of extracts in that court , for an extract of the said inventary : and this inventary is to be given in , recorded , and extracted as said is , within the said year and day , to deliberat ; and thereafter the foresaid extract thereof , shal within fourty days after the expiration of the said year and day , be again presented and registrated in the books of council and session , in a particular register to be appointed by the clerk register , for that effect : and the appearand heir entering by inventary , in manner foresaid , is hereby declared to be only lyable to his predecessors debts and deeds , secundum vires inventarii , and in as far as the value of the heritage , given up in inventary , will extend , and no farther . providing always , likeas , it is hereby specially provided , that if the aforesaid appearand heir shal have any intromission with the defuncts heretable estate , or any part thereof , otherways than necessary intromission , for custody and preservation , before his giving in , recording and extracting of the said inventary in manner foresaid ; or if he shal fraudfully omit any thing out of the said inventary , that is , which yet he shal be found to have intrometted with , or possessed , then , and in either of these cases , he shal lose the benefit of the inventary , and be universally lyable , as if entered heir without inventary . and farder , that if any part of the said heretable estate shal be without fraud omitted to be given up by him in the foresaid inventary , and shal not in the mean time be affected by the diligence of a lawful creditor , he shal have liberty , so soon as he comes to the knowledge thereof , and within fourty days thereafter , to make an eik of the same , to the said inventary ; which eik is to be made and subscribed , given in and recorded , in the same manner with the principal inventary above-mentioned . and lastly , it is hereby declared , that appearand heirs , if they please , may enter without inventary as formerly in all points , and that whether they enter with or without inventary , they are still to enter by service and retour , or by precepts of clare constat , in manner formerly accustomed . xxv . act anent the repetition of fines . iuly 10. 1695. our soveraign lord considering , that by the eighteenth act of the second session of this current parliament , intituled , act rescinding the forefaultures and fines , past since the year one thousand six hundred sixty five ; all fines then unpayed , which were imposed by sentences , from the first day of ianuary one thousand six hundred sixty five , to the fifth of november one thousand six hundred eighty eight upon any person or persons for church irregularities or non-conformities , or refusing of publick bonds , subscriptions or oaths , or for not obeying acts , proclamations and orders thereanent , resetting or conversing with rebels , for the causes foresaid , refusing to depone in lybels against themselves , in capital cases , albeit restricted to an arbitrary punishment ; with all hornings , denunciations and intercommunings , given , pronounced , and issued furth in parliament , or by an other court or commission against any persons , for the saids causes , are expresly discharged : and further , that by the foresaid act , it was remitted to the commission , appointed for fines and forefaulters , to consider the grounds of repetition of such of the said fines as were payed to donators , or others having right from them , and other privat parties : and also considering that the said commission hath given no decision or determination upon the foresaid remit , whereby the parties lesed , who made payment of the said fines in manner foresaid , to donators , and others , have as yet received no redress : therefore his majesty , with advice and consent of the estates of parliament , doth statute and declare , that where fines were imposed by sentences from the first of ianuary one thousand six hundred sixty fives to the fifth of november one thousand six hundred eighty eight , upon any person for church irregularities and non-conformities , or refusing of publick bonds , subscriptions and oaths , for not obeying acts , proclamations and orders thereanent , resetting of , or conversing with rebells for the causes foresaid , refusing to depon upon lybells against themselves in capital cases , albeit restricted to an arbitrary punishment , and that the persons so fined , have made payment of the hail of the said fines , or any part thereof , to donators or others , that it shal be leasom for them to pursue the said donators or others for repetition , and who are hereby declared lyable to refound what they have received , together with the annualrent thereof since martimass one thousand six hundred eighty eight . and furder , his majesty , and the estates of parliament , having considered the act made in the year one thousand six hundred and ninety , rescinding fines and forefaulters , and that thereby the forefaulted persons are restored to their lands , rents and possessions , and the composition made by them or others in their name , ordained to be repayed by the donators or others ; and seing it is just , that the annualrents of the said compositions , since the date of the foresaid act be likewise payed . therefore , his majesty , with advice and consent foresaid , statutes and ordains , that annualrent from the date of the said act be repayed , with the compositions themselves , excepting always furth and frae this act , all fines imposed by mr. iohn meinzies advocat , while sheriff-deput of lanerk , in regard it is notorly known he fined not for any advantage to himself , but for prevention of rigorous execution from others , and remits all causes for repetition of fines depending before the parliament or commission to be discussed by the lords of session summarily , without abiding the course of the roll. and it is furder declared , that where any person forefaulted and restored as above , shal be found to be postponed in diligence , either for his payment as a creditor , or his relief as a cautioner , by reason of his forefaulture , he shal now , after his restitution be in the same case for preference , as if he had done all diligence possible for him , if not forefaulted . xxvi . act discharging popish persons to prejudge their protestant heirs in succession . iuly 11. 1695. our soveraign lord understanding , that parents , and others of the popish religion , and that are so affected , do restrain and overawe their children , and appearand heirs , so as they cannot , though convinced in their consciences , by the light of the truth , abandon the popish errors and superstitions of their said parents , for fear that they may be by them dis-inherited , and deprived of any benefit of succession , that they may have , by their said parents , and others foresaid ; do therefore , and for remeid thereof , statute and ordain , with advice and consent of the estates of parliament , that it shal not be leisom , nor in the power of any profest or known papist , to make any gratuitous deed , or disposition in prejudice of their appearand heirs , and the benefit they may have , by their succession to , and in favours of any other person , or persons whatsomever ; declaring , likeas , it is hereby declared , that no such disposition or deed , shal be of any force , but shal be judged to be gratuitous , unless that both the person granter , and the writer and witnesses in the deed , shal declare upon oath , and also qualify satisfyingly , before the judge ordinary of the bonds , that the foresaid disposition and deed was made and granted , for true , onerous , and adequat causes ; or otherways that the same shal be null and void , in manner above-statute . xxvii . act concerning the church . iuly 16. 1695. our soveraign lord , being sensible of the hurt and mischief that may ensue , upon the exposing of the peoples minds to the influence of such ministers , who refuse to give the proofs required by law of their good affection to the government ; and withal desirous , that in the first place , all gentle and easie methods should be used to reclaim men to their duty , whereby the present establishment of this church , may be more happily preserved , the knowledge of the truth , with the practice of true piety more successfully advanced , and the peace and quiet of the kingdom more effectually settled : hath thought good to allow , and with advice and consent of the estates of parliament , hereby allowes to all ministers that were at the time of his majesties happy accession to the crown , and have since continued actual ministers in particular paroches , and no sentence either of deposition or deprivation past against them , and have not yet qualified themselves , conform to the act of parliament 1693 , intituled , act for taking the oath of allegiance and the assurance , a new and farther day , viz. the first of september in this present year 1695 , to come in and take the said oath of allegiance , and to subscribe the same with the assurance betwixt and the said day , and that either before the sheriff , or sheriff-deput of the shires , or the provost or baillies of the respective burghs , or any other inferior magistrat of the bounds where they live , or before any privy counsellor , with a certificat under the hand of the said inferior judges , or privy counsellor , to be reported to the lords of his majesties privy council , or their clerk , within the space of twenty one days after the date of the said certificat : declaring , that all such as shal duely come in and qualify themselves as said is , and shal behave themselves worthily in doctrine , life and conversation as becomes ministers of the gospel , shall have and enjoy his majesties protection , as to their respective kirks and benefices , or stipends , they always containing themselves within the limits of their pastoral charge within their said paroches , without offering to exerce any power , either of licensing , or ordaining ministers , or any part of government in general assemblies , synods , or presbytries , unless they be first duely assumed by a competent church judicatory ; in which case , it is hereby farder declared , that the foresaid ministers first qualifying themselves as above , may be assumed by the respective church judicatories to which they belong , and shall apply to partake with them in the present established government thereof : providing nevertheless , that as the said ministers who shal qualifie themselves as said is , are left free to apply or not , to the foresaid church judicatories : so the said church judicatores are hereby also declared free to assume , or not assume the foresaids ministers , though qualified as they shall see cause : with certification , that such of the said ministers , as shall not come in betwixt and the said day , are hereby , and by the force of this present act , ipso facto , depriof their respective kirks and stipends , and the same declared vacant without any further sentence . and his majesty being purposed , that his grace shall be still patent to all ; doeth further declare and statute , with consent foresaid , that at what time soever any minister , either settled in a church , or not , shall upon application , be judged fit to be assumed by any competent church judicatory as said is , the foresaid minister , upon a certificat thereof from the said judicatory , shall be admitted and allowed to qualify himself , by taking the oath of allegiance , and subscribing the same with the assurance in manner foresaid , albeit the said first of september be past and elapsed . and his majesty with consent foresaid , allows , declares , and statutes as above , any thing in the foresaid act 1693 , or in the other act of the same session of parliament , intituled , act for settling the quiet and peace of the church , notwithstanding . and his majesty with consent foresaid , for the greater encouragement of all ministers of the gospel , not only ratifies the act of parliament 1669 , forbidding all suspensions of special decreets and charges for ministers stipends , or the rents of their benefices , except on production of discarges , or upon consignation in manner therein provided : but further statutes and ordains , that there be no advocation , or sist of process granted of actions for the said stipends , or rents of benefices , when pursued before inferior judges , and that in the case of a decreet , there be neither suspension nor sist of execution granted , except on production of clear discharges or consignation as said is , and if any suspension be past , that the same be summerly discussed at the instance of the charger , without abiding the order and course of the roll : and that if the letters be found orderly proceeded , the suspender be also decerned at least in a fifth part more than the sums charged for , with what more the lords shall judge reasonable to be payed to the charger for his expense and damnage . and if any minister shall happen to pursue for his stipend by way of ordinary action before the lords , it is hereby farther ordained , that the same be summarly proceeded in , and discussed without abiding the course of the roll. and lastly , for a more ample declaration of an act made in this session of parliament , for encouraging of preachers at vacant churches be north forth , his majesty with consent foresaid , extends the same not only to preachers who are not settled in churches , but also to such ministers who though settled in churches , are yet sent from time to time from any presbytry or synod of this church , without their own presbytry , to supply the said vacancies , to the effect , that the said ministers settled , as well as the said preachers not settled , may equally have the benefit of the said act , in the terms thereof . xxviii . act for the additional and annexed excises . iuly 16. 1695. the estates of parliament , taking to their consideration , that for the maintaining of the present standing forces , and the necessary defence of the kingdom , and coasts thereof , against the dangers that continue to threaten from the present war ; an additional fond , to the supplies already given , in this present session of parliament , is requisit : do therefore , for the said fond , and over and above the excise of two merks upon the boll of malt , and the excises on strong waters and brandy , and forreign beer annexed to the crown , heartily offer to his majesty , an additional excise of two pennies upon the pint of ale and beer , browen to be vended and sold ; as also , of two shilling upon each pint of aquavitae and strong waters , brown or made of malt , to be vended and sold within the kingdom : and likewise an additional excise of two shilling upon each pint of aquavitae and strong waters brown , not made of malt , excepting what is made of wine ; and that during the space of twelve moneths , commencing from the first day of september next . and his majesty , and estates of parliament , considering the advantages of a greater consumption , and better liquor arising , both to the heretors , brewers , and the whole leidges of the kingdom , by laying all excises upon the liquor , and not upon the malt ; as also the manifest conveniency that the said annexed excise formerly on the malt be converted upon the liquor , that both these excises may be uniformly raised and uplifted , with less charges and expenses , with which reasons , and the truth thereof , after mature deliberation , the estates of parliament are satisfied , and fully convinced , that his majesty getting an equivalent , the same are just and important , concerning both his majesties interest and the publick good and welfare of this kingdom . therefore his majesty , with consent of the said estates , hath dissolved , and hereby dissolves the foresaid annexed excise of two merks upon the boll of malt , from the crown and patrimony thereof . rescinding , likeas , his majesty hereby rescinds the act of parliament 1685 , giving , and annexing the foresaid excise of two merks upon the boll of malt to the crown , in so far as , it gives and annexes the same allannerly , and no farder : together with all tacks , contracts or commissions , made , or granted , of , or concerning the foresaid annexed excise , hereby dissolved and taken away ; declaring the said tacks , sub-tacks , contracts , and commissions to be fallen therewith in consequentiam , after the first day of september aftermentioned : in place of the which annexed excise , and as an equivalent , in lieu thereof , the estates of parliament , for the usefulness of this grant , to support the interest of the crown , do humbly and unanimously offer to his majesty , over and above the foresaid two pennies , and other additional excises abovementioned , an excise of three pennies more upon the pint of all ale and beer browen to be vended and sold as said is ; as also , of three shilling more upon ilk pint of aquaviae or strong waters , not made of malt browen and sold within this kingdom : six shilling upon ilk pint of forraign aquavitae , brandy , or strong waters ; and thirty shilling upon ilk barrel of imported forreign drinking beer ; and this excise hereby given in lieu of the foresaid annexed excise of two merks upon the boll of malt , and ordained to commence from the foresaid first day of september : his majesty , and the estates of parliament , by the force of this present act , have united and annexed , and unites and annexes the same to the crown of this realm , to remain therewith , as annexed property in all time coming . and his majesty , with advice and consent foresaid , do appoint the payment of the said two excises , unannexed and annexed , extending to five pennies upon the pint , so long as they shal concur , to be as follows , viz. for the first two moneths , upon the first day of november next to come , and thereafter quarterly , and proportionally , so long as they shal concur , and stand together ; and thereafter the foresaid new annexed excise to be payed at such terms as his majesty and successor : shal please to appoint ; and for making of the said two excises effectual for their respective endurances , his majesty , with consent foresaid , doth impose and ordain the foresaid two excises upon ale and beer , to be raised and uplifted from all brewers of the said liquors , brown and made to be vended and sold , as said is ; and the said excises upon aquavitae and strong waters to be raised and uplifted from all retailers thereof . and for the raising and inbringing of the said excise , his majesty , and the estates of parliament do hereby appoint and authorize the commissioners of the new supply , appointed in another act of this present session of parliament to be the commissioners of the excise , during the respective endurances of the said two excises , for the several shires , for the end foresaid , and the royal burghs to have the same number of commissioners , as was appointed by the fourteenth act of the parliament 1661 , impowering them fully for that effect , conform to the rules and orders formerly enacted for raising and inbringing the former annexed excise upon malt : as also to set down and cause observe such other rules as they shal judge necessary , agreeable always to the acts of parliament already made about the foresaid excise . and that the said excises on liquor may arise more equally , it is hereby statute , that during the concurrence of the said two excises , the lowest price of ale or drinking beer to be brewed and vented and sold for hereafter , shal in all burghs , where the burgh hath an particular imposition on malt or liquors , be twenty eight pennies for the pint , to be payed by the buyer to the ventner or tapster , and in all other places , both to burgh or landward , two shilling the pint , with certification that the ventner transgressing , by selling under the said rates , shal be fined by the said commissioners in the sum often pound scots at the instance of any other brewer or other complainer toties quoties , to be applyed by the saids commissioners for pious and publick uses , within their respective shires ; and further , be either put under sufficient surety to observe this rule for hereafter , or if he cannot find surety , discharged to brew in time coming , at the fight of the saids commissioners . and further , his majesty , with advice and consent foresaid , doth hereby declare and enact , that if any brewer in use to brew for sale and change , shal give over brewing after the date of this act , without an allowance in writing from the commissioners of excise , for good and seen causes , the said brewer shal not be permitted to brew for change , for the space of five years thereafter ; but shal be , and is hereby discharged and rendered uncapable to do the same ; as likewise , it is hereby statute and ordained , that no person whatsoever , who have not been in use to brew for the service of themselves and their family in time by past , shal presume to brew after the first day of september next to come , for their own and their families use , and if they contraveen , that they shal be lyable in payment of the value of what they shal brew . and his majesty , with consent foresaid , doth ordain the said commissioners to meet the first tuesday of september next , at the head burgh of every shire respective , and afterwards upon the first tuesday of ilk moneth where they shal appoint . and it is hereby specially provided , that if either collector or farmer , shal presume to raise or levie the said excise upon the malt , or otherwise than upon the liquor , he shal incurr the pain of an 100 merks , toties quoties , to be decerned and exacted by the said commissioners , or by the lords of privy council , in case the saids commissioners shal overlook the same : as also , that the brewer assenting thereto , or complice therein , shal incurr the pain of fifty merks , and also amitt and lose the liberty of brewing , which fines are also hereby appointed to be applyed ut supra : and it is hereby declared , that if any tacks-man or collector , or other person shal exact any thing over and above his excise for the discharges thereof , or for the discharge of any other publick dues whatsoever , it shal be repute as oppression , and punished accordingly by the said commissioners , who are hereby impowered to proceed against the persons guilty . and his majesty , with advice and consent foresaid , do authorize and impower the lords of privy council to prescribe such other methods and orders as they shal judge necessary for making this act effectual . xxix . act for continuing the additional excise till march 1697 , with three months farder cess . iuly 16. 1695. the estates of parliament taking to their further consideration , the present state of the kingdom , and publick exigencies thereof ; have thought fit to offer , and do hereby humbly & heartily offer to his majesty , that the additional excise of two pennies upon the pint of ale and bear , and other liquors imposed for an year , beginning the first of september next , by an act of this session of parliament , be continued from and after the expiring of the said year , until the first of march 1697. and sicklike , the sum of two hundred and sixteen thousand pound , being three months cess upon the land-rent of this kingdom , payable at the term of lambmas 1696 years , and that over and above the six months cess already granted by another act of this session of parliament : and accordingly his majesty , with advice and consent of the said estates , statutes and ordains , that the said additional excise hereby continued as said is , and the said three months cess payable at lambmas 1696 , granted by this present act , shall be raised , uplisted and ingathered from the persons lyable in payment , in manner and for the ends appointed by the saids two respective acts above-mentioned . xxx . act for preservation of meadows , lands and pasturages lying adjacent to sand-hills . iuly 16. 1695. our soveraign lord considering that many lands , meadows and pasturages lying on the sea-coasts , have been ruined and overspread in many places of this kingdom , by sand driven from adjacent sand-hills , the which has been mainly occasioned by the pulling up by the root of bent , juniper and broom-bushes , which did loose and break the surface and scroof of the saids hills ; and particularly considering that the barony of cowbin , and house and yards thereof , lying within the sheriffdom of elgin , is quite ruined and overspread with sand , the which was occasioned by the foresaid bad practice of pulling the bent and juniper . therefore his majesty , with advice and consent of the estates of parliament , for preventing of the like prejudices in time coming ; does strictly prohibite and discharge the pulling of bent , broom , or juniper off sand-hills for hereafter , either by the proprietors themselves , or any other whatsomever , the same being the natural fences of the adjacent countries to the saids hills ; certifying such as shall contraveen this act , they shall not only be lyable to the dammages that shall there-through inshew , but shall likeways be lyable in the sum of ten pounds of penalty ; the one half thereof to belong to the informer , and the other half to the judge within whose jurisdiction the said contravention shall be committed . xxxi . act for turning the tack of the pole 1693 , into a collection . iuly 16. 1695. our soveraign lord considering , that albeit the pole granted by act of parliament , in the year 1693 , was set by the lords of thesaury and exchequer , to the lord ross , sir iohn cochran of ochiltrie , and others mentioned in the tack thereof , for the sum of fourty four thousand one hundred pounds sterling of tack-duty , as the tack in it self bears : yet the levying of money by pole being new , and the countrey and others concerned , not observing the rules and ordinances contained in the act of parliament thereanent , but through their failzying , incurring the quadruples appointed by the said act by way of penaltie ; the foresaids tacks-men were not able to pay the foresaid dutie , unless they had been allowed to exact the foresaid quadruples , which had visibly tended to the great oppression and disturbance of the whole kingdom . therefore , and in so singular a case , which his majesty is resolved shal never be drawn into example , his majesty with the advice and consent of the estates of parliament hath liberated and hereby liberates the foresaid tacks-men , and all others concerned therein , from the said tack and tack dutie , discharging and exonoring them of the samen , but with this condition and provision . likeas his majesty with advice foresaid , hereby statutes and provides , that the foresaid tacks-men shal make just compt and reckoning of all their intromissions with the said pole-money , sicklike as if they had only been collectors , and instead of the said tack had got a commission allanerly for that effect , with and under always the particular conditions following , first , that the said tacksmen be lyable for all the sub-collectors and managers imployed by them . secondly , that all their books be made patent , and examined . and that the tacks-men and their sub-collectors be examined upon oath , as to the verity thereof , and whether there be any thing omitted . thirdly , that in case it be found , there was any thing received from the countrey , not given up in the books : that the tacks-men , or their sub-collectors be lyable in twenty shilling , for each shilling so omitted . fourthly , that the rolls of the poleable persons taken up by the several justices of peace , magistrats of burghs , and others be produced to be compared with the books . fifthly , that a few comptrollers be appointed to examine books , and accompts , and adjust the whole matter , and that the leidges be invited & encouraged to comptroll the said accompts , and that they be patent at a publick office for a reasonable time to all the leidges for that end . sixthly , that the order of payment , viz. of the countrey in the first place , and then of the forces , as prescribed by act of parliament , be duely and strictly observed by the commission after-mentioned . seventhly , that upon accompts instructed and liquidat , in due manner , retention be allowed by the commission to those to whom the said accompts are due , in the terms of the act of parliament . eightly , that where any sub-tack hath been set by the said tacks-men , the sub-tacksmen have in their option , either to pay the sub-tack-duty , or make compt , reckoning and payment of their intromission , as sub-collectors . ninthly , that no sallaries be allowed , or given to the said tacks-men , or their sub-tacks-men for their collecting . and to the ef-fect , the said compt and reckoning may proceed ; his majesty with advice and consent foresaid ; hereby nominats and appoints the duke of queensberry , the earls of linlithgow and levin , sir iohn lauder of hattoun , the laird of livingstoun , the laird of torwoodlie , sir william hamilton , sir archibald mure , and william menzies commissioners , three of every state , chosen by the parliament , for that effect , whereof any five to be a quorum , to meet at edinburgh the first lawful day after the riseing of this session of parliament , and thereafter at such days as the said commission shall appoint . likeas one of the commissioners of his majesties theasury is allowed to be present , with right to vote , but so as his presence shall not be necessary to make up the foresaid quorum , with power to the said commissioners to take in the accompts of the said tacks-men their intromission , as if they had been collectors , and to make them accompt for their collection , in manner , and under the conditions above set down ; and to determine all differences betwixt the said tacks-men and the countrey , and the officers , and souldiers , anent the premisses : as also with power to the saids commissioners to do every thing necessary , for inbringing of what , is yet resting unpayed of the said pole by the countrey , and for making the same effectual ; and also to decide , and finally determine all questions , that may arise concerning the preferrence of the officers of the army interested , or their being brought in equality to get their shares of payment out of the subject of the said pole , as likeways with power to them , to allow , or not to allow expenses for inbringing the said pole to the said tacksmen , and their subtacksmen now turned to collectors , and sub-collectors as they shal see cause : and generally to do all other things anent the premisses , that they may bring the foresaid tacksmen their intromission and collection to a clear state and ballance , and also for in-gathering what shal be found resting of the said pole-money , either in the hands of the said tacksmen , or in the hands of any other person lyable therein , and cause pay in the same to his majesties general-receiver of the crown rents , providing that the said commissioners use the same and no other method or diligence for ingathering than what is prescribed for in-gathering of the new pole : the quadruples in the act anent the pole 1693 being hereby expresly discharged , and farder , with power to apply the whole neat product thereof by precepts on the said general-receiver , conform to the destination contained in the act of parliament , and in the order , and under the certification therein specified : and it is hereby farder declared , that for what shal be still found resting by the said tacks-men , after just compt and reckoning , their cautioners for the foresaid tack-dutie shal be lyable therefore , notwithstanding that the foresaid tack be hereby disolved and turned to a commission or collection as said is ; and it is farder hereby provided that the commissioners above-named shal be , and are hereby appointed to be , commissioners for calling for , examining , and concluding the accompts of the three months cess , viz. and of the hearth-money , imposed in the year 1690 , with power to them to call all collectors , intromettors , and other persons concerned , in so far as they have not compted to , and got discharges from the lords of thesaurie , and make them compt , reckon , and pay as accords ; and farder to take such methods as they shal think fit , to uplift and bring in the rests of the said hearth-money yet resting by the countrey , according to the orders and proclamations already given and emitted in that matter , and to appoint collectors for that end , or farm the same as they shal think fit , and generally to do all other things necessary , for the full and final clearing of the said three months cess and heart-money ; and farder the said commissioners are hereby impowered to put the whole of the said pole-money hereby ordered to be compted for , to a roup , and assign , and ajudge the same to the highest offerer , with this provision that it shal not be rouped for less than thirty thousand pound sterling , and that the said highest offerer have the , whole powers hereby given to the said commission for in-gathering thereof , and this power is also extended to the rouping of the rests of the said hearth-money as they shal see cause . and lastly it is hereby declared , that if any of the saids commissioners shal happen to depart this life , his majestie shal have the naming and appointing of one in his place out of the same state to whom the person deceasand belonged . xxxii . act for encouraging the exportation of victual . iuly 17. 1695. his majesty and estates of parliament considering , that the grains of all sorts , are the greatest product and commodity of this nation ; and considering how necessary it is for the promoving of tilladge , and improvement of trade , to the best advantage of the kingdom , that an effectual encouragment be granted for exportation of corns and victual furth thereof . therefore his majesty , out of his royal bounty , with consent of the estates of parliament , statute and ordain , that all sorts of grains exported out of the kingdom after martinmas 1696 , shall be free of any dues formerly payable for exportation ; and that for encouraging export after the said term , there shall be given out of the customs to the exporter , upon his oath of verity , of the number of the bolls exported , subscribed with his hand , and attested by the collector of the next adjacent custom-house , eight merks for ilk chalder of grain , that shall be exported by sea or land , when they shall not exceed the prices following , viz. when wheat is at or under twelve pound the boll ; bear , barley , and malt , at or under eight pound per boll ; pease , oats , and meal , at or under six pounds per boll ; all the saids grains being of linlithgow measure . with this provision always , that the said exportation shall be by scots men , or in scots ships ; and that the master and three fourth parts of the seamen of the said ships , shall be scots men : as also , with this provision , that when the grains exceed the foresaids rates , the lords of his majesties secret council may discharge the exportation of victual of all sorts , ay and till the grains fall to the prices foresaid . xxxiii . act for the levies . iuly 17. 1695. the estates of parliament considering how necessary it is , that during this present war , which so much concerns the defence and security of the protestant religion , and of his majesties kingdoms , certain rules and orders should be laid down for recruits and levies , as they shall be found needful , whereby both the kingdom may be delivered from the frequent disorders and oppressions of pulling away poor men from their wives and children , that cannot subsist without their handy-labour , and the engaging and seising of other unfit men , no ways proper for the service , which hitherto hath been found a most sensible grievance , and whereby also his majesties service , for the maintaining and carrying on of the said war , may be more effectually promoted : and the said estates taking likeways into their consideration , that all heretors , and the superior sort of his majesties leidges , do really contribute to the foresaid war , by their paying of supplies , pole-money and excise , and other publick burdens ; whereby it seems most reasonable , that the inferior sort , that contribute little or nothing , specially such who are young men , without wives or children , and do earn their living by dayly wages , or termly-hire for their handy work , and who by the laws of the land may be compelled to serve , his majesties other good subjects should be made lyable to contribute their service for a certain space in the foresaid war , which is manifestly most necessary for the defence and security of themselves and the whole kingdom , beside the other advantages of profit and honour that thereby may accrew to them . therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that until the next session of this parliament , and for the service of the present war , either at home or abroad , there shall be furnished to his majesty , the number of one thousand men yearly , when his majesty shall require them , to be proportioned and levied , conform to the rules and proportions contained in the act 1663 , intituled , an humble tender to his sacred majesty of the duty and loyalty of his antient kingdom of scotland , as to the twenty thousand foot therein-mentioned ; which thousand bodies of men , shall be furnished and levied , without any charge or burden of money on the country whatsomever , in this manner , viz. that the commissioners of supply for the respective bounds where the said proportions shall fall , first design , and cause be given , the idle , loose and vagabond persons , lyable by former acts of parliament , to be seised by sheriffs , and who have not wife and children , to make up the foresaid number ; and in the next plate , shall cause all the young feasible men of the bounds , not having wife and children , and who are not menial or domestick servants to any heretor , but earn their living by dayly wages , or by termly hire payed them by other masters for their handy-labour ; to meet at certain days and places , and there by lot , and throwing of the dyce , or otherways as they shall think fit , determine which of them shall go furth to serve as souldiers , with this provision , that the foresaid persons being all first listed by the said commissioners , and appointed to meet as said is , if any of them shall be absent , any heretor to be appointed by the said commissioners , shall throw for him , and if the lot shall fall on that person absent , or if he shall be otherways designed to be put furth by the said commissioners , he shall be lyable in all time thereafter as a deserter , sicklike as if he had been present ; and with this encouragement to the whole foresaid persons , to be put furth in manner foresaid , that they shall have twenty pounds scots payed them in ready money , by the officer who receives them , at the sight of one of the said commissioners ; and in the next place , that their being put furth and engaged as said is , shall not oblige them longer to be and continue souldiers , then for the space of three years , and the first of november after the said years , from the time of their said engagment , at which time they shall have an authentick free pass , unless they subscribe a new consent to continue longer in the service . and the further execution of this act , that the foresaid levies and recruits may be effectually raised in the most easie manner , is referred and recommended to the lords of his majesties privy council , who are hereby thereto fully impowered , during the continuing of this war , and no longer . and after so just a condescendance for facilitating of levies and recruits , it is hereby statute and ordained , that no officer , either at home , or from abroad , offer to take on or press any free leidge to be a souldier , unless the man be ta●en on by agreement , owned by him in presence of the judge of the bounds ; and if any officer shall contraveen this order , and press or compel any man , contrait to the rule hereby established , that it be reckoned oppression , and the transgressor punished by the fine of a months pay , and farder by imprisonment , or breaking and casheiring , as the lords of council shall think fit . and it is farder hereby statute and ordained that all officers exacting lodging , coal and candle gratis , for themselves , their wives or children , shall loss and tyne their commission ; and that all souldiers exacting lodging , coal and candle gratis , for their wives and children , shall be lyable for the parties dammage , to be payed by their commanding officers , at the sight and appointment of any magistrat within burgh , or other judges to landward ; certifying the officer failieing herein , that he shall be lyable in three months pay , and farder punished as the lords of council shall appoint ; which fines are also to be applyed for reparation of the parties in the first place , and the superplus as the council shall think fit . xxxiv . act for additional imposition upon forraign commodities imported . iuly 17. 1695. the estates of parliament , considering the great concessions granted by his majesty in this present session of parliament , in favours of the natural product of this kingdom , by the encouragment given for the exporting of corns , and the many priviledges allowed for the improvement of trade and manufactories , and that it is reasonable , there should be such additional duties and customs laid upon forraign imported commodities , in requital for his majesties gracious favour , do with all humble duty and thankfulness , offer to his majesty the additional duties upon the forraign commodities after-mentioned , and that by and attour what they were formerly lyable unto by acts of parliament preceeding the date hereof , as by the following table ,   lib. sh. d. imprimis , upon all wine imported from france of new-duty 18 00 00 which with the 30 lib. scots formerly imposed by the privy council upon the account of the sumptuary act , makes in all per tunn 48 00 00 item , spanish wine from spain , the imposition formerly imposed by the council , is hereby ratified , which is per tunn . 30 00 00 item , on brandy , the former duty of twenty pound sterling , being ordinarly reduced by the lords of thesaury and farmers to twelve pound sterling ; there is added of new-duty per tunn , by and attour the said 12 lib. 72 00 00 item , upon mum-bear , over and above the old duty , there is hereby added of new-duty per barrel 06 00 00 item , on tobacco in leaf , not from the plantations of new duty per pound 00 02 00 item , on tobacco in roll not from the plantations , of new-duty per pound 00 04 00 item , on all french wines imported from holland , or any where else not of the growth of the place from whence it is exported , by and attour the above-written duty , there is added of new-duty per tunn 30 00 00 item , on all spanish wine from any place except spain of new-duty per tunn . 48 00 00 item , on raisins and currens from any place not of the growth from whence they are exported per hundred weight , of new-duty . 02 8 00 item , on figgs imported after the same manner per 100 weight of new-duty 01 8 00 item , on sugar in loaf imported , of new-duty per 100 weight 03 00 00 item , on soap imported , of new-duty per barrel . 02 00 00 item , on all sorts of wrought silks , silk-plushes , stockings , of new-duty per pound weight 01 10 00 item , on all sorts of silks wrought of gold and silver , per pound weight of new-duty 03 00 00 item , on all silver and gold fringes , silver and gold laces , gallouns and embroideries imported , per pound weight of new-duty 03 00 00 item , on all forraign laces and points imported , of new-dutty ten per cent value item , on all forraign woollen cloath imported , of new-duty per eln 00 12 00 item , on all forraign sarges and worsted-stuffs imported , of new-duty per eln 00 06 00 item , on all forraign flannels , fingrums , of new-duty per eln 00 04 00 item , on all linen-cloath imported from forraign countries , of new-duty per whole piece at 36 elns 12 00 00 item , on the half-piece of forraign imported linen-cloath of new-duty 06 00 00 item , on all silesia-linnen , of new-duty per piece being 5 elns , 01 00 00 item , on all threed imported , of new-duty five per cent value which duties and customs above specified , our soveraign lord with advice and consent of the estates of parliament , statute and ordain to be payed by all merchants and other importers of the said forraign commodities , in the same manner as the other duties to which they were formerly lyable ; and ordains all farmers , collectors , surveyers and others , to in-gather the same , and that after the same manner they do his majesties other duties upon forraign imported commodities , and that from and after the term of martinmass 1696 years : and hereby discharges the said collectors , farmers , surveyers , and other in-bringers of his majesties customs to transact , abate or allow of any defalcation of the additional duties above-specified , under the pain of deprivation of their offices , and losing the benefite of their tacks . xxxv . act anent burying in scots linen . iuly 17. 1695. our soveraign lord , with advice and consent of the estates of parliament , for the better improvement of the manufactory of linen within the kingdom , and restraining the import of all forraign linen , doth hereby ratify and approve the sixteenth act of the parliament 1686 intituled , act for burying in scots linen , in the hail heads and articles , thereof ; ordaining the same to be put to strict execution in all points , with this addition , that none presume to cause bury any in scots linen , in value above twenty shilling scots per ell , under the same pains set down in the foresaid act against burying in forraign linen : and for the better discovery of the said transgression , and execution of the foresaid act , and the addition hereby made to it , his majesty , with consent foresaid , statutes and ordains , that the nearest elder , or deacon of the parish , with one neighbour or two , be called by the persons concerned , and present to the putting of the dead corps in the coffin , that they may see the same done , and that the foresaid act , with this present addition is observed , and subscribe the certificat , mentioned in the foresaid act , and that whatever relation , or other friends of the defunct present , and having the charge of the burying , shal either fail in observing the foresaid act , with this addition , or to call the elder or deacon , with such neighbours as may be witnesses , or to send and give in the certificat , appointed by the said act , he or they shal be holden as transgressours , and lyable in the pains thereof ; which pains are also hereby intirely applyed , and given to the poor of the parish : and any elder or deacon of the parish is impowered to pursue for the same , for their use , nor shal any pursuit for the said fines be advocat from the inferiour judge competent , nor any sist of process given , nor shal any decreet therefore be suspended , but upon discharge or consignation allanerly . and it is further hereby statute , that it shal not be leisom to any person , to make or sew any sort of dead linen , contrair to the foresaid act , and this present addition , under the pain of fourty merks toties quoties , for the use of the poor , as said is . xxxvi . act anent the skinners . iuly 17. 1695. our soveraign lord the kings majesty , with advice and consent of the estates of parliament , in pursuance of the many good acts made for the setting up , and maintaining of manufactories , and particularly , of the act 1661 , intituled act for erecting of manufactories ; and for the greater incouragement of the skinners of this kingdom , towards the improvement of the native commodities of wild-skins and lamb skins , and the art of that craft , do hereby discharge all and every person whatsomever , native or stranger , to export out of this kingdom any wild-skins , such as wild-hyds , dae and rae , roe and roe-buck , and kid , with the hair upon them , until they be made in work , or dressed leather , to the good of the kingdom . as also , his majesty , with advice and consent foresaid , discharges all and every person , native or stranger , to import any forraign made gloves , of whatsomever sort , certifying such as shal do in the contrair , either by export or import , as said is , that they shal not only forefault the foresaids goods , exported or imported , or the just value thereof , the one half to his majesty , and the other half to the informer , who shal prosecute the same before his majesties exchequer , but also be furder lyable to such pecunial fines , or other punishments , as the lords of his majesties exchequer shal think fit to inflict : declaring that this act shal commence and take effect after the first day of august next to come ; and impowering the saids skinners , and any merchands , or any others concerned with concurse of a magistrat , to search for , and make seizure of the foresaid goods hereby prohibited to be exported or imported . for the more effectual execution of the premises , and for the better improvement of the said skins , our soveraign lord , hereby ratifies and approves the act made be the convention of burrows , anent the sufficiency of skins , and ordains the magistrats of all burghs to put the said act to due execution in all points . and lastly , it is hereby declaired , that the foresaid act of parliament , for erecting of manufactories , and any allowance that may be therein given , for the manufactoring of the saids skins , shal be but prejudice to the rights and priviledges of the craft and incorporation of skinners , in all , or any of the burghs of this kingdom . xxxvii . act anent the iusticiary of the highlands . iuly 17. 1695. our soveraign lord considering , that there was an act of parliament , made in the year 1693 , for the justiciary in the highlands ; declaring , that his majesty , by vertue of his prerogative royal , might grant commissions of justiciary for the said bounds , with all power , necessary and usual : excepting thence , from the bounds lying within the heretable right of justiciary general , pertaining to the earl of argile , or any other person , providing nevertheless that the foresaids persons , whose bounds were excepted , should for the space of two years , be obliged to grant commissions to the same persons , whom it should please his majesty to commissionat for their saids bounds and lands , which two years being now near expired , and it being necessary that the foresaids commissions , after their expiration should be renewed : therefore , his majesty , with advice and consent foresaid , does hereby prorogate the foresaid provision , to the effect , and in the terms aftermentioned , viz. that when the commissions are granted by his majesty , for the necessary repressing of the depredations and robberies , so frequently committed in the highlands , for the saids bounds not above excepted , the foresaids persons having right to the said heretable justiciaries general , shal grant ample commissions for their respective bounds at the same time , and to the same persons ( at least to so many of them as are willing to act , by vertue of the saids justiciaries commissions ) to the effect the saids commissioners , acting unanimously , within any part of the whole foresaid bounds , the saids crimes may be the more effectually punished and restrained , and that these commissions may , and shal be granted , as said is , for the space of three years ; which is to begin after the present commission granted by his majesty is expired : which commissions shal continue all powers necessary and usual in commissions of justiciary , without prejudice always to the whole foresaid persons , and lords of regality , and all others of their several respective rights and jurisdictions , and also reserving the right of prevention , and the right of casualities and escheats , in manner provided in the said act. xxxviii . act concerning the dividing of commonties . iuly 17. 1695. our soveraign lord , with advice and consent of the estates of parliament , for preventing the discords that arise about commonties , and for the more easie and expedit deciding thereof , in time coming , statuts and ordains , that all commonties , excepting the commonties belonging to the king and royal-burrows ; that is , all that belongs to his majesty in property , or royal-burrows in burgage , may be divided at the instance of any having interest , by summons raised against all persons concerned , before the lords of session● who are hereby impowered to discuss the relevancy , and to determine upon the rights and interests of all parties concerned , and to value and divide the same , according to the value of the rights and interests of the several parties concerned , and to grant commissions to sheriffs , stewarts , baillies of regality and their deputs , justices of peace , or others , for perambulating and taking all other necessary probation , which commissions shal be reported to the saids lords , and the said processes ultimatly determined by them . and where mosses shal happen to be in the said commonties , with power to the said lords , to divide the said mosses , amongst the several parties having interest therein , in manner foresaid ; or in case it be instructed to the said lords , that the said mosses cannot be conveniently divided , his majesty , with consent foresaid , statuts and declares , that the said mosses shal remain common , with free ish and entry thereto , whether divided or not , declaring also , that the interest of the heretors , having right in the said commonties , shal be estimat according to the valuation of their respective lands or properties , and which divisions are appointed to be made , of that part of the commonty that is next adjacent to each heretors property . xxxix . act discharging the venting of rum. iuly 17. 1695. our soveraign lord considering , that the brandy commonly called rum made of molossus , does hinder the consumpt of strong waters made of malt , which is the native product of this kingdom : as also , that the said rum is rather a drug than liquor , and highly prejudicial to the health of all who drink it . therefore , his majesty with advice and consent of the estates of parliament , prohibits and discharges the making of rum , except allenarly for export : certifying the contraveeners , that they shal lose and amit their priviledges granted to them as manufactories , and be otherways punished as the lords of privy council think fit . xl. act anent letters passing the signet . iuly 17. 1695. our soveraign lord with advice and consent of the estates of parliament , for reviving and preserving the good order that ought to be kept in the passing of writs under the signet , statutes and ordains , that all writs passing under the signet , called the signet of the lords of session , be subscribed by a writer as clerk to the said signet : excepting allanerly herefrom , letters of diligence in processes before the session , and letters of citation before the parliament , which are to be subscribed by the clerks of session . and his majesty with advice foresaid , prohibits the keeper of the said signet , to affix the same to any letters not subscribed as above , any custom or practice in the contrary notwithstanding , and that as he will be answerable upon his peril . xli . act anent executry and moveables . iuly 17. 1695. our soveraign lord considering , that the law is defective , as to the affecting with legal diligence , the moveable estate which pertained to a defunct , either for his own , or his nearest of kins debt , in such manner as a defuncts heretage , may be affected by charging to enter heir in the known manner : doth therefore , with advice and consent of the estates of parliament , statute and ordain , that in the case of a moveable estate left by a defunct , and falling to his nearest of kin , who lyes out , and doth not confirm , the creditors of the nearest of kin , may either require the procurator-fiscal to confirm and assign to them , under the peril and pain of his being lyable for the debt , if he refuse ; or they may obtain themselves decerned executors dative to the defunct , as if they were creditors to him : with this provision always , that the creditors of the defunct , doing diligence to affect the said moveable estate within year and day of their debitors decease , shall always be preferred to the diligence of the said nearest of kin. and it is further declared , that in the case of any depending cause or claim against a defunct the time of his decease , it shall be leisum to the pursuer of the said cause or claim , to charge the defuncts nearest of kin to confirm executor to him within twenty days after the charge given , which charge so execute , shall be a passive title against the person charged , as if he were a vitious intromettor , unless he renunce , and then the charger may proceed to have his debt constitute , and the haereditas iacens of moveables declared lyable by a decreet cognitionis causa , upon the obtaining whereof , he may be decerned executor dative to the defunct , and so affect his moveables in the common form. xlii . act allowing the administrators of the common good of burrows , to adventure their stocks , or any part thereof , in the company of forraign trade . iuly 17. 1695. our soveraign lord with advice and consent of the estates of parliament , for the encouragement of the undertakers for forraign trade , conform to an act made in their favours in this present session of parliament , intituled , act for a company tradeing to affrica and the indies , doeth hereby statute and declare , that it shall be leisum to the magistrats and others , the administrators of the common good of burghs ; as also , to the deacon , masters , and other administrators whatsoever of any incorporation , or body , or company incorporat , or collegiat within this kingdom , to adventure and put in money belonging to their respective administrations , for a share and part to be purchased to the saids burghs and incorporations in the said company mentioned in the said act , bearing the name of the company of scotland tradeing to affrica and the indies , in the manner and in the terms provided within the said act , and that their putting in the money of the said burghs . incorporations , under their care and charge , and adventuring the same in the said company , shall be repute and held for a deed of lawful administration , and though the success and event thereof , should happen not to be prosperous , yet it shall never be construed to be a deed of lesion against the said administrators , but their acting in this behalf , is hereby declared to be lawful and warrantable , for the security of the foresaid persons in all events . xliii . act anent the poor . iuly 17. 1695. our soveraign lord with advice and consent of the estates of parliament , doeth hereby ratifie , approve , and revive all acts of parliament , and acts and proclamations of council , for maintaining of the poor , and repressing of beggers , and ordains them to be put to vigorous execution in all points . and further , impowers the lords of his majesties privy council , to take the most effectual course to make the said acts and proclamation effectual , conform to the true design thereof . xliv . act salvo jure cujuslibet . iuly 17. 1695. our soveraign lord considering , that there are several acts and others past and made in this session of parliament , in favours of particular persons , without calling or hearing of such as may be thereby concerned and prejudged : therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that all such particular acts and others past in manner foresaid , shall not prejudge say third party , of their lawful rights , nor of their actions and defences competent thereupon , before the making of the said particular acts ; and the lords of session , and all other judges within this kingdom , shall be obliged to judge betwixt parties , according to their several rights standing in their persons , before the making of the said acts ; all which are hereby expounded and declared to have been made salvo iure cujuslibet . xlv . act of adjournment . iuly 17. 1695. the kings majesty declares this parliament currant , and adjourns the same to the seventh day of november , next to come ; ordaining all members of parliament , noblemen , commissioners from shires and burghs , and all others having interest , to attend at edinburgh that day , at ten a clock ; and that there be no new elections in shires or burghs , except upon the death of any of the present commissioners . collected and extracted from the registers and records of parliament , by tarbat , cls. registri . a table of the printed acts. page 1 act for a solemn fast. 1 2 act regulating citations before the parliament . 3 3 act adjourning the summer-session till the first of iuly 1695. 4 4 act anent the justice-court . 5 5 act anent principals and cautioners . 6 6 act regulating the sale and payment of bankrupts estates . 7 7 act for six months supply upon the land-rent . 8 8 act for a company tradeing to affrica and the indies . 17 9 act adjourning the session till the first day of november 1695. 23 10 act for pole-money . ibid. 11 act against blasphemy . 27 12 act against irregular baptisms and marriages . 28 13 act against prophaneness . 29 14 act for restraining the prophanation of the lords days , by keeping weekly mercats on munday and saturnday . 30 15 act for encouragment of preachers at vacant churches be-north forth 31 16 act anent the ease of annualrents due by persons restored , and anent the creditors diligence to be used against them . 32 17 act anent the mint . 34 18 act anent the quorum of the commission of the teinds . 35 19 act anent the duty on scots muslin . 36 20 act anent the post-office . ibid. 21 explanatory act anent the excise of brandy . 39 22 act against intruding into churches without a legal call and admission thereto . 40 23 act anent lands lying run-rig . 41 24 act for obviating the frauds of appearand heirs . 42 25 act anent the repetition of fines . 44 26 act discharging popish persons to prejudge their protestant heirs in succession . 45 27 act concerning the church . 46 28 act for the additional and annexed excises . 48 29 act for continuing the additional excise till march 1667 , with three months farder cess . 51 30 act for preservation of meadows , lands and pasturages lying adjacent to sand-hills . 52 31 act for turning the tack of the pole 1693 , into a collection . ibid. 32 act for encouraging the exportation of victual . 55 33 act for the levies . 56 34 act for additional imposition upon forraign commodities imported . 58 35 act anent burying in scots-linen . 60 36 act anent the skinners . 61 37 act anent the justiciary of the highlands . 62 38 act concerning the dividing of commonties . 63 39 act discharging the venting of rumm . 64 40 act anent letters passing the signet . ibid. 41 act anent executry and movables . 65 42 act allowing the administrators of the common good of burrows , to adventure their stock , or any part thereof , in the company of forraign trade . 66 43 act for reviving the acts of council made anent the poor . ibid. 44 act salvo iure cujuslibet . 67 45 act of adjournment . ibid. a table of the acts and ratifications past in the fifth session of his majesties first parliament , which are not here printed . his majesties commission to iohn marquis of tweeddule produced . the earl of annandale named president to the parliament . protestations several noblemen , for their precedencies in the rolls of parliament . several excuses offered for several absent members , and received . his majesties letter , appointing the lord yester to sit and vote in parliament , in place of the lord high thesaurer . his majesties letter to the parliament . address of condoleance for the death of the queen . act anent the election of the burgh of anstruther-easter . an address by the parliament to his majesties high commissioner , for transmitting their humble thanks to his majesty , for ordering an enquiry in the matter of glenco . act anent the lords of session who are upon committees . act in favours of evan m cgrigor . decreet sir william scot of hardin , against george m ckenzie of rosebaugh . warrand the shire of clackmannan for a new election . warrand for pursuing the earl of broadalbane . act for a general contribution for relief of some captives . recommendation in favours of mrs. martin . decreet sir iames ramsey and his lady , against the earl and countess of seaforth . act in favours of sir thomas livingston . decreet against mr. thomas craven , mr. andrew burnet , and mr. alexander thomson . decreet the earls of roxburgh , haddington , galloway , and others , against the earl of lothian . decreet in favours of mr. thomas skeen . protestation the earl of lothian , against the earl of roxburgh and others . act in favours of the kings colledge of old aberdeen . decreet the co-heirs of carnock , against nicolson of tilly-cultry . act in favours of the children of the first marriage of the earl of melfort . decreet of forefaulture , against the earls of midleton● melfort , and sir adam blair . act in favours of collonel hill. reference the city of edinburgh and earl of melvill . recommendation in favours of sir david carnegy of pittarow . recommendation in favours of the laird of lundy . act in favours of gilbert meuzies of pitfoddels . act in favours of mr. thomas craven , mr. andrew burnet , and mr. alexander thomson . act and remit the town of edinburgh and aeneas m cleod . act in favours of iames lyel . act in favours of sir alexander hope of kerse and others : remit process of forefaulture against the rebels in france , depending before the parliament to the justice court. order for apprehending lieutenant collonel hamilton . order anent mr. alexander barclay . act anent mr. bernard m ckenzie . order anent mr. gilbert ramsey . act in favours of the burgh of cullen . order for re printing of the act for the supply . address to his majesty anent the slaughter of the glencoe-men . protection in favours of the glencoe-men . recommendation in favours of the laird of grant. act for a manufactory of white-paper . order anent the clerks and collectors of supply . act and remit the laird of rothemay and abernethy of mayens . act in favours of the linen-manufactory . act in favours of the lord frazer . decreet sir iohn dempster of pitliver , against the earl and countess of seaforth . remit in favours of the lady dowager of beilhaven . remit clara and patricia ruthvens , and sir alexander hope of kers . recommendation in favours of alexander duff of braco . recommendation in favours of the synod of argile . recommendation in favours of the late bishop of argile . order and warrand anent iohn dick and the town of stirling . recommendation in favours of heriots hospital . act in favours of the laird of hoptoun . act and commission for reviseing the laws . act in favours of his majesties advocat . act in favours of the town of air. act in favours of the city of aberdeen . act in favours of the town of irwin . act in favours of the laird of colloden . act in favours of the earl marischals colledge of aberdeen . recommendation in favours of sir thomas stewart of kirkfield . recommendation in favours of sir colin campbel of abberuchil . recommendation in favours of duncan forbes of culloden . recommendation in favours of the children of the first and second marriage of sir andrew dick. recommendation in favours of elizabeth duncan and her son. recommendation in favours of mrs. gillespy . recommendation in favours of captain walter lockhart of kirktoun . remit mr. iames da●s and iames hay of carribber to the session . act and recommendation in favours of iames bain . remit in favours of iames crawfurd of montquhanny , sir thomas kennedy , and others . recommendation in favours of the laird of kilmaronock . remit in favours of the laird of glenkindy and sir adam blair . remit mr. alexander heggins and iohn callender . act in favours of george baylie of ierviswood . recommendation in favours of william boig . recommendation in favours of the laird of culbin . order the city of edinburgh and the laird of comistoun . act in favours of the laird of langtoun . act in favours of william beatty . recommendation in favours of the burgh of fortross . recommendation in favours of iohn spotswood . decreet in favours of mrs. lilias stewart . act in favours of iames curry late provost of edinburgh . act in favours of comb-makers . act in favours of alexander fearn . act in favours of william scot and iohn heislop . act anent the earl of broadalbane . recommendation in favours of the macers and keepers of the parliament house . act in favours of robert douglass . act in favours of iohn adeir and captain slezer . act in favours of whitefield heyter , and others . act in favours of the heirs of taylzie of mauldsly . act for erecting a publick bank. act in favours of the burgh of dysart . act in favours of the burgh of culross . acts for several fairs and weekly mercats . act and ratification in favours of sir iohn hall of dunglass . ratification in favours of the chyrurgions and chryurgion-apothecaries of edinburgh . protestation the town of edinburgh against the same . ratification in favours of the nine trades of dundee . protestation the walkers and litsters of dundee against the same . ratification in favours of the burgh of breichen . ratification in favours of the candlemakers of edinburgh . ratification in favours of the walkers and litsters of dundee . protestation the town and trades of dundee against the same . ratification in favours of alexander spittel of leuchit . ratification in favours of the piriwig-makers of edinburgh . ratification in favours of iames lindsay of dovehill . ratification in favours of the cowpers of glasgow . protestation the town of glasgow against the same . ratification in favours of william rai●ly of brunsfield . ratification in favours of the laird of rowallan . ratification in favours of sir william stewart of castle-milk . ratification in favours of the viscount of tarbat . protestation the city of edinburgh against the same . ratification in favours of sir iames falcon●r of ph●sdo . ratification in favours of william cunningham brother to gilbertfield , of the lands of kilbryde . ratification in favours of james turner . finis . these are allowing the two acts , past in parliament on the twenty second day of iuly , one thousand six hundred and ninety years , in favours of sir patrick home of polwarth , now lord polwarth , to be printed . tarbat , cls. registri . act rescinding the forefaulture of sir patrick home of polwarth . edinburgh , iuly 22. 1690. our soveraign lord and lady the king and queens majesties , and the estates of parliament considering , that the meeting of the estates of this kingdom , in the claim of right , dated the eleventh of april , one thousand six hundred eighty and nine years , have declared , that the causing pursue and forefault persons upon weak or frivolous pretences , or upon lame and defective probation , is contrary to law ; and also , that all forefaultures are to be considered , and the parties laesed to be redressed : and having considered the process of forefaulture led and deduced before the three estates of parliament , upon the twenty second of may , one thousand six hundred eighty and five years , against sir patrick home of polwarth in absence , with the decreet and doom of forefaulture following thereupon , and that the pretences insisted upon in the said proces of forefaulture , against the said sir patrick home , viz. his meeting with the deceast mr. robert martine , and other persons at the places therein lybelled , and discoursing with them of the extream hazard that threatned the protestant religion , the laws and liberties of this kingdom ; in case iames then duke of york would succeed to the crown , and of the ways and methods then talked of in england , and such as might be taken in scotland for preventing the same , and for his exclusion from succession to the crown ; are weak and frivolous pretences , to infer the crime of treason ▪ as likewise , that the probation wa● lame & defective , seing it did confe●● of the depositions , and testimonies of persons , who a little before hade been accused of the same pretended crimes , and who , after submission made , and when their lives and fortunes were at the late kings mercy , had predetermined themselves by their confessions and depositions then emitted ; for albeit they were secured , as to their lives , when they deponed before the parliament , yet they having emitted their declarations , when they were under the fear and apprehension of being forefaulted themselves , and when they renewed their confessions before the parliament , they could make no alteration , unless they had declared themselves to be perjured , they having only adhered to the very same testimonies formerly emitted , by them except the earl of tarras , who depons of new , and not upon his declaration formerly emitted , but proves nothing against the said sir patrick home . and also considering , that there is nothing proven by the witnesses , in habit , as they were against the said sir patrick , of his being upon , or privy to any design or contrivance against the person and life of king charles the second , and that the testimonies do not concur and agree in any particular fact , which by the common law or custom could infer the crime of treason against the said sir patrick . and likeways having considered the act of adjournal of the justice court , of the date the day of one thousand six hundred eighty years , upon which the said sir patrick home was denounced fugitive , for not compearance ; and that there was no relaxation raised , until a few days before the dyet of compearance in parliament ; though neither he had the offer of an indemnity , nor was for the time in open rebellion , so that he had not tutus accessus , and that the saids pretended crimes , lybelled in the said act of adjournal , are the same contained in the foresaid sentence of forefaulture before the parliament . therefore , their majesties , with advice and consent of the estates of parliament , do hereby , by way of justice , rescind , retreit , cass , and annull , the foresaid decreet , and sentence of forefaulture , pronounced against the said sir patrick home , and all gifts of forefaulture , if any be granted , by the late king iames , of the said sir patrick his estate , or any part thereof , to any person or persons whatsomever : and the foresaid act of adjournal , with all that has followed , or may follow thereupon : and declares the said decreet and sentence of forefaulture , and act of adjournal to have been from the beginning , to be now , and in all time coming void , null , and of no avail , force , strength nor effect : and restores the said sir patrick home , his children and posterity against the same , in integrum ; and rehabilitating them to their blood-right , and benefit of succession , name and fame , sick-like , and as freely in all respects , as if the said decreet and doom of forfaulture had never been given , nor pronounced . rescinding hereby the act of annexation of the said sir patrick , his estate to the crown ; and dissolving the same therefrae . as also , their majesties , with consent foresaid , decerns and ordains , all the intrometters with the lands , rents , goods and gear , or other estate , moveable or immoveable , pertaining and belonging to the said sir patrick home , to be lyable for , and refound the famine to him , his heirs , executors or assigneys , and that letters may be direct for that effect , in form as effeirs ? and their majesties , and estates of parliament , statute and ordain , that this present act shal have full force , strength , and effect of a publick law , in favours of the said sir patrick home , and others aforesaid . and it is hereby declared , that this present act is , and shal be understood to be excepted from the act salvo iure to be past in this present parliament . act dissolving sir patrick home of polwarth his estate from the crown . iuly 22. 1690. forasmuch as , by an act and sentence of this present parliament , the doom and sentence of forefaulture , pronounced in anno one thousand six hundred eighty and five , against sir patrick home of polwarth , is ex iustitia , reduced and rescinded : and that by an act of the sixteenth of iune , one thousand six hundred eighty and five , the estate and lands belonging to the said sir patrick home were formerly annexed to the crown ; which act of annexation is now also by the said act reductive in his favours , rescinded , and declared void : therefore , and for the said sir patrick his more full and effectual restitution , and without any derogation to the said act reductive , in his favours , but accumulating rights to rights , our soveraign lord and lady , the king and queens majesties , with advice and consent of the estates of parliament , have dissolved , and hereby dissolves from the crown and patrimony thereof , the lands and barrony of polwarth , the lands and barrony of grein-law and reid-path , with the right of patronages , and whole pertinents thereof ; and lands of with all other lands , rights and estate , pertaining to the said sir patrick home , and that in favours of the said sir patrick himself , that he may bruick and enjoy the same as if he himself had never been forefaulted , or as if the saids lands and estate had never been annexed . declaring that this present act shal have the strength and effect of a general law and act of parliament ; and shal be al 's valid and effectual to the said sir patrick , his heirs and successors , for their security of the whole premisses , as any other act of dissolution made and enacted at any time bygone , in favours of whatsomever person : and conform to all the conditions required by law , in acts of that nature . and farder , that this present act of dissolution , is , and shal be understood to be excepted from the act salvo iure , to be past in this present parliament . extracted furth of the records of parliament , by george viscount of tarbat , lord m cleod , and castlehaven , &c. clerk to the parliament , and to his majesties councils , registers and rolls . a treatise of the principal grounds and maximes of the lawes of this nation very usefull and commodious for all students and such others as desire the knowledge and understandings of the laws / written by that most excellent and learned expositor of the law, w.n. noy, william, 1577-1634. 1651 approx. 196 kb of xml-encoded text transcribed from 84 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2007-10 (eebo-tcp phase 1). a52567 wing n1453 estc r30072 11240460 ocm 11240460 47054 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a52567) transcribed from: (early english books online ; image set 47054) images scanned from microfilm: (early english books, 1641-1700 ; 1447:12) a treatise of the principal grounds and maximes of the lawes of this nation very usefull and commodious for all students and such others as desire the knowledge and understandings of the laws / written by that most excellent and learned expositor of the law, w.n. noy, william, 1577-1634. doddridge, john, sir, 1555-1628. treatise of particular estates. t. h. certain observations concerning a deed of feoffament. the second edition with additions. [6], 159 p. printed by t.n. for w. lee, d. pakeman, r. best and g. bedell ..., london : 1651. with: a treatise of particular estates / written by sir john doddridge. london printed, 1651 (p. 115-126)--certain observations concerning a deed of feoffament / by t.h. london printed, 1651 (p. 127-159) reproduction of the original in the bodleian library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -great britain. real property -great britain. conveyancing -great britain. 2006-09 tcp assigned for keying and markup 2006-09 apex covantage keyed and coded from proquest page images 2006-10 john latta sampled and proofread 2006-10 john latta text and markup reviewed and edited 2007-02 pfs batch review (qc) and xml conversion a treatise of the principal grounds and maximes of the lawes of this nation . very usefull and commodious for all students , and such others as desire the knowledg and understanding of the laws . lex plus laudatur , quando ratione probatur . written by that most excellent and learned expositor of the law , w. n. of lincolns-inn , esquire . the second edition , with additions . london , printed by t. n. for w. lee , d. pakeman , r. best , and g. bedell , and are to be sold at their shops in fleetstreet , and grays-inn gate , 1651. an analysis of the laws of england , by the honorable and most learned william noy esq atturney gen : and of the privy councel to the late king. justice is a constant & perpetuall will to render every man his own right : it is naturall according to law whereare considered law divine law of reason law humane forreign english common , where is treated i. of law where is considered the law it self , which is by tradition , which is general , and belongs to * written statute injuries forbiden by that law private , against the person and goods publique against the king & commonwealth 2. of the manner of delivering that law civill ecclesiastical temporal in peace the admiral in warr the marshal * the person , where is considered the quality ; as name the king the subject who is of baptism creation natural who is politick free , who is villain in his own power , where is considered not in his own power intention action there cause time place efficient material formal final . by nature action of the person by common law , or the kings charter the thing , which is universal which is of natural right out of divers causes particular , in which dominion may be gained where are considered peculiar , which belongs to the king to the subject according to his prerogative legal & ordinary regal & absolute according to peculiar custom of place prescription of persons 1. things or goods themselves ; which are real personal primary secondary simple compound of the land upon it corporate incorporate 2. to have ownership , which is by estate and propriety by right by his own right right of another single joint by possession possibility of franktenement chattels hereditary frank-tenement alone in fee in tail absolute conditional qualified general special by law by gift as dower curtesy of engl. for life , or life of another real personal term of years at will animate inanimate remote near reversion remainder parceners joint tenants tenants in common interest and propriety use authority of action of entry 3. the manner of acquiring ownership by law by purchase discent , or forfeiture absolute with consideration by writing by word by devise by record by deed fine recovery executed executory with voucher without single double feoffment grant with atturny barg . & sale inrol'd by grant ratification release confirmation render election concord assignment by common-law by statute 4. the manner of admitting ownership by operation of law by act of the party extinguishment suspension discent , which takes away entry commission omission discontinuance warranty estoppell forfeiture ii. the manner of delivering the law is by law by act of the party immediate mediate , by actions in courts where are considered claim entry 1. the diverse actions in which right is given writs plaints original judicial real personal mixt for the right the possession for the person the goods of right of law of the kings grace of course magistral pleas of the crown common pleas 2. the divers courts where remedy is had ; here are considered the courts themselvs their jurisdictions ; & there temporal of the king the subject superior inferior of record of barony the persons pleas of the courts in them judges ministers demand ' tenant real personal plaintiff defend ' of the crown common 3. the manner of prosecution in courts direct collaterall by processe by pleading with that pleas tryall judgment execution by the court-adjornment by persons in the court , as-essoin 4. the manner of defeating the process by prohibition assignation of errors 5. the manner of taking away the punishment flight pardon . chap. i. the laws of england are threefold ; common laws , customes , and statutes . the common law . the common law is grounded on the rules of reason , and therefore we use to say in argument , that reason will that such a thing be done , or that reason will not that such a thing be done ; the rules of reason are of two sorts , some taken from learning ▪ as well divine as humane , and some proper to itself onely . of theologie . 1. summa ratio est , quae pro religione facit . atenure to finde a preacher , if the lord purchase parcell of the land ▪ yet the whole service remaineth , because it is for the advancement of religion . 2. dies dominicus non est juridicus . sale on a sunday shall not be said sale in a market , to alter the property of the goods . of grammbr . of grammer , the rules are infinite in the etymologie of a word , and in the construction thereof ; what is nature , is single . 3. ad proxium antecedens fiat relatio , nisi impediatur sententia . as an inditement against i. s. servant to i. d. in the county of middlesex ▪ butcher , &c. is not good ; for servant is no addition , and butcher shall be referred to i. d. which is the next antecedent . of logick . 4. cessante causa , cessat effectus . the executor , nor the husband , after the death of a woman guardian in soccage , shall not have the wardship , because ( viz. ) the natural affection is removed which was the cause thereof . some things shall be construed according to the original cause thereof . 5. the executor may release before the probate of the will , because his title and interest is by the will , and not by the probate . to make a man swear to bring me money upon pain of killing , and he bringeth it accordingly , it is felony . outlawry in trespass , is no forfeiture of land , as outlawry in felony is ; for although the non-appearance is the cause of the outlawry in both , yet the force of the outlawry shall be esteemed according to the heynousness of the offence , which is the principal cause of the process . 6. according to the beginning thereof : as if a servant , which is out of his masters service , kill his master , through the malice which he bare him when he was his servant , this is petty treason . 7. according to the end thereof ; as if a man warned to answer a matter in a writ , there he shall not answer to any other matter then is contained in the writ ; for that ●as the end of his coming . 8. derivativa potestas non potest esse majus primitiva . a servant shall be stopped to say the frank-tenement is belonging to his master , by a recovery against his master , although the servant be a stranger to the recovery ; for he shall not be in better case then he is in , whose right he claimeth , or justifieth . 9. quod ab initio non valet , in tractu temporis non convalescit . if an infant , or a married woman , do make a will , and publish the same , and afterwards dyeth , being of full age , or sole , notwithstanding this will is void . 10. vnumquodque dissolvitur eo modo quo colligatur . an obligation or other matter in writing , may not be discharged by an agreement by word , but by writing . 11. he that claimeth a thing on high , shal neither have gain , nor loss thereby . as if one joynt-tenant make a lease o● his joyntee , reserving rent , and die ; the heire which surviveth shall have the reversion of his joyntee , but not the rent , because he cometh in by the first feoffer , and not under his companion . also where the husband being leased for yeers in right , reserving a rent , the woman shall have the residue of the terme , but not the rent . 12. debile fundamentum , fallit opus . when the estate whereunto the warrantie is annexed is defeated , the warrantie is also defeated . 13. incidents may not be severed . as if a man grant wood to be burnt in such a house , wood may not be granted away , but he which hath the house , shall have the wood also . 14. actio personalis moritur cum persona . as if battery be done to a man , if he that did the battery , or the other die , the action is gone . if the leasor covenant to pay quit-rents , during the terme , his executor shall not pay it , for it is a personal covenant . 15. things of higher nature , do determine things of lower nature . as matters of writing do determine an agreement by words . if an offence which is murder at the common law , be made high treason , no appeal lieth for it , for that the murder is drowned , and punishable as treason , whereof no appeal lieth . 16. majus continet minus . whereby the custom of a manor , a man may demise for life , he may demise to his wife , durante viduitate . 17. majus dignum trahit ad se minus dignum . as the writings , the chest or box they are in . of philosophy . 18. naturae vis maxima . natural affection or brotherly love , are good causes or considerations to raise an use . and one brother may maintain a suit for another . 19. the law favoureth some persons . viz. men out of the realm , or in pison , women married , infants , ideots , mad-men , men without intelligence , strangers , that are neither parties , nor privie , and things done in anothers right . a descent shall not take away the entry of a man out of the realm , or in prison , or of a married woman , or of an infant . and a lease made to the husband and wife , after the death of the husband , the wife shall not be charged for waste , during the mariage . an ideot shall not be compelled to plead by his guardian or next friend , but shall be in the court ; and he that pleadeth the best plea for himself , shall be admitted : if a dumb man bring an action , he shall plead by his next friend : if a lessee for years grant a rent-charge , and surrendereth , the rent shall be paid , during the terme , to the stranger : a man out-lawed or excommunicated ▪ may bring an action as an executor : 20. and a mans person before his possessions , mentioned of corporal pain , shall avoid a deed , but not his goods . 21. and matter of possession more then matter of right , when the right is equall . as if a man purchase several lands at one time , held of several lords by knights service , and dieth , the lord which first seizeth the ward , shall have it , otherwise his elder lord. 22. matter of profit or interest shall be taken largely : and it may be assigned , and it may not be countermanded ; but matter of pleasure , trust or authority , shall be taken strictly , and may be countermanded . as licence to him in my park , or in my garden to walk , extendeth onely to himself , and not to his servant , nor any other in his companie ; for it is matter of pleasure only ; otherwise it is of a licence to hunt , kill , and carry away the deer , which is matter of profit . a church-way is matter of ease . of political . 23. nothing shall be void , which by possibility may be good ; if land be given to a man , and to a woman married to another man , and the heires of their two bodies , this is a present estate tayle , because of the possibilitie . 24. ex nudo pacto non oritur actio . no man is bound to his promise , nor any use can be raised without good consideration . a consideration must be some cause or occasion which must amount to a recompence in deed , or in law , as money , or natural affection , not long acquaintance , nor great familiarity . 25. the law favoureth a thing that is of necessity . as to pay several expences , shall not be said to administer ; to distrain in the night , dammage feasant , to kill another to save his own life . a servant to beat another to save his master , if he cannot otherwise choose . to drive another mans cattel amongst mine own , untill i come to a place to shift them , is no trespass . 26. and for the good of the common-wealth . as killing of foxes , and the pulling down of an house of necessity to stay a fire . 27. communis error facit jus . as an acquittance made by a major alone , where there be a hundred presidents , is good . 28. and things that are in the custody of the law . goods taken by distress , shall not be taken in execution for the debt of the owner thereof . 29. the husband and the wife are one person . they cannot sue one another , nor make any grant one to another : and if a woman marry with her obligor , the debt is extinct ; and she shall never have any action , if another were bound with him ; for by the mariage the action is suspended ; and an action personal suspended against one , is a discharge to all . 30. an obligation with a condition to enfeoff a woman before such a day , and before the day the obligor taketh her to wife , the obligation is forfeited , because he cannot infeoff her , but he may make a lease for years with a remainder to his wife . when a joynt purchase is , during the marriage , every one shall have the whole . when a joynt purchase , during the mariage , is made , and the husband sell ; the wife shall have a cui in vitâ for the whole against both , and on a feoffment made to one man and his wife , and to a third person , the third person shall have one moity . 31. all that a woman hath , appertaineth to her husband . personal things , and things absolutely reall , as lands , rents , and so forth , or chattels reall , and things in action , are onely in her right ; notwithstanding real things , and things in action , he may dispose at his pleasure , but not will or charge them ; and he shall have her real chattels , if he survive . of things in action , the woman may dispose by her last will , and she may make her husband her executor , and he shall recover them to the use of the last will of his wife . if a leassee for years grant his terme to a man , or woman , and to another , they are joynt-tenants ; but if goods be given to her and to another , her husband and the other are tenants in common . the husband may release an obligation , or trespass for goods taken when his wife was sole , and it shall be good against the woman if he die ; but if he die without making any such release , the woman shall have the action , & not the executor of her husband . the woman surviving , shall have all things in action ; or her executors , if she die . the husband shall be charged with the debts of his wife but during her life . 32 , the will of the wife , is subject to the will of her husband . note , a feoffment made to the wife , she shall have nothing , if her husband do not thereunto agree . morall rules . 33. the law favoureth works of charitie , right , and truth , and abhorreth fraud , coven and incertainties , which obscure the truth ; contrarieties , delayes , unnecessary circumstances , and such like . 34. dolus & fraus una in parte sanari debet . no man shall take benefit of his own wrong ; if a man be bound to appear at a day , and before the day the obligee casts him in prison , the bond is void . a grant of all his woods in b. acre , which may be reasonably spared , is a void grant , if it be not reserved to a third person , to appoint what may be spared . a feoffment made in fee of two acres to two men , habend one acre to one , and the other acre to the other ; this habend ▪ is void . 35. lex neminem cogit ad impossibilia &c. , the law compelleth no man to shew that which by intendment he doth not know ; as if a servant be bound to serve his master in all his commandements lawfull , it is a good plea , to say , he served him lawfully . a covenant to make a new lease upon the surrender of the old lease , and after the covenanter doth make a lease by fine , for more years to estrange , the covenant is broken , although the lessee did not surrender , the which by the words ought to be the first act , for that the other had disabled to take , or to make . law constructions . the law expoundeth things with equity and moderation , to moderate the strictness ; it is no trespass to beat his apprentice with a reasonable correction , or to go with a woman to a justice of peace , to have the peace of her husband , against the will of her husband , which equity doth restrain the generality , if there be any mischief or inconvenience in it ; as if a man make a feoffment of his lands in , and with common , in all his lands in c. the common shall be intended within his lands in c. and not in his other lands he shall have else-where . 36. every act shall be taken most strictly against him that made it . as if two tenats in common , grant a rent of 10. shillings , this is several , and the grantees shall have 20. shillings : but if they make a lease , and reserve 10. shillings , they shall have onely 10. shillings between them ▪ so an obligation to pay 10. shillings at the feast of our lord god ; it is no plea to say that he did pay it ; but he must show at what time , or else it will be taken he paid it after the feast . 37. he that cannot have the effect of a thing , shall have the thing it self . vtres magis valeat quam pereat . as if a termor grant his terme , habendum immediat è post mortem suam ; the grantee shall have it presently . 38. when many joyn in one act , the law saith it is the act of him that could best do it , and that thing should be done by those of best skill . as the disseizee , and the heir of the disseizor , who is in by discent , joyn in a feoffment ; this shall be the feoffment of the heire onely , and the confirmation of the disseizee . and the merchant shall weigh the wares , and not the collectors ▪ 39 : when two titles concur , the elder shall be preferred . 40 : by an acquittance for the last payment , all other arrerages are discharged . 41 : one thing shall enure for another : if the leasor enfeoff the lessee for life , it shall be taken for a confirmation ▪ 42. in one thing , all things following shall be concluded , in granting , demanding , or prohibiting . if one except a close , or a wood , the law will give him a way to it . 43. a man cannot qualifie his own act. as to release an obligation untill such a time . 44. the construction of the law may be altered by the special agreement of the parties . if a house be blown down by the wind , the lessee is excused in waste ; but if he have covenanted to repair it , there an action of covenant doth lie by the agreement of the parties . 45. the law regardeth the intent of the parties , and will imply their words thereunto ; and that which is taken by common intendment , shall be taken to the intent of the parties ; and common intendment is not such an intendment as doth stand indifferent ; but such an intent as hath the most vehement presumption . all incertaintie may be known by circumstances , every deed being done to some purpose , reason would that it should be construed to some purpose , and variance shall be taken most beneficial for him to whom it is made , and at election . 46. an intendment of the parties shall be ordered according to the law. if a man make a lease to a man , and to his heires , for ten years , intending his heires shall have it , if he die , notwithstanding the intent , the executors shall have it . 47. qui per alium facit , per seipsum facere videtur . a promise made to the wife in consideration of a thing to be performed by her husband , if he agree , and perform the consideration , in an action of the case , he shall declare the assumption was made to him . and if my servant sell my goods to another in deqt i shall suppose , he bought them of me . customes . consuetude est altera lex . customes are of two sorts ; general customes in use throughout the whole realme , called maximes ; and particular customes used in some certain county , citie , towne , or lordship , whereof some have been specified before , and some follow here , and where occasion is offered . general customes . the kings excellencie is so high in the law , that no freehold may be given to him , nor derived from him , but by matter of record . every maxim is a sufficient authority to itself ; and which is a maxime , and which is not , shall alwayes be determined by the judges , because they are known to none but to the learned . a maxime shall be taken strict . a particular custom , except the same be a record in some court , shall be pleaded , and tryed by 12. men . chap. ii. statutes . the last ground of the laws of england standeth in divers statutes made by our soveraigne lord the king , and his progenitors , and by the lords spiritual , and temporal , and the commons in divers parliaments , in such cases where the former laws seemed not sufficient to punish evill men , and to reward the good . of general statutes the judges will take notice if they be not pleaded , but not of special , or particular . all acts of parliaments , as well private as general , shall be taken by reasonable construction , be collected out of the words of the act only , according to the true intention and meaning of the maker . foure lessons to be observed , where contrary laws come in question . 1. the inferiour law must give place to the superiour . 2. the law general must yeild to the law special . 3. mans laws to gods laws . 4. an old law to a new law . and oftentimes all these laws must be joyned together to help a man to his right ; as if a man disseized , and the disseizor made a feoffment to defrand the plaintiff , in this case , it appears that the said unlawfull entrie is prohibited by the law of reason . but the plaintiff shall recover double dammage , and that is by the statute of 8 hen. 6. and that the dammage shall be sessed by 12. men , that is , by the custome of the realm , and so in some case , these three laws do maintain the plaintiff's right . and these laws concern either mens possessions , or the punishment of offences . and so much shall be sufficient to be said touching common law , customes , and statutes . concerning possessions . the difference between possession and seizin , is , lease for years is possessed , and yet the lessor is still seized ; and therefore the termes of the law are , that of chattels a man is possessed ; whereas in feoffments , gifts in tayle , and leases for life , he is called seized . chap. iii. of possession of frank-tenement . tenant in fee-simple , is he which hath lands , or tenements to hold to him and his heires for ever . it is the best inheritance a man may have ; he may sell , or grant , or make his will of those lands . and if a man die , they do discend to his heire of the whole blood . chap. iv. fee-tayle . fee-tayle is , of what body he shall come that shall inherit . tenant in tayle , is said to be in two manners . tenant in tayle general , and tenant in tayle special . general tayle is , where lands or tenements be given to a man , and his wife , and to the heires of their two bodies , or to his heires males , or to his heires females . tenant in tayle , is not punishable for waste . tenant in tayle cannot will his lands , nor bargain , sell or grant , but for terme of his life , without a fine , or recovery . if a man will purchase lands in fee , it behoveth him to have these words , heires , in his purchase . if a man would grant lands in tayle , it behoveth him to appoint what body they shall come of . yet a devise of lands to a man and his heires males , is a good intayle ; and of lands to a man for ever , a good free-simple . how lands shall discend . inheritance is an estate which doth discend ; it may not lineally ascend from the son which purchaseth in fee , and dyeth , to his father ; but discendeth to his uncle or brother , and to his heires , which is the next of the whole blood , for the half blood shall not inherit : but the most worthy of blood , as of the blood of the father before the mother ; of the elder brother before the other , and borne within espousall . a discent shall be intended to the heire of him which was last actually seized ; that the sister of the whole blood , where the elder brother did enter after the death of his father , and not his brother of the halfe blood , nor any other collaterall cosen shall inherit ; yet notwithstanding such a one is heire to a common ancester ; in which rule , every word is to be observed , and so in every maxim , if the land , rent , advowson , or such like do discend to the elder son , and he die before any entry , or receit of the rent , or presentment to the church , the younger son shall have and inherit ; and the reason is , because that in all inheritances in possession , he which claimeth title there unto as heire , ought to make himself heire to him that was last actually seized . here the possession of the lessee for years , or of the guardian , shall invest the actual possession , and frank-tenement in the elder brother . but he dying seized of a reversion , or a remainder , or an estate for life , or in tayle ; there he which claimeth the reversion , or remainder as heire , ought to make himself heire to him that had the gift , or made the purchase . feodo excludeth an estate tayle , where the second son shall inherit before the daughter . and if the lands be once settled in the blood of the father , the heire of the mother shall never have them , because they are not of the blood of him that was last seized . and to the heire of the blood of the first purchaser ; as if the father purchase lands , and it discendeth to the son , who entreth , and dieth without heires of the fathers part , then the lands shall discend to the heires of the mother or father of the father , and not to the heires of the mother of the son ; although they are more neer of blood to him that was last seized , yet they are not of the blood of the first purchaser . if the heires be females in equal distance , as daughters , sisters , aunts , and so forth , they shall inherit together , and are but one heire , and are called parceners . gavill-kinde . doth discend to all the sons , and if no sons , to all the daughters : and may be given by will by the custome . chap. v. parceners . parceners are of two sorts . women and their heires by the common law . men by the custom . they may have a writ of partition , and the sheriff may go to the lands , and by the oath of 12 : men , make partition between them , and the eldest shall have the capitall messuage by the common law , and the youngest by the custome ; where the parties will not shew to the jewry the certaintie , there they shall be discharged in conscience , if they make partition of so much as is presumed and known by presumptions and likelyhoods . parceners may by agreement make partition by deed , or by word , and the eldest first choose , unless their agreement be to the contrary . every part at the time of the partition must be of an even yearly value , without incumbrance . rent may be reserved for equality or partition ( and may be distrained for ) without a deed. parceners by divers discents , before partition , being disseized , shall have one assize . a parcener before partition , may charge , or demised her part . the entrie or act of one copartner , or joynt-tenant shall be the act of both ; when it is for their good . if a parcener after partition be entred , she may enter upon her sisters part , and hold it with her in parcenary , and have a new partition , if she hold none of her part before she was outed , viz. in exchange . chap. vi. joynt-tenants . ioynt-tenants be such as have joynt estates in goods , or lands , where he that surviveth shal have all without incumbrance , if the tenements abide in the same plight as they were granted . joynt-tenants may have several estates ; a joynt-tenant cannot grant a rent-charge , but for terme of his own life . a joynt-tenant may make a lease for life , or for years , of his part , or release , and the lessee for years may enter , although the lessor die before the lease begin , and his heire shall have the rent , but the survivor the reversion . a joynt-tenant may have a writ of partition by the statute of the 31. of h. 8. cap. 32. a partition made by joynt-tenants , or tenants in common of estates of inheritance , must be by indenture ; by word 't is void . chap. vii . tenants in common . tenants in common , are those that hold lands and tenements by several titles . they may joyne in action personal , but they must have several actions real . they may have a writ of partition by the stat. of 31. h. 8. cap. 32. if one parcener , joynt-tenant , or tenant in common take , all the other have no remedie , but by ejectione firme , or such like , or waste . gavil-kinde-lands . tenant by the curtesie of kent , whether he have issue or no , untill he marry , and so forth , he may not commit waste . chap. viii . tenant in dower . a woman shall be indowed of all sorts of inheritance of her husband , where the issue that she had by him may inherit , as heire to his father , by meetes , and bounds of a third part , she shall have house-roome , and meat , and drink in common , for forty dayes ; but she may not kill a bullock within those 40. days after the death of her husband , in which time her dower ought to be assigned her . the assignement by him that had the frank-tenement is good , but by him that is guardian in soccage , or tenant by elegit , verte elegit , or statutes , or lessee for years , is not . she is to demand her dower on the land. she shall recover dammages when her husband dyed seized , from the death of her husband ; if the heire be not ready at the first day to assigne her dower . she shall have all her chattels real againe , execept her husband sell them ; he may not charge them , or give them by his will ; and likewise her bonds , if the money were due in the life of her husband , and all convenient apparel ; but if she have more then is fit for her degree , it will be assets . a woman shall be barred of her dower so long as she detaineth the bodie of the heire , being ward , or the writing of the sons land. a woman shall not be endowed of any lands that her husband joyntly holdeth with another , at the time of his death . dower of gavil-kind lands . if the woman shall be endowed of one half so long as she is unmarried , and chaste , and it may be held with the heire in common . it is of lands and tenements , and not of a faire or such like ; where the heire loseth not his inheritance , there she loseth not her dower . joynture . if a woman have a joynture be fore marriage , she may claim no dower , 27. hen. 8. if it be made during marriage , she may enter into her joynture presently . if she enter , or accept of it , she shall not be endowed . if she shall be expulsed of any part of her joynture , she shall be endowed of the residue of her husbands lands . chap ix . tenant for terme of life . tenant for terme of life , is he that hath lands or tenements for terme of his life , or another mans life , and none of lesser estate may have a free-hold . if a tenant for life sowe the lands and die before the corn be reaped ; his executor shall have it , but not the grasse , nor other fruit . if a tenant for life be impannelled upon an inquest , and forfeit issues and die , they shall be levied upon him in the reversion ; and so likewise if the husband , on the lands of the wife . chap. x. tenant for terme of yeares . tenant for terme of years , is where a man letteth lands or tenements to another for certain yeares . he may enter when he will , the death of the lessor is no let , and may grant away his terme before it begin ; but before he enter , he cannot surrender , nor have any action of trespasse , nor take a release . he is bound to repaire the tenements . the lessor may enter to see what reparations or waste there is , and he may distraine for his rent or have an action of debt . if tenant for life or years granteth a greater estate then he hath himselfe , he doth forfeit his terme . chap. xi tenant at will. tenant at will is hee that holdeth lands , or tenements at the will of another . the lessor may reserve a yearely rent , and may distraine for it , or have an action of debt ; the lessee is not bound to repaire the tenements . the will is determined by the death of the lessor , or of a woman lessee by her marriage , or when the lessee will take upon him to doe that which none but the lessor may doe lawfully , it determineth the will and possession , and the lessor may have an action of trespasse for it . the lessee shall have reasonable time to have away his goods , and his corne ; but he shall lose his fallow , and his dung carried forth . chap. xii . remainder : a remainder is the residue of an estate at the same time appointed over , and must be grounded upon some particular estate given before ▪ granted for years or for like , and so forth . and ought to begin in possession , when the particular estate endeth , there may bee no mean time between ; either by grant or will. no remainder can be of a chattel personal ; a remainder cannot depend on a matter ex post facto , as upon estate tayle , upon condition that if the tenant in tayle sell , then the land to remain to another , is a void remainder . chap. xiii . reversion . a reversion is the residue of an estate that is left after some particular estate , granted out in the grantor ; as if a man grant lands for life , without further granting ; the reversion of the fee-simple is in the lessor . chap. xiv . waste : waste lieth against a tenant by the curtesie , for life , for years , or in dower , and they shall lose the place wasted , and treble dammages . waste lieth not against a tenant by elegit , statute-merchant , or staple ; but account after the debt or dammage levied . waste , or account will lie against a tenant in mortgage , because he had fee conditionall . waste is not given to the heire for waste in the life of his father . waste is given against the assigne of the tenant for life , or of anothers life , but not against the assignee of a tenant in dower , or of the curtesie , it is to be brought against themselves . it is waste to pull up the formes , benches , doors , windowes , walls , filbert-trees , or willows planted . chap. xv. discontinuance . discontinuance is where a man that hath the present possession , by makeing a larger estate then he may , divesteth the inheritance of the lands or tenements out of another , and dieth , and the other hath right to have them , but he may not enter , because of such alienation , but is put to his writ . if a man seized in the right of his wife , or if a tenant in tayle made a feoffment , and died , the wife might not enter , nor the issue in tayle , nor he in reversion , but are put to the waction . now the wife may enter by the statute , 3 : 2. h. 8. and a recovery suffered by the tenant by curtesie , or by the tenant after possibility of issue extinct , or for terme of life , is now made no discontinuance . such things that pass by way of a grant by deed without livery , and seizin , cannot be discontinued as a reversion , or rent-charge common , &c. a release or confirmation without warranty , maketh no discontinuance . chpp. xvi . discents . discents which take away entries , is where a man disseizeth another , and dieth , and his heire entreth , or maketh a feoffment to another in fee , or in tayle , and he dieth , and his heire entreth ; these discents put a man from his entrie . a discent , during minority , marriage , non sanae mentis , imprisonment , or being out of the realm , do not take away an entry . discents of rents in gross , the lord notwithstanding may distrain . a dying seized of a terme for life , or of a remainder , or reversion , doth not take away an entrie , he must die seized in fee ▪ and frank-tenement . a diseizin cannot be to one joynt-tenant or parcener alone , if it be not to the other . if a condition be broken after a discent , the donor , feoffor , or his heires may enter . a wrongfull diseizin is no discent , unless the diseisor have quiet possession five years without entrie , or claime , 32. h. 8. chap. xvii . continuall claime : continual claime is a demand made by another of the propertie or possession of a thing which he hath not in possession , but is withholden from him wrongfully ; defeateth a discent , hapning within a year and a day after it is made , and now by the statute within five years . chap. xviii remitter . remitter is , when by a new title , the frank-tenement is cast upon a man , whose entrie was taken away by a discent , or discontinuance , he shall be in by the elder title ; as if tenant in tayle discontinue the tayle , and after diseizeth his continuance , and dieth thereof seized , and the land discend to his issue , in that case he is said to be in his remitter , viz. seized his ancient estate tayle . when the entrie of a man is lawful , and he taketh an estate to himself , when he is of full age , if it be not by deed indented , or matter of record which shall estop him , it shall be to him a good remitrer . a remitter to the tenant shall be a remitter to him in the remainder , and reversion chap. xix . tenures . all lands are holden of the king immediately , or of some other person , and therefore when any that hath fee , dyeth without heire , the lands shall escheate to the lord. and they are holden for the most part either by knights service , or in soccage . knights service draweth to it ward , marriage , and relief , viz. of ward , marriage , and relief . the heire male unmarried , shall be in ward untill 21 years of age . if he be married in the life of his ance●tors , yet the lord shall have the profit of the ●●nd till his full age . none shall be in ward during the life of ●he father . if the heire refuse a convenient marriage , he shall pay to the lord the value , when he cometh to full age . if the ward marrie against the will of the guardian , he shall pay him the double value of his marriage ; but if the heire be of the full age aforesaid , he shall pay a relief . a relief for a whole knights fee , is 5 l for half a knights fee 50s. for a quarter 25 , for more , more ; for less , less , accordingly . a relief is no service , but is incident to a service , the guardian must not commit waste , viz. chattels . tenure in soccage . tenure in soccage is , where the tenant holdeth of his lord by fealty , suit o● court , and certain rent for all manner of service . the lord shall not have the wardship but a relief presently after the death of his tenant . a relief for soccoge land , is a years ren● and is to be paid presently upon a discent o● purchase . as if the land were held by fealty and 10s. rent per annum , ●0s. shall be pai●… for relief . the next of the kin to whom the inheritance may not discend , shall have the wardship of the land , and of the heire , untill his age of 14. years , to the use of the heire , at which age , the heire may call him to account . if the guardian die , the heire cannot have an action of account against the executor of the guardian . the executor of the guardian may not have the wardship , but some other of the next of kin ; the husband may not alien the interest of the wife , in the guardianship , nor hold it ; if she die , it may not be sold . if another man occupie the lands of the heire , as warden in soccage , the heire may call him to account , as guardian . if the guardian hold the lands , after the heire is 14. the heire shall call him to account , as his bailiff . gavill-kinde . the next of kin shall have the guardianship of the body , and lands untill the heire be 15. years of age . diversities of ages . a man hath but two ages . the full age of male and female is one and twenty . a woman hath six ages . the lord her father may distrain for ayd for her marriage , when she is seven . she is double at nine . she is able to assent to matrimony at twelve . she shal not be in warde , if she be fourteen . she shall go out of ward at sixteen . she may sell , or give her lands at 21. no man may be sworn in any jury , before he be 21. before which age , all gifts , grants , or deeds as do not effect by delivery of his own hands , are void , and all others voidable , except for necessary meat , drink , and apparrel , &c. an infant may do any thing for his own advantage , as to be executor , or such like ; an infant shall sue by his next friend , and answer by his guardian . gavill-kind . the heire may give or sell at fifteen years of age . 1. the land must discend , not be given him by will. 2. he must have full recompence . 3. it must be by feoffment , and livery of seizin with his own hands , not by warrant of attorney , nor any other conveyance . by the civil law , an infant may be executor at 17. years of age . an infant may make a will of his goods at 14. years of age , and a maid at 12. chap. xxi . rents . there are three manners of rents . rent-service . rent-charge . rent-seck . rent-service is , where a man holdeth his lands of his lord by certain rent , and so forth . rent-charge is granted , or reserved out of certain lands by deed , with a clause of distress . rent-seck , is a rent granted without a distress ; or rent-service , severed from other service , becometh a rent-seck . the reversion of a rent without a deed , is void if the reversion be not in the reser●or ; if a rent be granted from the reversion , it is a rent-seck he which is not seized of a rent-seck , is without remedie for the same . the gift of a peny by the tenant , in name of seizin of a rent-seck , is a good possession and seizin . no rent may be reserved upon any feoffment , gift , or lease , but only to the donor , and his heires , not to any stranger . a rent-charge is extinct by the grantees purchase of parcell of the land , but by the purchase of any of his ancesters it shall not , it shall be apportioned like rent-service , according to the value of the land ; but if the whole land discend of the same inheritance , the rent is extinguished . by the grant of the reversion , the rents and services pass : if rent be granted to a man without more ; saying , he shall have it for terme of his life . if the lord accept of rent or service of the feoffment , he excludeth himself of the arrerages of the time of the feoffment . for a rent-charge behind , one may have an action of annuity , or distrain . distress . for what , when , and where a man may distrain . a man may distrain for a rent-charge , rent-service , herriot ▪ service , and all manner of service , as homage . escuage . fealtie . suite of court. and relief , &c. herriot custome must be seized : and for amerciaments , in a leete , upon whose ground soever it be in the liberty ; a man may not distrain for rent , after the lease is ended , nor have debt upon a lease for life , before the estate of frank-tenement be determined . a man may not distrain in the night , but for dammage feasant . a man may not distrain upon the possessions of the king , but the king may distrain of any lands of his grantee , or patentee . a man may not distrain the beasts of a stranger that come by escape , untill they have been levant , and couchant on the ground , but for dammage feasans . a man may not distrain the oxen of the plough , nor a mil-stone , nor such like that is for the good of the common-wealth , nor a cloke in a taylors shop , nor victuals , nor corne in sheafes , but if it be in a cart , for dammage feasans . a distress must be always of such things as the sheriff may make a replevin . a man may not sever horses joyned together , or to a cart . if a man put cattell into a pasture for a week , and afterwards i. n. doth give him notice that he will keep them no longer , and the owner will not fetch them away ; i. n. may distrain them dammage feasans . if a man take beasts dammage feasans , and driving them by the high way to a pound , the beasts enter into the house of the owner , and the taker prayeth the delivery of them , and the owner will not deliver them : a writ of rescous lyeth . if a man distrain goods , he may put them where he will. but if they perish , he shall answer for them . if cattell , they ought to be put in a common pound , or else in an open place , where the owner may lawfully come and feed them , and notice given to him thereof , and then if they die , it is in default of the owner . cattell taken dammage fesans , may be impounded in the same land ; but goods or cattell taken for others things may not . sheep may not be destreined , if there be a sufficient distress besides . no man shall drive a distress out of the county wherein it was taken . no distress shall be driven forth of the hundred , but to a pound overt within three miles . a distress may not be impounded in several places , upon pain of five pounds , and treble dammage , fees for impounding one whole distress , four pence . the executor or administrator of him which had rent or fee-farme in fee , in fee-tayle , or for life , may have debt against the tenant that should pay it , or distrain : and this is by the statute 32 : h. 8. so may the husband after the death of his wife , his executor , or administrator . so may he which hath rent for another mans life , distrain for the arrerages after his death , or have an action of debt , 32. h. 8. but if the landlord will distrain the goods , or cattell of his tenant , and do sell them , or worke them , or convert them to his own use , he shall be executor of his own wrong . chap. xxiii . diseizin of rents ▪ three causes of diseizin of rents-service . rescous . replevin . inclosure . foure of rent-charge , denyer , & inclosure . forestalling is a diseizin of all . forestalling is , when the tenant doth with force , and armes , way-lay , or threaten in such manner , that the lord dareth nor distrain , or demand the rent . denyall is , if there be no distress on the land , or if there be none ready to pay the rent , &c. and of such diseizins , a man may have an action of novell diseizin against the tenant , and recover his rent , and arrerages , and his dammage and costs ; and if the rent be behind another time , he shall have a redisseizin , and recover double dammage . rescous , and pound-breach . if the lord distrain when there is no rent nor service behind , the tenant may not rescue ; otherwise if another distreine wrongfully ; but no man may break the pound , although he did tender amends before the cattell were impounded . if the lord come to distrain , and see the beasts , and the servant drive them out of his fee , the lord may not have rescous , because he had not the possession , but he may follow them , and distrain , but not dammage feasans . chap. xxiv . common . common is the right that a man hath to put his beasts to pasture , or to use , and occupy ground that is another mans . there be divers commons , viz. common in gross , common appendant , common appertinant , common , because of neighbourhood , viz. the termes of law. the lords of wastes , woods and pasture , may approve against their tenants and neighbours with common appertenant , leaving them sufficient common , and pasture to their tenants . as if one tenant , surcharge the common ; the other tenants may have against him a writ de admensuratione pasturae ; but not against him that hath common for beasts without number , neither may the lord enclose from such tenants : if he do , the tenant may bring an assize against him , and recover treble dammage , but the lord may have a quo jure , and make the tenant shew by what title he claimeth . chap. xxv . wayes . the kings high-way is that which leadeth from village to village . a common high-way is that which leadeth from a village into the fields . a private way is that which leadeth from one certain place unto another , 3. ed. 3. in the kings high-way , the king hath onely passage for himself and his people ; and the frank-tenement , and all the profits are in the lord of the soyle , as they be presented at the leete . of a common high-way , the frank-tenement and profits are to him that hath the land next ▪ thereto adjoyning , and if it be stopped , and i be damnified by it , i have no remedy , but by presentment in the leete . if a private way be straitned , or if a bridge there , which another ought to repair , be decayed , an action of the case lieth ; but if the way be stopped , an assize of nusance lieth , and the lessee may have it after the lessors years begin , or the lessee may have an action of the case : if the most part of a water-way , be stopped , an assize will lie . chap. xxvi . liberties . a libertie is , a royall priviledge in the hands of a subject . all liberties are derived from the crown , and therefore are extinguished if they come to the crown again by escheate , forfeiture , or such like , for the greater doth drowne the lesser . one may have park , a leete wayfe , stray , wreck of sea , and ●enura placitorum , by prescription , and without allowance in eyre . but not cognizance of plea , nor cattalla fellonum , vel fugitinorum , aut ut ligatorum a libertie may be forfeited by misusing , as to keep a market otherwise then it is granted . a libertie may be forfeited for not using , when it is for the good of the common-wealth ; as not to exercise the office of the clarke of the market ; but not to use a market , is not . whatsoever is in the king , by reason of his prerogative , may not be granted , or pardoned by generall words , but by speciall . chap. xxvii . of chattells reall . chattells reall , are guardianships , leases for years , or at will , &c. guardianship is a commodity of having the custodie of the body , or lands , or both , where the heire is within age ; and the lord of whom the land is holden , by knights service , shall have the same to his own use ; for it is a chattell reall , and therefore his executor shall have it . the guardian must not do waste , nor in ▪ feoff , upon pain of losing the wardship . but he must maintain the buildings out of the issues of the lands , and so restore it to the heire . if the committee of the king commit , the wardship shall be committed to another ; if the grantee , he shall lose the wardship . and one of the friends of the ward , being his next friend that will , may sue for him . if a lease be made to a man and his heires for 20. years , it is a chattell , and his executor shall have it ; otherwise if a man will a lease to a man and his heires , here the word heires , are words of purchase , and his heires shall have it ▪ if a man grant , proximam advocationem to i. s. and his heires , it is but a chattell , for it is but for unicâ vice . writings pawned for money lent , are chattells . if a woman have execution of lands by statute-merchant , and taketh a husband , he may grant it , for it is a chattell . of chattells personall . chattells personall , are gold , silver , plate , jewels , utensils , beasts , and other chattells , and moveable goods whatsoever ; obligations , and corne upon the ground . all goods , as well moveable , as unmoveable , corne upon the ground , obligations , right of actions , money out of bags , and corn out of sacks , sunt cattalla . money is not to be passed by the grant of all his goods , and chattells ; nor hawkes , nor hounds , nor other things ; ferae naturae , for the propertie is not in any , not after they are made tame , longer then they are in his possession ; as my hounds following me , or my man , or my hawke flying after a foule , or my deer haunting out of my park . but if they stray of their own accord , it is lawfull for any man to take , and the heire shall have them . all chattells shall go to the executors ; fatts , and furnaces , fixed in a brew house , or dy-house by the lessee ; if they be fixed by tenant in fee , the heire shall have them . now something hath been said concerning possessions , it followeth , that it be shewed , how they may be conveyed from one man to another . chap. xxviii . of conveyances . in every conveyance , there must be a grantor , and a grantee , and something granted . the conveyance of some persons is void , of others voidable . conveyance of a woman covert is void , without the consent of her husband , and it ought to be made in her and his name , except it be done as executor to another . of an infant , that which doth not take effect with the delivery of his own hands , is void , and an action of trespass will lie against him , for taking the things given . otherwise it is but voidable , except it be as executor , or for necessary meat , and drink , &c. for his advantage . voidable of non sane memorie , royall . voidable or made by duresse , royall . voydable by the parties themselves , and their heires , and by them that shall have their estates , except non sane himself . grants by fine . voydable by writ of error , by an infant ▪ during his nonage , and by the husband for a fine levied by his wife alone , during their marriage . conveyance of some persons cannot be good for ever , without the consent of others , as the deane without the chapter ; the major without the commonaltie , and of other bodies politick , that have a common seale , or of a parson without the patron and ordinary . if there be no condition in the conveyance , it shall be intended the elder . a conveyance made to a feme covert , shall be good , and of effect , untill her husband do disagree . an infant may be grantee , so may a woman outlawed , a villaine , a bastard , and a fellon . a bastard can have no heire , but the issue of his body lawfully begotten . an infant at the age of discretion , by his actuall entry ; and a woman against the will of her husband may be a disseisor , or a trespassor . in all conveyances there must be one named , which may take by force the grant , at the beginning of the grant . a grant made to the right heires of one that is dead , is good , or custodibus eccle. is good for goods . all chattells , reall or personall , may be granted ; or given without a deed. rent-service , rent-seck , rent-charge , common of pasture , or of turbarie , reversion , remainder , advowson , or other things which lieth not in manuall occupation , may not be conveyed for years , for life , in tayle , or in fee , without writing . the major , or commonalty , or such like , cannot make a lease for years , without a deed. chap. xxix . of deeds . three things needfull , and pertaining to every deed ; writing , sealing , and delivering . in the writing must be shewed the persons names , their dwelling place , and degree . the things granted , upon what consideration , the estate , whether absolute , or conditionall , with the other circumstances , and the time when it was done . no grant can be made , but to him that was partie to the deed ; except it be by way of remainder . the words must be sufficient in law to bind the parties ; as if a man grant omnes terras certa sua , a lease for years passeth not , but for frank-tenement , at least , nec per omnia bona sua . exceptio semper ultimo ponenda est : the habendum must include the premisses : a condition cannot be reserved , but by the grantor , and it is proper to follow the habend . presently . the habendum , or condition must not be repugnant to the premises , if it be , it is void , and the deed will take effect by the premises . a warrant is good , although it extend not unto all the lands , nor to all the feoffees , or made by one of the feoffors . if it be rased , or interlined in the date , or in any materiall place , it is very suspitious . of sealing . a writing cannot be said to be a deed , if it be not sealed , although it be written , and delivered , it is but an escrowe . and if it were sufficiently fealed , yet if the print of the seale be utterly defaced the deed is unsufficient ; it is not my deed. it may not be pleaded , but it may be given in evidence . of delivery . a deed taketh effect by the delivery , and if the first take any effect , the second is void . a jurie shall be charged , to enquire of the delivery , but not of the date , yet every deed shall be intended to be made , when it doth beare date . diversitie in delivering of a writing . as a deed. as escrow . this delivery ought to be done by the partie himself , or by his sufficient attourney , and so it shall binde him , whosoever wrote , or sealed the same . if one be bound to make assurance , he need not to deliver it , unless there be one to read it to him before . and if any writing be read in any other forme to a man unlearned ; it shall not be his deed , although he seale and deliver it . ▪ there are two sorts of deeds . a deed poll , which is the deed of the grantor , a deed indented , which is the mutuall deed of either parties ; but in law , one is the deed of the grantor , and the other the counter-partie , and if any variance be in them , it shall be taken as it is in the deed of the grantor ; and if the grantor seale only , it is good . chpp. xxx . bargains and sales . no mannor-lands , tenements , or other hereditaments can pass , alter , or change , from one man to another , whereby an estate of inheritance or free-hold is made , or taketh effect in any person or persons , or any use thereof is made , by reason only of any bargain and sale therefore , except the same be made by writing indented , sealed , and inrolled in one of the courts of record at westminster , or within the same court or countie where the tenements so bargained , do lie , before the custos rotulorum , and two justices of peace , and the clerk of the peace , or two of them , where of the clerk of the peace to be one , and that within six months after the date of such writing indented , 27 , h. 8. the inrollment shall be indented the first day of the terme , and shall have relation to the delivery of the deed , against all strangers . chap. xxxi . feoffments . a feoffment , is an estate made by delivery of possession , and seizin by the party , or his sufficient attorney . a man cannot make livery of seizin , before he have the possession . a joynt-tenant cannot enfeoffe his companion . a co-partner make a feoffment of his part , or release . a man cannot enfeoffe his wife . a disseizor cannot enfeoffe the dsseizee ; for his entrie is lawfull upon the disseizor . such persons as have possession in lands for yeers , or for life , &c. cannot take by livery and seizin of the same lands . if a feoffment be made , and the lessee for years give leave to the lessor to make livery and seizin of the premisses , saving to himself his lease , &c. and he doth , the terme is not surrendred ; for the lessee had an interest which could not be surrendred without his consent to surrender , & here his intent to surrender doth not appear ; wherefore he may enter , & have his term & the rent is renewed , but it is otherwise with a lessee for life , and the rent is extinct . the lessor cannot make livery and seizin against the will of the lessee being on the land ; but he may grant the reversion , and if the lessee do attorn , the free-hold will pass without livery of seizin . livery of seizin . livery of seizin , is a ceremonie used in conveyance of lands , that the common people might know of the passing , or alteration of the estate : it is requisite in all feoffments , gifts in the tayle , and leases for life , made by deed , or without deed . no free-hold will pass without liverie of seizin , except by way of surrender , partition , or exchange , or by matter of record , or by testament . livery of seizin must be made in the life-time of him that made the estate . dona clandestina sant semper suspitiosa . by livery of seizin in one county , the lands in another county will not pass . livery within view , is good , if the feoffee do enter in the life-time of the feoffor . livery may not be made of an estate to begin in future , for no estate in frank-tenement may be given in futuro , but shall take effect presently , by livery and seizin . of vses . the statute of 27. h. 8. hath advanced uses , and hath established suretie for him that hath the use against his feoffees ; for before the statute , the feoffees were owners of the land , but now it is destroyed , and the cestyaque use is owner of the same ; before the possession ruled the use , but since the use governeth the possession , indentures subsequent be sufficient to direct the uses of a fine or recovery precedent , when no other certain and full declaration was made before . attorney . an attorney ought to do every thing in the name , and as the act of him which gave him the authority ; as leases in name of the lessor , but he must say , by vertue of his letter of attorney , i do deliver you possession and seizin of , &c. for , &c. an attorney must first take possession before he can make livery of seizin . if an attorney do make livery of seizin ; otherwise then he hath warrant , then it is a diseizin to the feoffor . an attorney must be made by writing sealed , and not by word . chap. xxxii . exchange . in exchange , both the estates must be equall , there must be two grants ; & in every grant , mention must be made of this word exchange . it may be done without livery of seizin , if it be in one shire , or else it must be done by indenture , and by this word exchange , or else nothing passeth without livery . exchange , importeth in the law a condition of re-entry , and a warranty voucher , and recompence of the other land that was given in exchange ; an assignee cannot re-enter , nor vouch , but rebate ; exchanger may re-enter upon an assignee . and the same condition defeated in part , is defeated in the whole , and the same law is in partition . chap. xxxiii . grants . grants must be certain . a grant to i. s. or i. n. is void for the incertaintie , although it be delivered to i. s. the delivery of the deed will not make a void grant good , or to take effect . the lord cannot grant the wardship of his living tenant ; because of the uncertainty who shall be his heire , unless he name some person . when any thing is granted that is not certain , as one of my horses , then the choice is in the grantee . when several things are granted , then it is in the choice of him that is to do the first act. a man cannot grant , nor charge that which he never had . a man may charge a reversion . a parson may grant his tythes , or the wool of his sheep for years . a thing in action , a cause of a suite , right of entrie , or a title for a condition broken , or such like , may not be given or granted to a stranger ; but only to the tenant of the ground , or to him that hath the reversion , or remainder . a thing that cannot begin without a deed , may not be granted without a deed ; as a rent-charge , fayer , &c. every thing that is not given by delivery of hands , must be passed by deed , the right of a thing reall or personall , may not be given in , not released by word ; a rent of condition , or a re-entrie may not be reserved to one that is not partie to the deed. all things that are incident to others , pass by the grant of them that they are incident unto . a man by his grant , cannot prejudice him that hath an elder title . if no estate be expressed in the grant , and livery and seizin be made , then the grantee hath but estate or life ; but if there be such words in the grant , which will manifest the will of the granter , so his will be not against the law , the estate shall be taken according to his intent and will. all grants shall have a reasonable construction , and all grants are made to some purpose , and therefore reason would they should be construed to some purpose . all grants shall be taken most strong against him that made it , and most beneficiall to him to whom it is made . to grants of reversion , or of rents , &c. there must be attornment , otherwise nothing passeth , if it be not by matter of record . attornment is the agreement of the tenant to the grant , by writing , or by word ; as to say , i do agree to the grant made to you , or i am well contented with it , or i do attorne unto you , or i do become your ▪ tenant , or i do deliver unto the grantee a peny , by way of seizin of a rent , or pay , or do but one service onely in the name of the whole ; it is good for all . it must be done in the life-time of the grantor . without attornment , a signiory , a rent-charge , a remainder , or a reversion , will not pass , but by matter of record . without attornment , services pass not by the sale of the manor , nor from the manor , but by bargain and sale inrolled . attornment must be made by the tenant of the free-hold , when a rent-charge is granted . by the attornment of the termor to the grantee of a reversion , with liverie , and the rent also , though no mention be made thereof ; before attornment a man may not distrain , nor have an action of waste . by fine , the lord may have the wardship of the body , and lands before the attornment of his tenant . the end of attornment , is to perfect grant , and therefore may not be made upon condition , or for a time . a tenant that is to perfect a grant by attornment , cannot consent for a time , nor upon a condition , nor for part of a thing granted : but it shall enure the whole absolutely . if the tenant have true notice of all the grant , then such attornment is void . attornment necessary upon a devise . chap. xxxiv . leases . a lease for years must be for a time certaine , and ought to express the terme , and when it should begin , and when it should end certainly ; and therefore a lease for a year , and so from year to year ; during the life of i. s. but for two years , it may be made by word or writing ; if i lease to i. n. to hold untill a hundred pounds be paid , and make no livery of seizin , he hath estate only at will. a lease from year to year , so long as both the parties please , after entrie in any year , it is a lease for that year , &c. till warning be given to depart . 14. h. 8. 16. a lease beginning from henceforth , shal be accounted from the day of the delivery ▪ from the making ▪ shall be taken inclusive from the day of the making , or of the date exclusive . if lands discend to the heires before his entrie , he may make a lease thereof . a man lets a house , cum pertinent ▪ no lands pass ; but if a man let a house , cum omnibus terris eidem pertinent , there the lands thereunto used pass . if a man lets lands , wherein is coale-mines , quarries , and such like , if they have bin used , the tenant may use them . if they be not open , if the tenant for them , imploy them not on the land , it is waste , likewise marle ; the land is the place where the rent is to be paid and demanded , if no other place between the parties be limited . trespass is not given for paying of the rent to the lessor , howsoever it be payable there . and if a man let lands without impeachment of waste , and a stranger cut down the trees , and the lessee doth bring an action of trespass , he shall not recover for the value of the trees , but for the crop , and bursting of his close , and the heire of the lessor shal have such trees , and not the executor of the lessee , unless they be cut by the lessee , and enjoyed by the grantee , without waste . lessee for years , or for life , tenant in dower , or by the curtesie , or tenant in tayle after possibility , &c. have onely a special interest or property in the trees , being upon the ground , growing as a thing annexed unto the land , so long as they are annexed thereunto . but if the lessee , or any other sever them from the land , the property and interest of the lessee in them , is determined ; and the lessor may take them ▪ as things that are parcell of his inheritance , the interest of the lessee being determined . to accept the rent of a void lease , will not make the lease good ; but avoidable it will. if the husband and wife do purchase lands to them and the heires of the husband , and he make a lease , and die ; his wife may enter , and avoid the lease for her life , but if she die , leaving the husband , who afterward dies , before the terme ends , the lease is good to the lessee , against the heire . where it is covenanted and granted to s. i. that he shall have five acres of land in d. for years , this is a good lease , for consessit is of such force as dimisit . if a man make a lease for 10 years , and afterwards maketh another lease for 21 years ▪ the latter shall be a good lease for eleven years , when the first is expired . if the lessee at his cost , do put glass in the windowes , he may not take the same away again , but he shall be punished for waste ; and so of wainscot , and seeling , if it be not fixed with screwes . tenant in tayle may make a lease for such lands or inheritance , as have been commonly letten to farm ▪ if the old lease be expired , surrendered or ended , within one year after the making of the new ; but not without impeachment of waste , nor above 21 years , or three lives , from the day of the making , reserving the old rent , or more , 32. h. 8. by indenture of lease , by tenant in tayle , for 21 years , made according to the forme of the statute , rendring the ancient , or more rent . if the tenant in tayle die , it is a good lease against ●his issue ; but if a tenant in tayle die without issue ; the doner may avoid this lease by entrie , 32. h. 8. 28. and if he in the remainder , do accept the rent , it shall not tie him , for that the tayle is determined , the lease is determined , and void . ed. ● . 19. the husband may make such a lease of his wifes lands by indenture , in the name of the husband and wife , and she to seale thereunto , and the rent must be reserved to the husband and his wife , and to the heires of the wife , according to her estate of inheritance . a lease made by the husband alone , of the lands of his wife , is void after his death ; but the lessee shall have his corne. by the husband and wife , voidable , if it be not made as aforesaid . if a man do let lands for years , or for life , reserving a rent , and do enter into any part thereof , and take the profit thereof , the whole rent is extinguished , and shall be suspended , during his holding thereof . the aceptation of a re-demise , to begin presently , is suspension of the rent , before any entrie ; otherwise of a re-demise to begin in suturo . reservations and exceptions . there are divers words , by which a man may reserve a rent , and such like , which he had not before ▪ or to keep that which he had , as tenendum , reservandum , solvendum , saciendum , it must be out of a messuage ▪ and where a distresse may be taken ; and not out of a rent : and it must be comprehended within the purport of the same word . exceptions of part ought always to be o● such things which the grantor had in possesion at the time of the grant. the heire shall not have that which is reserved , if it be not reserved to him by special words . if a man make a feoffment of lands , and reserve any part of the profits thereof , as the grass , or the wood , that reservation is void , because it is repugnant to the feoffment . a man by a feoffment , release , confirmation , or fine , may grant all his right in the land , saving unto him his rent-charge , &c. things that are given only by taking and useing : as pasture for four bullocks , or two loads of wood , cannot be reserved but by way of indenture , and then they shall take effect by way of grant , of the grantor , during his life and no longer , without speciall words . exceptions of things , as wood , myne , quarrie , marle , or such like , if they be used , it is implied by the law that they shall be used ; and the things without which they cannot be had , is implied to be excepted , although no , &c. but otherwise , if they be not used , then the way and such like must be excepted . an assignee may be made of lands given in fee , or for life , or for years , or of a rent-charge , although no mention be made of the assignee in the grant. but otherwise it is of a promise , covenant , or grant , or warranty . if a lessee do assigne over his terme , the lessor may charge the lessee , or assigne at is pleasure . but if the lessor accept of the rent of the assignee , knowing of the assignement , he hath determined his acception , and shall not have an action of debt against the lessee , for rent due after the assignement . if after the assignement of the lessee , the lessor do grant away his reversion , the grantee may not have an action of debt against the lessee . if a lessee do assigne over his interest , and die , his executor shall not be charged for rent due after his death . if the executor of a lessee do assigne over his interest , an action of debt doth not lie against him for rent due after the assignement . if the lessor enter for a condition broken , or the lessee do surrender , or the terme end , the lessor may have an action of debt for the arrearages . a lease for years , vending rent , with a condition , that if the lessee assigneth his terme , the lessor may re-enter . the lessee assigneth , the lessor receiveth the rent of the hands of the assignee , not knowing of the assignement , it shall not exclude the lessor of his entrie . a thing in a condition may be assigned over for good cause , as just debt : as whereas a man is indebted unto me 20. pounds , and another do owe him 20. pounds , he may assigne over his obligation unto me , in satisfaction of my debt , and i may justifie the suing for the same , in the name of the other , at my own proper costs and charges . also where one hath brought an action of debt against i. n. which promiseth me , that if i will aide him against i. n. i shal be paid out of the sum , in demand i may aid him . an assignee of lands , if he be not named in the condition , yet he may pay the money to save his land. but he shall receive none , if he be not named ; the tender shall be to the executor of the feoffees . assignee shall alwayes be intended , he that hath the whole estate of the assignor , that is assignable ; a condition is not assignable , and not of an executor , or administrator : if there be such an assignee , the law will not allow an assignee in the law , if there be an assignee indeed ; so long as any part of the estate remaineth to the assignor , the tender ought to be made to him or his heires , it serveth ; yet a colourable payment to the heire , shall not veste the estate out of the assignee , as a true payment will , viz. covenant . chap. xxxvi : surrenders . a surrender is an instrument testifying with apt words , that the particular tenant of lands , or tenements for life , or years , doth sufficiently consent , that he which hath the next immediate remainder , or reversion thereof , shall also have the particular estate of the same in possession ; and that he yeildeth , or giveth the same to him for ever ; surrender ought forthwith to give a present possession of the thing surrendred unto him which hath such an estate , where it may be drowned . a joynt-tenant cannot surrender to his fellow . estating of things that may not be granted without a deed , may be determined by the surrender of the deed to the tenant of the land. lease for years cannot surrender before his term begin ; he may grant , he cannot surrender part of his lease . surrenders are in two manners ; in deed. in law. a surrender in law , is when the lessee for years , doth take a new lease for more years . a surrender in deed , must have sufficient words to prove the assent , and will of the surrenderer to surrender ; and that the other do also thereunto agree . the husband may surrender his wifes dower for his life , and her lease for ever . by deed indented , a man may surrender upon condition . chap. xxxvii . releases . a release is the giving or discharging of a right , or action which a man hath or claimeth against another , or out of , or in his lands . a release or confirmation made by him that at the time of the making thereof had no right , is void ; if a right come to him afterwards , unless it be with warranty , and then it shall barr him of all right that shall come to him after the warranty made . release , or confirmation made to him that at the time of the release , or confirmation made , had nothing in the lands , is void , it behoveth him to have a free-hold or a possession and privitie . a release made to a lessee for years , before his entrie , is void . a man may not release upon a condition , nor for a time , nor for part ; but either the condition is void , and the time is void , and the release shall enure to the partie to whom it is made for ever , for the whole , by way of extinguishment : but a man may deliver a release to another , as an escrowe , to deliver to i. s. as his act and deed if i. s. do perform such a thing , or release upon a condition by deed indented , may be good . a joynt-tenant or a rent-charge , may release , yet all the rent is not extinct , nor yet if he purchase the lands , his fellow shall have the rent still . if the grantee release parcell of a rent-charge to the grantor , yet all the rent is not extinct . a release to charge an estate , ought to have these words , heires , or words to shew what estate he shall have . a release made to him that hath a reversion , or a remainder in deed , shall serve and help him that hath the frank-tenement ; so shall a release made to a tenane for life , or a tenant in tayle , inure to him in the reversion , or remainder , if they may shew it , and so to trespassors and feoffees , but not to disseisors . a release of all manner of actions doth not take away an entrie , nor the taking of ones goods againe , nor is any plea against an executor . a release of all demands , extinguisheth all actions reall and personall , appeales , executions , rent-charge , common of pasture , rent-service , and all right , and seizure , and all right in lands , and propertie in chattels : but not a possibility , or future duty , as a rent payable after my death , and such like . chap. xxxviii . confirmation . confirmation , is when one ratifieth the possession , as by deed to make his passession perfect ; or to discharge his estate , that may be defeated by another entrie . as if a tenant for life , will grant a rent-charge in fee , then he in the reversion may confirme the same grant. whereas a man by his entrie , may defeat an estate ; there by his deed of confirmation , he may make the estate good . a confirmation cannot charge an estate that is determined by express condition , or limitation ; to confirm an estate for an houre , if it be for tenant for life , it is good for life ; if to tenant in fee , for ever . a lease for years may be confirmed for a time , or upon condition , or for a piece of the land ; but if a frank-tenement be , it shall enure to the whole absolutely . a confirmation to charge an estate , must have words to shew what estate he shall have . to confirm the estate of tenant for life , to his heires , cannot be but by habendum , the land to him and his heires : and therefore it is good to have such a habendum in all confirmations . in a confirmation , new service may not be reserved , old may be abridged . a confirmation made to one disseizor , shall be voidable to the other , so shal not a release . chap. xxxix . condition . there are two manner of conditions , one expressed by words , another implyed by the law ; the one called a condition in deed , the other , a condition in law. estate made , and the condition against the law , the estate 's good , the condition's void . if the estate beginneth by the condition , then both are void . bonds with conditions expresly against the law , are void . conditions repugnant , the estate good , the condition void . conditions impossible , are void , the estate good ; it shall not enlarge any estate . by pleading , a man may not defeat an estate of frank-tenement , by force of a condition in deed ; without he shew the condition of record , or in writing sealed ; yet the jurie may help a man , where the judges will take their verdict at large : of chatttels he may . promise doth make a condition ; but when it doth depend upon another sentence , or hath reference to another part of the deed , it maketh no condition , but a qualification , or limitation of the sentence , or of that part of the deed , as provided , that the person of the grantee shall not be charged . he which hath interest in a condition , may fulfill the same for safeguard of himself . between the parties , it is not requisite the condition be performed in every thing if the other do agree , but to a stranger it must . if the obligee be partie to any act. by which the condition cannot be performed ; then the obligor shall be discharged ; so he shall be by the act of the condition . where the first act in the condition is to be performed by the obligee , and he will not do it , there the obligation is not forfeited . where no time is set , if the condition be for the good of a stranger , or of the obligee , then it is to be performed within convenient time , if for the good of the obligor at any time during their lives ; immediately , shall not have such a strict construction ; but that it shall suffice , if it be done in convenient time . if a man be bound to pay money , or farm rent , he must seek the parties . but if he be bound to perform all payments : if he render his farm on the land , it sufficeth . if the feoffee , or feoffor die before the day of payment , the tender shall be to the executor , although the heire of the feoffee do enter , if the heire be not named , vide , assignee in assignement . the money must be tendred so long before sun-set , that the receiver may see to tell it . to pay part of a sum at the day , cannot be satisfaction for the whole sum , as a horse or a robe is . but before the day , or at another place , at the day of the request , and acceptance of the obligee , is full satisfaction . an acquittance is a good barr , if nothing be paid . in all cases of conditions , a payment of a certain sum in gross , touching lands , or tenements , if lawfull tender be once refused , he which made the tender is discharged forever . and the manner of the tender , and payment shall be directed by him that made it , and not by him that did accept it , as that he paid the sum in full satisfaction , and that he accepted thereof in full satsfaction . an acquittance is a good bar , &c. where a man is bound to pay money , to make a feoffment , or renounce an office , or the like , and no time is limited when the shall do it , then upon request , he is bound to perform it , in so short a time as he may . bu● where the time is limited , if he doe refuse before the day it is no matter , if he be readie to perform it at the day . where a covenant or condition is to marry or enfeoff a stranger by such a day ; the refusall of the stranger is no plea , as that of the obligee is ; the obligee is to be ready on the land , at his own perill ; a stranger must be requested : if he refuse , the obligation is forfeited , wherefore it is good to have these words , if the stranger do there unto assent . entrie . the determination of an estate is not effected before entrie . when any person will enter for a condition broken , he must be seized on the same course and manner he was when he departed from his possession . it behoveth such persons as will re-enter upon their tenants to make a demand of the rent . if the lessor demand before he die , his heire may enter . if the lessor distrain , he may not re-enter . the lessor may accept of the rent , and yet re-enter : but if he receive the next rent he may not , for that establisheth the lease . entry into one acre in the name of more , is good ; it doth not extend into two counties . by the entry of the husband , the francktenement shall be in the wife , and so of such like . in gavill-kind land , the eldest son only shall enter for the breach of a condition . demand . the land is the place where the rent is to be paid and demanded , if there be no other place appointed . and there the lessor himself , or his sufficient attorney , a little before sun set , in the presence of two or three sufficient witnesses , shall say , here i demand of i. b. 10. l. due to me at the feast of , &c. for a messuage , &c. which he holdeth of me in lease by indenture , &c. and there remain ; the last day the rent is due to be paid until it be dark , that he cannot see to tell the money . chap. xi . warranties . there are three manner of warranties . lineall . collaterall . by discent . vvarranty lineall , is where a man by his deed bindeth him and his heires to warranty , and dieth , and the warranty doth discend to his issue . warrantie collaterall is in another line , so that he to whom it diseendeth , cannot convey the title that he hath in the testaments by him that made warranty . warranty by disseizin , is where he which hath no right to enter , entreth , and maketh a warranty : this is by disseisin , and barreth not . line all warranty barreth him that claimeth fee ; and also fee-taile with assets in fee ; if he sell , his son may have a formedon . collaterall warranty is a barr to both , except in some cases that be remedied by statute , as warranty by tenement , by the curtesie , except he hath enough by discent , by the same tenement . tenant , in dower , for life , not remedied , but do barre the heire , and him in reversion . awarranty diseendeth alwaies to the heir at the common law , viz the eldest son , and followeth the estate , and if the estate may be defeated , the warranty may also . it barreth not the second son in gavill-kind , although all the sons shall be vouched , and not the eldest alone . yet he only shall be barred . to plead a warranty against him that made it , or his heires , is called a rebutter . where fee , or frank-tenement is warranted , the party shall have no advantage , if he be not tenant . where a lease for years is warranted , it shall be taken by way of covenant , and good , if he be outed . the feoffor by the words dedi & concessi , shall be bound to warranty , during his own life . chap. xli . covenants . covenants are of two sorts ; expressed by words in the deed , or implyed by the law. a covenant in deed , is an agreement made by the deed in writing , between two persons to performe some things , and sealed : for no writ of covenant is maintainable without such a specialty , but in london , &c. when a covenant doth extend to a thing in being parcell of the demise , or thing to be done by force of the covenant is quodamodo , annexed , or appertaining to the thing demised , and goeth with the land , it shall bind the assignee , if he be not named : as to repair the houses , it shall bind all that shall come to the same by the act of the law , or by the act of the party . but if the covenant do concern the land , or thing demised in some sort , the assignee shall not be charged , although he be named ; as to make a wall at anothers bodies house , or to pay a sum of money to the lessor , or to a stranger , but the lessee his executors and administrators shall be charged . if the covenant do extend to a thing that had no being , but to be made new upon the land , it should binde the assignee , if he be named , because he shall have the benefit of it . if a man make a lease for years , and the lessee covenanteth and granteth to pay , &c. to the lessor his heirs and assignes , yearly during , &c. ten pound , his executors shall have it . a covenant in law , upon a demise , or grant , the assignee in deed , or in law may have a writ of covenant . an obligation to perform all covenants and grants is forfeit on the breach of a covenant in law . a covenant in law is not broken but by an elder title . a covenant in law may be qualified by the mutual consent of the parties . chap. xlii . how chattels personal may be bargained , sold , exchanged , lent , and restored . acontract is properly where a man for his mony shall have by the assent of another , certain goods , or some other profit at the time of the contract , or after . in all bargaines , sales , contracts , promises , and agreements , there must be quid pro quo , presently , except day be given expresly for the payment , or else it is nothing but communication . if a man do agree for a price of wares , he may not carry them away before he hath paid for them , if he have not day expresly given him to pay for them . but the merchant shall retain the wares until he be paid for them , and if the other take them , the merchant may have an action of trespass , or an action of debt for the money at his choice . if the bargain be that you shall give me ten pound for my horse , and you do give me a penny in earnest , which i do accept : this is a perfect bargain , you shall have the horse by an action of the case , and i shall have the money by an action of debt . if i say the price of a cow is four pounds , and you say you will give me four pounds , and doe not pay me presently , you may not have her afterwards , except i will ; for it is no contract . but if you goe presently to telling of your money , if i sell her to another , you shal have your action of the case against me . if i buy one hundred loads of wood to be taken in such a wood at the appointment of the vendor , if he upon request will not assigne them unto me . i may take them , or i may sell them : but if a stranger doe cut down any part of the trees , i may not take them ; but i may supply my grantee of the residue , or have my action of the case . if the bargain be , that i shall give you ten pounds for such a wood , if i like it upon the view thereof , this is a bargaine at my pleasure vpon my view ; and if the day be agreed upon , if i disagree before the day , if i agree at the day the bargain is perfect , although afterwards i do disagree . but i may not cut the wood before i have paid for it ; if i do , an action of trespasse will lie against me , and if you sell it to another , an action of trespass on the case will lie against you . if i sell my horse for money , i may keep him untill i am paid , but i cannot have an action of debt untill he be delivered , yet the property of the horse is by the bargain in the bargainer , or buyer ; but if he do presently tender me my money , and i do refuse it , he may take the horse , or have an action of detainment . and if the horse die in my stable between the bargain and the delivery , i may have an action of debt for my money , because by the bargain the property was in the buyer . if a deed be made of goods and chattels , and delivered to the use of the donee , the property of the goods and chattels are in the donee presently : before any entry , or agreement , the donee may refuse them if he will. if i take a horse of another mans , and sell him ; and the owner take him again : i may have an action of debt for the money , for the bargain was perfect by the delivery of the horse , & caveat emptor . every contract importeth in it self an assumption : for when one doth agree to pay money , or deliver a thing upon consideration , he doth as it were , assume and promise to pay and deliver the same , and therefore when one selleth any goods to another , and agreeth to deliver them at a day to come : and the other in consideration thereof , agreeth to pay so much money on the delivery , or after , in this case , he may have an action of debt , or an action on the case upon the assumption . the duty to resign an action personal , may not be apportioned ; as if i sell my horse , and another mans for ten pounds , who taketh his horse againe , i shall have all the money . if a man retained a servant for 10. l. per annum , and he depart within the year , he can have no wages : if it were to be paid at two feasts , and the man after the first feast die , he shall have wages but for the first feast ; therefore men take order for it in their wils . by a contract made in a faire or market , the property is altered ; except it be to the king ; so that the buyer know not of the former property , and doe pay tole , and enter it ; and those things as thereupon ought to be done , it must be on the market , and at the place where such things are usually sold , as place at the goldsmiths stall , and not in his inner shop . in exchange of a horse for a horse , or such like , the bargaine is good without giving of day , or delivery . if a thing be promised by way of recompence for a thing that is past ; it is rather an accord than a contract ; & upon an accord , there lieth no account , but he unto whom the promise is made , may have charge , by reason of the promise , which he hath also performed ; then he shall have an account for the thing promised , though he that made the promise have no profit thereby ; as if a man say to another man , heal such a poor man , or make such a high-way , &c. the intent of the party shall be taken according to the law , as if a man retain a servant , and do not say one year , or how long he shall serve him , it shall be taken for one a yeer , according to the statute . in all contracts he that speaketh obscurely , or ambiguously is said to speak at his own peril , and such speeches are to be taken strongly against himself . chap. xliii . of lending and restoring . if mony , corn , wine , or such other things , which cannot be redelivered , be occupied or borrowed , if it perish , it is at the peril of the borrower . but if a horse , or a cart , or such other things , as may be used , and delivered again , be used in such manner as they were lent , if they perish , he that oweth them shall bear the loss , if they perish not through the default of him that did borrow them , or that he did make a promise at the time of delivery , to redeliver them safe againe . if they be occupied in any other wise then according to the lending , in what wise soever it perish ; if it be not in default of the owner , he that did borrow them , shall be charged with them in law and conscience . if a man have goods to keep to a certain day , he shall be charged , or not charged after as default or defaults is in him . but if he have any thing for keeping them safe , or make promise to redeliver them , he shall be charged with all chances that may fall because of his promise . if a man finde goods of another mans , if they be hurt or lost by the negligence of him that found them he shall be charged to the owner . if a common carrier go by waies that be dangerous for robbing , and will drive by night , or other unfit times , and is robbed ; or if he do overcharge his horse , or driveth so that his stuff fall into the water , or otherwise be hurt by his default , he shall be charged by his default . and if a carrier would percase refuse to carry , unless a promise were to him , that he shall not be charged with any such misdemeanour , that promise were void . every inholder is bound by the law , bona & cattalla of his guest to keep in safety , so long as it is within the inn , if the guest did not deliver them unto him , nor acquaint him with them . he shall not be charged if the servant or companion of the guest do imbezel them ; or if the guest do leave them in the outward court. the offler shall not answer for the horse that is put to pasture at the request of the guest : but if he do it of his own head , he shal . if any man offer to take away my goods , i may lay my hands upon them , and rather beat him , then suffer him to take or carry them away . chap. xliv . how far other mens contracts and misdemeanours do binde us . a man shall be bound by many trespasses of his wife , but not to sustain corporal punishment for it . for murder , fellony , battery , trespass , borrowing or receiving of money in his masters name , by a servant , the master shall not be charged unless it be done by his command , or came to his use by his assent . if i command one to do a trespass , i shall be a trespassor , or otherwise if i do but consent : there is no accessary in trespass . we shall be charged if any of our family lay or cast any thing into the high way , to the noisance of his majesties liege people . every man is bound to make recompence , for such hurt as his beasts shall doe in the corne or grass of his neighbour , though he knew not that they were there ; and for his dogs , beares , &c. if they hurt the goods or chattell of any other ; for that he is to govern them . a man shall not be charged by the contract of his wife or his servant , if the thing come to his use , having no notice of it : but if he command them to buy , he shal be charged though they come not to his use ; or had notice therof . if a wife or servant use to buy or sell , if he sell his masters horse , and exchange his oxe for wheat that cometh to his masters use , his master may not have an action of trespass for it , but he shall be charged for the corn , and the other need not to shew that he had warrant to buy for him . if a man-servant that keepeth his shop , or that useth to sell for him , shall give away his goods , he shall have trespass against the donee . but if i deliver my goods to another to keep to my use , and he do give them away , i shall not : for the donee had notice whose goods they were , as in the case of the servant . if a man make another his general receiver , which receiveth money , and maketh an acquittance , and payeth not his master ; yet that payment dischargeth the debtor . if a servant keep his masters fire negligently , an action lieth against the master : otherwise if he bear it negligently in the street . if i command my servant to distrain , and he doth ride on the distress ; he shall be punished , not i. if a man command his servant to sell a thing that is defective , generally to whom he can sell it ; deceit lieth not against him : otherwise if he bid him sell it to such a man , it doth . a contract or a promise made to the wife is good , when the husband doth agree , so it is to a servant ; and it shall be said to be made to the husband and master himself . if a man taketh a wife that is in debt , he shall be charged with her debts , during her life ; if she die , he shall be discharged . chap. xlv . wills and testaments . having hitherto treated of such contracts as de take effect in the life time of the parties , with their differences , it is now to deale with instruments which take effect after their deaths ; that those things which they have preserved with care , and gotten with paines in their life , might be left to their posterity in peace and quietnesse after their death : of which sort are last wils and testaments . there are two sorts of wils ; written and nuncupative . anuncupative testament is when the testator doth by word onely without writing declare his will , before a sufficient number of witnesses , of his chattels onely : for lands passe not but by writing ; it may for the better continuance after the making , be put in writing , and proved : but it is still a testament nuncupative . a written testament is that , which at the very time of the making thereof is put in writing ; by which kind of testament in writing , only lands and testaments pass , and not by word of mouth only . two things are required to the perfection of a will , by which lands pass , viz. first writing , which is the beginning . secondly , the death of the devisor , which is the finishing . in a will of goods , there must be an executor named ; otherwise of lands . a man may make one executor or more simply , or conditionally for a time , or for parcel of his chattels . if no executor be named , then it still retaineth the name of last a will , and shall be annexed to the letters of administration in regard of the gift . gavil kinde lands may be devised by custome . lands bolden in socage tenure all is devisable knights service 2 parts 3 in writing . fear , fraud , and flattery , three unfit accidents to be at the making of a will. a woman may make a will of the goods of her husband , by his consent and license ; by word is sufficient , and of the goods she hath as executor , without his consent ; but she cannot give them unto him . a boy after his age of fourteen , and a maid after her age of twelve may make a will of their goods and chattels by the civil law. the will of the donor shall be alwayes observed , if it be not impossible , or greatly contrary to the law. a devisor is intended inops consilii , and the law shall be his counsell , and according to his intent appearing in his will , shall supply the defect of his words . a prerogative will is five pound in another diocess . a man may not traverse the probate of a testament , or letters of administration directly , but he may say against the testament that the testator never made the party his executor . chap. xlvi . devises . a devise ought to be good and effectual at the time of the death of the devisor . the devisee may not enter into the terme , or take a chattell , but by the delivery of the executor . but he may sue for it in court christian . into frank-tenement , or inheritance he may enter . devisees are purchasees , as if a lease for years be willed to a man and his heires , the heire shall have it ; for heire is a name of purchase here . a reversion of lands or tenements will pass by the name of lands and tenements in a devise . if a man devise all his lands and tenements ; a lease for years doth not pass , where he hath lands in fee , and also a lease there ; otherwise it will. if a man devise all his goods , a rent-charge which he had for years will pass , and all other his personall chattells . and if a man give all his moveables to one , he shall have all his horses , cattell , pans , and personall chattells ; and all his immoveables to another , he shall have all his corn growing , and fruit on his trees , and the chattells reall . a man may devise lands or goods to an infant in the mothers belly , or goods to the church-wardens of d. there is great diversity where the property is devised , and when the occupation is devised : a man may devise that a man shall have the occupation of his plate , or other chattells during his life , or for years , and if he die within the term , that it shall remain to m. a. and it is good , for the first hath but the occupation , and the other after him shall have the property . but if a chattell be given to one for life , the remainder to another , the remainder is voyd . for a grant or devise of a chattel for an houre , is good for ever ; and the devisee may dispose of it ; but if he do not , the other shall have it . a man may devise his lands he holdeth in lease , but not his lease , under this condition ; provided , that if the devisee die within the term then he shall have it . if a man will his goods to his wife , and that after her decease , his son and heir shall have the house wherein they are ; she shall have the house for term of her life , yet it is not devised unto her by express words . but it doth appear that his intent was so by the words . if a man willeth his lands to his wife , til his son commeth to the age of 21 yeers , and the woman taketh another husband , and dyeth , the husband shall have the interest . by a devise a man may have the fee-simple without express words of heirs , as if lands be willed to a man for ever , or to have and to hold to him and to his assignes , &c. by will , lands may be intailed without the word , body : as if lands be given to a man , and to his heirs male , it doth make an estate tail . if a man will that his executors shall sell his lands , the inheritance doth descend to the heir ; yet the executors may enter , and enfeoffe the vendee . but if lands be given to the executor to sell , and they receive the profits thereof to their own use , and do not sell the same in reasonable time , the heir may enter . an executor may sell , if the other will not . if lands be recover'd against tenant for life or for years , by an action of waste , or former title , he may not give his corn. if the cognizee have sown the lands , and the cognizor bring a scire : he may give the corn sown . if a man devise omnia bona & cattalla , hawks nor hounds do not pass , nor the deer in the park , nor the fish in the ponds . chap. xlvii . executors . an executor is he that is named and appointed by the testator , to be his successor in his stead to enter , and to have his goods and chattels , to use actions against his debtors , and legacies , so far as his goods and chattels will extend . where two executors are made , and one doth prove the will , and the other doth refuse , notwithstanding he that refuseth may administer at his pleasure , and the other must name him in every action , for every duty due to the testator , and his release shall be a good barr : if he do survive he may administer , and not the executor of him that died ; but otherwise if all had refused . if one prove the will in the name of both , he that doth not administer shall not be charged . if the executor do once any action that is proper to an executor , as to receive the testators debts , or to give acquittance for the same , &c. he may not refuse . but other acts of charity or humanity , he may do ; as to dispose of the testators goods about the funerall , to feed his cattell least they perish , or to keep his goods least they be stoln , these things may every one do , without danger . when executors do bring an action , it shal be in all their names , aswell of them that do refuse , as of other , but an action must be brought against him that doth administer only , and he which first cometh shall first answer . an executor of an executor , is executor to the first testator . and shall have an action of debt , accompt , &c. or trespass , as of the goods of the first testator carried away , and execution of statutes and recognizances , &c. st. 25. ed. 5. the title and interest of an executor , is by the testament , and not by the probate , but without shewing it , they may release the probate . the justices wil not allow them tosue actions . the executor shall have the wardship of the body and lands of the ward in knights service , but not in soccage , and leases for years , and rent charges for years , statutes , recognizances , bonds , lands in executions ; corn upon the ground , gold , silver , plate , jewels , money , debts , cattell , and all other goods and chattells of the testator , if they be not devised , and may devise them ; but if he do will omnia bona & cattallasua , the goods of the testator pass not , neither shall they be forfeited by the executor . an executor is chargeable for all duties of the testator that are certain ; but not for trespass , nor for receipt of rents , nor for occupation of lands , as bailiffe or guardian in soccage , &c. for this is not any duty certain so farr as he shall have assets ; if the executor do waste the goods of the testator , he shall pay them of his own . an executor shall not be charged , but with such goods as come to his hands , but if a stranger take them out of his possession , they are assets in his hands . if an executor take goods of another mans amongst the goods of the testator , he shall be excused of the taking in trespass . duties by matter of record shal be satisfied before duties by specialty , and duties by specialty before charges , and legacies before other duties . an executor may pay a debt or credit of some kind , depending the writ , before notice of the action , but not after notice or issue joyned . an executor may pay debts with his own money , and retain so much of the testators goods , but not lands appointed to be sold . any of these words , debere , solvere , recipere , borrowed , or any word that will prove a man a debtor or to have the money ; if it be by bill will charge the executor , or administrator , but not the heir , if he be not named . chap. xlviii . adninistrators . an administrator , is he to whom the ordinary of the place where the intestate dwelt , committeth the testators goods , chattel , credits , and rights . for wheresoever a man dieth intestate , either for that he was so negligent he made no testament , or made such an executor as refused to prove it , or otherwise is of no force ; the ordinary may commit the administration of his goods to the widow , or next of kin , or to both , which he pleaseth , making request ; and revoke it again at his pleasure . the ordinary may assigne also a tutor to the intestates children , to his sonnes untill twelve year . but so that it be not a prejudice to him that is the guardian ; and after those years , he or she may respectively choose their own curators , and the guardian may confirm them , if there be not good order taken by their fathers will. as if such a tutor die , the infant cannot have an action of account against his executor . the power and charge of an administrator is equall in every point to the power and charge of an executor : a man may have an action of the case against the executor or administrator upon the assumption of the testator , upon good consideration , or debt for labourers wages , by the statute . and if a man make an infant his executor , the ordinary may commit the execution of the will to the tutor of the child , to the childs behoof , until he be of the age of 17. years , and if he be granted for longer time , it is void . an administrator dur ante minoritate , may do nothing to the prejudice of the infant , he may not sell any of the goods of the deceased unless it be upon necessity , as for the payment of debts , or that they would perish ; nor let a lease for a longer time , then whilst he is executor . an infant upon the true payment of a debt due to the testator , may make an acquittance , and it shall be good . for a child may better his estate but not make it worse . chap. xlix . heir . if a man die seised of any lands , and do not dispose of them by his will they do descend to his heir , as aforesaid . and he shall have not onely the glass , and wainscot , but any other of such like things affixed to the free-hold , or ground ; as tables , dormant , furnances , fat 's in the brew-house , or dye-house ; and the box or chest wherein the evidences are ; the hawks and the hounds , the doves in the dove-house , the fish in the pond , and the deer in the parke , and such like . he shall be charged by specialty , for the debts of his ancestour , so long as he hath assets , if the executor or administrator have not sufficient . no law nor statute doth charge the heir for the wrong , or trespass of his father , but by express words . widow . the widow shall have all her apparell , her bed , her copher , her chains , borders , and jewels , by the honorable custome of the realm , except her husband unkindly give any of them away ; or be in debt , that it cannot be paid without her bed , &c. yet she shal have her necessary apparell . what things are arbitrable , and what not . things , and actions personall incertaine are arbitrable , as trespasse , taking away of a ward , &c. but things certain are not arbitrable , but when the submission is by specialty , if they be not joyned with others incertain , as debt with trespass , &c. matters concerning the common-wealth ; some are not arbitrable as criminall offences ▪ felonies and such like , concerning the crime . in the submission , three things are to be regarded . first , that it be made in writing with the parties covenants , or bonds subsequent and sufficient to binde them , their heires , executors , and assignes to performe the award , which shal be thereupon made , that both the arbitrators may know their power , and the parties revoke not their power . for all is void that is not contained in the submission , or necessarily depending thereupon ; and the arbitrators labour lost , if they want means to compell the same to be executed . secondly , that there be power given to them sufficient to do all things necessary for the ordering of the controversies , as to appoint times and places for their meetings , to examine and decide the matters committed , and to bring their parties with their proofs , evidences , and witnesses thither together before them , and to punish the place defective , and to expound and correct such doubtfull sentences , and questions , as may arise upon their award , afterwards inconvenient to either parties , contrary to equity , and the arbitrators good meaning ; which inconveniencies not before by them seene , at the making of the award , tempor is filia veritas . thirdly , convenient time and place are to be limitted for the yeelding up their award to the parties , or to their assignes . six things to be regarded in an arbitrement . 1. that it be made according to the very submission , touching the things committed , and every other circumstance , 2 that it be a finall end of all controversies committed . 3 that it appoint either partie to give or doe unto the other something beneficiall in appearance at least . 4 that the performance be honest and possible . 5 that there be a mean how either part by the law may attain unto that which is thereby awarded unto him . 6 that every partie have a part of the award delivered unto him . for if it faile in any of these points , then is the whole arbitrament voyde , and of none effect : examples there of . 1 an award that the parties shall obey the arbitrament of a. m. is void , for power may not be assigned . 2 an award that any of the parties shall be bound , or do any other act by the advice of the arbitrator , is not good except it be in the submission so , but that the parties shall be bound , or make assurance by the advise of counsel , is good . 2 an award , that the parties shall be non-suited , is not good , because it is no final end , for the party may begin again : that the party do withdraw his sute , is good . if the submission be of divers things , and the award onely of some of them , yet is the award good for that part , as if the submission be of all actions real and personal onely , or if it be onely , de possessione . 3 if to submit themselves to the arbitrament of all trespasses , and it is awarded that the one shall make amends to the other , and nothing is awarded for the others benefit ; this award is void . so it were if one of them should go quite against the other , if the submission were not by bond , for an award must be final , obligatory , and satisfactory to both parties . an award , that either party shall release to the other all actions , and that because the one hath trespassed more then the other , he shall pay to the other first , is good . in debt or trespass of goods taken , that the defendant shall retain part , and the plaintiffe to have the rest , is not good . 4 an award , that one of the parties shall do an act to any stranger , the act is void , if the parties be not bound . or if it be that he shall cause a stranger to enfeoffe , or be bound to the other partie , because he hath no means to compel the stranger . 5 an award is void , if it be neither executed , nor any means by law for the execution thereof , as if it should be awarded that one should pay the other 10 pounds , this is good , for he may recover the same by an action of debt . but if it were awarded , the one should deliver to the other an acre of land , or do such like act executory , it were void , if it be not delivered straight-way , or provision made by bond , or otherwise to compel the payment thereof , according to the award , if the submission be not by specialty . 6 indentures of arbitrament must be made of so many parts , that every person may have a part . arbitramentum aequum tribuit cuique suum . an award is commonly made by lay-men , and shall be taken according to their intent , and not in so precise a form as grants , or pleadings , but as verdicts , yet the substance of the matter ought to appear either by express words , or by words equivalent , or by those that do amount thereunto . but it were good that awards were drawn up by some that is skilful , for the avoiding of controversies , which otherwise may arise about the same . agreement . an agreement is made between the parties themselvs ; there must be a satisfaction made to either party presently , or remedy for the recompence , or else it is but an indeavour to agree . tender of money without payment , or agreement to pay money at a day to come , is not any satisfaction before the day be come , and the money be paid ; it cannot be pleaded in bar , in an action of trespass . for that as the other partie hath no meanes to compell the other to pay the money : so he may refuse it at the day , if he will , otherwise in an arbitrament ; but money paid at a day , before the action brought , is a good plea. finis . a treatise of particular estates . written by sir john doddridge knight . london , printed , anno. dom. 1651. a treatise of particular estates . particular estates . a particular estate is such , as is derived from a general estate , by separation of one from the other ; as if a man seised in fee simple of lands , or tenements , doth thereof cheat by gift or grant an ●state tayle , or by demise a lease for life , or ●…y estate for years , these are in the donee , or ●easee . particular estates in possession derived ●nd separated from the fee simple , in the de●…nor , or leasor in reversion . also if lands be demised to a. for life , the remainder to b. and the heires of his body , the remainder to c. and his heires , the estate for life limited to a. the estate tayle limited to b. are particular estates derived ut supra , and separated in interest from the fee simple ; the remainder given to c. albeit the same remainder doth depend upon those particular estates . and of particular estates , some are created by agreement between the parties ; and the particular estates before specified : and some by act of law ; as the state in tayle apres possibility de issue extinct , estates by the courtesie of england , dower and wardship for albeit an estate in dower , be not compleat untill it be assigned , which oftentime is done by assent and agreement between parties ; yet because the partie that so assigneth the same , is compellable so to do by cours● of law , that estate is also said to be create by law ; also an estate at will is a kinde of particular estate , but yet not such as maket● any division of the estate of the lessor , is seised , for notwithstanding such an estate , the lessor is seized of the land in this deme●…sure as for fee in possession , and not in reversion . also an estate at will is not such particular estate , whereupon a remainder may depend ; but of all the estates before mentioned , many fruitfull rules , and observations , are both generally , and particularly so lively set forth by the said mr. littleton in the 1 , 2 , 3 , 4 , 5 , 6 , 7 , and 8. chapters of his first book , which is extant as wel in english as in french , whereunto i referr you . possession . it is further to be observed , that all estates that have their being , are in possession , reversion , remainder , or in right , but of all these , possession is the principall : there are two degrees of the first , and chiefest possession , in fait poss , in law or deed , is such as is before spoken of : and that is most proper to an estate , which is present and immediate ; but yet such possession of the immediate estate , if it be not greater then a tearm doth operate and enure to make the like possession of the free-hold , or reversion ; when a man is said to have a tearm , it is to be intended for years , when it is said , a man to have the fee of lands , it is also to be intended a fee simple ; possession is that possession , which the law it self casteth upon a man before any entry , or pernancy of the profits : as if there be father and son , and the father dieth seised of lands in fee , and the same do descend to the sonne , as his next heire in this case , before any entry , the same hath a possession in law ; so it is also of a reversion exportant , or a remainder dependant upon particular estate , or life ; in which case , if tenant for life die , he in reversion , or remainder , before his entry , hath only possession in law. all manner of possessions that are not possessions in fait , are only possessions in law ; and it is to be observed then , if a man have a greater estate in lands then for years , the proper phrase of speech is , that he is thereof seised ; but if it be for years only , then he is thereof possessed : but yet nevertheless the substantive ( possession ) is proper as well to the one as to the other . reversion . a reversion is properly an estate which the law reserveth to the donor , grantor , or lessor , or such like , which he doth dispose parcel of his estate , when he doth dispose less estate in law then that whereof he was seised , at the time of such disposition : as if a man seised of lands in fee , doth give the same to another ; and the heires of his body , or if he doth dismiss the same for life or years ; in these cases the same reserveth the reversion thereof in fee , to the donor , or lessor , and his heires ; because he departed not with his whole estate , but onely with a particular estate , which is less then his estate in fee ; and such reversion is said to be expectance upon the particular estate . also if he that is but tenant for life , for land , and doth by deed or paroll , give the same s. in tayle , or for tearm of his life , which is a greater estate then he may lawfully dispose ; in this case the law reserveth a reversion in fee , in such donor , though he were formerly but tenant for life : and the reason thereof is , for that by such unlawfull disposition , which by deed or word , cannot be without livery and seisin , he doth by wrong pluck out the rightfull state in fee , from him that was thereof formerly seised in reversion or remainder , and thereof by a priority of time , gained in an instance , he was seised of a fee simple , at the time of the executon thereof . but if a man seised of lands in fee simple , giveth the same to a. and his heirs , until b. do die without heire of his body ; in this case the law reserveth no reversion in the donor , because the state is disposed to a. is a fee simple , determinable , is in nature so great as the state , which the donor had at the time of such gift , and consequently he departed thereby with al his state , and therby an apparent difference is between a gift made to a. and the heires of his own body , and a gift made to him and his heires , until b. die without heire of his body : for in the one case the donor hath but an estate tayle , and in the other a fee simple determinable , hath a possibility of revertor : for if b. die without heire of his body , then whether a. be living or dead , shall revert to the donor , but such possibility of reversion , for he that hath but such a possibility , hath no estate , nor hath he power to give his possibility ; but in the other case , the donor hath estate in fee ; and therefore he hath power to dispose thereof at his pleasure . remainder . a remainder is a remnant of an estate disposed to another at the time of creation of such particular estates , whereupon it doth depend , as if s. seised of lands in fee , demiseth the same to b. for life , the remainder to c. and the heirs of his body , the remainder to d. and his heirs ; in this case i. s. hath a particular estate of the lessor , is then also disposed to c. and d. ut supra , whereby b. hath an estate for life , c. a remainder in tail , and d. a remainder in fee , depending in order upon the particular estate in possession ; and in every remainder five things are requisite . first , that it depend upon some particular estate . secondly , that it pass out of the grantor , donor , or lessor , at the time of the creation of the particular estate , whereon it must depend . thirdly , that it veste during the particular estate , or at the instant time of the determination thereof . fourthly , that when the particular estate is created , there be a remnant of an estate left to the donor , to be given by way of remainder . fifthly , that the person or body to whom the remainder is limitted , be either capable at the time of limitation thereof , or else in potentia propinqua , to be thereof capable , during the particular estate ; if lands be given to i. s. and his heirs , the remainder for default of such heir to i. d. and his heirs , that remainder is void , because it doth not depend upon any particular estate ; but if lands be given to i. d. the life of i. d. the remainder to i. b. his remainder is good , for it is not limited to depend upon a fee-simple , but upon a particular estate ; which is onely called an estate for life of i. b. descendable : if lands be given to b. for 11. years , if c. do so long live , the remainder , after the death of c. to d. in fee , this remainder is void , for in this case it cannot pass out of the lessor at the time of the creation of the particular estate for years : but if a lease be made to b. for life , the remainder to the heires of c. ( who is then living ) this remainder is good , upon a contingency , that if c. dye in the life of b. for that remainder may well pass out of the leassor presently without be yaunce , without any inconveniency , because onely the inheritance separated from the free-hold , is in abeyance : if lands be given for life , with a remainder to the right heirs of i. s. and the tenant for life dyeth in the life of i. s. this remainder is void , because it died not vest or settled , either during the particular estate , or at the time of the determination thereof , for until , i. s. die , no person is thereof capable , by the name of the heir . but if lands be given to i. s. for terme of his life , the remainder to his right heir , ( in the singular number ) and the heirs of his body , and after i. s. hath issue a son and dyeth , that is a good remainder , and the son hath thereby an estate tail , for although it were unpossible that such remainder should vest during the particular estate ; because during his life , none could be his heir ; yet it might be and did vest at the instant of his death , which was at the time of his determination of the particular estate . concerning the fourth thing , if a man seised of lands in fee , granteth out of the same a rent , or common to pasture , or such like things , which before the grant had no being , to i. s. for terme of life , the remainder to i. d. , in fee , this remainder is void , because of this thing granted , there was no remnant in the grant to dispose . and because some heretofore have been of opinion , that albeit the same cannot take no effect , as another grant of a new rent or common . vtres magis valeat quam operat . this is a rule in law , that a thing enjoyed in a superior degree , shall not pass under the name of a thing , in any inferior degree ; and therefore if lands be given unto two persons , and unto the heirs of one of them , unto the husband and wife , and heir of the husband ; and he that hath the estate of inheritance , granteth the version of the same land to another in fee , such grant is void , because the grantor was thereof seised in a superiour degree , viz. in possession , and not in reversion , as appeareth 22. ed. 4. fol. 2 & 13. ed. 3. brook. title of grants , 137. and concerning the first and last thing , if a lease be made of land , for term of life , the remainder to the major and commonalty of d. whereas there is no such corporation therein , being this remainder is meerly void , albeit the kings majesty by his letters pattents , do create such corporations , during the particular estate ; for at the time of such grant , the remainder was void , because then there was no such body corporate thereof capable , or potentia propinqua to be created and made capable thereof , during the particular estate , but the possibility thereof , was then forraign and probably intended . the like law is , if a remainder be limited to i. the son of t. s. who had then no son , and afterwards during the particular estate , a son is born who is named john , yet this remainder is void ; for at the time of such a grant , as was not to be probably in tender , that t. s. should have any son of that name . also before the dissolution of abbies ; if a lease of land were made to i. s. for life , the remainder to one that then was a monk , such remainder was void , for the cause before alledged , albeit we were deraigned during the particular estate . but if such remainder had been limited to the first begotten son of i. s. it had been good , and should accordingly have vested in such a son afterwards born , during the particular estate . rights . a right in land , is either cloathed or naked ; a right cloathed , is when it is wrapped in a possession , reversion , or remainder ; a naked right , which is also most commonly called a right , is when the same is separated from the possession or remainder , by dissessin , discontinuance , or the devesting , and separating of the possession ; as for example , if a lease of land be made for life to i. s. the remainder to i. d. in fee , in this case i. s. hath a right cloathed with a remainder . but if a stranger that hath no right or title , doth in the same case enter into the land by wrong , and put i. s. out of possession , such entry by wrong is called a disseisin ; and therefore the possession is moved from the right by reason thereof , the disseisor , is seised of the land , and i. d. hath also the like naked cloathing to the remainder , by such dissessin , is likewise devested , and plucked out of him , cannot be revested in him , during the right of such particular estate , unless the possession of the particular tenement but therewith revested ; which must be by this entry or recovery by action ; and by such entry of the particular tenement , or by his recovery , with execution , the remainder shal be invested , as well as the particular estate ; and so there is a right in goods and chattels , as well as lands , tenements , and hereditaments , which is also cloathed with a possession , so long as the rightful proprietor hath the same , but if another doth take them from him by wrong , he now hath onely a naked right to the same , which cannot be by him granted , for the cause before alledged , but yet he may release his right there unto him that is thereof possessed ; for the same reason that is before alledged , if a release of right , happen to be forfeited to the king , his highness may grant the same by his prerogative . finis . certain observations concerning a deed of feoffament . by t. h. gent. cujus posse est velle . london , printed , anno dom. 1651. certain observations concerning a deed of feoffament . the premisses . you may finde in the premisses , first , the direct nomination , as well of the feoffor , as of the feoffee , together with their places of residence , habitation or dwelling , and their qualities , estates , additions , or conditions . secondly , the certain expressement and setting down of the lands conveyed . in com. norff. ) comitatus dicitur a comitando , of accompanying together , for generally at assises and sessions , those of that county where such assises or sessions are kept use to be impannelled upon juries , &c. for trial of issue taken upon the fact betwixt party and party , and not those in another county ; and it is a common presumption , that al persons within their counties take notice of such things as are there publickly don , hereupon it hapneth , that where lands , &c. lie in divers counties , if they be conveyed by feoffament , &c. livery of seisin , must be made in every county , where any parcel of the lands , &c. do lie . otherwise it is of two parcels of land in one and the same county . the name county , is in understanding al one with shire , which is so called from dividing , and either of them contain a certain portion of the realme , which is parted into counties , or shires , for the better government thereof , and the more easie administration of justice ; hence it cometh to pass , that there is no parcel of this kingdome , which lieth not within the circuit or precinct of some county or shire . there are reckoned in england , 41 , counties or shires , and in wales 12. the county of northfolke lying northward , is so called , in opposition to suffolke , which lyeth towards the south , each one in respect of other gaineth his name . the addition given to the feoffor , you may perceive to be yeoman , the etymology wherof , mr. verstegan fetcheth from gemen , a word anciently used amongst the teutonicks , which as my authour saith , signifyeth vulgar or common , and so the letter g. by corruption being turned into the letter y. instead of gemen , we say and read yemen , or yeomen . others , ( how probably i dare not affirm ) derive it by contraction from these two words , viz. young men. famous master cambden , in his britannia , after he hath reckoned up sundry degrees , both of nobility , and gentry , ranketh yeomen in order next gentlemen , naming them ingenuous , in which sence i apprehend yeomen to be mentioned in a certain statute made 16 r. 2. and in divers other statutes . and although the derivations of words be conveniently required in the law , & in every liberal science , for ignoratis termiignoratur & ars , yet to use the expression of a learned divine , though spoken in another case melius est dubitare de occultis quam litigare de incertis : so i must leave you to your own conceit , concerning the originall of the word yeoman , having onely set you down one or two opinions about it : however , i must not forget what sir thomas smith saith in his repub. anglorum , who very truely and properly calleth him a yeoman whom the laws of england call legalem hominem , that is to say a free man born , and m. lambert in his eirenarcha , will excellently inform you who are , and who are not probi & legales homines . there is no speciall , but only a generall consideration expressed in the feoffament , neither of which ( as i conceive ) is in such case absolutely materiall ( though i may say formall ) in regard of the notoriety of deeds of feoffament , &c. for livery and seisin ( as shall be said afterwards ) is essentially required to make them perfect , which cannot be without the knowledge of others , besides the parties themselves , and a feoffament doth thereby always import a free and willing consent , otherwise peradventure it might have happened in a bargain and sale , before 27. h. 8. cap. 16. for the better illustration whereof , take this example : you and another man agree together , theat you shall give him a certaine summe of money , for a parcell of land , and that he shall make you an assurance of it , you pay him the money , but he maketh you no assurance ; in this case although the state of the land be still in him ▪ nevertheless , the equity in conscientia boni viri , is with you , which equity is called the use , for which until the 27. h. 8. cap. 10. there was no remedy ( as saith sir francis bacon ) and that very truly , except in the court of chancery , but the same statute conjoyneth and annexeth the land and the use together , so you by this means for the consideration have the land it self , without any further conveyance , which is called a bargain and sale . but those grave senators , and worthy states men who made the said act of the 2● . h. 8. cap. 10. for the transferring of uses into possession , wisely fore-seeing that it would be very inconvenient and prejudicious , nay , mischevous , that mens possessions should upon such a sodain , by the payment of a little money be transported from them , ( and perhaps in a tavern or ale-house , and upon straynable advantages ) did discreetly provide in the same parliament , the said act of 27. h. 8. cap. 16. that lands , &c. upon the payment of money as aforesaid , should not pass without a deed indented and inrolled , as by the purport of the same act may appear . now seeing that before the said act of 27 h. 8. c. 16. lands might pass by bargain and sale upon consideration , without deed indented and inrolled , and might not pass ▪ without consideration in such manner , therefore i have heard lawyers say that consideration is still required in a bargain and sale , though it be by deed indented and inrolled , according to the same statute . sure i am that regularly in a deed of feoffament , it is not so as formerly is declared , and for the reason before expressed . dedisse . the word dedi ( by force of an act of parliament made 4. ed. 1. c. 4. commonly called the statute de bigamis , ) implyeth a warranty to the feoffee ▪ and his heires during the life of the feoffor , whereupon fitz herbert in his natura brevium . fo . 134. h. puts a case to this effect , viz. if a man give lands to one in fee , by deed , by the words dedi ▪ concessi , &c. hereby he shal be bound to warrant the lands of the feoffee , by vertue of those words , and if the feoffee be impleaded he shall have his writ of warrant ' chart. against the feoffor , by reason of the words dedi , concessi , &c. but not against his heire , for the heire shal not be bound to warranty , except the father binde himself and his heires to warranty , &c. by express words in the deed , i know some alledg , that because as well the statute , as fitzh . mention not onely dedi . but concessi also , therefore the one without the other , implyeth no warranty ▪ to whom it may be answered that the statute it self doth plainly prove against them , for the conclusion thereof hath these words , ipse tamen feoffator invita sua ratione proprii doni sui tenetur warrantizare ; and also the testimony of sir edward coke , may be produced herein , who affirmeth that the statute of bigamis , anno . 14. eliz. in the court of common pleas was expounded , as above is mentioned , namely that dedi did imply the warranty , and mr. perkins , cap. 2. saith that dedi in a deed of feoffament , comprehendeth in it a warranty , against the feoffor , and so doth not the word concessi . concessisse . i conceive the word concessi in feoffaments and grants ( the implyed warranty excepted which dedi creates ) to be of the same effect with dedi ; & also with confirmavi , especially in some cases : to which purpose hear what littleton speaketh in his chapter of discontinuance , also ( saith he ) in some case this verbe dedi , or this verbe concessi , hath the same effect in substance , and shal enure to the same intent , as the verbe confirmavi ; as if i be disseised of a carve of land , and i make such a deed sciant presentes , &c. quod dedi to the disseisor , &c. or quod concessi , to the said disseisor the said carve , &c. and i deliver onely the deed to him , without any livery of seisin of the land , this is a good confirmation , and as strong in law , as if there had been in the deed this verb confirmavi , &c. liberasse . the word liberavi , i take to be of the same nature with tradidi , which i have often seen in feoffaments , whereof it is remarkable , that hephron the hittite , when he assured the field of machpelah to abraham , gen. 32. 11. used the word trado : agrum trado tibi , that is , to abraham , as hieromes translation reads it . feoffasse . this word cometh from feudum or feodum , which signifieth fee , and is alwayes , or for the most part used in feoffaments , as participating of the same nature . confirmasse . concerning the word confirmo , somewhat may be gathered from what hath been spoken about the verb concessisse , yet i cannot forget how hierome renders the expresment of the said assurance of the said field of machpelah to abraham for a possession , in these words , co . firmatus est ager . &c. gen. 23. 17. and now i come to the second thing considerable in the premisses , namely , the feoffee whose addition is generoso . generoso . generosus , in english we read gentleman , which some derive from the two french words , gentil-houme , denoting such a one as is made known by his birth , stock , and race . sir tho. smith calleth all those gentlemen that are above the degree of yeomen , whence it may be concluded , that every noble-man may be rightly termed a gentleman , sed non vid versd . master cowel conceiveth the reason of the appellation to grow , because they observe gentilitatem suam , the propagation of their blood , by giving or bearing of armes , wherby they are differenced from others , and shew from what family they are descended . haeredi & assignatis suis some will have an heir so called , quia haeret in haereditate , or quia haeret in se haereditas , but to let such conceits of witty invention pass , it is certain , that an heir is so called from the latin word haeres . littleton in his chap. of fee-simple saith , that these words ( his heirs ) onely make the estate of inheritance in all feoffaments , and grants , &c. sure then it is necessary for him that purchaseth lands , &c. in fee simple , to have the feoffament run to himself & haeredibus suis , for if it run onely to himself , & assignatis suis , although livery and seisin be made accordingly , and agreeable to the deed ; yet thereby onely an estate for life shall pass , because there wanteth words of inheritance : and without livery and seisin in the case aforesaid , onely an estate at will shall pass . and the reason why the law is so strict in this thing ( as in many others ) for to prescribe and appoint such certain words to create and make an estate of inheritance , is , as master plowden saith in his commentaries , for the eschewing and avoiding of incertainty , the very fountain and spring , from whence floweth all manner of confusion and disorder , which the law utterly contemneth and abhorreth ; what herein hath been said , is to be apprehended and understood of persons in , and according to their natural capacities . yet perhaps an estate of inheritance may sometime pass in a deed of feoffament , by words , which may have reference , and will relate to a certainty , for certum-est quod certum reddi potest : as for example , you enfeoffe me and my heirs of a certain piece of land , to hold to me , & my heirs , &c. and i re-enfeoffe you , in as large , ample , and beneficiall manner , as you enfeoffed me : in this case ( they say ) you have a fee simple for the reason above expressed . so i come next to see what observations the deed of feoffament further affordeth . totam ill . pec . tre cont . very necessary and convenient it is in deeds of feoffament , &c. to have the lands , &c. thereby intended to be conveyed , certainely and expressely to be set downe , aswell how much by estimation in quantity , they doe containe , as the quality of the same whether meadow , pasture , &c. being the species of land , which is the genus , and the place where , and manner how they exist and lye , the better to shunne and avoid doubt , and ambiguity , which oftentimes stirre up occasions of unkind suites and contentions betwixt party and party , i know that grammarians reading the word peciam , will be ready to smile , and alledge , that it cannot defend it selfe in bello grammaticali , which i easily confesse ; but what then what can they inferre from hence ? will they therefore utterly condemne the use thereof ? me thinkes they should not , but might give lawyers leave to speakin their owne dialect . but what , if some take exceptions at this word , having occasion to meete with it here , what would they do , should they read the volums of the law , where instead of bellum , they shall find guerra , instead of sylva they shall sind boscus , and subboscus , with a thousand the like ? surely ( as saith erasmus ) they might commend or else condemn what they could not understand , or happily understanding , might admire from whence such uncouth words should proceed : for their better information ( if i thought they would thank me for my labour ) i could tell them that because the saxons , danes , and normans , have all had some hand , or at least a finger in our lawes , therefore through the commixtion of their several languages , it comes to pass that such difficult termes , and harsh latin words ( if i may so call them ) are frequenly obvious in the books and writings of the law. and indeed i see no reason why any man should object or cavil against the usage of such words , though they be not classical , seeing that aswel in the art of logick , as in philosophy , there are found many words , which they call vocabulaartis , vocables of art , which can no better stand , according to the strict rules of grammar , then the ancient words of law which cannot be changed without much inconvenience . acra . acra , in english an acre , seemeth to come from the latin word ager ; an acre is taken to be a quantity of land containing 40 perches in length and 4 in breadth . master crompton in his jurisdiction of courts saith that a perch is in some places more , and in some places less , according to the different usages in different countries , and so then it must needs be of an acre . but ordinarily , or for the most part , a perch is accounted , and esteemed to contain 16 foot and an half in length . i take it to be the same with that measure which we call a rodde or pole. a perch in law-latin , is called pertica , or perticata . see the ordinance made for measuring of land , anno 34. ed. 3. in pulton's abr . titl . weights and measures . quaren . quarentena , in english a furlong , or furrow long : firlingus , or firlingum is the same , it hath been sometime accepted and taken for the eighth part of a mile , anno 35. el. c. 6. and i have read that firlingus , or ferlingus terrae continet 32. acras . the latins call it stadium . abbutt . abbutto is a verbe used by lawyers , to shew how the heads of lands do lie , and upon what other lands or places , denoting for the more certainty , what lands , &c. are adjacent about the lands , &c. abbuttelled . and now that i may speak once for all , in regard that lawyers do use to abbreviate their words in writing , the reason is not as some ignorantly have supposed , because they cannot express their terminations and endings , as they ought to be , but because of the multiplicity of business which they are to go through , oftentimes requiring very suddain dispatch . yet i could wish that the custome of short writing alicui scriptori non esset dispendium , but i fear me too many hereby take occasion to be wilfully ignorant , which otherwise peradventure they would not do . militis . miles , amongst the latins , signifieth a souldier , and in this place , and the like , miles is to be englished a knight , which ( as master cambden noteth ) is derived from the saxon gnite , or cnight . the heraldes will enform you of divers and sundry orders of knights , if you please to consult with them , or their writings thereabouts . a knight at this day is , and anciently hath been , reputed and taken for one , who for his valour , and prowess , or other service for the good of the common-wealth performed , hath by the kings majesty , or his sufficient deputy , on that behalf , been as it were lifted up on high , advanced above or separated from the common sort of gentlemen : the romans called knights celeres , and sometimes equites from the performance of their service upon horse-back , and amongst them there was an order of gentility , stiled ordo equestris , but distinguished from those they called celeres , as several roman histories do plainly testifie . the spaniards call them cavalleroes . the french men chivaliers . and the germanes rieters , all which appellations evidently enough appear to proceed from the horse , which may be some restimony of the manner of the execution of their warlike exercises . and surely it is a very commendable policy in states to dignifie well deserving persons with honorable titles ; that others may thereby be stirred up to enterprize , and undertake heroick acts , and encouraged to the imitation of worthy and renowned vertues . armig. armiger , in english signifieth esquire , from the french escuier , and perhaps an esquire may be called armiger quasi arma gerens , from his bearing of armes . ancient writers , and chronologers , make mention of some who were called armigeri , whose office was to carry the shield of some nobleman . master cambden cals them scutiferi . which seems to import as much , and homines ad arma dicti : they are esteemed and accounted of amongst us next in order to knights . clerici . clericus , in english we read clerke . it hath with us two sundry kindes of acceptations . in the first sense it noteth such a one , who by his practise and course of life doth exercise his pen in any the kings majesties courts , or elsewhere , making it his calling or profession : hereupon you shal find in the current of law , mention made of divers clerkes ; as for example , the clerke of the crown : the clerke of assise : the clerke of the warrrants : the clerke of the market : the clerke of the peace , with many others . in the second sense it denoteth such a one as belongeth to , and is imployed about the ministry of the church , that being his function : in which signification it is to be taken in this place , and in the like ; for i , for my part , did never find clerk in the first sense appropriated to any , as an addition simply . we have the use of the word clericus , from clerus , or clerecutus , signifying the clergy , that is to say , the whole number of those , which properly so called , or rather strictly , are de clero domini , i. e. hereditate sive sorte domini , for clerus cometh from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a greekword , signifying the same with sors in latine ; namely , a lot or portion . the habendum . habend ' . the office of the habendum , is to name again the feoffee , and to limit the certainty of the estate , and it may and doth sometimes qualifie the generall implication of the estate , which by construction and intendment of law passeth in the premisses : for an example whereof see bucklers case in the second book of sir ed. cokes reports , and throgmortons case , in plowdens commentaries . it is to be noted , that the premisses may be inlarged by the habendum , but not abridged , as it plainly appeareth , aswell in the said case of throgmorton , as in worteslies case reported also by master plowden , and i have read ( as my collections tell me ) that it is required of the habendum , to include the premisses . moreover , the habendum , ( as w. n. esquire , hath it in the treatise of the grounds and maximes of the law ) must not be repugnant to the premisses , for if it be , it is void , and the deed will take effect by the premisses , which is very worthy of observation . the tenendum . tenend ' . the tenendum , before the statute of quia emptores terrarum , made 18. ed. 1. was usually de feoffatoribus & haeredibus suis & non de capitalibus dominis feodorum , &c. viz. of the feoffors , and their heires , and not of the chief lords of the fee , &c. whereby there hapned divers inconveniences unto lords , as the losing of their escheats , or forfeitures and other rights belonging to them by reason of their seigniories , which as the same statute expresseth it , durum & difficile videbatur , &c. whereupon it was granted , provided and enacted quod de caetero liceat unicuique libero homini terras sitas seu tenementa sua , seu partem inde ad voluntatem suam vendere , ita tamen quod feoffatus teneat terram illam seu tenementum illud de capitali domino feodi illius per eadem servitia & consuetudines per quae feoffator suus illa prius de eo tenuit . q' estat ' fuit fait ( as saith one ) pur l'advantage de senior ' , which statue was made for the advantage of lords , and indeed i easily believe it . now it is evident from that which hath been declared out of the said statute , that at this day the tenendum , where the fee simple passeth , must be of the chief lords of the fee , &c. for no man since the said statute could convey lands in fee , to hold of himself , out of which rule the king only ( i think ) may be excepted , and 't is not in silence to be passed over , that where lands , &c. are conveyed in fee , though there be no tenendum at all mentioned , yet the feoffee shall hold the same in such manner as the feoffor held before , quia fortis est legis operatio : the statute so determines . the clause of warranty . et ego & haeredes mei , &c. warrantizabimus , &c. defendemus , &c. warrantizo , is a verb used in the law , and onely appropriated to make a warranty . littleton in his chapt . of warranty saith , que cest parol , &c. that this word warrantizo , maketh the warranty , and is the cause of warranty , and no other word in our law , and the argument to prove his assertion , is produced from the form and words used in a fine , as if he should say , because the word defendo , is not contained in fines to create a warranty , but the word warrantizo onely , ergo , &c. which argument deduced and drawn à majori ad minus , is very forcible , for the greater being inabled , needs must the lesser be also inabled : omne majus in se continet quod minus est , & quod in majori non valet , nec valet in minori . but certainly littleton is to be understood only of an express warranty indeed , and of a warranty annexed to lands , for there may be , and are other words , which will extend and inure sufficiently to warrant chattels , &c. and which will imply a warranty in law , as dedi , &c. and excambium ( as i have heard say ) implyeth a warranty in law , which from glanvil's vel in excambium , or escambium datione lib. 3. cap. 1. may receive some confirmation : and littleton in his chapter of parceners , teacheth that partition implyeth a warranty in law , &c. and lest some may here say , that defendemus stands for a cypher , i will tell them what bracton declareth of it , speaking about a warranty in deed , from the feoffor and his heirs , whose words are these : per hoc autem quod dicit ( scilicet feoffator ) defendemus , obligatse & haeredes suos ad defendendum fi quis velit servitutem ponere rei datae contra formam donationis , &c. lawyers in their books make mention of three kindes of warranties , viz. warranty lineall , warranty collaterall , and warranty which commences by disseisin . the first is when one by deed bindeth both himself and his heires to warranty , and after death , this warranty discendeth to and upon his heire . the second is in a transverse , or overthwart line , so that the party upon whom the warranty descendeth , cannot convey the title which he hath in the land , from him that was the maker of the warranty . the third and last is , where a man unlawfully entreth upon the freehold of another , thereof disseising him , and conveyeth it with a warranty , but this last cannot barr at all . of these , you may read plentifull and excellent matter and examples in littletons chapter of warranty , and sir ed. coke , learnedly commenting upon him , to whom for further illustration hereof , i referr you , as also unto master cowels interpretation of words in the title warranty , who there remembreth divers things very worthy observation concerning it . before i come to the fifth part of the deed of feoffament , give me leave to observe that a warranty alwayes descendeth to the heire at the common law , and followeth the estate ( as the shadow the substance ) and whensoever the estate may , the warranty may also be defeated , and every warranty ( as saith sir ed. coke ) which descends , doth descend to him that is heire to him which made the warranty , by the common-law . and moreover it is to be noted , as may be gathered from what hath been formerly said , that an heire shal not be bound to an express warranty , but when the ancestor was bound by the same warranty , for if the ancestor were never bound , the heire shall never be charged . and i remember i have read a case in br. abr . 35. h. 8. pl. 266. to this purpose . si home dit en son garrantie , et ego tenementa praedicta cum pertinentiis praefato a. b. le donee warrantizabo , & ne dit , ego & haeredes mei , il mesme garrantera , mes son heire nest tenus de garranter , pur ceo que ( heires ) ne sont expresse en le garranty . b. garr . 50. so i will forbeare to speake any further herein , being a very intricate and abstruse kinde of learning , requiring the pen of a most cunning and experienced lawyer and now i address my self to the fifth orderly , or formall part of the deed of feoffament the clause of in cujus , &c. in cujus rei testimonium . this clause is added as a preparatory direction to the sealing of the deed , for sealing is essentially required to the perfection thereof , because it doth plainly shew the feoffors consent to , and approbation of what therein is contained , hereupon it will not be much devious or out of the way , to make some mention of those fashions , which in the manner of sealing , and subscribing of deeds , have been anciently used by our ancestors : some report that the saxons in their time , before the conquest , used to subscribe their names to their deeds , adding the signe of the crosse , and setting down in the end , the names of certain witnesses , without any kinde of sealing at all . but when the normans came in , as men loving their owne country guises , they per petit & petit changed that custome ( as also many others ) which they found here , and ingulphus who was made abbot of croyland , in an . dom . 1075. seemeth to confirme this opinion in these words : normanni cheirographorum confectionem cum crucibus aureis , & aliis signaculis sacris in anglia firmari solitam , in cera impressa mutant . yet i have read of a sealed charter in england before the conquest , namely that of st. ed. made to the abby of westminster : yet surely this doth not altogether repugne that which hath been formerly said , for i have seen in master fabians chronicle , and elsewhere that saint ed. was educated in normandy , and t is not unlikely but he might in some things incline to their fashions . the french-men have a proverbe , rome n'a este bastie tout en un jour ; and we in england use the same , namely rome was not built in one day : so it cannot be conceived that the normans in an instnat did alter the saxon custome wholly in this particular , but that it did change by degrees , and perhaps at the first , the king and some nigh unto , and about him did use the impression of a seale , which i am somewhat perswaded to beleeve , from a certain story which i have heard , concerning richard de lucy , chief justice of england , who in the time of h. 2. is said to have chidden an ordinary man , because he had sealed a deed with a private seal quant ceopertaine al roy & nobility solement . in the dayes of edward the third , sealing and seales were very usuall amongst all men , for proofe whereof i need not produce any other testimony , but the deeds themselves , whereof almost every man hath some . but i must remember that sir ed. coke , in the first part of his institutes , fo . 7. a. seemeth to overthrow the former opinions about the first using of seales in england , the sealing of charters and deeds , ( saith he ) is much more ancient then some have imagined , for the charter of king edwin brother of king edgar , bearing date an . dom . 956. made of the land called jecklea , in the isle of ely , was not onely sealed with his owne seale ( which appeareth by these words ) ego edwinus gratia dei totius britannicae telluris rex meum donum proprio figillo confirmavi , but also the bishop of winchester put to his seal , ego aelfwinus winton ' ecclesiae divinus speculator proprium sigillum impressi . and the charter of king offa , whereby he gave the peter-pence , doth yet remain under seal . the either of which two charters , are much more ancient then that of saint edw. before mentioned , yet happily there may be some reason probably affirmed why as well king edwin and the bishop of winchester , as offa , who was king of mereia about the yeare 788. did annex their seales to their charters , which no king of england or nobleman did before or after them , ( except saint ed. ) untill the comming in of the conquerour , that ever i could learne , heare , or read of , in any authour . neverthelesse , i must of necessity leave the search of such reason to others better studyed in the commentations and alterations of persons , times , and customes then i my selfe , however i never heard any one deny , but that the frequent use of sealing deeds did commence in the time of ed. 3. and was not ordinarily used amongst private men untill then , as hath been formerly touched . of the date . dat' . in this clause the stile of the king at large , the yeare of his reigne , and the yeare of our lord god , according to the computation and account of the church of england , together with the day of the moneth are expressed . in former times deeds were often made without date , and that of purpose , that they might be alledged within the time of prescription , as sir ed. coke , in his said booke of institutes , fo . 6. very worthily observes , and moreover that the date of deeds , was commonly added in the reigne of ed. 2 and ed. 3. and so ever since , to whom i refer you , who in the place last quoted , hath very excellent matter and observations thereabouts . and thus to perform what i promised , i will speak a word or two concerning livery of seisin , and so conclude . livery of seisin . livery of seisin is a ceremony in law , used in the conveyance of an estate of freehold at the least in lands and other things corporeal : but in a lease for years , at will , &c. livery of seisin is not required , it being onely a chattel and no free-hold . by livery of seisin , the feoffor doth declare his willingness to part with that whereof he makes the livery , and the feoffees acceptance thereof is thereby made known and manifest . the author of the new termes of the law , saith that it was invented as an open and notorious thing , by means whereof the common people might have knowledge of the passing or alteration of estates from man to man , that thereby they might be the better able to try in whom the right and possession of land's and tenements were if they should be impanelled on juries , or otherwise have to do concerning the same . the usual and common manner in these daies of delivering of seisin , i know to be so frequent , that of purpose i will omit it : but i pray you note with me before i make an end , that livery of sesin is of 2 sorts , viz. livery of seisin in deed , and livery of seisin in law , which is sometimes termed livery of seisin within the veiw . livery of seisin within the veiw cannot be good or effectual , except the feoffee doth enter into the lands , &c. whereof the livery of seisin was made unto him in the life time of the feoffor ; & it is not to be passed over in silence , that a livery in law may sometimes be perfected by an entry in law , as if a man maketh a deed of feoffament , and delivers seisin within the view , the feoffee dares not enter for fear of death , but claimes the same , this shall vest the freehold and inheritance in him , to which effect you may see the opinion of certain justices , 38. assis . pl. 23. upon a verdict of assise in the county of dorc. and i conceive that this vesting of a new estate , in the said case in the feoffee , making his claim were he dares not enter , stands upon the same reason , for ( contrariorum eadem est ratio ) that the revesting of an ancient estate and right in the disseisee doth by such claim , whereof you may read plentifully in littleton his chapter of continual claim . it is worth the observation that no man can constitute another to receive livery for him , within the view , nor yet to deliver ( as i have heard my master say ) for none can take by force or vertue of a livery in law , but he that taketh the free-hold himself , & è contra . otherwise it is to take and give livery of seisin in deed , for there aswel the feoffee in the one case may ordain and make his attorney , or attorneys in his name and stead , to take livery , as the feoffor in the other case to give livery , concurrentibus iis quae in jure requiruntur . and now let delivery of the deed to be added to the sealing thereof , and the state executing of the lands thereby conveyed , and then i presume none will refuse to allow that every thing hath been named , which is essentially required to the perfection of a bare deed of feoffament , and although i have mentioned the delivery of the deed in the last place , yet it is not the least thing , or of the least consequence or moment , for after a deed is sealed , if it be not delivered , est anul purpose , it is to no purpose , and the delivery must be by the party himself , or his sufficient warrant : so it may be gathered from what hath been said , that sealing of deeds without delivery is nothing , and that delivery without sealing will make no deed , but that both sealing and delivery must concur and meet together , to make perfect deeds . i hope such as are present at the sealing and delivering of deeds of feoffament , and the state executing thereupon , will not forget to subscribe their names , or markes , as witnesses thereof , whereby they may the better be inabled to remember what therein hath been done , if peradventure there shall be occasion to make use of them . and it is not amiss here before i end , to observe , that although upon deeds of feoffament , &c. it was not usual before the latter end of hen. 8. or thereabouts to endorse or make mention upon such deeds of the sealing and delivering of the deeds , or state executing of the lands , &c. intended thereby to be conveyed , ( for i my self have many deeds of feoffament which do testifie as much ) yet it is to be credibly supposed , and not without some manifest probability , that such persons whose names are inserted after a certain clause in such deeds , beginning with hiis testibus , were eye-witnesses of all . thus desiring you to take notice that i have called the said six parts of the feoffament formal , because they are not absolutely of the essence of deeds , &c. manebo in hoc gyro . i will here conclude , requesting all those to whom any sight hereof shall , or may happen to come , friendly to admonish me of my failings herein : whereby they shall ever engage me thankfully . finis . for the colony in virginea britannia. lavves diuine, morall and martiall, &c. virginia. 1612 approx. 166 kb of xml-encoded text transcribed from 54 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2005-12 (eebo-tcp phase 1). a13057 stc 23350 estc s111283 99846657 99846657 11641 this keyboarded and encoded edition of the work described above is 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(eebo-tcp ; phase 1, no. a13057) transcribed from: (early english books online ; image set 11641) images scanned from microfilm: (early english books, 1475-1640 ; 1221:2) for the colony in virginea britannia. lavves diuine, morall and martiall, &c. virginia. strachey, william, 1572?-1621. [8], 41, [7] p. [by william stansby] for walter burre, printed at london : 1612. compiler's dedication signed: william strachey. variant 1: with an added dedication leaf to (a) sir a. auger, (b) sir e. sandys, or (c) sir w. wade. variant 2: with an added leaf of verses to lord de la warre and sir thomas smith. printer's name from stc. reproduction of the original in the henry e. huntington library and art gallery. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database 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assigned for keying and markup 2005-04 spi global keyed and coded from proquest page images 2005-05 haley pierson sampled and proofread 2005-05 haley pierson text and markup reviewed and edited 2005-10 pfs batch review (qc) and xml conversion for the colony in virginea britannia . lavves diuine , morall and martiall , &c. alget qui non ardet . res nostrae subinde non sunt , quales quis optaret , sed quales esse possunt . printed at london for walter burre . 1612. to the right honourable his singular good lord , the lord lawarr , of the heroyicke and religious plantation in virginia-britania , the sole personall aduancer , his maiesties lord gouernour and captaine generall . of all things we enioy , the founders worth is still most praide for : in attempts of warre , the chargers fame is euer most set forth : of all things founded true religion farre , we are worthyest palme , and merits holyest meede : this then heroyicke lord your glorie shrines , that y' are sole personall lord of this great deede , which more by all else shund the more it shines : skorne then all common aymes , and euery act where euery vulgar , thrusts for profit on , nor praise ; nor prise affect , like the meere fact nor any other honour build vpon , then onely this , since 't is for christs deare word , you shall be surnam'd ; the most christian lord. by an vnworthy follower of the same fortune , your lordships seruant , william strachey . to the much honoured , in all nations acknowledged the most renowned famous factor and professor of all actions that haue the warrant of religion , honour or goodnesse , sir thomas smith knight , and in this piou● plantation of virginia-britania , the vnremoueable cordiall friend , and right bounteous & well chosen treasvrer . sir , if the traffique with all nations , ( vent'ring your purse for profit ) hath renown'd your noble minde with all mens commendations , for this diuine gaine , it is triple croun'd , in which you traffique not with men , but god : not venturing , but surely gaining soules : not onely such as idlenesse had trod , as low as hell , and giuen their flesh to fowles , in our owne countrey : but such soules beside , as liuing like the sonne of earth , the moule haue neuer yet heauens sauing light descry'd : more then the world he gaines , that gaines a soule : which but your selfe , though few or none esteeme , assures your soule a heauenly diademe . william strachey . to the right honorable , the lords of the councell of virginea . noblest of men , though t is the fashion now noblest to mixe with basest , for their gaine : yet doth it fare farre otherwise with you , that scorne to turne to chaos so againe , and follow your supreme distinction still , till of most noble , you become diuine and imitate your maker in his will , to haue his truth in blackest nations shine . vvhat had you beene , had not your ancestors begunne to you , that make their nobles good ? and where white christians turne in maners mores you wash mores white with sacred christā bloud this wonder ye , that others nothing make ; forth thē ( great ll. ) for your lords sauiors sake . by him , all whose duty is tributary to your lordships , and vnto so excellent a cause . william strachey . to the constant , mighty , and worthie friends , the commit●ies , assistants vnto his maiesties councell for the colonie in virginea-britannia . when i went forth vpon this voyage , ( right worthy gentlemen ) true it is , i held it a seruice of dutie , ( during the time of my vnprofitable seruice , and purpose of stay in the colonie , for which way else might i adde vnto the least hight of so heroicke and pious a building ) to propose vnto my self to be ( though an vnable ) remembrancer of all accidents , occurrences , and vndertakings thereunto , aduentitiall : in most of which since the time our right famous sole gouernour then ; now lieutenant generall sir thomas gates knight , after the ensealing of his commission hasted to our fleete in the west , there staying for him , i haue both in the bermudas , and since in virginea beene a sufferer and an eie witnesse , and the full storie of both in due time shall consecrate vnto your viewes , as vnto whom by right it appertaineth , being vowed patrones of a worke , and enterprise so great , then which no obiect nor action ( the best of bests ) in these times , may carry with it the like fame , honour , or goodnesse . howbet since many impediments , as yet must detaine such my obseruations in the shadow of darknesse , vntill i shall be able to deliuer them perfect vnto your iudgements , 〈◊〉 i shall prouoke and challenge ) i do in the meanetime present a transcript of the toparchia or state of those duties , by which the●● colonie stands regulated and commaunded , that such may receiue due chicke , who malitiously and desperately heretoforè haue censured of it , and by examining of which they may be right sorie so to haue defaulked from vs as if we liued there lawlesse , without obedience to our countrey , or obseruancie of religion to god. nor let it afflict the patience of such full and well instructed iudgements , vnto whom many of these constitutions and lawes diuine or marshall may seeme auncient and common , since these grounds are the same constant , asterismes , and starres , which must guide all that trauell in th●se perplexed wayes , and paths of publique affairs ; & whosoeuer shall wander from them , shall but decline a hazardous and by-course to bring their purposes to good effect . nor let another kind quarrell or traduce the printing of them to be deliuered in particular to officers and priuate souldiers for their better instruction , especially vnto a company for the 〈◊〉 , vnsetled and vnfurnished , since we know well how short our memories are oftentimes , and vnwilling to giue sto●ge to the better things , and such things as limit and bound mankind in their necessariest duties . for which it transcends not the reach of his vnderstanding , who is conuersant , if but as for a festiuall exercise , ( euery 〈◊〉 moone ) in reading of a booke , that records and ed●cts for manners or ciuill duties , haue vsually beene fixed vpon ingrauen tables , for the commons daily to ouerlooke : a custome more especially cherished by those not many yeeres since in magnuza who haue restored ( as i m●● say ) after so great a floud and rage of abused goodness● , all lawes , literature and vertue againe , which had well nigh perished , had not the force of piety and sacred reason remaining in the bosomes of some few , opposed it selfe against the fury of so great a calamity , of whom it is an vndenyable truth , that the meanes and way wherby they reduced the generall def●ction , was by printing thereby so houlding vppe those inuolued principles , and instructions wherein ( as in a mirror , the blind and wandering iudgement might suruaye , what those knowledges were , which taught both how to gouerne , and how to obey , ( the end indeed of sociable mankinds creation ) since without order and gouernment , ( the onely hendges , whereupon , not onely the safety , but the being of all states doe turne and depend ) what society may possible subsist , or commutatiue goodnesse be practised . and thus law●s being published , euery common eye may take suruey of their duties , and carrying away the tenour of the same , meditate , & bethinke how safe , quiet , and comely it is to be honest , iust , and ciuill . and indeed all the sacred powers of knowledge and wisedome are strengthned by these two waies , either by a kind of diuine nature , which his happy creation hath blessed him with , the vertue whereof comprehendeth , foreseeth and vnderstandeth the truth and cleerenesse of all things : or by instruction and tradition from others , which must improue his wants , and by experience render him perfect , awaking him in all seasons a vigilant obseruer of ciuill cautions and ordinances , an excellent reason inforcing no lesse vnto the knowledge of him that will shine a starre in the firmament , where good men moue , and that is , that no man doth more ill then hee that is ignorant . for the auoiding of which , and to take away the plea of i did not know in him that shall exorbitate or goe aside with any delinquencie which may be dangerous in example or execution , albeit true it is how hee is indeede the good and honest man that will be good , and to that needeth fewe other precepts . it hath appeared most necessary vnto our present ethnarches deputy gouernor sir thomas dale knight marshall , not onely to exemplifie the olde lawes of the colony , by sir thomas gates published & put in execution by our lord generall laware during his time one whole yeere of being there , but by vertue of his office , to prescribe and draw new , with their due penaltyes , according vnto which wee might liue in the colony iustly one with another , and performe the generall seruice for which we first came thither , and with so great charges & expences , are now setled & maintained there . for my paines , and gathering of them , as i know they will be right welcom to such young souldiers in the colony who are desirous to learne and performe their duties , so i assure me , that by you i shall bee encouraged to go on in the discharge of greater offices by examining and fauouring my good intention in this , and in what else my poore knowledge or faithfulnesse may enable me to be a seruant in so beloued and sacred a businesse . and euen so committing to your still most abstract , graue and vnsatisfied carefulnesse , both it and my selfe , i wish returne of seuen fold into such his well inspired bosome , who hath lent his helping hand vnto this new sion . from my lodging in the blacke friers . at your best pleasures , either to returne vnto the colony , or to pray for the successe of it heere . william strachey . articles , lawes , and orders , diuine , politique , and martiall for the colony in virginea : first established by sir thomas gates knight , lieutenant generall , the 24. of may 1610. exemplified and approued by the right honourable sir thomas west knight , lord lawair , lord gouernour and captaine generall the 12. of iune 1610. againe exemplified and enlarged by sir thomas dale knight , marshall , and deputie gouernour , the 22. of iune . 1611. whereas his maiestie like himselfe a most zealous prince hath in his owne realmes a principall care of true religion , and reuerence to god , and hath alwaies strictly commaunded his generals and gouernours , with all his forces wheresoeuer , to let their waies be like his ends , for the glorie of god. and forasmuch as no good seruice can be performed , or warre well managed , where militarie discipline is not obserued , and militarie discipline cannot be kept , where the rules or chiefe parts thereof , be not certainely set downe , and generally knowne , i haue ( with the aduise and counsell of sir thomas gates knight , lieutenant generall ) adhered vnto the lawes diuine , and orders politique , and martiall of his lordship ( the same exemplified ) an addition of such others , as i haue found either the necessitie of the present state of the colonie to require , or the infancie , and weaknesse of the bodie thereof , as yet able to digest , and doe now publish them to all persons in the colonie , that they may as well take knowledge of the lawes themselues , as of the penaltie and punishment , which without partialitie shall be inflicted vpon the breakers of the same . 1 first since we owe our highest and supreme duty , our greatest , and all our allegeance to him , from whom all power and authoritie is deriued , and flowes as from the first , and onely fountaine , and being especiall souldiers emprest in this sacred cause , we must alone expect our successe from him , who is onely the blesser of all good attempts , the king of kings , the commaunder of commaunders , and lord of hostes , i do strictly commaund and charge all captaines and officers , of what qualitie or nature soeuer , whether commanders in the field , or in towne , or townes , forts or fortresses , to haue a care that the almightie god bee duly and daily serued , and that they call vpon their people to heare sermons , as that also they diligently frequent morning and euening praier themselues by their owne exemplar and daily life , and dutie herein , encouraging others thereunto , and that such , who shall often and wilfully absent themselues , be duly punished according to the martiall law in that case prouided . 2 that no man speake impiously or maliciously , against the holy and blessed trinitie , or any of the three persons , that is to say , against god the father , god the son , and god the holy ghost , or against the knowne articles of the christian faith , vpon paine of death . 3 that no man blaspheme gods holy name vpon paine of death , or vse vnlawfull oathes , taking the name of god in vaine , curse , or banne , vpon paine of seuere punishment for the first offence so committed , and for the second , to haue a bodkin thrust through his tongue , and if he continue the blaspheming of gods holy name , for the third time so offending , he shall be brought to a martiall court , and there receiue censure of death for his offence . 4 no man shall vse any traiterous words against his maiesties person , or royall authority vpon paine of death . 5 no man shall speake any word , or do any act , which may tend to the derision , or despight of gods holy word vpon paine of death : nor shall any man vnworthily demeane himselfe vnto any preacher , or minister of the same , but generally hold them in all reuerent regard , and dutifull intreatie , otherwise he the offender shall openly be whipt three times , and aske publike forgiuenesse in the assembly of the congregation three seuerall saboth daies . 6 euerie man and woman duly twice a day vpon the first towling of the bell shall vpon the working daies repaire vnto the church , to heare diuine seruice vpon pain of losing his or her dayes allowance for the first omission , for the second to be whipt , and for the third to be condemned to the gallies for six moneths . likewise no man or woman shall dare to violate , or breake the sabboth by any gaming , publique , or priuate abroad , or at home , but duly sanctifie and obserue the same , both himselfe and his familie , by preparing themselues at home with priuate prayer , that they may bee the better sitted for the publique , according to the commandements of god , and the orders of our church , as also euery man and woman shal repaire in the morning to the diuine seruice , and sermons preached vpon the saboth day , and in the afternoon to diuine seruice , and catechising , vpon paine for the first fault to lose their prouision , and allowance for the whole weeke following , for the second to lose the said allowance , and also to be whipt , and for the third to suffer death . 7 all preachers or ministers within this our colonie , or colonies , shall in the forts , where they are resident , after diuine seruice , duly preach euery sabbath day in the forenoone , and catechise in the afternoone , and weekely say the diuine seruice , twice euery day , and preach euery wednesday , likewise euery minister where he is resident , within the same fort , or fortresse , townes or towne , shall chuse vnto him , foure of the most religious and better disposed as well to informe of the abuses and neglects of the people in their duties , and seruice to god , as also so to the due reparation , and keeping of the church handsome , and fitted with all reuerent obseruances thereunto belonging : likewise euery minister shall keepe a faithfull and true record , or church booke , of all christnings , marriages , and deaths of such our people , as shall happen within their fort , or fortresses , townes or towne at any time , vpon the burthen of a neglectfull conscience , and vpon paine of losing their entertainement . 8 he that vpon pretended malice , shall murther or take away the life of any man , shall bee punished with death . 9 no man shal commit the horrible , and detestable sins of sodomie vpon pain of death ; & he or she that can be lawfully conuict of adultery shall be punished with death . no man shall rauish or force any womā , maid or indian , or other , vpon pain of death , and know ye that he or shee , that shall commit fornication , and euident proofe made thereof , for their first fault shall be whipt , for their second they shall be whipt , and for their third they shall be whipt three times a weeke for one month , and aske publique forgiuenesse in the assembly of the congregation . 10 no man shall bee found guilty of sacriledge , which is a trespasse as well committed in violating and abusing any sacred ministry , duty or office of the church , irreuerently , or prophanely , as by beeing a church robber , to filch , steale or carry away any thing out of the church appertaining thereunto , or vnto any holy , and consecrated place , to the diuine seruice of god , which no man should doe vpon paine of death : likewise he that shall rob the store of any commodities therein , of what quality soeuer , whether prouisions of victuals , or of arms , trucking stuffe , apparrell , linnen , or wollen , hose or shooes , hats or caps , instruments or tooles of steele , iron , &c. or shall rob from his fellow souldier , or neighbour , any thing that is his , victuals , apparell , household stuffe , toole , or what necessary else soeuer , by water or land , out of boate , house , or knapsack , shall bee punished with death . 11 hee that shall take an oath vntruly , or beare false witnesse in any cause , or against any man whatsoeuer , shall be punished with death . 12 no manner of person whatsoeuer , shall dare to detract , slaunder , calumniate , or vtter vnseemely , and vnfitting speeches , either against his maiesties honourable councell for this colony , resident in england , or against the committies , assistants vnto the said councell , or against the zealous indeauors , & intentions of the whole body of aduenturers for this pious and christian plantation , or against any publique booke , or bookes , which by their mature aduise , and graue wisedomes , shall be thought fit , to be set foorth and publisht , for the aduancement of the good of this colony , and the felicity thereof , vpon paine for the first time so offending , to bee whipt three seuerall times , and vpon his knees to acknowledge his offence , and to aske forgiuenesse vpon the saboth day in the assembly of the congregation , and for the second time so offending to be condemned to the gally for three yeares , and for the third time so offending to be punished with death . 13 no manner of person whatsoeuer , contrarie to the word of god ( which tyes euery particular and priuate man , for conscience sake to obedience , and duty of the magistrate , and such as shall be placed in authoritie ouer them , shall detract , slaunder , calumniate , murmur , mutenie , resist , disobey , or neglect the commaundements , either of the lord gouernour , and captaine generall , the lieutenant generall , the martiall , the councell , or any authorised captaine , commaunder , or publike officer , vpon paine for the first time so offending to be whipt three seuerall times , and vpon his knees to acknowledge his offence , with asking forgiuenesse vpon the saboth day in the assembly of the congregation , and for the second time so offending to be condemned to the gally for three yeares : and for the third time so offending to be punished with death . 14 no man shall giue any disgracefull words , or commit any act to the disgrace of any person in this colonie , or any part therof , vpon paine of being tied head and feete together , vpon the guard euerie night for the space of one moneth , besides to bee publikely disgraced himselfe , and be made vncapable euer after to possesse any place , or execute any office in this imployment . 15 no man of what condition soeuer shall barter , trucke , or trade with the indians , except he be therunto appointed by lawful authority , vpon paine of death . 16 no man shall rifle or dispoile , by force or violence , take away any thing from any indian comming to trade , or otherwise , vpon paine of death . 17 no cape marchant , or prouant master , or munition master , or truck master , or keeper of any store , shall at any time imbezell , sell , or giue away any thing vnder his charge to any fauorite , of his , more then vnto any other , whome necessity shall require in that case to haue extraordinary allowance of prouisions , nor shall they giue a false accompt vnto the lord gouernour , and captaine generall , vnto the lieuetenant generall , vnto the marshall , or any deputed gouernor , at any time hauing the commaund of the colony , with intent to defraud the said colony , vpon paine of death . 18 no man shall imbezel or take away the goods of any man that dyeth , or is imployed from the town or fort where he dwelleth in any other occasioned remote seruice , for the time , vpon pain of whipping three seuerall times , and restitution of the said goods againe , and in danger of incurring the penalty of the tenth article , if so it may come vnder the construction of theft . and if any man die and make a will , his goods shall bee accordingly disposed , if hee die intestate , his goods shall bee put into the store , and being valued by two sufficient praisers , his next of kinne ( according to the common lawes of england , shall from the company , committies , or aduenturers , receiue due satisfaction in monyes , according as they were praised , by which meanes the colonie shall be the better furnished ; and the goods more carefully preserued , for the right heire , and the right heire receiue content for the same in england . 19 there shall no capttain , master , marriner , saylor , or any else of what quality or conditiō soeuer , belonging to any ship or ships , at this time remaining , or which shall hereafter arriue within this our riuer , bargaine , buy , truck , or trade with any one member in this colony , man , woman , or child , for any toole or instrument of iron , steel or what else , whether appertaining to smith carpenter , ioyner , shipwright , or any manuall occupation , or handicraft man whatsoeuer , resident within our colonie , nor shall they buy or bargaine , for any apparell , linnen , or wollen , housholdstuffe , bedde , bedding , sheete , towels , napkins , brasse , pewter , or such like , eyther for ready money , or prouisions , nor shall they exchange their prouisions , of what quality soeuer , whether butter , cheese , bisket , meal , oatmele , aquauite , oyle , bacon , any kind of spice , or such like , for any such aforesaid instruments , or tooles , apparell , or housholdstuffe , at any time , or so long as they shall here remain , from the date of these presents vpon paine of losse of their wages in england , confiscation and forfeiture of such their monies and prouisions , and vpon peril beside of such corporall punishment as shall be inflicted vpon them by verdict and censure of a martiall court : nor shall any officer , souldier , or trades man , or any else of what sort soeuer , members of this colony , dare to sell any such toole , or instruments , necessary and vsefull , for the businesse of the colonie , or trucke , sell , exchange , or giue away his apparell , or houshold stuffe of what sort soeuer , vnto any s●ch sea-man , either for mony , or any such foresaid prouisions , vpon paine of 3 times seuerall whipping , for the one offender , and the other vpon perill of incurring censure , whether of disgrace , or addition of such punishment , as shall bee thought fit by a court martiall . 20 whereas sometimes heeretofore the couetous and wide affections of some greedy and ill disposed seamen , saylers , and marriners , laying hold vpon the aduantage of the present necessity , vnder which the colony sometimes suffered , haue sold vnto our people , prouisions of meale , oatmeale , bisket , butter , cheese &c , at vnreasonable rates , and prises vnconscionable : for auoiding the like to bee now put in practise , there shall no captain , master , marriner , or saylor , or what officer else belonging to any ship , or shippes , now within our riuer , or heereafter which shall arriue , shall dare to bargaine , exchange , barter , truck , trade , or sell , vpon paine of death , vnto any one landman member of this present colony , any prouisions of what kind soeuer , aboue the determined valuations , and prises , set downe and proclaimed , and sent therefore vnto each of your seuerall ships , to bee fixed vppon your maine mast , to the intent that want of due notice , and ignorance in this case , bee no excuse , or plea , for any one offender herein . 21 sithence we are not to bee a little carefull , and our young cattell , & breeders may be cherished , that by the preseruation , and increase of them , the colony heere may receiue in due time assured and great benefite , and the aduenturers at home may be eased of so great a burthen , by sending vnto vs yeerely supplies of this kinde , which now heere for a while , carefully attended , may turne their supplies vnto vs into prouisions of other qualities , when of these wee shall be able to subsist our selues , and which wee may in short time , be powerful enough to doe , if we wil according to our owne knowledge of what is good for our selues , forbeare to work into our own wants , againe , by ouer hasty destroying , and deuouring the stocks , and authors of so profitable succeeding a commodity , as increase of cattel , kine , hogges , goates , poultrie &c. must of necessity bee granted , in euery common mans iudgement ; to render vnto vs : now know yee therefore , these promises carefully considered , that it is our will and pleasure , that euery one , of what quality or condition soeuer hee bee , in this present colony , to take due notice of this our edict , whereby wee doe strictly charge and command , that no man shall dare to kill , or destroy any bull , cow , calfe , mare , horse , colt , goate , swine , cocke , henne , chicken , dogge . turkie , or any tame cattel , or poultry , of what condition soeuer ; whether his owne , or appertaining to another man , without leaue from the generall , vpon paine of death in the principall , and in the accessary , burning in the hand , and losse of his eares , and vnto the concealer of the same foure and twenty houres whipping , with addition of further punishment , as shall bee thought fitte by the censure , and verdict of a martiall court. 22 there shall no man or woman , launderer or launderesse , dare to wash any vncleane linnen , driue bucks , or throw out the water or suds of fowle cloathes , in the open streete , within the pallizadoes , or within forty foote of the same , nor rench , and make cleane , any kettle , pot , or pan , or such like vessell within twenty foote of the olde well , or new pumpe : nor shall any one aforesaid , within lesse then a quarter of one mile from the pallizadoes , dare to doe the necessities of nature , since by these vnmanly , slothfull , and loathsome immodesties , the whole fort may bee choaked , and poisoned with ill aires , and so corrupt ( as in all reason cannot but much infect the same ) and this shall they take notice of , and auoide , vpon paine of whipping and further punishment , as shall be thought meete , by the censure of a martiall court. 23 no man shall imbezell , lose , or willingly breake , or fraudulently make away , either spade , shouell , hatchet , axe , mattocke , or other tools or instrument vppon paine of whipping . 24 any man that hath any edge toole , either of his owne , or which hath heeretofore beene belonging to the store , see that he bring it instantly to the storehouse , where he shall receiue it againe by a particular note , both of the toole , and of his name taken , that such a toole vnto him appertaineth , at whose hands , vpon any necessary occasion , the said toole may be required , and this shall he do , vpon paine of seuere punishment . 25 euery man shall haue an especiall and due care , to keepe his house sweete and cleane , as also so much of the streete , as lieth before his doore , and especially he shall so prouide , and set his bedstead whereon he lieth , that it may stand three foote at least from the ground , as he will answere the contrarie at a martiall court. 26 euery tradsman in their seuerall occupation , trade and function , shall duly and daily attend his worke vpon his said trade or occupation , vpon perill for his first fault , and negligence therein , to haue his entertainment checkt for one moneth , for his second fault three moneths , for his third one yeare , and if he continue still vnfaithfull and negligent therein , to be condemned to the gally for three yeare . 27 all ouerseers of workemen , shall be carefull in seeing that performed , which is giuen them in charge , vpon paine of such punishment as shall be inflicted vpon him by a martiall court. 28 no souldier or tradesman , but shall be readie , both in the morning , & in the afternoone , vpon the beating of the drum , to goe out vnto his worke , nor shall hee returne home , or from his worke , before the drum beate againe , and the officer appointed for that businesse , bring him of , vpon perill for the first fault to lie vpon the guard head and heeles together all night , for the second time so faulting to be whipt , and for the third time so offending to be condemned to the gallies for a yeare . 29 no man or woman , ( vpon paine of death ) shall runne away from the colonie , to powhathan , or any sauage weroance else whatsoeuer . 30 he that shall conspire any thing against the person of the lord gouernour , and captaine generall , against the lieutenant generall , or against the marshall , or against any publike seruice commaunded by them , for the dignitie , and aduancement of the good of the colony , shall be punished with death : and he that shall haue knowlege of any such pretended act of disloyalty or treason , and shall not reueale the same vnto his captaine , or vnto the gouernour of that fort or towne wherein he is , within the space of one houre , shall for the concealing of the same after that time , be not onely held an accessary , but a like culpable as the principall traitor or conspirer , and for the same likewise he shall suffer death . 31 what man or woman soeuer , shal ro●bany garden , publike or priuate , being set to weed the same , or wilfully pluck vp therin any root , herbe , or flower , to spoile and wast or steale the same , or robbe any vineyard , or gather vp the grapes , or steale any cares of the corne growing , whether in the ground belonging to the same fort or towne where he dwelleth , or in any other , shall be punished with death . 32 whosoeuer seaman , or landman of what qualitie , or in what place of commaund soeuer , shall be imployed vpon any discouery , trade , or fishing voiage into any of the riuers within the precincts of our colonie , shall for the safety of those men who are committed to his commaund , stand vpon good and carefull guard , for the preuention of any treachery in the indian , and if they touch vpon any shore , they shal be no lesse circumspect , and warie , with good and carefull guard day and night , putting forth good centinell , and obseruing the orders and discipline of watch and ward , and when they haue finished the discouery , trade , or fishing , they shall make hast with all speed , with such barke or barkes , pinisse , gallie , ship. &c. as they shall haue the commaund of , for the same purpose , to iames towne againe , not presuming to goe beyond their commission , or to carry any such barke or barkes , gally , pinnice , ship. &c. for england or any other countrey in the actuall possession of any christian prince , vpon perill to be held an enemie to this plantation , and traitor thereunto , and accordingly to lie liable vnto such censure of punishment ( if they arriue in england ) as shall be thought fit by the right honourable lords , his maiesties councell for this colonie , and if it shall so happen , that he or they shall be preuented , and brought backe hither againe into the colonie , their trecherous flight to be punished with death . 33 there is not one man nor woman in this colonie now present , or hereafter to arriue , but shall giue vp an account of his and their faith , and religion , and repaire vnto the minister , that by his conference with them , hee may vnderstand , and gather , whether heretofore they haue beene sufficiently instructed , and catechised in the principles and grounds of religion , whose weaknesse and ignorance herein , the minister finding , and aduising them in all loue and charitie , to repaire often vnto him , to receiue therein a greater measure of knowledge , if they shal refuse so to repaire vnto him , and he the minister giue notice thereof vnto the gouernour , or that chiefe officer of that towne or fort , wherein he or she , the parties so offending shall remaine , the gouernour shall cause the offender for his first time of refusall to be whipt , for the second time to be whipt twice , and to acknowledge his fault vpon the saboth day , in the assembly of the congregation , and for the third time to be whipt euery day vntil he hath made the same acknowledgement , and asked forgiuenesse for the same , and shall repaire vnto the minister , to be further instructed as aforesaid : and vpon the saboth when the minister shall catechise , and of him demaund any question concerning his faith and knowledge , he shall not refuse to make answere vpon the same perill . 34 what man or woman soeuer , laundrer or laundresse appointed to wash the foule linnen of any one labourer or souldier , or any one else as it is their du●ies so to doe , performing little , or no other seruice for their allowance out of the store , and daily prouisions , and supply of other necessaries , vnto the colonie , and shall from the said labourer or souldier , or any one else , of what qualitie whatsoeuer , either take any thing for washing , or withhold or steale from him any such linnen committed to her charge to wash , or change the same willingly and wittingly , with purpose to giue him worse , old and torne linnen for his good , and proofe shall be made thereof , she shall be whipped for the same , and lie in prison till she make restitution of such linnen , withheld or changed . 35 no captaine , master , or mariner , of what condition soeuer , shall depart or carry out of our riuer , any ship , barke , barge , gally , pinnace &c. roaders belonging to the colonie , either now therein , or hither arriuing , without leaue and commission from the generall or chiefe commaunder of the colonie vpon paine of death . 36 no man or woman whatsoeuer , members of this colonie , shall sell or giue vnto any captaine , marriner , master , or sailer , &c. any commoditie of this countrey , of what quality soeuer , to be transported out of the colonie , for his or their owne priuate vses , vpon paine of death . 37 if any souldier indebted , shall refuse to pay his debts vnto his creditor , his creditor shall informe his captaine , if the captaine cannot agree the same , the creditor shall informe the marshals ciuill & principall officer , who shall preferre for the creditor a bill of complaint at the marshals court , where the creditor shal haue iustice. all such bakers as are appointed to bake bread , or what else , either for the store to be giuen out in generall , or for any one in particular , shall not steale nor imbezell , loose , or defraud any man of his due and proper weight and measure , nor vse any dishonest and deceiptfull tricke to make the bread weigh heauier , or make it courser vpon purpose to keepe backe any part or measure of the flower or meale committed vnto him , nor aske , take , or detaine any one loafe more or lesse for his hire or paines for ●so baking , since whilest he who deliuered vnto him such meale or flower , being to attend the businesse of the colonie , such baker or bakers are imposed vpon no other seruice or duties , but onely so to bake for such as do worke , and this shall hee take notice of , vpon paine for the first time offending herein of losing his eares , and for the second time to be condemned a yeare to the gallies , and for the third time offending , to be condemned to the gallies for three yeares . all such cookes as are appointed to seeth , bake or dresse any manner of way , flesh , fish , or what else , of what kind soeuer , either for the generall company , or for any priuate man , shall not make lesse , or cut away any part or parcel of such flesh , fish , &c. nor detaine or demaund any part or parcell , as allowance or hire for his so dressing the same , since as aforesaid of the baker , hee or they such cooke or cookes , exempted from other publike works abroad , are to attend such seething and dressing of such publike flesh , fish , or other prouisions of what kinde soeuer , as their seruice and duties expected from them by the colony , and this shall they take notice of , vpon paine for the first time offending herein , of losing his eares , and for the second time to be condemned a yeare to the gallies : and for the third time offending to be condemned to the gallies for three yeares . all fishermen , dressers of sturgeon or such like appointed to fish , or to cure the said sturgeon for the vse of the colonie , shall giue a iust and true account of all such fish as they shall take by day or night , of what kinde soeuer , the same to bring vnto the gouernour : as also of all such kegges of sturgeon or cauiare as they shall prepare and cure vpon perill for the first time offending heerein , of loosing his eares , and for the second time to be condemned a yeare to the gallies , and for the third time offending , to be condemned to the gallies for three yeares . euery minister or preacher shall euery sabboth day before catechising , read all these lawes and ordinances , publikely in the assembly of the congregation vpon paine of his entertainment checkt for that weeke . the summarie of the marshall lawes . yee are now further to vnderstand , that all these prohibited , and forefended trespasses & misdemenors , with the inioyned obseruance of all these thus repeated , ciuill and politique lawes , prouided , and declared against what crimes soeuer , whether against the diuine maiesty of god , or our soueraigne , and liege lord , king iames , the detestable crime of sodomie , incest , blasphemie , treason against the person of the principall generals , and commaunders of this colonie , and their designs , against detracting , murmuring , calumniating , or slaundering of the right honourable the councell resident in england , and the committies there , the general councell , and chiefe commaunders heere , as also against intemperate raylings , and base vnmanly speeches , vttered in the disgrace one of another by the worser sort , by the most impudent , ignorant , and prophane , such as haue neither touch of humanitie , nor of conscience amongst our selues , against adultery , fornication , rape , murther , theft , false witnessing in any cause , and other the rest of the ciuill , and politique lawes and orders , necessarily appertaining , & properly belonging to the gouernment of the state and condition of the present colony , as it now subsisteth : i say ye are to know , that all these thus ioyned , with their due punishments , and perils heere declared , and published , are no lesse subiect to the martiall law , then vnto the ciuill magistrate , and where the alarum , tumult , and practise of arms , are not exercised , and where these now following lawes , appertaining only to martiall discipline , are diligently to be obserued , and shall be seuerely executed . 1 no man shall willingly absent himselfe , when hee is summoned to take the oath of supremacy , vpon paine of death . 2 euery souldier comming into this colonie , shall willingly take his oath to serue the king and the colonie , and to bee faithfull , and obedient to such officers , and commaunders , as shall be appointed ouer him , during the time of his aboad therein , according to the tenor of the oath in that case prouided , vpon paine of being committed to the gallies . 3 if any souldier , or what maner of man else soeuer , of what quality or condition soeuer he be , shal tacitely compact , with any sea-man , captain master , or marriner , to conuay himselfe a board any shippe , with intent to depart from , and abandon the colony , without a lawful passe from the generall , or chiefe commander of the colonie , at that time , and shall happen to bee preuented , and taken therwith , before the shippe shall depart out of our bay , that captaine , maister or mariner , that shall so receiue him , shall lose his wages , and be condemned to the gallies for three yeeres , and he the sworne seruant of the colony , souldier , or what else , shall bee put to death with the armes which he carrieth . 4 when any select , and appointed forces , for the execution and performance of any intended seruice , shall bee drawne into the field , and shall dislodge from one place vnto another , that souldier that shall quit , or forsake his colors , shall be punished with death . 5 that souldier that shall march vpon any seruice , shall keepe his ranke , and marching , the drum beating , and the ensigne displayed , shall not dare to absent himselfe , or stray and straggle from his ranke , without leaue granted from the cheefe officer , vpon paine of death . 6 all captaines shall command all gentlemen , and common souldiers in their companies , to obey their sergeants , and corporals in their offices , without resisting , or iniuring the said officers , vpon paine , if the iniurie be by words , he the offender shal aske his officer pardon in the place of arms , in the mead of the troopes . if by act , he the offender shall passe the pikes . 7 that souldier that in quarrel with an other shall call vpon any of his companions , or countrimen to assist , and abette him , shall bee put to death with such armes as he carrieth . 8 hee that shall begin a mutiny , shall bee put to death with such armes as he carrieth . 9 where a quarrell shall happen betweene two or more , no man shall betake him vnto any other arms then his sword , except he be a captaine or officer , vpon paine of being put to death with such armes as he shall so take . 10 if a captaine or officer of a companie shall come where two or more are fighting with their drawne swords , so soone as hee shall cry hold , and charge them to forbeare , those that haue their swords in their hands so drawne , shall not dare to strike or thrust once after vpon paine of passing the pikes . 11 that souldier that hauing a quarrell with an other , shall gather other of his acquaintance , and associates , to make parties , to bandie , braue second , and assist him therin , he and those braues , seconds , and assistants shall passe the pikes . 12 he that shall way-lay any man by aduantage taken , thereby cowardly to wound , or murther him shall passe the pikes . 13 if any discontentment shall happen betweene officers , or souldiers , so as the one shall giue words of offence , vnto the other , to mooue quarrell , the officer or souldier shall giue notice thereof , to his corporall , or superior officer , and the corporall , or superior officer , shall commit the offender , and if it happen between commanders , the officer offended shall giue notice to the generall , or marshal , that he may be committed , who for the first offence shall suffer three daies imprisonment , and make the officer wronged , satisfaction before his squadron to repaire him , and satisfie him , without base submission , which may vnworthy him to carry armes . and the officer , or souldier so offended , hauing satisfaction offered shall with all willingnes receiue it , for which both producing it to his officer , and accepting of satisfaction , hee shall bee reputed an officer , or souldier well gouerned in himselfe , and so much the fitter to be aduanced in commaund ouer others , and if any shall vpbraid him , for not hauing fought a sauage headlong reuenge against his fellow , the officer or souldier so vpbraiding , shall bee punished and make satisfaction as the first offender , and if any shal so offend the second time he shall suffer ten nights lying head and heeles together , with irons vpon the guard , and haue his entertainement checkt for one month , and make satisfaction to the officer or souldier , as before remembred , and for the third offence , hee shall bee committed to the gallies three yeeres . and if vpon the first offence giuen by any officer or souldier , vnto any other , in words as aforesaid ; and the other returne iniurious words againe , they shall both be taken as like offenders , and suffer like punishment , sauing that he who gaue the first offence shall offer first repaire vnto the offended , which he the offended shall accept , and then shal hee proceed to returne tho like satisfaction vnto the other , and if any shall bee obstinate in this point of repaire , and satisfaction , hee shall suffer sharpe and seuere punishment , vntill hee shall consent vnto it , the words or manner of satisfaction , to be giuen vnto the party , or parties offended , shall be appointed by the chiefe officer of the company , vnder whom the officer , or souldier shall happen to bee , with the knowledge of the prouost marshall , prouided , that if the officer or souldier shall desire it , hee may appeale vnto the chiefe officer of the garrison , or vnto the marshall , if hee shall be present to iudge of the equity of the satisfaction . and if any lancepr●zado , corporall , or other officer , shall happen to bee present , or shall take knowledge of any such offence offered of one partie , or quarrell sought and accepted of more parties , he shall presently cause the partie , or parties so offending to bee committed to prison , that due execution may follow , as is formerly prouided . and if any lanceprizado , corporall , or superior officer shall neglect his or their duty , or duties heerein appointed , by not bringing the offender , and their offences , to the knowledge of the superior office , that satisfaction as aforesaid , vpon the fault committed , may orderly follow , the officer so offending , shal for his first omission , negligence , and contempt , suffer ten daies imprisonment , for the second twenty , and for the third losse of his place , and to bee put to the duty of a centinell : and if any officer or sould●er shall be present when two or more shall draw weapons , with intent to fight , or shall fight , they shall presently doe their best to part them , and if he be an officer he shall commit them , or put them vnder safe guard to bee committed , and if hee bee a priuate souldier , hee shal giue notice to the prouost , marshall , or vnto the first officer that he shal meet with , of the parties offending , who shall presently take order , that they may be apprehended , and committed to the prouost martialcy , and if any officer or souldier , shall happen to see any officer or souldier so fighting , and shall not doe his best to part them , without fauouring one part or other , hee shall bee punished at the discretion of the officer in chiefe , and the punishment shall extend to the taking away of life , if the cause shal so require , and if any officer , or souldier shall know of any purpose in any to fight , and shall not stay them , or discouer them to such officers , as are competent to stay them , but that they goe to fight , and doe accordingly fight , that officer , or souldier shall bee taken , and shall bee punished cleerely and in the same sort , as the offence deserueth punishment betweene them fighting . 14 that officer , or souldier that shall challenge another to fight , and hee that shall carry any challenge , knowing it to be a challenge , and he that accepteth any such challenge with a purpose and returne of answere , to meete the saide challenger to fight with him , in this case they shall all three be held alike calpable , and lie subiect to the censure of a martiall court. 15 that officer who shal command the guard and let such challengers and challenged , passe the ports , vpon his knowledge to fight , shall bee casseird , and if the officer be vnder the degree of a captaine , hee shall bee put to doe the duty of a centinell . 16 no officer shall strike any souldier , for any thing , not concerning the order , and duty of seruice , and the publique worke of the colony , and if any officer shall so doe , hee shall bee punished as a priuate man in that case , and bee held vnworthy to command , so peruerting the power of his place and authority . 17 no man shall be captaine of the watch at any time , vnder the degree of an ensigne . 18 he that shall take the name of god in vain or shall play at cards or dice , vpon the court of guard , for the first time so offending , he shall bee committed to prison , there to lie in irons for three daies , for the second time so offending , hee shall be whipt , and for the third time so offending hee shall bee condemned to the gallies for one yeere . 19 hee that shall absent himselfe from the court of guard , vppon his watch aboue one houre without leaue of his corporall or superiour officer , shall for his first time so offending , at the relieuing of the watch bee committed to prison , and there to lye in irons for 3. dayes , for the second time he shall be committed to prison and there lye in irons for one weeke , and haue his entertainement checkt for one weeke , and for the third time , hee shall be committed to the gallies for sixe moneths . he that shall swagger , and giue iniurious words vpon the court of guard , for the first offence , hee shall aske forgiuenesse vpon his knees , of the officers , and rest of the guard , before the captain of the watch at that time : for his second time so offending , he shall bee committed to the gallies for one yeere . 21 he that draweth his sword vpon the court of guard , shall suffer death by the armes which he weareth . 22 hee that should draw his sword in a towne of garrison , or in a campe shall lose his right hand . 23 that souldier that shall goe out of the fort , towne or campe , other then by the ordinary guards , issues , waies , or ports , shall suffer death by the armes which he carrieth . 24 he that shall abuse and iniurie the serieant maior , the prouost marshall , either by word , or deede , if hee bee a captaine , hee shall be casseird , if a souldier he shall passe the pikes . when the officer or souldier shall haue committed any crime , or haue made breach of the publique lawes , his captaine shall commit him vnto the seriant m●ior , who hauing taken his examination , shall send him to the prouost marshall , committed vnto prison , that he may bee brought to be censured by a court marshall . 26 no souldier shall withstand or hinder the prouost marshall , or his men in the execution of his office , vpon paine of death . 27 all captaines , lieutenants , serieants , and corporals , shall be diligent at conueuient times , to traine and exercise their companies , & shall haue a care of their armes , as they tender their entertainment , and vpon paine of casseiring , and other corporall punishment , as shall be inflicted by vertue of a marshall court . 28 no man shall goe twelue score from the quarter , his colours , towne or fort , without leaue of his captaine , vpon paine for the first time of whipping , for the second offence to be committed to the gallies for one yeare , and for the third offence to suffer death . 29 no man shall sell , giue , imbezell , or play away his armes , or any part thereof , vpon paine of death . 30 no common souldier shall sell , or make away any of his apparell , which is deliuered vnto him by the colonie , or out of the store , vpon paine of whipping . 31 no man shall depart from his guard without leaue of his officer , vpon paine of punishment : and who so shall be set centinell , shall not depart from it , vntill he be relieued , nor sleepe thereof vpon paine of death . 32 no man shall offer any violence , or contemptuously resist or disobey his commaunder , or doe any act , or speake any words which may tend to the breeding of any disorder or mutinie in the towne or field , or disobey any principall officers directions vpon paine of death . 33 he that shall not appeare vpon the guard , or not repaire vnto his colours , when the drum vpon any occasion shall beate either vpon an alarum , or to attend the buisinesse which shall be then commaunded , shall for his first offence lie in irons vpon the court of guard all one night , and for his second be whipt , and for the third be condemned to the gallies for one yeare . 34 that souldier who fighting with an enenemie , shall lose his armes , or runne away cowardly , or yeeld himselfe but vpon apparant and great constraints or without hauing performed first the part of a good souldier , and an hones● man , shall suffer death with the armes which h● carrieth . 35 that souldier that shall let go any caution deliuered vpon a treatie , or any prisoner of warre by his negligence , shall be punished with death . 36 no souldier shall let goe any prisoner of war , which he hath taken without consent of his captaine , who shall aduertise the chiefe commaunder , vpon paine of being committed to the gallies for one yeare . 37 that souldier which vpon an assault , or taking of any towne , that shall not follow his colours , and the victory , but shall fall to pillage for his priuate profit , after the place taken , shall suffer death with the armes which he weareth . 38 no souldier may speake or haue any priuate conference with any of the saluages , without leaue of his captaine , nor his captaine without leaue of his chiefe officer , vpon paine of death . 39 when the marshall or gouernour of a towne , shall demaund a souldier that hath made breach of these lawes , that captaine or any other that shall conceale him , or assist him to flie away , shall bee punished with the punishment which the fact of the said fugitiue deserued . 40 that captaine that shall ipso facto , find any souldier breaking these fore declared lawes and ordinances , of whatsoeuer company he shall be , he shall commit him to the prouost marshall to be punished according as the offence committed commeth vnder the construction of the martiall law in that case prouided . 41 no souldier shall vnprofitably waste his pouder , shot , or match , by shooting it idly away , or at birds , beasts , or sowle , but shall giue an account vnto his corporall of the same , who shall certifie his captain vpon peril for his first fault so cōmitted , to be cōmitted to prison , there to lie in irons head & heeles togither eight & forty hours , for the second to be condemned sixe monethes to the gallies , and for the third offence to be condemned two yeares to the gallies . 42 all captaines , officers , and common souldiers , or others of what condition soeuer , members of the colonie , shall doe their endeauours to detect , apprehend , and bring to punishment all offenders , and shall assist the officer of that place for that purpose , as they will answere the contrary at our marshall court . 43 all other faults , disorders , and offences that are not mentioned in these lawes , articles , and orders shall be & are supplied in the instructions which i haue set downe , and now shall be deliuered vnto euery captain , and other officer , so farre forth as the infancie , and as yet weake condition of this our present colony will suffer , and which shall be punished according to the generall custome , and therefore i commaund all men to looke to their charges , and him that hath no charge to looke to his owne carriage , and to keepe himselfe within the bounds of dutie , for the discipline sh●ll be strictly kept , and the offenders against the lawes therof seuerely punished . 44 whosoeuer shall giue offence to the indians in that nature , which truly examined , shall sound to haue beene cause of breach of their league , and friendship , which with so great trauaile , desire , and circumspection , we haue or shall at any time obtaine from them without commission so to doe , from him that hath authoritie for the same , shall be punished with death . 45 whosoeuer shall wilfully , or negligently set fire on any indian dwelling house , or quioquisock house or temple , or vpon any storehouse , or garner of graine , or prouision of what quality soeuer , or disualedge , ransacke , or ill intreat the people of the countrey , where any warre , or where through any march shall be made except it be proclaimed , or without commandement of the chiefe officers shal be punished with death . 46 whosoeuer shal not do his endeauour and best to regaine & recouer his colours , if by hap it fall into the indians hands shall lie subiect to the censure of a marshall court . 47 whosoeuer shal faine himselfe sick , vpō the point of fight , or when any worke is to be done or slip away from the seruice of either , shall be punished by death . 48 vvhosoeuer shall raise any question , brabble or braule in the watch , or amboscado , or in scout , or sētinel in any other effect , or make any noise or rumor where silence , secrecie , and couert is to be required , shall be punished with death . 49 whosoeuer shal not retreat when the drum or trumpet soundeth the same , whether it be vpon any sallies , made out of any town or fortres , or in skirmish , or in any incounter , shall be punished with death . 50 it now resteth , that all captaines and supreme officers , whether gouernor in towne , fort or fortes , or captaine of companies shall be aduised to do their indeuors ioyntly , and to agree in one accord , that the true and neuer failing iustice , may be executed with all integrity of all these foredeclared lawes , according to the dignitie , power , and censure of the martiall court , that by the exemplar liues , and honourable practises of all that is good & vertuous , all things may be gouerned in good order , as no doubt , our right honorable lord generall doth assure himselfe , that all good and vpright men that haue the feare of god , and his seruice , and their owne honour in regard , will demean themselues no lesse , then according to the dignity of their place , and charge of their command , the vnited powers of his lordships knowledge , being so full of approued noblenesse , and the well knowne , and long time exercised grounds of piety , as without question he cannot but desire rather a little number of good men , obedient & tractable , submitting to good order & discipline , then a great armie , composed of vitious prophane , quarrellous , disobedient , and ignoble persons , wherefore in his lordships behalfe , i must intreat all gouernors , captains , officers , and soldiers , and neuerthelesse do inioyne , ordaine and command them to carry themselues in their seuerall duties and charges , according to the intention of his lordship , declared by these present ordinances . 51 euery captaine shall cause to be read all these lawes which concerne martiall discipline , euery weeke vpon his guard day , vnto his company vpon paine of censure of a martiall court . instructions of the marshall for better inhabling of the colonell or gouernour , to the executing of his or their charges in this present colony the 22. of iune . 1611. albeit the zeale which i beare vnto this businesse that we haue all now in hand touching the subsistance of this plantation , might iustly take vp all my spirits , and would require a large and passionate explanation of mine owne thoughts and promptnesse to gaine & possesse the hearts of all vnderstanding , noble and religious spirits therunto , yet i must craue pardon ( considering at this time many present impediments ) if i wrap vp any impatient desires & good affection hereunto , to all such vnto whom these necessarie effects of my dutie and office shall appertaine , and must be declared in few words and aduises , appertinent yet ( if not essentiall , as heat to bloud , to the aduancement hereof ) my desire then by these is chiefly to let all the worthier & better sort to vnderstand , how well it shall become their honors , birthes , breedings , reputations & fa●shes , to do their bests , and emulously to actuate in this worke , the vtmost of their cleerest powers of body and mind , where the trauaile of both is so deerely valued , & highly interpreted by al good and wise men , who knowing the grounds of all goodnes , cannot but know this , how this hazardous voyage ( as yet but in her earely daies , reflecting onely the comfort of faire hopes ) is vndertaken by you , more to honour god , your country , & to profit your knowledges , then for any other ends of profit , which speakes for you ( in despight of enuie and calumnie ) that you haue mindes much in loue with vertue , & are right noble & worthy instruments , to be imployed in so sacred and heroicke a cause , if it were well knowne heere the care that is had of this plantation in england , and the trauel that is taken therein , and the fire that doth not only burne in the generall body of our deare countrymen , to the encouragemet & ioy one of another amongst themselues , but flames out ( euen to the view of strange nations , as well our neighbours , as far remote ) for the furtherance & aduancement of this honorable enterprise , there is no man here would thinke that this my induction , had either fashion or purpose of a complement . if the wisest man that euer spake or writ ( except him that was both god & man ) summed vp all the reckonings of worldly felicities in these two words laecari & benefacere , imploying a cheereful mirth with well doing ( from which it cannot be seuered ) who hath more cause to be cheerefull , and inlie glad then you that haue the comfort of so great weldoing , to which no other may be compared ? for what weldoing can be greater then to be stocks & authors of a people that shal serue and glorifie god , which is the end of all our creation , & to redeeme thē from ignorance and infidelity , to the true knowledge and worship of god , whereby you are made partakers of this promise , that they which lead others into righteousnesse , shal shine like the starres in the sirmament , wherein be right well assured , that your happinesse is enuied by many a right knowing , and excellent vertuous man in england , who cannot happly by reason of other their imployments and callings , bee partakers of that comfort heere , as they are by their endeauors there at home . i shall not need to aduise any colonel , or gouernor here for the present how to carry himself , for each mans owne experiēce here hath made him out goal vse of my admonitiō , which my affection wold willingly else afford if there were cause . only to discharge my seruice to god whose souldier i doe now professe my selfe imprest , in this so glorious and great a cause of his , my duty to my soueraigne liege lord and king , & to his highnesse my royall prince and master , to my country and the expectation of many honorable select , painful , and religious aduenturers , patrones of this businesse , i haue conceiued no whit impertinent to deliuer and publish to euery imminent officer in this colony heere present , and for the direction and guiding of such who may heereafter arriue heere such and so many few in structions as may the better inable them to execute their charges , no whit doubting , but euery colonell , gouernour captaine , and other officer may sufficiētly vnderstand his and their duties , as they are souldiers , but happily not yet as they are , or may be coloni , members of a colony , which compriseth and inuolueth here , as well all the industrious knowledges & practises of the husbandman & of his spade , as of the souldier , and of his sword , since as monie is the paiment & wages of the one , so of the other are the fruits of the earth the tillage and manuring of the land , and in very truth of more necessity & vse shall we heere be of the latter then of the other , whether of you be comprehended the souldier himselfe or his salarie , since more easie it is to make a husbandman a souldier , then a souldier a husbandman . and indeed the necessity of our subsisting , and the very daunger which our enemies of this country can any way put vs vnto ( our companies and people well commaunded ) requiring the choise rather of the one then the other . these beeing then the ends and intents of this work , and so vnderstood , by euery supreme and chiefe commander , i refer him to these following instructions . all gouernors of town or towns , fort or forts , shall be ready ( when so be it they shall be summoned thereunto ) to take their oaths of allegeance vnto his maiesty & of faithfulnes vnto such his maiesties lieftenant or to his deputy or deputies ( authorised by commission to command ouer and within the prec●ncts of this whole colony , or colonies , by the tenor of which oathes they shall solemnly attest to perform all integrity , vprightnesse , iustice and sincere administration of the discipline and lawes in all causes and cases , for the good of the colony or colonies , prouided and declared , and shal indeuor the best they may , with all carefulnesse to aduance the dignity , and subsistance of the same , as well by giuing often in charge , and taking no lesse into their owne care , both the particular preseruation of all such helpes of what condition soeuer ( especially of cattell , and al kinde of such breeders , which may ef●oones redound vnto the vtility and profit of the same , as by tendring the prouisions of the store , and t●e we●l husbanding of the same , be they of what seuerall qualitie soeuer nor is he meanely to be watchfull , and iealous ouer his own waies and carriage in all particulars , making profession , and practise of all vertue and g●odnes for example vnto others to imitate , it being true that examples at all times preuaile farre aboue precepts , men beeing readier to bee led by their eies , then their eare , for seeing a liuely pattern of industry , order and comlinesse , wee are all of vs rather swayed vnto the same by a visible obiect , then by hearing much more in wel i●struct●d arguments . euery such gouernor therefore shall make it his firit duty to resort dayly and vsu●lly to the diuine seruice , next to put in execution the lawes duly against offenders and with all cherish and reward the well deseruing , and lastly with all worthines & circumspection on , abeare himselfe vnto and towards his garrison , intreating all men as well strangers as others , with al grace , humanity , and sweetnes of a noble nature , & manlinesse , vnto all which i hartily aduise , and withall inioyne euery such gouernor of town or towns , to be most indulgent , and carefull to performe , as hee will answer the contrary ( beside with the losse of his own honor , with such other penalties , as the neglect of so behoofefull and necessary businesse in him , may draw vpon the colony . further he ought to be most vigilant , circumspect , and prouident for the conseruatiō , defending , & keeping the town or fort , for & vnto his maiesty , wherin he is placed cheefe commander , & therfore ought the more duely to strengthen his iudgement , and remember his reputation , that he fall into neither of those extreames , which the needy and prodigall are most what culpable of , the one wasting the stocks , commodities and prouisions of the store , by which he must subsist , and the other by being rauenous and corrupt in himselfe become likewise enforced to tollerate the same in his inferior captaines , and so leaue the poore souldier and labourer , miserably pilled , oppressed and starued . further hee ought to prouide that the companies be trained , and that they may bee made ready for the publique seruice , and for that the condition of this country doth require rather shot then other armes , either for offence or defence , and time being pretious with vs in respect of our dayly labours and works abroad belonging to our subsisting , in so much , as a small portion thereof may bee affoorded and allowed vnto such exercising and training , therefore it is appointed by the marshall , that the captains that shall haue the guard , during their time of guard ( their people as then being exempted from their dayly labour and work abroad ) and their officers shall teach euery souldier to handle his peece ; first to present it comely , and souldier like , and then to giue fire , by false firing , and so to fall his piece to the right side with the nose vp , & when their souldiers are hardy and expert in this , they shall set vp a conuenient mark fast by the court of guard , at which euery souldier shall twice discharge his peece , at the releeuing of the watch , morning and euening , and he that shall shoot neerest the gouernor shall do wel to allow some addition of victuals , or pay , or some prize of incouragement , that euery one may therby emulously contend to do best : concerning the training , and cleanely exercising of their armes , & their postures , the captains shall haue order and directions for the same vnder the marshals hand which they shall put in execution during the time of their guard. 41 it is also required that the gouernor neuer lie out of his towne or fort whereby hee may the better keepe good espiall vpon all officers , that they perform their seueral duties each one in his place especially in good obseruatiō of the watch & guard , for the more confidēt securing the charge cōmitted to him : hee shall not suffer in his garrison any souldier to enter into guard , or to bee drawne out into the field without being armed according to the marshals order , which is , that euery shot shall either be furnished with a quilted coate of canuas , a headpeece , and a sword , or else with a light armor , and bases quilted , with which hee shall be furnished : and euery targiteer with his bases to the small of his legge , and his headpeece , sword and pistoll , or scuppet prouided for that end . and likewisee euery officer armed as before , with a firelocke , or snaphaūse , head-peece , and a target , onely the serieant in garrison shall vse his halbert , and in field his snaphaunse and target . the gouernour shall haue a principall care , that he vse his garrison to the dayly wearing of these armors , least in the field , the souldier do finde them the more vncouth strange and troublesome . lastly the gouernor shall haue a singular care to put in execution all such orders and instructions as shall bee deliuered vnto him from the generall , or his deputie or deputies , concerning the imployments of his garrison vpon such manuall works and duties , as shall be thought necessary and conuenient for the better subsisting both of the laborer , and garrison committed vnto him ▪ in which is not to bee forgotten the chary conseruation of powder , and munition , which will the better inhable him for the defence of his charge . the gouernor shall be better instructed by taking notice of the lawes published , that these following abuses are prouided for , impious and malicious speaking against the holy and blessed trinity , blasphemy , and taking gods holy name in vain , traiterous words against his maiesties person , or royall authority , vnreuerent demeanor towards the ministers and preachers of the same , the detestable crime of sodomie , incest , theft , murther , false witnessing , treason against the person of the generall , and principall commaunders of this colony , and their designes , against detracting , murmuring or slaundering of the right honorable , the councell resident in england , and the committies there , the generall councel and subalternate commanders , heere , as also against intemperate raylings & base vnmanly speeches vttered in the disgrace one of another , all which the marshall law , as well as the ciuil magistrate is to punish , but these which concerne in particular the military discipline , to inable your iudgement for your sentence to be required , that it may with greater cleerenes , and vnderstanding , called to censure offences in the marshal court be deliuered , i haue abstracted , as followeth 1 conference with the enemy , without leaue or warrant , frō the lord generall , lieute●ant generall , marshall , or chief & principal cōmand for the presēt . 2 the designes , enterprises , and estate of the colony , reuealed to what enemy soeuer , by priuy messengers , or missiues , or otherwise in what sort soeuer . 3 the not present aduertising , & giuing notice vnto a che●fe commaunder , of such things as any man knoweth intended any way , or by any body , for the domage , mischiefe or ill of the colony , or the concealement in any one of any matter of importance , and moment for the good of the colony . 4 running vnto the enemy , or intending , and plotting to runne albeit preuented . 5 of any one taken prisoner by the enemy , hauing meanes to escape , & not returning to the colony againe , vnlesse hee haue giuen faith . 6 of attempting commotion , giuing occasion of sedition , or muteny in the colony , or seducing any labourer or souldier from their duty , diuine , ciuill , or martiall , or from their appointed works and labours . 7 of disclosing or giuing the word vnto the enemy , or vnto any other , where it 〈…〉 be giuē . 8 of receiuing , or protecting 〈…〉 , ●●●●nger , or suspected spie , or supposed enemy , into 〈◊〉 , or any couert , without making it knowne to the general , or chiefe officer , and without leaue from him so to do . 9 suspitious and priuily entring into the campe town , or fort , or going out by any other waies and issues , then those which are accustomed , as ouer the ramparts , pall●zadoes , trenches , &c. 10 of doing any act , or contriuing any practise , which may preiudice the seruice of his maiesty commanded for the good of the colony , by the generall , or chiefe officer . 11 of breaking the truce , or peace at any time cōcluded with the indian , without leaue & warrant expresly giuen , by h●m who hath power so to doe . 12 of pillaging , or violently forcing from any indian to friend , without leaue . 13 of ransacking , ransoming , or violently outraging , and dispoiling the country people , or making war vpon them , be it in body or goods , vnles they be declared enemies , & warrant giuen to make prise of . 14 of laying violent hands on his captaine or other superiour officer , and generally vppon any one whatsoeuer , to whom duty & obedience is due , especially if it be in the executing of his office. 15 of him who shall see his superior , or chiefe officer in danger , and shall not doe his indeauour to rescue and relieue him with all his force , and power . 16 of him who shall violently or hardly intreate , or kill his souldier , without good , & lawfull occasion , or that he haue deserued so to be intreated , not to satisfie his owne pleasure and appetite , to punish in colour , and reuenge , thereby thinking to make himselfe more redoubted , a braue man , & to be feared , remembring well , the life of a souldier , or a laborer , belongs to none to take away , but to the lord generall , lieftenant general , marshal , or their deputy or deputies . 17 of killing any one , except it be in his own defēce . 18 of striking or fighting with an other man , hauing a quarrell vnto him , and not holding his or their hands when an officer or third party comes between and cries , holah . 19 of making debate , raising question , or laying his hand on his sword , and drawing it in the court of guard , in ambush or other place , where he ought to be modest , peaceable , silēt , & to keep himself in couert . 20 of assaying or indeuouring by brauery , & chiefly by trechery , to outrage or iniury any one without a cause , in deed or in words , priuately behind his backe like a slie coward , or openly to his face , like an arrogāt russian , since words are the parents of blowes , & from quarrels infinite disorders , and mischiefes gather head whether in campe , towne , or fort. 21 of reuenging a new wrong , or old iniury , by any course , contrary to the peace of the camp or colony . 22 of running where any quarrell is a foote , and companies gathered together , furnished with other armes then his sword . 23 of taking away any mony in brauery , wonne from another , or gotten by play otherwise without the will and consent of him , from whom he wonne it , or cheating or cosenage in play . 24 of not repairing to the place of armes , or colors at the publique beating of the drum. 25 of wilfully firing any place , without order from the superior officer . 26 of sacriledge or taking any goods out of churches , or temples , be they sacred or prophane , without licence from the chiefe commander . 27 of a souldier enrowling himselfe in two companies at one time . 28 of going out of one company into another , without leaue of his captaine . 29 of absenting himselfe from the campe , towne , or fort , without permission of a superiour officer . 30 of him that shall receiue his pay , and shall go away without speaking a word , it is a case capital , and worthy of death . 31 of suborning souldiers the one from the other , which is an euill example , and which doth draw many inconueniences with it . 32 of quarrels , debates , and reuenge . 33 of failing to go , or refusing to follow , where his ensigne shall march , or else where that he shall be commaunded by those who haue authoritie so to commaund without enquiring the cause . 34 of abandoning his ensigne without leaue or going from the place assigned him , be it in fight , in the court of guard , centinels , or other part , not brought of by those who placed him there , or others hauing the same authority . 35 of a souldier not doing his endeuour to recouer his ensigne , if the enemie haue taken it . 36 of being wanting at his watch , vpon his time appointed , or of going of the guard without leaue , albeit vnder a colour of espie . 37 of being found sleeping in centinell , or of him who placed vpon some guard or watch by his negligence hath giuen meanes to the enemie , to doe some spoile in the campe , towne , or fort , and to surprise them at vnawares . 38 of running away from the battell , conflict , or assault , &c. and of him that marcheth too slowly , or maketh delaies in any other sort . 39 of a souldier faining himselfe sicke , when any seruice is to be performed . 40 of yeelding vnto the enemy , a place which he hath in gard , without doing first his duty to the vttermost , & be not cōstraind vnto it , according to the quality of the same , & the state wherunto he shal be drawn . 41 of being appointed to defend a breach , trench , or passage , cōmitted vnto his charge , & do forsake it altogether , without being forced therunto by the enemy . 42 of entring into any place taken by force , & pillaging the fame , not following his colors , or forsaking the fame , without a publike proclamatiō , made by the chiefe commander , that it shal be lawful so to pillage . 43 of a soldier being found vnfurnished of his arms , and of such furniture , as he is appointed to weare and ought to haue , by losing them in play , or in cowardly runing away , or otherwise by his default or negligēce . 44 of a souldiers going from his quarter , town , or fort , without he haue leaue f●om a superior officer . 45 of a souldier aduancing himselfe , to go before the troopes , be it to come first to his lodging , or for any other occasion , or wandring heere and there , and stragling when he should march . 46 of not retiring so soone as the drum or trumpet shall sound retreat , whether it be comming out of any towne , or skirmish or any other fight . 47 of speaking loud , or making a noise in the battel or any other place , where silence is to be vsed , except those who haue power to command . instructions of the marshall for the better inhabling of the captaine of the watch , to the executing of his charge in this present colony . the 22. of iune . 1611. sithence , as in euery liuing creature , there be many and sundry members , & those distinct in place and office , and all yet vnder the regiment of the soule , and heart , so in euery army , commonwealth , or colonie ( all bodies a like compounded ) it cannot be otherwise for the establishment of the same in perfect order and vertue , but that there should be many differing parts , which directed by the chiefe , should helpe to gouerne and administer iustice vnder him . and if it be thus in this ciuil audit , & courts of a well setled state , much more sure as it required , to be in their beginnings , and no lesse shall we read , how that first & great commander ouer the colony of the children of israel , conducting them from aegypt to make their plantation in the land of promise , appointed captains ouer tribes and hundreds for the wars , and elders to sit vpon the bench ( whilest vnto himselfe all great causes were brought , whether martial , or ciuil to direct and determine it otherwise being impossible , so many and infinite occasions both being to be thought vpon , and requiring iudiciall audience , should euer come by one mā ( of how indefatig●ble a spirit soeuer ) to be decided or determined . out of this example cōmended vnto vs by the holy writ , it may wel be , that many officers are still continued in all vnited societies , religious and wel gouerned : hauing then thus religion , beside prescription and reason , ( which mine owne breeding hath taught me how to make the best vse of , to be my guids in this new settlement , and in this strange and heathenous ( contending with all the strength and powers of my mind and body , i confesse to make it like our natiue country , i am not a little careful to adhere & take vnto mine owne endeuours , as many furtherances , as may helpe to work out with me the ends of this great imployment , which hath now possessed and furnished all states of christendom with discourse and expectatiō what may be the issue therof , & to what perfection so great , & frequent leuies of monies , & annuall transportations for these foure yeares of men , and prouisions , may bring this english plantation vnto : and as i haue constituted subalterne officers according both to the ancient & moderne order of the wars , and well approued the gouernment & magistracy , resembling and maintaining the lawes of england , so i haue taken paines to present so many & such instructions to such speciall officers ( whom our necessity teacheth to establish amongst vs ) as may most neerest concerne them for the present , ( leauing out yet i confesse many appertinent ones , which the time & our earely daies here of settlement may not yet admit of . let me aduise therfore euery officer now established , to hold it a seruice of duty faithfully to execute such orders and instructions , as i haue made it my mindes labour to expresse and draw out for him : and amongst the rest ( our no little safety consisting in our watch & guard as wel by day as night , we being set down in a stranger land , sauage , and trecherous , and therfore many sodaine and barbarous accidents to be feared , i haue as followeth extracted the duty of the captaine of the wrath an office not meanly appertaining and necessary vnto this colony , and whose ignorance , and supine negligence may much indanger the safetie thereof . that captaine who is captaine of the watch , must haue a speciall care of the safeguard and preseruation of the towne or fort committed to his charge , and of the liues and goods of the soldiers , and inhabitants , that through his defect , negligence , or ignorance in his charge , he giues not oportunity to the enemie to execute any of his deseignes , for the indamaging of the place or the inhabitants : now for the more faithfull executing of his charge , he shall doe well to take notice , that being the chiefe commander of the watch , he he is to answere for all disorders , misrules , riots , tumults and what vnquietnesse soeuer , shall happen in the towne or fort , and that if any of these shall fall out to be , he is to commit the parties so offending , to the prouost marshall , making the gouernour there-with acquainted , that the offender may receiue such punishment , as his fault shall deserue , of what quallity soeuer he be . at the setting of the watch , he is to repayre to the place of arms , with his gorget about his neck , if his company haue not the guard , there to be present with the sargeant maior , at the drawing of the billets for the guards , that he may the better know the strength of his watch , and how the companies are disposed vpon their guards . he is to remaine from the setting of the watch vpon the main court of guard , or guard appointed for him & his rounders that if any occasion present it selfe wherin his endeauour is to be vsed , hee may be the readier found to receiue the cheife officers direction , or to reforme any abuses that shall come to his knowledge , by the misdemeanors of any to bee found in the campe , towne or fort . the ports being shut , and the word deliuered out from the gouernor , he is to see that al his gentlemen , appointed for his assistants , doe come vpon their guard , where he is so to order it that by drawing of billets according to their lots , they may execute their rounds , whither first , second , third . &c. and after the corporalls haue set out their centinells , hee is to passe from his court of guard , with three or foure of his assistants , and so to make the round about the campe , towne , or fort , from guard to guard , receiuing from euery corporal the word of guet , that their be no error , or abuse , by variety of word : after which he is to goe into the court of guard , to see that such officers , rounders , and soldiers , apoynted for that guard , bee there present vpon their guard , then hee shall search the peices whither they be charged with bullet , and that the soldiers bee furnished with poulder and match for the better defence of the guard , committed to his charge , so commanding and inioyning euery officer , and soldier to execute his duty , for ther better security of the campe , towne , or fort : hee shall depart to the next guard there to doe the like , and so from guard to guard , vntill hee hath visited all the guards and centinells of his watch , giuing in charge to the officers of each guard to send forth their rounders , according to their order and directions . further hee shall command all disordred people ( vntimely sitting vp late in vsuall assemblies , whither in priuat meetings , publike tap-houses or such like places ) vnto their rests , for which he shall cause all fire and candles to bee put out and raked vp in the towne , and such night walkers , or vnruly persons whome hee shall meete in the streets , he shall either send to their lodgings , or to the prouost marshall , according as their misdemeanou● shall require . hee being returned to his owne court of guard shall see his rounders set forth euery one according to his order of billet , from houre to houre , and he shall informe him-selfe from these rounders which walke their rounds , two howers before day breake , whither the captaines and their guards , and their companies bee in armes according to their duties : if they bee not hee shall walke around towards the morning vnto those guards , and cause them to be put in armes , and shall informe the gouernour of those officers neglects , that they may receiue punishment : after this at the discharge of the watch , hee is with his guard to attend the serjeant major for the safe opening of the ports . at the opening of the ports , hee shall cause the people to stay that are to goe out of the towne , a pretty distance from his guard , that they may giue no incombrance to his guard , vntill such time , as he hath sent out certaine serjeants to discouer forth right , and vpon each side , as farre as the limmits of that fort are prescribed : at the returne of the serjeant , hee shall cause those of the towne to goe out leisurely and without thronging or confusion , and those without to come in , in like manner , warning the gards to stand in armes one houre after . from thence hee shall returne to the maine guard or place of armes to assist the serieant maior for the disposing of such men as are appoynted vnto ●●eir seuerall busines and workes of the colony for the whole day following : and likewise to see that those captaines , who haue the guard , do put in execution the cōmandements of the marshall for the trayning and disciplining of their men for the better inabling them to the seruice of the colony . after which he shall do well to present himselfe before the gouernour , or chiefe officer , to vnderstand his further commaunds . it shall bee his duty the time beeing come , when the general morning worke is to be left off , to cause the drum to beate , and with his guard of rounders to assist the captaines or capt. to bring the laborers into the church to heare diuine seruice , which beeing ended hee is to returne to the maine court of guard , there to be present for the ordering of all matters whatsoeuer to happen , during his time of being captaine of the watch , and when it shall so fall out that the indians do at any time come in way of trade or visitation vnto the camp , towne or fort , he shal leaue order with the guards that the suffer not them to enter before such time as they haue made him acquainted first of their beeing there , who shall informe the gouernor to know his pleasure , which beeing vnderstood hee shal so accomplish , at al times , appointing guards vppon such indians , that they do not steale any of out ●ooles , axes , howes , swords , peeces or what thing else ; and that none of our people talke publikely or priuately with them , or that they truck or trade with them , or doe any other vnorderly act , without leaue granted for the same from the gouernour , or chiefe officer , the omission of which duty , will bee required at his hands . hee must likewise take notice of all such breaches of the publique lawes and articles , as shall bee committed in the time of his guard , and accordingly command such persons to the prouost marshall , as shall bee found trespassers and breakers of the said lawes and articles . at the time or houres appoynted for the afternoone worke of the colony , euery labourer to his worke , and euery craftsman to his occupation , smiths , ioyners , carpenters , brick makers & . he shall cause the drumme to beate againe , to draw and call forth the people vnto their labour , when againe the worke on all hands towards night being to bee left off , hee is to cause the drumme likewise then to beate , and as before assist the capt : with the whole company to bring them to euening prayer . if it shall so bee that hee bee capt. of the watch vpon sonday , it shall be his duety to see that the saboath be no waies prophaned , by any disorders , gaming , drunkennes , intemperate meeting , or such like , in publike or priuate , in the streetes or within the houses . it shall be his duty halfe an houre before the diuine seruice , morning & euening , to shut the ports and place centinels , and the bell hauing tolled the last time , he shal search all the houses of the towne , to command euery one , of what quality soeuer ( the sick and hurt excepted ) to repaire to church , after which he shall accompany all the guards with their armes , ( himselfe being last ) into the church , and lay the keyes before the gouernor . if at any time any alarme be taken , he is to strengthen himselfe from the maine court of gard , taking a competent proportion of that guard , for the securing of his person , and so to repaire to the place where the alarme was giuen , to enforme himselfe by what means the alarum came , causing his rounders to command all guards to be in armes for the readier execution and resistance of any perill , and conseruation of their charge , and if he find the alarum to be truly giuen , and that the enemy approch the fort , towne , or campe , he is to send to aduertise the gouernor or chiefe officers to know his directions for the assembling of guards , and ordering and drawing a force , for the better preuention of the enemies designes . lastly , when the guard is set , and another captaine hath the watch , hee shall present himselfe before the gouernor or chiefe commander , to giue account vnto him of all such accidents , trespasses and neglects , as haue beene committed during the time of his watch . thus to conclude , though his office amongst many others be a chief and principall office , and there be many weighty and frequent duties required in this great duty of the captaine of the watch , yet these are the most essentiall and necessariest which i can yet aduise , the neerest to concerne vs. instructions of the marshall , for the better inabling of a captaine , to the executing of his charge in this present colonie . iune the 22. 1611. that captaine that will honestly and religiously discharge himselfe , and the duty entrusted to him , shall doe well to conceiue of himselfe , as the maister of a family , who is at all times so to gouerne himselfe , as knowing assuredly that all the crimes and trespasses of his people vnder him shall bee exacted at his hands , not onely by his superior officer and iudge here , but by the great iudge of iudges , who leaues not vnpunished the sinnes of the people , vpon the magistrates , in whose hands the power and sword of iustice and authority is committed , to restraine them from all delinquences , misdeeds and trespasses . and moreouer since the captaine is to know , that not onely the command of their ciuill duties is at his directions , for which he is to answer , but likewise al their actions and practises which shal breake forth in them , contrary to the diuine prescriptions of piety and religion : their periuries , blasphemies , prophanenesse , ryots , and what disorders soeuer , and generally all their breaches of both the sacred tables , diuine , and morrall , to god and man , and in this place most especially , where the worke assumed , hath no other ends but such as may punctually aduance the glory , and propagation of the heauenly goodnesse , for which so many religious lawes and ordinances are established , and declared , all tending to the subsisting of a colony , the first seed-plot and settlement of such a new temporary kingdom and state , as may reduce , and bring poore misbeleeuing miscreants , to the knowledge of the eternall kingdom of god ( therefore by him first shut vp in misbeliefe , that in his due time , when it should so please him , hee might againe on them shew mercy ) it is carefully therefore by each captaine to be considered , how pretious the life of a poore souldier is , but how much more pretious his soule , and that he make conscience how he expose the first to apparant ruine and mischiefe , or suffer the other to run on into headlong destruction : for the first let his wisedom , knowledge , and circumspection be euer awake , and ready how to imploy , and when and with what assurances , regards and cautions , either left to his owne power , or prescribed him by vertue of these from the marshall , and for the other , let him first be mindfull to giue witnesses in his owne life , how carefull hee is to please god , who must blesse all that he vndertakes , and walke himselfe in a noble example of iustice and truth ; which doth not onely enforce a reputation and respect from other men , but an imitation and following of the like by other men : and vnto this may the diuerse and frequent changes and strictnesse of the place where we are , and the hardnesse of the many with whom he shal haue to do , with other chances & difficulties be motiues sufficient to perswade him , in which yet let him remember this , that it is in vaine in such place as heere , to pretend onely to bee vertuous and religious , except a man bee vertuous and religious indeed , and that vertue extend it selfe to example . but since i assure my selfe that of this aduice no capt. voluntarily imploying himselfe in such a busines as this is , and onely for the businesse sake , hath any need , i commend him to the following instructions . euery captaine shall ( if conueniently hee may ) present himselfe before his colonel or gouernor , once a day , to vnderstand his commands , the which hee must bee carefull , neither to exceed at any time , nor bee defectiue in their full accomplishment , albeit he shall haue a shew and presentment at any time of a better aduantage , since concerning his imployment hee may bee ignorant of the chiefe commaunders ends . hee shall doe well to haue a speciall eye and regard ouer his company , that they as well br●ake not the publique lawes , and orders prescribed them , but also performe all dueties and seruices vnto which they shall bee for the present commaunded , the which that he may with the better aptnesse and conueniency draw them vnto , it shal be his duty to haue knowledg , and take notice of euery one of his vnder officers , offices and duties ; that he may the readier reforme faults committed , eyther by negligence , or ignorance , and at the time of watch he shall send his serieant to the serieant maior for the word , and if he haue the watch himselfe , hee shall after the word giuen out , call vpon his court of guard , all his company ( vnlesse his centinels ) and assembled together , humbly present themselues on their knees , and by faithfull and ze●lous prayer vnto almighty god commend themselues and their indeauours to his mercifull protection . after prayer , either the captaine himselfe , or some one of his vnder officers , shall accompany the centinell to the place of guet , after which he shall search all the pieces vpon the court of guard , that they be charged with bullet against the captaine of the watch or serjeant major shall come to visit them , and also that they be furnished with poulder and match , for the discharge of their duties , during the time of their watch and ward : and it is his duty , after that the serjeant major or captaine of the watch haue made their round some time after midnight to walke his round , to see that his centinels do hold good watch in their guet , & that all things bee quiet and peaceable , and no disorders in the towne , and that if alarum be giuen , he giue order to his centinels to take it with al secrecy , without any tumult or noise made , for the ●●act performance whereof , he must haue especiall care that he weaken not his guard , by giuing leaue vnto any of them to be absent from the guard , but vpon iust and lawfull cause , & reason to be alledged : likewise he is to appoint certaine gentlemen for rounders in his company , the which are to make their said rounds from houre to houre , according to the directions of the captaine of the watch . further , about two houres before day , the captaine shall put on his armes , and cause all his company to arme themselues , and so to stand in armes vntill one houre after the discharge of the watch in the morning , which time expired , he shall returne with his company vnto the court of guard , and there , with publike praier , giue vnto almighty god humble thankes and praises , for his mercifull and safe protection that night , and commend himselfe and his , to his no lesse mercifull protection and safegard for the day following . and because that , during the watch , that time is appointed for the exercising of his men , and fashioning them to their armes , he shall set vp a conuenient marke by his court of guard , where hee shall teach his men the exercise of their armes , both for the comely and needfull vse therof , as the offensiue practise against their enemies , at which marke his men shall discharge their pieces twice , both morn●ng and euening , at the discharge of the watch , hauing procured from the gouernor some prize of incouragement due vnto him that shall shoot neerest , then he shall file and ranke , & exercise his men in such military actions , according vnto such forme and exercise , as he shall receiue from the marshall , not forgetting by the way , that all the courts of guard , and all the members of the watch and ward , are vnder the command of the capt. of the watch . further , the captaine is to make it his especial duty to haue religious and manly care ouer the poore sick soldiers or labourers vnder his command , for which cause he shall visite such as are sick , and prouide so that they bee attended , their lodgings kept sweet , and their beds standing the same heigth from the ground which is prouided for in the publique iniunctions , as likewise hee shall call for such things for them out of the store , or from the phisitions or surgeons chest , as the necessitie of their sicknesse shall require . further he is to know , because we are not onely to exercise the duty of a souldier , but of the husbandman , and that in time of the vacancie of our watch and ward wee are not to liue idely , therefore the captaine sending his serieant to the serieant maior for the word , shall likewise giue in charge vnto his serjeant to make demand of the serieant major , what seruice , worke , and businesse he hath in charge , from the gouernor , to command him and his men to goe vppon him the next morning , after notice whereof , he shall so prouide , that he and his men be ready at the relieuing of the morning watch , the drum summoning him there-vnto to effect the same , for which he shall bring ●is men vnto the place of armes , by the maine court of guard , where the serjeant major , or the captaine of the watch , shall conduct them to the place of the subsisting businesse , prouiding them such labouring and needfull instruments or tooles , as the worke for the present shall require , in which worke the captaine himselfe shall do exceeding worthily to take paines and labour , that his souldiers seeing his industry and carefulnesse , may with more cheerfulnesse loue him , and bee incouraged to the performance of the like in that businesse wherevpon they are imploied , contrariwise himselfe taking his case , and inioyning them to toile and worke , may breed both a wearinesse of the businesse in the imployed , and giue a way vnto much hatred , and contempt vnto himselfe . now concerning the tooles and instruments , and the furnishing his soldiers therewith , the captaine shall send his serieant to the store to make demand thereof , and leauing a note vnder his hand for the receipt of the same , thereby charging him-selfe to the redeliuerie of them againe at the finishing of the worke . the companies thus furnished , and being assembled in the place of armes , the serieant maior or captaine of the watch , vpon their knees shall make their publike and faithfull prayers vnto almighty god for his blessing and protection to attend them in this their businesse the whole day after succeeding , which done the serieant maior or captaine of the watch shal extract out of the companies howsoeuer deuided , and deliuer vnto euery maister of the worke appointed , his propper and seuerall ging , to take their wayes therevnto , where the said maisters and ouer-seers of such workes shal be present with them to labour , and hold to labour such his ginge vntill 9. or ten of the clock , according vnto the coldnesse or heate of the day , at which time he shall not suffer any of his company to be negligent , and idle , or depart from his worke , vntill the serieant maior , or capt. of the watch causing the drum to beat shall fetch them in vnto the church to heare diuine seruice , which beeing effected , euery man shall repaire to his lodging , to prouide himselfe of his dinner , and to ease and rest himselfe vntill two or three of the clocke in the after-noone , acording to the heat and coldnesse of the day , at which time the drumme beating , the capt : shall againe draw forth his company vnto the place of armes as a foresaid , to bee disposed of as before vppon their worke vntill fiue or six of the clocke , at which time the drumme beating as before , at the command of the sarjeant maior or capt. of the watch , they shal be by one of them brought in againe vnto the church to euening prayer , which beeing ended they shall dismisse the company ; those that are to set the watch , with charge to prepare their armes , the others vnto their rests and lodgings . all these duties the captaine must not be ignorant nor negligent to put in execu●ion , as being duties which will be exactly required at his hands by the marshall , as also so to behaue himselfe that he may be as well beloued as obeyed of his souldiers , that thereby they may as well know , how to obey , as he to command , and that he endeuour by all meanes to conserue his men , as annoy his enemy , & painefully to execute with al diligence such matters as he is inioyned by his superiors , and to haue no apprehension of feare , but of shame and infamie . instructions of the marshall for the better enabling of a lieftenant to the executing of his charge in this present colonie iune the 22. 1611. when the captaine is present he is to be assisting to his captaine , in prouiding that all directions that are commanded by the superior officer , as well his captain as other , be put in execution , that the company be well and orderly gouerned , and such duties duly and dayly performed as are inioyned by the gouernor or cheife officer ; and likewise that the duties of the inferiour officers or soldiers be no lesse diligently and sedulously discharged , for he being , as is said , a helpe , and aide vnto his captaine , is therefore accountant to and with his captain for such omissions , disorders and neglects , as the company shal be found faulty in . he ought faithfully to informe his capt : of all abuses , disorders , neglects , and contempts that shall happen in the company , of what nature or condition soeuer they bee . if his captain shal at any time demand his opinion in any matter of consequence , he shall faithfully and sincerely deliuer it , but not presume to aduise his capt. vndemanded , vnles it be vpon extraordinary occasiō of present and imminent perill . it shal be his duty in all quarrels , braules , debates , and discontentments of his soldiers to accord and agree them without partiallity , and with the least troubling of his cap. with the same , & if he cannot with his curtesies , and gentle interposition worke them into peaceable agreement , hee shall then acquaint his captaine , and afterwards faithfully put in execution his captaines directions . he ought to traine & exercise the company that they may be expert in the vse of their armes when they shall be commanded to publike seruice . he ought likewise to see that the inferiour officers be duly obei'd the one by the other without singularity or contradictiō , & the soldiers obey thē all in generall , each one according to his place . by his care euery squadron shal haue his armes seruiceable and cleane , and at the setting of the watch that they be prouided of pouder , match , and bullet , for the defence of the guard , and if the company be vnfurnished to aduertise his captaine , or send his serieant to the munition maister , that order may bee presently taken for the supplie thereof . hee shall doe well , if conueniently he may , morning and euening ( or at least once a day ) to present him-selfe before his captaine , to know his commands , and to informe his captaine , of the state of his companie . it shal be his duty to haue care that the company bee ready ( as is exprest in the captaines duty ) to go forth and attend the daily businesse , and publike labour appertayning to the colonie , which shal be comaunded by the chiefe officer , in which hee shall haue a hand in executing , and an eye in ouer-seeing , that euery one take his due paines , and not loyter , and idlely mispend the time appoynted vnto the dispatch of such businesse . hee is to haue a hearty and religious care that the souldiers doe not make breach of the lawes , and duties , diuine , ciuill , or martiall , inioyned them to obserue vpon so necessary reasons and strict penalties , but that he informe , correct and punish to the vtmost of his authority limited , the trespassers of the same , or the omission of any duty whatsoeuer , with the approbation of his captaine . hee is not to make it his least care to ouer-see and take charge of the lodging and bedding of all in generall in his company , that according vnto the publike edict the preseruation of their healths be prouided for , and that one point of slothfullnesse in the common soldier preuented , and met with , of lying vpon or to neere the ground , which neglect in the officer hath bin the losse of many a man. for his order of command and march in the field , and quartering he shal be appoynted the manner thereof by the marshall , when occasion of seruice shall so require , like-wise the order of trayning and exercising his captaines company he shall haue vnder the marshalls hand . hee is amongst other his duties most carefully , like a charitable and wel instructed christian , mercifull and compassionate , make often and daily suruey of such of his company as shal be visited with sicknesse , or wounded by any casualty of warre , gunpoulder , or other-wise , in which hee shall take such order that the lodgings of such as shal be so sicke or hurt , be sweet and cleanely kept , them-selues attended and drest , and to the vttermost of his power to procure either from the store , or the phisition and surgeons chest , such comforts , healps , and remedies , as may be administred and applied vnto them , and to haue care that they be not defrauded of those meanes and remedies which are for them deliuered out of the said store or chests . and for that this officer is in the abscence of his captaine to be called vnto the marshall court as his deputie , for the better inhabling of his iudgement , when his opinion is to be required in the censure of offences and crimes of what quality soeuer , which shal be brought thither to be sentenced , i refer him to the abstract of the lawes in breefe anexed vnto the duty of his capt. instructions of the marshall for the better enabling of an ensigne to the executing of his charge in this present colonie , iune the 22. 1611. it is requisite for euery soldier to stand vppon his credit and reputation , proposing vnto himselfe that their can be no lesse equall , or to be compared with dishonour , & sure in matters of armes and their execution , what dishonour can bee greater then the losse of the ensigne , for which it ought to be committed to the charge of a right valiant , and well gouerned soldier , who may not leaue nor loose it , but where the losse of his life shall quit him of that duty . so farre as toucheth his command , or gouernment in the company , he is to know that he hath no command where his captaine or lieftenant are present , but in their absence i referre him to the duty of the capt : which he is to execute as religiously , painfully , and circumspectly as the captaine : he beeing answerable vnto his captaine for all defects , neglects , disorders , and contempts of duties , in his company whatsoeuer . in the gouernment of his company he is to be asistant vnto his superiour officers , in teaching and inabling all his inferiours , euery one his perticular duty , with faire perswasion and all gentlenes , and sweetnes of command , and if any thing shall happen , either disorders or neglects of duties , it shall be fit for him to aduertise his superior officers that redresse may be had , for he hath no power of himselfe in their presence to punish , correct , or do any act of executions vpon his companions . when the time of exercise and training shal be of the companie , he shall be there ready and assistant vnto his superiour officer ( if so be it his coulours be not drawne forth ) for the better furtherance of him in the so training , and disciplining of the men . hee shall see all commands of his superior officers put in execution , and not stand ignorantly in defence ( as some haue ) and it is the property of the ignorant so to do , that he is tyed to no other duties , but to the carrying of his coulours . for no inferiour officers duty , whether sargeant or corporalls , but he is to performe and execute ( if they shall be by any disaster , defeate , or visitation of sicknesse disabled personally to discharge it themselues ) being so commanded by his superior officers , during the time of guard , yea the duty of the centinell he is to vndergoe , and from which neither the captaine nor lieftenant are exempted vpon vrgent occasion . in the hapning of any dispute , quarrell , or debate amongst the soldiers , the same being brought to his knowledge , he shall do his best to end and compound , whose authority & perswasions , if they shal not be powerfull enough to reconcile & set at one , he shal then informe his lieftenant , or captaine : that order with the most speed & conuenience , may be taken therein . he shall hold it his duty to visit the sick or hurt in his company , and to his power of them take the same care , and make the same charitable prouision for , as is inioynd both the captaine and lieftenant . it is his duty to command the corporalls to bring their squadrons to his lodging , who shal conduct them to his lieftenant , and they both conduct them to their captaine , at the beating of the drum , whither for any manuall labour and worke , for the colony , or whither to bee lead vnto the church at any time to heare diuine seruice . he is to visit the armes of the company , and at the setting of the watch to take care , and so at all time , that they be not vnseruiceable , and if any want bee then of ma●ch , poulder , or bullet , or what else defect , hee is to aduertise his superior officers , that they may then and at all other times bee supplied and amended . to bee breefe hee is an assistant to the lieftenant in the same nature that the lieftenant is to the captaine , and may not by any meanes intrude into the command of the one or other , they being present . in the absence of the captaine , and lieftenant ( when hee is then to bee captaine of the watch ) i referre him to the duty of the sayd captayne of the watch . for his order of march , and flying of his collours , and his carriage in the field , and vpon seruice , he shal bee ordred and instructed by word of mouth from the marshall , when occasion shal be offered . thus mutch is needfull for him to know touching his command , and his carriage to his officers and company , so far forth as hee and they are soldiers , and as the necessity of this present state and condition which we are in doth require . but concerning the publike and dayly manuall businesse which appertaine to our setling there as planters of a col●nie , he is to make it his duty , to be a diligent not onely ou●r-seer , but labourer , himselfe accompanying therein , and seconding the example of his captaine , and industrious lieutenant , that the necessary and daily taskes of such workes and husbandry ( without which we cannot here keepe footing , nor possibly subsist ) may be in due time accomplisht and brought to passe . instructions of the marshall for the better enabling of a serjeant to the executing of his charge in this present colonie , iune the 22. 1611. that captaine who shall dispose of a h●lbert , by vertue whereof a serjeant is knowne , ought to make choise of a man well approoued , that hath passed the inferior grades of a resolute spirit , quick apprehension , and actiue body , for it is a place of great paines and promptitude , and that serjeant who will be able to execute his duty in sinceritie and vprightnesse , must not be slack to punish where it is deserued , nor ouer rash to abuse his authority , vnbefitting an officer of such moment . this officer hath in the absence of his superior officers the command of the company , to see them doe their duties , and obserue lawes and orders in all things , and punishment of them by his halbert , or otherwise in his discretion , for defect or negligence in any part of order . this officer is to attend vpon the serjeant major for the word vpon the shutting in of the ports , at the gouernors lodging or place of armes , according as the serjeant major shall appoint , then he is to giue the word to his captaine , lieftenant , and ensigne , and vnto his corporall or corporalls hauing the guard . hee must see the soldiers of his company furnished and prouided with munition , as shotte , poulder , and match , at the setting of the watch . hee is to call , or cause to bee called the corporalls roule , to see who are absent or negligent in the discharge of their duties . hee is to see each souldiers armes cleanly kept , and seruiceable , and if default be , he is to reprooue the corporall for his negligence in the ouer-sight of that dutie , and to punish the souldier . hee must see the souldiers practise their armes , and therefore it is requisite that he know the vse of all sorts of armes himselfe . if the watch be set by squadrons , he shall leade that squadron , that is to watch to the parado , and there draw billets for his guard , and from thence lead them to the guard . he shall see the setting out of the centinels , and after shall haue care that silence and good order be kept vpon the guard , and that no man depart from the guard without the leaue of him , or his corporall , and that no man be absent aboue one halfe houre , hauing a special regard that hee weaken not his guard , by giuing leaue vnto aboue two at a time to be absent , least he disable himselfe in the performance of that duty of trust and charge which is committed vnto him of the guard . hee shall see that his corporall or corporals , do put his or their squadrons into armes , two houres before the relieuing of the watch , who shall so abide in armes , at least one whole houre after . if the watch be set by whole companies , it is his duty to place euery souldier in his order , and to see them march in ranke and file , and himselfe being eldest serjeant to march vpon the right point in the vaunt-guard : if he be the yongest he is to march vpon the left point in the rere-ward , each taking care of halfe of the company , vnlesse when more companies march together , they be appointed any other place by a superior officer . when the serjeant is appointed to lead out any shot , he shall goe vpon the side of the vtmost ranke , and see that they take their leuell , & giue fier , and do all things with comlinesse and leisure , & so likewise in the retrait . a serjeant of each company , presently after the discharge of the watch shall bee in the place of armes , or market place , to attend the captaine of the watch to the opening of the ports , that they may be imploied by him , for the discouery without the forts , of any ambushes or attempts of the enemy , with such guard as hee shall appoint them , the captaine of the watch hauing caused all those of the towne , about , to go forth , to forbeare and stay vntill the said serjeants returne , which serjeants are to command those that are comming in , to stay vntill those in the towne are comming forth , & then they shal discouer right forth before the port , and to both sides of the port , so farre vntill the discouerers of the other forts meete where they end ; the discouerers being returned , those of the towne shall be suffered to passe out leisurely , & after those being without shal come in as leisurely , without throng or crowd , that they be the better discerned by the guard what they are . the ports beeing open , the serjeants shall returne to their guards , where they shall instruct their souldiers in the practise of their armes , and shall shew them the ready vse of them , and doe their indeauours by their best meanes , to incourage the towardly , and instruct the ignorant . if vpon his guard , in the absence of his superior officer , any soldier of his guard shall offend , hee shall eyther punish him by his halbert , or if the qualitie of the offence so deserue he shall disarme him , and keepe him prisoner vpon the guard , vntill the watch bee releiued , and then hee shall bring him to his superior officers , that he may receiue condigne punishment according to the condition of his offence . the serjeant ought to know euery souldier , and to take notice of their particular lodgings , and to make it a point of his duty to see that they keepe their lodgings cleane , and that their beds doe stand a yard about the ground , to haue an eye into their diet , their thriftinesse and conuersation , to aduise them to the best , whereof he is to make report vnto the captaine or chiefe officer , that they may receiue estimation for good , and punishment for euill behauiour . he is to informe himselfe of the sick , or hurt , in the company , and to visit them once a day , and to inquire whether they bee not defrauded by the phisitions and surgeons , of such necessary helpes as are deliuered vnto them , for their preseruations and recoueries , and to informe his captaine of the negligence and abuse of such , who should in that case deale vniustly with them that their dishonesty may receiue due punishment . he is likewise to addresse himselfe vnto the serjeant major , and store-maister , for the supplying of his company with munition , and victuals , vpon any occasion : and concerning the munition , he is to haue a principall care , that the souldier doe not spend it away in vaine , but onely at such times as they are appointed for exercising and training . he is likewise to take notice of all defects and abuses in his company , and to enforme his superiour officers , that they may be redressed , and iustice take place , he shall with great diligence attend the commands of his captaine , and of the serjeant major , and at all times put them in present execution , rebuking such as doe amisse , shewing them their faults , and teaching them by a good example in himselfe , to tread in the way of all ciuilitie and goodnesse . if any debate shall happen betweene souldier and souldier , hee hauing knowledge thereof , shall doe his indeauor to agree , and reconcile them , that it come not to his superior officers , and if through obstinacie hee cannot agree them , hee shall commit them , or informe his superior officers , who may take order therein . he is to prouide that none of the company bee absent when the drum shall call them forth to worke , in which workes he is to be a president himselfe , both by labouring in the same , and calling vpon others to doe the like , he is to goe to the store , to take out such tooles , as are required for the workes in hand , and there to vnder-write vnto the booke of the store-maister , or vnto a note to be filed , thereby charging himselfe to be accountable for the said tooles , when the worke shall be performed , ouer which he is to haue a regard , that they be not neglectfully layed vp , spoyled nor broken without examining by what meanes they came so broken , that the wilfull breaker thereof may receiue punishment , and the said toole or tooles so broken , withall the pieces , he shall bring vnto the store , to shew the same for his better discharge . instructions of the marshall for the better enabling of a corporall vnto the discharge of his duty in this present colonie , iune the 22. 1611. the corporall is in grade and dignity aboue the priuate souldier , and therefore care ought to bee had in the choosing of this officer , for that it is an office of good account , and by neglect of this duty , many inconueniences may come vpon a camp , towne , or fort , therefore it is fit that hee surmount and excell his inferiors in valour , diligence and iudgment , and likewise in the practise and vse of all sorts of armes , whereby he may the better bee enabled to instruct and teach this squadron committed to his charge . the corporall ought ( hauing the third part of the company giuen him in command ) to sort and assist them in their quartering or lodging , to haue a care that they be cleane and sweet , and that their beds in the same bee laide three foote from the ground , hee is to carry a hand ouer their dye● , thriftinesse , and conuersation , and to aduise and instruct them at all times to demeane themselues as good christians ought to do , and to make report thereof vnto his captaine or chiefe officer , that from them they may receiue credit and estimation for good behauiour , and punishment and disgrace for their misdemenours . hee is to haue a speciall care of their armes to see them duly furnished and kept in order , and when the drum beateth to bee in a readinesse at the colonies ; and if any bee absent , hee shall make it knowne to his serjeant or superior officer . when he marcheth , hee is to lead a file , hee ought to bee daily conuersant with his little company committed vnto his charge , and the company beeing in the field , to lodge with them , and prouide to his power for their wants , and to instruct and teach them how to vse and handle the weapon they carry : likewise , to remember well how each one is armed and appointed when hee receiueth him into charge , then to see no part of his furniture or armes bee broken or spoiled , but to haue care that they bee preserued cleane and seruice-able . hee ought to haue a vigilant eye vpon the good behauiour of his company , not suffering them to vse any vnlawfull and prohibited games , nor that they giue them selues to excesse of drinking , surfitting and ryot , but that they bee conformable to all the martiall lawes : that they likewise make spare of their pay or victuals , the better to furnish themselues in comely and decent manner , with apparell and other necessaries fitte and requisite for them , wherein the corporall ought to vse his vtmost endeauour . in presence of his captaine , or superior officer , hee is to take vppon him no more then the condition of his office doth require , but diligently to attend and execute what they shall command , that his example may serue for a president to the rest of his squadron . at the setting of the watch hee is to see that they be furnished with poulder , bullet and match , and that their armes be seruiceable and soldier-like . if the company watch by squadrons , he and his squadron shall be brought by the serjeant vnto the place of watch , and from him receiue the word and directions , in what maner , and where he shall place his centinels , whether by day or night● which hee is to see performed . when the corporall with his squadron shall bee brought to the place where he and they shall watch , he and they must prouide eft-soones for wood for fyring vpon the guard , that beside for their owne comfort , they may haue fire ready alwayes vpon the guarde to light their match vpon any proffered occasion . hee is to cause silence to bee kept vppon the court of guard , and to gouerne the watch , so that the labour bee equally diuided of his squadron , either in watch , worke , or seruice , and to take care in all respects , that they performe the duties of good and honest soldiers . his centinels being placed , hee is to let none passe without the word , vnlesse it bee the captaine of the watch , or serjeant major , vnto whom ( after hee shall haue perfect knowledge of them , ) hee is to deliuer the word at their first round , but before the deliuery of the word , hee shall take the captaine of the watch and serjeant major alone within his guard , the corporall beeing accompanied with halfe a dozen of shot with match in cock , to haue an eye ouer the rest of the rounders that accompany the captaine of the watch or sarjeant major , and not to suffer the rounders to come within the centinell , & if at any time of the night after their first round , the serjeant maior or captaine of the watch shall goe their round , as it is their duties , then they are to giue the word to the corporal , vnlesse they mistrust the doubt the memory of any corporall : the corporall is not to goe out single to take the word of any round but to take two , or three , or more of his guard with him , and if it shal be a round of more then two , then hee shall ●●●w out all his men in his guard in their armes , the corporall shall at no time ( to receiue the word ) passe beyond the centinell , but make him that hath the word to come forward within the centinell , and shall cause the rest to stand without the centinell , and those that are out by the corporall for his guard shall keepe their eies and armes in a readinesse ouer him that is to giue or take the word of the corporall , vntill such time as the corporall be satisfied of him . he must make good his guard vntill he bee releiued the which hee shall the better doe if hee keepe his men together vpon the guard ; he must visite the centinels sometimes vnawares to them , and must be ready to go to them at the first call . hee shall put his men in armes two houres before the discharge of the watch , so to remayne one houre after . hee shall warne his centinells to make noe alarum but vpon iust cause , and then with as much silence as may be , and in like silence hee must aduertise the captaine of the watch , and the next guards vnto him , and so without notice or signe of contusiō from one guard vnto an other . if vpon his guard any of his soldiers shal misdemeane himselfe , or offend in any of the publique lawes , diuine , ciuill , or martiall , he shall bring him to his superior officer , then vpon the guard , that he may receiue punishment . his duty is to prouide that none of his squadron , be absent , when the drumme shall call to any labour , or worke , or at what time soeuer they shall be commanded there vnto for t●●●eruice of the collonie , in the performance of which said workes he is to be an example of the rest of his squadron by his owne labouring therein , and by encouraging and calling vpon others at any time negligent , idle and slothfull , that thereby giuing encoraging to his superior officers he may be held by them worthy of a higher place . hee must likewise receiue such instruments and tooles , as spades , shouels , axes , &c. imployed in the worke , from his sarjeant to dispose , and to deliuer the same vnto the labourers with all the care he may , to his vtmost , that none of them be broken , lost , or wilfully spoiled , without drawing the parties so breaking , loosing and wilfully spoyling the same into punishment ; and after the worke done he shall gather the said tooles in againe and re-deliuer them vp vnto his sargeant , all , and the same , who is to be accountable vnto the maister of the store vnto whose booke he hath vnderwritten for the receipt of them . and by reason he is well knowing of euery man in his squadron , and thereby cannot but misse the pretence of any man from any duty whatsoeuer , sooner then haply the superiour officers may , his care shall bee to attend his squadron to the vsuall workes and day-labours , and vnto frequent prayers , and the deuine seruice at all times , and vppon all the dayes in the weeke , giuing due notice vnto his superiour officer , of the neglect of eyther duties in their kinde ●hat reformation may follow . hee shall not suffer any gaming , heare any prophane lewd speeches , swearing , brawling , &c. or see any disorder whatsoeuer vppon his court of guard , or else-where , without present information giuen thereof vnto his superiour officer , that the offenders may bee duly punished . hee shall take notice of all bands and proclamations published by the generall , procuring a copie of the same from the prouost marshall , the same duly to bee read vnto his squadron , that they may bee made the perfecter in the knowledge of them , and thereby learne the better to forbeare the trespassing in forbidden things , remembring the penaltie of the same , and execute things commanded , considering the reward thereof , whether in campe , towne or forte , field or garrison . hee shall read , or cause to bee read , the souldiers dutye , euery time of his guarde in some conuenient time and place , during the same , thereby to remember them the better of their generall duties . instructions of the marshall for the better enabling of a priuat soldier , to the executing of his duty in this present colonie . iune 22. 1611. it is requisite that he who will enter into this function of a soldier , that he dedicate himselfe wholly for the planting and establishing of true religion , the honour of his prince , the safety of his country , and to learne the art which he prosesseth , which is in this place to hold warre , and the seruice requisite to the subsisting of a colonie : there be many men of meane descent , who haue this way attained to great dignity , credit , and honor . hauing thus dedicated himselfe with a constant resolution , he ought to be diligent , carefull , vigilant and obedient , and principaly to haue the feare of god , and his honor in greatest esteeme . in making choyse of his familiar accquaintance , let him haue care that they be of religious and honest conditions , not factious nor mutenous murmurers , nor euill languaged and worse disposed persons : his choyse beeing made he is to carry him selfe discreete , temperate , quiet and friendly , withholding himselfe from being to lauish of speech , for such as take liberty vnto themselues to talke licentiously , to slander , raile , and backbite others , do vsually make bankrout of their friends , of estimation , and of their owne peace and quiet of conscience . he must be carefull to serue god priuately and publiquely ; for all professions are therevnto tied , that carry hope with them to prosper , and none more highly then the souldier , for hee is euer in the mouth of death , and certainly hee that is thus religiously armed , fighteth more confidently and with greater courage , and is thereby protected through manifold dangers , and otherwise vnpreuentable euents . he must bee no blasphemer nor swearer , for such an one is contemptible to god and the world , and shall be assured to be found out and punished by the diuine iustice : whereof we haue instant examples . he must refraine from dicing , carding , and idle gaming : for common gamsters , although they may haue many good parts in them , yet commonly they are not esteemed according to their better qualities , but censured according to their worst , procuring enemies , questions , brawles , and a thousand following inconueniences . he must not set his minde ouer-greedily vpon his belly , and continuall feeding , but rest himselfe contented with such prouisions as may bee conueniently prouided , his owne labour purchase , or his meanes reach vnto : aboue all things he must eschew that detestable vice of drunkennesse ; for then a man is not apt nor good for any thing , and by that beastly disorder , many great armies haue miscarried , and much disquiet and tumults raised in campe , and ciuill townes , wherevpon doth fail the sword of iustice vpon their necks , which in that case they haue compelled to be drawne . chastitie is a vertue much commended in a souldier , when vncleanesse doth defile both body and soule , and makes a man stinke in the nostrils of god & man , and laieth him open to the malice & sword of his enemy , for commonly it makes a man effeminate , cowardly , lasie , and full of diseases , & surely such who haue vnlawful women stil trudging about with thē , or in whom custome hath taken away the sence of offending in that kind , commonly come to dishonorable ends . he is tyed in his entring or inrowling into any company , to take his oath of faithfulnesse , and sincere seruice to his prince , generall and captaine : to be conformable to the lawes prouided for the aduancement of the intended businesse , and for the cherishing of the good therein , and punishment of the euill . he must be true-hearted to his capt. and obey him and the rest of the officers of the campe , towne , or fort , with great respect , for by the very oath which he taketh hee doth binde himselfe and promise to serue his prince , and obey his officers : for the true order of warre is fitly resembled to true religion ordeined of god , which bindeth the souldier to obserue iustice , loyaltie , faith , constancie , patience , silence , and aboue all , obedience , through the which is easily obteined the perfection in armes , and is as a meanes to atchieue great enterprises , though neuer so difficult : certainly , who wanteth the vertue of obedience and patience , though neuer so valiant otherwise , yet is he vnworthy of the same name . a souldier must patiently suffer the aduersities and trauailes which do fall out in the courses and chances of warre : he must not be ouer-greedy , nor hasty of his pay , albeit he may stand in some want thereof , but must with a chearfull alacrity shew his constancy , auoyding by al possible meanes , rebellions and mutenies , which most vpon such pettish occasiones are runne into : by no meanes must hee bee a pertaker with such mutiners , for the end of such is sharpe and shamefull death . if in skirmishes incounters , or surprise of towne the enimies be vanquished , let him set all his care and diligence in execution of the victorie with his armes , & not in rifling and spoiling for trash , for so he shal be accounted an vnruly freebooter , beside innumerable are the disorders and mischefes which do happen by rauenous pillagers , many times to the dishoner of the action , and to the losse of their liues , therfore he shall pursue the victorie vntil the enimy be wholy ended & the place fully caried and possessed , the guards placed , and liberty granted from the chiefe commander to sack & spoile , wherein by any meanes let him auoid murther and crueltie , and violation of women , for those are odious to god and man , rather in such cases let him shew himselfe pittiful and mercifull vnto the vanquished , rather defending the sillie women and children then procuring their hurt and damage , for in so doing it will be right acceptable to god and his commanders . such armes as he is apointed to serue with , whither musket , caliuer or target , let him be very dilligent to vse all his industrie to excell in the vse of them , for therby he may conserue his owne life and his fellows , for the which purpose he shall call vpon his serjeant and his corporall to instruct him therein , vntill hee come vnto perfection . he must learne the seuerall sounds of the drumme , whereby hee may obey that which he is commanded ; for the drum often-times is the voice of the commander , hee shall carefully note and marke the signes made by the captaine and officers , without talking or pratling vnto his next companions : for that is vnbesitting a souldier , and makes him vncapable to heare what is giuen in command . in skirmishes and incounters he shal be resolute and valiant , for that souldier which is timorous and fearfull can neuer bring his heart to any hearty enterprise , nor dareth to attempt any hotte , bold , or audacious charge or seruice , by reason of his cowardly spirit and feare . hee must bee carefull to bee alwayes vigilant and ready , beeing placed for a centinell , or in the court of guard , where he shall not put of his armes , vntill hee haue leaue from the captaine : for therein consisteth the security of the campe , towne , or fort. hee shall doe well to keepe his fidelity vnspotted to his prince and generall , although his sufferings may bee intolerable and infinite , and shall not flye vnto the enemy : for to bee branded with infamie of a traytor is a fowle and odious offence , and rigourously punished among all nations , and neuer yet traitor came to good end ; of which we haue examples infinite . hee must not bee shifting from company to company , but serue in the company where hee first began , and if at any time hee shall depart for his preferment , let him demand the good liking of his captaine , who if hee shall denie it him in such a case , it shall bee imputed no offence in him to appeale vnto the generall or chiefe officer . at the sound of the drumme , for the setting of the watch with his arms being fix and seruiceable he shall repaire to his colours , and it shall be commendable in him by the way to call vpon his corporall , so that all the squadron meeting together at the corporals lodging may attend the corporall vnto the colours , and if he be vnprouided of munition he shall acquaint his corporall therewith , who shall see him furnished . when the company or squadron march to the guard he shall hold that order in which he was placed by his serjeant , marching in a comely and gracefull manner , and being armed at the place of guard he shall pose his armes according vnto the corporalls direction , and behaue himselfe in all his actions as befitting a religious soldier in that holy place of guard , without doing any act of prophanesse , disorder , or ought els , tending to the pollution of the same either in word or deed . when his corporall shall appoint him forth for centinell , he shall shoulder his peice , both ends of his match being alight , and his peice charged , and p●ined , and bullets in his mouth , there to stand with a carefull and waking eye , vntill such time as his corporall shall relieue him , and to let no man passe nor come vp to him , but to force him stand , and then to call his corporall . he must harken diligently and looke well about him from his place of centinell for the approch of any about the camp , towne , or fort , or the dich thereof , or if he heare any noyse , to call his corporall to aduertise him of the same . he must haue a speciall care that he sleepe not vpon his centinell , nor set his armes out of his hands : for therein he maketh himselfe subiect for any passenger by to take away his life , beside the generall inconuenience that may come vpon the camp , towne or fort. his corporall hauing releiued him and brought him to the guard , he shall do well to read the lawes and ordinances for the gouernment of the camp , towne , or fort , constituted and prescribed by the marshall , the better to enable his memory for the exact obseruance of those lawes whereby he shall not only auoyd the trespassing against the same , but also get the reputation of a well ordered and gouerned soldier . such gentlemen or others , as are appointed by their captaine for rounders , and approoued by the serjeant major or captaine of the watch , amongst them those rounders that are appointed to attend the captaine of the watch on his guard are to receiue their directions from him , as likewise those of the companies vpon the guards for their order of rounding , according to the time of the night in what hower they shal make their rounds , the rounders from the guard , from the captaine of the watch , are to visit the centinells , and courts of guards , making their rounds vpon the rampart , harkning and listening and looking ouer into the ditches , if they can heare or see , or discouer any troopes , or men neere the town , taking care besides that there be good watch kept both by the centinells , and vpon the court of guard , and if any noyse or tumult be neere the rampart , they may step downe and informe themselues of it , and bring the trespassers to the next guard , committing them there vntill after the round made they haue acquainted the capt. of the watch of such disorders . the rounds frō the ports are to round the streets to take in charge that no disorders , breaking vp , or fiering of houses of y c store , or roberies , magazin , riots or tumult in taphouses , or in the streetes , or in priuat houses at houres vntimely be committed , and the offenders to bring to the next guard , and to informe the captaine of the watch ; all rounders are to be subiect and obedient vnto the captaine of the watch and his commands during his time of watch . two houres before day he must be ready in arms with his peice charged & prouided , & a match a light at both ends and bullets in mouth , there to attend the command of the corporall vntill further directions be giuen , and at the time appoynted for the exercise of his armes , he shall be tractable and obedient to his officers executing such commands as they shall impose vpon him , that he may be the better trained and inhabled to offend his enemy , and to defend himselfe . he shal be carefull to obserue al words of command , postures and actions , according to the order of training published by the marshall . the exercise being ended and the prisewon and lost he shall pose his armes at the court of guard , and ther giue diligent atendance that he be at no time absent from his guard , aboue one houre , without leaue from his officer , and that not without leaue of his officer . the watch being relieued and he free from the guard he is to dispose of the rest of the time for his owne perticular vse vntill next morning at the discharge of the watch : when at the call of the drumme , he shall attend at his corporalls lodging ther to receiue such instrument , or toole as the busines of that day shall require , from whence he shall march to the place of armes or maine court of guard ; there to be disposed of by the captaine of the watch for that day seruice of the colonies , in which he shall doe his best indeauour like a painfull and industrious seruant of the colonies to discharge his duty for the furtherance of his worke , and incouragment of such who shall be the more stirred vp by his example of goodnes , to the imitation of the like : and thus doing , he shall giue cause vnto the generall , vnto his captaine , and chiefe officers , to take notice of his painfulnesse , who may according to his desert in time giue him aduancement for the same . he shall continue at his worke vntill the drumme beate , and that his captaine , his officers or ouerseers of the worke , giue order unto a cessation for the time , and for the same purpose attendeth to lead him in , whom he shall orderly and comely follow into the camp , towne or fort , by his said captaine , officer or ouerseer him meeting , to be conducted vnto the church to heare diuine seruice , after which he may repayre to his house or lodging to prepare for his dinner , and to repose him vntill the drumme shall call him forth againe in the afternoone , when so ( as before ) he shall acompany his chiefe officer vnto the field , or where els the work lieth , and there to follow his easie taske vntill againe the drumme beat to returne home : at which time according as in the forenoone , he shall follow his cheife officer vnto the church to heare diuine seruice and after dispose of himselfe as he shall best please , and as his owne businesse shall require ; with this caution carefully to preserue the toole or instrument with which he wrought to serue his turne againe the next day as he will answere the contrary vpon the perill prescribed concerning his order of march and carriage in the field when occasion shall present it selfe , he will easily acquire and learne the same by experience , prouided that he be carefull to march , ranke , and file , and not straggle , or be disobedient vnto proclamations of the general for therin consisteth the princicipall part of his duty , vntill when i leaue him with this caueat , that he diligently marke , consider and remember the orders , which the higher officers do obserue , in ordering their files and rankes , and surueying their squadrons of footmen , and to the placing of the great artillery in the march and setled campe , and the plot of the quartering , according to the disposition of the ground where the campe shall then be , with the manner of entrenching , placing of ordinances & guards for the defence of the same , that in the knowledge and execution of these duties , the generall hauing vnderstanding of his promptitude and diligence may conferre vpon him , and call him vnto place of preferment and commaund . that there be no neglect found in him , in his marching to the guard or field , and that in the same he doe not forget or leaue behinde him any peece or parcell of his armes appointed him by the marshall for his owne defence , or offence of the enemie . a praier duly said morning and euening vpon the court of guard , either by the captaine of the watch himselfe , or by some one of his principall officers . merciful father , and lord of heauen and earth , we come before thy presence to worship thée in calling vpon thy name , and giuing thankes vnto thée , and though our duties and our verie necessities call vs héereunto : yet we confesse our hearts to be so dull and vntoward , that vnlesse thou be mercifull to vs to teach vs how to pray , we shall not please thée , nor profit our selues in these duties . wée therefore most humbly beséech thée to raise vp our hearts with thy good spirit , and so to dispose vs to praier , that with true seruencie of heart , féeling of our wants , humblenesse of minde , and faith in thy gracious promises , we may present our suites acceptably vnto thée by our lord and sauiour iesus christ. and thou our father of al mercies , that hast called vs vnto thée , heare vs and pitie thy p●0re seruants , we haue indéed sinned wonderously against thée through our blindnesse of mind , prophanesse of spirit , hardnesse of heart , selfe loue , worldlinesse , carnall lusts , hypocrisie , pride , vanitie , vnthankfulnesse , infidelitie , and other our natiue corruptions , which being bred in vs , and with vs , haue defiled vs euen from the wombe , and vnto this day , and haue broken out as plague sores into innumerable transgressions of all thy holy lawes , ( the good waies whereof we haue wilfully declines ) & haue many times displeased thée , and our own consciences in chusing those things which thou hast most iustly & seuerely forbidden vs. and besides all this wee haue outstood the gracious time and m●anes of our conuersion , or at least not stooped and humbled our selues before thée , as wee ought , although we haue wanted none of those helpes , which thou vouchsafest vnto thy wandering children to fetch them home withall , for we haue had together with thy glorious workes , thy word calling vpon vs without , and thy spirit within , and haue béene solicited by promises , by threatnings , by blessings , by chastisings , & by examples , on all hands : and yet our corrupted spirits cannot become wise before thée , to humble themselues , and to take héede as we ought , and wish to do . wherefore o lord god , we do acknowledge thy patience to haue béene infinite and incomparable , in that thou hast béen able to hold thy hands frō reuenging thy self vpō vs thus long , & yet pleasest to hold open the doze of grace , that we might come in vnto thée and be saued . and now o blessed lord god , we are desirous to come vnto thée , how wretched soeuer in our selues , yea our very wretchednesse sends vs vnto thée : vnto thée with whō the fatherlesse , and he that hath no helper findeth mercy , we come to thée in thy sons name not daring to come in our owne : in his name that came for vs , we come to thée , in his ●●diation whom thou hast sent : in him o father , in whom thou hast professed thy selfe to be well pleased , we come vnto thée , and doe most humbly beséech thée to pittie vs , & to saue vs for thy mercies sake in him . o lord our god our sins haue not outbidden that bloud of thy holy son which speaks for our pardon , nor can they be so infinite , as thou art in thy mercies , & our hearts ( o god thou séest them , ) our hearts are desirous to haue peace with thée , and war with our lusts , and wish that they could melt before thée , and be dissolued into godly mourning for all that filth that hath gone through them . and defiled them . and our desires are now to serue and please thee , and our purposes to endeuour it more faithfully . we pray thée therefore for the lord iesus sake seale by in our consciences thy gracious pardon of all our sinnes past , and giue vs to féele the consolation of this grace shed abroad in our hearts for our eternall comfort and saluation : and that we may know this perswasion to be of thy spirit , and not of carnall presumption , ( blessed god ) let those graces of thy spirit , which doe accompany saluation , be powred out more plentifully vpon vs , encrease in vs all godly knowledge , faith , patience , temperance , méekenesse , wisedome , godlinesse , loue to thy saints and seruice , zeale of thy glory , iudgement to discerne the difference of good & ill , and things present which are temporary , and things to come which are eternall make vs yet at the last wise-hearted to lay vp our treasure in heauen , and so set our affections more vpon things that are aboue , where christ sits at thy right hand : and let all the vaine and transitory inticements of this poore life , appeare vnto vs as they are , that our hearts may no more be intangled and bewitched with the loue of them . o lord , o god , our god , thou hast dearely bought vs for thine owne selfe , giue vs so honest hearts as may be glad to ●éelt the possession of thine owne . and be thou so gracious , as yet to take them vp , though we haue desperately held thée out of them in times past , and dwell in vs , and raigne in vs by thy spirit , that we may be sure to raigne with thée in thy glorious kingdome , according to thy promise through him that hath purchased that inheritance for all that trust in him . and seeing thou doest so promise these graces to vs , as that thou requirest our industrie and diligence in the vse of such meanes as serue thereto ( good lord ) let vs not so crosse our praiers for grace , as not to séeke that by diligence , which we make shew to séeke by prayer , least our owne waied condemne vs of hypocrisie . stirre vs vp therefore ( o lord ) to the frequent vse of prayer , to reading , hearing , and meditating of thy holy word , teach vs to profit by the conuersation of thy people , and to be profitable in our owne , make vs wise to apprehend all oportunities of doing or receiuing spirituall good , strengthen vs with grace to obserue our hearts and waies , to containe them in good order , or to reduce them quickly , let vs neuer thinke any company so good as thine , nor any time so well spent , as that which is in thy seruice , and beautifying of thine image in our selues or others . particularly we pray thée open our eies to sée our naturall infirmities , and to discouer the aduantages which satan gets thereby . and giue vs care to striue most , where we are most assaulted and endamaged . and thou o god , that hast promised to blesse thine owne ordinances , blesse all things vnto vs , that we may grow in grace & in knowledge , and so may shine as light in this darke world , giuing good example to all men , and may in our time lie downe in peace of a good conscience , embaulmed with a good report , and may leaue thy blessings entailed vnto ours after vs for an inheritance . these o father , are our speciall suits , wherein wee beséech thee to set forth the wonderful riches of thy grace towards vs , as for this life , and the things thereof , we craue them of thée so farre as may be for our good , and thy glory , beséeching thée to prouide for vs as vnto this day in mercy . and when thou wilt humble or exalt vs , gouerne vs so long , and so farre in all conditions and changes , as we may cleane fast vnto thee our god vnchangeably , esteeming thée our portion , & sufficiēt inheritance for euermore . now what graces we craue for our selues , which are here before thy presence , we humbly begge for all those that belong vnto vs , and that by dutie or promise wee owe our praiers vnto , beséeching thée to be as gracious vnto them , as vnto our own souls , and specially to such of them , as in respect of any present affliction or temptation may be in speciall néede of some more spéedie helpe or comfort from thy mighty hand . yea our lord god we humbly desire to blesse with our praiers the whole church more specially our nation , and therein the kings maiestie our soueraigne , his quéene and royall seede , with all that be in authoritie vnder him , beséeching thée to follow him and them with those blessings of thy protectiō and direction , which may preserue them safe from the malice of the world , and of satan , and may yeeld them in their great places faithfull to thée for the good of thy people , and their owne eternall happinesse and honour . we beséech thee to furnish the churches with faithfull and fruitfull ministers , and to blesse their liues and labours for those mercifull vses , to which thou hast ordained them , sanctifie thy people o god , and let them not deceiue themselues with a formalitie of religion instéed of the power thereof , giue them grace to profit both by those fauours , and by those chasticements which thou hast sent successiuely or miredly amongst them . and lord represse that rage of sinne , and prophanesse in all christian states wh●●h bréeds so much apostacy and defection , threatning the taking away of this light from them : confound thou o god all the counsel and practises of satan and his ministers , which are or shall be taken vp against thée , and the kingdome of thy deare sonne . and call in the iewes together with the fulnesse of the gentiles , that thy name may be glorious in al the world , the daies of iniquity may come to an end , and we with all thine elect people may come to sée thy face in glorie , and be filled with the light thereof for euermore . and now o lord of mercie , o father of the spirits of all flesh , looke in mercie vpon the gentiles , who yet know thée not , o gracious god be mercifull to vs , and blesse vs , and not vs alone , but let thy waies be knowne vpon earth , & thy sauing health amongst all nations : we praise thée , and we blesse thée : but let the people praiss thée o god , yea let all the people praise thée , and let these ends of the world remember themselues and turne to thée the god of their saluation . and séeing thou hast honoured vs to choose vs out to heare thy name vnto the gentiles : we therefore beséech thee to blesse vs , and this our plantation , which we and our nation haue begun in thy feare , & for thy glory . we know o lord , we haue the diuel & all the gates of hel against vs , but if thou o lord be on our side , we care not who be against vs. o therfore vouchsafe to be our god , & let vs be a part and portion of thy plople , cōfirme thy cauenāt of grace & mercy with vs , which thou hast made to thy church in christ iesus . and seeing lord the highest end of our plantation here , is to set vp the standard , & display the banner of iesus christ , euē here where satans throne is lord , let our labor be blessed in laboring the conuersiō of the heathē . and because thou vsest not to work such mighty works by vnholy means , lord sanctifie our spirits , & giue vs holy harts , that so we may be thy instrumēts in this most glorious work : lord inspire our souls with thy grace , kindle in vs zeale of thy glory : fill our harts with thy feare , & our tongues with thy praise , furnish vs all from the highest to the lowest with all gifts & graces néedful not onely for our saluation , but for the discharge of our duties in our seuerall places , adorne vs with the garments of iustice , mercy , loue , pitie , faithfulnesse , humility , & all vertues , & teach vs to abhor all vice , that our lights may so shine before these heathen , that they may sée our good works , & so be brought to glorifie thée our heauenly father . and seeing lord we professe our selues thy seruants , & are about thy worke , lord blesse vs , arme vs against difficulties , strength vs against all base thoughts & temptations , that may make vs looke backe againe . and séeing by thy motion & work in our harts , we haue left our warme nests at home , & put our liues into our hands principally to honour thy name , & aduance the kingdome of thy son , lord giue vs leaue to commit our liues into thy hands : let thy angels be about vs , & let vs be as angels of god sent to this people . and so blesse vs lord , & so prosper all our procéedings , that the heathen may neuer say vnto vs , where is now your god : their idols are not so good as siluer & gold , but lead & copper , & the works of their own hands . but thou iehouah art our god , & we are y e works of thy hands : o then let dagon fall before thy arke , let satan be confounded at thy presence , & let the heathen sée it & be ashamed , that they may séeke thy face , for their god is not as our god , thēselues being iudges . arise therfore o lord , & let thine enemies be scattered , & let them that hate thée ●lie before thée : as the smoke vanisheth , so let satan & his delusions come to nought & as war melteth before the fire , so let wickednes , superstitiō , ignorance & idolatry perish at y e presēce of thée our god. and wheras we haue by vndertaking this plantatiō vndergone the reproofs of the base world , insomuch as many of our owne brethren laugh vs to scorne , o lord we pray thée fortiffe vs against this temptation : let sanballat , & tobias , papists & players , & such other amonits & horonits the scum ● dregs of the earth , let thē morke such as helpe to build vp the wals of ierusalem , and they that be filthy , let thē be filthy still , & let such swine still wallow in their mire , but let not y e rod of the wicked sal vpō the lot of the righteous , let not them put forth their hands to such vanity , but let them that feare thée , reioyce & be glad in thée , & let them know , that it is thou o lord , that raignest in england , & vnto the ends of the world . and séeing this work must néeds expose vs to many miseries , & dangers of soule & bodie , by land & sea . o lord we earnestly beseech thee to receiue vs into thy fauour & protection , descr●● vs from the delusions of the diuel , the malice of the heathē , the inuasions of our enemies , & mutinies & dissentions of our own people , knit our hearts altogether in faith & feare of thee , & loue one to another giue vs patience , wisedome & constancy to goe on through all difficulties & temptations , til this blessed work be accomplished , for the honour of thy name , & glory of the gospel of iesus christ : that when the heathē do know thée to be their god , and iesus christ to be their saluation , they may say , blessed be the king & prince of england , & blessed be the english nation , and blessed for euer be the most high god , possessor of heauen & earth ▪ that sent them amongst vs : and heere o lord we do vpon the knees of our harts offer thee the sacrifice of praise & thanksgiuing , for that thou hast moued our harts to vndertake the performance of this blessed work , with the hazard of our person and the hearts of so many hundreds of our nation to assist it with meanes & prouision , and with their holy praiers , lord looke mercifully vpon them all , and for that portion of their substance which they willingly offer for thy honour & seruice in this action , recompence it to them and theirs , and reward it seuen fold into their bosomes with better blessings : lord blesse england our sweet natiue countrey , saue it from popery , this land scour heathenisme , & both from atheisme . and lord heate their praiers for vs , and vs for them , and christ iesus our glorious mediator for vs all . amen . regula vitæ the rule of the law vnder the gospel. containing a discovery of the pestiferous sect of libertines, antinomians, and sonnes of belial, lately sprung up both to destroy the law, and disturbe the faith of the gospell: wherein is manifestly proved, that god seeth sinne in iustified persons. by thomas taylor dr. of divinity, and pastour of s. mary aldermanbury, london. taylor, thomas, 1576-1632. 1631 approx. 242 kb of xml-encoded text transcribed from 142 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2004-11 (eebo-tcp phase 1). a13556 stc 23851 estc s118279 99853486 99853486 18870 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a13556) transcribed from: (early english books online ; image set 18870) images scanned from microfilm: (early english books, 1475-1640 ; 1223:2) regula vitæ the rule of the law vnder the gospel. containing a discovery of the pestiferous sect of libertines, antinomians, and sonnes of belial, lately sprung up both to destroy the law, and disturbe the faith of the gospell: wherein is manifestly proved, that god seeth sinne in iustified persons. by thomas taylor dr. of divinity, and pastour of s. mary aldermanbury, london. taylor, thomas, 1576-1632. [22], 234, [6] p. by w[illiam] i[ones] for robert dawlman at the brazen serpent in paules churchyard, imprinted at london : 1631. printer's name from stc. the last three leaves are blank. reproduction of the original in the henry e. huntington library and art gallery. p. 25-26 mutilated; p. 20-45 from the union theological seminary (new york, n.y.). library copy filmed at end. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law and gospel -early works to 1800. 2004-07 tcp assigned for keying and markup 2004-07 aptara keyed and coded from proquest page images 2004-08 john latta sampled and proofread 2004-08 john latta text and markup reviewed and edited 2004-10 pfs batch review (qc) and xml conversion regula vitae , the rvle of the law vnder the gospel . containing a discovery of the pestiferous sect of libertines , antinomians , and sonnes of belial , lately sprung up both to destroy the law , and disturbe the faith of the gospell : wherein is manifestly proved , that god seeth sinne in iustified persons . by thomas taylor dr. of divinity , and pastour of s. mary aldermanbury , london . numb . 12. 8. wherefore were ye not afraid to speake against my servant moses ? imprinted at london by w. i. for robert dawlman at the brazen serpent in paules churchyard : 1631. the preface to the godly reader . what mr. luther in his last sermon at wittenberg observed , and foretolde , we see in these our dayes fully performed and accomplished : hee had observed thirty severall sects , and sectaries , raised up by satan in his time against that holy doctrine preached by himselfe ; all which had hee not beene able by the scriptures to have resisted , and refuted , he must have beene ( as himselfe said ) of thirty severall religions . among them he mentioneth the anabaptists , antinomists , libertines , servitians , &c. of all whom he foretold , that though now they ( saith hee ) by the power of the word , and by the vigilancy of godly teachers lye close and still ; yet will they be intent , and ready on all occasions to rise , and raise up their damnable errours to disturbe the peace of the church , and the prosperity of the gospel . and indeede accordingly have we observed the church of god in all times since , lesse or more infested with these dangerous sectaries , i meane the libertines , the professed enemies to the law of god , and to the holy obedience of it . against whom as st. augustine in his time wrote two books against the adversaries of the law : so mr. calvin dealt worthily in his time , in his booke intituled , against the furious sect of the libertines : and many other godly men since that time . let not us be offended that the spawne and succession of those lewd libertine sectaries are now issued forth in troopes amongst us , nor marvaile that the hatred of gods most righteous law prevaileth amongst a rude multitude , the sonnes of belial ; whom mr. calvin calleth a prodigious and belluine sect , furious and madded in their opinions , and fierce as unbroken coltes against whosoever would curbe them , and straiten the reines of their unbridled licentiousnesse . but rather let us observe , 1. satans malice in sowing tares where good seede was sowne , and that in the lords field . 2. gods just permission of so many schismes as tares rising with the graine ; and therein revenging the contempt and disobedience of his word , he hath sent strong delusions , that many should believe lies , who received not the truth in the love of it . 3. the levity , wantonnes , and instability of unsetled gospellers , that are in every new fashion of opinion , with every new man that hath the tricke of molding novell conceits against received truthes ; that if thirty new-minted fansies should rise up in their age , they were like enough to be of thirty religions , and of every last praise god , that the truth was never truly preached till now . 4. let us excite our selves to the love of truth , to the hatred of errour , and to the fencing of our selves against seducers ; importuning in serious invocation the god of truth , not to punish our wantonnesse in profession , with taking the word of truth utterly from us : and thus shall we temper poyson to a remedy , and turne that to an help which the enemy intends for our hurt . for the setling of mine owne people ( some of them looking that way ) i delivered lately some grounds , both to enforce the rule of the law upon the regenerate , as also to refute the contrary errour of our new audacious antinomists , and libertines , and famelists , who as the olde manichees and marcionists , abolish the whole law , and that wholly . one preacheth , that the whole law since christs death is wholly abrogated , and abolished . another , that the whole law was fulfilled by christ 1600 yeares agoe , and we have nothing to doe with that . another , that to teach obedience to the law of god , is to teach popery , and to leade men into a dead faith . another , that to doe any thing because god commands us , or to forbeare any thing because god forbids us , is a signe of a morall man , and of a dead and unsound christian. and upon these hollow and deceitfull grounds doe these masters of errour bottome a number other ridiculous conceits , which yet they deliver as oracles , and anathematize whosoever shall not so receive them . as 1. that the law being abolished to the justified , god can see no sinne in them ; for hee can see no law transgressed . 2. that the regenerate cannot sinne ; for where is no law , is no transgression : according to that luciferian principle rife among them , be in christ , and sinne if thou canst . 3. that being in christ , they are christed with christ , as pure as christ , as perfect as christ , as farre beyond the law as christ himselfe : the right brood and spawne of the olde catharists and puritans . 4. that the law is not to bee taught in the church , and they are legall preachers that doe so , and preach not christ. 5. they hence disclaime all obedience to the law , and raile at the precepts and practise of sanctification , as good for nothing , but to carry men to hell ; and cry out on the ministers as popish , and as having monks in their bellies , who set men on working , and doing , and walking holily . 6. they renounce and reject all humility , confession and sorrow for sinne , they scorne fasting and prayer , as the seeking not of god , but of our selves . one saith , that neither our omissions , nor commissions should grieve us : and another , neither doe my good deedes rejoyce mee , nor my bad deedes grieve mee . they deride and flout the exercise of repentance and mortification , and upbraid such as walke humbly before god. what say they ? will you repent all your dayes ? and , you cannot sinne , but you must repent an whole fortnight after . nay they are set upon so merry a pin , as they can thinke of their former sinnes with merriment . i am glad of my sinne ( saith one ) because it hath drawne me to christ : and why doest thou not mourne that by those sinnes thou hast pierced christ ? 7. they reject the saboth as iewish wholly abrogated with all other commandements ; as one of them professed , that were it not for offence of men , he would labour in his calling on that day as well as any other . these with many other consequents of the same stampe , all tending to loose the conscience from all awe of god , from all care of duty , from all feare of sinne , and judgement to come , ( though they walke in all licentiousnesse , and prodigious courses ) are such as a right bred christian cannot but tremble at ; and were there but a few droppes of modest blood in their veines , the masters of such lewd and libertine opinions could not but blush at : who cannot answer before god ( without a sea of teares of tim●ly repentance ) the mis●●a●ling of simple men ( and women especially ) into such desperate wayes . my intention being onely to propound the grounds of naked truth , ( which as a right line is the rule of it selfe , and of that which is crooked ) and that to my owne , in my owne plaine and ordinary manner ; it was farre from my thought to make my labour more publicke , till partly the scorne and insolency of these schismaticall spirits on the one hand , and partly the importunity of many godly both ministers and private persons thrust mee into a second survey , and review of what i had delivered . they said they knew some drawne off their opinions by hearing the doctrine preached ; and doubted not but if it were made more publicke , it would be much more usefull to the church , especially seeing these seducers creepe into such corners of the citty and country , where are weakest meanes of resistance , whose strongest hopes and holdes lie in the ignorance and too credulous simplicity of their proselites . i made many objections to my self , some to them : i knew this argument soundly and judicially handled already by others ; that it might more profitably and sufficiently be undertaken by some other better furnished with gifts and leisure : how little i could expect the satisfaction of others in an argument of this moment , who in the throng of businesse , and burden of many weekly exercises , could scarce gaine thoughts or time to satisfie my selfe : how unsafe to thrust into a publicke quarrell : how importune and lawles the adversaries , who holde not themselves countable to god , for any wrong they doe unto man. but yet persuaded to deny my selfe for the service of god and his church , and that the seasonablenesse of the treatise might adde an advantage unto it , and that it might be some stay to the teachable untill a more elaborate , and compleate worke might by some other be prepared : i yeelded unto the publication of that little which i had done ; animating my selfe with the same arguments that wise and prudent generalls use to encourage and hearten their souldiers withall , when they are to joyne issue with the approaching enemy : and they be foure . 1. the goodnesse and justice of the cause , which is just , and honourable ; for we take part with god , and fight his battell in the quarrell of his most righteous law. 2. the victory is easie and certaine , unlesse god and his law can be conquered : and who ever rose up against god and prospered ? 3. the quality of the adversaries must adde courage unto us , christians in name , but siding , and sorting with the damnable heretickes of ancient times : of whom i will not speake what they are worthy to heare , but what i may with judgement write , and whom the sequell discourse will shew to be of proud , furious , and audacious spirits . 4. the assurance of divine assistance : for are the adversaries such ? certainly then is their strength gone : god's spirit is gone from them , for he teacheth the humble , and sendeth the proud empty away . they pretend the spirit , and outboast all men , that they are taught , and led , and moved by the spirit , and are past all motives and persuasions of man or meanes : but god's spirit is a soft , sober , calme and quiet spirit , both in christ the head , and in all his members : and that furious , factious , railing and quarrelsome spirit of theirs , is that uncleane spirit of satan , usually breathed into hetickes and enemies of the truth , and of the spirit of truth : by whose onely assistance wee shall shape them ( not as they say in scorne , a garment after our owne fashion ) but such an answer out of the scriptures , as shall not hide their nakednesse , but uncover their ignorance , emptinesse and folly , and vindicate the holy law of god from their schismaticall cavills , and hereticall contempt . and why not ? for doe we exclaime against the papists for blotting out the second commandement , as sacrilegious persons ? and against the anabaptists for denying the fifth ? and shall we be silent at these sectaries , whose blindnesse hath made them bolde to blot out all the ten at once ? which although they were writen with god's owne finger , and that in tables of stone , yet these mad men presume their nailes so steeled , as that they can scratch them out all at once , and yet god see no sin in them . i shall speake unto them all along the treatise ; and now will onely desire of them , or rather of god for them these two things : first , that my reproofe may be a medicine unto them ; at least if it be conceived a wound , yet not of an enemy , but of one that out of love desireth to leave them a testimony of faithfulnesse : and the other is , that the lord would worke in them a timely change both of opinion & practise ; so as they may no longer turne the grace of god into wantonnesse and liberty , but get out of this snare of the divel , wherein they are held to doe his will , ● who in every thing opposeth , and resisteth the righteous will of god re●vealed . but to you that are desirous to walke in the olde and good way , and are not yet infected with this spreading gangrene of licentiousnesse , i shall be bolde to give some advise for prevention . as 1. to looke carefully to your precious soules , which satan many wayes beleaguereth : let not pretences of faith in christ loose you from duty towards god ; catch not at ease , or presposterous and overtimely comforts , wherein the impostour hath you at advantage . 2. looke well to your estates , and outward meanes , lest these impostours make a prey , and advantage on you , as they have done on some already , who have confessed that these pedlars have basely inveagled from them even to the very cushions of their windowes : for the apostle observed not in vain , that through covetousnesse they make merchandise of unwary soules . 3. suspect such men as come with a strange language , and unwonted phrases and manner of speaking : for errour is a fruitfull mother , yet is she ashamed of her brood , and is willing to cover and apparell them with philosophicall and metaphysicall phrases ; and so these men are willing we should seek out the brats of their owne braine , in the bushes and thickets of intricate discourses , and in the meanders and laborinths of uncouth language , wherein they desire to be admired , rather than understood : not unlike their predecessours in calvins time , of whom hee saith , that they were like gipsees , that had gotten a cheating , and canting language proper to themselves ; and this is one of the first principles of their cousening trade . surely the ministery of christ , and his apostles , and of all godly teachers , is to cast off all cloakes of shame , and to walke not in craftinesse , neither to handle the word of god deceitfully ; but in declaration of the truth , to approve themselves to every mans conscience in the sight of god. these cleane contrary studie how to involve things in darknesse , and to obscure and extinguish ( if they could ) the light , and devise to speake as in the riddles and oracles of old , in ambiguous , and new-minted phrases of their owne ; as if the phrase and expressions of the scriptures were onely to be rejected in opening of the mysteries of scriptures . but leaving these bolde impostours to set the holy ghost to schoole to teach him to speake , wee acknowledge wee have not onely a rule of doctrine prescribed us in the scriptures , but also a rule of speaking , unto which we must frame our selves ; and utter wholesome doctrine , in wholesome words , and words of understanding : and all other lofty , arrogant , and subtle manner of speaking , so as that which is uttered cannot be well understood , the apostle rejects it as an idle beating of the ayre . 4. nourish the grace of humility , for god teacheth the humble : beware of curiosity and affectation of novelties ; be wise to sobriety , and thinke it an high wisedome to be established in ancient and received truthes . the ficklenesse of hearers , and unsetlednesse in the grounds of holy truth , together with the wantonnesse of opinions , have opened a wide doore to impostours : and while for want of judgement men are ready with salomons foole to beleeve every thing , all the labour and diligence of able and godly ministers is too weake , to keepe multitudes from running after the ministers of satan , furnished with all arts to deceive , and to cheate them of the truth which is according to godlinesse . against whom while i endeavour to establish others , i may seeme to forget my selfe , and that i must incurre many censures and contempts from this lawlesse generation of men ; but my labour is with the lord , and my reward is my conscience of well-doing : i shall contemne their contempt , love their persons , hate their errours , and studie while i am , to be as serviceable to the church , and the faith once given to the saints , as i can . chap. 1. containing the ground of the following discourse and dispute , out of rom. 6. 14. for ye are not under the law. in the words of the apostle are to be enquired , 1. what is meant by the law : namely , the morall law in the ten commandements , containing our whole duty to god , and to our neighbour . 2. what it is to be under the law : namely , not under the rule and obedience of the law , for our apostle looseth no christian from that ; but christians are not under the raigne of the law , by the raigne of which , sinne raigneth unto death . this being the apostles reason , that the raigne of the law , puts them under the reign of sin . 3. who are these that are not under the law ? yee : that is , beleevers , justified and sanctified persons , that are dead to sinne , and alive unto god in iesus christ our lord , verse 11. and onely these , seeing the naturall man is yet in his sinnes , and under the whole power of the law in the rigour and extremity of it . rom : 7. 6. we are delivered from the law , being dead unto it wherein we were holden . but who are these ? those that serve in newnesse of spirit , not in oldnesse of letter ; that is , which now serve god in a new spirituall manner , excited and wrought by the spirit ; and not according to the olde corruption of our nature before grace , nor according to the externall letter of the law , which onely breedeth externall actions . and that it is the priviledge of beleevers appeareth by these reasons . 1. because christ was made under the law , to redeeme those that were under the law , that we might receive the adoption of sonnes , galat. 4. 4. the reason is good ; christ was under the law , therefore christians beleeving are not under it ; and , christians are redeemed from being under the law , and therfore are no longer under it . 2. as many as are under the law , are under the curse . but it is the priviledge of beleevers , not to be under the curse ; for they that are of the faith of abraham , are blessed with faithfull abraham . therefore they are not under the law. 3. it is the priviledge of beleevers , to receive the spirit of christ. rom. 8. 14. as many as are christs , are led by the spirit of christ : and therfore they are not under the law. gal. 5. 18. if yee be led by the spirit , yee are not under the law . 4. it is the priviledge of beleevers to have eternall life , and the inheritance , by promise , and not by the tenour of the law ; and therefore all they , and only they are free from being under the law. gal. 3. 18. if the inheritance be by the law , it is no more by promise . but god gave it to abraham by the promise . were beleevers under the law , they should have the inheritance by the law : but they have it not by the law , but by promise ; and therefore are not under the law. for the law and the promise in the cause of righteousnesse , and life , will not be agreed , no more than light and darknesse , fire and water , whose natures are most abhorring . quest. but what or wherein is this priviledge of not being under the law ? answ. this priviledge will appeare the clearer , if we consider the danger of being under the law , in foure things . first , in that the law wrappeth every sinner in the curse of god , both in this life , as also in the life to come ; so as hee is no where secure , but lyeth naked to the curse meeting him at every corner . the law is a thunderbolt to blast him in his person , in his estate , in his name , in his goods , in his calling , in his comforts , in all his enterprises , and occasions ; the sentence is passed upon him , and where ever he is , hee is in the way to execution . it would daunt , and astonish the hardiest , and stoniest heart , to heare the sentence of death pronounced upon it for violating the law of his prince and country . it would marre all his merriments to conceive hee were presently to suffer but a temporall death for offending the law of man. and it would much more spoyle the pleasure of sin , if the sinner could with an hearing eare , heare the sentence of eternall death denounced by the law , against soule and body , for violating the righteous law of the eternall god. if an house were ready to fall upon a mans head , how would hee bestirre himselfe , and winde every way to hye himselfe out of the danger . but the burden of the law is more intollerable than the weight of all the sands , and mountaines in the world ; and this oppressing weight is ready to fall on the head of every sinner : which how should it amaze , and affright them , and make them restlesse , till they bee gotten without the reach of the danger . 2. the law in the raigne of it shuts up heaven , ( which receives no trangressour ) and setteth the gate of hell wide open upon the sinner ; and not onely casteth him into hell hereafter , but bringeth an hell into his conscience before hell ; that if his heart be not dead within him as nabals , it is restlesse as the raging sea , tormenting him for the present with hellish feares , dreadfull horrours , and selfe-accusing ; the biting and gnawing of which worme is the very entrance into hell , and a beginning of the eternall torments of it : for the avoiding whereof many wicked men have chosen death , and hastned their owne execution , as farre more sufferable and easie . 3. the law in the raigne of it , thrusts the sinner under the power of the divell , as a condemned malefactour into the hand of the executioner , to be ruled at his will. now must hee blinde his eyes , and as it were by an handkerchiefe over his eyes , hee must pinion him , and binde him hand and foote , and by effectuall delusions prepare him to his death . and what is more just , than that he who will not be led by the spirit of god , should be given up to be ruled by the divell . 4. the law in the raigne of it , addeth a sting , and sharpneth the point of all afflictions , which by it become the beginning of hell , and properly curses ; retaining their naturall acrimony and poyson ; and are as the red sea , even a well , and a devouring gulfe to drowne the egyptians , which same sea is a wall and paved way to save the israelites . it armeth all gods creatures against the sinner , who are ready in their severall rankes to revenge their lords quarrell , till he enter into that new covenant ; of which see hosea 2. 18. it is the law that makes death a doore to hell , and a downefall to eternall perdition : the law is mercilesse , and knoweth no other condition , but doe or die : so as if a man dye under the law , there is no expectation but of death without mercy . quest. 2. but how may a man get from under this dangerous estate ? answ. by the attaining and exercise of three saving graces . first , faith in the son of god ; which 1 apprehendeth christs righteousnesse for the fulfilling of the law. 2. faith establisheth the law ; both because it attaineth in christ remission of sinnes , and so remission of the rigour of the law , as also an imputation of that full righteousnesse which the law requireth . 3. faith is the law of christ , by obedience of which law every beleever must live , and is answerable to the obedience of the whole law. the second grace is repentance , and timely turning unto god ; this helpeth a man from under this danger . 1. in that it flyeth from the dreadfull sentence of the law , and knocketh at the gate of mercy ; it seeks and sues for pardon , and will not give over , till it have got a gracious answer , that all the sins are remitted . 2. in that it wipes off all old scores , repealeth all the actions of the law , getteth all sinnes cast into the bottome of the sea , never to be remembred any more : nay it gett●●● not onely sinnes 〈◊〉 , but ●ven the law it selfe 〈…〉 ●ort buried to the penitent person : as moses body , and is unknowne where it was laid . the third grace is new and inchoate obedience to the law , which is a kinde of fulfilling it . for 1. it is a worke of the spirit in the regenerate , who hath written the law in their hearts , and made them of rebells and enemies to the law , and the righteousnes of it , lovers of the law , and lovers of obedience . 2. it hath the promise of acceptance , and is accounted as full and compleat obedience to the law : and themselves now called perfect and undefiled in the way . god looketh not now on their obedience as theirs , but as on his owne worke in them , nor approveth the person for the work , but the work for the person . quest. 3. how may we know a man gotten from under this da●ger of the law ? answ. by sundry notes or markes . first , by subjection to the gospel in the power of it ; when a man contenteth not himselfe with a title of faith , or a shew of profession , or a forme of godlinesse , or a name that he liveth ; but groweth in the knowledge and obedience of the gospell : for would a man be saved , and obey neither the law nor gospell ? no , no , the apostle concludeth him under the whole power of the law , that knoweth not , nor obeyeth the gospel of christ , 2 thes : 1. 8. 2. by thankefull walking worthy of the gospel : this man knoweth that all the regenerate are gods workmanship ; and that the end of all our freedome from sinne , is the free and cheerefull praise of god : and therefore he cannot but be thankfull to christ his deliverer from under so hard and cruell a master as the law , which did nothing but accuse , accurse , terrify and condemne him : now will he highly prize his freedome , and glory in his happy liberty : now will he live to christ , and for christ ; and ascribe all his happinesse unto him , as doth the apostle for that happy victory over sinne and the law , 1 cor : 15. last : and rom : 7. 24 , 25. 3. there is now peace of conscience , which formerly ( if waking ) did bite and sting ; but now excuseth and acquitteth . i meane not here a sencelesse or brawny conscience , the issue of a dead conscience ; which like a dead man , lay him under a church or mountaine , he is quiet , feeleth nothing , complaines of nothing : so lay the secure sinner under the intolerable burden of innumerable sinnes , his conscience is quiet , and complaineth not . but this peace followeth not from unfeelingnesse , but from feeling sin pardoned , from perceiving sin subdued , and from discerning sinne repented of , striven against and conquered : for the spirit of grace is ever a spirit of mourning , and from that sowing in teares ariseth the harvest of joy . 4. hee that is got from under the law is now a law to himselfe , that is , he willingly submitteth himselfe to the rule and obedience of the law : the way to escape the yoake and coaction of the law is to become a free and cheerfull observer of the law. which standeth in three things . 1. in a care to doe the duties which the law requireth , and in such manner as the law doth require , so neare as we can , psal : 119. 6. rom : 7. 22. 2. in huhumility and griefe that we are so short of the law in our best duties ; that when wee have done all we can , we are so unprofitable , and that even all our righteousnesse is as a stained clout . 3. and all this out of love of god , and of obedience , not for feare of hell or judgement : whence gods people are called a willing people . psal : 110. 4. this must every beleever aime at ; for hee that willingly liveth in the breach of the law is certainly under the curse of it . 5. a man gotten from under the law , giveth up himselfe to the leading of the spirit : gal : 5. 18. if yee be led by the spirit , yee are not under the law. now to be led by the spirit is , 1. to suffer the spirit of god to guide the minde , with knowledge , for he being the spirit of illumination , his office is to lead the saints into all ●●uth . 2. to allow him to carry and order the heart , will , and affections with cheerfulnesse , and constancy in all good duties , whence hee is called a free spirit , not onely because he worketh in himselfe freely , and as the wind bloweth where he will ; but from his powerfull effect in the saints , who by his strong and mighty gales are caried strongly in their motions of grace and obedience . this finde and challendge thy freedome from under the law. but if the spirit that rules in the world guide the course , or satan carrie a man into the foule lusts of uncleannesse , worldlinesse , voluptuousnesse , malice , or the like , as the swine into the lake ; this man is under the whole curse and raigne of the law , because he is under the power and reigne of his sinne . 6. there is joy and thankfulnesse for others freedome as for a mans owne : he that is truly converted is unfeignedly glad for the worke of gods grace in others , rom. 6. 17. god be thanked that yee have beene the servants of sinne , but now ye have obeyed the forme of doctrine , &c. eph. 1. 5. phil. 1. 5. a godly pastour with paul wisheth all as himselfe , except his bonds . a godly parent will rejoyce to see his children to walk in the truth . a father or husband cannot content himselfe with his owne safety from a deadly danger , and see his wife and children left in it still . a godly master as ioshua will have all his house serve the lord with himselfe , and will not endure in his family , a wicked servant , a vassall , and slave to the divell , and sinne ; but will pull him out of the fire or water , or turne him out of doores : yea every sinner converted himselfe , wil strengthen the brethren , as peter , and david , psal : 51. 13. by these notes may a man try and discerne whether he be yet under the law or not . chap. 2. explaining the apostle , and shewing how farre the beleever is from under the law. having shewed that it is the priviledge of justified persons not to be under the law ; we are now in the next place to limit this proposition of the apostle within his own bounds ; which ancient bounds while our libertines remove or break downe , they open a sluce or floodgate unto all loosnes and licentiousnes , both of opinion , and practise . for the right understanding of our apostles meaning , we must consider the law two wayes . first , in the substance of it : or , secondly , in the circumstances or appendices belonging unto it . the substance of the law standeth in five things . 1. the law in the substance of it , is an eternall doctrine , shewing what is good , what is evill , never changed , never abolished , never abrogated , ( no not by christ ) but is as a beame from an eternall sunne ; and the sunne being eternall , how can the beame but be so also ? and thus beleevers are still under the teaching of it ; without which no man can know what god is , nor what is his worship , nor what is the manner of his worshipp , nor what duties wee are to performe , nor how to performe them , either to himselfe , or to our brethren . 2. the law in the substance of it , is a revealer of sinne . rom. 3. 19. by the law commeth the knowledge of sinne ; and every sinner , yea even beleevers are still under the rebuke of it , so long as in many things they offend all , and stand in need of the law , both to worke them to humility and repentance after new sinnes committed , to worke them to a feare and reverent awe of god , and to drive them out of themselves unto christ , for recovery out of their daily infirmities ; for were there no law , there were no transgression , nor discovery of it , rom. 4. 15. 3. the law in the substance of it is a rule of good life , and as the gospell teacheth how to beleeve , so the law teacheth how to live : the law is as the touchstone to try what is gold in us , and what is drosse ; it is as the line and plummet to shew what is straight , and what is crooked : and thus is under the direction of it both for matter and manner of all actions which please or displease god. for as the law civill is the rule of civill life , so gods law is the rule of godly life : and as a good workman that is master of his trade , will have his rule ever at his back , or in his hand , to measure every peece of his worke , that it may stand levell and square ; so even the beleever hath as continuall need of the rule of the law , which ( the apostle saith ) is profitable for doctrine , correction , reproofe and institution even of the man of god. 2 tim. 3. 17. 4. the law in the substance is the expresse idea or representation of the law of nature written in our hearts in the time and state of innocency , and the naturall principles of it cannot be quite extinct , or shaken out of the heart of the worst man ; for the very heathens had it written in their hearts , rom. 2. 15. and much lesse can it be shaken out of the beleever , in whom it is renewed and rewritten in their spirits by the finger of gods spirit , ier. 31. 33. nay the beleever cannot chuse but be framed to a cheerefull and spirituall obedience of it , so long as the spirit performeth that office in them . 5. the law in the substance of it , promiseth a righteousnesse , and eternall life to all the performers of it : and no beleever expecteth another righteousnes , nor another life , nor on any other condition , than the same in the law ; onely in another manner and meanes the same life must be attained , by our ful performāce of the law , though not in our selves , but in our surety ; and by the same righteousnes , not inherent in us , but imputed unto us . so as by this former consideration we see that the beleever is still under the whole substance of the law. and now in the second place seeing the justified person is so many wayes under the law , how saith the apostle that the beleevers are not under it ? to resolve which point , we must now consider the circumstances and appendices of the law , which make it an heavie yoak , an intollerable , and insupportable burden , in regard whereof the beleever is not under it . these appendices of the law are seaven . first , one consequent of the law is , that it yoaketh every man to a personall performance of it ; for himselfe must doe all things that are written in the law , to live in them . and this is now an impossible obedience , because of our flesh . but christ having perfectly fulfilled the law for the beleever , and becomming the end of the law for righteousnesse to every one that beleeveth : in this regard they are not under this rigour of the law , which knoweth no surety , no mediatour , no imputed obedience , but in every mans owne person ; and yet the gospell remitteth no part of the substance of the law , which requireth perfect obedience : only it tendreth it in the person of the surety , and gets acceptance when perfect obedience is done for the person , though not by him . 2. another appendix of the law is , that this rigorous exaction of personall , and perfect obedience is urged upon paine of eternall death : for , cursed is every one that continueth not in all things that are written in the booke of the law , deut. 27. 26. and gal. 3. 10. now the beleever is not under this co●sequent of the law : for christ was made a curse for us , and redeemed us from the curse of the law , gal. 3. 13. and by him being justified by faith , we escape this damnatory sentence , rom. 8. 1. but it is one thing to be free from the curse of the law , another from the law it selfe : and it is no good sequell , we are free from this sanction of the law ; therefore from the substance . 3. another appendix of the law is , that it urgeth and forceth it selfe upon the conscience with feare and terrour ; for as was the manner of the lawes delivery at the first , so it still thrusts it selfe upon the sou●● by coaction and constraint . a●● thus the beleever is not und●● the law ; for the grace of 〈…〉 empteth him from the rigorous exaction of it , and frameth his heart to a willing , and cheerefull endeavour in obedience ; for what the law prescribes to be done , it helpeth in the doing of it : and as christ himself became under the law not forced or coacted , but freely ; so is now the christian. but this being but an adjunct , shall we argue from removing an accident , to the remotion of the subject ? or because we are not under the law as a rigorous exactour , and terrible revenger , therefore we are not under it as a righteous commander , and holy conductour ? the 4 consequent of the law is , that it acknowledgeth no justification or life , but by com●●eat obedience ; no life or sal●ation must be expected by the ●w , but by keeping it wholly 〈◊〉 exactly . and thus it is an impossible yoake ; for by the workes of the law no flesh can be justified , rom : 3. 20. so as now the beleever is not under the law for justification , unto whom christ is made righteousnesse , and whose perfect obedience is imputed , rom : 4. 5. but it is no good argument , that because the law is fulfilled by christ , it is therefore abolished by christ : surely every simple man can distinguish betweene accomplishing and abolishing the law : nor it will not follow , that because the law cannot justifie , therefore it cannot instruct , guide , or edifie . the 5 consequent is , that the law is the vigour and strength of sinne ; that it arraignes , and condemneth the sinner , and is the minister of death , 2 cor : 3. 7. but there is no condemnation to those that are in iesus , christ , rom : 8. 1. for that heavie sentence of the law is transferred upon christ himselfe , and carried off the beleever . but it will never hold weight or water in argument , that because a beleever is freed from the damnatory power of the law , he is free therefore from the mandatory and directory power of it . the 6 consequent or appendix of the law is , that thereby sinne is excited and provoked by our owne corruption rebelling against the law , rom : 7. 11. which is not by the fault of the law , which remaineth holy , just , and good , v. 12. but by our wicked nature , which is more violently carried to that which is forbidden ; even as an untamed colt , the more it is hampered , the more mad and stirring it is . but the beleever is not thus under the incitation of the law , who by grace is in great part freed from this reluctation and resistance , and by the same grace made tractable and willingly subject to the law , which they discerne to be so concordant , and a very counterpaine of the holinesse and justice of god himselfe ; and thinke themselves so farre from being loosed from the law by the doctrine of grace , that they are faster tyed to the obedience of it . the 7 and last appendix of the law , is to consider it as the law of moses , and in moses hand given to the church of the iewes ; in which respect it had many circumstantiall references to that people , and many accessories in the administration towards them ; besides some strictnesse , rigour , and terrour to that people under rudiments : in regard of which , beleevers in the new testament are not under the law as it was in moses hand ; but sundry references and circumstances , as suppose , time , place , persons , tables , testament , manner , measure , terrour , rigour are altered , and changed in the church since christs death . but it will prove no good reason , that because an heire in minority is under tutours and rods , therefore he may being come to yeares live as he list , and become a lawlesse man : or that because the law as given by moses to the church of the iewes is in some circumstances altered , therefore it must be in the whole substance of it abolished and that wholly : or that because the church of the olde testament was under a strait law , therefore the church in the new testament must be under none . the summe of all is comprised in these three following conclusions : 1. that the regenerate are never sine lege , that is , without law : of wicked men is said , that they are lawlesse , and described to be disobedient , ungodly , sinners , unholy , prophane , the genuine epithites , and right characters of our late anomists and antinomists ; but the regenerate are no such . 2. that the regenerate are not ( as our text saith ) sub lege , not under the law : namely in respect , 1. of iustification by the law : 2. of condemnation by it : 3. of personall and perfect obedience , which ch●ist in their stead hath undertaken , and performed : 4. of coaction and constraint , from which the spirit of liberty hath freed thē in great part : 5. of the sundry accessories of moses his administration to that people to whom it was delivered : in these regards , and some other they are not under the law. 3. that the regenerate may be truly said to be in lege , that is , in , or under the law , or within the compasse of the law ; in respect , 1. of the doctrine , rule and instruction of it : 2. of their subjection unto it , who frame their lives secundum legem , according to the law : 3. of the spirits inscription , who writing it in their hearts keepes them within the compasse of it , and holdeth them in the respect and cheerfull obedience unto it . and thus we have cleared the meaning of the apostle in this , and other phrases of the like sound , ye are not under the law. chap. 3. proving beleevers under the rule and direction of the morall law. now because the sonnes of belial are come out , and tumultuously are risen ( as did the heathens ) against the lord , and his most righteous law , saying , let us break these bonds , and cast these cords from us ; for we are under the teaching of grace , and under the rule of the spirit , all our worke is done to our hand , and we have nothing left for us to doe , and therefore the law to us is as the seven green cords on sampsons armes , which he brake off as a thred of tow when it toucheth the fire , and our selves as loose , and at liberty from it , as he was from them ; for the whole law is abolished to us wholly . therefore we are to prove against them , that true beleevers have both a true use of the morall law , and besides their lively faith , wherin they have received the spirit , have need of the directions , and doctrines of the morall law , for the performance of the duties of it : and that by these reasons . if the same sinnes be forbidden after faith as before , then is the law in some force to beleevers . but the same sinnes are forbidden them after faith as before . and therefore the law is in some force to them . the proposition is cleare , because the law onely discovereth and revealeth sinne , as the gospell doth the remedy . the assumption is also manifest , because the law is an eternall truth , and is never at agreement with any sinne in whomsoever . concupiscence before faith is sinne , and no lesse sinne after faith in the regenerate : davids murder , and adultery were sins after faith ; and the same man that beleeved in god , committed adultery with bathsheba . object . these were foule sins in themselves , but not in him because he was justified . answ. then nathan was deceived in saying , thou art the man : and david , when he said , i have sinned . had david sinne after faith ? then was david under a law for obedience : for every sinne is the transgression of the law , and where no law is , can be no transgression . the like of peter in the new testament apparantly a beleever , for christ prayed that his faith should not faile ; yet after that fell into those foule sinnes against the law , rash swearing , and false swearing , and cursing himselfe ; which were foule sins in him , as well as in themselves ; why should he else goe out , and weepe bitterly ? peter , as full of shifts as he was to save his skin , was to seeke in this shift , to turne off all his sinne , and sorrow at once , that being a beleever , and in the new testament , the law had nothing to doe with him . this argument our novatians and famelists can by no other shift avoid , but by flying to a perfect purity in themselves : for this is a dangerous , and desperate principle of their catechisme rife in the mouths of their novices , be in christ , and sinne if thou canst ; and is very coherent with their other tenents : for were the morall law indeed wholly abolished , why should they not worship false gods , sweare , breake the saboth , rebell , kill , whore , steale ? what should hinder them from rayling , and reviling all ministers and people , besides their owne sect , as in a dead faith , as onely morall men in state of death ? all this is no sinne : abolish the law , and thou maist say , sin if thou canst . but oh vaine men . can david sinne , and for his sinne his flesh tremble with feare of gods judgments ? can peter at the side of christ sinne , and that after so many warnings of christ himselfe ? doth paul know but in part , and after faith find a law in his members rebelling against the law of his minde ? and that after grace received , the good hee would doe , hee did not , and the evill hee would not doe , that did hee ? and are you in so high a forme beyond these worthies , that you cannot sinne if you would ? ponder a little these places of scripture and if you be still mad of your perfection , i will say of you as ierom of your fellowes ; you had more need of physick to purge your braines , than perswasion to informe your judgements . eccles : 7. 20. there is not a just man on earth that doth good , and finneth not . 1 kings 8. 46. for there is no man that sinneth not . object . no ? hee that is borne of god sinneth not . answ. the apostle saith not simply and absolutely that he hath no sinne , or sinneth not ; but hee sinneth not industriously , hee makes not a trade of sinne , he sinnes not as the wicked doe , nor sinneth not in raigning sin , nor sinneth unto death , without returne and repentance , because the seede of god abideth in him , and destroyeth in him the worke of the divell . prov. 20. 9. who can say , i am pure from sinne ? who ? i can say so , and i can , saith every libertine ; my sin may be sought for , and cannot be found ; and mine , saith another , is washed off , that it cannot be seene ; and mine , saith a third , is as a bottle of inke dispersed in the sea , and not to be discerned . and indeed thus it is in the justified in respect of gods account , and imputation ; but while they speak so magnifically of themselves in respect of the presence of sinne , they onely blow up their bladder bigger , which all the while is swelled up but with stinking winde and emptinesse . but they would have some places out of the new testament , as men beyond the reach of the olde . and so they may . iam. 3. 2. in many things we sinne all : we all ; all apostles , all christians ; sin , that is , transgresse the law ; in many things , by daily failings and errours : and therefore all we in the new testament , since christs death , though we be justified by faith , are under the rule and obedience of the law ; because we sin in many things . 1 ioh. 1. 8. if we say we have no sinne , we deceive our selves , and there is no truth in us . wee : who ? the apostle speaketh of carnall men , say some of the libertines : as if the apostle was a carnall man : but the former verse expresseth who they be that have sinne ; those that walke in the light ; those that are in communion of saints , and have fellowship one with another ; and those that are justified and sanctified , whom the blood of iesus christ his sonne hath cleansed from all sinne . if the same duties be required of all after faith as before , and every conscience bound to the performance ; then the law in the whole use is not abolished to beleevers . but the first is true : and therefore the second . the former appeares , because where any duty is commanded , there the rule of that duty is implied : and this rule is the morall law , which bindeth all men to all duties of it both before and after christ , being an eternall measure of all that is right or crooked . that it is a rule of duty before christ , they deny not ; and that it is a rule of duty since christ , i make it plaine thus . 1. because christ himselfe did confirme , expound , establish and fortify the law by his word and authority , which was the scope of his large sermon upon the mount , in mat. 5. 6. and 7 chapters : which had it beene to be utterly abolished , he would rather have declaimed bitterly against the law as our antinomists doe , & have rather commended the pharises for weakning it by their glosses ; than have vindicated it , and restored to the full strength and power of it . 2. our lord not onely confirmes it in it selfe by his doctrine and life , but also in the conscience of every christian. matth. 5. 19. he that breaketh the least of these commandements , and teacheth men so to doe , shall be least in the kingdome of heaven : but he that shall teach and observe them , shall be called great in the kingdome of heaven : that is , shall be honoured , and counted a worthy member in the church of god. no , saith the libertine , we must not teach the law in the church ; and those that doe are legall preachers , that lead men into a dead faith ; we must doe nothing , because god commands us : nay we not onely reverse the least of them , but all at once , and teach others so to doe . see now if fire be more contrary to water , or christ to belial ; than christ to these sonnes of belial , that will be under no yoke of the law , no rule , no obedience . 3. the apostles after christ bring converted christians every where to the rule of the law , and frequently alledge the law to urge the duties of it : and therefore the law ceaseth not to be the rule in the new testament ; for if it had , they would not have pressed exhortations by the law. rom. 12. 19. dearely beloved , avenge not your selves : why ? for it is written , vengeance is mine . rom. 13. 8 , 9. pressing the duty of love , the onely debt beseeming a christian , he urgeth it by this argument ; because , love is the fulfilling of the law ; and repeateth all the commandements of the second table , not to repeale or reverse any of them , but to confirme them as the rule still , and comprehendeth them all in this , thou shalt love thy neighbour as thy selfe . ephes 6. 1. children obey your parents ; and presseth the duty from the law ; for this is the first commandement with promise . heb. 12. 28. let us have grace to serve god acceptably , with reverence and feare . why ? for our god is even a consuming fire . did not now the apostles come as well with a rod , as with the spirit of meeknesse ? did not they perswade men , as knowing the terrour of the lord ? did not they call mens eyes , not onely to behold the goodnesse of god , but also to behold his severity ? rom. 11. 22. dare now an audacious libertine step out and tell the apostles ( as they tell us ) that they were legall preachers , that they taught men popery and justification by workes ; and that they made men onely morall christians , because they held the law before them as the rule of all duties both of piety and charity ? if christ came not to abolish the law , but to fulfill it , then the law is not abolished : for either christ abolished it , or none ; and either by his comming , or not at all . but christ chargeth us , not to thinke that hee came to abolish it , matth. 5. 17. for what is it to destroy the law , but to take from it that vertue and power whereby it is a law , and to make it of none effect . and that christ came not to destroy the law is manifest : because 1. it is his owne law , which must endure for ever in heaven , psal. 119. 2. because it is holy , just , and spirituall , rom. 7. 13. which words imply , 1. that there is in it a supernaturall , divine , and unperishing vertue , resembling god himselfe , who shall as easily be destroyed as his law. 2. that it serveth to be a divine direction of all men ▪ in all holy , just and spirituall duties . 3. that it is an holy instrument of the spirit , by which he leadeth out the faithfull into the practise of those duties . 4. that whosoever have the spirit sent to dwell , and rule , and to write the law in their hearts ; they cannot detract from the law ; but the more spirituall themselves are , the more doe they discerne the spirituall power of it , and frame to the spirituall observance of it : so did the apostle in this place ; so david , psal. 19. 7 , 8. and 119. 39. nay christ came to fulfill it , in himselfe , and in his members . 1. by preaching , illustrating , and inforcing the law , by vindicating it from false glosses , and restoring to the full and first strength of it ; by all which he sheweth it to bee immutable and eternall . 2. by plenary and full satisfaction of it , and by his perfect , and personall obedience , both active and passive ; so as he fulfilled all the righteousnesse of it ; and left not one iota of it unfulfilled . 3. by donation of his spirit , writing the law in the hearts of the elect , and inciting them to new and cheerfull obedience of it ; for to this end the saints receive the law of the spirit of life , that they may not walke after the flesh any more , but after the spirit , if the apostles after christ did not abrogate the law , but establish it ; then it is not abolished to beleevers in the new testament . but they by the doctrine of faith did not . rom. 3. 31. doe we abrogate the law by faith ? god forbid ; nay wee establish it . where the apostle cryes downe that grosse conceit of the contrariety of the law and gospell , so as one of them must needs devoure the other , as moses rod did the rods of the inchanters . true it is they are a distinct and divers doctrine ; but in god and his word is no contrariety ▪ and true it is the law and gospell will never stand together in the justification of a sinner before god , yet they friendly concur and agree in christian conversation , wherein they are inseperable , as also they are in christian institution : yea here they helpe one another , as one hand doth another . whēce the holy apostles who knew that the gospell was not properly and substantially the law ; yet usually in the publication of the gospell confirme the authority of the law. see some instances . rom. 1. 18. the gospel is the power of god to salvation : and by it not onely the righteousnes of god is revealed from faith to faith , but the wrath of god is revealed from heaven against all ungodlines : not that the gospell is a ministery of wrath , but a witnesse that wrath hangs over the heads of wicked men rejecting the gospell . rom. 2. 16. christ shall judge the secrets of men according to my gospell : that is , according to the witnesse of the gospell preached by me . 1 iohn 2. 1. brethren , i write these things to you that you sinne not : and what did he write else but the sweet tidings of the gospell , that is any confesse his sinnes , god is faithfull and just to forgive them ; and that if any sinne , wee have an advocate with the father , & c ? for as no man can teach any duty of the law , but therin calls to faith : for call to the love of god , the substance of the first table ; must not he be first beleeved , and then loved ? or to prayer ; how can they call on him on whom they have not beleeved ? and so in the rest : so neither can a man preach faith without some reference to the law ; for can a man beleeve a remedy without knowledge , & search of the wound ? nay it is the law that fits us to prize christ a physitian , or else would we never meddle with him , no more than he would seeke out for a garment that hath no sence of his shame or nakednesse . what if the law know not , nor command one to die , or satisfie for another ; yet it doth not denie , or exclude , or hinder the mercy of god revealed in the gospell , but maketh way unto it . the apostles therefore did not abrogate the law by faith ; nay ( saith our apostle ) we establish it . from whence the argument will rise stronger : if the apostles did stablish the law by the doctrine of faith , then is not the law abolished to beleevers in the new testament . but they did establish the law by faith . quest. how doth faith stablish the law ? answ. 1. in shewing that all the menaces and curses of it are not in vaine , but all fulfilled in christ , who was laid under them all to free us from them . 2. it fulfils the law , because it bringeth before god the perfect fulfilling of the law for justification ; though not in our selves , yet in our surety , in whom wee have perfectly fulfilled it , and shall live by it ; the law must be absolutely fulfilled by us in our surety , or we cannot live . 3. it stablisheth the law , because faith worketh by love : which love is the fulfilling of the law : so as by faith being justified , as we are in a stronger obligation to the duties of it , so we begin a new obedience to all the commandements , and there is no duty which a christian is not firmely obliged unto . tell me ( saith augustine ) what there is in all the ten commandements , what it is that a christian is not bound unto ? 4. because by faith we can pray , and by the prayer of faith obtaine the spirit of god , by whom we are supplied with needfull strength to obey the law : so august : faith obtaines grace , by which the law is fulfilled : and ambrose saith , that faith stablisheth the law , because faith shewes those duties to be done which the law commandeth to be done . and thus have we strengthened our fourth argument , which hath proved that the apostles of christ abolished not the law , but established it : and therefore it is not without use and force in the new testament . in whomsoever must be a constant endeavour of conformity to the law , to those the law is not abolished . this is plaine , because where any thing is to be regulated , there the rule is necessary . but every beleever after conversion must strive to a conformity with the law , 1. in his inner man , 2. in his outward man , 3. in his whole man. 1. in his inner man , he must delight in the law of god , rom. 7. 22. both in his minde he must serve the law of god , verse 25. and in his affections hee must love the law. psal. 119. 97. oh how love i thy law. psal. 1. 1. the blessed man delighteth in the law of the lord : not onely in the knowledge of it ( which an hypocrite may ) but in the conformity of their hearts and affections with it ; they carry friendly affections to the law. our antinomists outboast all men in point of their justification . but st : ambrose his rule denieth them to be justified , because they are not friends with the law. and mr. luther , whom they challendge as their friend , and favourer , rangeth them among unjustified , and unregenerate men ; of whom he saith , that they love the law , as well as a murderer loveth the prison , and so well love these the law , and therefore by his censure rejected among the unregenerate . 2. in his outward man , and action the justified man must testifie that the law of god is written in his heart : so the apostle , 1 ioh. 2. 17. he that fulfilleth the commandement abideth for ever . what is this commandement , and what is it to fulfill it ? the commandement is the same which he had delivered in the former part of the chapter , consisting of two branches . 1. to beleeve in the sonne of god , as our onely satisfaction , our onely advocate , and the reconciliati on for the sinnes of the world , v. 1 , . 2. that we embrace him as our unerring patterne of our lives , and walke as he walked , v. 6. quest. how did hee walke ? answ. 1. in the generall observation of the whole law. 2. in speciall : in the perfect love of the brethren , v. 9. and in the contempt of the world . now must christ walk in the obedience of the commandements , and must not the christian ? yes , saith the apostle , every christian must fulfill the commandement . object . what will you teach justification by workes ? answ. no , we call not men to legall fulfilling of the commandement , but evangelicall : as 1. when the minde delighteth in the law of god , as holy , just and good . 2. when the heart hides it , to conforme unto it . 3. when the affection desireth to fulfill it , rejoyceth when he can attaine to any obedience , and sorroweth when he faileth in it . 4. when in his actions he beginneth that obedience which shall end in perfect fulfilling : this the gospell accepteth , and accompteth a fulfilling of the commandement . thus the apostle , rom : 8. 4. the righteousnesse of the law is fulfilled in us , which walke not after the flesh , but after the spirit : that is , christ by his meritorious obedience to the death , hath not onely freed us beleevers from the condemning power of sinne , but from the commanding power of it ; and so renewed our nature , as that the law of god shall be fulfilled in us : and that two wayes . 1. by application of his owne perfect fulfilling of it unto us ; with whom we by faith being united unto him , whatsoever is his being the head , is ours also being members . 2. by our sanctification it is fulfilled in us inchoately : that is , by obedience begun here , which at last shall be perfected , so as not the least motion or desire contrary to the law shall be left in our nature . thus is the righteousnesse of the law fulfilled , not by us , but in us , even here below ; and is our rule both in earth and in heaven . 3. in his whole man , the beleever must grow up to the image of christ , and to the conformity of his holinesse , which is no other but the perfect image of god expressed in the law. this growth in grace , and sanctification , is called the rising up to full holinesse , as the sunne riseth up higher till perfect day . prov. 4. 18. the way of the just is as the light , which shineth more and more till perfect day . but this cannot be done without the helpe of the law , the onely rule by which , and the scope unto which it must be directed . for 1. how should a beleever free from sin know himselfe in the service of righteousnesse , as rom. 6. 18. if he be under no command , or if his obedience be without rule or direction ? 2. or how should he discover his daily errours , to be humbled for them ? how should he remember from whence he is fallen ? or be raised to doe his first workes ( for all this must further his sanctification ) without the rule of the law ? 3. or , how should he see the imperfection , and uncleannesse that cleaveth to his best duties , whereby he is kept from proud pharisaisme , and the arrogant conceits of these libertine perfectists ; but by this stra●ght , and unalterable rule of the law ? by all which reasons it appeareth it that the morall law is not without force and 〈◊〉 unto beleve●● . chap. 4. discovering the true grounds of opposing so cleare a doctrine . wee never reade of hereticke , but hee would challenge the sacred scriptures as the groūds of his heresie , which indeede are the onely hammer of heresie : and even so these spiders , who sucke poyson out of the sweetest flowers , set a flourish and varnish over their poysonfull opinions with some scriptures , either wrested and writhen out of their owne sence , or broken off from other scriptures & thēselves ; for they have the scriptures , as aug : saith , the donatists had the sacraments for ostentation rather than for salvation . this vizard we shall put off in the 9 chapter , which shall vindicate the scriptures fouly mistaken and misapplied by them , and restore them to their true sence and strength against themselves ; for no sword is so fit to take off goliahs head as his owne , and no weapons can be more keene a-against these , as those which wee shall wrest out of their owne hands . but in the meane time we will first lay open the true grounds of this unhappy schisme , and the right rise of these palpable errours . and these i observe to be three . 1. grosse ignorance : 2. swelling pride : 3. love of licentiousnesse , joyned with the hatred of holinesse , as we shall discover in their order . as truth hath no enemy but falshood , neither light any contrary but darknesse ; so the cleare rayes and beames of saving knowledge , issuing from christ the sunne of righteousnesse , are darkned and obscured in corrupt mindes by the clouds and mists of ignorance , the common mother of mistakes and errours : for what can a man in the darke doe other than misse his way , and marre his worke ? and what hath made these audacious libertines bold but blindnes ? who while they busie their heads in idle and fruitlesse speculations , and waste their discourses in idle and impertinent questions , are grosly ignorant in the very principles of catechisme , and farre to seeke in the very lowest grounds of religion . i remember mr. calvins observation concerning the same sectaries of his time : that whereas other heresies were raised , and defended by men of learning , wit , education , and reading : this was set on foot , and maintained by ideots , rude , & illiterate men , that never learned their frensie by turning bookes , but in some coblers or artificers shops and places of rude resort : for the basest schoole ( saith he ) will serve to teach a man to blaspheme god : and to prove his assertion , he nameth the two chiefe champions , who in his time raised and spread it about geneva , both wel known to him and drew a great multitude after them ; of whom one would willingly have had the preferment of an hostler or porter ; and the other of a chamberlaine or tapster ; fit captaines for their skill to levie , and lead such a band : and even such are the bricks that at this day are framed out of such clay ; a base sort of people , whose ignorance ( in the high conceit of knowledge ) layes them open to delusion , and wrappeth them in errors , so as none that savour of liberty comme●h amisse unto them : whereof while i give a list , or catalogue , let none thinke that i father any childe on them but their owne ( if they will owne their owne writings ) or any opinion , but such as for the loosnesse of it , and likenesse with the rest of the brood , will father it selfe . i know i have to deale with men as slippery as eeles , who can play fast and loose with their owne tenents at their pleasure ( for what can holde them whom gods law cannot ) sure i am , many of them will deny those to be their opinions , or in this sence ; or reject them on some private persons , or absolutely deny what they resolutely holde , if any way they may either advantage themselves , or disadvantage their impug●er . nor herein i am not uncharitable : it is not long since one of their masters ( in the hearing of a minister , who himselfe related the story unto mee ) taught a number of silly women gathered into his house on the saboth day ; that the law was wholly abolished : that god could see no sinne in the justified : that they were as perfectly pure as the angels ; yea as christ himselfe : with great vehemency and contention both establishing these and the like grounds and principles of his catechisme , and reviling our legall preachers , that leade men into a dead faith . but upon the thursday after , meeting the same minister at the high commission court , and fearing some danger towards him ; he disclaimed to him with as much earnestnesse , all that hee had then taught in every particular . the minister onely dismissing him with admonition , to consider how hee could answer god and his owne conscience , in seducing so many silly women against his knowledge , onely to maintaine his teeth . it shall not much trouble mee whether they owne them or renounce them : i avow them to be errours , and not onely creeping in the darke , but emboldening themselves into the light , and such as are very prejudiciall to many well-meaning but weake mindes , for whose satisfaction and setling i have set them downe as i have met with them in their papers , with some short antidot and preservative against them , intending rather a short survey , than any large refutation of them . 1 error . that christ came to abolish the morall law : and that the gospel takes away all obedience to the commandements : and that true faith standeth at defiance with working and doing . answ. this threefold error ariseth out of a threefold ignorance . 1. out of the ignorance of the end of christs comming , who saith expresly , that he came not to abolish the law , but to fulfil it : in himselfe legally ; in beleevers evangelically : as we have proved largely in the former chap : reas . 3. 2. in the ignorance of the nature of the gospel ; which is so farre from taking away all obedience to the law , as that it indeed teacheth and requireth obedience unto it ; not whereby we performe the law ; but testifie our faith in the gospell ; and is therefore called the obedience of faith . the law indeed calleth for personall obedience to satisfie and justifie before god , but so doth not the gospell ; but onely for an obedience to testifie our love to christ , who hath satisfied it for us : for this is testified by keeping the commandements . ioh. 14. 23. if any man love me , hee will keepe my commandements . what love then in these men , that will keepe no commandements ? object . our love makes us keep his commandements : but what is that to the commandements of the law ? answ. as if christ did not command the same love and duties in the morall law. see matth. 22. 37 , 38. where christ enjoyneth the young man all the duties of both tables . 1 ioh. 3. 23. this is his commandement , that wee should beleeve , and love one another . is this his commandement of any other love than that which is the summe of the second table ? and what were the commandements of the apostles , but evangelicall commandements , & commandements of christ ? and yet they commanded duties of the law. 1 thess. 4. 2. ye know what commandements we gave you by the lord iesus . what were they ? such as concerned fornication , v. 3. and oppression & fraud , v. 6. and were not these the same duties of the law ? the 3 error floweth from ignorance of the nature of faith ; which is so farre from renouncing obedience , that it is never severed from obedience ; and it is not true faith that worketh not by love : for what is it to beleeve ? it is not onely to assent to what the scripture saith ; but to adhere and cleave unto it , and to the lord in the obedience of it : as henoch by faith walked with god ; abraham by faith left his country ; abode in the land of canaan as a stranger ; offered his son isaac , &c. and whence is it that obedience is called a fruit of faith ? for every act of grace must rise from the roote of that grace , as every fruit from his owne roote ; so as workes of charity are rooted in charity , which is a distinct grace from faith : yet are they called fruits of faith , because the doctrine of faith enjoynes them , and the grace of faith inclines the soule unto them ; and because faith receives the spirit of christ for sanctification , as well as the merit of christ for justification . but why doe they exclaime against us for preaching and embracing a dead faith , while they obtrude on their proselites a faith which must not work by love ; which , if they will beleeve s. iames , is a dead faith 2 error . that godly life hath nothing to doe with keeping commandements . answ. the scripture saith , that godly life is nothing else but the fulfilling of the commandement , and will of god revealed . 1 ioh. 2. 17. he that fulfilleth the commandement abideth for ever : which is to be meant of evangelicall fulfilling , not legall . see chap. 3. arg . 5. one thing it is to exercise good workes in way of obedience , another to rely on them in way of righteousnesse . 2. our charge is in every thing to prove and try what is the good and acceptable will of god : and have we nothing to doe with commandements the rule of tryall ? certainly we can neither doe any just thing without the rule of justice , nor prosecute it justly . 3. the life of christ was most godly , yet was said of him , heb. 10. 7. in the volume of the booke it is written of me , that i should doe thy will : and hereunto must every member be framed that must be in conformimity with the head . 4. not any duty of godly life can be acceptable or comfortable , but that which is warranted by a commandement , and we must know it so to be ; there can be no right worship , or worshipper , but hee that doth the will of god. ioh. 9. 31. if any be a worshipper of god , and doth his will , him hee heareth . so doest thou expresse love , shew mercy , execute justice , or practise any vertue , and not by vertue of any commandement ? he that will not heare the lord , saying , what i command thee , that doe onely : shall heare , who required these things at your hands ? 3 error . that blessednesse is meerly passive , and therefore it is in vaine to put men upon actions for that end . answ. it is so to us in respect of merit and price ; but in respect of fruition , it is obtained instrumentally by faith which is an action , and is said to be ours ▪ yea our owne ; for the just lives by his owne faith : not because we are authours or causes of it , but subjects in whom god worketh it , and because by it things beleeved become our owne . 2. we are meere patients in the causes of blessednesse ; but in respect of conditions we are not so : for as we said of faith , wee may also say of good works ; god enableth to them , but man worketh them , and walketh in the way of them to blessednes : not that our works are causes , but conditions without which blessednesse is not attained . see matth. 25. 35. 3. this assertion bewrayeth great ignorance of the proper and present use of sanctification , and the duties of it ; which they conceive as legally urged , to helpe the beleever in his title and right to the blessed inheritante purchased in heaven : whereas onely christs righteousnes and merits give right and title unto heaven ; but yet the grace of sanctification gives us an aptitude and fitnesse unto it : for , without holinesse none shall see god , heb. 12. 14. and , no uncleane thing shall enter into the gates of that city . yea it is proceeding in sanctification to the measure , and stature of christ , that fits us to the vision , and fruition of the glorious presence of god ; and for the full possession of that heavenly inheritance . 4 error . that the justified person is free from all spot of sinne , and perfectly righteous : for justice requires that a man should be as perfect as by creation before acceptation . answ. 1. iustice requireth that gods wrath should be pacified , and a righteousnes procured whereby the sinner may be accepted to mercy ; but not a plenary and personall perfection . 2. they shew grosse ignorance in the nature of justification , which frees the beleever from the condemnation of sin , but not from the inhabitation or molestation : for sinne is in the godly after justification . 1 ioh. 1. 8. if wee ( that is , wee that walke in the light , and have communion one with another ) say we have no sinne , we deceive our selves . 3. faith it selfe in the justified is sincere , but not perfect ; for as we know things beleeved but in part , so we beleeve but in part ; our eye is not more dimme to see , than our hand is weake to receive : yea even in the best faith is imperfect , and mingled with doubting . moses●aith ●aith quailed at the rocke ; elias in a passion would be dead ; yea even abraham himselfe , who was strong in faith , though he doubted not of infidelity , yet he doubted of infirmity , gen. 15. 3. by long delay , his faith was sore shaken , when he said , that eliezer of damascus must be his heire . now would i know how that which is it selfe imperfect , and not free from spot of sinne , can make another altogether spotlesse . see more hereof in the second ground of this opposition . chap. 5. containing foure more pernicious and erronious opinions . 5 error . that no action of the beleever after justification is sinne , for unto faith there is no sinne ; for all sinne past , present , and to come , is taken away by the blood of christ , and no sinne remaineth in the kingdome where faith reigneth , and sitteth judge ; it is out of the lawes element to judge of this blessed condition : neither can god allow any worke that is defective in the beleever . answ. here is the ghost of h. n. in this peece of new gospell , which tels us a dream of an absolute reigne of faith , where is still remaining sinne . true it is that faith deposeth the reigne of sinne , that it rule not , but so as that it selfe never reigneth in this life without the presence and assault of sin ; for such as say they have no sinne with their faith , deceive themselves . 2. it is enough for the state of this life , that faith frame the heart to willing and sincere obedience ▪ though not to perfect and absolute . 3. it argues their grosse ignorance in the scriptures , which affirme , that both persons and duties of beleevers , though imperfect & defective , are yet pleasing . 1. for their persons , god looketh upon them in christ , & pronounceth of them , that though they be blacke , yet they are comely . prov. 12. 22. the lord taketh pleasure in them that feare him . psal. 147. 11. the lord taketh pleasure in his people . acts 10. 35. in every nation he that feareth him is accepted of him . 2. for their duties , though they be imperfect , yet they please him , because their persons doe . mal. 3. 4. then shall the offerings of iudah and ierusalem be pleasing unto thee . phil. 4. 18. an odour of sweet smell , a sacrifice acceptable and well-pleasing unto god : speaking of the almes and charity of that church . col. 3. 20. children obey your parents , for this is wel-pleasing to the lord. and our comfort and happines is , that he pleaseth to accept from us that which is sincere , though weake , and imperfect . 6 error . that our preachers teach popery in persuading good works to further mens owne salvation . answ. our doctrine and practise herein agreeth with the doctrine of the scriptures , and with the practise of christ and his apostles , and because the sectaries cast this imputation upon godly ministers , to weaken their authority among their people , it will not be amisse in few words to cleare it : and that in these positions . 1. wee teach according to scripture , that every good worke must rise from a good worker , for the tree must first be good : and men gather not figges of thistles . so as a good worke is proper to a justified person , and the use of it cannot be to justifie , because he is justified already . 2. we teach the necessity of the duties of the law to salvatiō ; not as causes or merits of our salvation or justification ; which were to dethrone christ , and preach popery , but as a way and meanes appointed by god to walke into heaven : and so the apostle preached them necessary . tit : 3. 14. let ours also learne to maintaine good workes for necessary uses : and every simple man knoweth , that the holding of the way must needes further the journey , and conduce to the place intended . 3. wee carefully alwayes distinguish betweene the justice of workes , which conduceth nothing to salvation ; and the presence of workes , without which there is no expectation of salvation : for without their presence all faith is dead , and all religion vaine . 4. wee distinguish in this doctrine , the principall efficient cause of righteousnesse and salvation , from the instrumentall . is it a good reason , that because christ is the principall efficient , and the onely meritorious cause of our salvation ; that therefore all the instrumentall and adjuvant causes and means of salvation must be cut off and cast away ? true it is that god alone decreeth our salvation , christ alone meriteth it , the spirit alone sealeth it : but yet the gospell revealeth it , and that saveth ; faith apprehendeth it , and that saveth : the ministers they preach it , and they save , namely ministerially . 1 tim : 4. 16. thou shalt save thy selfe , and them that heare thee . did the apostle write popery , or derogate frō christ , in saying that timothy did save himselfe and others ? or is it such a peece of popery to say , that the use of the meanes doth further the end ? 5. what will you say of st. paul , who commands us to worke out our salvation with feare and trembling ? it seemeth he thought that men must doe something toward their owne salvation : as that father did , who saith , that though god made us without our selves , yet hee saveth us not without our selves . and phil : 4. 17. when he calleth duties of beneficence and charity , a fruit furthering our reckoning ; that is , as a meanes , not as a merit . i would know how they should further our reckoning , and not further our salvation . true it is that mercy accepteth that for a furthering of our reckoning , which in strict justice would not goe for payment : but yet seeing the same mercy takes us into the worke , we may per●wade also with the apostle , that christians would be still thus furthering their owne reckoning . the same apostle speaking of the same duties , 2 cor : 9. 6. calleth them a sowing , and saith , he that soweth liberally ▪ shall reape liberally . whether doe not these men thinke , that sowing is a furtherance to the harvest ? surely s. paul thought so , & yet minded not to strengthen popery : for neither is he that soweth any thing , neither he that reapeth any thing , but god that giveth the promise , and increase . the same apostle speaking of the duties of christian suffering , saith not onely that they turne to the salvation of the saints , phil : 1. 9. but also that our light and momentany afflictions cause unto us an eternall weight of glory . & do they not then further our salvation ? and what doth the apostle peter say lesse ? when he saith , that by addition , and exercise of graces , an entrance is ministred abundantly into the kingdome of christ. and why doth the apostle excite christians every day to further themselves in the way of salvation , as runners by speed and strength get nearer the goale ; if we may not urge the doctrine of good workes , and christian duties , in pretence of the lawes abolition ? which certainly was as much abolished in the apostles dayes as now ? 7 error . that not as much as any outward worship of god required in the law is to be performed by true beleevers since the comming of christ : because all the worship of the new testament is inward and spirituall . ioh : 4. 23. the houre commeth , &c. and to receive the doctrine of the gospel by faith , is to worship the father : neither hath any other good worke done in obedience to the morall law any reward : because all is the free gift of god. answ. 1. here is a bundle of errours tyed together , all for the upholding of atheisticall liberty ; whereby they would trample under foote all gods sacred ordinances at once , and loose themselves from all care , and conscionable use of the meanes of salvation : these wild conceits come in as the ill favoured lean kine in pharaohs dreame , that eate up all the fat kine . for how wilde and loose a consequent is it , that because god will bee worshipped in all places , therefore hee must not be worshipped outwardly : or because he will be worshipped spiritually , therefore hee will not be worshipped externally . 2. how madly and confusedly is all worship inward and outward , resolved into a fantasticall faith , neither required in the law , nor evidenced by workes , as the faith of the gospel ; nor distinguished from the faith of divels , who by assent receive the doctrine of the gospell , and beleeve it ? this is mechanicall divinity beseeming a shop , for never came it out of the schooles : that there is no worship since christ but inward : nor that , that inward worship is nothing but faith : nor that , that faith is nothing but to receive the doctrine of the gospel . 3. as simple is that they say , that no workes have reward , because all is free gift ; as if free gift and reward cannot stand together : the reward being freely promised by god , and god not unjust to forget either his owne promise , or our labour of love . 4. are they such strangers in the scriptures , that they have not read neither of recompence nor reward ? not indeed merited by the worker , nor deserved by the worke ; but reckoned ( not to the worke but ) to the worker being in christ ; and bestowed of free grace , for the faithfulnesse of the promiser , not for the desert of the worke , or worker . in which sense , let them runne and reade these places . prov. 19. 17. blessed is he that hath mercy on the poore , the lord will recompence him that which he hath given . matth : 10. 42. a cup of colde water , shall not lose his reward . mat : 10. 25. come ye blessed , &c. for ye gave mee meate . rev : 22. 12. beholde i come shortly , and my reward is with me , to give to every man according as his worke shall be . and psal : 19. in keeping the commandements there is great reward . 8 error . that god seeth no sinne in the justified : for hee seeth no iniquity in iacob : numb : 23. 21. answ. vnhappy was his schisme , and unworthy was his suffering , that wilfully disturbed the peace of the church , and ruined his owne peace , only for a strife of words , and mistaking a phrase of scripture which hee would not understand . the phrase is a borrowed speach ( as all may see ) ascribing eyes unto god ; and taken from the custome of men , who turne away their eyes from that they would not see . gods eye is his knowledge ; and this knowledge is twofold . 1. a simple eye an●●●owledge , wherby he cannot but see all things , and actions that ever were , or shall be . heb : 4. 13. all things are naked to him with whom 〈◊〉 have to doe . ier : 23. 24. can any man hide himselfe in secret places , that i should not see him ? thus he seeth all the sinnes of all good and bad . psal : 69. 5. o lord thou knowest my foolishnes , and my faults are not hid from thee . 2. a respective eye or knowledge , joyned with purpose and affection : and thus what hee cannot but see with the eye of his simple knowledge ; he sees not with this judiciary eye : so he sees not the sins of the elect with the eye of severity ; hee discernes the sinne , but not with purpose of revenge . when god is pleased thus to behold sinne , hee is said in scripture not to see it . 1. because he sees it not to punish it ; 2. not to impute it or lay it to the charge of the sinner ; 3. when he seeth it to pardon it , and to cover it , yea and to cure it . and this phrase of not seeing sin , is the same with those other , of casting sinnes behinde his backe , isay 38. 17. and casting them into the bottome of the micah 7. 10. of putting them away as a mist , isay 44. 22. all improper and metaphoricall speeches ; but such as deceivers wrappe themselves in , to hide and colour their ignorant and witlesse schisme ; taking that in the simple and literall sense , which is to be understood in the metaphoricall , and respective : and willingly shuffling and confounding those things , the distinguishing whereof would helpe them backe into the way of truth and sobriety . this is also st. augustines exposition of the phrase : what is it for god to see sinne , but to punish sinne ? but for a man to say , that god can no way see the sinnes of beleevers , is to open a wide gate to all libertinisme , epicurisme , atheisme , and whatsoever else is an enemy to the feare of god , and the awefull regard of his all-seeing eye ; and the expression was as foolish , as the conceit it selfe is novell , and false ▪ the sinnes of beleevers are covered as close from gods sight , as this salt-celler is now covered with my hat . can you now ( saith he ) see this salt-celler ? no more can god see the covered sinnes of beleevers . the man did not consider that god could see under the hat , though his disciple could not . somewhat would be said against this ignorant conceit , to instruct and stay such ingorants as are teachable , and willing to see the truth . and therfore thus i reason . 1. he that must bring every worke into judgement , must see every worke : but god will bring every worke into judgement , whether it be good or evill : therefore hee must see every worke , as well those that hee bringeth into the judgement of absolution , as those which hee bringeth into the judgement of condemnation . 2. what god seeth once by his simple and absolute knowledge , he ever seeth , by one eternall and simple act , which is not capable of change , or forgetfulnesse ; not now seeing , and now not seeing ; he never seeth any new thing , but seeth and knoweth all things at once with one and the same sight ; for the knowledge of god is the essence of god : according to that ancient and approved saying , nothing is in god but god. 3. what god directeth and ordereth to a certaine end , he must needes see and know : but hee directeth and ordereth all the sinnes of beleevers ( though past and pardoned ) to a certaine end ; namely to his owne glory , to the praise o● his mercie , and to their humiliation , repentance and salvation : therfore hee must needes see that which he so wisely and powerfully ordereth . 4. one attribute of god destroyes not another , his mercy must not destroy his wisedome ; he must see the sinnes that hee pardoneth , and in which he magnifieth the riches of his mercy : and if god knew not all evills of whomsoever , his knowledge were imperfect , and he should want some good knowledge ; for the knowledge of evill is good . 5. what god makes them see in themselves , himself must necessarily see ; but hee makes the beleever see , and confesse and bewaile his sinne , even past and pardoned : therefore himselfe seeth them much more . for we have no eye , nor facultie of minde to discerne any thing , but from him that enlighteneth every man that commeth into the world , iohn 1 doth he work in us the knowledge o● our sinnes , and hee not know them ? nay doth he enjoyne the saints to set before his eye daily their sinnes in the humble confession of them and prayer for pardon , and doth he not yet see them ? doe we not heare david confessing the sins of his youth long after they were not onely committed , but remitted ? psal. 25. and doth he not confesse with humility those foule sinnes , after he had a speciall message from god , that they were pardoned ? psal. 51. and in the new testament did not paul long after his conversion and justification , confesse sinnes pardoned ? i was a blasphemer , and a persecuter , &c. and did not god now see and know these sinnes past and pardoned ; or not heare their confessions ? 6. if the spirit of god maintaineth a continuall combat against the sinnes of the justified , then he sees those sinnes against which he fighteth : for wee must not thinke that the spirit of light and wisdome either fighteth in the darke , or blindfold ; or that the elect can ever find the power of the spirit subduing those sins which he cannot see . 7. hee that recordeth the sinnes of the elect many yeares and ages after they are pardoned , seeth sinne in the justified : for how could hee inspire his servants in that which he did no way see ? but so doth the lord. for of david was said long after his death , that hee was right save in the matter of vriah . rahab was called an harlot many ages after her , and yet the holy ghost forgat not that she was a beleever . heb. 11. 31. by faith rahab the harlot perished not . elias was said to be a 〈◊〉 subject to the same infirmities , iames 5. god that sees the infirmities of the saints so many ages after , seeth and knoweth greater errors much more , though not to impute them . object . but these were in the olde testament ; but since the death of christ god cannot see sinne pardoned . sol. o grosse ignorance ! was the death of christ lesse efficacious in matter of remission of sinne , and righteousnesse to beleevers in the olde testament than to us in the new ? was hee not the same lambe slaine from the beginning of the world ? even the same yesterday , to day , and for ever ? 2. doe they never reade the scriptures , or doe they reade them , and winke at such pregnant and plentifull examples of beleevers recorded , and yet many ages before pardoned ? 1 corinth . 6. 11. speaking of theeves , covetous , &c. and such were you , but now yee are justified , now yee are sanctified . did not god and his spirit see sinne past , and pardoned in the justified ▪ rom. 6. 19. yee did give up your members weapons of unrighteousnesse . these were sinnes past and pardoned in justified persons in the new testament , and after christs death . ephes : 2. 11. remember that yee were gentiles , in the flesh , without god : aliants without hope : it seemes god saw , and remembred sinnes past , and pardoned , and putteth them in remembrance of them . col. 3. 7. the apostle chargeth the colossians with what they had beene , and in what fearefull sinnes they had walked , though now they were justified . did the lord charge them with that hee did not see ? i might be abundant in such testimonies : but if these places cannot cleare this truth to them , let them still shut their eyes against the sunne , and hide themselves in their owne thickets ; to enjoy more securely all their licentious courses ; as those wicked men that say , tush god seeth us not , there is no knowledge in the most high. chap. 6. containing foure other as libertine and dangerous errours as the former . 9 error . that god is not displeased with the sinnes of the justified , and much lesse correcteth them ; for hee is fully satisfied in christ for all the sinnes of the elect : and how can he be displeased with them for that , for which hee hath received full satisfaction ? answ. 1. the perfect good must for ever hate that which is perfectly evill : so as god can never be at agreement with sin in any ; nay he so hateth sinne even in the justified , that he maintaineth in them a perpetuall combate , and irreconciliable warre against it . 2. they conceive not that anger and love may be at the same time tempered in a father to his children , whom because he loveth he chasteneth . but this hatred is not a simple hatred , or an hostile wrath , or a revenging anger , such as hee putteth forth upon contumacious sinners ; but a loving , fatherly and fruitfull chastisement upon sonnes : neither doth this wrath redound and seaze upon their persons , but upon their sinnes . but these confused men not distinguishing betweene persons and sinnes , cannot conceive how god can hate their sinnes , and at the same time love their persons . neither can they apprehend aright the nature of reconciliation , which is a freedome from revenge upon the persons ; because they are sonnes ; but not a freedome from the chastisement of their sinnes , for then , saith the apostle , they were bastards and no sonnes . object . but ha●h not christ borne all the punishment of the sinnes of beleevers ? answ. yes all the punishment of malediction , which is indeed properly called punishment ; but not of correction : for we must daily beare his crosse , and fulfill the remainders of the sufferings of christ. 2. christ hath most fully satisfied the justice of god for the sinnes of the elect ; so as no punishment satisfactory remaineth to purge or satisfie for sinne past , but there remaineth a monitory castigation , to bring the saints to mourne for sinne past , and to watch against sins to come . object . but can god punish one sin twice ; once in christ , and againe in the person himselfe ? answ. no , if we understand it of the punishment of divine revenge , and not of fatherly correction ; intended not for perdition , but for ●rudition , and caution , and to make them partakers of his holinesse . object . it is true , the godly are afflicted , but these afflictions have no respect to sinne , but onely for tryall . answ. what none ? are they not merited by sinne ? are they not from the just god , whose justice cannot punish the guiltlesse ? farre be it from thee to doe this thing , to punish the righteous with the wicked , gen. 18. 25. surely correction must needs imply offence , and affliction commeth not without respect of sinne , either past , to correct it ; or present , to mourne for it ; or to come , to prevent it . micah 1. 5. for the wickednes of iacob , and for the sinne of israel is all this . lam. 3. 34. man suffereth for his sinne . micah 7. 9. the church will beare the wrath of god , because shee had sinned . object . yea this was in the old testament ; but since that time christ hath dyed , and actually borne the punishment of sinne : and you can bring no such place out of the new testament . answ. hath christ done lesse for beleevers in the old testament than in the new ? did they beare more wrath for their sin than we ? or did not christ carry as much wrath from thē as from us ? was not his death as vertuous to the first ages of the world , as to the last ? or did the vertue of it begin at the time of his passion ? or is not the faith of messiah to come alike precio●s as the faith of him come already ? 2. but have we no place in the new testament to shew beleevers corrected for sinne ? what is that , 1 cor. 11. for this cause many are weake , and are sicke , and many die ? it is too rash to say ( as one ) that these were carnall , and hypocrites ; unlesse they be carnall and hypocrites , that must not be condemned with the world . 1 pet. 4. 17. iudgement must begin at gods house . heb. 12. 6. he scourgeth every sonne whom hee receiveth . why ? because they are sonnes , or because they have sinnes ? object . ioh. 9. 3. neither hath this man sinned , nor his parents ; therfore afflictions are not for sinne : and iobs afflictions were all for tryall , not for sinne . answ. 1. in generall . the difference of the judgements of the godly and the wicked , is not either 1. in the meriting cause , for both are merited by sinne . 2. nor in their matter , being materially both one ; the same sword , the same plague , the same famine , the same blindnesse , sicknesse and death . 3. nor in the ground of them ; for both are threatned and inflicted by the same law. 4. nor in their sence and feeling ; for there is no difference between the smart of sonnes and slaves . but the difference is in , 1. the person inflicting : 2. in the persons bearing and suffering : 3. in the end of god which is not the same : 4. in the fruit and issue which are much different in different persons : the serious consideration of these grounds would let them see wherein their errour lurketh , if they will not be willingly ignorant . 2. for the instances : first , of the blinde man. i answer , that the position of one cause is not the remotion of another , where many concurre : neither doth the affirming of the principall cause deny the lesse principall . god in this judgement principally intended his owne glory , in the honouring of his sonne , and not principally the sinne either of the parents or sonne . 2. christ speaketh not of the meritorious cause of this judgement , but of the finall cause : and so the objection is not to the purpose . secondly , the like we may say of iob , the principall end of his affliction was for tryall , and not for correction : but this excludeth not the meritorious cause , nor proves that there was no correction in it , at least might not be . object . but christ was extremely punished , but not for sinne ; and therefore there are afflictions without sinne . answ. this is as impertinent a cavill , as the case is singular . christ had no sinne in him , but had sinne on him : he had none inherent , but had enough imputed : he had none of his owne , but the infinite burden of all the sinnes of all his members lay upon him ; for which he was plagued of god , because he stood before god as the greatest malefactour that ever was : not because he had proper sinne , but appropriated ; not because he did any sinne , but was made a sinne for us , ●hat we might be made the righteousnesse of god in him : gods justice could not have punished him , if he had not stood before him as a sinner . so the objection turneth quite against themselves . object . but christ by his kingly power reigneth to maintaine in the conscience the peace procured , both against the law , and sinne , and the divell , and the world , and worldly reason . answ. peace without disturbance neither within nor without the apostle knew not , rom. 7. nor yet christ himselfe , who so left his legacy of peace of his disciples , as that notwithstanding in the world they must have affliction . 2. it is enough that christ reigneth to maintain our peace by weakening and subduing the power of sinne daily , although he totally and wholly abolish it not here below ; and fatherly and loving correction rather furthers and strengtheneth his reigne , than hinder or weaken it in us . 10 error . that justified persons have no more to doe with repentance ; and to repent of every particular sinne is to beleeve that a man is not perfectly justified , or at once ▪ but by peece-meale as sinne is committed ; yea it is to undervalue the sufferings of christ , as not ha●ing sufficiently satisfied for all sinnes past , present , and to come . answ. a desperate principle , as much abolishing the gospell , as any of the former doth the law : and indeed no enemy to the law can be a friend to the gospell . but we must know , 1. that never can man be free from repentance , till he be free from sinne to be repented of ; which can never be shaken off in this world . the whole life is but one day of repentance , and repentance is the work of that whole day ; and who but a profane libertine would not have his master find him so doing ? we sweepe our houses every day , and wash our hands every day , because one contracteth dust , and the other soyle every day : much more have we need to cleanse daily the houses of our hearts . see my treatise in●ituled , the practise of repentance , cap. 10. and therein many reasons for con●inuance of repe●tance . 2. they forget that david and peter repented after saith : that the church of pergamus , that kept the name of christ , and had not denied the faith , must yet repent her selfe , else christ will come against her , rev. 2. 12. and 16. and how much cause have the best men to repent of their daily sinnes , that must repent daily of their best duties , which they must confesse are as a filthy clout ? 3. although the spirit by faith assureth the beleever , that all his sinnes are satisfied by the death of christ ; yet the spirit also perswadeth the heart , that in this way of humiliation and repentance we shall receive assurance of remission of daily sinnes , and particular infirmities : for else the spirit should faile in his office , which is to bring even the house of david , and the inhabitants of ierusalem ( that is , true beleevers ) to the fountaine of grace , and stir up in them deepe sorrow and earnest lamentation in seeking pardon for daily sinnes , and speciall provocations against the lord , whom by their sins they have pierced . 4. prayer for forgivenesse of daily sinnes is an act of repentance enjoyned by christ on him that hath formerly repented , is justified , and calleth god father ; as in that petition of his most holy prayer , forgive us our trespasses . 5. they that overflow with love , and outboast all others in their pretence of love , which is so strong and active as they need no other mover , forget that increase of love to god must needs increase repentance and sorrow for offending him : if love be great , so wil sorrow , as in peter . in a word , their harvest of joy is too hasty , and will prove like an inheritance hastily gotten : this is not the time of wiping away all our teares , nor is our dripping seed-time yet over , but even wee sigh in our selves , waiting for the adoption , even the redemption of our bodies , rom. 8. 23. 11 error . that no beleever is to pray for pardon of sinne , seeing all his sinnes past , present , and to come are already pardoned . answ. then must you blot out that petition of the lords prayer , wherein he hath taught those that call god father , to pray daily , forgive us our trespasses : which petition implieth ( as we have shewed ) daily repentance , even in them that have repented . a man would wonder what shift they make to repeat the lords prayer , or to pray in his words , unlesse they have learned the tricke of the olde pelagians , who would repeat the pe●ition for modesty sake , but not out of the sense or conscience of their owne need ; which modesty is indeed a lie , and fained humility . 2. prayer for pardon will stand with assurance of pardon , and assurance of pardon will not stand without prayer for pardon ; for then are we assured of pardon , when we can pray for pardon , god being found favourable onely in his owne way . 3. though wee know our sinnes pardoned , yet must we pray for pardon ; neither doth assurance of pardon and mercy dead our prayer for pardon , but quicken it . christ knew his sheep should never perish , ioh. 10. 28. but yet he prayeth for them , that they might not perish , ioh. 17. 11. he knew that his father would glorify him , but yet prayeth that his father would glorify him , ioh. 17. who will say this his prayer was needlesse ? paul knew that god would deliver him from every evill way , yet prayed for it . so though we know our sinnes to be pardoned , yet it is not needlesse to pray for pardon . 4. though god in heaven have by an eternall sentence blotted out the sinnes of the beleever in the first act of his conversion , and this sentence can never be blotted out , yet we may and must pray for pardon of sinne ; namely , that this sentence of pardon may be pronounced in our owne consciences : and thus it seemes david prayed earnestly for forgivenesse of his sinnes , psal. 51. when he knew long before that god had forgiven them ; for nathan had tolde him , that god had put away his sinne : he prayed that god would not only forgive his sin in heaven , but even in his own heart also . 5. though our sinnes be forgiven even in our owne consciences , yet because of the stain and guilt of new sins our assurance is sometimes weakened , and not so comfortable , wee must pray for pardon of sinne still ; that is for a greater , and more comfortable measure of assurance , and a sweeter taste and apprehension of gods favour in remission of sinne ; for who can taste of this sweet honey , and not long for more ? and whereas our weaknes cannot so firmely apprehend it , and our corruption doth daily weaken it , we must pray for the continuance of our comfort and mercy ; whereof prayer is a principall meanes . 6. suppose we have pardon of sin in the beginnings of it , and some sweet fruites , yet we must pray for it in all the fruits , in all the effects , in the full comfort and accomplishment of it ; for by remission of sinne wee are now freed from the damnation of sinne , and from the domination of it ; yet are we not freed from all the remainders of sin , nor from all fruites , and molestation of sin : for notwithstanding the pardon of our sins , we have the presence of sin , and are in conflict with terrours of conscience , gods just desertions , calamities , afflictions , and feare of death . now must we pray according to our faith for full pardon , even for the full acquittance promised , and that solemne sentence of absolution by the mouth of the iudge , which shal fully and really give us compleat possession of gods whole mercy ; which we now have by right and title , but not in all the fruits , effects , and full comfort of it ; and never doe the saints pray for christs comming without implication of full and finall remission of sinnes . all which manifestly bewray the blacke and blockish ignorance of this erronious assertion 12 error . that preachers ought not to preach the law to beleevers , whom the threatnings of the law concerne not , as being out of the reach of the law , and beyond all feare of condemnation : and these legall preachers deale very lewdly in bringing men backe to the obedience of the law , and so make them seeke righteousnes in themselves . answ. these are merry men , and might well set themselves on so merry a pin , if the way to heaven were so wide and roomy as they imagine it . for 1. neither can they sinne being in christ if they would . 2. neither if they should , could god see it . 3. if hee should chance to see it , he could not bee displeased with it . 4. if he should be displeased , his hands are bound , he cannot correct it . 5. themselves ought not now to sorrow or repent for any sin any more . 6. it is idle to pray for pardon of sin , which is already pardoned , whether it be past , or present , or to come . 7. and now they must not so much as heare of their sinnes any more , and all their religion is turned into a merriment , which they call a meeting with such comfort as they never found before : but this comfort will prove but a laughter in the face , when the heart hath cause to be heavie . for , 1. is there nothing else to be feared of a christian but finall condemnation ? a childe may feare to be whipped , though he feare not to be disinherited : psal. 52. 6. even the righteous shall see and feare . 2. a man may feare that which he is sure to escape ; but this is a feare of watchfulnesse , not of distrustfulnesse . 3. no man is so holy but hath need of threatnings , and faith beleeveth threatnings as well as promises ; not onely barely apprehending them as true and certaine , but with application to decline them , and frame to obedience even in regard of them . this is plaine , because even in state of innocency was use of the threatning to keepe our sinnelesse parents from sinne : and iob a just and holy man by gods owne testimony durst not lift up his hand against the fatherlesse : why ? because destruction from god was as a terrour unto him . and even those that receive a kingdome which cannot be shaken , must serve & please god with reverence and feare ; because our god is a ●onsuming fire , heb. 12. 28 , 29. 4. suppose the threatnings shall never take holde of a beleever , may ●ot hee therefore heare of them ? to heare them is not to cast him into them , but to keepe them off him ; the hearing of legall threatnings is very usefull to the best . 1. it makes them relish and prize the promises of much the more , and sticke faster to them , & hold in the way unto them . 2. the hearing of threatnings kindleth a flame of love to god for delivering from them . 3. incieth our charity and compassion to our brethren , to helpe them from under them , and provoketh the saints themselves to worke out their own salvation with feare and trembling , phil : 2. 11. 5. are we lewd preachers for urging the law upon men ? then why were not christ & his apostles so , in pressing on beleevers the obedience of the law ? yea to the law more strictly expounded than by the scribes and pharises ? and in urging on them a righteousnes exceeding the righteousnesse of the scribes and pharises : which was not an imputed righteousnesse of faith for justification before god , but a righteousnesse of sanctification in their persons performed through grace by themselves . so when our lord affirmeth , that in the kingdome of heaven , that is the church of the new testament , hee that doth the commandements , and teacheth men so to doe , shall be called great : that is , shall be highly esteemed : was hee a lewd and false teacher , leading men away from himself , and the grace of the gospell ? or if he were not , why are wee so for teaching the same doctrine ? 6. no man can teach obedience of faith , but therein he must teach the obedience of the law also : for the same workes are both the works of the law , and the workes of faith ; which are distinguished , not divided . for example . love or charity ( which containeth all the duties of the second table ) is called a worke of the law. luk. 10. 27. what is written in the law ? how readest thou ? and he answered , thou shalt love the lord thy god , &c. thus it is a worke of the law in respect of canon , rule , direction . but it is called also a fruit or worke of faith . iames 2. 17 , 18. shew me thy faith by thy workes : and , faith worketh by love . thus it is a worke of faith in respect of the cause , and adhaesion , being an inseperable issue of it . how can a man persuade love as a worke of faith , and not the same a worke of the law ? 7. how false and absurd is it to say that preachers teaching obedience to the law of god , teach men thereby to hang upon their owne righteousnesse , or to seeke their justification by their owne performances ? far are we from teaching that iudaicall righteousnesse , performed in way of justification ; all which is a filthy ragge in the sight of god and his strict justice . but we persuade a christian righteousnesse of sanctification wrought by the spirit of holinesse ; ▪ of which holy obedience are many other uses ( which they are loath to see ) besides the justifying of their persons in the sight of god. as , 1. it is called for in way of christian conversation , that our light may shine before men . 2. in way of imitation of christ our head , and of conformity of his members to his righteousnesse , which derogateth nothing from his righteousnesse . 3. in way of testification of our righteousnesse before god : for hee that doth righteousnesse is righteous , 1 ioh : 3. 7. thus having set downe these twelve articles of libertine and famelisticall faith , i will content my selfe therewith , although i could have easily set downe twelve more , so fruitfull and generative errour is : but that i intended in this onely to give a proofe of their grosse ignorance in principles of religion , which was that i undertooke . i could easily have refelled that mysticall and spirituall ( but fantasticall union of theirs ) with christ before faith ; their sanctification before justification , their elevating the sin of infidelity , ( which strongly savours also of liberty ) as that it is no sinne ; or at least of the morall law , wherein i will not strive ; though i am sure the scripture maketh it a sinne of sinnes : and christ calleth it , the great condemnation : and perhaps they shall holde a more sound tenent , that shall holde it both against the law , and gospell . for 1. it may be not unprofitably enquired , whether the first commandement doe not binde to all commandements both ordinary , and eztraordinary , both d● praesenti , and de futuro : whether the law doe not binde us to beleeve all that god shall utter , as well as what hee hath uttered . 2. whether the second commandement doth not enjoyne whatsoever is a meanes of salvation , and an inward religious worship , for then the contrary must needes be sinne . 3. whether it be not a sinne against the second cōmandemēt , not to beleeve that branch of the same commandement , that god will shew mercy to thousands of them that love him , and keepe his commandements . and if it be , then infidelity is a sin against that law. but i forbeare many things , and perhaps some will thinke i might have spared some paines in refuting the former , which at the first sight are so distastefull to the judicious , as the reciting of them might seeme a sufficient confutation : but my desire of helping the weake , who are easily overreached , drew mee thus farre beyond mine owne purpose ; and my endeavour was to contract many things into as narrow a roome as i could . chap. 7. shewing the second ground of this opposition , which is horrible pride , especially discovered in their ridiculous conceit of perfection . the undivided companion of ignorance is pride ; for no man that ever aright knew god or himselfe , but the nearer he approached to god with abraham , the more did he humble himselfe in dust and ashes . but here is a generation of men swelled up with pride , and blowne up with a presumption , that they are gotten into the highest forme of perfection : they can scorne and disdaine the directions of the law , as being far beyond it ; for they have attained a full perfection not of justification onely , but of sanctificatiō also already ; they are free not onely from the power of sinne , but from the presence also : christ himselfe is not purer , or more free from sinne than they are : nay being borne of god they cannot sin if they would : if they doe acts of sinne in high nature ; yet where is no law is no transgression : god cannot see them in that glasse . hence they can loose themselves from most ministeries , but some teachers of their owne sect ; and deride the holy labours of godly preachers , who with zeale and piety persuade men to walke according to rules . oh what an height of pride are those private peremptory persons come unto , who complaine that their heads have aked to heare some godly and worthy preachers ; and have professed , that for the gift of two pence they would never more heare sundry such , as i know to be of long continuance as shining and burning lights ; as they may well be in the first ranke of gods worthies , that have beene of best desert in our church . and where is the humility of that teacher that makes his bragge , your teachers understand not mee . no ? the more is your sin and shame . doe you preach amongst a tumult of artizans , and illiterate men , so as our ministers cannot understand you ? what is the reason you doe so hide your selfe ; seeing light feareth nothing but darknesse , and truth nothing but to be hid . i must say to you , as ierome of the crabbed poet persius : if you will not be understood , you ought not to be read : so if you will not be understood , you ought not to preach ; unlesse perhaps it may be more beneficiall to the church , that if you doe preach , you be not understood . alas that men professing the doctrine of godlinesse , and pretending the practise of wisedome and sobriety , should by the pride of their hearts become thus disguised , and transported into raptures and fits next to frenzie and madnesse . but against this windy conceit of perfection i will now say the lesse , because i have dealt more fully against this pernicious errour before in the third chapter . yet here 1. let it be considered wherein the scripture placeth the perfection of saints here below ; and that is not in the want of sinne , but in the fight against sinne ; and not in the absence , but in groaning in the presence of sinne . for 1. would christ teach men without sin to pray daily for forgivenesse of sinne ? 2. would hee command those to pray daily not to be led into temptation , that cannot sinne if they would ? 3. did hee ordaine the sacrament of the supper for men perfect , that want nothing , to whom nothing can be added ; or to the sicke , who neede the physitian , and to such as hunger and thirst after righteousnesse , which is a sen●e of defect , not of perfection . 4. are they in holinesse and perfections of grace beyond the apostle paul , who many yeares after regeneration complaineth that he found evill present with him , and a law in his members rebelling against the law of his minde ; and professeth that he had not attained , and that all is here in part , and imperfect till that perfect come . 5. are they perfect without sinne , why doe they then as other sinfull men doe ? hath death any commission where is no sinne ? or if their sinnes be gone , and their persons justified , and yet they die : why deny they that any correction abideth any whose sinne is pardoned , unlesse they will say they die onely for triall . secondly , sanctification hath three degrees in this life , the highest of which is imperfect . 1 is the death of the body of sin . which is not all at once , but resembleth the death of christs body on the crosse , which was diminished by degrees , till his spirit by his last breath was surrendred to his father . thus is it in the christian , whose last breath of sinne , and of the body goe out together . the second degree is the buriall of the body of sinne , which is a further proceeding in mortification , as buriall is a proceeding of death , and a consumption of the dead body not all at once ; but by little , and little . so mortification is not an act of a day , but of the life . the third degree of sanctification , is a raising from the grave of sinne to a new life , by vertue of christ his resurrection : that looke as a graft set in to a new stock , draweth juice and life from that stock , not all at once and then no more ; but still draweth , and by drawing , groweth by degrees unto the full height and age of it : evē so is it here , christian life is continued as naturall by dayly supply and addition of that which is daily wanting . god indeed if he had pleased , might in a moment have freed his servants from all sinne , as well in life as in death ; but he wold not : because his wisdome procures himselfe more glory in his protection and assistance of the saints : and in the victory of his servants against sin , than if they were free from sinne . the fiercer the enemies were that rose up against moses in the wildernes , and against iosua in the land of canaan , the more it turned to the glory of gods mighty power , in giving them possession in despight of them all . and so greater honour returneth to the lord , because greater is his grace in making the sinnes of the saints remedies of sinne ; to humble them for sinnes past , to shame them for sinne present , and to worke in them feare & watchfulnesse against sinne for time to come ; then if he should at once abolish sinne in them . all which , these men shake off their hands as easily as sampson did the greene cords , when the philistins came upon him . thirdly , as he that exalteth himselfe must be brought low ; so the scriptures shew those to be in highest estimation with god that have beene , and are least in their owne eyes : abraham seeth himselfe but dust and ashes . iacob seeth himselfe lesse than the least mercie . gideon saith of himselfe , who am i ? or what is my fathers house , but the least in all israel ? iudg : 6. 13. iohn baptist , than whom a greater was not borne among women , said , i am not worthy to loose the latchet of his shooe . the centurion , i am not worthy that thou shouldst come under the roofe of my house . peter , goe from mee , lord , for i am a sinfull man. paul , i am the least of all the apostles , but the chiefe of all sinners . but we never read nor heard those vaine voyces from any truely regenerate man : i am perfect . i am pure , so as nothing can be added unto me : i cannot sin if i would : gods eternall power can see no sinne in me : i am beheld no otherwise then christ himselfe , for i am christed with christ , and godded with god : i will neither greive for my sin , nor pray for pardon of sinne , and the like . no no , true grace ( which st. august : calleth the first , second , and third grace of christians ) would keep the heart from these high staires , and straines of pride ; it would fetch them off such mounted thoughts , and change them into mournefull complaints , that they must needs , will they nill they admit the cananit and iebusits within their borders , & that they must finde sinne in them as a law forcing them to the evill they would not . rom. 7. 24. and godly experience concludeth , that humility is a signe of worth , but hautines is never without emptinesse and vanity . emptiest vessels sound lowdest ; and the husbandman liketh better those heavie eares of corne that hang downe their heads , than the light and empty ones that stand so upright . fewer words would serve wiser men . i will onely say to this proud perfectist , as constantine the great did to acesius one of the proud bishops of the catharists , set up a ladder acesius , by which thou alone maist climbe to heaven . chap. 8. discovering the third proper ground of this opposition , which is affectation of licentiousnesse , and love of a lawles liberty , ioyned with hatred of holinesse , and the power of godlinesse . as pride attends ignorance , so an inseperable fruit of pride , is vainly to be puft up by a fleshly minde , not holding the head : for pride resteth not in those low and humble principles of christ , but not enduring gods yoakes , nor the suit and service of christianity , raiseth vaine reasonings against obedience , and plotteth new devises for more scope and elbow-roome than the gospell alloweth them that must walke in the strait and narrow way to eternall life . and this righteous judgement of god hath overtaken this sect of men with whom wee deale : of whom , the apostle affirmeth , that while they promise liberty , themselves are the servants of corruption . i know that many that as yet know not the depth of satan in this errour ; nor are dived into the mysterie and mischiefe of these opinions , doe conceive more slightly of their tenents , and more charitably of their persons than there is cause ; and some may thinke it were fitter they should fall of themselves , than be thrust downe by the hand and strength of others : and that the labour might have beene better bestowed against more dangerous persons , and fundamentall errours much more prejudiciall to the truth of the gospell . but i wish such to consider whether any errour can be more pernicious than that which rejecteth all rules of holy , and strict walking with god ? what will it availe us to contend for , or establish a faith which is dead , severed from the life and fruites of holinesse ? or what greater enemies can we deale against than enemies of righteousnesse , who are not onely fallen from the abnegation of the knowne and received truth , but to the oppugnation of it : a fearefull fruite indeede of their declining : but men having once lost the way of truth , know not where they shall lodge . and it will not be amisse to looke into their modell of new divinity , and how cunningly they have molded the whole lumpe , and kneaded it together , that every peece and position of it may let themselves loose from all bands of duty and obedience . for , 1. they must not live in the presence of god , nor hold him in their sight as a god seeing their sinnes or actions , or displeased with the evill of them : and why now should they forbeare any sinne ? 2. they must not acknowledge god a rewarder of his owne grace , or any good duty to which he enableth : and how then can they desire to doe good , or be good ? 3. they must not see their sin a violation of the law , nor as it is an enmity against god , nor as causing wrath to worke in them either humiliation for sinne past , or detestation of sin present , or feare of it for time to come . 4. neither gods will , nor their owne wills moves them not to forbeare any sinne : not the former , because they are free from all lawes ; not the latter , because the will of man is turned against sin by vertue of inherent holinesse wrought by the spirit ( which they disclaime ) so as onely the light of their mind may condemne it ; and the unseemelinesse of it in a professour may restraine it , else they are loose to any . 5. they cannot be sick of evill motions , nor detest evill thoughts , nor watch against temptations , nor care for the purging of their hearts ; for how can they sinne being born of god ? or if they could , they are not to be countable for any sin , nor can god take notice of thē . christs most innocent soul was vexed with the molestatiō of injected motions of evil , though instantly rejected , but these must not , they are so holy 6. they must not live by any rules , but by a wilde and spatious pretence of immediate , and enthusiasticall direction . enemies are they to perswasion and exhortations ; for because christs perfections are their perfection . in vaine it is to perswade either for good thoughts into the minde , or good inclinations into the will , or good actions into the life . they desire not their hearts , nor wills , nor actions to agree with gods law , for it is quite abolished . and much lesse doe they turne the precepts of god into prayers as the saints ever used to doe . oh with what violence must headstrong men be caryed unto unrighteousnesse , when the word as a bridle must not hold them in , nor check or controll sinne in the soule , to lessen either the power or practise of it ? 7. they must not brooke any longer the difficulty of repentance , nor endure the paines of mortification , because they cannot deny ●hemselves , nor must they ever remember sins past , as the saints have done with much ●●uite , both 〈…〉 owne hum●liation , deut. 9. 6. ● . and for their excitation to gratitude and thankfulnes to god for mercy , as the apostle 1 tim 1. 12. 13. 8. that they may hold their sinnes more securely , they free themselves from all feare of woe and judgement , and from all the strokes of god , or his word , and so by themselves dote in a false peace . for gods hand cannot reach them , for he cannot be displeased with their sinnes , and much lesse temporally correct them : and thus they refuse all crosses , either as meanes of mortification , or of profiting in holinesse . heb. 12. 7. psal. 119 71. and they flye the stroke of gods word , in a faithfull and free ministery , and cannot endure this legall preaching , as men that must hold their sinnes ; but must not heare of them , nor beare reproofe of their iniquity . 9 to all these profane opinions , they disclaime all precepts , and practise of sanctification , and all increase in holinesse . they revile the preachers that call and urge men by rules and motives to sanctification , as calling men backe to the justification of the law. what a case now are these mē in ? how can they expect heaven , that not only loose themselves from the holines of them that must be inhabitants there , but hate it , and resist it ? whereby they cast themselves from the turret of perfection , farre below the state of nature . for though every naturall man is destitute of personall holinesse , and of the love of it ; yet every naturall man will not disclaim , revile , or contest against it . 2 how can they justifie their calling , and out-boast all men in the assurance of their calling ? seeing there is no effectuall calling but unto holines . 1 thes. 4. 7. god hath not called us to uncl●anes , but unto holines . and if every beleever be a saint by calling , how can they be called that sever sanctification ( that is the love and practise of holines ) from effectuall calling ? they onely have received the grace of new creation , that are created to good workes , which god hath ordained to walke in , eph : 2. 10. 3. how doe they frustrate the end of their adoptiō , which they pretend ▪ for why are wee adopted to be sonnes , but to bee made conformable to the image of christ ? for can he be a sonne that beareth not the image of his father ? that onely was cesars coyne that carried cesars superscription 4. may this loose conceit prevaile , the maine office of christs priesthood shall be in vaine , both in respect of his sacrifice , and of his intercession : his sacrifice , because for this cause he sanctified himselfe , that beleevers should be sanctified through the truth , ioh. 17. 19 his intercession and prayer is that the elect may be sanctified , verse . 17. father sanctifie them . shall christ as a priest sacrifice himselfe , and make such earnest prayers for sanctification of beleevers ? and is there no such thing , or if there be , may not we preach it , and vrge it ? or can any libertine disavow and scorne it , but hee must also renounce & reiect the priesthood of christ ? i hope no man will cōceive these to be slight things which entrench upon the foundation . 5. but how comes it to passe , that they reading the scriptures , and in them so many , and so expresse and vnavoidable places ▪ calling the saints not only to the study , and practise of holinesse , but also to growth and encrease in holinesse , that yet they should persist in this delusion ; yea and defend it against so cleare a light ? surely because they will not submitt to gods authority , but have pulled them selves from under his rule , he hath in justice put them out of his favour , and given them up to themselves , and to satan to blinde them , who are so willing to bee blinded : and hee is cunning enough under a pretence of christian liberty to hold thē in perpetuall chaines of spirituall bondage ; else could they not seeke to elude so cleare places . as 1. cal us to holinesse , 1 thes. 4. 16. 4. this is the will of god , even your sāctificatiō . 1 pet. 1. 15. be ye holy in all maner of conversatiō , for it it is written , be ye holy as i am holy . 2 which call gods people to increase in holinesse , 1 thes. 4. 1. we exhort you to increase more and more , and this is a commandement given us by our lord iesus christ. verse 2. 2. pet. 3. last , but grow in grace , and in the knowledge , &c. 1 cor : 15. 58. be abundant in the work of the lord. rev. 22. 11 let him that is righteous be righteous still , and let him that is holy be holy still . is now the spirit of god idle in all these and the like precepts ? or doth hee call men now to the justification of the law ? or is he idle in his exhortations to sanctification ? or are wee so while wee urge men in the words of the same spirit ? the objections are light and windy , as the opinion it selfe is . 1 object . that beleevers are carried by an inward principle of new creation : a good tree cannot chuse but bring forth good fruite , without all these outward motives . answ. the principle of good fruit is within the sappe in the roote , but there be externall helpes , without which it will never be produced ; as the sun , the soyle , the ayre , the shewers , the gales of winde . so a beleever , a tree of righteousnesse , hath an inward principle flowing from his root , which is christ , without whom he can doe nothing ; but it is fruitfull by meanes not to be neglected , because they are of his owne appointing , and wherin he wil make us fruitfull . 1 cor : 15. 10. by the grace of god i am that i am : and his grace was not in mee in vaine ; but i laboured , though not i , but grace in me . 2 object . god spirit is all in all , and doth all in us , and we have nothing to doe . answ. god leadeth beleevers by his spirit into good workes , and produceth holy acts in them , but not without use of meanes . for 1. he puts the law into their hearts : 2. transformes them by obedience into the image of the word : 3. he still prompteth and suggesteth according to the word , in the things of gods glory and worship ; the spirit incites to the use of the meanes of grace , of the holy ordinances , to the pleasures and delights of gods house , and such things as uphold our spirituall being . 3 object . but christ is our righteousnesse , and sanctification ; what use of any righteousnesse or holinesse of our own ? answ. christ is not the righteousnesse of justification to any person that is not washed , and sanctified , 1 cor : 6. 11. 2. none can be righteous by a righteousnesse infused from christ , but thence floweth an inherent righteousnesse renewing our nature : for he gives us a godly nature , and purifieth our soules by the spirit : and thence issueth an externall righteousnesse of life , which is an evidence of our justification by faith : for he that doth righteousnesse is righteous . 4 object . but what can be added to perfection ? if we be not compleat in christ , there is defect in his merit ; and they that drinke of his waters thirst no more : and wee can desire no more than wee have in christ. answ. but that perfection here to which nothing can be added , is the dreame of waking men , contrary to the scriptures , contrary to the practise of saints , whose studie was and is to increase more and more . contrary to their experience , the best of whom complaine , that they have not yet attained , nor never shal , till that perfect come . contrary to their prayers , and vehement desires after further grace . contrary to the nature of true grace , which is still desirous of more . for it is not possible , but that they which have tasted how good the lord is : should desire the sincere milke of the word to growe by it . 2 the saints have not so drunke as yet , that there remaineth no thirst after christ ▪ for there is a twofold thirst . the former is of totall indigency , or a whole want of christ ; and this is satisfied in the beleever , that hee shall never so miserably thirst againe . the latter is a thirst after a more plentifull fruition of christ and his spirit , and graces ; and this is never fully satisfied in this life , but the privation of the former thirst , is the generation and position of this latter . revel . ●2 . 17. let him that is athirst come . 5. object . but we are called to the liberty of the gospell , and are free from all compulsion of lawes , and from all other rules than the motions of the spirit : for where the spirit of god is , there is libertie . 2 cor. 3. 17. answ. what kinde of liberty this is , we have seene already , which is not from the rules and direction of the law , for the apostle saith not , that wee are called to libertinisme , or a freedome from obedience to doe what we list , as being without the reach of the law ; but a freedome from the rule , and command of sin , and a sweete peace and ease in in the soule , not grounded on rejecting the commandements , but rather upon a free and sincere regard and love of them . thus david professeth , that hee will walke at libertie , not because hee will cast off the precepts , but because hee did seeke the precepts . but we have stayed long in discovering 1. the ignorance , 2. the pride , 3. the profane licentiousnesse of this schisme : wee must proceede to that which followeth . chap. 9. answering some of the principall objections of the libertines . 1 obiect . is this our text , rom : 6. 19. ye are not under the law , but under grace . whence thus they reason . to them that are not under the law , but under grace ; to those the law doth not belong , but it is to them abolished and void : but beleevers are not under the law , &c. therefore . answ. 1. there is a twofold being under the law. first , a being vnder the curse , burden , malediction , condemnation , and coaction of the law ; thus no beleever is under it . secondly , there is a being under the obedience , rule , counsell , and direction of the law ; and thus beleevers are under it much more than before ; as christ himselfe also was . for they are now by the free spirit of christ framed to a free and voluntary obedience of it . so saith august : the law made us guilty by cōmanding but not assisting ; but grace assisteth every beleever to be a keeper of the law. 2 this objection will be also fully satisfied by applying the former distinction of the law. considering it 1. in the matter and substance of it . and thus beleevers are still under it ; both for performance of all holy duties of it , and forbearance of all the evills prohibited by it : 2. in the manner of obedience , and in the consequences , and appendices of it ; and thus are they not vnder the rigor , coaction or strict exaction of it , and much lesse under the curse , malediction or condemnation of it . but this objection hath beene before abundantly satisfied in the 2. & 3. chapters . and therefore i passe it now more breifly . 2 obiect . gal. 3. 10. so many as are under the workes of the law , are under the curse . therefore , either the law is utterly void to christians , or they are still under the curse of it . answ. the apostle saith not , that those to whom the law appertaineth , are under the curse ; but those that are under the workes of the law. 2. the workes of the law are twofold . either workes of obedience , done in humility , by way of duty , in testimony of thankfulnesse , and of our conformity with christ. or 2. workes of the law done in pride , to seeke justification by the law , and the workes of it , and so to promise to themselves eternall life by the observation of the law . and those onely that are thus under the workes of the law , are under the curse : and the meaning of the holy apostle is no other , whose scope in his whole discourse is to beate downe such as sought to set up justification by the workes of the law , and not by faith onely ; as appeares plainly in the next verse 11. for that no man is justified by the law in the sight of god is evident , for the just shall live by faith . but though no beleever can in the second respect bee under the workes of the law for justification ; but he must be under the curse of it : yet it follows not that hee is not under the workes of the law for obedience , and yet not under the curse of it . this place is indeed an hammer and hatchet against popery , who by seeking iustification by the workes of the law , thrust themselves under the curse of god ; for if the curse , attacheth him that seeketh righteousnesse before god by moses law ; how much more accursed are they that by observation of humane laws and traditions , by humane satisfactions and impositions , seeke to demerrit god , obtaine without christ , what onely christ can procure . the greater is their sinne and danger , who after the knowledge and profession of the truth for some politick and worldly ends runne back into recusancy , and popery , which is the way of perdition , apparently renouncing the blessing of justification by free grace ; and chuse the curse of the law , which shall runne into their bowells as water : of such apostacy may be said as of iudas , it had beene good for them they had never beene borne . obiect . 3. to whom the law is not given , to those it belongs not at all , but the law is not given to the righteous , 1 tim. 1. 9. therefore it belongs not to beleevers being justified . answ. 1. the scope and intention of the apostle is not to abolish the law , who in the words immediately going before saith that the law is good if it be used lawfully : which words clearely import and imply , that among beleevers there is a good vse of the law , which true use hee shewes in the fifth verse , namely , to be a guide and direction to the duties of love and charity , which is now the effect of faith , as the words plainly show : for the end of the commandement is love , out of a pure heart , a good conscience , and faith unfained . note , that the apostle maketh that love which is the end of the commandement , a fruite and effect of faith : and therefore a beleever is not loosed from the love and obedience of the law by faith , but tyed unto it . 2. the sence of the apostle is not , that a righteous man can be under no lawes ; for adam in innocencie was a most righteous man , and yet was under the law , both in generall , under the whole morall law ; and in speciall , under the law concerning the forbidden tree : and this law was given to the most righteous man in the world . innocency and righteousnesse in perfection exempts no creature from the law of his creatour . but the apostles meaning is , that the law is not given against a righteous man , that frameth his course according to the law ; it dealeth not with him as an enemy that assenteth unto it , that is delighteth in it in the inner man , that is ruled and ordered by it ; it can pronounce no sentence of damnation against him ; it neither can justifie him who is already justified by faith , nor yet can condemne him . and that this is the true meaning of the apostle appeareth by 2 arguments in the text . 1. in the originall word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which implieth an action or plea of god against a man ; and that the law is not gods action , or plea against a righteous man to bring him under judgement , or subdue him under the sentence of it ; for christ hath freed such a one from the curse by his merit , and obedience , as also by his spirit made him a lover of the law. and this is the same in sence with that of the apostle , gal : 5. 23. against such ( namely as expresse those recited fruites of the spirit ) there is no law : for the law is so farre from condemning such , as it is a witnesse rather of their conformity to it selfe , and consequently of their love and obedience unto god , and of their similitude with iesus christ. 2 argument in the text is , in that the lawlesse and disobedient are said to be wrapped up in the full damnatory power of the law : against all whom it is gods plea and action , yea the bill of inditement to their condemnation . 3. neither is the law given to the just , to wring obedience from them by terrours , or threatnings , or expectation either of threatnings or rewards : the just are not under the law in this servile manner of obedience , as are the lawlesse and disobedient : for by a free spirit of grace they doe the works of the law , so farre as they are regenerate ; and the law to them is not a compelling commander , but a sweet and faithfull counsellour , and rule of life . but although the law be not given to the just , to fasten any crime or curse upon them , nor to exact personall , and perfect obedience for righteousnesse before god ; nor to force , compell , or rigorously exact obedience from them : will it follow , that it is no way else given unto them ? or not as a rule of direction for obedience , and a line and square of good works and christian life . and these answers will fully satisfie all those other places of like sound and sence : as gal. 5. 18. if yee be led by the spirit , yee are not under the law ▪ rom. 7. 6. now ye are delivered from the law being dead unto it : that is , yee are freed from the law as it is the strength of sinne , as it irritateth , and provoketh to sinne , as it did while wee were in the state of nature , as it wrapps the transgressor in the curse , and as it forceth it selfe by terror and constraint : for now the beleever serveth in newnesse of spirit , not in the oldnesse of the letter ; that is , freely from a renewed spirit obeyeth the law as the rule of holy life . obiect . 4. gal : 5. 1. stand fast in the liberty wherewith christ hath made you free ; and be not intangled againe with the yoake of bondage : that is , say they , the law ▪ gal. 3. 13. christ hath freed us from the curse of the law. answ. it is not said that christ hath freed us from the obedience , or command of the law , but from the curse of it ; which we question not . 2. christian liberty is not a freedome from the obedience of it , but rather from the disobedience of it : rom. 6. 18. being free from sinne , ye are made the servants of righteousnesse : we are called to liberty , but we must not use our liberty as an occasion to the flesh ; but to frame to the commandement , by love to serve one another , gal : 5. 13. where the apostle plainely proveth , that christian liberty looseth us not from the observation of the law , but straitly enioyneth it , for the whole law is fulfilled in one wo●d , which is love ▪ v. 14. 3. ●s they 〈◊〉 the same stone , so i● must returne upon themselves , we must therefore againe tell them , what are those parts of ●●ristian liberty , which the apostle aymeth at : and if they thinke that the apostle best knew his owne meaning , they shal take them from himselfe . the first of them is , freedome from the burden of legall ceremonies , sacrifices , circumcision , and beggarly rudiments , which were heavy yoakes ; which being abolished by christ , christians must never entangle themselves with them any more : and that the apostle directly speaketh of these in the place alledged , see v. 2 , 3. if yee be circumcised christ shall profit you nothing : therefore stand fast in your liberty . the 2 branch of our liberty is from the curse of the law , in that christ was made a curse for us : with which most ponderous and pressing yoke we must never entangle our selves any more , by seeking justification by the workes of the law , and to settle us firme in this our liberty is our apostles ayme and argument . gal. 3. 10. 13. the third branch of our liberty is freedome from perfect impletion , and personall performance of the whole law for justification : for thus we are no more debters to the law , gal. 5. 3. nor must ever returne to that bondage to seeke righteousnes and justification by the law , in whole or in part : for christ is become of none effect unto you , whosoever of you will be justified by the law , yee are fallen from grace , verse 4. the 4. branch of our purchased liberty by christ is a freedome from the threats and terrors of the law , compelling and forcing obedience : and now not feare but love must chiefly const●aine us to duty ; not compulsion , or carnall respects , must ca●● , u● as slaues to the commandement , but now discerning the holinesse , excellency , and righteousnesse of the law , the heart is moved freely to runne the ways of god , gal. 5. 25. if wee live in the spirit , we must walke in the spirit . obiect . 5. the law of moses was given onely to the iewes , and was to endure but vnto christ , luke 16. 16. the law and the prophets were till iohn . and christ is the end of the law to every beleever , rom. 10. 24. answ. 1. the law for writing , and some circumstances was given to the iewes by the hand of moses : but in respect of the substance , and matter obedience , belongs unto all men of all ages and nations . because , 1. it must stoppe every mouth both of iew and gentile , rom : 3. 19. 2. it must judge every man according to his work , both iew and gentile . 2. it seemes the prophets are abolished as well as the law. but i hope they will not say , that all the doctrine of the prophets is abolished . it is true , that the whole propheticall doctrine , which did signifie , or prophecy , or promise good things to come ; when christ was actually come , received accomplishment , but not abolishment : which is tertullians distinction . but much other positive doctrine of the prophets , is as usefull and proper to us , ( for whom it is by speciall divine providence reserved ) as it was to the ages to which it was first directed . and even so the law , which in respect of shadowes was to continue till iohn ; in the substance of it is a permanent and everlasting doctrine , directory , and deriveable to all the ages of the world . 3. christ is the end of the law ; but as augustine wittily distinguisheth ; the perfecti●g end , not the destroying end . for , 1. he was the end or scope , unto whom the law , especially the paedagogie of moses was directed . 2. hee was the end also of the morall law , because hee fully and perfectly obeyed the law , and so the law in him attained his proper end , as it had not else done among all the sonnes of men . 3. he is the end of the law , on whom all the male diction of the ●aw fell fully , and perfectly , and had on him full accomplishment . 4. he is the end of the law , in whom all the blessings and promises of the law attaine their end ; for they are all in christ yea , and amen : all of them in him , & for his obedience , are exhibited & compleat . 5. he is the end of the law to every beleever for righteousnesse , in that he doth bestow and impute unto us that full righteousnesse which the law requireth of us ; and in that by the donation of his spirit , hee kindleth in beleevers a new obedience framed unto the law ; so as they begin a renewed obedience of it in earth , and fulfill it perfectly in heaven . whence issueth a cleane contrary conclusion . if christ be the end of the law , wee are therefore faster tyed to the obedience of it than before . very false therefore is that position , that the law is at such an end , as it can nore command a man in christ , than a dead man can command his wife ; or a master his servant when hee is made free . to which traditionary doctrine carried from woman to woman i answer . 1. that the apostle saith indeede , rom : 7. 4. that by christs death wee are dead to the law ; namely in regard of the curse , and of those rebellious motions excited in us by occasion of it ; and in regard of the terrour and rigour of it ; as a woman is from the threats and rigour of a dead husband : but the apostle saith not , that the law is dead either in respect of the direction of it , or our obedience to those directions . 2. as the apostle saith , we are dead to the law : so he sheweth the end of our freedome from so hard an husband ; namely that wee might be married to another : i. to christ raised from the dead ; the effect of which marriage is not a barren life , but to bring forth fruit unto god : the blessing of the marriage betweene christ and the faithfull soule is fruitfulnesse before god ; so as this death of ours to the law bringeth in a new subjection unto it : which is indeed the height of our christian liberty here , and proceedeth from the spirit of freedome . 3. his shift is too short to shuffle from the first covenant to the second ; and as false is it to say , that the law is the rule in one covenant , and not in another : as if the matter of the first covenant and second were not one and the same ; the righteousnesse , and obedience of both were not one in substance , differing in manner of apprehension and application . shall any live by vertue of the second covenant , that doth not these things , or that brings not the righteousnes of the law in himselfe , or his surety ? chap. 10. resolving sundry other objections alledged to prove the abolition of the law. obiect . 6. to whom all the commanding power of the law , under paine of the curse , and the enjoyning of good workes for justification : as also to whom the condemning power of the law is abolished and ceased , to them the law is altogether made void , and abrogated . but to beleevers both such commanding power , and condemning power is ceased . and therefore , &c. and thus they further explaine it . suppose a justified man commit adultery , or murther , or be drunke , the law of god can take no hold of him , nor the just god can punish him by the law , being utterly abrogated to such a person . answ. the former proposicion is apparently false for the law both for ma●ter and forme stands in force to justified persons , and retaineth on them a commanding power , and enjoineth on them good works , although the manner of commanding in the rigor of it is to them abated : for how ord●●●rily did christ and his apostles command the workes of the law to beleevers , and that under strait penalties read math. 5. and 6. chap. and telleth his followers that when they have done so farre as they can all the things of the law ; they have done what was their duty , and that they were bound unto , luke 17. 10. 2. these confused men distinguish not betweene the condemning power of the law and the law it selfe ; yet this distinction cutteth the si●ewes of this obiection : for can it prove the law itselfe abolished , because the condemning power of it is to some removed by christ ? or if certaine uses of the law bee abolished , as in way of righteousnesse , life and salvation ; or in way of terrifying , accusing , or condemning the iustified by faith : must therfore the law it selfe , and all other uses of it be abolished . 3. what beleever conceives himselfe under the commanding power of the law , to bee iustified by it ? or to expect to stand righteous before god by their obedience ? as these men vainely dreame : no they have other ends of their obedience to the commandements of the law. as , 1. to testifie their indeavor in obeying the righteous law and will of god , and their conformity to his image in the same . 2. not for the justification of their persons , for that is onely by christs compleat obedience made theirs by faith ; but for the testification of their iustifying faith : according to the direction of the apostle , iam. 2. 20. shew me thy faith by thy works . 3. not for the attaining of salvation it● pet. 1. 10. give all dilligence to make your election sure . how may we ? for if wee doe these things &c. 4 not to merrit any thing , but to encourage themselves in the way of obedience , by casting eye on the blessed remuneration freely promised , and performed to duties of love to god , and man ; begun and perfected by faith in christ. heb. 11 ▪ 26. moses had respect to the recompence of reward . yea our lord himselfe , for the joy that was set before him endured the crosse and despised the shame . heb. 12. 2. all these are other ends which beleevers propoūd to themselves in their obedience then to be justified by it . 4. i answer , it is utterly false and wicked , that gods law taketh no hold of a justified person committing hatefull sinnes , as of murder , adultery and the like . for although christ have freed him from the curse and vengeance , and the eternall damnation of his sinne . rom. 8. 1. yet may the law take hold on him for a stinging correction , and a sharp punishment according to the scandall of his sin . did not the law take hold on david , when with so many other evills ; gods sword was upon his house for ever , for his scandalous sins ? did not gods law lay hold on moses & aaron , then whom none was more faithfull in gods house ; when for sinne they lay under sharpe rebukes , and chastisement , and were barred the land of canaan ? object . but these were examples in the old testament , before christs death . answ. and are not beleevers in the new testament subject to the same law , and penall statues of correction ? were not examples of the old testament examples to us that wee should not sinne as they sinned ? how could we sin as they did , if we were not under the same law ? or what else but the law taketh hold on beleevers in the new testament , when for the unworthy use of the lords ordinances they are judged of the lord , even for this cause , saith the apostle . object . some say , they were hypocrites that were judged . answ. as if they be hypocrites that must not be condemned with the world . 5. but of all their assertions , tha● is a● blinde as bo●de , that if god call a beleever to account for the breach of his law : hee may say , god hath nothing to doe to call him to account : hee may refuse to be tried in that court. if god shall say , leave such a sinne ▪ or be damned ; doe such a duty , a●d ●e saved : he may say , we will doe neither the one nor the other on these tearmes . well may he say , and more , that his tongue le ts fall unseemely tearmes : and it hides his nakednesse but a little to droppe out , that his meaning is , that god hath nothing to doe to call a beleever into the court of nature . for howsoever hee will teach god what hee hath to doe , or what he hath not to doe ; he might long since have beene taught , that god will require of us even that righteousnesse which he put into our nature : and that is a talent which we must be countable for as well as any other . obiect . 7. those that have the spirit of god for their rule , and doe all by a free spirit , they neede not the law to rule or urge thē : to them it is vaine and needlesse . but all beleevers have the spirit to rule them ; and they doe all by a free spirit . therefore . answ. the former proposition is false , that those that have the spirit to rule them , have no neede or use of the law : and as grosse to conceive the spirit and the law contrary : which are indeed inseperable : for the law is the instrument , the spirit is the workmaster ; the law is the rule , the spirit the applier of that rule . the spirit is so farre from destroying the law , that he writeth it in the inner parts , he addeth clearenesse and light unto unto it ; he worketh love and delight unto it . 2. it was ever the wicked conceit of libertine enthusiasts , that the spirit worketh our obedience immediately , and by himselfe alone , rejecting all meanes ; whereas he worketh it in us ordinarily by the word , the law and the gospell . ioh. 16. 13. the spirit sent to beleevers , shall not speake of himselfe : but whatsoever hee shall heare , that shall he speake . he is in himselfe the spirit of illumination , but enlighteneth beleevers by shewing them what is to be done by the law , and what is to be beleeved by the gospell . 3. is the spirit therefore a free spirit , because hee frees us from the law ? no verily , but because he sets us free to the performance of it . this reason holy david gives us , psal : 119. 32. i will then runne the way of thy commandements , when thou hast enlarged or set mee free . or is that the duty of a free and willing subject to cast off the lawes of his king ? no but most freely and willingly to obey his law : and this is the freedome wrought by the free spirit in free and ingenious christians . 4. to say , we obey god by by the spirit without a law or a commandement , is a meere non sence : for is any obedience without a law ? is not our rule to doe onely what the lord commandeth ? what can be more ridiculous than for a subject to professe obedience to his prince , but yet hee will not be under any law ? and to say they obey of love , and yet obey no commandement , is as fond and false . 1 ioh : 53. this is the love of god , that we keepe his commandements , and his commandements are not grievous ioh : 14. 15. if ye love me , keepe my commandements : love must ever looke to the commandement . obiect . 8. those that are under the law of christ , are not under the morall law. but beleevers are under the law of christ , gal : 6. 2. and so fulfill the law of christ. therfore . and thus doe they further unfold themselves , that wee may understand them : consider ( say they ) men as creatures in their naturall being , thus are they under the morall law given by their creatour : but consider them as redeemed and new creatures , they are freed from that law , and onely tyed to precepts taught by christ in the gospell : which teacheth to deny ungodlines and worldly lusts , and to live soberly justly and godly in this present world : tit : 2. 11. answ. here is a whole bundle of errours to be untied . 1. the proposition is false , that beleevers who are under the law of christ , are not under the morall law ; seeing the law of christ is for substance the same with the morall law : for what is the law of christ in the place alledged , but the doctrine , precept , and commandement of christ enjoyning the love of our brethren , & bearing their burden : which the apostle opposeth not to the morall law , ( as these sectaries doe ) but enjoyneth it as a more necessary law , than all that heape of ceremonies to which the false apostles would have brought them backe : against whom he strengtheneth the beleevers of that church , through that whole epistle . 2. it is frivolous and popish to conceive the gospell a new law : for is not the covenant of grace the same in the old testament , and new ? and did not the holy men in the olde testament , mose● david , samuel , daniel , and the rest enjoy the same covenant with us or were they saved by another gospell than we ? or did not they frame their lives to the same sobriety , righteousnes and holinesse that we doe ? 2 did not the apostles preach and write the gospell ? yet 1. ioh. 2 , 7. they professe : we write no new commandement , but the old which yee have had from the beginning . and what was that , but the same which was written in mans nature before the fall , and after written by gods finger in tables of stone : which same commandement , though he call a new commandement in the next verse ; that is not , because it is another in the substance , but the same law of love renewed , and reinforced upon new grounds by christ the great law-giver . and ratified both by his owne doctrine and example , and in this new manner it was never urged before . 3. so farre is the law of christ fro● 〈…〉 morall law 〈…〉 according that 〈…〉 of s. august . the law knowes to command , but the gospell to assist to the commandement . true it is , that christ abolished all lawes that made difference betweene man and man , iew and gentile , eph. 2 14. yea and the morall law , so farre , as it made difference betweene god & man beleeving . and 2. as it is opposed to the gospell : and 3. as it hindreth entrance into the kingdome to beleevers . and 4. as any thing in it was accidentall , significative , circumstantiall or tempoall . but all matters substantiall , essentiall and eternall , christ by his law hath confirmed to continue for ever . this harmony of the morall law and christs law , judicious calvin in his harmony avoucheth , the whole law ( saith hee ) agreeth with the gospel both in condemning the sa●e vices , and commanding the same vertues . and if this be so , then certainly it destroyes not the law. and pare●s on rom : 10. 14. saith , they erre that thinke the law repugneth christ in the gospel . 4. it is little under blasphemie , that they oppose the father , and the sonne , as if they had diverse wills ▪ divers rules , or contrary lawes ; wheras the son professet● , that hee spake nothing from himselfe , but from the father ▪ ioh. 5. 16 : besides , how doth ignorance befoole them , in ●e●ling us that christ as 〈◊〉 hath loosed us from the obedience of the morall law due to our creator ? for is not god the redeemer the same with god the creator ? is any honour due to the father for creation , that is not due to the sonne for creation ? ioh : 5. 23. that all men should honour the sonne as they honour the father : or is any honor due to the son for redemption , that is not due to the father for redempt ● ? did not god the father give up his son for our our redemption : & shall not we well requite him in casting off all duty belonging to him as our creator ? or can the addition of the greatest & most singular benefit that we are capable of , loose us from our former duty , or rather tie us faster ? certainely the gift of christ for our redemption , doubleth , and fastneth the bond of love and dutie betweene our creator and us , but no whit doth slacke or loosen it . such poore shiftes , and doubts are they driven un to , as a silly hare close followed , and hard runne . chap. 11. shewing how these libertines runne against the streame of our worthiest writers , graciously instructed to the kingdome of heaven . it is not unusuall with impostors , when they ure driven off the authority of the scriptures , to shroud and hide themselves with some humane testimonies wrested , and for most part distorted from the true meaning and intention of their alledged authours : and even so doe these men pretend that they have the consent and authority of sundry protestant writers , of great note and name in the church , to strengthen and confirme their novelties : wherein they are impudent to admiration ; seeing there is never a learned man that ever i met with that sideth with them in the abrogation of the law ; nay not any , but as occasion is offered , doth urge the morall law as of great use to guide all true beleevers , and justified persons in the right way of godlines , and all christian dutyes . with what boldnes doe they claime mr. luther to be wholly theirs , and themselves to bee wholly of his judgement : and that they hold nothing in this point but what they sucked from his breests ? let us therefore see in this one instance how they serve all the rest . and first i affirme that m. luther was so farre from being an antimonian ▪ that no man doth more expressely and soundly overthrow and contradict this wicked opinion than he , neither can any man desire a stronger humane witnes against thē thā m. luther . read his words with a pause and judge . satan ( saith hee ) stirreth up daily new sects : and now last of all he hath raysed up a sect of such as teach , the ten commandements are to be taken out of the church , & that men should not be terrified with the law. and after , such is the blindnesse and presumption of franticke heads . and are they other that challenge luther the patrone of a sect , which himselfe saith , the devill hath raised ? and page 171. he speaketh of three sorts of men that abuse the law. first those that seeke justification by the law. secondly . those that will utterly exempt a christian man from the law , as the brainsicke anabaptists went about to doe . and of this sort are very many also at this day which professe the gospell with us , who dreame that christian liberty is a carnall liberty to doe whatsoever they list , &c. on cap : 3. 25. and on cap. 3. 19. pag : 153. here i admonish ( saith hee ) all such as feare god , and especially teacher of others , that they diligently learne out of paul to understand the true and proper use of the law ; which i feare after our time will be troden under foote , and utterly abolished by the enemies of the truth . it is easie from these words of mr. luther to collect , that , 1. hee did not conceive the law thrust out of all use by christ : for then why should men fearing god learne the true use of it ? 2. that if hee feared men would abolish it , then his judgement was it ought not to be abolished . 3. that if hee esteeme this sort of men that would abolish the law , enemies of the truth : then certainly he is not their patron in this loose and carnall opinion . and pag. 154. forasmuch as wee diligently and faithfully teach these things : we doe therefore plainly testifie , that we reject not the law , and workes , as our adversaries doe falsely accuse us : but wee doe altogether establish the law , and require the workes thereof , and wee say the law is good and profitable . and cap : 5. 14. pag. 254. it is necessary that godly preachers should as diligently teach the doctrine of good workes , as the doctrine of faith : for satan is a deadly enemy to both . is luther now yours ? is hee not as contrary , and directly contradictory to your foolish tenents as the sunshine of midday is to the darkenesse of midnight ? doth not he disclaime you as adversaries , yea as false accusers , while you challenge a line or syllable of his doctrine in the patronage of your delusions ? you reject the law , and workes ; he professeth , he rejecteth neither : you abolish the whole law wholly ; but he establisheth it : you reject them for legall preachers that teach not christ aright , who urge men to the duties of the law ; but he imposeth it as a necessary part of their office to urge the law , yea as necessary as to teach the doctrine of faith . for shame therefore never claime luther more , nor father your fooleries on him , than whom you have no stronger enemy . object . but doth not mr. luther say , on ●ap . 3. 28. that christ hath abolished all lawes of moses that ever were ? answ. y●s , all the lawes of moses whereof he speaketh in that place : for take the whole sentence , and yee shall know his minde . where christ is put on , ( saith he ) there is neither iew , nor circumcision , nor ceremony of the law any more : for christ hath abolished all lawes of moses that ever were : that is , all ceremoniall lawes . yea and the morall law so farre as in moses hand accusing , terrifying , and condemning the beleeving conscience : in which regard it should be utterly ignorant whether there were any moses , any law , any iew. ibid : object . page 177. so many as are justified , are justified not by observation of mans law , nor gods law , but by christ alone , who hath abolished all lawes . doth not mr. luther clearely say , that all lawes are abolished ? answ. nothing is more true ; for even the morall law in respect of justification is abolished to the beleever , which is mr. luthers expression : but that either the law it selfe in the substance of it , or in respect of all other uses is abolished , luther saith not : and wee say with luther , accursed be that doctrine , life , and religion , which endeavoureth to get righteousnesse before god by the law , or workes thereof . ob. luther on c : 4 27 p. 222. saith , that a christian laying hold on christ by faith , hath no law , but all the law to him is abolished with all his terrours , and torments . and page seque : we say that the morall law , or the law of ten commandements hath no power to accuse , and terrifie the conscience in which iesus christ reigneth by grace : for hee hath abolished the power thereof . answ. and we say so too , and holde it our happinesse to beleeve this sweet gospel . but luther speakes here , and every where else of certaine uses of the law , either for justification , righteousnesse and salvation ; or else for terrour , accusation and condemnation : and thus wee have proved long since , and at large , that it is abolished to the beleever . 2. we say , that to abolish the power of the law , is not to abolish the law : and to abolish the power of accusing and terrifying , is not to abolish all the power of it . and all their shreddings and cuttings , and poore allegations out of mr. luthers workes , doe onely prove the magnifying the article of christian righteousnes against the righteousnesse of the law , and workes : wherein luther was for the singular good of the church most vehement : but none of them doe so much as glance at the abolishing of the law as a doctrine or rule of life ; which mr. luther not in a few places acknowledgeth to binde all men from the beginning of the world to the end of it . but whereas no man better knew mr. luthers judgement than his owne schollers and followers , it will not be amisse to heare them expressing their masters minde in this argument , and delivering unto us what they received from him , from whom to depart in any thing they held almost piacular . chemnitius a most learned and moderate lutheran , in his common place de lege cap. 10. and 11. directly refuteth these antinomists , and sheweth that the regenerate are not under the law in respect of justification , accusation , condemnation , or coaction : but yet affirmeth a threefold use of it in the regenerate : 1. as a doctrine to direct in duties : 2. as a glasse to see the defects of them : 3. as a correcter , and restrainer of remanent corruption . in all treading in the very steppes of of luther , as we have declared . fredericus baldwinus a learned professour in wittenberg , passionis typicae lib : 2. typ : 6. hath these words . christ our saviour by his most holy merit hath hid and covered ( alluding to the propitiatory ) the tables of the law ; not that we owe no further obedience unto it , but that it may not strike with maledictiō those that are in christ : for the law is abrogated by christ , not in respect of obedience , but in respect of malediction . many more were easily induced to speake the same thing ; but i content my selfe with these , from whom none of the rest dissent : and conclude , that if mr. luthers schollers understood their masters doctrine better than these libertines ; then they sew but a fig leafe to cover their nakednesse , by stretching any of mr. luthers phrases to the proving of their profane opinion . and as mr. luther hath abundantly cleared unto us this truth , so have we the consent of all godly , learned protestant writers both ancient and moderne , whom i might induce as a cloud of witnesses ; not like that cloud which elias his servant did see as bigge as a mans hand , but like the same cloud when it covered the whole heavens . my spare time is not so much , nor perhaps the readers , neither in so cleare a case were it so needfull to make this volume swell with such numberlesse testimonies of orthodox divines , as professedly refute this profane and lawles , and as brainles a fancy . i will onely therefore shew these delinquents against the law to be cast by the verdict of an whole iurie of godly divines . and because they shall not deny but they have faire triall and proceeding , we have empannelled twelve men , the most of which they acknowledge their friends and well-willers , ( even as they challenge mr. luther the foreman to be wholly theirs ) and one man shall not speake for all , as in ordinary trialls ; but as it is in great and extraordinary trialls , every one shall deliver his owne sentence . the first of them is mr. calvin , who in the second booke of his institutions , cap. 7. sec. 12. having spoken of two uses of the morall law ; addeth a third , which especially concerneth the faithfull : namely that therby they must daily more certainly know what is the will of god to which they aspire : as also by the frequent meditation of it , they should be excited to the obedience of it , and strengthened in that obedience , and restrained from the offences of it . in the 13 section he answers the libertines objection : but because the law containes the ministration of death , therefore christians must reject the law. farre be from us ( saith he ) such a profane opinion : for moses excellently sheweth , that the law which can beget nothing but death among sinners , hath among the saints a better and more excellent use : and what that is hee sheweth , namely to be one , perpetuall , and inflexible rule of life . in the 14. section he answereth at large that objection , that the law is abrogated to the faithfull , speaking still of the morall law : namely , not that it doth not still command what is right as it did before , but that it is not that to them as it was before , in terrifiyng their consciences , confounding , condemning and destroying them . in which sense saith he , paul manifestly sheweth that it is abrogated ; not in respect of institution of life , but of the former vigorous obligation of conscience . sect . 15. thus have i abridged m. calvine his larger tractat upon this argument , wherein wee see him wholly consenting to the doctrine we have propounded through our whole discourse . adde only her unto that in the 3 booke cap. 19. sect 2 christian libertie , consisteth first in this : that the consciences of the faithfull in the confidence of their justification before god , must lift themselves above the law , & forget the whole righteousnes of the law ( yet saith he no man must hence collect that the law is needlesse : for it doth not therefore cease to teach , to exhort , and incite to good , though before gods tribunall it hath no place in their consciences . the law therefore , by mr. calvins de e●mination abideth by christ a● inviolable doctrine , the which by teaching us , by admonishing , by rebuking , and by correcting , doth secure & prepare us to every good worke . the second is reverend beza , in his defence against castillion , on rom. 7. 6. farre be it from me saith he , that i should assent to you , who say the law is dead to them , to whom it is cheifly alive , that is , those that are most obedient unto it , meaning beleevers . for a king doth not more manifestly regine over any , thē those which freely and willingly obey his lawes . see also his judgement constant to himselfe in his annotations upon 2 cor. 3. 11. in what regard the ministery of moses is abolshed ; concluding that the ministry of the law is ever to be retained in the church . and in his notes upon 1 ioh : 2. 7. he saith . neither is the law abolished by the gospell so farre forth as it commandeth that which is right : but onely so farre as it threatneth death to all that doe not perfectly fulfill it : and as the law by the terrours of death admonisheth us to think of seeking life in the gospell , so the gospell supplieth us with the grace of regeneration , whereby according to the measure of the spirit and grace , we begin to will and to doe : that now the law becommeth to us in respect of the inner man , a sweet master , as the apostle plentifully teacheth , rom : 6. 7. and 8. chapters . the third is learned doctor whitaker , the iewell of the vniversity of cambridge , who when duraeus the iesuite objected against mr. luther the same which these libertines affirme of him , that it was his judgement that the decalogue appertaineth not to christians ; thus gravely answereth : that luther most truly affirmed the decalogue , that is , that condition of the decalogue , either of full and perfect obedience , or of malediction for disobedience not now to pertaine to christians ; because christ to them hath taken away that condition . 2. that luther saith no more than the apostle doth in sixe or seven places there alledged : and therfore they must first accuse the apostle , or through luthers sides wound the apostle . 3. he sets downe his owne judgment most expresly . the law ( saith he ) pertaineth to christians ; neither did luther ever deny it : for that justice of the law is immortall , and every one ought to indeavour with all his strength to live mo●t exactly according to the prescript of the law. thus we have this pro●ound and most worthy doctour affording us a double strength ; and together with 〈◊〉 brings us mr. luther wholly and constantly avouching the same truth which we have defended through our whole discourse . the fourth is , judicious mr. perkins , from whose gracious mouth and ministery i received in my youth often the same holy truth , as now in his fruitfull writings appeareth every where . as in his golden chaine , chap : 31. having set downe the use of the morall law in the unregenerate , he cōcludeth , that the use of the law in the regenerate is farre otherwise : for it guideth them to new obedience , which obedience may bee acceptable to god through christ. and upon gal : 3. 12. hee answereth this question ; why the lord saith , he that doth the things of the law shall live : considering that no man since the fall can doe the things of the law : and sheweth that still the lord repeateth his law in the olde tenure : 1. to teach that the law is of a constant and uncheangable nature : 2. to advertise us of our weaknesse and shew us what wee cannot doe : 3. to put us in minde still to humble our selves , after we have begun by grace to obey the law ; because even then wee come farre short in doing the things which the law requireth at our hands . and on verse 23. he inquireth , that now seeing faith is come , what is the guard whereby wee are now kept ? answ. the precepts of the morall law. the sayings of the wise are as nayles , or stakes fastned , to range men in the compasse of their owne duties . ecclesiast . 12. 11. and most plainely he coucheth our whole doctrine concerning the law , in the answer of our question upon vers . 15. eiusdem capitis . the question is how farre the morall law is abrogated . answer . three wayes . 1. in respect of iustification . 2. of malediction . 3. in respect of rigour . for in them that are in christ , god accepteth the indeavour to obey for obedience it selfe . neverthelesse ( saith he ) the law as it is a rule of good life , is unchangable , and admitteth no abrogation : and christ in this regard did by his death establish it . rom. 5. 31. and on c. 4. 5. the law must be considered two wayes . first as a rule of life . thus angels are under the law , and adam before his fall , and the saints now in heaven : and none yeeld more subjection to the law than they , and this subjection is their liberty . againe consider it as a grievous yoke three wayes , none can beare it , &c. and in his treatise of conscience , cap. 2. saith , that the morall law bindeth the consciences of all men , at all times to obedience . the fifth is our learned and industrious doctor willet : bellarmin ( saith he ) is not ashamed to slaunder us , that wee affirme christian liberty to stand herein , that we are altogether freed from the obedience and subjection of the law : vt moses cum suo decalogo nihil ad not pertinent . but we call god and all the world to record , that we witnes no such thing : knowing tha-christ came not to dissolve , but to fulfill the law. here therefore bellarmin fighteth with his owne shadow . but christian liberty consisteth in three things that we are exempted : 1 from ceremonyes : 2 from the curse and guilt : 3 from the servitude and reigne of sinne . &c. and upon exod. cap. 20. commandement 10. quest . 9. saith thus . the morall law is not now in force quoad justificationem : that is , in respect of justification ; but it bindeth quoad obedientiam , in respect of obedience , for we are boūd to keep all the precepts of the law : but yet quoad modum obedientiae et terrorem , in respect of terrour , and rigorous manner of obedience we are not bound . &c. the sixth is that grave and learned bishop downam , whom i must honourably mention , not onely for his worthy parts and labours in the church ; but in the speciall reference of a painfull and worthy tutor and teacher of my selfe in the vniversity . that right reverend bishop , in his treatise entituled , the doctrine of christian liberty , doth exactly ( as his manner is ) open and cleare this whole doctrine , and in section or paragraph 15. hath these words : the papists charge us , that wee place christian liberty in this , that we are subject to no law in our conscience , and before god , and that we are free from all necessity of doing good works , which is a most divelish slander ; for though we teach that the obedience to the law , is not required in us to iustification : but that wee are free from the exaction of the law in that behalfe : yet we deny not , but that unto sanctification , the obedience of the law is required , & we by necessity of duty bound to the observation therof . and againe , we confesse to be free from obedience , is to be servants of sinne , and the willing & cheereful worship of god is true liberty . and we acknowledge that the morall law of god is perpetuall and immutable , and that this is an everlasting truth , that the creature is bound to worship and obey his creator : and so much the more bound , as he hath received the greater benefits . and after , the more a man is assured of his free justification , the better he is enabled , and the more he is bound to obey it . and the law hath singular use in them that are justified , 1. as a rule of direction for al obedience . 2 as a glasse of detection of our imperfection to keepe us humble . 3 as a rod of correction in respect of he flesh and old man for mortification &c. and concludeth that section thus . we are therefore in our sanctification freed , though not from the obedience ; yet from the servitude and bondage of the law , in three respects . the seventh is , that learned bishop davenant a speciall ornament of our church , and one worthy to succeed that famous iewell in the sea of salisbury . in his elaborate commentary upon coloss : hath these words on cap : 2. 14. seeing this handwriting of the law is abrogated and abolished in respect of the damnatory power of it ; wee gather that it yet retaineth a directory power ; wee may not therefore hence take to our selves a liberty to sinne , but an alacrity in our service to god , &c. the eighth is , bishop cowper ▪ an ingenious and reverend divine , who in his fruitfull commentary on the 8. to the romans , delivereth himselfe wholly unto us in this point , & in the end of the 4 verse hath these words : albeit by christ we be delivered from the curse of the law , yet wee are not exempted from the obedience thereof . in respect of the one , the apostle said , we are not under the law , but under grace . in respect of the other he had said , that the law is good , and our saviour protesteth , he came not to destroy the law , but to fulfill it , both in himselfe and his members , not onely by righteousnes imputed , but also inherent . for the law stands to us as a rule of our life ; wee love the holines thereof , and strive to conforme our selves unto it . the ninth is that most sound and learned professour of divinity in basil , amandus polanus , who in the 6. booke of his syntagma cap. 10. proveth the decalogue , which is the summe and substance of the morall law , to belong unto beleevers , and is of great use among christians , by nine strong arguments . i will forbeare the recitall of them , because the booke is common , and easie to be consulted . the tenth is learned amesius , professour of divinity in the vniversity of franeker , who speaking of the morall law saith , that although in respect of the faithfull , it is as it were abrogated , both in respect of the power of justifiing which it had in the state of integrity : and in respect of the power of condemning , which it had in the state of sin : yet it is of strength and force , in respect of the power of directing . yea , and it reteineth ( saith he ) some power of condemning : because it rebuketh , and condemneth sinne , even in the faithfull : although it cannot indeed condemne the faithfull themselues , that are not under the law , but under grace . the eleventh is hieronimus zanchius , a laborious and perspicuous writer . who in 1 ioh. 2. saith , that the observation of the law is necessary to a christian man : neither can it be seperated from faith . and in his common place on eph. 2 : loco quinto de legis mosaicae abrogatione , sect . 9. speaking of the morall law saith , consider the substance of it , it is manifest that it is not abrogated : that is , that christ hath not delivered us from our duty , whereby wee are bound according to the eternall will of god , to worship god , to love our neighbour , and to demeane our selves honestly and modestly , &c. and after , if we consider the substance of the law , that is , the summe of doctrine concerning piety ; wee deny with christ , that the law is simply abrogated ; who said , i came not to destroy the law. but if wee consider the accidents which wee have declared , it is manifest that it is abrogated . thus mr. zanchius wholly agreeth with us in our grounds laid downe for the opening of the point : cap. 2. the twelfth is our owne worthy estius , from whose learned tongue i received many gracious instructions in my youth whilest he lived in the vniversity . this godly man in his exposition on the commandements , pag : 37. saith , that the law shall keepe the use that ever it had since the fall till the generall resurrection , and therefore is as needful now to bee understood as at any time . to whom agreeth bucanus , who saith , that the law in respect of the precepts of it shall not be abolished neither in this life , nor in the life to come ; for god requireth perpetuall love both toward himselfe , and toward the creatour suo ordine , &c. loc . de lege . all these worthies have passed a joynt sentence against these violaters of gods most righteous law , and pronounce them guilty of high treason & transgression against the lord ; and of spreading scandalous words and writings against the dignity , equity and validity of his eternall law ; and so against himselfe the most righteous judge and authour of it : and in so high and presumptuous a sinne , in vaine expect they that any should pleade for them . it was elies speech to his sonnes , sonnes of belial , that is , lawlesse men , and libertines , that knew not the lord. if one man sinne against another , the iudge shall judge it : but if a man sinne against the lord , who shall pleade for him ? verse 25. which implieth a sinne of an high nature directly against god , and very hardly forgiven : surely so is this sinne of an high nature directly against the glory of god , and the majestie of his law ; yet upon their returne and repentance , as they have a mediatour in heaven to pleade pardon , so also the saints in earth cannot but pleade and pray for the pardon of those for whom christ in heaven pleadeth : and even so is our earnest prayer that they may be helped out of their errour , and come backe into the way of truth . but in one sence ( howsoever they applaud themselves ) they have none to pleade for them , never a learned man , nor judicious divine that came in my hands , or under mine eye in all my reading for these many yeares ; nor any classicke authour that leaneth that way . i must needes witnesse to mr. calvin , that they learned not their delirium ( as he calleth it ) out of bookes . and if you will yet persist selfe-wise , and ascribe more to your selves , than to all the protestant divines of such singular learning and holinesse ; then may you make use of my service in producing so many godly writers and witnesses against you ; to fill up your list and catalogue of false teachers that preach not christ aright : and to the names of london preachers , which your scandalous scattered papers , and lost libells mention as pharisaicall enemies to the truth now by you discovered : you may put in calvin , beza , whitakers , perkins , and the rest of the godly bishops , and renowned doctours , who are so cleare also against that which you call truth . it will make a greater noise , that you can contemne such conquered adversaries : for what are your london ministers to them ? much rather doe i wish you would in time consider how dangerous your way now is , while you rise up against the most impregnable , and unconquerable law of god : how the scripture brandeth them for wicked men , that forsake the law , and depart from the law ; and much more that disclaime and revile it . and if those that be partiall in the law , that is , take some , and leave some , be made despised of god , and vile before all people : how much more shall those that reject it all , and in every part , bee justly branded ( as you are ) for a vile generation of men . chap. 12. containing the conclnsion , and a short direction how the people of god should carry themselves towards the law of god. these premises being all duely considered , it remaineth that such as desire to learne christ aright , should take his directions how to demeane themselves towards his law , which is so holy , just , and good . to which purpose it shall not be amisse to lay these grounds in our consciences , and order our selves by them . first , that in the liberty from the law , consists the chiefe stay and comfort of a christian ; because being now freed from the guilt of sinne , from the curse of sinne , and from exaction of an inherent and personall righteousnesse to justification : hee may now without respect of his owne obedience , and without regard of any righteousnesse of his owne , relie upon the mercies of god , and merits of christ , and challenge his righteousnesse before god , with the the apostle , phil : 3 9. secondly , that upon this liberty of justification , ( wherein is no respect at all of our personall obedience ) issueth another liberty of sanctification ; which is a freedome from the bondage and staine of sinne , not wholly and at once , ( as is our justification ) but in part and degrees : and here although the obedience of the law be quite shut out of our justification , yet it is required unto sanctification , and we necessarily bound unto it ; but not to bee thereby justified , seeing wee must necessarily be justified before we can be obedient . thirdly , that the law is an eternall doctrine , and abides for ever ; yea david saith , it endures for ever in heaven : that is , not onely his decree appeares stable by the government , and perpetuall law which hee hath set in the heavens , and cannot be broken : but as saint basil expoundeth it , it abideth inviolably observed by heavenly inhabitants , even the holy angels themselves : so as though it may be contradicted , controverted , and resisted by libertines on earth ; yet it is not abrogable for ever , but abideth stable in heauen . doe the angels in heaven observe it as a rule of holinesse , and doe not the saints in heaven ? doe they live by divers charters ? and if the saints in heaven , who have attained full perfection , and perfect sanctification , are bound to the law , are the saints in earth so perfect , as they are loose from it ? hath not christ done as much for them as for these ? fourthly , that the law of god is the rule of godly life : in which regard holy david calleth it a counseller , and a directer unto good duties : and therefore wee must acknowledge the necessity of this part of the word . the sunne is not more necessary for the day , nor the moone to governe the night , nor a lanterne or candle for a darke house ; than this part of the word , so long as wee are in the night of the world : for without this light we grope in the darke , nothing can be seene , no action can be well done , nothing wanting can be found , no crooked thing can be straightened , no streight thing tried ; nay all our way in which this light of god shineth not , is darknesse , and tendeth to utter darknesse . the pillar of the cloud and of fire , was not more necessary to israel in the wildernesse , for their station or motion towards canaan , than is this shining pillar of gods law to guide us unto heaven : and as it was their happinesse that their pillar lasted them till they entred canaan ; and it had not beene for their ease to have rejected it in their way : so ought we to esteeme our selves happy in the fruition of this holy doctrine , and direction ; and on the contrary these libertines to be unhappy men , who being in as darke , as heavie and dangerous a way , and wildernesse , put out their light , and breake to peeces , and cast away their lanthorne . fifthly , being the rule of godly life , we must square all our duties thereby ; even as a workman applieth his rule to every part of his worke , and declines not to the right hand or to the left : and holy wisdome requireth no lesse , but that , that should be the square of all , which must bee the judge of all things done in the flesh be it good or evill . and hence is it that the lord writeth his law by his spirit in the spirits of the elect , and imprinteth it in the fleshly tables of their hearts , that all their motions , actions , and affections should be conformable unto it . but how doe these lawlesse men , affirming the law to be wholly abolished , denie it to bee written in their owne hearts ? and consequently that they want the spirit , promised to be sent into the hearts of the elect for this purpose : and that either themselves are none of the elect , or that the spirit is wanting in his office , which were an high blasphemy . sixthly , that as the law is a reveiler of duty , so it is a reveiler of sinne too : and discovers the sinfull defects of our best obedience . and because by the law is the knowledge of sin , therefore by the obedience and works of the law can no flesh be justified . that same law that discovereth and condemneth a traytor , cannot acquit him : and it were madnes for him to expect life , from that law which hath sentenced him with death . shall franticke papists ever finde life and righteousnesse by the works of that law which condemns that very fact ? and are not they next to fr●nzy , that after all this so open disclaiming it ; would fasten upon us , that because wee teach the law , wee therefore teach justification by the law. nay , we are so farre from consenting to any such poysoned assertion . that when the gospell promiseth salvation and eternall life , to repentance and good works , wee deny them promised to these , as performances of the law , but only as they are fruits of lively faith , by which the promises of eternal life are apprehended . seventhly , that the law being a constant reveiler of sinne , wee must by the law be still drawne neerer unto christ : not onely by the law to see our sinne , and in our sinne our need of christ : but we must see the law fulfilled for us in christ : else can we never looke comfortably towards the law. and because it revelleth sinne : not onely before we come to christ , to bring us first unto him , but it reverses sinne when we are come to christ : wee must by it be brought to christ still . and it is false that they say , that the law is indeede a scoolemaster to bring us once unto christ , but then wee have done with it , and it with us ; for it must ever bring us to christ ▪ so long as by sinne wee estrange our selves from him , or him from us . that place in galat. 3. 24 , 25. nothing contrarieth our doctrine : after faith came we were no longer under a schoolmaster : that is , such a schoolemaster as it was . the place is notably opened by learned pareus , to whom for brevity sake i remit the reader . eighthly , wee must conceiue the law in the substance of it , the image of god written in the heart of adam in innocency , and by the finger of the same spirit written in the hearts of all the elect : and consequently must feare & tremble to sin against this law , which floweth from the righteous nature of god , and the impugning of which is the violating of his owne image , and nature , so farre as wee can reach it . a man may breake the princes law , and not violate his person ▪ but not gods : for god and his image in his law , are so straitly united , as one cannot wrong the one , and not the other . ninthly , wee must frame our selves to love this righteous law , for this image of god ingraven upon it : yea and the more that wicked men hate and resist it , the more that sonnes of belial rise up against it ; wee must love it the more , obey it so much the more , maintain and defend the power and honour of it , with so much the more zeale and earn estnesse , so did holy david , ps. 119. 126. wicked men have destroyed the law , therefore i love it above fine gold ; where the prophet concludeth them enemies to god , that are enemies to the law. and 2. that then is the time to pleade for god and his law , when wicked men most oppose and oppresse it . now then is the time when the godly must awaken themselves not onely to observe , but also to preserve it . finis . notes, typically marginal, from the original text notes for div a13556-e190 contra legis adversarios . adversus furiosam sectam libertinorum . nemo miretur aut consternetur cum tam insolitos , & ab omni ratione alienos errores cernas : calv. 2 thes : 2. quod hostis machinatur in perniciem , convertit deus in adiutorium : aug : epist : ad sextum 105. deus ecce furentibus obstat . optimus portus poenitentiae mutatio consilii : cic : philip ▪ etiam loquendum cum ecclesia recte sentiente : cyprian : sublime et tumidum dicendi genus ; pere grino quodam idiomate loquuntur , ut qui ipsos audiunt prima facie stupefiant . calv : advers : libert : c : 2. quemadmodum circulatores , aliique errones , &c peculiari sermonis genere utuntur● vide cap : 7 eiusdem libri . 2 cor : 4. 2 non est humano aut seculi sensu in dei rebus loquendū . hilar. lib. 8 de trinit . sequamur loquendi regulam quam tradit scriptura , neque extra illos fines evagemur . calv. cap : 7. 1 cor : 14. 9 notes for div a13556-e1070 it is the priviledge of beleevers , not to be under the law. 4 reasons . gal. 3. 10. the danger of being under the law , in 4 things how a man may get from under this dangerous state . habak . 2. 4. sixe notes of tryall , to know one gotten frō under the danger of the law. ephes. 2. 10 ▪ notes for div a13556-e1870 the substance of the law in 5 things . psal. 119. 89. the beleever is under the whole substance of the law. seven appendices of the law , in none of which the beleever is under the law. rom. 8. 3. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in which regard it i● called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈…〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod non lic●t acrius urit . gens humana ruit in vet●tum ●e●as . regenerat are not without a law. 1 tim. 1. 8 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . nor under the law in 5 respects . but under , that is , within the compasse of the law notes for div a13556-e2950 psal. 2. 2 , 3 iudg. 16. 9 1 reason all the same sins are forbidden after faith as before . rom. 7. 7. 1 ioh. 3. 4. the saints are perfect not perfectists . psal. 119. 120. rom. 7. 15. 19. 23. hypocratis magis fomentis , quam monitis nostris indigent . non dicit non peccat , sed non dat operam peccato . beza . qui ambulant in viis domini , non operantur peccatum , et tamen non sunt sine peccato . august . in psa. 118 conc . 2. non peccare dei iustitia est , hominis iustitia , indulgentia dei. bern. ser. 23 in cantic . nunc bene vivitur si sine crimine ; sine peccato autem qui se vivere existimat , nō id agit ut peccatum non habeat , sed ut veniam non accipiat . aug. enchirid. haec est regeneratorum perfectio , si se imperfectos esse agnoscant . august . 2 reas. the same duties are required after faith as before . quod accuratius christus exposuit , magis pertinere ad christianos creditur . 1 cor. 4. 21 2 cor. 5. 11 3 reas : christ cam not to abolish the law , and therefore it is not abolished . christ cam not to destroy the law , why ? but to fulfil it , how ? rom. 8. 2. 4 reas. nor the apostles abolished the law. lex et fides mutuo se iuvant , mutuo sibi dant manus . p. mart. but confirme the authority of it . 1 ioh. 1. 9. dicatur mihi in decem praeceptis quid non fit a christiano observandum . cant. faust. lib. 3. fides impetrat gratiam qu● lex impletur . quia quae in lege dicta sunt facienda , per fidem ostenduntur facta . ambros. 5 res : every beleever is bound to strive to conformity with the law. 1. in his inner man ▪ iustificati amici legis efficiuntur . ambr. in rom. 8. qui dicit se diligere legem mentitur ; tam enim amamus legem , quam homicida carc●rem . 2. in his outward man. 3. in his whole man. notes for div a13556-e4740 nisi dum scriptu●ae bon●e intelliguntur ō● bene , & quod in ijs non ben● intelligitur , etiam temere & audacter asseritur ; aug. expos . in ioh. trac . 18. habent ●crip●uras● a● sp●ciem , non a● salutem ▪ de● baptis contra donat. lib. 4 ▪ the first maine ground of this schism ignorance hi quidem hom●nes indocti sunt , ac idiotae , qui non usque adeo evolvendis chartis sunt exercitati , ut exijs de●●ria sua addisc●re potuerint . instruct. advers . libert . cap. 1. alter cubicularius , alter hostiarius libenter fieri sustinuer●t . cap 4. c●usdem libri . iune 12. ignorance of the end of christs comming . 2. of the nature of the gospel . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . rom. 1. 5. 3. of the nature of faith . godly life is nothing but keeping commandements . hab. 2. 4. wee are meere patients in the causes of blessednesse , but not in the conditions of it . christs righteousnesse onely gives right to heaven ; but our sanctification gives a fitnesse and aptitude to it . rev : 21. 27 iustification freeth the beleever from the condemnation of sinne , but not from inhabitation . imperfect faith cannot make perfect . notes for div a13556-e6120 persons of beleevers imperfect , yet pleasing to god. and duties also . godly ministers preach not popery in calling for good workes to further mens salvation . non praecedit iustificandum , sed sequitur iustificatum , aug. non necessitate efficientiae , sed necessitate praesentiae . via regni non causa regnandi . distinguish betweene the iustice of works , and the presence of them . iam : 2. 26. iam : 1. 26. the meritorious cause of salvation , excludeth not instrumentall . qui fecit te sinc te , non salvat te sine te . 2 pet. 1. 11. how god sees no sin in his children . 1. simplex rerum notitia . 2. scientia coniuncta cum dei voluntate . si deus texit peccata , noluit advertere ; si noluit advertere , noluit animadvertere ; si noluit animadvertere , no●luit 〈◊〉 ▪ maluit agnoscere , maluit ignoscere . quid est enim deum videre peccata , nisi punire peccata ? in psal. 32. hee that must bring every action good and bad into iudgmēt , must see every action . nunquam vartatur dei aspectus , nihil novi unquā vidit , nulla mutatio 〈◊〉 in dei scientiam , cum ipsa scientia dei est ipsa dei essentia ; & in deo nil nisi deus . cognitio mali bona est . nihil in nobis 〈…〉 quae est a deo , vel 〈◊〉 quo● est a 〈◊〉 ▪ vel gratiae qua datur in christo , quin deo notum est , & totum adprime cognitum . he that recordeth sins past , and pardoned many ages before , must needes see them . many examples hereof in the new testament notes for div a13556-e7900 ira dei est vel 1. paterna et castigans quam vibrat in filios 2. hostilis & exterminans in contumaces . heb : 12. 8. christ hath borne all our punishment of malediction , but not of correction . beleevers in the new testament corrected for finne . difference of the iudgement of the godly and wicked wherein . maximu● homicida , latro , et haereticorum h●retic●ssimus . luther beleevers must continue their repentance assidue peccantibus assidua poenitentia est necessaria . ●ugust ▪ beleevers must pray for pardon of sin pardoned . modestiae tantum causa , non ex humana fragilitatis conscientia . ierom. we must pray for pardon of sinne in the court of our owne consciences , as well as in the court of heaven . and for a more comfortable measure of assurance . and in the full and finall fruits and effects of pardon . holiest of men have neede of threatnings . quanto reatus ●er legem factus ●st gravio● , tanto immensitas grat●●e facta est illustrior . par : the same works are both the workes of the law , & of faith , how ? lex fidei aeque atque lex factorū ait , ne concupiscas ; sed quod operum lex minando imperat , fidei lex credendo impetrat , august : isay 64 , 6. wee call for obedience , not for iustification , but for sundry other ends vnbeliefe an high sin against the law and gospell . ● iohn 3. the law commands not expresly faith in christ : but implieth it when christ is revealed . adam was not bound in innocency to beleeve in christ , for as hee was not revealed , so adam needed him not , but yet he was bound by the law to beleeve every word of god , whensoever it shold be revealed ▪ the law commands faith as a work done , the gospel as it is an instrument apprehending christ , perk. on math. page 70. solo auditu horrorem incutere debent , calvin . notes for div a13556-e10190 so quintinus the libertine tolde calvin to his face , that he disliked his course , because hee understood it not . instruct advers . liber . cap : 7. si non vis intelligi , non debes legi . the windy conceit of perfection refuted magnum illud electionis vas perfectum abruit , profectum fatetur , bern. in can● ser. 49. cunctorun in carne iustorum imperfectae perfectio est , hieron : lib. 1. advers : pelag : three degrees of sanctification , and the highest imperfect . why god would not free his servants from all sinne in life as well as in death the lowly speeches of saints . the haughty and lofty speeches of libertines . tu audes novatiane mundum te dicere ; qui etsi operibus mundus esses , hoc ipso verbo immundus ●●eres : ambr : de poenit l. 1. c. 6. pone ac●siscalam , qua solus coelum ascende . notes for div a13556-e11060 col. 2. 18. 2 pet : 2 , 19 many too charitable , not seeing the depth and danger of this errour . iam : i , 26. the confused lump of libertinisme in 9 poysonfull positions . lex donatistarum . quod vos lumus sanctum est , august . the extream danger of libertines a rai●ing r●bsakey , whose papers i have in my hands , revileth our ministers , & denounceth them ipso facto to stand accursed by the holy ghost , & excommunicate by s. paul , for going about to establish and set up the golden calfe of their own sanctification . they be his own words . the lord rebuke thee satan . rom. 1. 7. rom. 8. 29. the sacred office of christs priesthood violated . how they come to be blinded against so cleare a light . rom. 6. 12. 1 pet. 1. 2. ioh. 4. 14. 1 pet : 2 ▪ 2. sitis duplex , vel indigentiae totas●s , coposioris fruitionis . our libertie here is not from the rule of the law ; but from the rule of sinne . notes for div a13556-e12340 lex reos faciebat ●ubendo , et non adiuvando : gratia adiu vat ut quisque sit legis factor . beleevers under the workes of the law for obedience , not for iustification . the law is given unto a righteous man , but not against him . non dicit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non est ●ata lex , sed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non est posita . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law not given to the iust man for servile , but free obedience . christian liberty frees us not from the obedience of the law , but the disobedience of it . wherein christian liberty consisteth . law and prophets , how farre abolished . legis ●t prophetarū ordo exinde cessavit peradimpletionem , non per destructionem . l. 4. cont . marc. c. 33. finis perfic●ens , snon interfictens . aug. in ioh : t●act . 5 ▪ 5. christ the end of the law 5 wayes . 2 cor : 1. 20 how wee are dead to the law and the law not dead to us . legem autem decalogi nec posse , nec debes re dici nobis mortuam ; quam vis dicantur legi mortui in quibus non invenit vim pe●catricem regnan●em &c. beza ad defens . contra castel : in rom : 7. 6. et postea , legem nusquam invenio dici mortuam , sive de impiis , sive de pijs agatur . notes for div a13556-e13890 non est ●ecesse nos ab obedientia legis libera●● , quin legis aliquod munus abrog●tur . whitak ●●●tra dur. pag : 714. 1 cor : 10. 6. 1 cor. 11. l●x●u●ere no rit , gratia i●var● ▪ epist 95 ad innocent . teta lex est consentanea cum doctrina evangelij , de vi tijs vitandis , et virtutibus parsequendis . page 443. errant qui putant legem repugnare christo ▪ notes for div a13556-e14970 one of this learned sect said . wee are of luther , and was before the apostles . luther . preface to comment on the gale. non sunt su● lege quoad iustificationem , accusationem , condemnationem , coactionem , &c. est igitur sententia vera , et forma sanorum verborum , esse aliquem legis usum in renatis , & is triplex est &c. de lege dei cap 10. circiter fi●em , & cap. 11. de dignitate doctrinae legis contra antinomos . sanctissimo suo merito tabulas legis abscondit , non ut leginullam a●plu● debeamus obedientiam , sed ne maledictione f●r●at ●os qui sint in christo. abrogata lex non quoad obedientiam , sed quoad maledictionem . tametsi digito dei legem scripta● in cordibus habent , bifariam tamen adhuc in lege proficiunt : est enim illis optimum organum , &c. vt frequentie ius meditatione excitetur ad obsequium , in eo roboretur , & a delinquendi lubrico retrahatur . facessat longe ex animis nostris profana istaes opinio . sed una est , perfecta , et inflexibilis vivendi regula . de morali adhuc loquor . non quod illis amplius non iubeat quod rectum est , sed dūtaxat ne sit illis quod antea erat , hoc est ne eorum conscient as perterrendo &c. non ad institutionem pertinet , sed ad constringendae conscientiae vigorem . vt fidelium conscientiae sese supra legem erigant , totamque legis iustitiam obliviscuntur . neque hinc recte quis colligat legem fidelibus supervacaneam esse , quos no● ideo docere et exhortari , &c. manet igit●● per christum 〈…〉 legis 〈…〉 , quae 〈◊〉 do cendo , adm●ne●do , ob●urgando , co●rigendo ad omne opus b●num formet ac comparet . absit ●t ego tibi assentiar ; qui d●cis legem ijs esse mortuam quibus maxime vivit , id est , quos h●bet maxime of sequentes . veque enim rex , 〈◊〉 . neque enim evangelio lex 〈…〉 est praecipit . sed , &c. vt lexiam sua vis sit nobis secundum interiorem hominem magister . per lutheri latera apostolo vulnus infligunt . lex pertinet ad christianos , nec id unquam negavit lutherus : nam illa tustitia legi● 〈…〉 lib. 8. de paradox , p. 703 cum chirographum legis abr●gatum et deletum sit quoad vim damnatoriam , colligimus illud adhuc habere vim di●rectoriam : non igitur , &c. quasi abrogata et quoad ●im iustificandi , et quo●● vim condemnandi , &c. valet tamē ac viget quoad vim dirigendi , et aliquam etiam vim retinet condemnandi , quia peccatum arguit , et condemnat●m ipsis fidelibus , quamvis , &c. observatio● legis est ne●essaria christiano homini , neque a fide seperari potest . 1 sam : 2. 12. i have one of your franticke papers , that have accursed foure most worthy preachers by name , and all the rest whom you are not at leisure to name , that are on their opinion and practise . prov. 28 , 4 psal : 119 , 15 mal. 2. 9 notes for div a13556-e17970 psal. 119. 89. psal. 119. 24 psal , 119 , 105. quoad●ustificationem ●ustificationem , damnationem , coactionem , significatinem ; sed quoad doctrinam , obedientiam . par. in locum . reports or causes in chancery collected by sir george cary, one of the masters of the chancery in in [sic] anno 1601, out of the labours of master william lambert ; whereunto is annexed the kings order and decree in chancery for a rule to be observed by the chancellor in that court, exemplified and enrolled for a perpetuall record there, anno 1616 ; together with an alphabeticall table of all the cases. england and wales. court of chancery. this text is an enriched version of the tcp digital transcription a34128 of text r22868 in the english short title catalog (wing c555). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. 287 kb of xml-encoded text transcribed from 76 1-bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo 2017 a34128 wing c555 estc r22868 12234432 ocm 12234432 56698 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a34128) transcribed from: (early english books online ; image set 56698) images scanned from microfilm: (early english books, 1641-1700 ; 133:1) reports or causes in chancery collected by sir george cary, one of the masters of the chancery in in [sic] anno 1601, out of the labours of master william lambert ; whereunto is annexed the kings order and decree in chancery for a rule to be observed by the chancellor in that court, exemplified and enrolled for a perpetuall record there, anno 1616 ; together with an alphabeticall table of all the cases. england and wales. court of chancery. carew, george, sir, d. 1612. lambarde, william, 1536-1601. [14], 128, [7] p. printed by e.g. for w. lee [and 2 others], london : 1650. includes index. eng law reports, digests, etc. -england. equity -england. a34128 r22868 (wing c555). civilwar no reports or causes in chancery, collected by sir george cary one of the masters of the chancery in in [sic] anno 1601. out of the labours of carew, george, sir 1650 47224 223 0 0 0 0 0 47 d the rate of 47 defects per 10,000 words puts this text in the d category of texts with between 35 and 100 defects per 10,000 words. 2002-09 tcp assigned for keying and markup 2002-10 spi global keyed and coded from proquest page images 2002-11 john latta sampled and proofread 2002-11 john latta text and markup reviewed and edited 2002-12 pfs batch review (qc) and xml conversion reports or causes in chancery , collected by sir george cary one of the masters of the chancery in in anno 1601. out of the labours of master william lambert . whereunto is annexed , the kings order and decree in chancery , for a rule to be observed by the chancellor in that court , exemplified and enrolled for a perpetuall record there . anno 1616. together with an alphabeticall table of all the cases . london , printed by e. g. for w. lee , d. pakeman , and g. bedell . anno d. 1650. the table . a. fol. atturnament denyed but in some cases , 4 action of the case seeketh damages , subpoena rem ipsam 20 abating a bill , 22 archbishops certificate taken for proofe , 26 amending of answers , 30 a guardian admitted to an infant , 38 attachment against the defendant , and subpoena against the bearer , 38 attorney enjoyned not to proceed at law , 40 injunction ( si ita sit ) 42 attorney ordered not to proceed , and yet the defendant proceeds , 44 award made by justices of assize to be performed , 47 advowson passeth not by livery within view without deed , 52 attachment ●or no● performing a decree , 53 a yeares value allowed for surrender of coppyhold land , 54 a master and examinor examined witnesses in the countrey , 66 affidavit for leaving a subpoena at the defend . lodging , 69 attachment discharged , and a bill of perjury put in , 72 attachment upon the defendants confession he was served , 73 , 81. an english bill for perjury , 75 attachment for not appearing , 76 attachment with proclamation discharged paying the fees , 78 attorney enjoyned in court not to proced at law , 80 affidavit that he saw a subpoena served , attachment , 80 attachment against a witnesse served to testifie , 80 attachment upon oath ●efo●e the bayliffes of mountgo . 84 attachment upon oath before the major of totnes , 85 an action against a drunken mans words seekes reliefe , dismissed , 93 atta●hment discharged by supersedeas , 94 assumpsit referred to the common law 97 attachement for breaking an order in court 103 attachment upon oath before the portrive of minxhead 103 attachment discharged paying the plaint . 10 s. 104 award ordered to be performed 106 attachment for not appearing 110 attachment in putting in demurrer instead of an answer 110 , 111 attachment against witnesses served to testifie 111 attachment for costs 113 b. bailment countermanded 9 bringing in of evidences into court 16 bringing in an obligation to be cancelled 17 bill against a court roll entered indirectly 55 bill of revivor without cause payeth costs ib. bill against roger hall and another , r.h. served , must shew it by plea 61 bill of praemunire proceeded in here 63 bond of such as appeare upon contempt to attend a die in diem 70 bill for reliefe after execution dismissed 76 bill upon a promise to dry clothes dismissed ib. bond put in suit for not sealing a release stayed by judgement 78 bill dismissed , the counsellors hand being counterfeited 82 bill for 6 l. dismissed . 83 bill without a councellors hand dismissed , 89 bill for tuition of an infant , 96 billet in paper and no bill in , costs , 100 bayliffes of corporation not compellable to make a lease promised , 102 bond put in suit for not performing an award stayed by injunction , 104 , 105 c. condition to undoe estates in lands , 1 copyholders reliefe in chancery , 3 copyhold devise , 6 copyhold forfeited , 6 cefti quae use , remedy here , 11 copartners to joyne in plea , 15 ●●nuzees fraud holpen , 18 copyhold tailed , 21 contents of a mannor , as it was 60 yeares past , 24 coppy good by devise without mention of surrender , 25 commission to examine witnesses , 40 costs for want of a bill , the subpoena lost , 74 clerke fined for his mistake in a subpoena , 77 contempt discharged , and a new commission , 79 costs upon oath before the major of totnes , 80 costs for prosecuting contempts , and none proved , 82 costs upon a billet delivered to a brother , 83 commission to take answer , 83 commission to examine in perpetuall memory , 85 commission , warning given but to one defend . 91 costs for a witnesse served to testifie , 97 commission to answer a demurrer returned , 100 councellor not to be examined , 100 costs for want of a bill , 101 commission of rebellion for non payment of costs , 105 costs for want of a bill , the billet lost , 10 commission to take answers , being 70. years old , 108 councell to attend concerning an award , 108 costs allowed the defend ▪ in a commission of rebellion , 109 costs for want of a bill , the billet lost , 109 commission to examine in perpetuall memory , 110 commission to prove the receipt of rents , &c. 111 costs in a demurrer , & the councellor forbid to practise , 27 cuttings case lands conveyed to two of the six clerkes , 29 costs for making attachmennt before bill in court , 33 commission to examine in perpetuall memory , 34 costs for a witnesse served to testifie , 35 commission to take answer upon a languidus returned , 36 commission to put the plaintant in possession . 38 commission to the examinor of the court to examine , 43 certiorare to the chancellor of durham , 48 commission of rebellion , how the bonds to be taken , 50 covenant to repaire a house , a demurre , but ordered to answer . 59 costs and attachment for serving a subpoena indirectly , 61 costs to witnesses , served to testifie , 62 costs for want of a bill , 69 costs in comming up to make affidavit for impotency , 72 costs for want of a bill , 72 commission to set out wayes and passages . 75 d. discharge himself of a bond 7 s. & modis 14 deeds brought in court , 19 defendant examined as a witnesse , 21 decree against infants , 30 deeds how to be proved , 31 defendant enjoyned not to proceed at law , 38 demurrer and not in person , ordered to make direct answer 40 defend . appeating gratis , attach . being out is committed , 41 defend . served with subpoena the day of the returne , 41 decrees entred at large , 43 defend . examined upon interr . to end the cause , 45 defend . dismissed , the plaint . not appearing at the hearing , 45 defend . to acknowledge satisfaction , 45 decree for a fould-course , 46 de vilaica removenda , and injunction for a personage , 51 decree for 3 s. 4 d. rent , and suit of court , 51 ducens tecum for deeds to be delivered to the usher , 53 defend . took a commission , and returned a demurrer , 53 def. executors to answer profits taken by their fathers , 64 defend . licensed to depart after issue , 67 defend . in a bill of perjury , is to be examined upon inter . 68 defend . hath no costs , because the subpoena is lost . 69 defend . disclaiming , no witnesses to be examined , 69 def. bound to pay money at one place , tenders in another , 70 demurrer to a bill of revivor ordered to answer , 70 def. demurres for that there is remedy at law , to answer , 71 decree for coppyhold lands , 74 dismissed being under 40 s. per annum , 74 day given to the sheriffe to returne an att●chment , 77 defend . demurred generally ordered to answer , 87 , 88 defend . stayed by injunction from pulling down roomes , 90 dumb man not to answer upon subpoena , 93 defend . wife examined as a witnesse , 94 deeds neglected to be inrolled sub. to shew cause why not , 97 decree for the plaintant , and yet put out of possession by the defendant , 104 defend . departing without license , an attach. against him , 104 def. discharged of the attach . the sub. being counterfeit , 104 defendant licensed to depart after answer in a writ of the priviledge , 106 defend . committed for a rescue , brought his action for a false returne , 92.106 demurrer without shewing any cause , ordered to answer , 107 debt for 5 l , dismissed , 108 dismission for that they have bin in possession 100. years , 110 day given to defend . to rejoyne , 111 def. not to answer till a counsellors hand be to the bill , 112 dismissed the lands being under 40 s. per annum , 112 demurrer generally ordered to answer , 113 defend . charged upon account shall not answer , upon promise shall , 113 , 114. e. extents law , no reliefe in chancery , 5 equitas sequitur legem , 11 executor not to release without his copartners , 15 executor not to answer without his copartners , 15 executors how upon trust , 21 executors husband ordered to pay debts , 24 entring decrees and dismissions , 34 f. fines , recoveries , &c. the lord chancellor will not question , 4 feoffees to use , 10 feoffee dying , no remedy against his heire , 10 feoffee shall doe acts for the feoffors good , 10 fraud in goods , 18 feoffee to retain the land to his own use , 11 fraud upon fraud , 13 feoffee punishable for makeing estate , 13 forced to sue an obligation , 15 fines fraudulent , 20 fines of copyholds , 27 fraud by making a lease after a feoffment , and before livery and seizin , 82 feme sole sueth out a subpoena , and the same day is married , dismissed with costs , 98 feme covert whose husband is in the gallies , must answer matter of equity , 100 , 101 feb. 20. dyed sir nicholas bacon . 12. april , sir thomas bromely had the seale delivered , 108 feme covert sueth for maintenance , 87 g. giving day to one , it shall help the other , 1 greater part of debt paid , and the rest offered reliefe here , 2 goods of felons difficult to prove , a subpoena , 15 grand lease forfeited by coven , reliefe for it , 18 generall customes reduced to certainty , 21 grantee distraines one , ordered to sue the rest , 23 h. help against executors . 12 heire of purchasor to pay money behind , 25 husband appears and demurrs , the wife not , attachment , 39 husband appears the wife not , attach . against them both , 65 habeas corpus to the warden of the fleet , to have the defend ▪ in court to be charged with a debt , 71 heire sued to make a lease , for which his elder brother took a fine , or to repay the same . 77 i. judgement not to be examined here , 3 iuramentum delatum a part● 11 intent specified in a feoffment , 11 justifying the detaining of evidences , 16 joyntenants one taking the profits , 21 judges called into the exchequer chamber about a lease , 32 injunction to deliver goods , 34.61 injunction to stay proceedings at law , 36 injunction for possession as at the time of the bill , 36 jurisdiction of wales , rejected , 36 injunction to stay suite according to promise , 37 injunction with a clause ( si ita sit ) 37 injunction for not appearing , and to stay suits , 40 injunction to discharge execution , 41 injunction for possession , 45 injunction for possession , as at the bill , & 3 yeeres before , 47 injunction upon certificate of justices of assize , 49 injunction dissolved , if cause be not shewed , 49 injunction because the defendant began first in chancery , 50 injunction for corne sowed upon a lease paroll , 51 jurisdiction of oxford rejected 55 jurisdiction of lancaster alloweds 56 injunction disobeyed , an attachment , 58 jurisdiction of chester allowed , 59 jurisdiction of oxford allowed , 65 jurisdiction of the exchequer rejected , 67.68 injunction against the spirituall court , 73 jurisdiction of oxford allowed , 73 jurisdiction of wales allowed , 74 injunction to stay judgement in an action of waste , 76 injunction to stay suits , because the queene was not paid her fine , 77 jurisdiction of chester allowed , 82 jurisdiction of wales allowed , 84 injunction for defrauding the queene of her fine , 85 jurisdiction of the mannor of woodstock overruled , 85 jurisdiction of wales overuled , 89 jurisdiction of wales admitted , 92 jurisdiction of the north allowed , 95 jurisdiction of the exchequer disallowed , 96 jurisdiction of the dutchy of lancaster allowed , 97 jurisdiction of wales not allowed for a promise , 99 injunction left at the defendants house , and disobeyed an attachment , 101 jurisdiction of wales allowed , 102 injunction to stay suit at common law , 105 jurisdiction of chester allowed , 109 injunction to stay suit at common law , 112 injunction to stay suit of quo minus in exchequer , 113 injunction to stay suits at common law , 113 l. leases dammages in waste moderated , 2 lease in paroll , no help in chancery , 7 lease for 1000 yeares , no help , 8 lands sold in two counties , livery made in one , 17 leassor to have the woods , excepting fireboot , &c. 17 leases devised to his wife , to come to his sonne , 22 leases conveyed in trust to pay debts , 25 lease paroll , no help , 27 lands intended for a schoole , otherwise given by will , 28 leases of corporations , their names mistaken , 31 leases holpen against patentees , 32 leassee of a copyholder punishable in waste , though the copyholder himselfe be not , 63 lord chancellors letters to a noble man , that had broken a decree to performe the same . 73 leassee not named in the premises , decreed , 86 liberty for a common fishing , 104 m. mulier and bastard , 4 marriage portion recovered and reversed , holpen , 8 money given to buy lands , 10 money paid upon a single obligation , 17 messuage cum pertin. carries the land used with it , 18 mannor demised , except court baron , 18 mulier and bastard joyn , 20 misdemeanor in courts reformed , 30 man and wife plaintants , she dyes ; no bill of revivor , but he must answer , 62 money paid for a reversion which could not be enjoyed ordered to repay it , 93 n. nvdum pactum , no help here , 5 no reliefe against his own deed , 14 no seizin of rent-seck , no help here , 5 no reliefe against a voluntary act , 21 no help touching power to make leases , 29 no witnesses to be examined till the defendants have put in their answer , 93 no costs upon a disclaimer , 109 new commission to examine witnesses not appearing at a former commission , 111 not to extend one mans land onely , where many are subject , 111 new commission to the defendant , and publication staid , 112 o. one deed by which two claime , 15 oath for serving a subpoena before witnesses examined in perpetuall memory , 34 order for evidences , 43 one executor sueth the other , to put in sureties to perform the will , 79 one executor gets the estate and dyeth , the other sueth his executor , 86 one subpoena against two defendants , and two bills put in , ordered to answer both , 87 p. payment after the day holpen upon bonds , 1 payment without acquittance , 2 purchasor of parcell , not subject to the whole rent charge , 2 possession sororis for the heire collaterall , 5 possession of the mother , for the heire collater . 6 payment of creditors out of a coppyhold , 7 perpetuities no help , 8 purchasor better then a surety in case of reliefe , 13 power to make leases , 21 payment by the surety , 19 possession bound by decree , 23 plaintant mistaking his title in his bill , 24 proceeding where there is no proofe , 25 publication of witnesses in perpetuall memory a yeare past , 33 publication of witnesses to be used in a court baron , 35 plaintant in execution at the suit of the king , delivered by supersedeas ; 39 plaint . bringing 223 l. in court , execution to stay for the rest , 47 plaint . distraineth after replication , therefore an injunction 48 plaint . in execution upon statute , delivered upon recognizance , 50 plaint . to take execution for 100 l. of a judgement of 300 l. 51 plaint . married before answer , no bill of revivor , 52 plaint . sueth for tokens delivered as a suitor in marriage , 54 prosecuting contempts after a generall pardon payeth costs , 56 plaint . to make one a party , whom the defendant prayeth in ayde , 57 plaintant requires one to appeare in the queens name , costs , 68 prohibition for tythes of lands held in capite , 79 plaint . enters upon the defendants possession , an injunction or dismissed . 98 prohibition for tythes , parcell of the dutchy of cornewall , consultation . 98 perjury for making oath , one of the same name sued and discharged , 99 plaint . to shew where he had his counterfeit writs , 107 r. ravishment de guard , a subpoena , 9 release of joint feoffee , 14 reliefe for a trust upon a lease , 76 rent reserved and paid ▪ the heire ordered to pay it , 92 rent charge upon severall men lands , and levyed upon one , an injunction is granted 22 s. suing in a wrong county , ayde for the plaintant here , 2 statute lands , priority sans coven . 8 survivor in joynt tenancy , 9 suer●y , chargeable , and not in some cases , 12 supply of true meaning in feoffments , 16 statute acknowledged in my name , 22 statute for charitable uses , 28 subpoena to appear before the major of london , 43 sheriffe amerced for return . non est inventus , 44 setting down depositions in a wrong sence , 47 subpoena delivered to the defendants wife , 54 subpoena hanged on a dore , where the defend . resorted , 56 suit to have the defend . performe an award , 57 subpoena to testifie attachment for not appearing , 61 soliciter served to testifie ordered not to be examined , 62 soliciter served to testifie is discharged , 63 suit to have an award decreed , 64 suit for common of pasture , 64 subpoena delived to the defendants servant , 65 suit retained after judgement and execution , 74 subpoena delivered to the defendants wife , 78 suit for 10 s. rent per annum dismissed , 80 suit for a hawke , and evidences dismissed , 82 suit stayed in the kings bench , removed from london , 83 suit for common , 83 svbpoena served within two dayes of the termes end ; 88 soliciter ordered to be examined with caution , 89 subpoena left in the defendants hall , attachment , 91 server of a subp. imprisoned , attach . against defend . 91 , 92 subpoena shewed and offered , attach . for not appearing , 94 suit upon a promise to surrender a lease , dismissed , 95 subpoena to testifie where no suit is , discharged , 95 subpoena cautiously served , attachment against the plaint . 96 suit for hay , &c. not worth 40 s. dismissed , 103 suit for poor under 40 s. per annum retained , 103.107 t. tenant right fines how paid , 6 things left to the conscience of the party , 12 tenant of the land uncertaine , a subpoena , 16 tenants in common to know the certainty , 16 turning of water courses , 26 two contend for a tenant , the tenant paying his rent in court , 46 the server of a subpoena payeth costs , 64 trustee to convey the lands according to the trust , 67 two joyntenants , the one dies , the other to make estate , 81 two executors exhibit two bills , answer one the other dismissed , 88 u. voyd limitation del lease in volunt . 9 uses of gavelkind land , 11 vendee against one appointed to sell him land , 14 variance in a bill of revivor from the first bill disallowed , 55 w. warranty collaterall , no remedy , 5 wager of law , no help , 5 where remedy at law , no help here , 15 waste holpen here , and no remedy at law , 19 waste forbidden here , and not punishable at law , 26 witnesses ad informandum conscientiam , 27 witnesse served to testifie , pressed for a souldier , 41 writ of priviledge granted to a sutor , 43 , 44 witnesses examined before answer , 48 witnesses examined by fraud suppressed , 56 witnesses taken after publication ad informand . conscien . 58 wife after the death of her husband , sueth a bill of revivor , 70 witnesses that answer insufficiently , againe examined , 81 witnesses examined in perpetuall memory , moved to use their testimony , 88 witnesses examined before the towne clarke of york suppressed , 91 witnesses examined , 1. and 2. p. and mary ordered to prefer a bill for publication , 94 witnesse not able to travell discharged , 99 writ of priviledge disallowed , 102 reports in chancery . if a man be bound in a penalty to pay money at a day , and place , by obligation , and intending to pay the same , is robbed by the way ; or hath intreated by word some further respite at the hands of the obligee , or commeth short of the place by any misfortune ; and so failing of the payment , doth neverthelesse provide and tender the money in short time after ; in these and many such like cases the chancery will compell the obligee to take his principall with some reasonable consideration of his dammages ( quantum expediat ) for if this was not , men would doe that by covenant , whi●h they do now by bond . the like favour is extendable against them that will take advantage upon any strict condition , for undoing the estate of another in lands upon a small or trifling default . so if two be joyntly and severally bound to pay money , and the obligee will give longer day ( or other favour ) to the one , and then will sue the other for the debt , he which is sued shall sue in chancery 9. e. 4.41 . a man payeth debt upon a single obligation without taking acquittance , therefore this will not discharge him at the common law , but he shall be relieved therein in chancery ( quare 22. f. 4.6 . by the parties oath , but not by witnesse . if a man fell trees upon the lands of a lessee for life , and the lessee recovereth dammages amounting to the treble value that he ought to answer to his leasor in waste , and the leasor dyeth before any recovery in waste , now the leassee shall not be suffered to take those damages himselfe , being so discharged of them , but shall be restrained in chancery . doctor and student 33.34 . and 40. if the obligee have received the most part of the money , payable upon the obligation at the peremptory time and place , and will neverthelesse extend the whole forfeiture , immediately refusing soone after the default , to accept of the residue tendered unto him , the obligor may find aide in chancery . if a man grant a rent charge out of all his lands , and afterwards selleth his lands by parcels to divers persons , and the grantee of the rent will from time to time levy the whole rent upon one of the purchasors onely , he shall be eased in chancery by a contribution from the rest of the purchase●s ; and the grantee shall be restrained by order to charge the same upon him onely . a man recovered at the common law a debt in one county , where the obligation was made in another county against the stat. 6. r. 2. c. 2. the defendant sued , and suggested in chancery , that by this meanes he was put from divers pleas of which he might have taken advantage , if the obligation had been sued in the very county and he had ayde there ; for the chancellor said that he sued to hide the truth and against conscience also , which cannot be so well found in any place , as in the very county where a thing is done , 9. e. 4.2 . and 9. e. 4.15 . a man shall not be prejudiced by formality or mispleading , &c. touching copy-holders , mr. fitz-harbert in his natur. brevium fol. 12. noteth well that , forasmuch as hee cannot have any writ of false judgement , nor other remedy at common law against his lord , therefore he shall have aide in chancery ; and therefore if the lord will put out his copyholder that payeth his customes and services , or will not admit him to whose use a surrender is made , or will not hold his court for the benefit of his copyholder , or will exact fines arbitrary , where they be customary and certaine , the copyholder shall have a subpoe ▪ to restraine or compell him as the case shall require , dyer 264. and 124 fitz. subpoena 21 first this court forbeareth directly to examine any judgement given at the common law , to which end the statutes 27. e. 3. cap. 12.39 . e. 3. cap. 14.4 . h. 4. cap. 23. and 16. r. 2. cap. 5. were made ; and it seemeth that the common law used some power to restraine such examinations of judgements before all these statutes , for 13. e. 3. upon a recovery had upon a quare impedit , the defendant sued for help in the chancery ; and they sent a prohibition , and upon that an attachment against him . fitz-harbert prohibition 21 the like hath been done upon suits in the courts of requests . but yet 9. e. 4.65 . one recovered debt upon an obligation in one county , whereas the obligation was made in an other county , and he complained in chancery because he had lost some advantages , which he might have taken if the triall had been in the other county , which thing in effect was made a law by the statute , 6. r. 2. c. 2. and in the case of paramore ann. 3. & 13. eliz. a fine supposed to be levyed by an infant , was examined in chancery , after it had been allowed by examination of the justices of the com . pleas ; but whether these and such other may seeme rather to examine the manner , then the very matter and substance of the thing adjudged , it is worthy of consideration . sir will. cordall mr. of the rols denyed to compell one to atturn here that was at liberty by the common law , in the case of sir iohn windham . chancellor bromeley likewise denyed such compulsion generally , but where the party quarrelled with the particular tenants estate , or entreth iuto some part of the lands in demise , or hath covenanted for recompence for non atturnment there he utterly denyeth to inforce the atturnment . pasch. 21. eliz. in case of philips , and doctor sandford . such assurances as be used for the common repose of mens estates , the chancery will not draw in question ; for a fine with proclamation ought after the five yeares , to be a bar in conscience as it is in law ; so shall it be of a common recovery for docking the intaile , doctor and student , 33.155 . so likewise it seemeth that the continued possession of the bastard eisne shall prevaile in conscience against the right of the mulier ●●sne . and albeit a feme covert may be thought to joyne with her husband for fear in a fine of her l●nds , yet after the five yeares it shall not be recalled , for the generall inconveniences that may ensue to that highest assurance . doctor and student , 154. and if remedy in chancery should be extended to a collaterall warrantye , the same saint germaine saith that then all writings shall be examined . if the extender undervalue the lands , as there is no remedy at the common law , 15. h. 7. dupleges case , because the debtor may help himselfe by payment of the debt , so in conscience there ought to be no reliefe , unlesse it were done by covin. idem . upon nudum pactū there ought to be no more help in chancery , then there is at the common law , neither against him that hath waged his law in debt , though peradventure falsely . idem . where a man made title to a rent seck of which there was no seizin , nor for which he had any action at the common law , and prayed help here it was denyed upon conference had by the lord keeper with the judges , michal . 1596. a copyholder dyeth leaving two daughters by divers venters , both which do enter and take the profits , without doing fealties , or paying fine , and without any admittance by the court , and the eldest dyeth without issue : this onely possession sufficeth to order the copyhold to the collaterall heir of the eldest , and not ●or the sister of the half bloud , 12. eliz. dyer 291. a copyholder in fee hath issue a daughter and a son by two venters ; the lord committeth the custody of the land , and of the son to the mother who taketh the profits , and the son dyeth before any admittance ; this copyhold was ordered also for the heire collaterall against the sister of the halfe bloud , because the mothers possession serveth for the son , anno 12. eliz. ibid. the lord devised a copyhold to c. for life , and after passed the freehold of the soyle thereof by livery of seizin thereof to b. for life reserving a rent ; and then by fine levyed , doth grant the said land to the said c. ( come ceo que il ad de son done &c. ) and c. accepteth the said rent of b. and thereupon it was questioned whether or no , the copyhold of c. were gone in conscience 28. h. 8. dyer 30. a copyholder within age is admitted , and the lord committeth the custody to the mother of the infant , whose under-tenant cutteth down timber trees , which being presented , the lord seizeth the land for the forfeiture ( during still the nonage ) and keepeth it till he dyeth , and it descendeth to his heire , who and his father had kept it 40 yeares , and for that the copyholder moved suite in the chancery 29. yeares since which was now revived , and the forfeiture was taken during his minority , he was restored to his possession till the lord should recover it for the forfeiture by the common law , in the case of mr. litton mich. 41. and 42. eliz. justice clench , and the masters . tenure by tenant right as it is usuall towards the borders of scotland , shall not pay any uncertaine fine or incombe at the change of the lord by alienation , but by death which is the act of god ; for otherwise the lord might weary the tenant by frequent alienations ; but it may be fine uncertaine upon the alienation of the tenant as well upon death as discent , for that it is the act of the tenant , and in his power . sir thomas egerton mich. 1599. case mannor de thwaites & les iustices accord , the same holdeth in copyholders , for the custome must be reasonable . a copyholder in fee surrendreth to the use of one , and to his heires upon condition of redemption , writeth downe his debts , and willeth part of his copyhold to be sold for payment of his debts after his death ; one of the creditors payeth the money at the day to the morgage , who neverthelesse inrolleth the surrender afterward ; this other creditor complaineth against him , and the heir in chancery , and had a decree that the copyhold should be sold for the payment of debts , and the remainder of it ( if any were ) should discend to the heire 41. eliz. for although the devise of the copyhold be void , yet to take it from the surrendree , ( who held it onely for money to be paid ) and to pay him and the other creditors therewith , hath good warrant in equity , and the heire hath no wrong for that it was gone from him by the surrender lawfully . termino trinitatis 40. eliz. the lord keeper sir thomas egerton pronounced openly , that he for avoyding perjuries and other abuses , would not give help to a lease claimed by paroll onely . one cutting brought an action upon assumpsit for one hundred pound against the executors of a testator that promised the money in marriage with his daughter , and recovered at the common law ; which judgement was reversed in the chequer chamber , but cutting sought help in chancery , where it was proved that the executors had assets for funeralls , debts , and legacies with a good overplus to satisfie the complainant ; and therefore after hearing and report thereof by doctor stanhope , and mr. lambert , it was decreed for the complainant ; but the executor exhibited his bill for remedy ; upon which justice owen thought he was not to be heard till he had satisfied the decree ; and then also but onely upon new matter ; not thus resting , the executor exhibits a second bill which was referred to master lambert , but he excused himselfe , that he was not to judge in his own cause and recommended it to the censure of the lord keeper who ordered the executor to performe the first decree , micha . 40. eliz. 1598. trinity 41. eliz. the lord egerton pronounced openly , that he would give none aide in chancery , ●or the maintenance of any perpetuities , nor of any lease for hundred● , or thousands of yeares , made of lands holden in capite ; because the latter be grounded upon fraud , and the former be fights against god . a. was bound in a statute to b. and one c. lendeth 100 l. to a. with which a. bought lands , and assured the same to c. for his hundred pound . a , faileth in payment . b. extended that land . c. was denyed help in chancery , although the land was bought with his mony ; for b. hath priority of right in law without covyn , crompton . 63. a. a. delivereth twenty pound to b. to the use of c. a woman to be delivered her the day of her marriage , before her marriage . a countermandeth it , and calleth home the money , c. shall not be ayded in chancery , because there is no consideration why she should have it . dyer . 49. a term or devised his terme , and whole lease to b. provisoe that if b. dye , living c. then the terme shall wholly remaine to c. b. selleth the terme , and dyeth , living c. and by the opinion of the justices c. shall have no remedy , dyer , 74. the vice countesse mountague claimed the wardship of the body of the heire of a tenant of hers , which was esloyned from her 〈◊〉 she suspecting some of the heires friends exhibited her bill in chancery ; and it seemed they should not answer to charge themselves criminally ; especially in this case , where so great a punishment as abjuration may follow , &c. cromer and peniston married two sisters joyntly possessed of a lease for yeares , the wife of cromer dyed ; peniston claimed the whole by survivor , cromer exhibited a bill suggesting that peniston had in her life time severed the joyneture by some act ●ecretly : the lord keeper over-ruled that the defendant should not answer mich. 39. and 40. eliz. as concerning confidence secretly knit to estates , it hath manifold considerations ; first if my feoffee upon confidence , doe infeoffe another bona fide , that knoweth not of the confidence , i am without remedy . fitz harbert sub . 19 but if the second feoffee have notice of the use , he shall be compelled here to performe it , 5. e. 4.7 . so if my feoffee dye , and the land discend to his heire , i have no remedy against him . 8. e. 4.6 . all the justices ; and this confidence extendeth not onely to the taking of the profits , but also that the feoffees shall doe acts for the good of the feoffor ; and if the feoffor require him to make an estate to any other , he o●ght to doe it , but thereof he ought to have request in writing , for he is not to doe it upon a bare message , or upon desire by word onely , 37. h. 6.35.36 . and if the feoffor will have him make an estate to i. for life , the remainder in fee to b. though i . will not take the estate , yet b. shall compell him to make estate to him in the life of i. ibid. 36. finch . so if the feoffee be disseised , the feoffor shall compell him to sue an assize ▪ 2 : e. 4.7 . neverthelesse those feoffees might grant necessary offices as stewardships , bailyweeks , &c. though they may not grant annuities to learned men to defend the land , 8. h. 7.12 . they may also as it seemeth give fees to councell , and shall have allowance thereof , so far as they are from being maintainors . if i give money to one to purchase lands therewith to him and his heirs , and to permit me to take the profits thereof during my life , and he with-holdeth the profits , he shall be compelled by subpoena crompton , fol. 48. b. if ( cesti que use ) be attainted of felony , the lord shall not be ayded by subpoena to have his escheat ; and if the heir be barred by the corruption of his bloud , then the feoffee as it seemeth shall retaine the land to his own use 5. e. 4.7 . feoffments of use , brooke 34. when the use is to the feoffee and his heirs , without any other intent , there ( cesti que use ) may declare his will thereof and may vary at his pleasure ; but if it be to any intent certain , as to take back an estate taile , or with remainders to others , then he cannot change it , for the interest that is in others , 5. e. 4.8 . a. whether the use of gavell kind lands should ensue the nature of the land , and so of borrough english , or shall be at the common law , because the customes doe extend to lands , and not to uses , or rents as is said against fitz harbert . although ( cesti que use ) of a terme for yeares be not within the statute of uses , rather therefore he shall have remedy in chancery , crompton 64. where the complainant will rest upon the oath of the defendant , and be contented to be judged there by , their the oath of bewraying is hardly granted . conscience never resisteth the law , nor addeth to it , but onely where the law is directly in it selfe against the law of god , or the law of reason ; for in other things equitas sequitur legem . saint germaine , fol. 85.155 . sometimes equity helpeth a man to that , for the which there is no law of man provided . fol. 85. ibid. sometimes equity followes the meaning of the parties in their contract , 86. ibid. where a common inconvenience will follow , if the common law be broken , there the chancery shall not help . 155. for albeit the party cannot with a good conscience take the advantage of sundry things to which he comes , yet the court of conscience is not thereby bound to help the other , but must leave some things to the conscience of the party himself . it is reported , 8. e. 4.6 . and 22. e. 4.6 . yeare book , that the lord chancellor , and judges were of opinion that a subpoena lyeth not against the heire of a feoffee in trust ; but our time affordeth that help against executors very commonly , as between ouslowe and ouslowe , lord norris and lester , cutting and huckford , &c. at the common law , if a man were surety for anothers debt , he was chargeable if the debtor failed in payment ; but magna charta . cap. 8. ordereth that the pledge shall not be distrained , if the principall debtor be sufficient to pay ; this grew troublesome to the creditor , and therefore it fell in use that the pledge should bee bound as principall , and so by the common law he is chargeable notwithstanding the sufficiency of the principall ; neverthelesse it is now usuall in chancery to help this suerty against whatsoever default of the principall , if so be he will offer the principall debt and dammages ; but in my opinion he ought to finde here no other reliefe then the principall debtor should find , because he is not onely a principall by his own bond , but also was the cause , for which the money was lent , seeing that without him the principall had not been credited . and experience bewrayeth , that this favour to sureties breedeth contempt of bonds ; nihil est autem ( saith cicero ) quod vehementius remp. . continet quam fides , quae nulla esse poterit si non erit necessaria solutio rerum creditarum , fraudandi vero spe sublata , solvendi necessitas consequitur . but the case of the purchasor ( bona fide ) of land subject to a statute , or recognizance , is better then of such a surety ; and so is the case also of the heire of the recognizor , or obligor ; for though the land be charged in their hand with the debt , yet equity ought to relieve them touching any penalty , unlesse they be found in mora , &c. if a debtor will collude with some of his friends in fraud of his creditors ; and the friend breake trust with him , this court will not punish the breach ; yet greene and cotterells case to the contrary ( fraus non est fallere fallentem . ) but two doctors and i took order in such a case between woodford , and multon , mich. 42. and 43. eliz. by our report that the goods so conveyed in fraud , should be transferred to the benefit of the creditors . a. man was enfeoffed to the use of a woman sole which taketh an husband ; they both for money sell to b. the land which payeth it to the wife ; and she and her husband do pray the feoffee to make estate to b. afterwards her hu●band dyeth ; now by the chancellor and all the justices , she shall have aide against the first feoffee by subpoena , to satisfie her for the land ; and if the second feoffee were conusant , a subpoena shal be against him for the land , for all that the wife did during the coverture ( as they said ) shall be taken to be done for fear of the husband 7. e. 4.14 . subpoena fitz-harbert . 6. if a. sell land to b. for 20 l. with confidence , that it shall be to the use of a. yet a. shall have no remedy here , because the bargain hath a consideration in it selfe . dyer 169 per harpar . and such a consideration in an indenture of bargaine and sale seemeth not to be examinable except fraud be objected , because it is an estopell . lands be morgarged to a. and b. where a. onely payeth the money , and the intention was that b. should take nothing ; now b. shall be compelled to release to a. 27. eliz. a. willeth that b. shall sell his land to c. now c shall have a subpoe . against b. to compell him to sell the testators land unto him 15. h. 7.12 . pyers was bound in a statute to hawes , and ioan , for the behoof of ioan , and hawes released to pyers , whereupon she brought a subpoena against them both ; but pyers was discharged although he knew the confidence ; because it is permitted in such a case a man should help himselfe to be discharged of his bond , and the subp. stood against hawes , because he had deceived ioane , 11. e. 4.8 . a. tamen quae● . for it is no conscience to be a partaker in fraud ; therefore if my feoffee in use had made a feoffment unto one that knew of the use , the subpena did lye against them both , 5. e. 4.7 . and the case precedent kiked not the reporter . if an obligation be made to b. to the use of c. now b. shall be compelled here to sue upon that obligation , 2. e. 4.2 . if one executor will release a debt without the consent of his copartner , whereby the will cannot be performed , the releasor and the releasee shall be ordered therefore in chancery , 4. h. 7.4 . by the chancellor against the opinion of ●ineux . if a subpoena be brought against three executors , and one of them appeareth , he shall not be compelled to answer till they be driven to appear also , for they are but one , 8. e. 4.5 . by the chancellor . so if two copartners , or joynt tenants-joyne in a quare impedit , and the one will plead covenously , he shall be compelled here to joyn with the other in plea or presentment . and so if lands be severally given by one deed , to two men ; he which hath the deed shall be compelled here to shew it for the defence of the others title , 9. e. 4.41 . a. made a deed of feoffment to his own use to b. but gave no livery of seizin . a. dyeth , c. his heire bringeth a subpoena against b. but by morton master of the rolls , c. was denyed help here , because b. had nothing in the land ; and if he abate , there is remedy at the common law against him , 18. e. 4.13 . where certainty wanteth , the common law faileth , but yet help is to be found in chancery for it ; for if the queen grant to me the goods of a. that is attainted of felony , and i know not the certainty of them , yet shall i compell any man to whose possession any of them be come to make . inventory of them here , 36. h. 6.26 . cur. it is most usuall in chancery to demand evidence concerning the complainants lands , to which he maketh title , which are not in ch●sts , baggs , or boxes , and whereof he knoweth not the date , &c. and in that case the defendant made title to the lands , and justified the detaining of the evidences , for maintenance of his right ; whereupon it was ordered , that the complainant should bring an action for the land at the common law ; to which the defendant should plead in chiefe ; and that he for whom the verdict should passe , should also have his possession stalled here , 28. eliz. if a man have cause to demand land by action , and knoweth not the tenant of the land , by reason of the making of secret estates , it hath been lately used to draw them in by oath , to confesse the tenant ; but it is now doubted . a tenant in common , of a manor for long time , occupyed wholly by the other tenant in common , which knoweth not the quantity of the mannor , by reason the other hath also sold lands intermingled , had the sight of the court rolls , and writings of his companion , concerning onely the quantity of the mannor , but not concerning the sold lands , nor his title to the mannor , and the other was ordered also to shew the like on his part . capell and mym . 1599. the chancery also giveth help for perfecting of things well meant , and upon good consideration . as if in a feoffment of lands for money the word heires be omitted in the deed , audeley chancellor , 9. h. 8. said that he would supply it . a man bought debts due upon obligations , and gave his own obligation for the money to be paid for them ; and because he had not ( quod pro quo ) but onely things in action , and the seller would not use action upon them for the benefit of the vendee ; it was ordered here by the assent of the judges thereto called , that the vendor should bring in the obligation to be cancelled , 37. h. 6.14 . but if a man pay money upon an obligation , or a statute that is single , the obligee , or counsee shall not be called hither to cancell it , though the other had no acquittance upon the payment made , 22. e. 4. b. les justices , and doctor and student 23. who said that a man shall have no ayde here to supply his folly : as if he pay a debt upon a single obligation or statute without taking acquittance . but robert stillington episcopus bathoum said that ( deus est pro●urator futurus . ) i thinke if money be paid upon a redemption of a morgage by indenture without taking an acquittance , the morgage shall bring in the indenture to be cancelled here . so if a man sell lands in two counties for money , and maketh livery in the one onely , he shall be compelled in conscience to perfect the assurance by another livery , doctor and student 37. for the contract faileth onely in a circumstance or ceremony . a lease is made of a house and woods , wherein it is covenanted , th●t the leassee shall have housboot and fireboot . by this it is implyed and meant that he shall not have any of the woods to any other purpose , but that they belong to the lessor ; and it is usuall to help him in the chancery , to them leaving sufficient for these boots . a messuage was demised ( cum pertinentiis ) onely but for that sundry lands had been occupyed therewith for the same rent ; and by the same words , the lord chancellor bromley by advice of the judges , ordered those lands should now passe also ; yet in law they do not passe as some justices hold . the lord north demised a mannor ( excepting the court baron ) and perquisites , &c. the exception was found void in law ; and the tenant lady dacres would not make suite to the court kept by the lord north . but the lord keeper puckering assisted with some judges , decreed her to make suite , for that it was plainly so intended . a man made a gift of his goods of intent to defraud his creditors , and yet continued the possession of them , and took sanctuary and dyed there ; now his executors having the goods , were charged towards the creditors , 16. e. 4.9 . so if a lessee for years demiseth parcell of the terme to another , and covenously forfeiteth his whole lease for any condition broken , and taketh the land back in lease againe , his lessee shall find help in chancery . crompton , 64.65 . and stillington the chancellor , 8. e. 4.4 . was of opinion that ( pro laesione fidei ) or breach of promise , a man was at liberty to sue either in the spirituall court ( canonicae injuria ) or else in the chancery for the damage accrewed by the breach . a man had lands of ancient de●neasne in extent for debt , and they were recovered from him by the sufferance of the vouchee , whereby he was ousted ; in this case he shall be holpen here . morton chancellor per assent . bryan , and hussey justices , 7. h. 7.11 . if one that is bound with another for the debt of the other payeth it at the day for fear of arrest ; now if he sue his counter-bond which he hath to save him harmelesse ( non est damnificatus ) is a good plea at the common law against it ; but yet the chancery will give order for his repayment . mich. 31.32 . eliz. and whereas such a surety paid the debt , and sued the principal upon his obligation to save him harmlesse ; the principall brought a subpoena , and alleadging that he having delivered goods into the hands of the surety to save him harmlesse , prayed an injunction to stay his suite ; but because the surety made another title to the goods , the court would not stay the suit for him , 16. e. 4.9 . where deeds and mynuments do concern as well the defence of the tenant for life , his title who also possesseth the deeds , as the right of another in reversion or remainder , it is usuall to have them brought into this court for the avoyding all perils , and the indifferent custody of them , dixies and hillary , 40. eliz. a lease is made for life , the remainder for life ; the remainder over in fee ; the first lessee maketh waste ; and because he in the fee hath no remedy by the common law , and waste is a wrong prohibited , he shall be holpen in chancery , crompton , 48.6 . and not every barre or stopell in law ought also to bind in chancery : for if a legitimate daughter , and her sister a bastard do joyne in suing of their livery , this ought not to barre in conscience , howsoever it may estop in law , doctor and student 34. it is usuall in a bill of chancery ro object , that the case hath proper help at the common law , and 21. h. 7.41 . where one assumed for 10 l. to lands to another . it was said he might have action upon his case ; and not to sue in chancery to compell him to make the estate ; but these helps be divers , and not the same ; for by the one he seeketh the land ; and by the other he demandeth damages onely . and therefore i see not , but that the petition in parliament might have prevailed , if it had stood upon that point onely ; and at this day , it is taken for a good cause of dismission in most causes , to say that he hath remedy at the common law ; and where an action upon the case for a nusans and damages onely are to be recovered , the party may have help here to remove or restore the thing it selfe , quod est idem . a leassed lands for 21. years , and let other lands at twill to b. that had lands in the same town , who makes a lease for life to c. of his own lands , and of a ▪ s. and then by fine all is conveyed to b. he payes the rent to a. still the five years passe by the opinion of all the judges delivered to the lord keeper ; this fine shall not bar a. quia apparet per le payment del rent and cest case fit subscribe per popham & andersan . 12. feb. 160 1.40 . eliz. nota que executor non poit estre a trust unlesse he have an especiall gift in the will , and that may then be in trust , otherwise the generall trust of an executor is to pay debts and legacies ; and of the surplusage to account to the ordinary in pios usus , 44. eliz. 8. iunii 1602. a woman sole takes consideration for making a lease for 21. yeares and then marries ; and she and her husband made the promissed lease at the 21. yeares end , the lessee surrenders and takes a new lease for 21 years more , the husband dyes , the wife oustes the lessee , who sues in chancery to have the first lease continued rest for the first 21 yeares , and not remedyed here , the surrender being voluntary , 44. eliz. two joynt-tenants , the one takes the whole profits , no remedy for the other , except it were done by agreement , or promise of account , 8. iunii 1602. 44. eliz. a defē ▪ not being a principall defendant , might be read at a witnesse , if he were examined on the plaintants party in another suit , betweene other persons , in case of kingston upon thames , 10. iunii 1602. 44. eliz. a custome of discent in a mannor , and many other things were in controversie between the lord and tenants , and between the tenants themselves . and in the tenth eliz. a generall agreement made by deed indented , and a bill in chancery for establishing the same , but no record to be found but the deed inrolled , though all the tenants of the said mannor shall be stopped in the chancery to speak against this , ( cac . est quae le repes del realme ) notwithstanding pretence was made ( philips being of councell with the defendants , that agreement cannot alter a custome in law , that some were infants , some ●eme coverts at the time that the lord was but tenant in taile ; of which opinion was mr. cooke attorney generall , and justice gawdy , 10. iunii 1602. 44. eliz. if a statute be acknowledged in my name by a stranger , i shall have an action of disceat against him , but i shall not avoid the statute or recognizance ; but if it be acknowledged by one of the same name with me , i shall avoyd it by plea . 23. iunii 1602. 44. eliz. the opinion of the courts is , that uses may be raised by covenant for jointures , but power to make leasses in that sort cannot passe , but it may be done by fine , or transmutation of possession , if the covenant be that the owner will stand seize to those uses , 27. iun. 1602. 45. eliz. whether copyholders may be intailed , and held that they may not by the statute ( de donis conditionalibus , ) but by the common law denante ; and that surrenders , or plaints in nature of fines and recoveries may bar these state tayles , as well in the court baron , as at the common law , if the custome have been such , which is the rule in these cases , 3. feb. 1602. 45. eliz. administrators in nature of a guardian to an infant being executor , exhibits on his behalfe a bill in chancery ; the infant ( depending the suit ) comes of full age ; this abates not the bill by the opinion of the lord chancellor egerton , 7 feb. 1602. 45. eliz. doctor ford by his will devised certaine lands to his wife in these words ( non per viam fidei cōmiss●● ) for which his sonne might sue her ; but hoping if his son grew thrifty , that at her death she would leave the remnant of these leases to him , she married greysill ; but before marriage greysill wrote unto her , that she should have the disposing of those leases at her death ; after the marriage greysill sells the leases ; ford brings his suite in chancery , and had no help by the opinion of the court , 31. maii 1. iacob . 1603. inter tomley and clench , it appeared by testimony of ancient witnesses , speaking of 60 years before , and account books and other writings , that francis vaughan , from whom tomley claimed was mulier ; and anthony from whom clench claimeth was a bastard ; and the possession had gone with tomley 50 yeeres . in this case the lord egerton not onely decreed the possession with tomley , but ordered also that clench should not have any tryall at the common law for his right , till he had shewed better matter in the chancery , being a thing so long past ; it rested not properly in notice de pais , but to be discerned by books and deeds , of which the court was better able to judge then a jury of plough-men , notwithstanding that exceptions were alleadged against those ancient writings ; and that for the copyhold-land , the verdict went with clench upon evidence given three dayes before serjeant williams , that anthony was mulier , 31. maii. 1. iacob . 1603. sir edmond morgan married the widdow of fortescuhe , had his wives lands distrained alone by the grantee of a rent-charge from her former husband , and therefore sued the grantee in chancery , to take a ratable part of the rent , according to the lands he held subject to the distresse ; and notwithstanding the lord chiefe justice pophams report , who thought this reasonable , the lord chancellor egerton will give him on this bill no reliefe , but ordered that he should exhibit his bill against the rest of the tenants and grantee both , the one to shew cause why they should not contribute , the other why he should not accept of the rent equally ; otherwise it was no reason to take away the benefit of distresse from the grantee , which the law gave him 7. iunii iacobi . 1603. a. in forma pauperis had a decree against c. for the mannor of b. that the contents of the mannor were doubtfull . c. shewing antient deeds , that proved divers parcels of the lands , claimed by force of the decree by a. to be of another mannor , which notwithstanding the lord chancellor egerton ordered that it should be put to a jury ▪ and they to find as the contents of the manor had gone by usuall reputation 60. years last ; and not to have it paired , and defalked by such ancient deeds . a. married a feme executrix subject to a devastavit ; if a. have nor sufficient to satisfie , himself shall be imprisoned for the debt . a. plaintant in chancery for a lease upon a bill , that affirmed the lease to end at our lady day , an. 1604. had the same decreed for him ; many yeers after comming to the lease it selfe he finds , that it is not to end till our lady , an. 1605. and then moves in chancery , that he may not be forced to leave the land , till that time as the decree appointed him ( qui constitutus est cancel●arius , 24. iulii ad coronam regis ) for the first he must performe the decree ; and then exhibit a new bill upon the speciall matter , otherwise it were perilous to blow away decrees upon motions . hil. 1. iacobi . gosset com . crowther , fol. 122. henry earl of darby conveyed certaine lands in trust , to doughty his servant for payment of his debts , upon mediation of an end of controversies between the daughters of fardinand , eldest son of henry , and will . his younger son now earl . articles were set down , that will . should discharge all his fathers debts , whereupon doughty conveyed the leases to will . the creditors sue doughty in chancery ; and ordered to pursue their remedy against earl william . hill. 1. iacobi . hearle plaintant in chancery against bot●lers mo●ther and son , whose husband had bought tayled lands of hearles brother , to which the plaintant was inheritable ; and some of the money due upon a bond unpaid , and the bond lost . and the opinion of the lord chancellor was to charge the son & the mother , in regard of the land in their possession , with the payment thereof . hil. 1 , iac. nota in le case mynn and cobb , the trust was not so fully proved as the lord chancellor would make a full decree thereupon , so as it should be a presedent for other causes , and yet so farre forth proved as it satisfied him as a private man ; and therefore in this case , he thought fit to write his letters to the defendant , to conforme himselfe to reason ; and affirmed that if he should find the defendant obstinate , then would he rule this cause specially against the defendant , sans la tires consequence . hill. 1. iacobi . nota in the case of manwood , that there behoveth not a full surrender to be expressed in the copy , but the devise is chiefely to be regarded if the surrender be perfect in the roll of the lord , though there be no mention at all of a surrender good enough ▪ hill. 1. iacobi . inter swain and rogers , the case was in effect an assize of nusans , for rogers disturning the trenches , and plucking up of stakes of swaynes mill leet ; and making a banck , or dam beneath , that made the water reflow so as the wheeles could not goe ; and exception taken that the court should not hold plea thereof ( sed contrarium adjudicatur ) many causes of the same manner ended here ; and this specially for rogers a great man in the country , swayne a professor of the law , who sought hereby to avoyd multiplicity of suits per warburton justice , but upon a second hearing at the rolls , referred to a commission of sewers . hill. 1. iacobi . nota per egerton chancellor , where tenant for life , the remainder for life , though there lye no action of waste in chancery , yet he shall be prohibited to do waste by the chancellor , for wrong to the inhabitants , and hurt to the common-wealth . hill. 1. iacobi . bloomer having married the widdow of nanfan , who had forfeited a recognizance to the archbishop of canterbury , for not paying of her daughters portion , intreated the bishop of canterbury , to take a new recognizance , and discharge the former . bloomer after finding that his wives lands was intailed , used meanes to have her by fine , or recovery , to put it into fee , that so it might be subject to the recognizance ; and hoped to get it from his wife also . one bridges his wives kinsman withstood this ; now dyeth the woman , the portion unpaid ; bloomer is sued for it in chancery ; and the opinion of the court against him ; the bishop of canterbury had certified against him ; and because his counsell was not ready that day , the chancellor declared he must take the archbishops certificate , not as a testimony , but as a judiciall proceeding ; and therefore willed bloomer to satisfie the archbishop , or else he must decree against him . hill. 1. iacobi . nota that witnesses ad informand . conscientiam , shall never be appointed to be taken but upon hearing ( ubi iudex dubitat ) but yet witnesses examined after publication not fit to be published , may be fit to be ad informandum conscientiam , if it shall be thought meet upon the hearing . hill. 1. l. daniel hill having put in for his clyent a long insufficient demurrer to a bill exhibited against his clyent , in which supposed demurrer were many matters of fact , and other things frivolous and vaine , the lord chancellor egerton awarded five pound costs against the party . and ordered that neither bill , answer , demurrer , nor any other plea should from henceforth be received under the hand of the said hill . 27. april . 1. iacobi . in the case of tenant right , between musgrave and some of his tenants on the borders , the lord chancellor pronounced , that neither in tenant right , nor in other coppyholds would he make any order for all the tenants in generality , but for speciall men in speciall cases , nor for any longer time then the present , except it were by agreement between the lord and the tenants , which then he would decree if it appeared reasonable . 8. iunii . 1. iacobi . item that he neither would help leases paroll in chancery ; and that it was good for the common-wealth , if no lease paroll were allowed by the law , nor promises to be proved by witnesses considering the plenty of witnesses now a dayes , which were testes diabolices qui magis fame quam fama moventur . 8. iunii 1. iacobi . lands given ad divina celebranda by feoffement , till an estate should be made by the feoffees of them , for founding a chauntry , and this in the 20. of h. 6. and held no superstitious use , nor by the lord chancellor , if it had been absolutely given ad divina celebranda and for saying of obites , for most part of the churches of england are so founded ; if it be granted to a priest ; contra , if it be granted to a particular priest ad divina celebranda and saying obites , &c. the case was that those lands were after given to found a chappell of ease by the feoffees ; and then new come in upon the first grant , would have had it a concealement , and got a pattent thereof , and commissioners upon the statute , 39. eliz. took it from the pattentee . and note that the commissioners make the decree ; the lord chancellor heareth the exceptions against the said decree , and decreed the possession according to the commissioners decree , leaving the pattentee to exhibite his bill against the parishioners , and to shew what cause he could for reversing thereof , 18. iunii 1. iacob . george littleton of the inner temple , lent money upon bonds taken in other mens names and had not any in his own name ; among the rest he purchased five markes per annum in two other mens names , with this trust , that he might injoy it during his life , and after it should be to the erecting of a schoole in the towne where the said george was born and buryed , as the feoffees declared in their answer ; and in his life time after the purchase he repealed his intent of converting the same to the use of the schoole to divers others , but by his will he gave certaine acres of land to i. c. and i. h. and then devised all the rest of his lands to his brothers sonne , who sues ceux que trust for converting unto him the five marke land , which justice warberton presently decreed for him , saying his will was his declaration . but in his words there was but a meaning onely exprest ( me contradicente ) for if i. c. make a feoffement to the use over according to articles annexed , he cannot alter the same by a later will . contra , if it be to the use of his will . 19 iunii 1. iacobi . cutting cleark of the outlawries bought lands of bedwell , whereof he was seized as tenant by curtesie , promising the heire should assure at full age ; and by morgage assured other lands for performance thereof . cutting before full age dyeth without issue his heire not known , for some claimeth as h●ire on the fathers side , some as heire on the mothers side , others as assignees , by devise ; and another as executor sued a statute for performance of covenants ; bedwell being willing to assure , brought all into the chancery , that he might incurre no prejudice till he should know to whom he should assure ; and ordered that he should assure to two of the six clarks , they to reassure to the heire when he should be found . 10. octob. 1. iacobi . nota that the lord chancellor egerton in the case of pigot , that if a power be reserved to make leases by a covenant without transmutation of possession , the chancery shall not help , because the first is void in law , if upon transmutation of possession , and the power be not precisely followed , that doubtfull and rather most strong against help ; for then the estate workes and the power gone ; and upon wills no help ; causa patet antea , fol. 1. and difference inter will and testament , testament requires executors , will of lands . 11. octob. 1. iacobi . young purchased lands in the name of one mason to the use of him and his heires , dying without declaring any setled determination of this trust or confidence ; dethicke a kinsman procures mason to convey the lands to him , and he conveyes it over to infants , mericke a nearer kinsman sues in chancery as next heire , if the benefit of the trust appear to appertain to mericke , notwithstanding the conveyance to infants being decreed for them , they shall hold by the decree during the minority . and a proviso for the infants to assure at full age , per cook attorney veniendo de westm ; and there appearing no certain disposing thereof , it was ordered that mason should repay the money he had for making the conveyance to dethicke , and merick to have the lands ordered for him . 11. octob. 1. iacobi . those who are curious to have the defendants to amend their answers , ordered first by the lord chancellor to put in sureties in court , for proof of the contents of their bills according to the statute , 15. h. 6. or iuramentum calumniae were better perchance . 13. novemb. 1. iacobi . commission to examine witnesses , went out to sir a●exander brett and others , who made certificate against sir alexander of partiall proceedings ; philipps serjeant moved at the rolls for a commission to others to examine in whom the misdemeanor was , in sir alexander , or in the certifyers , & fuit negatum , for such collaterall certificates are not required of the commissioners , but let them certifie the matters committed to their charge ; and if there be misdemeanor , let the party wronged thereby make affidavit thereof ; and then take out his attachment . 13. novemb. 1. iacobi . a release was offered to be deposed , that it had been seene by some at the barre , it being affirmed that by casuall meanes it was lost ; but the lord chancellor said the oath should be that he saw it sealed and delivered ; and not that he saw it after it was a deed : for in munson the justice his case , a deed was brought into the chancery and a vidimus upon it , being but a counterfeit copy ; and after the fraud discovered , and the true deed produced , therefore none allowance to be given of a deed , without producing the deed , or proving the execution thereof ; and here appeareth what want we have of notaries and their deputies . 16. novemb. 1. iacobi . the deane and chapter of bristoll made sundry leases misreciting the name of their corporation , and an intricate case of sundry such leases made of one thing to divers men ; wherein the lord chancellor said , that it was fit to help such leases in chancery , being for reasonable time , and upon good consideration ; contra , of long leases , without consideration of fine or good rent ; and that judges might have done well at the first to have expounded the law so , with averment that they were the same parties , and so was the old law till now of late , especially where the mistaking rose on their part , who had the keeping of the evidences , the which the leases could not see , but must take a lease by the colledge clark , in a writ where you may have a new , no harme to abate it for a misnomer ; and yet in that case sometimes in old times an averment of comer per lieu nosme & ● auter , where they were sued by others , and not named so by themselves . 23. novemb. 1. iacobi . haule had a dutchy lease gotten upon untrue surmises ; and the king bestowed the land upon the earl of devon , for his service done in ireland . this lease the earl sought to avoid by the law ; haule prayes to have the matter examined in chancery , and to have the suit stayed by injunction which was denyed , for that the lease was granted by fraud , and the fee simple to the earl in possession and not in reversion & nota , that the lord chancellor said , that where lands are granted in reversion , if the grantee will avoid the lease for a rent paid , but not at the day , in that case he will releeve , but not where the lease is granted upon a false suggestion , for that were to relieve fraud in the chancery , it was further objected , that this grant was made to the earl upon consideration of service done ; and the lord chancellor said , that the service done to the realme was as valuable , as if the earl had given 500 l. for the land , but the earl offered to give the leassee 1000 l. recompence in honour . 23. ian. 1. iacobi . in a case moved by mr. chamberlaine , where the lord chancellor had referred the matter to be tryed at the common law touching remainders upon a lease whether good in law or no , and the judges had given judgement upon the case in another point in the kings bench , so as the lord chancellor remained still uncertaine of that point , called the judges into the exchequer chamber . 1. iacobi . for as much as the plaintant hath served processe upon the defendant to appear in this court return 15. micha . and exhibited no sufficient bill against him , and further for meere examination , sued out a writ of attachment against the defendant , before the returne of the subpoena ; it is ordered that the plaintant shall pay unto the defendant 10 s. costs ; and also that hugh tildesley , who made the processe against the defendant without a sufficient bill , shall pay unto the defendant other 10 s. for his costs ; william garneston plaintant , thomas bradwell defendant . anno 5. hen. 6. philip and mary fol. 11. for as much as a commission to examine witnesses in perpetuam rei memoriam , issued out of this court , and the witnesses examined by vertue thereof , have remained in court by the space of a year ; it is ordered that publication shall be granted richard gravenor , and iohn gravenor plaintants , bryan brearton defendant . an. 5. and 6. phil. and m. fol. 12. episcopu cicestrens . publication of witnesses in perpetuam rei memoriam . an. 5. and 6. phil. and mar. fol. 30. willington plaintant , agar defendant , publication of witnesses remaining since 33. h. 8. fol. 42. anno 5 , and 6. phil. and mary . an injunction is granted against the defendants to deliver to the plaintant certaine plate contained in their petition , or else to appeare and shew cause in crur. anim . prox . anno 5. and 6. p. and m. fol. 13. david geoffry , and iohn geoffry plaintants , and thomas davis defendant . a decree is made for the plaintant , as by the record thereof signed with the lord chancellors hand plainly appeareth ; and the said record is delivered to iohn millisent attorney for the plaintant to be inrolled , the deane and chapter of lincolne plaintant , bevore and alice defendants . anno 5. and 6. phil. and mary fol. 15. glanffell plaintant , strickley defendant , a decree is made for the defendant for dismission of the cause , as by the record thereof signed with the lord chancellors hand ; and the same put to the inrolment . anno 5. and 6. phil. and mary fol. 22. iames iervis hath made oath for the delivery of a subpoena to the defendant , whereby he hath knowledge that witnesses are to be examined in perpetuall memory ; so that he may if he will examine the same witnesses in this court ; therefore the examinors in this court may proceed to the examination of the said witnesses accordingly ; hatcham plaintiffe , winchcombe defendant . 5. and 6. p. and m. fol. 19. porter plaintant , baker defendant , the examinor may proceed to examination of witnesses in perpetuall memory ; if the plaintant have served a subpoena upon the defendant , to give him notice to examine likewise . an. 5. and 6. p. and m. fol. 32. forasmuch as the plaint hath taken oath in this court , that there are sundry witnesses contained in a schedule exhibited in this court , which he desireth to have examined ●n perpetuall memory , so impotent and sick , that they are not able to travell up to be examined in court , without danger of their lives ; therefore a commission is awarded to sir humfrey b●adburne knight , to examine the same witnesses in perpetuall memory , bagshawe plaintant , defendant . an 5. and 6. p. and m. fol. 22. robins plaintant , foster defendant , a commission is granted to examine witnesses in the countrey , being impotent , in perpetuall memory . anno 5. and 6. p. and m. fol. 26. the plaintant is adjudged to pay to the defendant costs three pound , for that he was served to appear before the lord mayor of london to testifie in a matter depending before the said lord mayor , between the plaintant , and one iohn gresham , and others without any precept directed from the lord mayor , unto the said defendant to appeare ; rowe and alice plaintants , thomas guybone defendant . anno 5. and 6. p. and m. fol. 24. iohn manlye hath taken oath , the deposition of witnesses examined on the behalfe of the plaintant , and remaining in this court , are to be given in evidence at a court baron holden at potton in the county of bedford on m●nday next ; therefore publication is granted , william manlye clerke plaintant , thomas simcote defendant . anno 5. and 6. phil. and mary . fol. 24. an injunction is awarded against the defendant , to stay his proceedings in the sheriffes court of london , or elsewhere upon debt of 100 l. not to proceed to triall , judgement , or to execution , if judgement be given . iohn ayland plaintiffe , francis bacon defendant . anno 5. and 6. p. and m. fol. 29. forasmuch as the plaintant served processe upon the defendent , by the name of magaret hastings , and at that instant was marryed to william brown ; and also for want of a bill , therefore the said william brown , and margaret are adjudged to pay to the defendant 20 s. costs , margaret hastings plaintant , nicholas iugges defendant . anno 5. and 6. p. and m. fol. 30. forasmuch as the sheriffe of den●igb hath returned a languidus in prison , therefore a commission is awarded to richard griffeths and others , to take the answer of the defendant , iohn ap thomas plaintant , engharard hoell widow defendant . an. 5. and . 6. p. and m. fol. 33. forasmuch as the defendant was in possession of the lands at the time of the bill exhibited ; and the plaintant hath sithence entered , therefore an injunction is granted to the defendant against the plaintiffe , to avoid the possession . william hawkes , and ie●nit his wife plaintants , iohn champion and others defendants . an. 5. and 6. p. and m. fol. 35. it is ordered the plaintant shall between this and friday next , bring into this court a certificate from the officers of the queens house , or otherwise ; whereby this court may credibly understand , that his attendance in court is necessary and that he cannot conveniently be absent , or if he cannot so doe , then the matter is remitted to the determination of the commissioners in the marches of wales . phillip mannering plaintant , henry smallwood , and alice defendants . anno 1. eliz. fol. 51. mannering plaintant , smallwood and alice defendants for want of a certificate , that the plaintants attendance in court is necessary , the cause is dismissed into the marches of wales . anno 1. eliz. fol. 62. the plaintants husband was bound in a statute of 160 l. to pay 160 l. and after by indenture the defendant did grant unto the plaintants husband , that if he failed in the payment of the said 160 l. the same should be levyed of certaine lands then the said plaintants husbands lands called stirbeck , and some other lands specially named lying in hawthorne in the county of lincolne ; the husband dyed , and the defendant sued execution as well of other lands in the occupation of the plaintants late husband , as of the said lands mentioned in the indenture . and sir nicholas bacon , lord keeper of the great seale of england , granted an injunction against the defendant immediately to remove from the possession of all the other lands , except of those onely contained in the indenture ; and that he should quietly suffer the plaintant to enjoy the same , margaret pulvertost widdow plaintant , and gilbert pulvertost defendant . anno 1. eliz. fol. 51. an injunction was granted to the plaintant , upon the surmises of his bill , with this clause ( si ita sit ) that the plaintant be in possession by good conveyance in law as he alleadgeth , nota it was then usuall to grant injunctions upon surmises with a proviso ( si ita sit ) fodringham christopherus plaintant , richard chomeley defendant . anno 1. eliz. fol. 67. forasmuch as the defendant is under age , and by inspection not above the age of fifteen yeers ; therefore george wyat is by this court named , and appointed gardian to the defendant , hugh langley plaintant , and philip mark defendant . anno 1. eliz. fol. 73. a commission is awarded to the sheriffe of nottingham ▪ and ●erby , to put the plaintant in possession of certain lands , for which he formerly had an injunction against the defendants , which they have disobeyed , william boles plaintant , richard walley and alice defendants . anno 1. eliz. fol. 84. the defendant is enjoyned in open court upon paine of 200 l. not to proceed any further in an action , upon the case by him commenced in the kings bench against the plaintant , nor that he procure the jury to be sworne in the issue , but onely to record their appearance untill to morrow , at which time further order shall be taken by the court , george riche plaintant , edmond foard defendant . anno 1. eliz. fol. 88. upon information the defendant disobeyed a writ of subpoena brought to be served against her ; and that they which should have served the said writ , were beaten and wounded , therefore an attachment was granted against the defendant ; and a subpoena against edmond pirton returned immediate , william rove , and rose his wife plaintants , agnes west widdow defendant . anno 1. eliz. fol. 90. and 97. where the said edward pyke hath of long time been , a●d yet is in execution upon a statute , at the suite of the late king edward the 6. forasmuch as upon the examination of the matter befo●e the lord keeper of the great seale of england in open court , it manifestly appeareth that there was not just cause , why the said pyke should remaine in execution , as g●lbert gerrard , and rosewell esquire , the queenes majesties attorney , and solliciter generall being present did confesse and agree ; it is therefore now ordered , that a writ of supersedeas be directed to the warden of the fleet , in whose custody the said pyke now is , commanding him by the same forthwith upon the receipt thereof , to deliver out of prison the body of the said plaintant , provided alwayes before his deliverance he be bound to her majesty by recognizance in 100 l. not onely to make his further appearance to answer her highnesse any thing hereafter shall happen to be laid to his charge concerning the said execution ; but also to stand to , and obey all such order and determination as the said lord keeper of the great seale and this court shall hereafter take in the matter in variance between him and the said graunt , edward pyke plaintant , robert graunt defendant . anno 1. eliz. fol. 166. pakine the husband onely appeared , and put in a demurrer in both their names without oath of impotency , or otherwise for non appearance of ioan his wife ; whereupon an attachment is awarded against the defendants , thomas spicer and katherine his wise plaintants , iohn pakine and ioan● his wife defendants . an. 1. eliz. fol. 170. thomas hodge plaintant , william smith defendant ; the defendant demurred by his counsell not appearing in person , therefore a subpoena was awarded against him to make a direct answer . an. 1. eliz. fol. 230. iohn iackson attorney for the defendant at the common law is in open court enjoyned , that neither he , nor any other by his means do further proceed in an action of tresp . commenced against the plaint . and depending at the cōmon law , nor call for judgement , untill further order shall be therein taken by the lord keeper of the great seale of england , and high court of chancery , iohn sedgewick and alice plaintants , will . redman defendant . an. 1. eliz. fol. 212. the plaintant served the defendant with a subpoena to appear in chancery , whereof he made oath , and because the defendant did not appear , and injunction was awarded against the defendant , his councellors and attorneyes , upon paine of 200 l. not to proceed in judgement in an action of debt of 40 l. in the common pleas against the defendant . an. 1. eliz. fol 213. thomas knot plaintant , thomas iackson defendant . david eyre was served with a subpoena ad testificandum for the plaintant in a cause depending in this court , and thomas eyre made oath , that the said david eyre was , at the serving of the said subpoena upon him , and yet is , so sick , that he is not able to travell hither to testifie ; therefore a commission is granted to such commissioners as the plaintant will nominate to examine him , iohn wade plaintanr , gwye and alice defendant . an. 1. eliz. fol. 240. an attachment was awarded against the defendant for his not appearance upon oath , he was served with a subpoena , who now appeared gratis , and would have excused himselfe , that he had no notice of the subpoena , but he that served the subpoena , deposed he did hang the same upon the defendants doore , and within halfe an houre after , saw him abroad with a writ in his hand , which he supposed to be the subpoena ; therefore he is committed to the prison of the fleet , bernard richers plaintant , tho. stilman defendant . an. 1. eliz. fo. 249. the defendant was served with a subpoena the day of the return ; and for his not appearance an attachment was awarded against him , and upon oath , that he was served sixscore miles of , so as hee could by no possibility appeare , therefore a commission is awarded to take their answers in the countrey , paying the plaintant 6 s. 8 p , for his costs ; henry george plaintant , henry bolington , and ioane deane defendants , fol. 255. an injunction is granted to discharge an execution by elegit taken by the defendant out of this court , for that he being served with a subpoena did not appear , william hobby plaintant , francis kemp defendant . anno 1. eliz. 274. the plaintant served one rolfe with a subpoena ad testificandum , and after he was served before he could be examined , rolfe was pressed for a souldier ; upon oath made hereof attachment was stayed , richard humble and anne his wife plaintants , william malbe defendant . anno eliz. fol. 3. the plaintant sets forth by his bill that where there was a suit depending in the dutchie court , between the defendant and christopher aschugh his brother for certaine lands ; it was agreed , and the plaintant was bound to the defendat in 100 l. that the said christopher should become bound by obligation in the sum of 100 l. the tenth day of iune following ; and should then also make unto him a release ; and the defendant was also bound by obligation in 50 l. to pay the said christopher a sum of money the 9. of iune in the parish church of da●e . and because both the dayes of performance of the conditions of the said severall obligations were so neer together , therefore it was agreed , that when the defendant paid his money , the said christopher should make his bond and release ; and sheweth that the 9. day of iune , the defendant came not himselfe , but sent his servant to pay the money ; and christopher was there ready to make the bond & release to the defendant , and offered to deliver the same to the defendants servants , but they refused to accept thereof ; and afterward the said christopher offered the same to the defendant , but he likewise refused to receive the same ; and yet puts the plaintants bond of 100 l. in suite in the kings bench ; hereupon an injunction is granted with a clause ( si ita sit ) to stay all further prosecution of any action , in any the queenes courts at the common law , or else where , upon the bond of 100 l. against the plaintant ; and also the taking of any nisi prius , or judgement , or execution upon judgement , if judgement be already given upon the same bond , untill the defendant have made a perfect answer , and the court take other order , aschughe plaintant , skelton defendant . anno 2. eliz. fol. 9. and 12. a commission is awarded to thomas ward , one of the examinors of this court of chance●y , for the examining of witnesses in perpetuall memory , in which commission the defendants may examine if they thinke good , barentine plaintant , harbert and alice defendants . anno 2. eliz. fol. 46. the defendant was bound by recognizance to the chamberlaine of london for payment of divers sums of money for orphan● portions ; and departed out of the city , and dwelt in oxford shire , leaving no estate behinde him in the city , so as the processe of the city cannot take hold ; therefore a subpoena is granted against him upon pain of 100 l. to appeare before the major , and aldermen , and to stand to their order : major and aldermen of london plaintants , iohn dormer defendant . anno 2. eliz. fol. 5. afterwards fol. 67. ordered , if he doe not appeare , an attachment is granted . sr humphrey brown knight one of the judges of the common pleas is plaintant against the defendant ; and an order is made for bringing in and delivery into the court of certaine evidences , sir humphrey browne knight plaintant , thomas smith defendant . anno 2. eliz. fol. 53. nota that dismissions were entred at large , anno. 2. eliz. fol. 55. and fol. 56. a decree was entred at large in the registers booke ; which be the first i finde entred at large in that kind , and so after divers others . the defendant appeared upon a subpaena , and answered the plaintants bill ; and after attended upon the lord keeper , for a matter in controversie between him and one ellin w●yne , and in the meane time being arrested in london , at the suite of one anthony brisket , contrary to the order and priviledge of this court ; it is therefore ordered , that a subpoena of priviledge be granted to the major and sheriffes of london for the discharge of the said arrest , rich. dutton plaint . will. alersey defend . an. 2. eliz. f. 58. forasmuch as thomas harbert sheriffe of monmouthshire , hath returned non est inventus upon an attachment awarded against roger williams who is a justice of peace , and as is informed , was at the last quarter sessions holden for the same county ; therefore the sheriffe is amercyed five pound , sir thomas stradling knight plaintant , william earl of pembrooke defendant . an. 2. eliz. fol. 84. the defendants attorney at law , was enjoyned to stay his proceedings at law against the plaintant in an action of trespasse . and notwithstanding this , the defendant himselfe proceeded and got judgement , and took out alevari facias against the plaintant , and an injunction was granted against the defendant himselfe , to stay the execution of the same writ of levari facias , or if he had executed it , and levyed the dammage and costs , that then he should bring all the money thereupon received into the court of chancery in crastina ascensionis domini , to be disposed of as the court shall think fit , and yet notwithstanding himselfe should be then present in court to answer the contempt , iohn segewick plaintant , william redman defend . an. 2. eliz. fol. 92. the defendant was in possession at the time of the bill exhibited and the plaintant entred upon him after the bill , therefore an injunction for the defendant against the plaintant , william dowche plaintant , iohn perrot . defendant . an. 2. eliz. fol. 99. an injunction was granted against the defend . upon paine of 100 l. that he should not prosecute an action of debt of 5 l. or any writ of nisi prius , jury , judgement , or execution of judgement , if judgement be given before the justices of either bench , untill speciall licence be given by this court , thomas stanebridge plaintant , thomas hales defendant . an. 1. eliz. fol. 103. forasmuch as it is informed the tryall of the truth of the matter resteth altogether in the declaration of the defendant ; it is therefore ordered that the defendant shall be examined upon interrogatories to be ministred by the plaintant , upon whose examination if the matter fall not out for the plaintant , then the plaintaint to pay the defendant costs , and the cause to be dismissed , iohn fyfield plaintant , iohn vinore and alice defendants . an. 2. eliz. fol. 122. the plaintant at the day appointed for hearing appeared not , therefore the defendant is dismissed with costs , richard fincham plaintant , william backwood defendant . an. 2. eliz. f. 125. the defendant notwithstanding an injunction delivered unto him , got a judgement upon an action of debt in the common pleas ; and decreed upon the hearing of the cause that the defendant shall within 14. dayes next after the decree resort to the record in the common pleas , whereupon the said judgement is entered , and there to confesse of record a full satisfaction of the said judgement . nota the action of debt in the common pleas was for not delivering to the defendant a statute , which by the depositions of witnesses , appeared to be delivered , and by the clarke of the staples cerficate , the record was discharged , nicholas colverwell plaintant , ralph bongey defendant . anno 2. eliz. fol. 126. it is decreed the plaintant his heires and assignes , and his or their farmors of the said farme or tenement called stubles , shall from henceforth hold and enjoy as appendant to the same farme or tenement called stubles , all the same fould course , or common of pasture , for the full number of 300 sheep within the said fields of wentforth alias wentford , basill fielding and alice plaintants , thomas wren defendant . anno 2. eliz. fol. 137. and 155. the plaintant exhibited his bill thereby shewing that there is question and controversie between two defendants , for the reversion of the mannor of aldwell , which he holdeth for yeares by lease , made thereof to him by one anthony marmyon , and that he doth not know to which of them the rent and reversion is due , and therefore desireth , that upon payment of his rent into this court according to the covenants and articles of his lease he may be discharged , & saved harmelesse from molestation , suite , and trouble for the same rents by the defendants or either of them ; wherefore it is ordered an injunction be awarded against the defendants , not to molest the plaintant for his said rent during the said contention , so as the plaintant pay his rent into this court , iohn alnete plaintant , christopher bettam , and edmond marmyon defendants . anno 2. eliz. fol. 141. upon hearing of the matter , three witnesses examined by commission did in open court depose , that the commissioners have set downe their depositions otherwise then they did depose ; therefore it is ordered those depositions shall be void , and the same witnesses shall be examined again , iohn peacock plaintant , edward collens defendant . anno 2. eliz. fol. 146. for that the court was credibly informed , the plaintant was in peaceable possession at the time of the bill exhibited , and three yeares before , an injunction is awarded , iohn sapcote plaintant , william newport defendant . anno 2. eliz. fol. 173. the suite was concerning the custome of tenant right for lands in dent in the county of yorke ; and for that both parties confessed , that justice dallison , and serjeant rastall justices of assizes in that county had made an award in the cause between the parties , therefore it was decreed that both parties should performe it ; and an injunction is granted to either party against the other for that purpose ; and where an injunction was the last terme granted against the defendant , for stay of execution upon a judgement in the common pleas ; it is ordered the said injunction shall stand in force , and the defendant shall obey the same , and the defendant shall answer the plaintants bill , william burtet , and alice plaintants , william redman defendant . an. 2. eliz. fol. 174. it is ordere● the injunction formerly granted the defendant , for stay of his action in the kings bench be dissolved , and the defendant to be at liberty , to take judgement upon his action of bebt of 500 l. provided if the plaintant doe bring into court on munday next , 223 l. then execution for the rest is to be suspended untill this court take other order ; thomas stanebridge plaintant , thomas hales defendant . an. 2. eliz. fol. 176. the plaintant exhibited his bill in this court , and before the defendant answered , had a commission to examine his witnesses , upon pretence the witnesses were old and in danger to dye ; sir radnus bagnold , miles plaintant , greene defendant . an. 2. eliz. fol. 178. the defendant first exhibited her bill in this court for land conveyed to her in joynture , and evidences of the same land , and after did molest the same plaintant by distresses , after answer and replication put into this court , therefore an injunction is granted ; richard kidnere plaintant , agnes harrison defendant . an. 2. eliz. fol. 173. the plaintant setteth forth , that his father and he are joyntly seized for life of the lordship of barrington in the county palatine of durham ; and that the defendant sues his father for those lands before the chancellor of durham , and for that it was informed that the plaintant dwelleth in ratcliffe , in the county of middlesex ; and that the plaintants father is an old diseased man , and not able to follow his suite ; therefore a certiorare is granted , directed to the chancellor of durham , to certifie into this court the whole matter depending before him , william hilton and alice plaintants , r●●●rt lawson , and william lawson defendants . anno 2. eliz. fol. 200 l. the plaintant being sonne and heire to his father , who dyed intestate , entred into the house whereof his father dyed seized in fee , and possessed himselfe of certain small parcels of goods , to the value of 5 s. of his fathers goods who dyed intestate ; and the defendant having an obligation of 400 l. made by the father unto him for performing the covenants of an indenture , sued the son as executor to his father ( who dyed intestate ) and upon the testimony of some witnesses , that the plaintant had sold or given away the said small parcels of goods , a verdict passed for the defendant for the whole 400 l. which appeared by certificate of the justices of assizes ; and thereupon an injunction was granted to stay judgement , and all other actions to be commenced by the defendant against the plaintant upon the same obligation , untill the matter be heard , or otherwise determined by the court ; edward north plaintant , george ke●ewich defendant . anno 2. eliz. fol. 237. it is ordered , if the defendant shew not cause on friday next , then the injunction before granted for the defendant against the plaintant , to stay his execution in the kings bench , shall be dissolved , or else the money for which the plaintant lyeth in execution at the defendants suite shall remaine in his hands , in part of payment of such money as is due unto him by the defendant ; and afterwards upon fryday because the lord keeper did not sit in court to hear such cause a● was offered , further day was given , and afterwards the plaintant was left at liberty to call for execution upon the judgement , because the defendant shewed no cause , thomas hales plaintant , thomas stanebridge defendant . anno 2. eliz. fol. 244. the defendant exhibited his bill into the chancery , for certaine lands , and afterwards sued the plaintant in the common pleas for the same lands , before the matter was determined in the chancery ; therefore an injunction was awarded against the said body , to stay his proceedings in the common pleas ; robert bill , and thomas gifford plaintants , iohn body defendant . anno 2. eliz. fol. 263. the undersheriffe of middlesex brought into this court the body of the plaintant by commandment of the lord keeper , in execution upon a writ of extent of 300 l. together with the said writ , at the suite of sir edmund maliverer knight ; and by order of court he was taken from the sheriffe of middlesex , and delivered in execution to the warden of the fleet for the 300 l. and because the defendants shewed no good cause to the contrary upon a day given them ; therefore it was ordered that upon recognizance by the plaintant and good sureties , to stand to the order of the court , or else to yeeld his body prisoner to the fleet in execution , and there to remaine untill the defendant be satisfied ; he the plaintant shall have liberty to goe at large ; and that the defendant shall not sue for any manner of execution , by force of the said execution ; robert rosse plaintant , christopher lassels , and alice defendants . anno 3. eliz. fol. 90. the plaintant had judgement in the kings bench against the defendant upon a bond of 200 l. and another judgement for 300 l upon an action of debt of arrerages of account in the kings bench ; and ordered they may proceed with execution upon the bond of 200 l. and also to take execution of 100 l. parcell of the 300 l. provided alwayes , and it is ordered the plaintant shall not in any wise proceed , nor take execution of the 200 l. residue of the 300 l recovered upon the accompt , without speciall license of the court , iohn brooke , and katherine his wife plaintants , thomas apprice defendant . anno 3. eliz. fol. 233. the plaintant sheweth by his bill , that the personage of thekelye was holden by force , whereby the plaintant could not be inducted , whereupon a writ of de vilaica removenda was awarded out of this court , and thereby the plaintant put in possession by the sheriffe : neverthelesse the defendant keepeth the possession of the said house appertaining to the personage ; and for that the plaintant is bound to pay his first fruits to the queenes majesty , therefore an injunction is granted against him ; thomas boult clerk plaintant , sir george blunt , miles and alice defendants . an. 3. eliz. fol. 262. the plaintant made title to the lands by a lease paroll made by the defendant unto him , whereupon he did sow the ground with corne , and the defendant entred upon him ; therefore the plaintant had an injunction for the corne ; thomas harrison plaintant , richard chomeley , miles and alice defendants . an. 3. eliz. for three hundred pound . it is decreed , the desendant and his heires shall from time to time yearly pay to the plaintant and his heires lords of the mannor of knebworth , the rent of 3 s. 4 d. for the peece of ground called the haw●e , together with the arrerages thereof since the 6. of ed. the 6 : and shall from henceforth doe suite and service to the court of the plaintant and his heirs , owners of the said mannor ; and the plaintant and his heires shall have and receive the fines and amercyaments presentable in the court of the mannor for any trespasse , or lack of service done by the tenants of the said hawte ; richard litton plaintant , iohn couper defendant . an. 6. eliz fol. 145. it is ordered a subpoena be awarded against the defendant to be examined upon interrogatories , whether before his answer he had knowledge that the plaintant was marryed , and would take no advantage of the same marriage in his answer , then the matter to proceed without bill of revivor ; christian fairefield plaintant , robert greenfield defendant . an. 6. eliz. fol. 150. the question of the case drawn was , whether the advowson in question did passe by the livery made in the view of the church without deed or not ( the church being full of an incumbent ) and resolved by the lord chiefe justice of the kings bench , and justice manwood , to whom the same was referred , that the advowson could not passe by that livery ; pannell plaintant , hodgson alias hodson defendant . anno 18. and 19. eliz. a subpoena ducens tecum was awarded against the defendant to bring in certaine deeds , and to shew cause why the same should not be delivered to the plaintant ; the defendant by his councell , shewed that the morgage was upon condition for payment of 40 l. at a day ; and before the day , the morgager sold the same over to the plaintant , and delivered the estate by livery and seizin , whereby the condition was extinct ; and yet the defendant offered to give for the same 100 l. it is ordered that the evidences be delivered to the usher of the court , but not to the plaintant , without speciall order ; wilford plaintant , denny defendant . anno 18. and 19. eliz. the plaintant exhibited his bill to be releived for a promise , supposed to be made by the lady lutterell for a lease of certaine lands ; and for stopping certaine wayes ; the defendant had a commission to take her answer , and demmurred for that the plaintant may have his remedy by law , which cause seemes insufficient , and not to be allowed of ; and the rather for that the defendants having a commission to take their answers in the co●ntry did demurre ; therefore a subpoena is awarded against them to make a better answer ; stukly plaintant , the lady lutterell & aliis defendants . an. 18. and 19. eliz. stephen smith made oath that he was present , when one iohn maddock made these persons hereafter named , privy to a writ of execution , upon a decree made for the plaintant , viz. iohn ward , iohn priddo●k , henry pinly , lawrence banks , iohn kiddermaster , and william tuttle ; and the said maddocks left the same writ with one thomas smith , from whom the defendant confesseth the receipt of the said writ , which said parties have not performed the said decree ; therefore an attachment is awarded against them ; leake plaintant , marrow defendant , an. 18. and 19. eliz. the bill is against the defendants as executors to their father , who in his life time being gardian in soccage to the plaintant in right of the plaintants mother whom he married , for and concerning profits by him taken of the lands of the plaintant during his minority , for fines of leases , woodsales , and wilfull decay of houses , and doth a●er assets sufficient to become to their hands ; the defendants demurre , because not privy , nor chargeable by law , but ordered to answer ; burgh plaintant , wentworth defendant anno 18. and 19 eliz. thomas staple●on made oath , that he delivered a subpoena to the defendants wife , being in the defendants house who hath not appeared , therefore an attachment is awarded ; barlow plaintant , baker defendant . anno 18. and 19. eliz. it is decreed by assent , that the defendant being lord of the mannor of alderswasley , shall have for a fine of a coppyholder upon a surrender , one whole yeares value , as the same is reasonable worth , according to the usuall rates of lands in that countrey , blackwall and alice tenants of the mannor of alderswasley plaintants , low defendant . an. 18. and 19. eliz. the defendant confesseth by her answer , the having of a tablet or pomander in gold demanded by the plaintant ; and as to the 20 l. likewise demanded by the plaintant , by him left with the said d●fendant as a token , at such time as he was a suter for marriage to the defendant ; she confesseth the same was left with her against her will , and she delivered the same over unto one sydole her brother , who was a dealer with her on the plaintants behalfe , to the end hee should deliver the same over to the plaintant . it is ordered the tablet be forthwith delivered by the defendant to the plaintant , which was done presently in court ; and as to the 20 l. the plaintant shall call in the said sidole by processe ; young plaintant , burrell and elizabeth uxor ejus defendants . anno 18 and 19. eliz. the plaintant by his bill sheweth , that the copy of the court ●oll whereby the defendants pretend title , was indirectly entered by the stewards clarke of the mannor ; the defendants demurre for that the plaintants shall not be received by surmise to object against , or impeach the said court rols ; and alleadgeth further the copy was found by the homage to be true , which causes seem to this court very insufficient : it is therefore ordered , if cause be not shewed before wednesday for maintenance of the demurrer , then a subpoena is awarded against the defendants to make answer ; holden and holden plaintants , cleark and alice defendants . anno 18. and 19. eliz. the plaintaint hath exhibited his bill of revivor against two , where the first bill was against three ; and the personage in question is named by another name then in the former bill ; therefore ordered , if cause be not shewed by a day , the defendant shall be discharged , heines plaintant , william day deane of windsor , and hatchines defendants . an. 18. and 19. eliz. william lowgher appeared and answered , but rob. lowgher claimed the priviledge of the university of oxf. but because the said doct. lowgher was joyned with william lowgher in the bill who was not subject to the same jurisdiction ; therefore ordered processe to be awarded against him to shew other cause why he should not answer ; white plaintant ; rob. lowgher doctor of divinity , and will . lowgher defend . an. 18. & 19. eliz. the defendant is adjudged to pay to the plaintants 40 s. costs for suing out processe of contempt against him , being discharged by her majesties generall pardon ; iones and parris plaintant , iones defend . an. 18. and 19. eliz. there is more presidents of the like case . walter ieames made oath , that he hanged a subpoena on the door of one stacy barry widdow ; and that the defendant used to resort thither as he heard reported before that time , who hath not appeared ; therefore an attachment was awarded ; ieames plaintant , morgan defendant . an. 18. and 19. eliz. the plaintant exhibited his bill against the defendant , by practise of purpose to examine witnesses , and did examine witnesses accordingly , whereas the cause chiefely concerned one thomas staunton , and will . bayes ; and therefore ordered that the depositions should be suppressed , and that the said staunton and bayles shall exhibite a bill into this court , against all such as they thinke to be parties to the fraudulent abusing of this court ; walford plaintant , walford defendant . an. 19. eliz. it is informed that the parties dwell in the county palatine of lancaster , and the matter of the bill is for a supposed trespasse , in entring upon the defendants lands , and consuming his grasse and hay upon the same , which this court doth not use to hold plea of ; therefore ordered if it be true , then the cause is dismissed , and the plaintant to take his remedy in the county palatine of lancaster ; hame●heson plaintant , tounstall , covell , rigmaden , and baldwin defendants . an. 19. eliz. the plaintants suit is to have an award made ( by master tilbey ▪ and mr. chambers arbitrators indifferently chosen ) performed , and both parties were bound each to other for the performance of the award ; and one part of the award was , that if any question did grow between the parties , the arbitrators should end it ; it is ordered a subpoena to shew cause ; launcellot barker plaintant , peter barker defend . an. 19. eliz. the plaintant exhibiteth a bill of complaint against luce and maulde two of the defendants ; and after commission maulde marrieth iohn bourne the other defendant , and the plaintant then exhibited a bill of revivor against the defendants , which needeth not as it seemeth to this court ; therefore ordered , if there be no cause of revivor , that bourne and his wife who are called up by processe to answer the same bill are licenced to depart without answer to the bill of revivor ; and the plaintant to pay him such costs as this court shall award ; iackson , and vxor plaintants , luce smith , iohn bourne , and maulde his wife defendants . an. 19. eliz. the plaintant by his bill pretends title to certaine lands , and freehold lands , which lands the defend ▪ claims to hold by copy of court roll to him and his heires of one thomas stedolph esq. lord of the mannor of milcklam in the county of surrey ; whereof the said lands are parcell ; and prayed in aide of the said stedolph ; neverthelesse the plaintant served the said arnold with processe to rejoyne without calling the said stidolph thereunto , which this court thinkes not meet ; therefore ordered the plaintant shall no further proceed against the defendant , before he have called the said stidolph in by processe ; lucas plaintant , arnold defendant . anno 19. eliz. the said holgate maketh oath , he left an injunction in the house of the defendant ; and that the defendant elizabeth white , thomas crimore , and robert watkins have disobeyed the same ; therefore an attachment is awarded against them ; holgate , and vxor ejus planitants , grantham defendant . an. 19. eliz. the defendant this day made his personall appearance upon a commission of rebellion , for saving his bond made to the commissioners in that behalfe ; brown plaintant , derby defendant anno 19. eliz. commonly it is used to take the bonds in the name of the lord chancellor , lord keeper of the great seale of england , the master of the rols , or to any two of the masters of the chancery , all which are good and allowable by the practise of the court of chancery . upon affidavit made by the plaintant , that since publication granted he had divers witnesses setting down their names , come to his knowledge , which formerly he had not knowledge of , therefore ordered he may examine them before the examinor , ad informandū conscientiam iudicis . the plaintant comming to the defendant shewed him a writ , but did delive● him neither note of the day of his appearance , neither did the same appear unto him by the sched●le , labell , or any other paper , and the defendant appearing found no bill : it is ordered the defendant be allowed good costs , and an at●achment against the plaintant for such serving ; brightman plaintant , powtrell defendant . anno 19. eliz. the plaintant called the de●endant dwelling in the county palatine of ch●●ter by processe to an●●er a bill for lands lyi●g in the said county palatine contrary to a generall order lately certified into this court by her majesties appointment , touching the said county palatine according to the said generall order ; willoughby plaintant , brearton defendant . an. 19. eliz. the plaintants bill is that he leassed a house to the defendant ; and did covenant to build and repaire it before a day , which being at hand , and shewed that he had prepared timber and workmen to performe the same , but the defendant as well to have him breake his covenant , as to free himselfe from his covenant to keep it in reparations , did interrupt and threaten the workemen , whereby they durst not proceed to repaire , and so the houses are decayed ; and the plaintant hath no remedy to force the defendant to suffer him to repaire ; the defendant demurred upon the bill alleadging the plaintant hath sufficient remedy by law , which kind of answer this court alloweth not ; therefore a subpoena is awarded against the defendant to answer ; wood plaintant , tirrell defendant . anno 19. eliz. where it appeared by a booke heretofore presented to the queenes highnesse , under the hands of sir iames dyer knight , lord chiefe justice of the commou pleas , mr. justice weston late a justice of the same court , mr. justice harpar late another justice of the same court ; and mr. justice carus late a justice of her majesties bench and remaining ( by force of her majesties warrant ) of record in the court of chancery , touching the jurisdiction of the county palatine of chester ; that before the raigne of king henry the third , all pleas of lands and tenements , and all other causes and contracts , and matters residing and growing within the said county palatine of chester are pleadable , and ought to be pleaded and heard , and judicially determined within the said county palatine of chester ; and not elsewhere out of the said county palatine ; and if any be heard , pleaded , or judicially determined out of the same county then the same is void , and coram non iudice ( except it be in case of error , foraign plea , or forraigne voucher ) and also that no inhabitant within the said county palatine by the lawes , liberties , and usages of the same , be called or compelled by any writ or processe to appear , or answer any matter or cause out of the said county palatine for any the causes aforesaid ( as by the said book among other things more at large appeareth ) and where now of late the plaintant hath exhibited a bill of complaint into this honourable court for , and concerning certaine lands and tenements lying within the said county palatine ; and hath taken processe against the said defendant in that behalfe , who hath thereupon appeared , and by his councell made request to this court , that for the causes aforesaid the matter here exhibited against him might be from henceforth dismissed ; wherefore forasmuch as william sayler hath made oath , that the said lands doe lye within the said county palatine ; and that the said defendant is inhabiting , and dwelling within the said county ; therefore the said cause is from henceforth dismissed , and remitted to the chamberlaine of chester ; and other her majesties ministers there according to the tenour of the same booke ; wllloughby miles plaintant , brearton defendant . an. 19. eliz. iearvise wheatly made oath for the serving of a subpoena upon the defendant , to testifie on the behalfe of the plaintant at the guildhall in london , who hath not thereupon appeared ; therefore an attachment is awarded against him , batt plaintant , rookes defendant . an. 19. eliz. a bill was exhibited by the plaintant against roger haule , supervisor of the last will of thomas clifton , and one roger haule was served with processe , that was no supervisor of the said cliftons will , and alleadged that the said roger haule who was the supervisor was dead ; and ordered the defendant shall put in his allegation upon oath by way of answer ; and then desire judgement , whether he shall be compelled to answer the said bill or not ; and therein pay his costs for his wrongfull vexation , which shall be thereupon allowed to him , harrison plaintant , haule defendant . an. 19. eliz. the plaintants are adjudged to pay to the defendants 20 s. costs comming upon processe of subpoena to testifie on their behalfe ; and having no charges tendered unto them , nor any interrogatories put in for them to be examined upon ; pearce , and uxor ejus plaintants , crawthorn and white defendants . anno 19. eliz. lawrence hide gentleman , being called upon by processe by the plaintant to testifie , informed this court , that he was ready to depose , so that he might first have his costs to him allowed , which this court thought reasonable ; belgra●e plaintant , edward earle of hertford , and william drury de●endants . an. 19. eliz. thomas hawtry gent ▪ was served with a subpoena to testifie his knowledge , touching the cause in variance ; and made oath that he hath been , and yet is a sollicitor in this suite , & hath received severall fees of the defend ▪ which being informed to the master of the rols , it is ordered that the said thomas haw●ry shall not be compelled to be deposed , touching the same ; and that he shall be in no danger of any contempt , touching the not executing of the said processe , berd plaintant , lovelace defendant . anno 19. eliz. the plaintant exhibited his bill , as well in his own , as in his wives name , concerning a promise made by the defendants to the plaintant ; and his wife to make them a lease of the mannor of appescourt during their lives , the defendants demurre , for that the plaintant ought to have a bill of revivor against them , for that his wife is dead since the bill exhibited ; which cause of demurrer this court alloweth not , for that the promise was made during the coverture ; and the plaintant claimeth not the same in right of his wife ; therefore the defendants are ordered to answer directly to the bill ; thorne plaintant , brend , wilkinson and alice defendants . anno 19. eliz. austen plaintant , vesey defendant ; the defendant is served with a subpoena to testifie ; and for that it appeared by affidavit , that he was sollicitor in the same cause to one of the parties , he was discharged and not admitted to be examined . an. 19. and 20. eliz. hartford plaintant , lee and alice defendants ; the sollicitor of one of the parties was served with subpoena , to testifie in the cause in controversie , and the court discharged him , by reason he was solliciter in the cause . an. 20. eliz. the plaintants bill was for that he being a coppyholder leased to the defendant for years , and the defendant hath digged gravell , and sold the same away , whereby the coppyhold is prejudiced ; the defendant justified , for that the copyholders are not punishable in waste , which cause this court alloweth not of ; for though the copyholders of the mannor are not punishable , yet the leasses of copyholders of the mannor are punishable ; therefore a supoena is awarded to shew cause , why an injunction shall not be granted , for staying his digging of gravell , and felling woods upon the copyhold lands ; dalton plaintant , gill and pindor defendants . anno 19. eliz. whereas the plaintant exhibited his bill against the defendant for wilfull perjury , the defendant hath demurred , which this court alloweth not of : it is ordered a subpoena be awarded to the defendant , to answer thomas woodcock plaintant , giles woodcock defendant . an. 19. eliz. whereas there was an award in writing exhibited into this court made between the said parties , by sir christopher wray knight , lord chiefe justice of england , whereunto the lord chiefe justice hand as well as the parties are subscribed ; it was requested by the plaintants the same might be decreed by this court , which this court refused to grant , untill the defendants were made privy ; therefore processe is awarded ; wakefield , & vxor , & aliis plaintants , hawson , & vxor , & aliis defendants . an. 19. eliz. the suit was to stay suit in the spirituall court for a legacy of 40 l. ioan banvill widdow plaintant , guy banvill defendant . anno 19. eliz. the suite was for common of pasture , and turbary ; the defendant demurred for that the plaintant may have remedy at the common law , but ordered to answer ; lawrence and moregate , & aliis plaintants , windham defendant . an. 19. eliz. robert goodwine made oath that at such time as he came to the house of the defendant to serve a subpoena upon him according to an order of the 10. of may last , one of his servants came forth and told him he was within , who thereupon delivered the writ , to be delivered to the defendant his master ; goodwine plaintant , sullyard defendant . an. 19. eliz. the defendant made oath that he was served with a subpoena by the plaintant in the name of one william web utterly unknown to the defendant and now upon his appearance , no bill in court against the defendant , in the name of the said william web or of the plaintant ; therefore 30 s. cost is awarded against the plaintants . an. 19. eliz. forasmuch as the said abel , one of the defendants appeared , and answered the last terme , and his wife did not ; therefore an attachment was awarded against them both ; monox plaintant , abel and his wife defendants . anno 19. eliz. whereas there was this present day exhibited into this court a certificate under the seale of the university of oxford on the defendants behalfe , testifying and declaring that the chancellors of the said university , and their successors from the time , whereof the memory of man is not to the contrary ▪ as well by graunt and consideration of her majesty , as of her majesties noble progenitors , sometimes kings of this realme have had the cognizance , and finall determination of all manner of pleas , strifes , quarrels and controversies whatsoever ( felony , maine , and franketenant onely excepted ) rising and growing as well within the precinct of the said city of oxford as without , within the realme of england ; whereas one of the parties within the said suit , action or plea , is a master or schollor , or common minister of the same university , or such a person as the chancellor , vicechancellor , lieutenant , or commissary will certifie , ought to enjoy the priviledge of the same university ; and that the same persons upon the shewing forth of the said certificate in any court where they are impleaded ought to be discharged out of the same court , forasmuch as it appeareth by the said certificate that the said defendant , who is brought up by a subpoena , to answer a bill exhibited by the plaintant into this court , is a batchelor of law in the same university ; and for that also it appeareth by the plaintants said bill of complaint , that the matter therein contained , is onely for certaine promises supposed to be made by the defendant to the plaintant , touching certaine goods , chattels , and money therein mentioned , and not franktenement , or any matter before excepted : it is therefore ordered , that the said defendant be of , and from the said bill of complant , and matters therein contained , from henceforth clearly , and absolutely dismissed ; and the plaintant referred to take his remedy for the same , before the chancellor , vicechancellor , lieutenant , or commissary of the said university of oxford , according to the tenor of the said certificate ; temple plaintant , foster doctor of the civill law defen. anno 19. eliz. thomas plaintant , mounson defendant , produceth a certificate of the university , claiming jurisdiction of the same university ; therefore the cause is from hence dismissed to be tryed and determined there . an. 19. eliz. the plaintant in the end of easter terme , by master griffeth his attorney required the defendant to proceed to commission for examining of witnesses , and the defendant was ready to joyne , sithence which time the plaintant contrary to the order of this court ▪ ( as they alleage ) hath produced one of the masters of this court , and one of the examinors to travell to the plaintants house in wiltshire 60 miles distant from london , & there hath examined witnesses ; it is ordered that publication be stayed untill the matter be examined after publication is granted ; darrall plaintant , and stukey defendant . an. 19. eliz. the plaint . father did purchase in fee-farm to him and his heirs , the mannor of long eason , in the county of de●y , of one kymwelmarch rendring 8 l. rent , with a condition of reentry for non payment of the rent , deviseth the land to another for life : a ducens tecum for the evidences . an. 19. eliz. forasmuch as the defendant hath appeared in this court upon an attachment of priviledge , and attended from day to day according to his bond made in that behalfe ; and hath also pleaded an issue to the plaintants declaration ; therefore the defendant is licensed to depart : dugdell plaint . orrell defend . an. 20. eliz. the defend . by his answer confesseth he was joynt purchasor in trust with the plaintants father to them two , and to the heires of the plaintants father of the lands in question ; and that he never received any profits thereof ; and that he meant at the plaintants full age to convey the lands to the plaintant , and his heires according to the trust ; it is ordered and decreed the defendant shall forthwith upon notice to him given convey his estate in the lands to the plaintant , and the heires of his body begotten with such remainder over as in the last will and testament of the plaintants father is expressed at the costs of the plaintant ; young plaintant , leigh defendant . anno 20. eliz. bittenson one of the defendants demurred , for that he was a clerke of the exchequer , and ought to be priviledged there ; and the said mary demurred without shewing any cause , forasmuch as it was openly affirmed by the common voyce of the officers of the same , that the said bittenson may be impleaded in this court , notwithstanding any priviledge in the exchequer ; and for that likewise , if there were any such cause of priviledge , yet he could not have the same in this suite , by reason another party who ought not to have any such priviledge is joyned with him ; therefore a subpoena is awarded against the defendants to answer ; east and scudamore plaintant : bittenson , and mary valence defendants . an. 20. eliz. it is ordered that in a bill of perjury put in against the defendant , he having put in his answer , should not depart untill he be examined upon interrogatories , according to the generall order and course in that behalfe accustomed ; for it was affirmed by the officers of this court , that by the order and custome of this court , he ought to be examined upon interrogatories : philips plaintant , benson defendant . anno 20. eliz. the defendant made oath , the plaintant came to him on easter day last in barrington church ; and commanded him in the queenes name to appeare in chancery the 17 day after , which said defendant demanded the processe ; and the plaintant answered him he was to serve another , and therefore would not leave him any note for his appearance ; and yet upon his appeance no bill found in court ; therefore the plaintant is adjudged to pay him 20 s. costs ; syers plaintant , cotts defendant . anno 20. eliz. robert hodgeson made oath , that he left a subpoena to make a better answer upon the doore of the lodging of the said defendant , being at the signe of the maidenhead without temple bar , whereas both by the report of divers of the neighbours thereabouts , as by the recourse of her servants to and fro at the same time by all presumptions , she the said defendant was then in the said house ; and yet she hath not made a better answer ; therefore an attachment is awarded against the defendant ; croker plaintant , hampden defendant . an. 20. eliz. the said defendant hath this present terme appeared upon a subpoena at the plaintants suit 15 pascha and no bill in court ; and for that the defendant hath lost the said subpoena , he cannot demand his charges for want of the said bill ; it is ordered no processe of contempt issue out of this court against the defendant upon the said subpoena : blanch parvy plaintant , morgan defendant . anno 20. eliz. the defendant made oath , that one of the plaintants servants shewed him a subpoena tres pasch. return ; but would not deliver him the writ or labell ; and now upon the defendants appearance , there is no bill against him in court , therefore costs : gray plaintant , gurney defend . an. 20. eliz. the defend . by his answer disclaimed of the clarkship of the peace in question , and confessed thereby that he delivered all the records , and titlelings of sessions , which he had , to master treutham custos rotulor ▪ in the county of stafford ; and yet the plaintant hath replyed to the same to examine the manner of assault , and other matters touching the death of one ashbrook , and goeth about to examine witnesses thereupon ; it is ordered , that if cause be not shewed to the contrary , that no witnesses shall be examined touching the manner of assault or death of ashbrook , or circumstances thereof ; archbald plaintant , borrold defendant . an. 20. eliz. the defendant in a scir. fac . upon a recognizance to pay 100 l. at martine in the county of surrey pleaded payment at bristow , where the justice of assize without speciall commission commeth not , to the intent onely to delay the party ; therefore it is ordered the defendant shall by friday next , either be sworne to his said plea , or else put in such a sufficient issuable plea , as he will stand unto at his perill ; lovell plaintant , hopkins defendant . an. 20. eliz. the defendant demurred upon a bill of revivor exhibited by the plaintiffes against her , for that she was a woman covert during the time the first suit depended ; but ordered to answer for that she was party to the suit with the said twynneho● her husband ; ruthel & uxor ejus plaintants , dom. elizabeth litton , late wife to edward twinnehoe defendant . anno 20. . eliz. the plaintant and her husband exhibited their bill against the defendant ; the husband dyeth , the wife now plaintant , exhibiteth a bill of revivor , and goodw . alice parrot widdow plaintant , randall and cowarden defendants . an. 20. eliz. it is ordered that from henceforth no entry be made by any the attorneyes into the registers book of this court of any appearance of , or upon any attachment , or commission of rebellion ; but that the party so appearing , shall first enter into sufficient bond by obligation to this court , to be taken by the register of this court , with condition to attend from day to day ; and not to depart before he be specially licensed by this court . pascha . 20. eliz. the defendant refuseth to answer the receit of rent , and demurred for that the plaintant may have remedy by law for the same ; therefore ordered a subpoena be awarded to make direct answer ; dixe & cantrell plaintants , lintoft defendant . anno 20. eliz. whereas information was made to this court , on the behalfe of george stidenham esq. now sheriffe of the county of somersetshire , that whereas a capias upon a recogn●zance of 133 l. 6 s. 8 d. issued out of this court in hilary terme last , to the sheriffe against the said defendant , the said sheriffe had a capias also for a debt due to her majesty , to him directed out of the court of exchequer , both which capiasses the sheriffe returned into the said severall courts the last terme a cepi corpus & languid●● in prisona ; whereupon a duces tecum issued out of the said court of exchequer to the said sheriffe , for bringing in of the body of the defendant into the said court of exchequer ; whereupon the said sheriffe hath brought up the said defendant , and made request this present day to this court , that some order might be taken by this court , that the defendant may remaine in execution for the debt of the said plaintant , after he hath answered his said debt to her majesty ; so that the said sheriffe may not hereafter be charged by the returne made by the capias upon the said recognizance in this court ; it is therefore ordered by the advice of the right honourable the lord treasurer , and the lord chiefe justice of england being present in court , that a habeas corpus be awarded to the warden of the fleet , to bring the said defendant into this court on thursday next , to the end the said warden may be also charged with the said defendant by this court , till he have satisfied or taken order for the payment of the debt due to her majesty ; and that then he shall keep him in his custody , untill hee answer unto the plaintant , this said debt of 133 l. 6 s. 8 d. ward plaintant , crouch defendant . anno 20. eliz. thomas boulton made oath , that the defend . was served with a billet in paper to appear 15. trinitat . and no bill in court against her at the plaintiffes suite ; therefore the plaintiffe is adjudged to pay the defendant 33 s. 4 d. sustained in sending up the said boulton who hath made oath , that she is so impotent , that she is not able to travell up hither thereupon personally : gredlow plaintant , prestwich defendant . anno 20. eliz. the plaintant is adjudged to pay to the defendant 40 s. costs , for want of a bill , for that the defendant made oath the plaintiffe shewed him a subpoena wherein his name was written , but would not deliver him the same , for that there were others to serve with the same writ ; symont plaintiffe , pinsonby defendant . anno 20. eliz. iohn clegge was served with a subpoena , by the name of robert clegge , and iohn warberton made oath , that he served a subpoena upon robert clegge ; and an attachment was served upon iohn clegge , and ordered that he should be discharged thereof ; and might exhibite his bill into this court , against the said iohn warberton , and call him in by processe to answer his perjury ; robert clegge plaintant , thomas warberton . defendant . an. 20. eliz. a motion for an attachment against the defendant , for breach of a decree and injunction , and ordered by the lord chancellor bromley , that for that time he stayed the granting of the attachment , and vouchsafed to write his letters , requiring him to performe the same , trusting he would have such regard thereunto , as no attachment shall after be required against him : story plaintant , dominus pawlet defendants . 21. and 22. eliz. a motion that where the plaintants had exhibited their bill to be discharged of a legacy , the defendant since his suit , sued in the spirituall court ; and therefore day to shew cause why an injunction should not be granted ; parrré & uxor plaintants , tipelady & uxor defendant . anno 21. and 22. eliz. william smalwood made oath , the defendant confessed he was served with a subpoena at the plaintants suit , who not appeared ; therefore an attachment is awarded against the defendant , to the sheriffe of essex ; waters plaintaint , and berd defendant . anno 21. and 22. eliz. the defendant a master of art in oxford , pleaded his priviledge of the university under the seale there , and demanded judgement whether he should be driven to answer contrary to the priviledge ; and the priviledge was allowed , and the attachment discharged ; cotton plaintant , and manering defendants . anno 21. and 22. eliz. a decree is made for the defendant , to enjoy certaine lands , as well coppyhold , as customary ; bamborow plaintant , alexander defendant . anno 21. and 22. eliz. the defendant made oath that he was served with a subpoena at the plaintants suit to appeare in this court ; and that he hath lost by casualty the subpoena ; and upon his appearance , there was no bill in court against him , at the said plaintants suite : therefore the plaintant is adjudged to pay the defendant 40 s. costs for want of a bill ; domina edith metham plaintant , michaell fayerbanck defendant . anno 21. and 22. eliz. for that it appeared as well by the plaintants bill , as that osney one of the defendants hath made oath that the lands in the bill , is not worth 40 s. per annum ; therefore dismissed generally , and not without costs : townly & uxor plaintants , osney & uxor & parsons defendants . an. 21. and 22. eliz. the defendant made oath , that the plaintant , and defendant are both dwelling within the jurisdiction of the marches of wales ; and for that it appeareth by the bill , that the money complained for is under 10 l. therefore the cause is dismissed : eastcourt plaintant , tanner defendant . anno 21. and 22. eliz. debt upon a single bill satisfied , and the bill not delivered was sued , and execution gotten , and yet retained in chancery , notwithstanding a motion to be dismissed , because after judgement and execution ; for it was said the judgement and execution may stand , and this suite for that he formerly paid : owen plaintant , ioanes defendant . anno 21. and 22. eliz. the defendant maketh oath , that one rock served him with a subpoena in the name of the plaintant ; and at his suit as he affirmed ; but would not deliver neither writ , labell , nor noat of the day of appearance , but told him it was to appeare the first day of this terme , and now no bill in court ; therefore costs is granted against the plaintant : parsons plaintant , hilford defend . an. 21. and 22. eliz. an order for a commission , to set out meet wayes , and cawsages moved in presence of mr. egerton of counsell with the defend . custos of all soules colledge in oxford plaintant , everall & aliis defendants . anno 21. and 22. eliz. upon an oath made for impotency of ienkin the defend . in a former suit by the said goose , by the name of william ap william , they procured a dedimus potestatem to take the answer of ienkin to iohn floyd , and william goose himselfe , whereas the party was under 50 yeares of age and not impotent ; hereupon the plaintant exhibits an english bill of perjury into this court against the said goose for perjury , and ienkin for the procuring of it ; whereupon they being served with a subpoena to answer the perjury , they get a stay of the proceedings from the counsell of the marches ; where , upon motion , sir thomas bromley lord chancellor , marvelled at such their stay , and writ his letters to the said counsell , and granted a new subpoena against the defendants to answer the perjury ; ioane uxor griffith plaintant , richard ap ienkin , and william goose defendants . anno 21. and 22. eliz. the bill was to be releived against a judgement , indirectly gotten by ralfe cavend●sh in the name of thomas cavendish his brother , by default in an account of waste ; and because it so appeared , an injunction is granted ; galley plaintant ralfe cavendish and thomas cavendish defendants . anno 21. and 22. eliz. the suite was to be releived upon a lease made to the defendant in trust to the use of the plaintant : and because it so appeared , it was ordered that the plaintant should injoy the lands against the defendant , and all claiming under him that had notice of the trust : and if the lease were sold to such as had no notice of the trust , then the defendant shall pay to the plaintant so much mony as the lease was worth , rooke plaintant , staples defendant . anno 21. and 22. eliz. a bill to be releived upon a bond after judgement and execution , and because no material matter alleadged for maintainan●e thereof , therefore dismissed : adams plaintant , doddesworth defendant . anno 21. and 22. eliz. the bill was to be releived for egresse and regresse into a garden of the defendants for drying of cloaths , promissed by word only by the defendant to the plainant : therefore dismissed , for that the court ought not to be burthened with such small ma●ers , hamby plaintant , northage defendant . anno 21. and 22. eliz. guilliam made oath that he saw a subpoena served on the defendanr who hath not appeared : therefore an attachment ; morgan plaintant , evon defendant , anno 21. and 22. eliz. an attachment was delivered to the sheriffe to execute , who did not returne the same ; and upon affidavit of the delivery , a day was given to returne the writ upon paine to be amerced 5 l. crompton plaintant , meridith defendant ; anno 21. and 22. e●iz . affidavit made for the delivery of au extent to the sheriffe which he hath not returned : therefore a day is given to the sheriffe to returne the writ upon paine of 10 l. hambey plaintant , wight defendant . anno 21. and 22. eliz. three bonds put in suite in the kings bench and stayed by injunction by order , because the queene was hindered of her fine ; pascall plaintant , smith miles defendant . anno 21. and 22. eliz. calveley plaintant , philips defendant , bonds put in suite in the k. bench stayed by injunction because the queene was hindered of her fine . anno 21. and 22. eliz. the bill prayeth reliefe against the defendant as brother and heire , for that the plaintant paid to his brother deceased ▪ a fine of 34 l. for a lease , who dyed before the same was made ; and therefore desireth either to have the lease made by the heire , or his money againe ; thereupon it is ordered the defendant shall answer an injunction : kreme , alias mogge plaintant , meere defendant . anno 21. and 22. eliz. the defendant got costs for want of a bill , and bespake of robert bayles a clerk a subpoena for those costs , who made her a subpoena ad sectam , whereupon the plaintant got costs ; this being moved for discharge of these costs , so gotten by default of the clark . it is ordered that the defendant shall be discharged ; and the plaintant also of the costs gotten by the defendant ; and neither of them should have processe against the other for the same , but the defendant might take a subpoena against the clark that made the erronious processe for the 40 s. costs , which she should have had against the plaintant ; franckblanck plaintant , domina metham defend . an. 21. and 22. eliz. oath is made for the delivery of a subpoena to the wife of the defendant at his house , who hath not appeared ; therefore an attachment : pilgrime plaintant , read defendant . anno 21. and 22. eliz. the plaintant desireth to be relieved against an obligation of 100 l. which had an intricate and insensible condition put in suit , for that the plaintant being desired by the defendant , to seale a release , desired onely time to be advised thereof , which the defendant would not yeeld unto , but hath put the bond in suit , though no wayes damnified ; and now the plaintant is ready to seale the release ; therefore an injunction is granted : rowles plaintant , and rowles defendant . an. 21. and 22. eliz. the defendant took out a commission , to take his answer in the country , and thereby answered he could not directly answer without sight of evidences , which are in nottinghamshire , far distant from dorsetshire ; the defendant afterwards made a perfect answer ; and yet the plaintant took out attachment , and attachment with proclamation , both which were discharged paying the ordinary fees , and 2 s. 6 d. to the warden of the fleet : trussell & aliis plaintants , willoughby miles defendant . anno 21. and 22. eliz. iohn cotten the plaintant , brother devised divers goods to his two sons , to be delivered at their full age , and made the plaintant and defendant executors . 100 l. of the goods came to the plaintants hands , 250 l. came to the defendants hands : the plaintant desireth by his bill , that in respect of the trust , and joynt charge which may survive , that the plaintant and defendant may each be bound to the other , to pay the children their portions in their hands at their full age ; and if either plaintant or defendant dye before , then the executor shall pay that which was in the testators hands to the survivor , which this court thought in conscience to be meet , because the defendant by answer confesseth the trust and receit of 250 l. therefore a subpoena is awarded against the defend . to shew cause why it should not be decreed : cotton plaintant , causton defend . anno 21. and 22. eliz. an attachment and other processe of contempt issued out of this court , for not returning the defendants answer by commission is discharged , paying the ordinary fees , because the plaintant named one commissioner , who refused to joyne with one of the defendants commissioners in taking the defendants answer ; and a new commission is granted to indifferent commissioners named by the defendant : marshall plaintant , harwood defendant . an 21. and 22. eliz. it is moved that where a prohibition was six moneths since granted for stay of a suite in the ecclesiasticall court at herford , upon surmise the lands are held in capite , whereas it appeared by letters patents thereof the lands holden of eastgreenwich ; therefore consultation , unlesse cause shewed ; and the party to pay double costs according to the statute , whereby the prohibition is granted : wolfe plaintant , merrick clums defendant . an. forasmuch as the major of totnes hath certified under his common seale , that the defendant made oath before him , that he was served with a billet in paper at the plaintants suit , and upon his appearance no bill , therefore costs : white plaintant , carpenter defendant . an. 21. and 22. eliz. brent an attorney at common law for the defendant being present in court , is enjoyned in open court upon paine of 200 l. not to proceed at common law , upon an action of debt upon an obligation against the plaintant : bishop plaintant , iessop and wats defendants . anno 21. and 22. eliz. forasmuch as the said thoroughgood made oath that the matter in the bill is for a portion of rent of 10 s. by year being of small value , it is dismissed ; knighton plaintant , allen and thoroughgood defendant . an. 21. and 22. eliz. iohn vaux made oath that he saw a subpoena served upon the defend . therefore for not appearance an attachment is granted ; vaux plaint . glasiers defendant . an. 21. and 22. eliz. iohn leigh made oath for the serving of a subpoena on a witnesse , to testifie on the plaintants behalfe before certaine commissioners who hath not so done : therefore an attachment is awarded against the defendant ; middleton plaintant , speright defendant . an. 21. and 22. eliz. the plaintant made oath that he heard the defendant confesse he was served with a subpoena and hath not appeared ; therefore an attachment is granted ; stow plaintant , and maddock defendant . an. 21. and 22. eliz. the defend . and one thomas butcher , whose executors the said ioane & alexander have purchased certaine lands joyntly ; the defend . promised the said thomas upon his dea●h bed , hee would take no advantage of the survivorship , but that the said thomas might by his will dispose them , thomas by his will devised his part of the lands towards payment of his deb●s ; therefore decreed by the assent of the defen. that the defē . should make estate accordingly ; spring & uxor & alexander buthcer plaintants , vpton defend . an. 21. and 22. eliz. robert medigate esq. was served with subpoena to testifie , and hath not answered to certaine interrogatories administred unto him on the plaintants behalf , at the time of the executing of the said commission , excusing himselfe that he could not to some for want of certaine court rols , and to some other interogatories he referred himselfe to former depositions , but doth not shew where they remaine , nor when they were taken ; it is therefore ordered that the considerations of the depositions of the said medigate be referred to mr. doctor carew , one of the masters of this court ; and if he certifie that he hath not sufficiently answered , then order shall be taken , that he shall directly answer the same ; fish plaintant , mountford & aliis defendants . an. 21. and 22. eliz. it is ordered that upon affidavit made , that the defendants dwell within the county palatine of chester ; and the cause of the bill is to be relieved of certaine debts there , the cause is therefore dismissed into the said countrey : heyward plaintant , sherington defend . an. 21. and 22. eliz. the effect of the suit is for a hawke , and certaine evidences supposed to be come to the defendants hands ; and because it seemeth to the court , the matter of evidences was onely inserted to give colour to the court to hold plea ; and the matter of the hawke is no meet matter for this court ; therefore the matter is dismissed ; glasiers plaintant , massie defendant . an. 21. and 22. eliz. the bill is dismissed because that mr. massies name was put to the same , as of councell without his privity ; gristing plaintant , hore and hore defendants . an. 21. and 22. eliz. the plaintant is adjudged to pay to the defe●d . 50 s. costs , for prosecuting processe of contempt against him , and no contempt proved : wrayford plaintant , weight and hingeston defendants . an. 21. and 22. eliz. the bill setteth forth that gibone , one of the defendants in consideration of 286 l. did bargaine and sell unto the plaintaint certaine lands in the bill mentioned ; and made unto him a deed of feoffement , and a letter of atturney to make livery , and seizin , and before livery , made a lease to cateline , who knew of the bargaine , and he leassed to brown , who knew also of the bargaine , and this appearing to this cou●t to be true , an injunction is granted to the plaintant , untill the cause should be heard and determined : ireby plaintant , gibone , cateline , and browne defendants . an. 21. and 22. eliz. a speciall certiorare to remove a cause out of london , the plaintant proveth the surmises of his bill , the defend . beginneth suit in the kings bench for the same cause ; therefore stayed by injunction ; cliffe plaintant , turnor defendant . an. 21. and 22. eliz. the plaintants suite is to be relieved for a common , and a subpoena is awarded against the defend . to shew canse why an injunction should not be granted to stay the suite at the common law ; chock plaintant , chea and wast defendants . an. 21. and 22. eliz. the matter is dismissed , because the suit is for 6. l. onely . marber plaintant , kempester defendant . an. 21. and 22. eliz. the said edmund barker defendant maketh oath that he received a billet of paper , of iohn barker his brother , who affirmeth likewise upon his oath , the same billet was delivered to him by the plaintant ; and because upon the defendants appearance no bill is in court ; therefore 26 s. 8 d. is adjudged against the plaintant ; cook plaintant , barker defend , an. 21. and 22. eliz. the mayor of totnes certified under his common seale , that the defendant made oath before him , that he was impotent , and not able to travell ; therefore a commission is awarded to take the defendants answer in the countrey ; wotten plaintant , lewescomb defendant . an. 21. and 22. eliz. dodderridge plaintant , lasty defendant upon oath made before the mayor of exeter of the defendants impotency , and unfitnesse to travell , a commission is granted to take his answer in the countrey . an. 21. and 22. eliz. thomas fursden made oath , the defendant is above 70 yeares of age ; therefore a commission is awarded to take his answer in the countrey ; vivean plaintant , napper alias sande defendant . anno 21. and 22. eliz. george elliot made oath , that all the parties are inhabitants , and dwelling within the marches of wales ; and that the matter contained in the bill of complaint , is for no title of land ; therefore the cause is dismissed to the determination of the said commissioners : morgan plaintant , bithell and evon defendants . an. 21. and 22. eliz. philips alias phelps , long and spincke plaintants , powell and singleton defendants , upon oath made that all the parties dwell within the jurisdiction of the marches of wales , the cause is dismissed to be tryed there . an. 21. and 22. eliz. forasmuch as the bayliffes of mountgomery have certified under their common seale , that the plaintant made oath before them for the serving of a subpoena on the defendant who hath not appeared ; therefore an attachment is awarded against the defendant ; griffeth plaint . ap edward ap iohn defendants . an. 21. and 22. eliz. forasmuch as the major of exeter hath certified under his common seale , that the plaintant hath made oath before him for the serving of a subpoena on the defendants who have not appeared ; therefore an attachment is awarded against them ; preston plaintant , smith & uxor defendants . an. 21. and 22. eliz. ap richard maketh oath , the lands complained of is under 40 s by the yeare ; therefore dismissed ; morgan plaintant , ap richard and lewis defendants . an. 21. and 22. eliz. an action upon the case commenced in the kings bench to the defendants dammage 100 markes is stayed by injunction , for that her majesty is hindred of her fine , which should have been paid upon the originall : brockhurst plaintant , cotton defend . an. 21. and 22. eliz. an action upon the case commenced in the kings bench , to the dammage of the defendant 5 l. is stayed by injunction , for that her majesties fine was not paid ; ward plaintant , cobone defendant . an. 21. and 22. eliz. attachment is granted for not appearing upon a certificate by the major of totnes , under his common seale , that iohn king made oath , he saw a subpoena served upon the defendant ; dinnis plaintant , morgan defendant . an. 21. and 22 , eliz. the plaintants bill is to be relieved for copyhold lands , the defendant doth demurre for that the lands are ancient demeasne lands of her majesties mannor of woodstock , and there onely pleadable ; it is ordered a subpoena shall be awarded to the defendant to make a better answer ; wilkins plaintant , gregory defend . an. 21. and 22. eliz. upon a subpoena in perpetuall memory , the defend . appearing assented to joyne in commission ; so as the lord bacons orders , touching examination of witnesses in perpetuall memory might be observed , but upon motion it was ordered , that the commission should be made generall , as in like cases where the parties joyne , for that it seemed to the court , the lord bacons orders were intended to be observed , where the plaintant hath a commission alone ; dominus dacres & uxor plaintants , southwell defend . anno 21. and 22. eliz. the plaintant desired to be relieved for a lease made by the defendant to him for yeares , which the defendant endevoureth to impeach , because in the premises of the lease , there is no leassee named , but onely in the habendum ; and the cause being referred to the two lord chiefe justices , and the lord chiefe baron , they certified their opinion in law , that the lease was good in law , notwithstanding the leassee was not named in the premises of the lease , but in the habendum ; and therefore decreed accordingly , that the plaintant should hold the said lease ; butler plaintant , dodton defendant . an. 21. and 22. eliz. the case is that the lord wray , and sapcotes father were made executors to the use of children ; sapcotes father having gotten a great part of the testators estate into his hands , deviseth divers legacies to strangers ; & maketh the defend . his son executor , and dyeth ; and the defend . by answer , confesseth his father had divers goods of the first testators in his hands , but said that the defendant had not goods sufficient , more then would satisfie the legacies given by his father ; therefore ordered that the defend . sh●ll first pay to the plaintant the goods which were the first testators ; and so much of his estate , as came to his fathers hands ; wray chiefe justice plaintant , sapcote defendant . anno 21. and 22. eliz. the plaintant setteth forth in her bill , that she joyned with her husband in sale of part of her inheritance , and after some discord growing betweene them they seperate themselves ; and one hundred pound of the money received upon sale of the lands was allotted to the plaintant for her maintenance , and put into the hands of nicholas mine esquire ; and bonds then given for the payment thereof , unto henry golding deceased to the use of the plaintant ; which bonds are come to the defendant , as administrator to the said henry golding deceased , who refuseth to deliver the same to the plaintant , and hereupon she prayeth reliefe ; the defendant doth demurre in law , because the plaintant sueth without her husband ; and it is ordered the defendant shall answer directly ; mary sanky , alias walgrave plaintant , goulding defendant . an. 21. and 22. eliz. the plaintant served the two defendants with one subpoena , but exhibited two bills ; the defendants appeared and answered the one , but not being served with any other subpoena to answer the second departed ; whereupon an attachment is awarded against them ; and ordered the defendants answering , the second bill be discharged of the attachment ; ap rice plaintant , granoe & grannoe defendants . an. 21. and 22. eliz. the defendant demurred generally without shewing any manner of cause ; and therefore ordered that a subpoena be awarded against him to make a perfect answer ; duffield plaintant , greaves & aliis defendants . anno 21. and 22. eliz. the plaintant as sole executor to robert maunder ex●ibited a bill against the defendants for the same matter , for which the plaintant and david gome as executors to the same maunder exhibited another bill , and ordered that both bills should be referred ; and if both for one cause , the defendants shall be dismissed from one of the bils with costs ; iohn maunder plaintant , iohn wright & aliis defendants . an. 21. and 22. eliz. christopher askame hath made oath , that iohn bleverhasset being a deponent in perpetuall memory is dead , and iohn harrison another of the deponents is , and hath been of long time sick , and not able to travell without danger of his life ; and that their depositions are very needful for the plaintant to be given in evidence , in a matter now depending at the common law ; senhawes plaintant , senhawes & aliis defendants . an. 22. eliz. the defend . made oath , the plaintant caused him to be served with a subpoena the saturday before the end of the terme , returnable the thursday following , being but two dayes before the end of the terme , he the defendant dwelling in devonshire , sevenscore miles distant from london ; wherefore the defend . could not conveniently appear , and make answer by the returne of the said subpoena ; and yet neverthelesse the plaintant had procured out an attachment against the defendant ; therefore and for that the plaintants bill is but for evidences , it is ordered the defend . be discharged of the attachment putting in his answer . smith plaint . weare defendant . an. 21. and 22 eliz. upon certificate of henry vgheard , and thomas west two commissioners , that thomas marshall one of the defendants witnesses being warned by precept from them , refused to appear before them , and that roger taylor another witnesse appeared , but refused to be examined , because he sollicites the plaintants cause ; it is therefore ordered that the defendant shall examine before one of the examinors of this court before the end of this terme , as well the said roger taylor upon any interrogatory , which shall not be touching the secrecie of the title , or of any other matter which he knoweth as sollicitor onely , as also the said marshall , or any other necessary witnesse , whereof the defendant shall first set down their names , so that the plaintant may likewise examine them if he will ; kelway plaintant , kelway defendant . an. 22. eliz. it is informed that the plaintant exhibited his bill without a councellors hand , or retaining an attorney ; and the same is for matter formerly decreed ; therefore ordered if cause be not shewed to the contrary ; and if the bill be to bring the matter in question that was decreed , then it is ta be dismissed ; bingham plaintant , warren defendant . anno 22. eliz. the defendant demurred upon the bill for incertainty , which was certaine enough ; and also for that all the parties are dwelling within the jurisdiction of the marches of wales , which is no cause of demurrer for title of lands ; therefore ordered if cause be not shewed , a subpoena is awarded against the defendant to answer ; keyes plaintant , hill & uxor defendants . anno 22. eliz. the plaintant exhibits his bill touching a practise and mis-behaviour supposed by the plaintant to be used by the defendant against him , in bringing him up by subpoena , at the suite of one anthony hinck , whereas the plaintant never knew any such ma● , and for divers other misdemeanors used by the defendant in this court towards the plaintant ; the defendant demurred for that both parties dwell within the jurisdiction of the marches of wales , where hee supposes the plaintant is to seek his remedy , which kind of demurrer this court alloweth not , for that misdemeanors committed in this court are most meet to be here examined ; griffeth plaintant , penrine defendant . anno 22. eliz. the plaintant sheweth by his bill , that his house and the defendants are joyning together , and supported by one main wall standing partly upon the freehold of either of the said parties ; and the plaintant having also an entry , garret and other necessary roomes standing upon the kitchin of the defendant , he the defend . went about to pull down the said wall , and thereby to overthrow the said garret ; the defendant made title to some of the upper rooms , and hath pulled down part of the wall ; an injunction is awarded to stay the defendant , to pull down any more of the wall , or any other part of the said house , whereby the said upper roomes may be overthrown , or impaired , untill the matter be heard ; bush plaintant , field defendant . an. 22. eliz. a commission to examine witnesses on both parts upon 14. dayes warning to be given to the defendant , lucy one of the defendants made oath , that neithen he nor varney had any warning , but if any warning was given , it was given , to smith the other defendant , who is little interessed in the cause , but made a party as the defendants councell supposeth to take away his testimony from the other defendants ; therefore ordered a commission be awarded , whereof the said lucy shall have the carriage directed to the former commissioners , and 14. dayes warning shall be given to the plaintant , and he to examine if he will ; hollingworth plaintant , lucy , varney and smith defendants . anno 22. eliz. humphrey loyde made oath , that he saw one lewis leave a subpoena in the hall of the defendant , and that the defendant was at home the same time who hath not appeared ; therefore an attachment is awarded against the defend●nt . anno 22. eliz. a commission to examine witnesses issued , but the plaintant at the place and day appointed brought not his commissioners , nor the commission , whereby the defendants commissioners could not fit to examine , but the plaintant procured certaine witnesses to be examined before one of the town clarkes of yorke touching the matter in variance , but ordered no witnesses so taken ▪ shall be received into this court , nor the plaintant take any benefit thereby ; and a new commission is awarded : hareforth , and lowther plaintants , gates defendant . anno 22. eliz. iohn davis made oath that his boy served a subpoena upon the defendant , for the which the said boy was apprehended , and imprisoned in the marches of wales ; therefore an attachment is awarded against the defendant ; dastoines plaintant , apprice defendant . anno 22. eliz. the defendant made oath , that both the said parties dwell in the jurisdiction of the marches of wales ; and that the matter of the plaintants bill , is but for a lease for yeares , and no title of freehold ; therefore dismissed , moore plaintant , mashall defendant . anno 22. eliz. iohn lord zouch deceased late father to the plaintant , did give the mannor of winford eagle with th'appertenances in the county of dorset , intailed to the father of the defendant , reserving 40 l. a yeare rent to him and his heires , and after about three yeares last past , granted 25 l. parcell of the said rent to the plaintants for their lives ; and the defendants father did atturne , and pay the rent to the plaintants , untill about two or three yeares before his death , which was about six years since , sithence which time the defendant being issue in taile and seized , refused to pay the said rent , but ordered by this court to pay it , if he shew not good cause to the contrary ; zouch & uxor plaintants , sidden●am defendant . anno 22. eliz. the plaintant seeketh reliefe by way of contribution , for that one of the defendants hath a rent charge out of this the plaintants lands , and out of one other of the defendants lands ; and yet seeketh to lay the whole burthen of the rent charge upon his the plaintants lands ; and because the defend ▪ would not answer ; therefore an injunction is granted for staying of the suits of the rent ; dolman plaintant , vavasor & aliis defendants . anno 22. eliz. it appeareth by oath that the defendant is both senselesse and dumbe ; and therefore cannot instruct his counsell to draw his answer ; and therefore ordered , that no attachment , or other processe of contempt be awarded against the defendant for not answering without speciall order of this court ; altham plaintant , smith defendant ; an. 22. eliz. the plaintant bought of the defendant the reversion of a copyhold , which he could not enjoy , confessed by the defendants answer ; thereupon a subpoena is awarded against the defendant to shew cause why he should not repay the money received upon the bargaine . picketon plaintant , littecote , & aliis defendants . an. 22. eliz. the defendants were not served with processe ; and yet the plaintant brought up divers witnesses to be examined , but ordered they should not be examined untill the defendants have answered ; episcopus sallesbury plaintant , hinde and hinde defendants . anno 22. eliz. the plaintant was drawne to drinke , and filled with drink , spoke some words against the defendant , for which he brought an action upon the case at the common law ; whereupon the plaintant exhibited his bill of complaint ; and got an injunction pro non solutione finis . it is ordered that the defend . paying the queenes fine shall have liberty to proceed , and the bill to be dismissed : qui peccat ebrius , luat sobrius , kendrick plaintant , hopkins defendant . anno 22. eliz. forasmuch as the major of barnestable hath certified , that iohn barker made oath before him , that he did shew and offer to deliver to the defendant a subpoena which he would not accept and hath not appeared ; therefore an attachment ; peris plaintant , thomas defendant . anno 22. eliz. the plaintants made motion to have publication of witnesses taken 1. and 2. philip and mary , betweene one thomas shrub then plaintant , and now deceased , whose daughters and coheires the plaintants wives are , and henry barnard then defendant now likewise deceased , touching lands in the occupation of the defendant ; and ordered the plaintants shall exhibite a bill for publication against the defendants , and call them by the subpoena to answer , and then order shall be taken : clarke & uxor papwell & uxor stockes plaintants , eve mellers , and wodham defendants . anno 22. eliz. the defendant was served with a subpoena at the suit of hanmer , and for want of a bill got costs ; and the plaintant upon affidavit that the defendant was served with a subpoena at his suit , got an attachment against the defendant ▪ whereupon he was apprehended , and returned languidus ; it is ordered that the attachment be discharged by supersedeas , the defendant paying 20 s. 6 d. to the warden of the fleet , and the ordinary charges to the plaintant : brearton plaintant , ap roberts defendant . anno 22. eliz. it is informed that coleston one of the defendants examined his own wife as a witnesse ; it is thereofore ordered the plaintant may take a subpoena against her on his behalfe , and if colston will not suffer her to be examined on the plaintants party , then her examination on the said colstons party is suppressed ; bent plaintant , allot and colston defendants . anno 22. eliz. upon the hearing of the cause it appeared that the suit was to be releived of a promise made by the defendant to the plaintant , to surrender a lease upon payment of 100 markes by the plaintant unto him , and for that the matter is meet for the common law , therefore dismissed : grevill plaintant , bowker defendant . anno 22. eliz. the court was informed by one palmer , that the three defendants are his servants , and were served with subpoena to be examined before the town clark of london , who refused to be there examined , because the matter is not depending in london , but in her majesties bench ; and yet attachment is gotten against them , which kind of examination of witnesses , this court taketh to be unorderly , and therefore ordered the attachment be discharged ; price plaintant , tench holland and packhouse defendants . an. 22. eliz. the earle of huntingdon , presedent of the north signified by his letters to the lord chancellor , that the lands for which the bill is exhibited were ordered for the defendant by the counsell of the north parts , where the parties dwell , and land lyeth ; and the now plaintant upon serving his subpoena was ordered by the councell there to surcease his suit in this court , and stand to the order of the said counsell ; and yet the plaintant hath procured an attachment against the defendant ; therefore ordered the attachment be discharged , and the matter dismissed : harrison plaintant , harrison defendant ; . an. 22. eliz. the defendant demurred because he is the lord treasurers man ; and therefore ought to be priviledged in her majesties court of exchequer , which cause of demurrer the court allowed not for that the defend . can have no priviledge , unlesse it were in such a case as the plaint . might have remedy in the court of exchequer : lewin plaintant , fawdesley defendant . an. 22. eliz. the defendant made oath the plaintant shewed him a subpoena , holding it in his own hand , and said it was against him , but would not let him have it , or see it , so that he might read it ; neither would he deliver him any note of his appearance , nor tell him the same , but took witnesse that he had served the subpoena , and about an hour after came again to the defendant , saying you were desirous to see the subpoena , here it is , and thereupon shewed the labell to the defendant , but in such sort as he could not see the returne ; whereupon the defendant appearing found no bill ; therefore attachment against the plaintant for misdemeanor : mead plaintant , crosse defend . an. 22. eliz. the plaint ▪ is grandfather on the mothers side , to whom the lands cannot come by the death of the infant , exhibiteth a bill against the grandfather on the part of the fathers side , to have the education , and bringing up of one richard edge an infant , who is seized of an estate taile of lands , the remainder to the defendant , and to have the disposing of the profits of the lands : but ordered with the defendant , for that it appeared there were divers remainders between the defendants and the infants estate : sweetman plaintant , edge defendant . an 20. eliz. francis plaintant , sacheverill defendant . the defendant is adjudged to pay to iohn hide 20 s. costs , he appearing upon a subpoena , to testifie on his behalfe . an. 22. eliz. the plaintant purchased lands of the defend . an. 2. eliz and had a recognizance then acknowledged unto him , for performing covenants of the bargaine and sale , and put one in trust to get both the indenture , and ●ecognizance inrolled , and paid him for the same ; and now being evicted out of the possession of the lands , came to take out a scir. fac . upon the recognizance , but finds it not inrolled ; and therefore desireth the same might now be inrolled ; it is ordered that a subpoena be awarded against the defendant , to shew cause why it should not ; and m. solliciter who is present at the motion , is to give notice to some of his clients , who have purchased ( as he alleadged ) parcell of the lands to shew cause why it shall not be inrolled : siddenham plaintant , harrison defendant . an. 22. eli. the defendants informe that the bill is exhibited for certaine lands parcell of the dutchy of lancaster ; and therefore ordered that for so much it shall be dismissed ; price plaintant , lloyd owen , and read defendants . anno 22. eliz. the matter upon hearing appeared to be for a promise , wherewith the defendant chargeth the plaintant , and 12 d. in money accepted upon the said promise , whereupon some trials , or non suits have passed ; it is orded that for the ending of the said matter of promise , that the matter be referred to the common law to be tryed ; sutton plaintant , erington defendant . an. 22. . eliz. the defendant informed he was called upon by subpoena dated the 8. of february , and by answer saith the said iane piers was married the 8. of february , and so at that time purchasing the writ a woman covert ; therefore the defendant is dismissed with 13 s. 4 d. costs ; iane peirs plaintant , iohn cawse defendant . anno 22. eliz. the defendant was in possession at the time of the bill exhibited , the plaintant entered upon him ; the defendant desired that either he might have an injunction for his possession , or else that the cause might be dismissed , which the court thought reasonable ; it is ordered the plaintant shall shew cause why it should not be granted ; hill plaintant , portman defendant . anno 22. eliz. the plaintant thomas hilliar exhibited his bill against the said william kendall , that the said thomas hilliar was seized in fee of two messuages , 70. acres of pasture , furzes , and heath in lanlivery , parcell of the queenes majesties dutchy of cornewall ; and thereupon a prohibition against the said will . kendall , libelling in the spirituall court for tithes , as farmer to the said batten vicar there , pretending that right of tythes for lands holden of her majesty , as of her dutchy of cornewall ought to be determined in this court ; and also that the said iohn hilliar had exhibited the like bill , and procured a prohibition out of this court against the said batten ; it is ordered a subpoena be awarded against the plaintant , to shew cause why a consultation should not be granted ; hilliar and hilliar plainants , lendall and batten defendants . anno 22. eliz. oath was made in the name of one edward iones , that the defendant eaton was sick , and the rest impotent , and not able to travell ; whereupon a commission was awarded to take their answers in the countrey ; now edward iones of ruthin was called up at the plaintants suite by processe for perjury , and alleadged he was not the party that made the oath , and brought a certificate to justifie he was at ruthin when the oath was taken ; therefore he is dismissed : brearton plaint . eaton & uxor & aliis defendants . anno 22. eliz. griffen price made oath that where the plaintant served a subpoena upon him to appeare before commissioners , to testifie on the plaintants party , he the said plaintant did not give o● tender him the said griffen any money for his charges ; and also that he was sick then and not able to travell ; therefore ordered the said griffen be discharged of the processe of contempt gotten out against him for not being examined : more plaintant , woreham defendant . anno 22. eliz. the plaintant seeketh to have the defendant to assure him certaine lands sold him by the defendant , in consideration of great sums of mony already paid for the same , according to the promise of the defendant made in that behalfe ; the defendant demurreth for that the same promise was made within the jurisdiction of wales where both parties are dwelling ; but this seemeth to the court no sufficient cause of demurrer ; and therefore ordered a subp. be awarded to the defendant to answer : hatton plaintaint , prince defendant . anno 22. eliz. the defendant took out a commission to take his answer in the countrey and returned a demurrer ; therefore the plaintant took out an attachment which this court liked well , for that the defendant did not directly answer ; yet in regard of an oath made for the defendants impotency a new commission is granted to take his answer , and discharged of the attachment paying the ordinary fees : paine & aliis plaintants , carew defendant . anno 22. eliz. the plaintant seekes to have master oldsworth examined touching a matter in variance , wherein he hath beene of councell ; it is ordered hee shall not be compelled by subpoena , or otherwise to be examined upon any matter concerning the same , wherein he the said mr. oldsworth was of councell , either by the indifferent choyce of both parties , or with either of them by reason of any annnuity or fee : dennis plaintant , codrington defendant . anno 22. eliz. the said coleman maketh oath the said porter did deliver him a billet in paper , and did shew him a thing in yellow wax ; and told him it was a subpoena , but did not declare to him at whose suit ; therefore the said porter is adjudged to pay to the defendant 20 s. costs for want of a bill : porter plaintant , coleman defendant . anno 22. eliz. the plaintant shewed by his bill that he fraughted a ship into spaine which was there confiscate and all his goods , for the defendants husband being master of the ship had an english book found in the ship contrary to the laws there , which he was forewarned of , and knew the lawes , and the defendants husband was condemned to the gallies 14. yeares ; and sithence the plaintant , as well for his own reliefe , as for the reliefe of the defendant devised to obtaine license from her majesty , for transporting 60. tuns of bear , yearly for eight yeares , the commodity whereof to be equally between them ; and the bill exhibited to her majesty was in both their names , and the party of the charge ; but the defendant cautiously got the same altered into her own name , and hath sold the same away without yeelding the plaintant any profit ; the defendants doth demurre , because she is a feme covert ; it is ordered a subpoena be awarded against her to make a better answer : castleton plaintant , alice fitz-williams defend . anno 22. eliz. thomas iones made oath that a writ of injunction was left at the house of the defendant ; and the plaintant maketh oath the defendant hath proceeded in a suit in the kings bench contrary to an injunction ; therefore an attachment . bodnam plaintant , morgan defendant . an. 22. eliz. lower plaintant , crudge defendant , & uxor , & aliis defendants . peter prowse made oath the r. g. n. g. io. b. and others having notice given unto them of an injunction awarded out of this court against the defend have disobeyed the same ; therefore an attachment is awarded against them . anno 22. eliz. matthew davis made oath that the defendant was served with a billet of paper at the plaintants suit , and upon his appearance no bill in court against him ; therefore the plaintant is adjudged to pay the defend . 30 s. costs ; griffeth & aliis plaintants , ap ienn , ap ienkins defendants . an. 22. eliz. the defendant maketh oath that all the parties are inhabiting , and dwelling within the jurisdiction of the marches of wales ; and for that it appeareth by the plaintants bill , that the matter therein contained is for a supposed lease , and for no title of land ; therefore the cause is dismissed , and the plaintant referred to take his remedy , before the commissioners of the marches of wales ; arden plaintant , veale , and veale defendants . an. 22. eliz. the defendant got a writ of priviledge as servant to the lord keeper , and removed two severall suits against him by the plaintant in london ; forasmuch as the lord keeper declared in open court , that the defendant is not now his servant ; therefore ordered that the said two severall causes be remaunded into london , and the defend . not to be allowed priviledge of this court : warren and clerke plaintants , ralph maynard defendant . an. 21. eliz. the plaintant seeketh to compell the defendants to make unto him a lease , by reason of a promise made by william allestre , and anthony bat , when they were bayliffes of the said town , and ordered that the corporation , nor any person which heretofore have been , nor which hereafter shall be bayliffes of the said town , shall in any wise be charged as bayliffes with the said promise ; but the plaintant if he will may take his remedy against the said allestre , and bat , not as bayliffes , but as common persons ; george strainger plaintant , beynbridge , and edward turnos late 's bayliffes of derby defendants . anno 21. eliz. nicholas dyer made oath that the defendant hath broken an order made in this court ; therefore an attachment against him ; margaret stephens plaintant , iohn bawden defend . anno 21. eliz. christopher almy , christopher frome , iames wood , & aliis inhabitants de magna ashley plaintants , iames pycroft defend . the matter being for hay , corne , and graffe upon oath not worth 40 s. it is by order dismissed , for that it is of so small a value . an. 21. eliz. parrot & aliis plaintants , pawlet defendant ; the suite being for the benefit of the poore of drayton ; it is retained though under 40 s. per annum . 21. eliz. forasmuch as richard s●odard justice , and portrive , and others his brethren of the borough of minxhead have certified under their common seale , that one nicholas hooper made oath before them for serving of a subpoena on the defend . who hath not appeared ; therefore an attachment is awarded . hooper & hooper plaintants , brace & uxor defendants . anno 21. eliz. meerefield plaintant , cleverden defend . upon certificate made by the major of torrinton of serving a subpoena , that affidavit was made before him , for serving it upon the defendant who hath not appeared ; therefore an attachment is awarded . anno 21. eliz. a decree was made for the plaintant for a coppyhold tenement , and yet the defendant put the plaintant out of possession , notwithstanding the said decree ; and the lord keeper did write his letters to the defendant , to suffer the plaintant to enjoy the same tenement according to the decree : lane plaintant , the lord howard viscount bindon defendant . anno 21. eliz. the defend . was examined upon interrogatories upon the breach of an order of this court , and departed without lycense ; therefore an attachment ; boyle & uxor plaintants , vivean defendant . an. 21. eliz. the defendant being served with a subpoena the last terme , and coming up out of cornwall to london , heard by common voyce , the terme was adjourned , and therefore did goe back againe , and the plaintant got an attachment against him , who hath appeared gratis , and put in his answer ; and therfor he shall be discharged of the attachment , paying 10 s. to the plaintant for his costs : strangman plaintaint , vivean defendant anno 21. eliz. the question was for a liberty of common fishing , and ordered for the plaintant ; and upon affidavit made the defendants have broken the same , ordered an attachment shall goe against them ; bayliffes , burgesses , and commonalty of the town of yarmouth plaintants , william paston , & aliis defendants . an. 21. eliz. the plaintant and his father were bound to the defendant in 500 l. to stand to the award of sir iames dyer knight , and lord chiefe justice , who arbitrated that the plaintant , who had the reversion in fee , and the father who had the estate for life , should make such assurance as the defendant should reasonably devise . the defendant did tender an assurance to the father to be sealed , who being old and blind , desired time to confer with his friends ; the plaintant upon request sealed the assurance , and his father afterwards sent word to the defendant he was willing to seale it , but the defend . answered he did not passe whether he did or no , because he had but an estate for his life , and the defend . had his bond to enjoy it during his life , which he did accordingly ; and yet neverthelesse the defendant put the bond in suite upon his fathers said refusall , but stayed by injunction : knight plaintant , hartwell defend . anno 21. eliz. a commission of rebellion for not payment of costs was awarded against the defend . to one iohn ap david , who did thereupon apprehend the defend . and for his more safe keeping delivered him to thomas moston esq. high sheriffe of the county of fl●nt , who took charge of the prisoner accordingly , and now refuseth either to deliver the prisoner to the commissioner , or to bring him himselfe into the court at the day ; day is therefore given to the said thomas moston the late sheriffe , to bring into this court the body of the said defend . by thursday next upon paine of 10 l. evans clerke deane of saint asaph plaintant , ap rees , ap bennet defendants . anno 21. eliz. the defendant was served with a counterfeit subpoena , at the plaintants suit , but answered not because he was told the subpoena was counterfeit ; thereupon an attach . issued against him ordered , that as well the defendant be discharged of the attachment awarded against him as the said baily , who as the defendant made oath delivered the countefeit processe to him , to shew where , and of whom he had the subpoena : baily plaintant , hawle defend . anno 21. eliz. the suit was to cause the defendant to performe an award of arbitrators chosen by themselves , contrary to which award the defendant hath put in suite an obligation of 100 l. wherefore an injunction was granted for stay of the suit ; and upon the defendants shewing his readinesse to perform the award , ordered that the said award shall be duly performed by both the said parties : reignolds plaint . latham def. a. 21. e. mathew carew one of the masters of this court plaintant , thomas burf●am defend . the defend . appearing this terme upon an attachment of priviledge at the plaintants suit hath put in baile ; and answered to the declaration of the plaintant : therefore the defend . is licensed to depart till 15. paschae next . an. 21. eliz. richard champion a commissioner in a commission of rebellion returned a rescue against guy bonvill , which being examined , and his examination referred to two masters of the court , was found to have confessed the rescue ; whereupon he was committed to the fleet , and yet afterwards brought his action upon the case at the common law , against the said champion for his false returne ; ordered that a subpoena be awarded against the said guy bonvill , to shew cause why an injunction should not be awarded against him for stay of his action upon the case ; but afterwards , viz. 21. eliz. the defendant was allowed to goe forward in his action upon the case at the common law , because either of the parties there may plead his matter ; ioan bonvill widdow plaintant , bonvill and mary billinghay defendants . an. 21. eliz. the plaintants exhibited a frivilous bill without a counsellors hand , and got an injunction for stay of any suit to be commenced in any of her majesties courts , but in this , which subpoena and injunction being served seemed to be counterfeit ; therefore ordered a subpoena be awarded against the plaintants , as well to shew of whom they had the said writ , and to answer their misdemeanors , as also to pay the defend . costs for his unjust vexation ; iohn ap edward , ap hugh , and david ap howel , ap ienkin plaintants , ralfe ienkin defendant . an. 21. eliz. the defendants made oath they were served with billets of paper at the plaintants suit , and upon their appearance no bill in court against them ; therefore the plaintant is adjudged to pay the defendants 40 s. costs ; edmund williams plaintant , evan williams , david morgan , and merrick gran●owe defendants . an. 21. eliz. brown alias garris , alias pawdy plaintant , stuit defendant made oath that he was served with a billet in paper , and upon his appearance no bill in court , and the defendant hath lost the billet of paper , and yet costs is awarded . anno 21. eliz. the defendant put in a demurrer to the plaintants bill , without shewing any cause of his demurrer ; it is therefore ordered that a subpoena be awarded against him to make a better answer ; offeley plaintant , morgan defendant . anno 21. eliz. the matter complained of by the bill is for 5 l. debt for fish , therefore dismissed ; foord & foord plaintants , & richards defendant . anno 21. eliz. symonds brocebridge made oath that the said elizabeth and anne , two of the defendants are above the age of 70. yeares a peece , and that the said william was comming up to london in his company , and they were both robbed , and william his horse taken from him , whereby hee could not come to make his appearance ; therefore a commission is granted to take all the said defendants answers in the countrey : hill plaintant , elizabeth worley widdow , william stapleton , and anne his wife defendants . anno 21. eliz. memorand . that the 20. day of february last , sir nicholas bacon knight , lord keeper of the great seale of england dyed at york house , and the seale being the same day sent for by the lord treasurer , remained with the queenes majesty till the 12. day of april last , on which day the same was delivered to sir tho. bromly knight , lord chancellor of england . paschae . 21. eliz. whereby an order of the 10. of feb. last , a subpoena was awarded against the defendant , to shew cause wherefore an award therein mentioned should not be ratified : now mr. flowerdew of councell on the defendants behalf informeth , that the said award was not made by any order of this court ; and therefore desired that the said defend . may not be compelled to performe the same . it is ordered that councell on both sides shall attend the morrow sevennight , and then order shalll be taken ; barkley miles plaintant , moore defendant . anno 21. eliz. the plaintant exhibited his bill as a priviledged man to sir francis kempe , prothonotary of this court , for lands lying in the county palatine of chester ; and for that it appeared by letters patents openle shewed in court , under her majesties great seale of england , that this court by any priviledge should not hold plea of any lands lying within the said county palatine , it is therefore ordered to be dismissed , if the plaintant shew not good cause : william lomley plaintant , thomas greene , thomas marlow , robert taylor , and iames wagge defend●nts . an. 21. eliz. the plaintant was adjudged to pay the defen. 37 s. 6 d. costs , for that he being served with subpoena in hillar . terme appeared , and by his answer disclaimed ; and yet after the plaintant served him with a subpoena to rejoyne ; but afterwards the same cost● were discharged by motion , for that the defendant had before the costs put in his rejoynder , but upon a disclaimer no costs is to be allowed : read plaintant , hawstead alias lane defendants . anno 21. eliz. the defendant was taken upon a commission of rebellion at the plaintants suite , required his costs to be allowed him , the court asking the opinion of the clerkes , it was agreed with one consent , that he should have his costs allowed ; therefore ordered accordingly : morgan plaint . ap iohn gowge defendant . anno 21. eliz. the defendant maketh oath that he was served with a billet in paper at the plaintants suit , which billet he lost by misfortune ; and upon his appearance no bill is in court against him ; therefore costs is awarded : brown , alias garris , alias pawdy plaintant , stoyck defend . anno 21. eliz. the plaintant exhibited his bill to examine witnesses in perpetuall memory , touching a lease of lands , which hee and those by whom hee claimeth , hath enjoyed 40. yeares ; the defendant by answer claimeth the lands as coppy-hold of inheritance to mr. sowthwell , who is owner of the inheritance , and within age ; and therefore prayed that no witnesses might be examined , till mr. southwell be of full age ; and yet because the witnesses being old , and may dye in the interim , therefore a subpoena is awarded against the defend . to shew cause why a commission should not be granted : hearing plaintant , fisher defendant . an. 21. eliz. iohn budden maketh oath that the defendants confessed unto him they were served with a subpoena at the plaintants suite and have not appeared ; therefore an attachment is granted : perry ar plaintant , gatter alias sharde , and cole defendants . an. 21. eliz. upon the hearing of the matter for the mannor of laughtor , and the advowson of the church of laughton , in the county of bucking . it appeared that the defendants and they from whom they claimed , have beene in possession 100 yeares with divers discents ; therefore the defendants are dismissed : kinston plaintant , pigot & aliis defendants . anno 21. eliz. the defendant in hillar . terme made oath that he could not answer without sight of evidences in the country ; and having day given him he now hath put in no answer , but a demurrer contrary to the orders of this court ; therefore an attachment is awarded against the defendant : farmer & aliis plaintants , fox defendant . anno 21. eliz. iohn harry made oath for the serving of a subpoena on the defendants to rejoyn ; therefore munday next is given to the defendants to rejoyne or else to lose the benefit thereof : ioanes & aliis plaintants , whitney , miles , & aliis defendants . an. 21. eliz. whereas a commission issued out to examine witnesses on both parties , which is returned executed upon oath made by giles brever , that he served precepts from the commissioners upon w. s. tho. lin . t. c. and io. peers to be examined on the defendants behalf before the said commissioners who appeared not ; it is therefore ordered that a new commission be awarded to the former commissioners at the defendants charge , as well to examine the said four witnesses as any other : shepheard plaintant , shepheard & aliis defendants . an. 21. eliz. the duke of northumberland acknowledged a recognizance of 1000 markes to the lord crumwell , and after granted certaine lands to the defendant ; afterwards both the duke , and the lord cromwell were attainted of treason , whereby the recognizance came to the queen , and in her name was put in suit by one lane , to whom her majesty had granted the same recognizance , who sought to extend the defendants said lands alone , whereas there are divers other lands to a great valew in other mens hands lyable to the said recognizance ; therefore it is ordered that no liberate goe out upon the said extent untill the court order the same : the queenes majesty plaintant , colborne defendant , anno 21. eliz. the plaintant sought to be relieved upon an obligation of 300 l. which he entred into to make a joyneture unto his wife , in consideration of 174 l. promised to him by the defendant in marriage , which was never paid unto him ; therefore an injunction is awarded , if cause be not shewed : osborne plaintant , havers defend . an. 21. eli. the plaintant and defendant both joyned in commission to examine witnesses , and the plaintant having the carriage of the commission , did not execute the same , but did examine witnesses here in court ; therefore ordered the defend . should have a new cōmission to the former commissioners , wherein the plaintant might also examine if he list ; and at the returne thereof publication , and in the meane time publication is stayed : mackworth plaintant , swayefield , & aliis defendants . an. 21. eliz. a frivolous bill was exhibited against the defendant , without a councellors hand ; and therefore ordered the defendant should not answer , untill a councellors hand we●e put to the bill , and the contempt for not answering is suspended : farly plaintant , childe defendant . an. 21. eliz. the defendant made oath that the lands complained of by the plaintants bill is under 40 s. per annum , therefore dismissed : pottinger plaintiffe , cogayne defendant . anno 21. eliz. the plaintiffe sued here to be relieved for a least of one thousand yeares of certaine lands , and depending the suite , the defendant by quo minus out of the exchequer , being tenant of other lands to the queene , brought an ejectione firme against the under tenants of the plaintant ; therefore an injunction to stay the said suit of quo minus if cause be not shewed : ioanes & aliis plaintants , whitney miles , & aliis defendants . anno 21. eliz. the plaintant made oath for the serving of a subpoena on mary cavendish , iohn gilgate , william pipe , and edm●nd stiles , to appeare before commissioners to be examined on his behalfe ; therefore an attachment is awarded against them : turnor plaintant , warren defendant . anno 21. eliz. iohn quippe made oath the defendant confessed he was served with a subpoena for costs , and hath not paid it ; therefore an attachment : suell plaintant , rogers defendant . anno 21. eliz. the defendant since the bill exhibited , commenced severall suites at the common law for the cause here complained of against the plain●ant , and his under tenants ; therefore an injunction is awarded against him : thorough good plaintant , may & aliis defendants . anno 21. eliz. the defendant demurred generally without shewing any cause of his demurrer : therefore ordered if he shew not , good cause of his demurrer upon f●iday next a subpoena is awarded against him to make a better answer : peachie plaintant twyecrosse defendant . anno 21. eliz. it is ordered that if the plaintants doe charge the defendants by their bill for the issues and profits of lands , which do lye in the county of lancaster , meerely by way of account , then the defendants shall not be compelled to answer ; if the defendants be charged in respect of their promise , then they are to answer : wingfield miles & uxor plaintants , fleetwood & aliis defendants . anno 21. eliz. the suit was for certaine rents , fines , and woodsales received by the defendants testator during the plaintants minority . it appeared that if the plaintant had made good proofe , hee was to be relieved ; therefore a commission is awarded by consent : borrough plaintant , a. b. defendant . anno 21. eli. the kings order and decree in chancery for a rule to be observed by the chancellor in that court exemplified and enrolled for a perpetuall record there . anno 1616. iames by the grace of god , &c. whereas our right trusty and welbeloved sir francis bacon knight , our councellor and attorney generall , received a letter from our chancellor of england , dated the 19. of march , an. dom. 1615. written by our expresse commandment , directing him , and requiring him , and the rest of our learned councell , to peruse such presidents as should be produced unto them from time of k. henry the 7. and since of complaints made in the chancery , there to be relieved according to equity , and conscience after judgements in the courts of the common lawes , in cases wherein the judges of the common law could not relieve them : and thereupon to certifie us of the truth of that they shall find , and of their opinions concerning the same , which letter followeth in these words . master atturney , his majesty being informed , that there be many presidents in the court of chancery , in the time of king h. 7. and continually since , that such as complained there to be relieved according to equity and conscience , after judgements in the courts of the common law , in cases where the judges of the common law could not relieve them ( being bound by their oath , to observe the strict rules of the law ) is willing to understand , whether there be such presidents as he is informed of : and therefore hath commanded me to let you know , that his will and pleasure is , that you call to assist you his majesties serjeants , and sollicitor , and to peruse such presidents of this kind , as shall be produced unto you ; and thereupon to certifie his majesty of the truth of that you shall finde , and of your opinions concerning the same ; and for your better directions therein , i have sent you here inclosed a note in writing delivered unto me , mentioning some such presidents in king h. the 7. time and since . and i am told that there be the like , in former times ; his majesty expecteth your proceeding in this with as much speed as conveniently you may : and so i rest , your very assured loving friend . t. ellesmere canc. at york house . 19. martii , 1615. and whereas our attorney generall , and the rest of our learned councell did thereupon returne unto us their certificate , subscribed withal their hands according to our commandment , and direction given them by the said letter , which certificate followeth in these words ; according to your majesties commandment , we have advisedly considered of the note delivered unto us , of presidents of complaining and proceeding in chancery after judgements in common law ; and also have seene and perused the originals , out of which the same note was abstracted , upon all which we do find , and observe the points following . 1. we find that the same note is fully verified , and maintained by the originals . 2. we find that there hath beene a strong current of practise of proceeding in chancery after judgement , and many times after execution , continued from the beginning of h. 7. raign , unto the time of the lord chancellor that now is , both in the raignes ( separatim ) of the severall kings , and in the times of the severall chancellors , whereof divers were great learned men in the law : it being in cases , where there is no remedy for the subject , by the strict course of the common law , unto which the judges are sworne . 3. we find that these proceedings in chancery , hath been after judgements , in actions of severall natures , as well reall as personall . 4. we find it hath beene after judgements in your majesties severall courts , the kings bench , common pleas , justice in oyre , &c. 5. we find it hath been after judgements obtained upon verdict , demurres , and where writs of error have beene brought . 6. we find in many of the cases , that the judgements are expresjudgementsly mentioned in the bills in the chancery themselves to have been given , and reliefe prayed thereupon , sometimes for stay of execution , sometimes after execution , of which kind wee find a great number in king h. the 7. his time . 7. we find the matters in equity , layed in such bills in most of the cases , to have been matter precedent before the judgements , and not matter of agreement a●●●● . 8. we find in the said cases , not onely the bill preferred , but motions , orders , injunctions , and decrees thereupon , for the discharging , and releasing of the judgements , or abiding the possession thereupon obtained , and sometimes for the meane profits , and the release of the costs , &c. 9. we find in some of the cases in this very point , that judgement hath been given , hath been stood upon by the defendants , and alleadged by them by way of demurrer , and overruled . 10. we find that the judges themselves in their own courts , when there appeared unto them matter of equity , because they by their oath and office , could not stay the judgements , except it be for some small time , have directed the parties to seeke reliefe in chancery . 11. we find that this hath not onely been in the times of the severall chancellors , but by the judges themselves , and that without difficulty , when they sate in chancery in the vacancy , or absence of the chancellor . 12. we find the hands of sundry principall councellors at law● whereof divers of them are now judges , ●●d some in chie●e place in bills of this kind . 13. lastly here were offered to have beene shewed unto us many other presidents , whereof we heard some read , and found them to be of like nature with those contained in the note . francis bacon , randell crew . henry mountague , hen. yelverton . and whereas also our said attorney received one other letter from our said chancellor , with a case there inclosed , written likewise by our expresse commandment , dated the 27. of march , 1616 directing , & requiring him , and the rest of our learned councell , together with the attorney of our deare sonne the prince , to confer together upon the said cause , and to consider advisedly of al the parts thereof ; and thereupon to peruse all the the statutes of praemunire , or provisoes , and all other statutes● as they shall conceive to be necessary to be considered of , for the resolving the question propounded in that case ; and thereupon to report unto us their opinions in writing concerning the same ; which letter and case there inclosed follow in these words . master attorney , his majesty hath perused this case inclosed , and hath commanded me to send it to you ; and his will and pleasure is , that you call unto you mr. sarjeant mountague , mr. sarjeant crew , mr. sollicitor , and mr. walter the princes attorney , and you confer together thereupon , and con●ider advisedly , and deliberately of all the parts thereof ; and thereupon to peruse all the statutes of praemunire or provisors , and all other such statutes as you shall conceive to be necessary to be considered of , for the resolving the question propounded in this case , this his majesty would have be done with mature deliberation , and yet with as much speed as conveniently you can ; and when you have sufficiently informed your selves therein , then to report to him your opinions in writing ; and so i committ you to god and rest , your very loving friend , t. ellesmore canc. at york house the 27. of march , 1616. a. hath judgement and execution in the kings bench , or common pleas , against b. in an action of debt of 1000 l. and in an ejectione firmae , of the mannor of d. b. complaines in the chancery to be relieved against those judgements according to conscience and equity , allowing the judgements to be lawfull and good by the rigour and strict rules of the common lawes ; and the matters in conscience and equity such as the judges of the common law ( being no judges in equity , but bound by their oathes to doe the law ) cannot give any remedy or reliefe for the same , either by error or attaint , or by any other meanes . questio . whither the chancery may relieve b. in this or such like cases , or else leave him utterly remedilesse and undone ; and if the chancery be restrained by any statute of praemunire , &c. then by what statute , or by what words in any statute is the chancery so restrained , and conscience and equity banished , excluded and damned ? and whereas according to our said commandment , our said learned councell , and the attorney of our deare son the prince , returned unto us a certificate of their opinions upon the said statutes under all their severall hands concerning the same case , which certificate followeth in these words . according to your majesties commandment , we have deliveratly advised of the case sent unto us by the lord chancellor ; and of the statutes as well those of praemunire as others , as far as we take it may concerne the case ; and for our better information therein , wee have thought fit to send for , and peruse the originall records themselves remaining in the tower of london , of those statutes not onely appearing upon the roll of parliament with the kings answers , which is the warrant to the roll of parliament . we have also taken into consideration as well booke lawes , as divers other acts of parliament , which may give light unto the statutes , whereupon the question properly growes , together with such ancient records and presidents as we could find , as well those which maintaine the authority of the chancery , as those which seeme to impeach the same ; and upon the whole matter we are al of opinion , that the chancery may give reliefe to the case in question ; and that no statute of praemunire , &c. or other statute restraines the same . and because we know not what use your majesty will be pleased to make of this our opinion , either for the time present or future ; we are willing to give some reasons of the same , not thinking fit to trouble your majesty with all those things whereupon we have grounded our selves , selecting out some principall things , which moved us to be of this opinion , to the end this same may be a fuller object of your majesties princely judgement , whereunto we alwayes submit our selves . and first we must lay for a sure foundation , that which was contained in our former certificate , concerning the continuall practise , by the space now of six score yeares , in the times of king hen. the 7. king hen. the 8. king edward the sixt , queene mary , and queene elizabeth of this authority ; and that in the time , when the same authority was mannaged , not onely the bishops which might be thought lesse skilfull , or lesse affectionate towards the lawes of the land , but also divers great lawyers , which could not but know and honour the law , as the meanes of their advancement , sir thomas more , and the lord audly , the lord rich , sir nicholas bacon , sir thomas bromley , and sir iohn puckering ; and further that most of the late judges of the kingdome , either as judges when they sate in chancery by commission , or as councellors at law , when they set their hands to bills , have by their judgement and councell , upheld the same authority ; and therefore for as much as it is a true ground that optimus legum interpres consuetudo , especially when the practise or custome passeth not amongst vulgar persons , but amongst the most high and scient magistrates of the kingdome : and when also the practising of the same should lye under so heavy a paine as the praemunire : this is to us a principall and implicit satisfaction ; and those statutes ought not to be construed to extend to this case ; and this of it selfe , we know , is of far more force to move your majesty , then any opinion of ours , because kings are fittest to informe kings , and chancellors to teach chancellors , and judges to teach judges ; but further out of out own science and profession , we have thought fit to adde those further reasons and proofes very briefely , because in case of so ancient a possession of jurisdiction , we hold it not fit to amplifie . the statutes upon which the question grows , are principally two ; whereof one is a statute of praemunire , and the other is a statute of simple prohibition ; that of praemunire is the statute of 27. e. 3. cap. 1. and the statute of the simple prohibition is the statute of 4. h. 4. cap. 23. there are divers other statutes of both kinds ; but the question will rest principally upon those two , as we conceive it . for the statute of 27. e. 3. it cannot in our opinions extend unto the chancery , for these reasons . 1. first out of the mischiefe which the statute provides and recites , viz. that such suites and pleas ( against which the statute is provided ) were in prejudice and disinherison of the king and his crowne , which cannot be applyed to the chancery : for the king cannot be disinherited of jurisdiction , but either by a forreigner , or by his subject ; but never by his own court . 2. out of the remedy which the statute points ; viz. that the offendors shall be warned within two moneths , to be before the king and his councell , or in his chancery , or before the kings justices of the one bench , or of the other , &c. by which words it is opposite in it selfe , that the chancery should give both the offence and the remedy . 3. out of penalty which is not only severe , but hastily , namely that the offenders shall be put out of the kings protection , which penalty altogether savors of adhering to f●rreine jurisdictions , and would never have been inflicted upon an excesse onely of jurisdiction in any of the kings courts as the court of chancery is . 4. out of the statutes precedent and subsequent 25. e. 3. cap. 1. and 16. r. 2. cap. 5. which are of the same nature and cannot be applyed but to forraigne courts ; for the word alibi , or elsewhere is never used , but where rome is named specially before . 5. the disjunctive in this statute ( which onely gives the colour ) viz. that they which draw any out of the realme in plea , whereof the cognizance pertaineth to the kings court ( or ) of things whereof judgements be given in the kings court , or which doe sue in any other court , to defeat or impeach the judgements given to the kings court ; this last disjunction wee said ( which must go farther then courts out of the realme , which are fully provided for by the former branch ) hath sufficient matter and effect to work upon in respect of such courts , which though they were totally within the realme , yet in jurisdiction were subordinate to the fo●reigner such as were the legates court , the delegates court , and in generall all the ecclesiasticall courts within the realme at that time , as it is expressely construed in the judges , 50. e. 4. fol. 6. 6. in this the sight of the record of the petition doth cleare the doubt , where the subjects supplicate to the king to ordaine remedy against those which pursue in other courts then his own against judgements given in his court , which explaines the word ( other ) to be other then the kings courts . 7. with this agreeth notably the book of entries , which translates the word ( in other court ) not in alia curia , but in aliena curia . 8. this statute of vicesimo septimo , e. 3. being in corroboration of the common law ( as it selfe recites ) we doe not find in the register any presidents of the writs of adjura regia , which are framed upon chiefe cases that were afterwards made penall , by the praemunire , but onely against the ecclesiasticall courts . 9. lastly we have not found any president at all , of any conviction upon the satutes of praemunire of this nature for suits in chancery , but onely two or three bills of indictment preferred , sed nihilinde venit , for ought appears to us . for the statute of h. 4. that we doubt was made against proceeding within the realme , and not against forraigne ; and therefore hath no penalty annexed , neverthelesse we conceive that it extends not to the chancery in the case delivered , for these reasons . 1. first this statute recites where the parties are made to come upon grievous paine , sometimes before the king himselfe , sometimes before the kings councell , and sometimes in the parliament to answer thereof anew , &c. where it appeareth that the chancery is not named , which could not have been forgotten , but was left out upon great reason , because the chancery is a court of ordinary justice for matter of equity ; and the statute meant onely to restraine extraordinary commissions , and such like proceedings . 2. this appeares fully by view and comparing the two petitions , which were made the same parliament of 4. h. 4. placed immediately the one before the other . the first which was rejected by the king , and the second , whereupon this statute was made ; whereof the first was to restraine the ordinary proceedings of justice , that is to say in the chancery by name , in the exchequer , and before the kings councell by processe of privy seal ; unto which the king makes a royall and prudent answer in these words : the king will charge his officers to be more sparing , to send for his subjects by such processe then heretofore they have beene ; but notwithstanding it is not his mind , that the officers shall so far obtaine , but that they may call his subjects before them , in matters and causes necessary , as it hath beene done in the time of his good progenitors ; and then immediatly followes the petition , whereupon the act now in question was made , unto which the king gave his assent , and wherein no mention is made at all of the chancery or exchequer . 3. if the chancery should be understood to be within the statute , yet the statute extends not to this case ; for the words are , that the kings subjects are driven to answer thereof anew , which must be understood , when the same matter formerly judged , is put in issue or question againe , but when the cause is called into the chancery only upon point of equity , there as the point of equity was never in question in the common law court , so the point of law or of fact ( as it concernes the law ) is never in question in the chancery ; so the same thing is not twice in question , or as answered anew : for the chancery doth supply the law , and not crosse it . 4. it appeareth to our understanding , by the cause of errour , and attaint in the same statute , what jurisdiction it was that the statute meant to restraine , viz. such jurisdiction as did assume to reverse and undoe the judgement , as error or attaint doth , which the chancery never doth , but leaves the judgement in peace , and onely meddles with the corrupt conscience of the party ; for if the chancery should assume to reverse the judgement in the point adjudged , it is void as appeareth 39. e. 3. f. 14. 5. we find no presidents of any pro●ceeding to conviction or judgement upon any indictment framed or grounded upon this statute , no more then upon the statute of praemunire ; and the ●ate indictments are contra diversa statuta not mentioning the particular statutes . 6. lastly , it was a great mischiefe to force the subject in al cases to seek remedy in equity , before he knew whither the law will help him or no , which oftentimes he cannot do till after judgement , and therefore he is to seek his salve properly , when he hath his hurt . there be divers other things of weight which we have seene and considered of , whereupon we have grounded our opinion , but we goe no further upon that we have seene . but because matters of presidents is greatly considerable in this case , and that we have been attended by the clerks of the chancery , with the presidents of that court , and have not been yet attended by any officer of the kings bench with any president of judgements , if it shall please your majesty faithfull report of them , as we have done of the other ; all which &c. francis bacon , hen. mountague . randall crew , hen. yelverton . iohn walter . now forasmuch as mercy and justice be the true supports of your royall throne ; and that it properly belongeth to us in our princely office , to take care and provide , that our subjects have equall and indifferent justice ministred to them , and that where their case deserveth to be relieved in course of equity by suit in our court of chancery , they should not be abandoned , and exposed to perish under the rigor and extremity of our lawes ; we in our princely judgement having well weighed , and with mature deliberation considered of the said severall reports of our learned councell , and of all the parts of them , doe approve , ratifie , and confirme as well the practise of our court of chancery expressed in the first certificate , as their opinions for the law upon the statutes mentioned in their latter certificate , the same having relation to the case sent them by our said chancellor ; and doe will and command , that our chancellor , or keeper of the great seale for the time being , shall not hereafter desist unto our subjects upon their severall complaints ( now or hereafter to be made ) such reliefe in equity ( notwithstanding any former proceedings at the common law against them ) as shall stand with true merits and justice of their cases , and with the former ancient and continued practise and proceeding of our chancery ; and for that it appertaineth to our princely care and office onely to judge over all our iudges , and to discerne and determine such differences as at any time may or shall arise between our severall courts , touching the jurisdictions , and the same to settle and decide as we in our princely wisdome shall find to stand most with our honor , and the example of our royall progenitors , in the best times , and the generall weale and good of our people , for which we are to answer unto god , who hath placed us over them : our will and pleasure is , that our whole proceedings herein by the decrees formerly set down be inrolled in our court of chancery , there to remaine of record , for the better extinguishing of the like questions or differences that may arrise in future times . per ipsum regem . fran. bacon . hen. yelverton . decimo octavo iulii . anno 14. r. regis , &c. finis . notes, typically marginal, from the original text notes for div a34128e-9030 payment after the day upon bonds holpen . condition to undoe estates in lands . giving day to one , it shall help the other . payment without acquittance . lessees damages in waste moderated by the death of the lessor . the greater part of the debt paid , and the rest offered , relieved in chancery . purchasor of parcell of land not snbject to the whole rent charge . suing in a wrong county . copyholders . not to examine any judgement given at the common law . dyer , ●01 . and 301. atturnement . atturnement denyed but in some cases . fine● , recoveries , &c. mulier , and bastard . warranty . extent● , lawes . nudum pactum . wager of law . no seizin of a re●t . seck . possessio so oris in cop●yhold . copyhold . possession of the mother for the h●r collaterall . copyhold devise . copyhold forfeited for cutting of trees , during ▪ minority . tenant right fines for alienation of the tenant , but not of the lord . payment of creditors out of a copyhold forfeited by morgage . lease paroll . marriage po●tion recovered at common law , and reversed in the exchequer , holpen in chancery . perpetuities . lease for 1000 yeares . statute lands bought with money lent , pr●o●ity ●ans covyn . bailement sans consideration countermanded . voide limitation de lease in vol. cook lib. 8.95 . ravishment de g●rd . survivor in joynt . tena●cy de lease . feoffees to use . notice of the use . if my feoffee dye i have no remedy against his heir . the feoffee shall doe acts for the feoffors good . they may grant offices , but not annuities . fees to councell . money given to buy lands . the feoffee shall retain the land to his own use fur-attain der de felony . intent specified in a feoffment to use . uses of gavell kinde at the common law . 26. h. 8. dy. 6. cesti que use ) de tearme de ans. jurament . delatum a parte . aequitas sequitur legem . things left to the conscience of the party . help in chancery against executors . surety . the surety chargeable . to help the surety . no other reliefe for the surety , then for the principall . purchasor . fraud upon fraud . feoffee punishable for making estate at the wives request during the coverture . no reliefe against his own deed . release of joint feoffee . subpoena gainst one appointed by will to sell . to discharge himselfe of a bond is permitted in equity . forced to sue an obligation . executor shall not release a bond without his co-partner . executors shall not answer without his copartners . copartners to joyne in plea or presentment . one deed by which two claime severally . where remedy at common law , no help here . goods of felons granted which are difficult to prove . bringing evidence into court . justifying detaining of evidences . tenants of the land uncertaine . tenants in common to know the certainty supply of true meanning in feoffments . to bring in an obligation to be cancelled . money paid upon obligation single , or single statute not compelled here to cancell it . yet upon a morgage , he shall be compelled to bring in the indenture to be cancelled here . lands sold in two counties and livery made onely in one . leassor to have the woods leaving sufficient boote● . messuage cum pertin. carries the land used with it . mannor demised , except the court baron . fraud or covyn in goods . grand lease forfeited by covin. laesione fide● canonica i●●uria . conu●ee . to avoid future perjury . payment for the principall by the surety . deeds brought into the court . waste hol . pen in chancery . tulier and bastard ione●n suing ●heir livery . action of the case seeketh dammages , subpoena rem ●psam . fines fraudulent . executors how upon trust . no reliefe against a voluntary act . joint tenants , one taking the profits . defendant examined as a witnesse . generall customes reduced to certainty by agreement in a mannor . statute acknowledged in my name by a stranger . power to make leasses . coppyhold tayled surrender . abating a bill . leases devised to his wife , on confidence to come to his son not relieved . possession bound by decree , and the partie prohibited to sue at common law . grantee distrains one who prayeth reliefe , ordered he sue the rest , and the grantee , the one to contribute , and the other to accept of equality . contents of ● mannor as it was 60. years past . executrix hu●band ●rdered to pay debts . plaintant mistaking his title in his bill . l●easses conv●yed in trust to pay debts . heire of purchasor charged with payment of money behinde for the land . proceedings in a cause where there is no full proofe . coppy good by devise without mention of surrender . turning of water courses from mills . holpen . waste forbidden in chancery , where not punishable at law . archbishops certificate against bloomer for not paying a maides portion . witnesses ad informand . conscientiam . five pound costs given in a demurrer , and the councellor prohibited to deale any more in chancery ▪ fines of coppyholds how ordered in chanry . lease paroll . promises . witnesses . proceeding on the sta●tute for charitable uses . lands intended to be given to a schoole after otherwise disposed by will . cuttings case , no help in chancery touching power to make leases . decree against infants . amending of answers . misdemeanor in commissioners how to be reformed . deeds how to be proved leases of corporations , whe●ein their names are mistaken by themselves . leassee to be holpen in chancery against pattentees . chancellor calling the judges into the exchequer chamber upon remainders of a lease . costs against the defendant , and clerk tha● made processe before a bill in court . publication of witnesses in perpetuam rei memoriam a yeare past . consil. consil. the manner of entring decrees in times past . dismissions and the manner of entri●g them . oath made for serving a subpoena before witnesses examined in perpetuall memory . consilio . commission to examine in perpe●uall memory . consilia . costs for a witnesse served to testifie before the major of london . publication of witnesses to be used at a court baron . injunction to stay proceedings in judgement , or execution . fem●sole takes out a subpoena , and then marryeth , and serveth it , she and her husband pay costs . commission to take the defendants answer upon a languidus returned . injunction to put the defendant in such possession as he had at the time of the bill exhibited . jurisdiction of wales rejected . consil. injunction to stay suite of execution of land which he agreed not to doe . injunction with a clause ( si ita sit ) a gardian admitted to the defendant infant . a commission to put the plaintant in possession , injunction being dissolved or disobeyed ▪ the defendant enjoyned in open court not to proceed in his action . attachment against the defe●dant , and a subpoena against one supposed to beat the server . the plaintant was in execution at the suite of the king , and being no just cause therefore , he was delivered by supersedeas . the husband and wife defendants , he onely appears and demurs , attachment against both . a demurrer put in , and the defendant appeared not in person , a subpoena to make direct auswer . attorney at law enjoyned not to proceed or call for judgement . an injunction granted for not appearing , and to stay proceedings at the common law . a commission to examine witnesses upon oath of impotency . a defendant appearing gratis , an attachment being out was committed . the defendant served with a subpoena the day of the returne . an injunction to discharge an execution for that the defendant being served did not appear . a witnesse served to testifie , pressed for a souldier , attachment is stayed . injunction ( si ita sit ) to stay judgement and execution . injunction to stay proceedings before action brought . a commission to the examinor of the court to examine w●tnesses . a subpoena to appeare before the major and aldermen of london for an orphans portion . an order for bringing evidences into court . decrees and dismissions entred at large , a writ of priviledge granted to a suter . the sheriffe amersed 5 l. for returne non est inventus , upon an attachment having bin in presence of the party . the attorney ordered to stay proceedings , the defendant proceedeth ; injunction to bring in the money levyed , and to answer the contempt . injunction for the defendants possession . injunction to stay all procee●ings at common law . the defen. examined upon interrogatories , and if the ▪ matter appeare not for the plaintant , then he to pay costs , and the cause dismissed . defendant dismissed with costs , the plaintant not appearing at the hearing . decreed that the defendant shall acknowledge satisfaction of a judgement . a dec●ce for a fould-cou●se or common of pasture , two defendants contend for a tenement the tenant paying his re●t into the cha●cery i● discharged . setting down depo●itions in a wrong ●en●e suppressed , and the witnesses examined againe . i●junction for the plaintants possession as at the time of the bill , and three yea●es before . an award made by justices of assize ordered to be performed . injunction to stay suits i● the plaintant bring 223 l ●●to court ; execution to st●y for the rest . witnesses examined by commission before answer , in regard they were old . the plaintant after bill , answer , and replication distraineth for which an injunction is granted . certiorare to remove the suite from the chancery of durham into this court . injunction to stay judgement upon certificate of the justices of assizes . injunction dissolved if cause be not shewed . injunction to stay the defendants suit at law , because he began in chancery . the plaintant being in execution upon a statute , was delivered upon recognizance . the plaintant had execution for 300 l. and ordered to take execution for 100 l. onely . a de vilaica removenda , for part of a personage and an injunction for the house . injunction for the corn sowed upon a lease paroll . decree for 3 s. 4 d. rent service and suite of court . the plaintant marrie● before answer , and no advantage taken , therefore no bill of revivor . advowson passeth not by livery , within view of the church without deed , there being incumbent . a ducens tecum to bring in deeds , but ordered to be delivered to the usher of the court not to the plaintant . the defendant took a commission and returned a demurrer , ordered to answer . attachment for not performing a decree . the defendants executors to their father being gardian in socage to the plaintant , are ordered to answer for profits taken by him . subpoena delivered to the defendants wife in his house sufficient . a years value allowed upon surrender of copy hold land . the plaintant sueth for tokens he delivered to the defendant as a suiter in marriage , and obtaineth them . a bill against a copy of court roll indirectly entred , the defendants demurre , but ordered to answer . variance in a bill of revivor from the first bill dissolved . jurisdiction of oxford rejected , one of the defendants , being not resident there ▪ prosecuting contempt after a generall pardon to pay costs . subpoena hanged on the door of an house , where the defendant resorted . witnesses examined by fraud suppressed and the practizers to be proceeded against by bill . jurisdiction of lancaster allowed . suit to have the defendant performe an award . two defendants , the one taketh a husband , the plaintant puts in a bill of revivor against husband and wife , and they discharged with cost● ▪ the plaintant o●dered not to proceed , till he make one a party , whom the defendant prayeth in ayde . injunction left at the defendants house , and disobeyed , an attachment . a commission of rebellion , the bond made to the commissioners . the bond made to the lord chancellor , &c. witnesses examined after publication , ad informandum conscientiam iudicis . costs for want of a bill , shewing the subpoena , but delivering no note of the d●y of appearance , and attachment for such serving . jurisdiction of chester allowed . a covenant to repaire a house , the defendant would not suffer it and demurred , but ordered to answer . jurisdiction of chester allowed . a subpoena served , to testifie in the guild-hall , and not appearing an attachment . a bill against roger hall , and another roger hall was served , he must shew it by plea , and not by motion . costs to witnesses served to testifie . costs paid to a witnesse before he be examined . a solliciter served with processe to testifie , ordered not to be examined . a man and wife exhibite their bill , the wife dyes , the defendant demurs for that there is no bill of revivor , ordered to answer . the sollicitor served to testifie , is discharged . consili● . the leasses of a copyholder is punishable in waste , though the copyholder himselfe be not . a bill of perjury proceeded in this court . suite to have an award by assent , decreed . to stay suit in the spirituall court . suite for common of pasture and turbary . subpoena delivered to the defendants servant . subpoena served at the s●●te of a● unknown man , and no bill in court , the server to pay costs . the husband appeares , and the wife not attachment against them both . jurisdiction of oxford . consil. a mr. and examinor , examined witnesses , publication stayed after granted . the plain . father seized in fee , with a condition to reenter deviseth for life , a ducens teci● the defendant licensed to depart after issue . trustee ordered to co●vey the lands according to the trust . jurisdiction of the excheqner rejected , for that one of the defendants had no priviledge there . the defend . in a bill of perjury after answer , ought to be examined upon interrogatories . the plaint . requires the defendant to appear , shewing no writ , and no bill in court , hath 20 s. costs . affidavit for serving a subpoena . the defend . hath no cost because the subpoena is lost , but attachment is stayed . costs for want of a bill . the defend . disclaiming , no witnesses to be examined , touching the death of another . the defen. bound to pay money at one place , pleads payment at another , not good . a demurrer to a bill of revivor ordered to answer . the wife after the death of her husband , sueth a bill of revivor and good . to take bond of such as appear upon contempt , to attend from day to day . the defen. demurres for that there is remedy at common law , but ordered to answer . habeas corpus to the warden of the fleet , to have the defendant in court , to be charged with a debt upon a recognizance . costs for the solliciters charges , in making affidavit for serving processe , and the defendants impotency , no bill being in court . costs for want of a bill upon shewing the writ , but not delivering it . attachm . discharged , and a bill of perju●y for procuring it indirectly . the lord chancellor writ his letters to a noble man , that had broken a decree . injunction against the spirituall court . attachment upon the defendants confession he was served . jurisdictio of oxford allowed ▪ decree for copyhold lands . costs for want of a bill , the subpoena being lost . dismission because under 40 s. per annum . jurisdiction of wales allowed , being under five pound . suit retained after judgement and execution . costs against the plaint . for want of a bill . commission to set out meet wayes for passages . an english bill for perjury . injunction to stay judgement in an action of wast . reliefe for a trust upon a lease , after it is sold . a bill for reliefe after judgement and execution dismissed . a bill upon a promise for leave to dry clothes in a garden dismissed . attachment for not appearing upon a subpoena . day given to the sheriffe , to returne an attachment upon paine of 5 l. consil. injunction to stay suits , because the queene was deceived of her fine . consil. the heire is sued to make a lease for which his elder brother tooke a fine or to repay the fine . the clarke is fined 40 s. for his mistake , in making a subpoena . subpoena delivered to the wife , good . the plaint● refusing to seale a release , the defendant puts a bond in suite , and stayed by injunction ▪ attachment with proclamation discharged paying the ordinary fee , answer being in befo●e ▪ one executor sueth the other to put in sureties to performe the will . the contempt discharged , and ● new commission granted to take the defendants answers . prohibition for tythes of lands held in capi●e . costs for want of a bill , oath made befo●e the major of totnes . attorney present in court , enjoyned not to proceed at common law . suite for ●ent of 10 s. affidavit the he saw a subpoena served . at●achment against witnesses served to testifie . atachment upon the defendants confession he was served . two joint tenants , the one dyeth , the other ordered to make estate according to the will . witnesse that answer insufficien● againe examined ▪ jurisdiction of chester allowed . a suit for a hawk , and evidences dismissed . the bill dismissed , because the councellors hand is counterfeit . costs for prosecuting contem●ts and none proved . fraud by mak●ng a lease after a feoffement and before livery and seizin . suit stayed in the kings bench , because it was removed from london suit for common . a bill for 6 l dismissed . costs upon a billet delivered to a brother , and no bill in court . commission to take the defendants answer upon oath of impotency before the mayor of totnes . consil. consil. the defen. 70. years old . jurisdiction of wales allowed . consil. attachment upon oath before the bayliffes of mountgomery . consilio . dismission because under 40 s. per annum . injunction for defrauding the queen of her fine . consil. attachment upon oath before the major of t●tnes . jurisdiction of the mannor of woodstock overruled . commission to examine in perpetuall memory . le●ssee not named in the premises decreed for him . one executor gets the estate and dyeth , the other sueth his executor , and ordered for him . feme covert sueth for maintenance put into anothers hands , he demurrs , but orde●ed to answer . one subpoena served on two defendants ; two bills exhibited ordered to answer both . the defend . demurred , generally ordered to answer . two executors exhibite two bills , ordered to answer the one , the other dismissed with costs . witnesses examined in perpetuall memory , the one dead , and the other sick , moved to use their testimony . a subpoena served within two dayes of the termes end , the attachment discharged answering . the solliciter of the plaintant ordered to be examined with caution . a bill without a counsellors hand or atturney retained dismissed . iurisdicton of wales overuled . jurisdiction of wales overruled . the defend . stayed by injunction to pul down roomes to the prejudice of anothers rooms . upon a commission warning given but to one defendant , a new c●mmission is granted , and the defendants to have the carriage . a subpoena left in the defendants hall , an attachment witnesses examined before the towne clark of yo●k suppressed . the server of a subpoena imprisoned , therefore attachment against the defendant . iurisdiction of wales admitted . a rent reserved and paid , the heire ordered to pay it . a rent charge upon severall mens lands , and levied upon one , an injunction . a dumb man is not to answer upon subpoena . money paid for a reversion , which could not be enjoyed , ordered to repay the same . no witnesses to be examined till the defendants have answered ▪ an action against a drunken mans words seeketh reliefe , but is dismissed . a subpoena shewed and offered , attachment for not appearing . witnesses examined 1. and 2. p. and m. ordered to prefer a bill for publ●cation . attachment discharged by supersedeas , paying the ordinary fees . the defendants wife examined as a witnesse . suit upon a promise to surrender a lease dismissed . subpoena to testifie where no cause was depending discharged . jurisdictio● of the north allowed . jurisdiction of the exchequer disallowed . a subpoena cau●elously served , attachment against the plaintant . a bill for tuition of an infant . costs for a witnesse served to testifie . deeds neglected to be inrolled a subpoena to shew why not . jurisdiction of the dutchy of lancaster allowed . the matter of as●umpsit re●ered to the common law . feme sole sueth out a subpoena , and the same day is married , dismissed with costs . the plaint . enters upon the defend . possession ordered , either a dismission , or injunction . prohibition for sithes , parcell of the dutchy of cornewall , but consultation if cause be not shewed . perju●y in m●king oath for impotency , one of the same name sued for it , and discharged . a witnesse not able to travell , discharged of contempt . jurisdiction of wales not allowed for a promise . a commission to answer , he returned a demurrer , therefore attachment . a councellor not to be examined of any matter , wherein he hath been of councell . a billet in paper served , and no bill in court costs is awarded . feme covert , whose husband is in the gallies must answer matter of equity wherewith she is charged . injunction left at the defendants house and disobeyed , an attachment is awarded . consil. costs for want of a bill . iurisdiction of wales allowed . a writ of priviledge disallowed . bayliffes of a corporation not compellable to make a lease . attachment for breaking an order in court . suit for hay , corn , and grasse not worth 40 s. dismissed . suit for the poor of a parish under 40. s. per annum , ●erained ▪ attachment upon oath , before the portrive of minxhead . confil. a decree for the plaint . yet put out of possession by the defendant . defendant departing without license an attachment . attachment discharged paying the plaintant 10 s. costs . liberty for a common fishing . a bond put in suit , for not performing an award stayed by injunction . injunction to stay suit at common law . commission of rebellion for not payment of costs . the defend , discharged of the attachment because the subpoena was counterfeit . an award ordered to be performed . the defendant licensed to depart after answer in a writ of priviledge . the defendant commi●ted to the fleet for a rescue , brought an action for a false returne . subpoena against the plaintant to shew where he had his counterfeit writs , and answer his misdemeanor , and pay costs . costs for want of a bill . costs for want of a bill , the billet being lost . a demurrer without shewing any cause ordered to answer . five pound dismissed commission to take the defendants answers , they being 70 yeares old a peece . 20. of f●b . sir nicholas bacon dyed , 12 of april , the seale delivered to sir thomas bromley . councell on both sides to attend concerning the ratifying of an award . jurisdiction of chester allowed . no costs to be allowed upon a disclaimer . costs allowed the defendant , being taken upon a commission of rebellion . costs for want of a bill the billet lost . a commission to examine witnesses in perpetuall memory . attachment for not appearing . dismission for that they have been in possession 100. years . attachment for putting in a demurrer instead of an answer . day given to the defendant to rejoyne . a new commission to examine witnesses , because they appeared not before . not to extend one mans lands onely , where many are subject . injunction to stay suit at common law . a new commission to the defendant , and publication is stayed of witnesses examined by the plaint . in court . the defendant not to answer , till a counsellors hand be put to the bill . dismission the lands being under 40 s. per annum . injunction to stay a suite of quo minus , in the exchequer . attachment against witnesses , served to testifie● attachment for costs . injunction to stay suits at common law . a demurrer generally ordered to answer . the defendant charged upon account shall not answer if upon a p●omise , he shall . a commission by consent to prove the receipt of rents , fines , and woodsales . notes for div a34128e-40110 the en●rance in seldens discourse fol. 63 b. a direction or preparatiue to the study of the lawe wherein is shewed, what things ought to be obserued and vsed of them that are addicted to the study of the law, and what on the contrary part ought to be eschued and auoyded. fulbecke, william, 1560-1603?. 1600 approx. 300 kb of xml-encoded text transcribed from 98 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2008-09 (eebo-tcp phase 1). a01287 stc 11410 estc s102759 99838524 99838524 2906 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a01287) transcribed from: (early english books online ; image set 2906) images scanned from microfilm: (early english books, 1475-1640 ; 510:02) a direction or preparatiue to the study of the lawe wherein is shewed, what things ought to be obserued and vsed of them that are addicted to the study of the law, and what on the contrary part ought to be eschued and auoyded. fulbecke, william, 1560-1603?. [4], 95, [1] leaves printed by [adam islip? for] thomas wight, at london : anno domini. 1600. dedication signed: guilielmus fulbeckus. actual printer's name conjectured by stc. the last leaf is blank. reproduction of the original in the henry e. huntington library and art gallery. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -great britain -study and teaching -early works to 1800. 2007-01 tcp assigned for keying and markup 2007-01 aptara keyed and coded from proquest page images 2007-05 elspeth healey sampled and proofread 2007-05 elspeth healey text and markup reviewed and edited 2008-02 pfs batch review (qc) and xml conversion a direction or preparatiue to the study of the lawe : wherein is shewed , what things ought to be obserued and vsed of them that are addicted to the study of the law , and what on the contrary part ought to be eschued and auoyded . at london printed by thomas wight . anno domini . 1600. ❧ the contents of the seuerall chapters . chapter 1. of the worthines and excellencie of the lawe . chapter 2. of the good qualities wherewith the student of the lawe ought to be furnished . chapter 3. of the choice which the student of the lawe ought to make in his studie . chapter 4. certaine rules to be obserued of the student in the reading of his bookes . chapter 5. of the exercise and conference which the student ought to vse . chapter 6. that the vnderstanding of the student ought to be proportionable to the intendement of the lawe . chapter 7. that the student ought well to conceiue the reason and iustice of the lawe in distinguishing and establishing the propertie and communitie of things . chapter 8. that the words or termes vsed in bookes of lawe ought to be vnderstoode and applied as the lawe doth expound and conceiue them . whereunto is annexed a table of certaine wordes , in the interpretation whereof , the common lawe of this realme and the ciuill lawe do seeme to agree . chapter 9. what methode is to bee vsed in handling & disposing matters of lawe . lectissimis et generosissimis iuuenibus in hospitijs curialibus connutritijs , & juris anglicani studio operam nauantibus assiduam . s. si theophrastum , vt ipsum nomen indicat , oratione diuinum , circumscripta quaedam spatia , & angusti vmbraculorum circuli á frequenti auditorum corona , & publico iudicum consessu detinuere : si socrates , quem sapientissimum virum , apollo sapientissimus ethnicorum daemon iudicauit , nihilo plura volumina edidit , quàm condidit , id est , nulla : mihi quidem generosissimi iuuenes , non solùm in scribendi initijs , sed in vmbilico etiam & crure valdé metuendum est , ne prima medijs , media vltimis , omnia omnibus , non apposite respondeant : quae enim parcè nimìs traduntur desiderium , quae prolixè fastidium pariunt , et medium quaesitum inuenire difficile , inuentum tenere difficillimum : cum hanc arduam sanè prouinciam primò ingressus fueram , istud me recreauit & sustentauit solatium . qui curas suscipiunt grauiores si mansuetis ingenijs vti volunt iudicibus , eorum audere , est agere , velle est posse , velitari est vincere . fateor in aliquibus tenùs , vltrà , plus vltrà peruentum esse : sed vel metam ipsam attingere , imò verò ad eam contendere , sudoris est et virtutis : quanquā hoc a euo , in hoc praesertìm britanniae elysio , nihil in delitijs habetur praeter meras orationis illecebras : mira certè quae placeant , vermiculata verba , nectareas phrases , eloquentiam atticam exposcunt , omnia limata , arguta , sententiosa esse volunt , planè aristippéi sunt singuli prauè sectum stomachantur ob vnguem . quarè seria & submissa prece , mihi vehementér obsecrandi estis insignissimi iuuenes , vt hic potiùs otij mei foetus quám laboris fructus ( vacatio enim haec proxima quám sub aequinoctium autumnale londini non admodùm inuitus egi , cum ad priuata studia et negotia multum superesset temporis , hanc vobis prolem peperit ) sub candoris vestri radijs calorem et vires recipiat : cuius si compos fuerit , debebit ille quidem vigorem suum vobis , lucis vsuram mihi , fortunam mundo . valete : ex hospitio graiano : pridie nonas septemb. an. salutis humanae . 1599. vobis addictissimus guilielmus fulbeckus . faultes escaped in the printing of the table of wordes annexed to the eight chapter , may be thus amended . fol. 74. b for index read iudex fol. 75. a for debito read debitor ibidem . for mixt read mixtae fol. 76. a for doto read dolo ibidē . b for fidenistor read fideiussor fol. 77. a for fato read salo fol. 78. b for maritinum read maritimum fol. 80. b for contumately read continuately fol. 81. a for vacillaus read vacillans . the other faultes escaped in the printing of the other chapters , a curteous eye and vnderstanding may easily reforme . of the worthines and excellencie of the lawe . the first chapter . as nothing more encourageth the soldior to fight , and to giue forth apparan● signes of valor , then the glorie & renowne which is gained by exploits of warre : so nothing is a greater spurre to the student of any arte or science , then the iust reward of fame and commendation , which belongeth to those , who by labor attaine to perfection in any praiseworthie science . for as nature rewardeth the bee with hony , so art recompenseth the painfull student with riches , praise or honor . and howbeit some men make small accōpt of praise or good report , as being in their owne conceit but an emptie sound , yet wise men haue thought & written , that a good name is better then gold , aa and that a mans credit is the fairest flower of his garden . now if praise be due to arts and sciences , as being the best treasure & endowment of the mind , religion only excepted , then surely the knowledge of the law may in the first place challenge prerogatiue of dignity , by whose righteous doome & decree it is prouided , ruled , & ordered , that al other sciences should haue their maintenance & support , in such plentiful & condigne maner , as by merite or equity doth to them of right aptaine . but euery art receiueth his commendation by the end & scope which it proposeth to it selfe . and the chiefe end or last marke of the law aswel as other sciences is god his glory . but the next & immediate end , which is allotted to it , is to administer iustice to al , & in that sence it may be called the rule of iustice : for religion , iustice , and law do stand together , & are together trodde vnder foote by such as neither care for god , nor goodnes : such as are rehearsed by one of notable iudgment . a a wise man without workes , an old man without deuotion , a yong man without obediēce , a rich man without almes ; a woman without chastity , a gentleman without vertue , a contentious christiā , a proud begger , an vniust king , a negligēt bishop , a cōgregation without discipline , a natiō without law . but iustice is then rightly administred , when it is not sold , b when there is no respect of persons . c whē hatred is away & conscience is present . d when rigor is tēpered with mercy . e and iustice must be regarded of the law as the load-star is minded of the seaman , for without it can be no gouernment . an other end of the law is the good estate of the people . for it is an aphorisme amongst the lawes of the 12. tables : salus populi suprema lex esto : let the safety of the people be accōpted the chiefe law . f and the deserueth not the name of a law which hath no relation to publik profit . g for hermogenes said wel that euery law was made for the good & profit of men . h and plato saith , that a law-maker ought to haue regard of 3. things especially : namely , that the cōuenient liberty of the comon weale may not be impeached by the laws , that they may preserue amity amongst the people , & that they may furnish thē with wisdome . i wherefore they that dispise laws , haue no care of comon profit , k because they were made for comon vse , l & without law , which i interpret to be an order established by authority , neither house , nor city , nor natiō , nor mankind , nor nature , nor world can be . m and therfore cicero saith , that our ancestors were of such vertue & wisdome , that in making of their laws they had no regard , but of publike good : n for they would not write any thing to hurt , and if they had written any such things , it would haue bin reiected as soone as it had bin vnderstood . it is manifest therefore that the end at which the law doth ayme is the generall aduantage of common societie in a iust maner distributed and dealt to euerie one . for , non sufficit bonum fieri nisi bene fiat , it is not sufficient to doe that which is good vnlesse it be done in good sort , and therefore let not any man , which vndertaketh this profession lay conscience aside : for though the charge and calling be seculer , yet it must be religiously handled . for god is the author of the law , and the reuenger of the abuse thereof , the weight and measure , saith solomon , are god his iudgments , and therfore if any man maintaine any wrong by colour or pretence of law let him know , that though man be hurt , yet god is offended , ye do not execute the iudgement of man , but of god , saith iosaphat . god is the beholder and vmpier of counsailes and iudgements , and surely if a man do well discharge this weightie and excellent function , there is no man of any religious habit or vocation in higher place or greater reckoning with god. so much the more are they to bee reprooued , who exercise sychophancie , fraud & caueling in the handling of causes , being wresters of lawes , and wringers of money , whose conquest in bad causes maketh them triumphe as much as romulus did when he had killed his brother : nay as atreus did when he had cōpast the death of his brother thyestes , boasting and glorying . o nunc parta vera est palma , nunc meas laudo manus , now haue i gotten an honorable victorie , nowe i praise my handie worke , but they in whom conscience beareth stroke are farre otherwise addicted , and shal be hereafter otherwise rewarded . nay euen in their life time do they possesse the ensigns of authoritie & dignitie , & by good right may they challenge many special fauors , immunities & indulgences . constantine the emperor gaue to the professors of the imperial lawes , full & perfect freedome from all collaterall charges , taxes , and other burdens of the cōmon weale , p and he decreed also that certain yerely pensions should be paid vnto them out of the treasury , q & the emperor valent. would haue thē which by the space of xx . yeres were professors of the law , to be illustrated by the name of comites , a name of excellent dignity . r many other priuiledges & benefits are mentioned in the ciuil law , which belong as well to studients as to professors , and hereupon had that saying his originall . dat galenus opes , dat sanctio iustiniana : ex alijs paleas , ex istis collige grana . ſ neither hath england bin vnkind or strait handed to men of that coat and calling : for in old time as i find in m. plowden , who was credibly infourmed thereof , there were fower reporters of the cases of law , which were chosen men , and had a yerely stipend for their paines and trauaile therein , paied by the king , t but some will say that god forbiddeth vs to contend . who denieth that ? but he doth not forbid to iudge & determine controuersies : & there is great difference between iudging and contending : for though god do forbid thee to beate a poore traueling man : yet he doth not forbid thee to bind vp his wound , when he is hurt and maymed of others . so though he do greatly abhorre the hatred , rancor , malice , and disagreement of men , yet he is wel pleased and contented that such pernicious & contagious diseases should be cured . let him that condēneth the fault , approue the remedy . one mā rageth with a burning desire of reuenge : an other cōueieth to himselfe an others mans goods by craft , whom when charity & duty cannot bring into the right way , his disloial dealing must be repressed by the seuerity of iudges . moses , dauid solomon , committed no sin , when they caused wicked men to be rigorously punished : & though christ do condemne a quarrelous & reuengeful person , yet he leaueth to the iudges their authority , whether they rule & order causes by the lawes & customes of nations , or by the law of moses . ioseph , daniel , naaman , the centurion , did gouerne cōmon weales by the lawes of the heathen . surely the politicke lawes of kings & magistrates are greatly to be heeded & regarded , which christ himself allowed , when he paid tribute to caesar . and the profession & practise of the knowledge of lawe is warrāted by the example of great men , who would not haue borne the names of professors , if the science had not contained in it singuler wit , excellent wisdome , & profitable directions for the whole course of mans life . it is well knowen that the camilli , the curij , the fabritij , the fabij , the claudij , the scipioes , the crassi , the iulij the ciceroes , & the scaeuolaes were singuler men and singulerly skilled in law . and to giue thē their proper appellation were lawyers . these men gouerned their cōmon weals not in the shadow , in darknes or corners , as the grecians did , but in the cleare light of the sun , and in the face of the world , vsing experience as a pilot against the boysterous & turbulent affections of the people . and therefore virgil when he distributeth v seueral sciences to seueral countries , appropriateth the science of gouerning cōmon weales to the romaines . tu regere imperiopopulos romane memento , parcere subiect is & debellare superbos . mind thou o romaine men by law to guide , to spare the meeke , and ouer-master pride . but some accompt it a matter of too great curiosity , that the laws which should be plain & manifest to al should be reduced to an art obscured with difficult cases , shadowed with conceited termes , and as it were , couered with cloudes , and wrapped in darknes : to whom i answere that it is very expedient , that there should be a certaine art and science of the law , generall rules & preceptes , and conuenient discourses . for the particuler things which do fall vnder the obseruation of law ar infinite , & the weaknes of mans memorie cānot tollerate the multitude of particular lawes : and therefore it is conuenient that that which we call aequum bonum , which in plaine termes is nothing else but perfect reason , should be comprehēded and deliuered in certaine generall preceptes , and plato alleageth this for a reason x because it is necessarie , that there should be regia disciplina a princely science , for he suteth it with that name , which may by a generall censure , order and dispose of all things without regard of euery particular circumstance . for the certaine knowledge of matters , it is good that the law should be bounded by certaine rules & limits : for a mā could not certainly know what were his owne , and what an other mans , vnles the law should as it were by finger point , & shew vnto him , what , when , and howe it were his , and therefore true is that saying of cicero , a omnia incerta sunt cum a iure discessum est . if you depart from law there is no certain state of any thing . and his opinion is in an other place , b that our inheritance rather cōmeth to vs by the law , then by our auncestors : for though they doe giue is , or leaue it vnto vs , yet it is the law which doth settle it in vs , and doth preserue the possession thereof free and inviolate vnto vs. wherefore it is to good purpose , that the law should be definite in it selfe , and should consist of certaine conclusions which should be as the listes and periodes of the science , by the contemplation of which , a man may be instructed and sufficiently furnished for particuler causes and euents : for the particuler case lyeth as it were embowelled , and is implicatiuely contayned in the generall learning , and there is nothing in the law which may not be reduced vnto some vniuersall theoreme , which may easily be conceyued and remembred , because it is generall . c and though the professors of the law doe make-particuler arguments of speciall causes , and do admire examples or cases to the illustrating of that which they do principally handle , yet the law it selfe is comprised within certaine rules . neyther ought it to trouble vs , that the law bookes are so huge , & large , and that there is such an ocean of reportes , and such a perplexed confusion of opinions , because the science it selfe is short and easie to one that is diligent , according to that saying : industriae omnia serua fiunt , all thinges are seruants to diligence , or come at her commaund , and artes ar not to be estemed by the greatnes or smalnes of the books , but by the goodnes of their rules . and though the lawes which do vind mens liues & maners ought to be vnderstood of all , that their prescript being knowen , men may decline frō that which is for biddē , & follow that which is commaunded : yet that may be done either by their own means , or by the meanes of others : & if a mans braine be no fit mould for the law , let an other mans mouth be his teacher . hence commeth the name of counsailor , because in doubtful causes he may resolue & giue counsel : whereby appeareth aswell the necessity , as the excellent vse of the calling : for what can be more conuenient or of better oportunitie , then that a man of experience should shew the way to one that is ignorant . it is therfore expediēt that there should be lawes written , & that such lawes should not be altered without vrgent occasion : for it is a fonde part to striue against the course & stream of lawes , & customes receiued . a great question it hath bin heretofore , whether common weales were better gouerned by written lawes , or by the present & voluntary conceit of the magistrate : this matter , because religion it selfe hath committed ciuil duties to the wisdome and ordering of man , ought to be measured by the examples of wise gouernors & by popular sense . what good cōmon weal hath there euer bin without written lawes , which haue bin vsed by the egyptians , cretensians , athenians , romanes , & iewes . the writing or the engrauing of lawes in tables is a principall cause of the certainty of the same , & without certainty , it should be of smal credit : for what authority or force should it haue , if it did alwaies change like the moone , or like vertumnus : but when causes ar decided by the opinion & wil of the magistrate , the power of gouermēt may be in the hands of such as be vnskilful , or wicked , & so either for want of skil , or conscience , iustice may faile of her course . how often might the pretēce & shew of iustice beguile vs ? how often might iustice be peruerted by fauor or malice ? but if lawes were not generall , & should not sometimes restrain magistrates & gouernors , great inconueniēce would ensue : euen as great as happened in athens by the violent domination of the 30. tirants , who when they had cancelled & disadnulled the lawes , did exercise a common butchery and slaughter of good men : wherfore , as in dangerous tempestes the ship is not rashly cōmitted to the winds : but there is neede of a skilful pylot by cunning & carefulnes to gouern : so the wauering & passionate mind of the magistrate , must be ballassed and weighed downe by law , least his own priuate affections do driue him from doing iustice as from the hauen . aristotle affirmeth , that god ruleth that common weale which is gouerned by a written law , because the lawes are the champions and defenders of conuenient libertie , then which there is nothing more pleasant in this life : for what thing can be more happy , then to be free from the feare of iniury , & safely to inioy the societie of men , and therefore he would not haue the gouerment of the common weale to be committed to any one man , though very vertuous , without the regiment and direction of lawes . neither let any man say , that i do sinisterly iudge of the natures & dispositions of men , in that i accompt no man of so approued and speciall vertue , and fidelity , that the mannaging of common affaires may be offered vnto him to order them at his will and pleasure without the appointment & warrant of lawes : surely i could wish that euery gouernor were a numa : but yet i would haue the law to be ioyned with the magistrate in the act of gouerment . neither do i fancy or figure in my minde any happier common weale , then such as may accord with the tenor and progresse of humaine affaires . if a man should imagine that the aucthoritie of gouerment were in the handes of the stoikes , such as would neither be moued by hatre , nor fauour , though they in other respects were very vnfit to gouerne , how shall their humors be satisfied , who had rather be gouerned by written lawes , then by vpright magistrates ? for such is the madnes and frowardnes of some , that they wil not be contented with the equitie and faithfull dealing of the iudges , but will still contend by the rigor , and dint of law , and will trie all extremitie , being often times more at iarres & at oddes with the iudges , then with the aduerse partie : here the aucthority of iudges will be weak , vnlesse the lawes publikely receyued do strengthen it : so that in the written lawes there is not onely a safegard for innocency against iniury , but also for the magistrate against the importunitie of the people : but as wayfaring men whilest they trauaile are not afraide of going a stray , when mercuries image doth point out vnto them the way that they are to goe : so good men when a certaine law is proposed vnto them , when by it they know what euery man ought to perform , what to auoyde , they are secured and do wholy repose them selues in the protection of lawes . to the intent that the hebrewes might well agree , & haue good order amongest them selues , god did enact and establish certain lawes , that they might iudge by prescript , and rule , least the law being ambiguous might procure dissentions . and other people and nations haue either by the tyrannons domination of magistrates , or the outragious discord of the people bin enforced to receiue lawes as the square and measure of their actions . in the citie of athens when there was continuall debate about the difficult points of the law thē in force , there arose three factions of men , not of the worst sort , but yet not well agreeing in matters of state : the citie by this meane being greatly molested , and the hartes of men being edged & exasperated by the festered sore and cankerworme of contention , the gouernment was committed to solon : he surueying by depth of iudgement the weake , and impuissant estate of the citie , made lawes , whereby peace and contentment were restored : and when he saw , that these lawes were the sinewes of the good estate of the citie , he determined that whosoeuer should hold any iudiciall place , should in precise tearmes take oath that he would iudge according to the lawes . this was also the cause why the romanes dyd flie to a written law : the magistrates dyd arrogate & assume too much to them selues , the people did exceedingly grudge and murmure that their honest libertie was impeached by the maner of their ruling , and the best men were at variance in matters of law : so that it was thought meete that some equall lawes should be in force , whereby the rashnesse of the people , & the violence of the magistrates might be moderated : for this cause the lawes called the twelue tables were prescribed to the city , which yoak was willingly receiued , because without laws they knew their common weal could not prosper , nor continue . and as there ought to be a certain forme of lawes , so these lawes ought not to be altered or abrogated wythout great occasion , & the euident aduantage of the cōmon weale . there was a law amongest them of locros , that whosoeuer would make a motion or inuectiue against any receiued law , should therof deliuer his mind , hauing an halter about his neck , & if it were agreed by the assembly , that the thing which he indeuored to perswade were for the good of the common weale , the man was safe , & receiued cōmendation : but if it were disallowed , and reiected as an vnprofitable admonition , he was streight way hanged and receiued death as the guerdon of his innouation . and in athens there were a kind of men called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , who in all publike meetings did sit amongest the chiefe magistrates , & did put them in mind not to decree any thing against the lawes in force . thus it is euident that both the making & maintayning of lawes is necessarie . and it is rightly said of cicero , that the law is as necessary for the gouermēt of a state , as the soule & mind is for the preseruation of the bodie , d this ( saith he ) is the bond of all dignities , and degrees , which are in the common weale , this is the foundation of libertie , the fountaine of equitie . the will , counsel , & decree of the citie is contained in the lawes , as the bodie can doe nothing without the soule : so a citie without law cannot vse her actions , power , or aucthoritie . the magistrates are the ministers of lawes , the iudges are interpreters , the people are the seruants , that they may haue true libertie . the law is thus defined by cicero , e summa ratio insita á natura , quae iubeat ea quae facienda sunt , prohibeatque contraria , a principall reason ingrafted in vs by nature , which commaundeth the things that are to be done , and forbiddeth the contrarie , and all the particuler and seuerall lawes of diuers nations , are but the branches of this law : for the lawes be certain and cleere intelligences , and rules , whereby the mind is addressed to pursue that which is good , and to eschew the cōtrarie : and they offer to the mind the formes and ideaes of vertue and dishonestie . so that in the sacred precepts of law , as in a christall glasse , a man may perceiue what he may doe with praise , what he cannot doe without infamie : for the common places , which be handled by diuers , of common duties , of that which is truly good , of that which is perfect happines , of the best estate of a common weale , do not so sufficiently qualifie and instruct the vnderstanding , as the law it selfe . but here i shal be crossed by an other obiection , that great & tedious are the labors which are to be sustained in the study of the law . surely there is nothing of weight or woorth , which may be compassed without paine & trauaile , and yet if the paine be compared and ballanced with the profite , it is but as a few drops of haile to a whole shower of manna . what would not a towardly man do ? what would he not vndertake by his wisedome & warines , to keep all danger from the bodies , heads , and lifes of the innocent : to preserue his memorie from obliuion , and silence : to be of great accompt amongst the greatest : to attaine to that knowledge , which is the highest of all humane artes and sciences ? and though it were as hard a matter for a young gentleman to gaine the knowledge of the lawe , as it was for phaeton to ascend vnto the chariot of the sunne , who ere he could accomplish that , was to passe through vncouth wayes , and by the ghastly formes of deformed creatures , by the terrible signes of the bull , the lion , and the scorpion f , though ( i say ) a studient ought to haue all the lawe perfect , and to passe through a multitude of cases , iudgements , statutes , arguments , treatises , comments , questions , diuersities , expositions , customes of courtes , pleadings , mootes , readings , and such like : yet sith there is no arte nor science , by which the common weale receiueth so great benefit : sith there is no course of life , no time of age , no estate of men , which can either florish or be without the safeguard of lawes , and sith the difficultie of the science is rewarded by the dignitie , credit , and ample fortune which belongeth vnto it : the hope of them which employ themselues in this studie ought not to waxe faint , nor their mindes to be daunted with the labour and paine , which all artes require : but they ought to be incited and allured to proceede in their studies by the excellent and honorable rewardes of the same . of the good qualities wherewith the student of the lawe ought to be furnished . the second chapter . because many applie themselues to the studie of the lawe , without deliberate consideration of their qualities and sufficiencie , so that many times they finde not that contentment , which otherwise they might enioy . it is very conuenient that they should know what qualities are requisite in him , who is to employ his time in the studye of the lawe : for as aristotle sayeth , a rules and precepts haue not force in all , but the minde is to be decked with good gifts , that it may take ioy in things that be truly good , and abhorre the contrarye . the first and chiefe thing that i doe require in him , is , to haue the true knowledge , and feare of god , without which his other knowledge is but as a sword in the hand of a frantike person : and where the light of truth is not , there is a darke and tenne-folde mayste about the minde . but where god is not , there is no truth , there is no light , there is no lawe . the soule and sences , are but the instruments of his will , which hee bindeth and looseth at his pleasure . and if they turne from beholding him to the contemplation of any arte and science whatsoeuer , surely they effect nothing but their owne destruction . i knowe this is no pleasant sound to some daintie eares , who cannot tollerate any naming or mentioning of religion , which the paganes , whome they make as presidents of their prophane manners did not onely regard , but in the very front and beginning of theyr lawes ( such was their reuerence ) they prefixed a precept and caueat for the obseruation and keeping of holy rites in a regardfull manner : ad diuos adeunto caste , pietatem adhibento : qui secus faxit , deus ipse vindex erit : let them go to the worship of god with a chaste minde : let them vse reuerence : god will be the reuenger of him that doth otherwise .. b some perhaps had rather heare a curious discourse handled by some astrologer , whereby they might haue certaine notice and vnderstanding what complexion and constellation is most fit to enter into the studie of the lawe : with such dregs they would haue their minde satisfied . they perhaps , will beleeue ( for what is more credulous then fansie ) that they which are borne vnder iupiter , are not fit for the study of the lawe , as cocles teacheth them , c that they which are borne vnder mercury , are of quick conceit , but quickly vnconceited , soone ripe and soone rotten , especially if mars be ioyned with mercury in the constellation , as it hapned according to the suggestion of some in hermogenes the sophist , who writ of sophistry in his youth like a graue old man , and was in his old age as a trifling boy . but they which are borne vnder saturne , are sayd to be more dull in the beginning , but in processe of time of more sound and deepe knowledge then others : surely i am not of opinion , that the soule and the powers thereof are subiect to the sway and motion of the planets . if i should thinke , that it were a substance flowing from the bodie , or so mingled with it , that it might be accompted a kind of bloud , as some philosophers grossely conceiued , this might seeme vnto me probable .. d but i am fully and immoueably perswaded , that the soule commeth from aboue into this strange matter , whereof the bodie is compacted , and is of an incorporeall nature , which is not subiect to the impression of the senses . for when sicknes affecteth the bodie , the soule is sound : and when the bodie is racked , the minde is free . neither is it to be maruailed at , that it conformeth not it selfe to the change of the bodie , because some materiall parts of the bodie are not alway partakers of the change . let a man go abroade in the most cold and freezing weather , yet his eyes will neuer be frozen , let him stand by a most scorching fire , yet they will neuer feele heate . the strange and different substance of them from the other parts of the bodie , i take to be the cause . now the planets do worke only vpon corporall things , for their influence is of the same sort as the attractiue force of the adamant , or the geate , which cannot worke but vpon materiall things : and therefore i may well conclude , that the starres do not qualifie the minde , but the bodie only , which being a cotage of clay , must needs beare the wind and weather , the alteration and impression of the planets . wherfore let not any mā who aymeth at the knowledge of the lawe as the marke of his desire , make any estimatiō of these physognomicall fictions : let him not goe to the house of mars nor to the spheare of mercury for knowledge . si quis indiget sapientia , postulet a domino : if any lack wisdome , let him request it at the hands of god e he must likewise obserue , that the way to the hight of knowledge is by humilities gate . let not the increase of his skil make his mind to increase , and swell , after the maner of loftie spirited men , who when they know nothing , yet would seeme not to be ignorant of any thing . euery auditor must be willing to heare oportet discentem credere , sayth aristotle , f , who though he were a man of singuler knowledge , yet gaue example of great modestie , by this censure , maxima pars eorum quae scimus est minima eorum quae ignoramus , the greatest part of the things which wee knowe , will counteruaile but the least part of the things which wee knowe not : as if a man should compare one hundred to one . but none doe more boast of knowledge , then the ignorant , as nothing soundeth more then emptie vessels : and they nourishing in theyr mindes a haughtie and ample opinion of theyr supposed abilitie , are so bewitched with selfe-loue , that they thinke they sucked eloquence with their nurses milke , that the bees which are feined to sit vpon platoes lips , did flye to their lips whilest that they were dreaming in the cradle : that they were able to teach old men before they had teeth : and triumphing in this conceit , they admire themselues , & disdaine others , aduancing their own doings , & discommending the fruitful labours of other men , like apes , louing their deformed children , and like phantastick pygmaleons wo●ing their owne deuises . if any thing be spoken of thē sometimes clarkly , and acutely as they thinke , they make an inward applause vnto thēselues , & cherish their harts with this acclamation , facete ! lante ! lepide ! nihil supra ! but if any thing be spoken of others aptly and sensibly , they straightway inferre , quanto tu melius hoc inuenisses thraso ! but a discreete & aduised man , wil iudge none to be so meane , but that he may learne something of him : for though he know more then others , yet hee must thinke , that others knowe somewhat which he knoweth not . the best and the most graue man saith cicero , will confesse , that he is ignorant of many things .. f and solon was not ashamed to say , that in his old age he was a learner . g and iulianus the lawyer sayd , that though he had one foote in the graue , yet he would haue an other in the schoole .. h the next thing i require in a student is temperance , which i do not take so strictly as aristotle doth , who defineth it to be a restreint from corporall pleasures , which are obiected to the sense of feeling p , but would haue it so largely vnderstood as plato q , cicero r , and now of late time s scaliger , and d. gentilis haue taken it to be , a restreint of the minde from all voluptuousnes and lust , as namely from couetuosnes , excesse of diet , wantonnes , and all other vnlawfull delights . a student must in his diet be temperat , and abstinent , for as musonius sayth , continency in dyet is the step to wisedome . t a fat and full belly yeeldeth nothing to a man but grosse spirits , by which the sharp edge of the minde is dulled and refracted , and too much meate cast into the stomack doth ingender nothing but cruditie and diseases . this measure must be vsed in our diet , that no more be taken then will suffice . seneca prescribeth a good rule , u famem fames finiat , let hunger end hunger , which is nothing els in plaine termes , but that a man should rise with an appetite , being rather satisfied then filled . yet he that feedeth more plenteously , is not to be reprooued , if his bodie do stand in neede of more copious nourishment , and a man must not so abstaine , that the functions and duties of the minde and bodie be hindered . good and moderate nourishment doth quicken the spirits , and they do giue strength to the braine , but that which is vnwholesome and immoderate doth stop , thicken , confound , and destroy them . as in diet , so in other things , it is good for a student to haue the rule and mastery of his mind and appetite , neither so to let slip the reignes to his desire , that he will for any commodious respect , bring himselfe to shame and obloquie , and for a present aduantage , incurre a perpetuall discredit . plato hath a sentence worthie of obseruation x , et dicere & facere ea quae decent ad sobrium & prudentem hominem tantum pertinet , to say and to do the things that are comely , belongeth only to a sober and wise man. that example of rudenes vsed by certaine florentine embassadors , is to be auoided . iouius reporteth it y they were sent as embassadors to charles the fift , and pope clement the seauenth staying at bonomia , and being macthants , caried with them ( such was their extreame couetousnes ) certaine wares to make gaine of , thinking they should be free from custome , as going vnder the name of embassadors necessaries . but this being perceiued to the two great estates , moued the emperour to laughter , and the pope to anger , who was a citizen of florence . the legates departed with infamy , which they well deserued for abusing so honorable a calling by such base indignitie , which may be a warning to all to preferre their credit before their greedie desires . dilligence in the pursuing of any studie is of great weight and moment , and in the studye of the lawe it hath principall force and effect , for the cases are many in number , which must be read , remembred , and applyed , which cannot bee compassed but by extreame diligence . and whereas some pretending a lumpish idlenes , would haue the lawe measured with narrowe limits , and woulde haue the multitude of volumes , cases , rules , and diuersities abridged and made lesse , surely they giue large testimonie of their great desire of ease . but ease is a very badde medicine for difficultie , and their pretense is wholy repugnant to reason , yea to possibilitie . they that would haue fewe lawes , must procure that there be fewe causes , and little busines , which it is not possible for any to bring to passe . if it were possible for these faint students to take away the infinite and the innumerable affayres and actions of men , then that which they require might sort to good effect . but that lyeth not in their power , and therefore they should surceasse theyr sluggish surmise . for this cause ludouicus viues is iustly reprehended of albericus gentilis , in that he held , that all things might be finished by fewe lawes , whome gentilis a affirmeth , to fight against common experience . for if many contentions or controuersies should happen , which none can bridle or preuent , if the lawe shoulde not handle , discusse , and determine them all , the lawe shoulde doe iniurie , and it should not be the handmayd of iustice , it should not suum cuique tribuere . so that in the students minde this resolution must bee fixed , not to sinke vnder the burden , but with all conuenient industrie to followe hys studye , neuer to be wearie of paynes , nor to slacken his endeuour , sith nothing of price and accompt is purchased without great labour , by which hee may attayne to the knowledge of many excellent thinges more worthie of admiration , then prayse . neither is it seemely to pretende weakenesse of bodye , and tendernesse of complexion , when health and strength doe well serue , and may well be imployed in studye . ciceroes bodye was neyther of yron , nor of oake , yet hee was not broken , nor in manner altered by continuall night-watchings , noone-sittings , and morning-risings , by many laboures , contemplations , and studyes , by the great charge of hys houshoulde , by the weightie care of the common-weale , by writing manie bookes , and epistles without number , as cardanus well obserueth .. b and why should any man despaire to doe that which another hath done , especially hauing the like disposition of minde , the like faculties and meanes to attaine to knowledge , and the like desire . this diligence doth chiefely shew it selfe in reading and hearing . it is not fit for him that heareth or readeth , to haue a mind wauering from the purpose , and as it were going on pilgrimage . a man is then said to floate in fancie , and to wander in thought , when hee doth not bend his minde to that which is handled , and when he is amongst his bookes in bodie , but not in minde , or when he is present at some reading , and doth not shew himselfe attentiue , but doth number the tiles of the house , or buildeth in the aire , or doth nothing lesse then that which he should do : but the force of the mind must bend it selfe to that thing only which is to be conceiued . for the power of our mind and vnderstanding is more strong when it is vnited , then when it is dispersed , and distracted into many parts . pluribus intentus minor est ad singula sensus . but as these things forenamed are of great consequence and value to the student , so wisedome that rare and excellent vertue of the mind is of great importance , which i do rather exact , then require in a student , for without it nothing can be done decently or perfectly : and surely to a student of the law it doth specially appertaine , for it doth consist in the cunning discerning of the truth of euery thing . c and a student ought not only well to deliuer things conceiued , but well to iudge of them , and in this part standeth the best part of a lawyer . it is the propertie of a wise man most sharply to perceiue what is true , what is false in euery cause and controuersie , not to be deceiued nor inueigled , not to be vnconstant in opinion , nor ignorant in the circumstances of things . the ordinarie meane to attaine to wisedome , is to vse time and diligence sufficient for the consideration of things , to heare reasons on both sides contending in his mind as it were armed and professed enemies , not to iudge of any thing rashly or hastily , nor to giue a sleight censure of weightie matters . for as fabius sayth in lyuye d omnia non properanti clara certaque fiunt , festinatio improuida ac caeca est , all things are plaine and certaine to him that is not rash nor headie . haste is improuident , and blinde , which is therefore rightly termed of plato nouerca scientiae , the stepdame of knowledge .. e and the aetolian magistrate sayd well , ee that there is nothing so great an enemie to good aduise , as haste , which bringeth pennance swiiftly , but warning too late , and without profit , because counsaile hastilie giuen cannot be reuoked , neither can the thing which is disordered by badde aduise , be entirely restored or brought into order againe . but where a man taketh time sufficient , hee cannot be sayde to doe any thing rashlie . wherefore not vnfitlie hath it beene defined by some to be the knowledge of the oportunitte of doing things aright , and the cause that all things be well done , f , and it hath not onely a stroake in worldly affayres , but euen in matters of religion : for by it a man may be so directed , that hee may neither decline to superstition , nor to that which is contrary vnto it , namely , impietie or atheisme . and it is the leauill or compasse of all other vertues in the accidents and affaiers of this life . it will shewe the times and measure of boldnes and audacitie , least it turne to rashnes and impudencie . it will so order temperance the mother of order , that it may not be accompted rudenesse or inciuilitie . it will guide iustice which gouerneth all things , least it turne to crueltie : nay it wil moderate it selfe , least it be termed craft or deceipt . by these effects the student may easily perceiue , how necessary it will be vnto him . the qualities aboue mentioned , do so directly respect a student , that they may be numbred in the ranke either of adiuments , or ornaments . one thing yet remayneth , which is , to be placed and raunged amongst the ornaments only , being a meere ornament , yet it doth as much adorne , as the other doe helpe : and that is curtesie or mildnes , which doth as much decke and illustrate any gentleman , as the dyamond doth the gold to which it is fastned , or as the chaine of the necke doth giue a luster to the brauerie of the other partes , it setteth in order , garnisheth and graceth the other giftes of the minde , without which they shoulde be vnsauorie , and want applause . i distinguish it from ciuilitye called vrbanitas , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for that is onely to be seene in publique meetings and assemblyes , but this may shewe it selfe within a mans priuate walles , or chamber , and may be vsed betwixt man and man. most loathsome and deformed are the manners of the stoikes , who whilest in sowernes of minde they seeke to ouercome mans nature , do exceede it , and of men they become beasts . and such manners haue disgraced men of excellent abilitie . coriolanus was by nature a stoike , and his roughnes of maners is iustly & worthilie reproued of dionys . halicarnastaus g cato was both by nature and profession , whom for his bitter austeritie erasmus condemneth h . and surely i thinke that such rugged behauiour doth relish harshly , and is sometimes vnpleasant to them who by naturall inclination do fauour it . heare therefore a stoike dispraysing a stoike . cu. piso ( sayth seneca ) fuit a multis vitijs integer , sed prauus , & cui placebat pro constantia rigor i cu. piso was free from many faultes , but yet a froward man , and was delighted with stifnes of minde in stead of constancie . florus hath noted the currishnes of romulus with a perpetuall blot of infamie , romulus ob asperitatem morum a senatu discerptus est k . romulus for the roughnesse of his manners was torne in peeces of the senate . but mildnesse is of that sweete and delectable nature , that it pearceth the stonie harts of barbarous people , it affecteth their eyes and eares , it bendeth the most stubborne and insolent spirits , it findeth an easie way amongst swords , it ouercommeth wrath , and alayeth hatred .. l this i commend to the student as a principall meane to gaine fauour , loue , and good entreatie . of the choise which a student of the law ought to make in his studie . the third chapter . nowe that we haue shewed what qualities are conuenient for him , who purposeth to gaine knowledge and credite by the studie of the law , it remaineth to giue him some taste of that course which in pursuing his studie hee may not vnprofitably obserue . for though the way were plaine , yet to them that know it not , it is harde and difficulte . and as the first yoake is to the young steere heauie , not because hee is not able to beare it , but because he is vnacquainted with the carying of it , so yong students though they be in age and capacitie mature and perfit , yet because they aduenture vpon a new enterprise whereof they neuer had triall , they are somewhat troubled at the first : yet in continuance of time , by labour and some direction of veteranes in the art , they pearce through the thornie fence or barre of these great difficulties : but heere let the student take courage vnto him , and when the doore is opened , let him not doubt to enter . as hee must not neglect time , which is a consuming treasure , so hee must make distinct choice of it , least omitting better opportunities , he doe cast him selfe into the straites of time and necessities , whereby he shall finde much incombrance , and his proceedinges shall be crossed by many interruptions . and surely as in all matters of moment , the place where a thing ought to be done is greatly to be regarded : so likewise the time wherein it is to be done . for the turning of all temporall affaires doth depende vpon these two hynges , and these circumstances doe either make or marre the substance of our actions . it hath bin questioned of diuerse whether the morning or the night be more conuenient time for the studie of the lawe , which because it is no moderne doubt , but either part hath had fauorers and patrons in all ages , and to the end that by some clerenes of reason the truth of this matter may appeare , i will bestowe some paines in the opening of this point . marsilius ficinus a man of excellent learning and iudgment doth by fiue reasons proue that a man should rather rise in the morning to studie , then watch in the night . k his first reason is borrowed of the astrologers , which he doth not greatly vrge , because he had smal regarde of their vaine speculations : but admitting that they say to be true , he thus reasoneth : there be three planets which be verie fauorable to students in the course of their studies . sol , venus , and mercury , all which in the night are most remote from our hemispheere , and goe into the twelfth house of the heauens , which is called the prison , towarde the west . his second reason is this . the spirits of our bodies doe followe the state and disposition of the aire . now in the morning , when the sunne riseth , the aire is subtilized and made rhinne , pure , and free from al grosse vapours . but in the night time it is thickned , and corrupted with contagious exhalations , which possessing the sences , doe pierce into the braine . thirdly , the day was made at the first , for labour , and the night for rest , ( and therefore it is said in the 104. psalme . thou makest darkenes and it is night , wherein all the beastes of the forest creepe forth , when the sun ryseth , they retire and couch in their dennes . then goeth man foorth to his labour , vntill the euening . ) and whilest the sunne holdeth and conteineth his race in our hemispheere , with his beames he doth open the poares and passages of our bodies , and from the center , to the circumference of the same , he doth enlarge the humors and the spirites which maketh vs more apt to labour and studie : but when hee departeth from vs then all these thinges are bound and straitned , and then we are driuen and prouoked to sleepe . fourthly , it is verie healthfull vnto vs to vse labour or studie in the morning , which if it should be in the night the spirits being greatly wasted and consumed by the motion in the day-time , the bodie becommeth weake , and so is vtterly vnfit for any kinde of labour . and he that giueth himselfe at that time to studie , causeth the spirits to flie vp into the head , and they being so distracted , cannot yeelde sufficient seruice eyther to the head or to the stomache . fiftely if a man studie soone after supper , the nourishment is resolued into grosse vapors which doe fill the bodie and are verie noisome obstupatiues to the senses . for the meate being destitute of heate and spirit , doth waxe rawe and doth putrifie in the stomacke . so that the braine is offended and our studie greatlie hindred and impeached . it may be added for a sixt reason , if any thing may be added to ficinus . the spirits wherein all our agillitie and dexteritie doth consiste , by which the braine doth worke , are together with the other parts of the bodie refreshed and strengthened . so that in the morning they must needes be more seruiceable then at night . seuently , the phantasie or imaginatiue part of the soule which helpeth greatly in studie , and principally in the studie of the law , is in the night time confounded and obscured . lastly the bodie in the night time waxeth more dulle , so that the minde cannot vse it as a conuenient instrument . for when the stomacke is full and stuffed with meate , the thicke aire being round about vs , stopping the poores , the great store and abundance of humors is caried , as aristotle saith l to the head , where it sticketh for a time , and layeth as it were a lumpe of leade vpon the braine , which maketh vs drowsie and proane to sleepe : then it discendeth by steppes or degrees , and comming into the other parts doth ingender sleepe . and it is the opinion of a learned phisition , m that the nightlie studie is vnseasonable , & that it wearieth and weakneth students , making them leane and exhausting their bodies . for by late watchinges their vitall spirits through too much intension are weakened , and their natiue humiditie dried vp . demosthenes did studie much by candle light , and therfore his orations were said to smell of the lampe : but he did not begin to studie till the first entrance of the morning , and herein he did endeuor to excel euerie man. but whosoeuer will followe demosthenes in this , had need to be well aduised of the strength and constitution of his body and to examin , quid valeāt humeri ferre , et quid ferre recusent . for nature must not be oppressed , but measure and meane must bee vsed , least the stomacke being made by too much fatigation vnable to digest the meate receiued , the poares of the bodie bee cleane worne out and extinguished . the whole senate of phisitions doe call the morning howers , the golden howers , in regarde that the bodie is then in best temper . this may suffice to perswade , that the morning is more fit for all kinde of studie in generall , and by consequent for the studie of the lawe . i hath bin prooued by probable reasons , and by aucthoritie of wise men . if this will not serue , heare the voice of wisedome her selfe . i loue them that loue mee , and they that seeke mee earely shall finde mee . n i haue dwelt the longer in this question , because it is very expedient for a student , to know the best time of his studie , which if it bee vsed in season , may prosper , and take good effect : otherwise his labour may bee vnprofitable god ( saith ) solomon hath made all things good in their time . o and ecclesiasticus woulde haue euerie man to obserue time . p this therefore i will noe longer handle , being a matter plaine , but will satisfie the student in other difficulties , which are more frequent & doubtfull , and are occasions , that many which doe enter into this studie doe breake off their course , and bid the law farewell . the bookes of law , say they , are not pleasant to reade , the wordes or termes are harshe and obscure , the stile no whit delightfull , the methode none at all . it is a science void of all proper definitions , artificial diuisions , and formall reasons . to aunswere this cauil , ( for i cannot blainch it whiter . ) i will vse a two-folde manner of confirmation , and will shew that either the lawe hath those thinges which they denie vnto it , or if it doe want them , it needeth them not . the writings of wise and graue common weale men learned in the lawe are not to be censured by grammarians , and rhetoricians , who make a gallant glosse of clytemnestraes mules , alexanders horse , and such friuilous vanities . for their studie was farre different being for the generall good and commodious gouernement of the common weale . and if any man reprooue them for want of sharpenes of inuention , and finenes of witt , let him be well aduised , and consider the substance of their workes , and he shall find , that they caried mercurie in their braine , and not on their tongue , and that they wanttd not wisdome , though they were defectiue in rhetoricke , which not to haue ioined with wisedome , is so far from fault , that if they had conioined it they had cōmitted a fault , for who wil not dispraise & detest curled haire , & paynting of the face in an aged matron . and in their writinges wherein their chiefe purpose and addresse was , to search out the truth of doubtfull matters and to deliuer it to posteritie , there could be nothing worse , then a curious kind of stile , which is vsed commonly of them , that seeke to flatter & to dissemble , and to bewitch with a familiar kind of perswasion the common people , with whom such flowers are of more accompt , then substanciall fruit . all kinde of things is not conuenient for all sorts of men . rethoricke i graunt is a pleasant thing , and full of delite . but in professors of grauitie , neither comely nor commendable . who would not allowe a tripping gate , nimble handes , glauncing eyes in a stage-plaier or dauncer . but in an auncient citizen , or graue philosopher , who would not dislike them , blame them , abhorre them . if we see a young damesell pleasant and talkatiue , we doe not reproue it in her , but if we finde that in a matron , wee loath and condemne it . and truely from the purpose and practise of graue men , there shoulde bee nothing more different , then that which sauoreth of too much daintinesse or curiosity . alcibiades his shooe is not fit for socrates his foote , and it is not conuenient for graue men to celebrate the feast of bacchus in the temple of vesta : there is great distance betwixt the style of the courtier , and the professor of the law : for if the courtier should neglect delicate speech , he should be no good courtier : so if the professor of the law should affect it , he should not speake like a lawier . if pythagoras could haue lyued without meate , he would not haue eaten so much as herbes , and if he could haue expressed his meaning by signes or gesture , or by any other meane then speech , he would neuer haue spoken , so loath was he to offend in superfluitie : therefore the writers of the law are not to be reprooued for doing that , which if they had done they might iusty haue bin reprooued . cicero when he treateth of matters of law , speaketh like a lawyer , and a lawyer must speake as the law doth speake : therefore baro q saith well , the writers of the law would not haue left to posteritie , so many law-bookes , if they had affected a choice phrase of speach . and surely if when the latine tongue did most florish , the caesars and cicero him selfe , did not vse any gorgeous and fyled kind of speech in matters of law , shall we desire it of bartolus , bracton , britton , and glanuill , when eloquence was in the ecclipse or wayne , & exceedingly decayed . varro saith , that by the diuerse mixtures of people & nations , olde wordes grow out of vse , and are changed , and new do take place : r how can it then be , but that the common law should haue harsh , obscure , difficult , & strange tearmes by the commixtion of the seueral languages of the saxons , danes , and normans , the authors of the same . polybius reporteth , that there was such alteration of the romane language soone after the expulsion of their king , vntil his time , that they which were most skilfull of antiquitie could hardly vnderstand a great part of the words ſ which doubtles was a great impeachment to learning and knowledge . if the receiued wordes of the law should be altered , it may well be presumed that many auncient bookes of the ciuill law , & the old yeare bookes would in short time , be hardly vnderstood : and i am fully perswaded , that if the auncient tearmes of the law should be changed for more polite and familiar nouelties , the new tearmes would be nothing so emphaticall and significant as the olde . the wordes of the law may be compared to certaine images called sileni alcibiadis , whose outward feature was deformed & ouglie , but within they were full of iewels & precious stones : so the wordes of the law , though they be rude in sound , yet are they preignant in sense . but some perhaps will say mine eares cannot tollerate such an vnpleasant sound and so confused a style , o delicate fellow , when you go to the theater or dauncing schoole repose your selfe wholy in your eares , but when you come to heare matters of weight handled & discussed , rest not vpon your senses , but vpon your mind & vnderstanding . alcibiades was more moued by the naked speech of socrates , then by the laboured eloquence of pericles : but this rhetoritian wil replie : i confesse the law to be of it selfe a reuerend & excellent thing : but it would be no whit worse , if it were more finely and politely deliuered . who wil deny that which is comely of it selfe , to be made more comely , if other thinges be added to adorne it ? to aunswere this briefly and plainly , many things there be to which if you should adde any other thing , you should take away their grace and beawtie . they be of their owne nature in so good estate , that you can not change them , but you must needs make them worse : a tombe or pillar of marble , if it should be painted with any colour , should lose the former grace , & be a great deale worse : & a beawtifull face is often disgraced , by a needles ointment , & so it is of other things which of them selues are fayre & comely : the thing which is added hydeth that which it findeth , & sheweth that which it bringeth : & these thinges which ar handled in the law are not adorned by the varnishing of art , but are obscured by it . and it is not conueniēt in such a serious matter to dally with tropes & figures , nor to riot with superabundāce of words , nor to florish with eloquēce & diaperd phrases : but yet he will further obiect , though it do not belong to the professors of the law to speake and write figuratiuely ; yet surely it behoueth them to speake and write in good congruitie , which notwithstanding they do not . i would gladly know what congruitie it is which curiositie doth require : the fine rhetorician wil say , absurda consuetudo disrumpenda est : the lawyer , he will say , vsus contra rationem annullandus est , he will say that this is not romaine latine , it is most true : therefore ( will he conclude ) it is not well spoken , nor congrue , the argument halteth . the moscouite will speak of a thing after one sort : the fleming after an other sort will vtter the same thing : neither of them speake in latine , but in their owne language : do they not therefore speake right ? yes , they speake right and congrue in their owne language , and so do the lawyers in their owne dialect and language proper to their art. doth any man thinke that these wordes , bellum , exul , sylua , proscriptio , manus iniectio , were vnknowen to the auncient writers of the law ? yet sometime they doe not vse these , but in stead of them they say , guerra , bannitus , boscus , attinctura , arrestū . but it is conueniēt that they should vse these latter wordes , being proper to their art or science . neither is it meete that they should change them for the wordes of a strange language . wherefore scaliger doth vpon good cause dispraise the graetians , because they doe expresse things merely forraigne and external by wordes of their owne idiome : and commendeth the romanes , because they did apply forraigne wordes to forraigne matters . t and the common law being deriued from the normans , and other nations , doth conueniently retaine the words of the first inuentors . and because amongest lawyers latine wordes be vsed many times in an other sence then they are vulgarly and commonly taken , it is not good to haue the interpretation of such words from any other then the lawyers themselues . and though the grammarians and antiquaries do in the etymologicall interpretation of wordes excell : yet the writers of the law in the analogical interpretation of such latine wordes as do belong to their art do farr surpasse them . i do not think any exquisite skill of the latine tongue to be necessarie in 〈◊〉 lawyer : but hold it sufficient if he know so much thereof , and in such maner , as the common sort of men , which are conuersant in the reading of latine bookes . and plato hath a good saying to this purpose , that these things ought of necessitie to be knowen , whereof if a man should be ignorant , he should be said to be shallow v and superficiall . so much therefore of the latine tongue ought to be knowne , as will keepe a man free from such reprochfull tearmes . the auncient reporters and handlers of the law whilest they writ of fines , vouchers , remitters , restitution , releases , and such intricate matters , had no leasure to note the properties and rules of the latine tongue in cicero , plinie , plautus , and varro : they inquired not which was good latine , but what was good law : but they were wise in their iudgements , circumspect in their aduise , sharpe witted in their arguments , graue in their speech , subtill in their questions , cunning in their resolutions : they were excellently instructed to distinguish of ambiguous thinges by most wittie diuersities , to open and to argue harde and enigmaticall cases by sound and inuincible reasons , to confute that which was false , and confirme that which was true . and whereas they are impeached for the want of good and proper definitions , let me aske of these strict logicians , what a definition is ? i thinke they will say that it is a briefe and plaine declaration of the substance of a thing : and be there none such in the law ? surely many : but they will haue ti to consist of the proper genus and the proper difference , as they tearme it , wythout adding any thing els : but it is sufficient if it expresse the nature of the thing , whereunto it is applied . may may not these be admitted for good definitions , a fayre is a great market : a market is a little faire : a village is a multitude of houses : a countie is a multitude of villages , do not these sufficiētly expresse the nature of a faire , market , village , and countie : yet if they should be tried by the touchstone of the logicians , they wruld be vtterly reiected as not currant . some do spend a whole decade of howers in doing nothing els , then seeking out the proper genus and difference of one onely thing , and when they haue done , they are scarsely so wise as they were before , they may say of them selues as gentilis speaketh of them verie fitly : confidentia astra petimus , ruimus in praecipitia . x their diuisions like wise are reprooued , because they doe not flow from the essence of the thing diuided : yet it is sufficient if they doe briefely diuide a thing into his particulers . who can disallow of this diuision vsed in the law , whereby all causes are said to be eyther criminall , or pecuniarie : none but such as will finde a knot in a bulrushe . againe , they say their reasons are not artificially concluded : surely , it is not for any man , vnlesse he bee in the schooles to tye himselfe to a precise kinde of syllogysmall logike : but if it go to the end of the controuersie , it is sufficient , and that is the opinion of alciat . a their methode is amongest other thinges reproued , or rather their want of methode , which exception wanteth trueth . all bookes written of the law may be reduced to these fower heades : either they are historical , as the yeare bookes of the common law : and zasius his counsailes in the ciuill law , in which no methode is requisite , but it is sufficient to report the thinges done , and how they were done : or explanatory , as mast . stamford his treatise of the prerogatiue , and the discourses of diuers glossographers , & commentors in the ciuil law , wherein no strict methode can be obserued : for the commentor must needes follow his authour euery way that he goeth : and if there be no methode in the one , there can not iustly be any demaunde of the other . for he that vndertaketh to comment , or to confute , must applie himselfe wholy to the course of his authour , or the aduerse partie : and therefore scaliger said very aptly to ●ardanus , sequor te non quò ducis , sed quò trahis : b or els they be miscellaneall , and in such there needeth no methode , because things of diuerse sort , and not depending the one vpon the other are laide together : and such are the abridgements of the common law , and the pandectes of the ciuill law : or els they be monological , being of one certain subiect , as m. stamford his booke intituled the pleas of the crowne , ma. lambards iustice of peace , whom if any reproue for lacke of methode , surely his iudgment is out of order , and that excellent booke of albericus gentilis , a ciuilian de legationibus , then which i haue not seene any thing done with more plausible , artificiall , and exact methode which as it is verie hard for any to imitate , so it were to be wished , that he would in some other like treatife equall himselfe . but yet an other obiection hauing more fauorers then the former must bee auuswered , which is that the law is vncertaine , and that lawyers in their opinions and arguments do greatly differ , and dissent . but here the matter is greatly mistaken . for the law it selfe , which doth consist of agreable cōclusions , and of the iudgements , awardes and opinions , to which reason and truth haue subscribed , is not vncertaine , how-be-it they which doe argue of new questions , and causes neuer heard off before , or such as for their great difficultye haue not yet bin decided , doe in argument contend amongst themselues : but that which moueth disputation is not the obscuritie or doubtfull vnderstanding of the law , but the qualities and circumstances of the persons , of the actions , and accidents , of the time , the place , the antecedents , and consequents . and though reason be opposed to reason , and circumstance to circumstance , yet the law is neuer opposed to it selfe . and if a man will condemne an art , because the professors and practisers are diuers in opinion , surely there is no art , nor science , which wil be free from condempnation . goe to the historiographers , who should report the truth of euerie thing , you shall finde them at great oddes : lyuie against polybius , plutarche against liuie , sigonius against plutarche , and xiphilinus the interpreter and abridger of dio against his authour . dio reporteth a prodigious miracle , which xiphilinus altereth , setting a new face vpon it , and discrediting his authour . c goe to the grammarians , you shall find seuen great masters at variance about this one word anticomarita . d goe to the philosophers , there is great dissention and a diametrical repugnance of opinions amongest them : there you shall see the parepatetikes against the academikes , the epicures against the stoikes , the cyrenaikes against the cynikes , the nominalles against the reals , the carpentarians against the ramistes . goe to the schoole of the phisitions : you shall haue the like disagreement : galen against hipocrates , auenroes against galen , auicenna against auenroes , paracelsus against them all , and erastus against him . will any man nowe condemne historie , grammer , philosophie , and phisicke ? if not , then it is euident , that an art or science is not to bee reprooued , because the writers thereof doe in opinion or argument disagree . no more is the law to be dispraised , but rather to be liked for the varietie of opinions in it . for as by the collision or beating together of flint and iron fire doth appeare , so the truth is disclosed and made manifest by the conflict of reasons . a man shall more easilie and discreetely iudge of thinges ( saith aristotle . ) if he haue hearde the reasons on both sides contending like aduersaries . e but if some men be more contentious in points of law , then others , that is the fault of the men , but not of the art . the knowledge of the law ( saith cicero ) is not litigious , but the ignorance thereof . f and if a man should deferre his studie of any art , or science , vntill the writers thereof did fully , and vnitedly consent , it woulde bee as vaine a thing , as if a man shoulde purpose his iourney from london to yorke , but shoulde make a vowe not to begin his iourney , vntill all the clockes in london shoulde strike together . now that i haue remoued out of the way all such obiections , as might be occasion of impediment , and interruption to the student , i thinke it not beside the purpose , to prescribe and commend vnto him some speciall writers of the law , in the reading of which , he may with aduantage and ouerplus bestowe his paines . he that frameth himselfe to the studie of the ciuil law , may very profitably imploy his paines in reading of the code , nouellaes , and pandectes , which are necessarie for the profession . of the auncient writers i thinke these are most conuenient to be read , bartolus , baldus , paulus de castro , philippus decius , alciatus , zasius . of the latter writers , budaeus , duarenus , cuiacius , hotomannus , donellus , and amonge these , yea aboue these , him whom i lately named albericus gentilis , who by his great industrie hath quickned the dead bodie the ciuil law written by the auncient ciuilians , and hath in his learned labours expressed the iudgement of a great state-man : the soundnes of a deepe philosopher , and the skill of a cunning ciuilian : learning in him hath shewed all her force , and he is therefore admirable , because he is absolute . the common lawe is for the most part contained in the bookes called the annals of the law , or yere bookes , all which are to be read , if the student will attaine to any depthe in the law. in them he shall see notable arguments well worthy of paines and consideration . the two late reporters are ma. plowden , and sir iames dyer , who by a seuerall and distinct kind of discourse , haue both laboured to profit posteritie . some humors doe more fancie plowden for his fulnes of argument , and plaine kinde of proofe : others doe more like dyer , for his strictnes and breuity . plowden may be compared to demosthenes , and dyer to phocion , both excellent men , of whome plutarche reporteth , that such things as were learnedly , wittily , copiouslie , and with admiration dilated , and deliuered at large by demosthenes , were shutte vp in fewe wordes , compendiouslie recited , and with admiration handled of phocion . there be certaine auncient writers of the law , namely bracton , britton , and glanuille , whom as it is not vnprofitable to reade , so to relye vpon them is dangerous : for most of that which they doe giue foorth for law , is nowe antiquated , and abolished : their bookes are monumenta adorandae rubiginis , which bee of more reuerence then aucthoritie . ma. fortescue in his writing sheweth a sharpe iudgement , and in this is exquisite , and artificiall , that where hee endeuoreth to bee plaine , he spareth not to be profound . for he writ to a king , who desired to haue intricate things plainly opened . ma. littleton layde a sure foundation of the law , and by his owne booke hath deserued more praise , thē many writers of note and name by their ample volumes : out of the great bookes of the lawe hee gathered the most speciall cases , which were either generally agreed vpon , or by the court awarded to be law , or else in all ages receiued for positiue rules . for very few there be throughout his whole treatise , which may not be signed with one of these three markes : his booke doubtlesse is of such singularity , that littleton is not now the name of a lawyer , but of the law it selfe . m. fitzherbert must needes be commended for great paines , and for well contriuing that which was confusedly mingled together in many yeere bookes : but he was more beholden to nature , then to art , and whilest he lab●red to be iudiciall , he had no precise care of methodicall pointes : but as hee was in conceit slowe , so hee was in conclusion sure : and in the treatises which bee of his owne penning , hee sheweth great iudgement , sound reason , much reading , perfect experience , and in the whole conueyance of his discourses giueth sufficient proofe , that hee sought rather to decide then to deuise doubtful questions . mast . brooke is more polite , and by popular and familiar reasons hath gained singuler credite , and in the facilitie and compendious forme of abridginge cases hee carieth away the garland . but where ma. fitzherbert is better vnderstood , he profiteth more , and his abridgement hath more sinewes , though the other hath more vaines , but i am ●oath to make them countermates , and therefore leaue the iudgement thereof to others . in ma , parkins his booke be many commendable thinges , deliuered by a readie conceit , and pleasant methode : many excellent cases which sauour of great reading , and good experience , his treatise is to young students , acceptable and preciouse , to wh●m his verie faultes and errours be delightfull , but it might bee wished , that hee had written with lesse sharpenesse of witte , so hee had discoursed with more depth of iudgement . for hee breaketh the force of weightie pointes with the shiuers of nice diuersities , yet many thinges are to be allowed 〈◊〉 him , many to be praised , so that the reade● be carefull in his choice , wherein he was too carelesse . in mast . stamforde there is force and weight , and no common kinde of stile : in matter none hath gone beyonde him , in methode , none hath ouertaken him : in the order of his writing hee is smoothe , but yet sharpe , pleasant , but yet graue : famous both for iudgement in matters of his profession , and for his great skill in forraigne learning . and surely his methode may bee a law to the writers of the law which shall succeede him . ma. rastall for his long and laborious trauaile in collecting matters of weight , and moment , which lay dispersed , and reducing them to a conuenient forme hath deserued neuer to be forgotten . and i know not whether i may more iustly commende him for his greatnesse of knowledge , or for the largenes of his books and labours , or for his speciall care of doing things exactly . in ma , theloall his digest of writs , diligence and desire to profit is eminent . he endeuored to be like m. stamford : but he is so farre distant from the delightfull progresse of his stile , and methode , that he may seeme to haue liued in some other age a long time before ma. stamford . but as his strength was lesse , so his labour was equal . for in handling one title of the law , he hath dealt so painefully , that no point can be named concerning that title , which he hath not discussed , nay to giue him right , hath not fully discussed . ma. lambards paines , learning , and law , appeare by his bookes , which are conducted by so curious methode , and beawtified by such flowers of learning , that he may wel be forted amōgst them to whom the law is most beholden . his stile runneth like a tēperate streame , his excellent knowledge and vse of antiquities argueth no small reading , and a singuler conceit : he hath bin so vniuersally beneficiall to the whole realme , that whosoeuer despiseth his workes , bewraieth himselfe . m. crompton hath taken great paines in this studie , and his bookes are in euery mans handes , which prooueth their generall allowance , his cases are verie profitable , and apt for the title to which they are applyed , and so compendiously collected , that a man may by them in few houres gaine great knowledge . certaine rules to be obserued of the student in the reading of his bookes . the fourth chapter . no actions haue good successe , which be rashly and ex abrupto vndertaken wythout direction : for where aduise faileth , there fortune is blind , and not in other cases , and it is farre greater trauaile to atchiue any matter of difficultie by selfe labour , then by the prescription and instruction of others : wherefore it shall not be inconuenient to propose certaine rules , by which the student may hold an euen course in the study of the law. in the vnderstanding of the law the student must not vary or depart from the proper sense & signification of the words , vnles therby some absurditie , inconueniēce , or vniustice may appeare : for otherwise the propertie of wordes is strictly to be maintained , & reteyned . therfore let him be diligent to search out the proper sense of wordes : for as celsus saith , scire leges non est verba earum tenere , sed vim et proprietatem , a to know the law is not to know the wordes of the law , but the force and property of the wordes : for wordes are as it were seruants to things , because they were first inuented for the plain & perfect discription of things : for though nature do make soundes , yet industrie doth coyne words , without which our vnderstanding might be contemplatiue , but not practicall : for without them the vnderstanding is in maner bound , or maimed , because without freenes of speech , and plentie of wordes it can not display it selfe , nor extend his force to the opening & discouerie of any mean matter . and as art maketh the mind to speak , so the mind or vnderstanding maketh art to write . certaine it is , that without words a mans meaning may not be certainly knowen : of wordes some be artificiall , & some inartificiall : inartificiall are those which the common or vulgar sort of men do vse for the deliuerie & declaration of theyr intentions and meanings , seruing not for the illustrating of artes and sciences , but only for mutual conference betwixt man & man : artificiall , are these which the inuentors of artes haue deuised for acquainting the mind with the rules & mysteries of their arts , because words fitly & accomodatly vsed are the verie images and representations of thinges , which do lead the vnderstanding as it were by the hand , to the apprehension & perfect knowledge of the thinges them selues : wherefore in this respect diligence must be vsed of the student . 2 where the law is obscure , that sence must be taken which is least ▪ preiudiciall : for euery perfect speech of man consisteth of two thinges , of wordes , and of meaning , and when both the wordes & meaning are plaine and manifest , he that doubteth of any thing is rather foolish , then curious : but when the wordes be directly repugnant to the meaning , the whole proposition or assertion is meerely voide . obscuritie in writing or speaking , is when the sense can not be gathered , 1. by that which of the most part of men is vsually done , 2. nor by that which was vsually done by him that vttered the wordes , 3. nor by the custome of the countrie , 4. nor by the common vse of speech , 5. nor by the pr●misses nor by the ●●quel : and therefore if a man will hyre workmen , and will couenant wyth them that he will giue them as much as other men of the same village or parish , if some giue by day iii. pence , some vi . pence , some ii . pence , the couenantor in this case shall giue but ii . pence : aa because in obscuris quod minimum est sequimur : otherwise it had bin if it had bin plainly & expressely said ( as much as any other man of the said village or parish . ) so if a man promise vpon good consideration to giue to euery of the canons of a cathedrall church a quarter of wheat euery yere , and the number of the canons be augmented : yet the graunt is restrained to that number , which was at the time of the grant . aaa yet the law doth sometime construe deuises by mediocritie : b as if a man deuise to one two cuppes for his table , without expressing the mettall whereof they shall be made , they shall neither be of gold as the best mettall , nor pewter as the baser mettall , but of siluer as a mettall betwixt both : but that is , because euery deuise ought to be interpreted for the benefit of the deuisee , & yet as neere the meaning , & as farre from the preiudice of the deuisor as may be : therefore in deuises not words but meaning is followed , & a transposing of the wordes may be vsed if the meaning require : confused thinges must be distinguished , generalitie restrained , seuered things must be conioyned , implied things must be explicated . but in bargaines & contractes we must not respect so much that which was meant , as that which is spoken , because bargaines do properly consist in facto , & therefore in matters of contract a mans will is rather gathered by his wordes , then by his meaning : for , propositum in mente retentum nihil operatur , and as the wordes do sound , so his will is to be construed : and the wordes of the contract be the substance of the contract . 3 when the opinions of the learned in the law are repugnant the one to the other , it is the safest and best way to follow that opinion which is most agreeable to reason : for if contrarie reasons be probable , the better of them is to be chosen , and that which is more consonant to equitie : and where the reason of the law doth faile , there the disposall of the law doth faile : bb as of the contrary part where , the reason of the law taketh place , her the law taketh effect . c but if contrarie reasons doe seeme to be of great force , wherof the one tendeth to a publique good , the other aymeth at a priuate aduantage , that which is for the common good is more to be imbraced , fauored , & followed : for that which is good to many must needes be good to euery particuler person : and these things which are generally expedient , ar with good reason preferred before such things as do peculiarly profit . d but that reasō which is for the profit of a priuat man , and doth not preiudice cōmon right , may well be admitted . publike profit may be considered after fower maners , 1. when profit doth accrue both generally & particularly , as by the gouernment of magistrates , e 2 , when the profit is general , but not particuler : as locupletatio aerarij , the enriching of the treasury in cities & townes corporate , f 3. when the profit is priuate , but yet a publike good commeth of it : as the dowry of women , and the infranchising of citizens , 4. when it doth so profit particulerly , as that it doth not disprofit generally : g. as when we say that it is not expedient , that men should mispend their goodes , or throw them into the sea : that reason therfore is of more force in law , which is more generally commodious . atque ipsa vtilitas iusti prope mater et aequi . h it is good therefore for the student to fift out the reason of the law , & that by very diligent & earnest search : for the reason of the law is the life & soule of the law : wherfore not without good cause is bartolus reproued of the ciuilians , i for that he denied reason to be of the essence of the law : and surely i thinke there is no law wholy without reason , i mean which was not grounded vpon reason at the fift making of it . yet i will confesse that the reason of many lawes is so obscure , and vncertain , that it can hardly be found out , conceyued , or deliuered . the law is the inuention of wise men , who would not make any thing publique without reason , though the reason of the law may be hid from him , from me , and from a number of men : neither are we to think that any law is therefore without reason , because a reason therof can not be rendred : for as cicero said well , iniquum est quod accidit non agnoscere , si , cur id accidat , reperire nequeamus , l it is an vniust thing not to acknowledg the thing which hath happened , because we cannot find out the reason , wherfore it happened . it is not good to affirme that the lawes made by wise men do want reason , because we can not discouer the reason . but as i do not like plato his conceit , whē he forbiddeth yong men not to inquire of the reason of the lawes : m so to be too curious in the inquisition of it , wil be rather matter of trouble then of praise to the students : therfore it is a point of humility & modestie to think those things , which by graue & sage men haue bin established for law , not to be without reason , though the reason therof can not be discerned . and that which gentilis wittily speaketh of the ciuil law , may be affirmed of the cōmon law of this realm , rationem vbique habet , sed non vbique conspicuam . n castrensis is so peremptory for the reason of the law that he boldly auoucheth , that he neuer saw any law , wherof he did not see the reason . o theodosius did ascribe such aucthoritie to the deceassed professors of the law , that he would haue their answeres in doubtful matters to haue the force & strength of a law. and the same thing was done by augustus , as pomponius reporteth . p but yet i could wish , as gentilis q & alcitat r do require , that the aucthorities and cases of the learned writers of the law should rather be weighed , then numbred : that is , should rather be examined how they accord with reason , then how many they be in number : but if it so fall out , that two men of great iudgemēt do dissent , his argument is to be held for law , which reason doth informe & enforce to be agreeable to the truth : for no man will intend the meaning of the law to be , that the opinion of any man , though singuler in knowledge , should be preferred before the truth : for both the lawyer & iudge are the ministers & dispensers of iustice , & of the giftes of god , & are seruants to god him selfe : but the seruant must not do that which the master will not permit : but neither iustice nor god will do any thing against the truth : therfore , neither the lawyer nor iudge ought to do any thing against the truth . if iustice should iudge according to opinion , & not according to verity , it should thē do iniury , which thing is against her nature . and though many arguments be made for the preseruing and maintayning of the rigor of law , yet none of them ought so to be admitted against iustice and truth , as that occasion of iniurie may seeme thence to arise , whence right and equitie should proceede : ſ because no reason of the lawe , no course of equitie will tollerate , that those things which haue bene conueniently introduced for the profit of men , should be against their profit with a more hard and rigorous interpretation restreined . for these things which be established for a certaine end , ought not to worke the contrarie . t but some perhaps will obiect , that a iudge ought to determin and a lawyer ought to argue , according to the knowledge which he hath by the written lawe , and that is the reason and conscience of a lawyer , as he is a lawyer . but surely such arguments are not proofes , and such iudgements if they be not according to the truth of the thing it selfe , in reason are not sound nor maintenable . for euery proofe should be a true assertion , and euery iudgement the rule of truth . and how can that seeme iust according to the lawe , which appeareth to a mans conscience to be vniust . surely the light of the truth in an honest mind dimmeth and obscureth all cauils and quillets : and it is a friuolous dreame to thinke , that a lawyer hath one conscience as a lawyer , and an other conscience as a christian . for he hath but one soule , and knowledge of the truth , and therefore but one conscience : for conscientia is cordis scientia , and no reason will require that a lye , by any distinction shoulde bee preferred before the truth . the principall meane to enquire after the truth of euery thing , is to examin of two or more contrarie reasons whether is more probable . that which is plausible to common vnderstanding is tearmed probable , and whē the words of a couenant or deuise be cleare & manifest , we follow the literall sense of thē without farther inuestigation , because in things that be certaine , and apparant , there is no place for coniecture : but whē the words be obscure , or whē some thing is omitted , least the graunt , couenaunt , or deuise do faile , we haue alwaies recourse to that which is more probable , and wee imagine that more was spoken then written , and more intended , then vttered . and it is not conuenient , that in the affaires of men , the interpretation which dependeth vpon probable coniecture should be excluded . a a thing may be probable many wayes , first , by the common vse of speech , c secondly , by comparing the consequent with the antecedent , thirdly , by the circumstances of a mans actions , fourthly , by the concordance or agreement with the lawe , because euery one is intended to cōforme his wil according to lawe , vnlesse the contrary be proued : d but it may be sayde , that where the words of the law do faile , the law it selfe doth faile . e and words were inuented , that they might shew the meaning of the parties , therefore we must not regard that which is probable , but that which the words do sound . f to this i answere , that there ought to be no departing from the words , and from the true propertie , vnlesse there bee apparant proofe of an other meaning : g but where an other meaning doth appeare , there the toung yeeldeth to the heart , and the words do giue place to the meaning . h the words onely in such case are not to be regarded , but wee must consider what was meant by the person , quantitie , qualitie , place , time , precedents , consequents , and other circumstances . i and where it is sayd that if the words faile the lawe doth faile , it is true , vnlesse there bee some secret intent of the lawe to the contrarye , k the ground whereof is probabilitie . and though a mans sense and meaning be declared by his words , l yet because there bee more thinges which wee thinke , then which wee speake or write , the speech of a man is not alwayes the touchstone of the minde , but the concurrence of circumstances : and though a mans words ought to be taken most strongly against him , m yet they are wel to be sifted & examined n least the interpretation bee too burdenous in some case , o and so vniust against the partie . a mans speech doth consist of words and meaning , euen as a man himselfe doth cons●st of bodie and soule , or to make the matter more plai●e , the words are but the superficies , and the intent or meaning is the substance . p and the lawe traceth the meaning of a man by the circumstances , euen as the hunter traceth the hare by the print of his foote . q yet i would not that a mans deede or act in the countrie should be made frustrate by some iewish or misticall interpretation : but such an intendment must be taken , as the words being compare● with circumstances will yeeld . for words are not by violence to be racked , but by circumstance to be ruled . and wee must alwayes so interpret , that a mans right may be vpholden . but it may be further obiected , that in graunts and contracts , and in other priuate affaires casus omissus habetur pro omisso r and the inte●●ion or meaning of a man , which is not apparant and manifest , is as a child vnborne , which is of no account till he be brought to light . ſ for a mans speech is an externall act , which is ordained for the declaration of his inwarde meaning , t and therefore words are sayd to be the limits of our meaning . u to answere directly , these words ( casus omissus &c. ) are to be vnderstood onely in such cases where a thing is omitted , both in respect of the not expressing of it , and in respect of the not implying it . but where the lawe will vphold the meaning of the partie , there is no neede of words : and though words were inuented , that they might expresse our thoughts , yet by them onely our meaning is not signified . but there be other signes x namely , the circumstances before the acte , in the acte , and after the acte . thus it is euident , that the best and most probable reason in the conflict of opposite arguments , is to be sought for by the student , and how it may be found . 4 the best interpreter of the law is common reason and intendement . a wherefore if any one mans opinion do differ from common reason , let the student auoide it . neither are such things without cause to be altered , which haue alwayes heretofore receiued a certaine interpretation . b neither is the common lawe any other thing , then a determinate order established and ratified by common consent . wherefore bodinus saith not well , who putteth this difference betwixt a lawe and a custome , in that a custome is accepted by the plausible agreement of the multitude , but a lawe springeth vp in a moment , c and is commaunded by the authoritie of the rular , many times against the liking of them that are bound by it . for common lawe is that which is made and approued by common allowance , and therefore it is lawe , because it is commonly vsed for lawe . wherefore athenaeus d and e polibius do vpon good ground & reason reproue the lawes of plato , because no nation of greece could be perswaded to vse them : but as plato faigned lawes , so he might likewise faigne men to vse them : therefore horace sayd rightly , quid leges sine moribus vanae proficiunt ? lawes without vse are vaine and profit not . f but here it is good for the student to be assured of what nature & qualitie the thing is which i call common reason or intendement , for that may seeme to offer doubt , whether we ought to ascribe common reason and opinion to the number of authors , or to the worthines of them , or to the perswasion of reason which doth concludenter demonstrare to the sense & vnderstāding of the most part of men of indifferent capacitie . i would haue cōmon opiniō takē according to this last brāch . 5 the things which be odious in lawe must be restrained , & the things which be fauorable must be enlarged . priuat customes are odious in the eie of lawe , & whatsoeuer swarueth frō common right : g for the cōmon law was framed in fauour of publike tranquilitie , & therefore the departure frō it must needs be accounted odious . h the lawe is more proane to acquite , then to condemne : i and because it is better with the restraint of an odious constitution , to absolue one that is giltie , then with the enlarging & amplifying of it to condemne one that is innocent , k therefore there is nothing that requireth more diligence & consideration , then to deale warily where there is great danger to any partie , that a man may not rashly determin of a mans credit , bloud , or life : sith these things be of that qualitie , that being once lost , they cā neuer be repaired . l but to know whether things be fauorable or odious , the things are not to be cōsidered in thēselues , but theffects which proceed of thē m as dower is fauored in respect of the widowhood , & desolatenes of the woman whose husband is deceassed . n 6 it must likewise be obserued , that when a thing is forbidden , all things that follow therof are likewise forbidden : as on the contrary part when a thing is granted , all things are implicatiuely graunted with it , whereby we may attaine to the thing graunted : o and if the beginning of things be forbidden , the end also is forbidden according to the rule , qui meditatur principiū meditatur etiā finem , p and things are principally forbidden for the end to which they are directed . but here a distinction is to be vsed , for where the consequēt is of it self auaileable , and doth not necessarily depend vpon the power and vertue of the antecedent , it may be of force , though the antecedent be forbidden , q for then it is without the cause of the prohibition : but if it depend essentially vpon the antecedent , it is otherwise . for the better vnderstanding of this rule , it is good to be seene what may properly be sayd a principall thing , and what an accessorie . that is principall which is of greatest moment : an accessorie thing is that , which by consequence goeth with the principall . if the queene graunt vnto one cognitionem causae , her highnes graunteth vnto him the hearing of the parties , and the examination of witnesses . so the margarites or pretious stones that be in gold or siluer , do yeeld vnto it , and do passe with it , because they are but the ornaments thereof , and were applied to the decking and beawtifying of it . an accessorie briefely may be taken to be that , which is adioyned to a thing , and is lesse then the thing to which it is annexed , either in substance or in valew , or in respect both of substance and valew . 7 the validitie of an act must be especially fauored , vnlesse there be a manifest nullitie in the proceeding . r therefore whensoeuer the nullitie of an act shall appeare by the proceeding of the parties , which is sayd to be euident , and notorious and excluding all cauill , ſ it is to be held as voyd , but if the nullitie proposed do not so appeare , but requireth a deeper search , because many times error is obiected that the sute may be protracted , there consideration must bee vsed . but in doubtfull causes interpretation must bee so made , that the acte may rather stand then fall . but the obiection of error is alway to be fauored , when the error assigned doth concerne the figure & solemnitie of iudgement . t and therefore he that will dispute of the validitie of an award or iudgement , ought to be warie and carefull , that he put the axe to the roote , and that he first examin the iurisdiction and power of the iudge , because that being the basis and foundation of the iudgement , if that fall , the rest cannot stand . it is therefore to be cōsidered whether he were a competēt iudge by reason of the cause , of the parties , of the time , and the place . for by reason of the sute or cause , a iudge may be incompetent , as if the cause belong to a meere iurisdiction , and the iudge be only a magistrate in a certaine corporation : or if the cause be ciuill , and the iudge who taketh connusans of it be iudge of gaole deliuerie , or if the iudge be secular , and the cause ecclesiasticall , or if the iudge haue some other limited iurisdiction , and he taketh connusans of a cause not cōprehended within the lists & bounds of his commission , he may be incompetent also by reason of the place , as if he iudge of causes without his territorie , or circuite , or els within his territorie , but yet in a place exempted , he may be incompetent by reason of the time , as if he did iudge before he had his commission , or after his commission expired , or if his iurisdiction were suspended , as at festiuall times , which wee call dies non iuridicos , or at such a time , when a greater iudge was present : or if the iudge were called to a higher place , or if he were forbidden to exercise his power . and also the person & qualitie of the partie is to be considered , because some by reason of a legall impedimēt are vncapeable of the aduantidge of lawe , as these that are outlawed , excommunicate , and out of the queenes protection . and there can be no fast roote or sure ground of their proceedings , for such are to be denied audience , because their offence & default ought not to find patronage . likewise there may be a default in the party making an attorney , as if he could not make an attorney in that cause , or else by reason of the attorney himselfe , as if he be vncapeable of such an office as being not lawfulby aucthorised . but if a iurisdiction be giuen and graunted to one , it is to be intended to be giuen him accumulatiue , & non priuatiue , rather to enlarge , then to diminish his power . and though a iudge of the gaole deliuery being appointed and ordained by commission to the hearing of causes criminall , may not principally inquire of causes ciuill and pecuniarie , because it is a iurisdiction limitted , yet incidently and as it were by the way , for the better examining of capitall crimes , hee may take notice of such things . but if the processe and iudgement bee framed against one , who is not onely not subiect to his iurisdiction , but is also free from the iurisdiction of euery man liuing , as if the partie be dead , concerning whome , no acte can be conceiued or vpheld , the iudgement is voide . thus haue i shewed to the student in so generall manner as the order of this treatise doth require , and likewise so particularly , as to his vnderstanding may be playne and manifest , what course hee ought to take in examining the cases , reasons , opinions , arguments , proceedings , and iudgements , whereof he shall finde great store and aboundance in his bookes . now i will by fauour discend to describe and delineate vnto him briefely ( for it is a matter which may be handled plainely and in fewe wordes ) what course hee ought to obserue in the exercise of his studie . of the exercise and conference which the student of the lawe ought to vse . the fifth chapter . every art and knowledge produceth effects , and like a good weapon is vnsheathed & vsed in time conuenient , otherwise it would be quickly ouercast and eaten with rust . but there is nothing that with so much brightnes and glory illustrateth our knowledge , as the orderly and iudiciall applying and accommodating of that which we haue read . for as a man knoweth by his bookes , so he is known by his practise , and by that which he is able to performe in the faculty which he professeth , and hee which knoweth to himselfe is not knowne of other men . wherefore i suppose it a thing of exceeding moment for the student , to demeane himselfe well in his conference and exercise , least the multitude of howers which he hath spent , do slip from him without vse , as the sand falleth out of the howre-glasse , when no man seeth or mindeth it . 1 the student of the lawe ought to haue great regard of his speech , and that he deliuer his opinion or argument in conuenient and orderly sort , not after a rude confused and impolite manner , and hee who is not onely wise but eloquent , is without comparison the best in all professions which consist in practise and in the forme of speech . therefore parents and tutors in the uniuersity should haue principall regard , that he who is to addresse himselfe to the study of the lawe , may be fitt with a plausible grace to discourse and dispute , and euen in the prime of our yeares this care must be had . for by nature we hold that fast which in our tender yeares we conceiue , and the worse sort of things do stedfastly abide in vs , the better is soone turned to worse , but in this matter it is good to follow the precepts of such as be neyther too curious nor too ignorant : for there is nothing more like a may-game then these vaineglorious persons , who haue decked themselues with a false perswasion of knowledge . to the student of the lawe i doe therefore thinke this course necessary , because he must liue in great celebritie in the assembly of the people , and in the middest of the common weale . let him therefore enure himselfe from his youth , to frequent assemblyes : let him not be afrayde of men , nor appalled or tymerous through a shadowed kinde of life , least when hee shoulde make vse of hys studye , hys eyes das●e at mid-day , and all thinges bee newe vnto hym , who seeketh that in hymselfe , which is to bee done and performed in a multitude : yet i woulde not haue hym too curious and deynty in hys speeche , for wee must vse wordes as wee vse coyne , those which be common and currant . and it is a great errour for a man to estrange himselfe from the common vse of speach , and to exceeding precisenesse in wordes , and stile , doth quench the heate of our inuention , and brideleth the course of our wittes . yet it is commendable to haue in our discourses both good wordes , and good matter . for cicero dyd not fight with armour of proofe onely , but wyth bright-shining harnesse , when hee did not onely gayne the admiration of the romanes , but theyr acclamation also and applause . but let good wordes conteyne in them good matter , that the argument or discourse may not shyne as it were by oyle and oyntment but by bloud and complexion . it is a feauer-like payne to endure a mans speech , loadned with superfluous wordes . in all thynges decorum must be obserued , least that which wee saye , doe turne to laughter , or loathing , and purchase the name of folly , a meane must bee kept , least our speach bee drye and faynt , or else too copious , and full of circumstaunces : yet it is better for the inuention to bee abundaunt and copious , then to bee leane and poore . wordes if they bee not vested with the substaunce of thynges , are of no force : rhetoricke which is the artificer of perswasion , if it bee seuered from circumstaunces , and raunge without learning by a facile kinde of sway . it is called atechina . if it bee applyed to the destruction of good men , it is tearmed cacotechina , but if it bee bestowed in vayne and superfluous matters , it may bee tearmed mataeotechina , a friuolous labour , and a tryflyng arte . there is nothing whiche more beawtifieth a mans speeche , then an apte diuision or partition of the thynges which bee handled , whiche doth ease the mynde of the hearer , prepareth the mynde of the vnderstander , and refresheth the memorye , and ( as iustinian sayeth ) the obscurytie which doth ryse of a confused text , is by separation and diuision dispersed and remoued . a and as the diuision of fields doth make the tillage more plentifull and sightly , so doth partition in the handling of causes , adorne and garnish them . these things may be aptly deuided which haue a seperate reason , and are sorted to diuers endes . 2 students shall not do amisse , if at certaine times they meete amongst themselues , and do propose such things as they haue read or ●eard by that meane to be assured of the opinion of others in such matters . by this course it may be brought to passe , that euery one may both better vnderstand , and more firmely reteine in memory the thinges which hee hath read or heard , and these things which be to good purpose vttered of others , hee may enioy as his owne . for priuate conference there is no time amisse ; adrianus the emperour ( as dio reporteth ) did handle and discusse pointes of lawe at dynner tyme. m. cat● euen in the court whiles the senate was assembling , did busie himselfe in reading : and surely , he that hath a minde to learne , may learne at euery place , and at euery tyme. 3 gentlemen students of the law ought by domestical moots to exercise and conforme themselues to greater & waightier attempts , for it is a point of warlike policy , as appeareth by vegetius to traine young souldiours by sleight and smal skirmishes for more valerous and haughtie proceedinges , b for such a shadowed kind of contention doth open the way , and giue courage vnto them to argue matters in publique place and courts of recorde , and it will not be amisse , sometimes to reason together , before men of more reading and greater iudgement which may friendly admonish them , and if they erre reduce them into the right way , it is good to bring such matters into question as be disputable , & may deserue argument , for it were a vaine thing to make a doubt of that which is plaine and manifest , as whether a rent or annui●ie ought to be paid to a dead man , or whether a man may commit an offence against the law without punishment and such like , wherein if a man should a●ke any mans opinion , hee might perhaps receiue such aunswere as labio did of iubentius celsus : aut non intellig● quid sit de quo me consulis , aut valde stulta est consultatio tua . c it is euident that one law may with good probability heare seuerall interpretations , but that sence is most to be imbraced which doth take away the occasion of doubting , the way to remoue doubt , is to examine well the reasons of the contrary part , wherefore baldus saith well . ferro aperire viam qui per contraria transit . d and to loose doubts is to find out the truth as aristotle saith , e but often conference and priuate debating of points of law , is the fountaine and originall of exceeding profit , for by it the wit , the memory and the tongue , are greatly furthered and holpen , and a man is made more ready & bold for publike matters , and the truth which is the marke of our study , doth more easily appeare . wherefore it is not vnfitly said of marcellus the lawier , that euery art by continual exercise doth receiue increase . f the wit if it be somewhat dull is by conference more sharpened , if it be ripe and ready it is a great deale more furthered , and to the memory nothing can be more profitable , which of it selfe is so brittle and tender , that vnlesse it be renewed with continual exercise , it will easily perish . and in vaine shall a man passe away the night without s●epe , or the day without recreation , in vaine shall he run ouer the volumes of the law , in vaine shall hee inquire after the opinions of the learned , vnles his memory do represent and readily offer vnto him these things being with great labor followed and atchiued when time and occasion shall require , i neede not shew how much it doth benefit & polish the tongue : for conference is the proper exercise of the tongue . i said that boldnes is procured by the frequent meeting and communication of students , & i wil auow that which i haue auerred , for as by degrees a man doth conuerse and talke with his companions and such as be better then himselfe , so by degrees he groweth bolder , which may bee gathered by that fable of esope : the fox did by chance mete the lyon whom he neuer saw before , & was so affrighted that his senses were almost lost , when he saw him the second time , he feared likewise , but nothing so much as before , but when he saw him the third time , hee was so little afraid , that he went vnto him and talked with him . i said further that it was the high way to discerne the truth of euery thing , and therefore archadius saieth of herennius modestinus that by much disputation he atteined to excellent iudgement , g wherfore let the student often resort vnto his fellow students , and amongst them let him be well aduised of his choise . 4 after priuate and home exercise , publike exercise must ensue , which must not be rashly done , but there must be both maturitie of yeres and aduise , least the vnripe braine doe make the forehead to blush , and in stead of praise we reape contempt . surely it is the beginning and foundation of impudency , for a man to because the opening of the dore , and the holding of the candle was not parcel of the consūmation of the act , and so was the law taken 3. of queene elizabeth . l an adulterer did counsell the woman to murder the child when it should bee borne , the child was borne and murdered by the midwife in presence of the mother , and by her commandment , the mother & the midwife be principal , and the adulterer but accessary , because his counsel was before the birth , and he was not cooperant in the act , but because the force of his perswasion and counsell did continue vntill the murder it being not countermanded by him , therefore he was held and adiudged an accessarie , but whether in the same case if the woman be admitted to be accessary , whether she should bee a traitresse or no , because the principall is no traytour , is a question which may well beare argument on the one side vpon the letter of the law , and on the other side vpon the meaning of the law , but of this matter i haue giuen the student a sufficient taste , and my meaning was in this treatise rather to drawe the lineaments of things , then to discusse them to the full . these may serue to prepare the minde of the student to handle such things as may seeme to be contradictory in the body of the law. 6 that the student may with more ease compas and accomplish the things precedent , it is good for him to haue great care of preseruing and continuing his memory , and therfore it is a profitable course vnder titles to digest the cases of the lawe , into which they may transfer such things as they haue either heard or read , neither is it safe to trust to other mens abridgements which are little auaileable to such as haue read little , but that which we by our owne sweat and labor do gaine , we do firmely retaine , and in it we do principally delight , and i am perswaded there hath neuer bin any learned in the law , and iudicial , who hath not made a collection of his owne , though he hath not neglected the abridgements of others , the memory is specially to be helped and increased of the student , for though it be the gift of nature , yet by industry it becommeth more excellent . for the integrity of the memory it is good to haue sound health & conuenient digestion of the meate , and a mind free from all other thoughtes , it helpeth it much to make good diuisions , for he that deuideth things aright , can neuer erre in the order of things . there is nothing surely which doth either more growe by diligence or by negligence more decay then memory , it is not good trusting to a suddeine memorie , but a nights rest will adde great strength vnto it . of what force memory is by nature and labor themistocles may witnes , who in one yeares space did speake the persian language verie perfectly and mithridates who did well vnderstande the two and twentie languages of the nations whom he did gouerne . m. crassus whiles he was president of asia attained to the fiue differences of the greeke tongue . cyrus did remember the names of all his soldiors who were in his campe. and if memory be necessarie for any science , surely to the profession of the law , it is of weightie importance , which because it doth pursue accidentia , and infinita requireth no helpe of nature so much as memorie , for the vnderstanding conueyeth the cases to that treasury ; out of which it draweth them as often as vse and oportunitie doth demande . but if the vnderstanding be good , and the memorie nought , a man shall be a lawyer to day and none to morow . wherefore in this part the student must excell , and that he may excell , he must labor , and that hee may labor , he must haue health , which i wish vnto him . that the vnderstanding of the student ought to be proportionable to the intendement of the law. the sixth chapter . the law considereth thinges according to publique respect , that is , as much as concerneth the common weale , not according to their contingencie in facto , which is euery mans obiect , and familiar to common sense , and therefore needeth not any artificall handling : and the students vnderstanding must be so sequestred & re●●ued from vulgar opinion : being the mother of error , and measuring thinges onely by the skinne , and colour , that he must comprehend & conclude many things , which are verie remote from the reach of the the senses , and from ordinarie apprehension : in which contemplation the common law of this realme of england aboue all other doth shew wonderfull sharpnes , and a most exquisite conceit , subtilizing thinges whereof common sense hath but a confuse knowledge , being guyded by the principall reason & inseperable truth of euery thing , which the vnderstanding straineth out of the secret and hidden causes of thinges : for as in hearbes , if we touch them outwardly , we do not finde nor feele any moisture in them , but rather take them to be vrie , vntill by pressing or distilling of them , we wring out a iuyce proper to their nature : so the law doth conceiue and conclude many things of ordinarie contingents , which common sense can not perceiue , but rather imagineth them to be clean contrary to the truth , whereas they may to a good vnderstāding easily appeare to be true by the certaintie & necessary coordination of their causes and reasons . that this may be made euident i mean to annexe some particulars for the explaning therof . 1 it is cleere by law , that a terme and a freehold of the selfe same thing may be both in one man at one time , yet if this be deliuered to a superficiall vnderstanding , it will seeme a paradoxe . tenant for terme of yeres maketh his executors & dyeth , the executors purchaseth the reuersion , in this case both the terme & fee-simple are in the executor to seueral purposes : for the terme shal be assets to the vse of the testator , & the fee simple free inheritance for the vse of the executor & his heires , a and if a man be seised of land of an estate for life , the remainder to his executors for yeres , he may deuise this term or assigne it . b and if lessee for yeres grant his terme to the wife of him in the reuersion , & to a stranger , the inheritance of the husband can not extinguish the moitie of the terme : because he hath the inheritance in his owne right , & the terme in right of his wife . c a man seised of land in right of his wife is attainted of felony , & the king seiseth the land pro vita viri , the king hath but a chattel & the wife the freehold : for if a stranger enter , & the husband dye , the wife shall haue an assise . d 2 likewise it will seeme strange , though in law & reason it be true , that a man should be remitted to his land to some intent , & yet not to an other : as if a recouerie be had vpon a false title against tenant in taile , the tenant in taile dyeth , the issue entreth , he is in of his first right against all but onely the recoueror . e so if tenant in taile discontinue , & his sonne & heir apparant disseiseth the discontinuee to the vse of the father , the tenāt in taile dieth , the sonne by m. chookes opinion is in his remitter against all , but onely the discontinuee . f the issue in taile which hath good cause of a formedon in the discender , is of couin that a. should disseise the discontinuee against whom he recouereth : he shall not be remitted in respect of him , but shal be accompted a disseisor : g but against all others it seemeth that he is remitted . tenant in taile maketh a feoffement to the vse of his wife and his sonne being heire apparant to the intaile and dyeth , the issue is remitted against all persons but onely the woman . h a title may be executed to some intent , and yet not executed to an other : and therefore if there be tenant for terme of life , the remainder in fee to a stranger , against whom a recouerie is had pro loco & tempore in a warrantia chartae , brought by a stranger of other land , he in the remainder dyeth , the recouerer is impleaded and voucheth the heire of him in the remainder , and recouereth , tenant for life dyeth , execution shall be ●ued against the heire of the land whereof his auncestor had a remainder , because there was a remainder executed in the father to this intent at the time of the warrantia chartae brought : i but to all other intents it was executory , for it was not executed that the wife might be endowed , nor for him in the remainder to bring a writ of right , k but the remainder in such cases is to some intents executed : for if he in the remainder had aliened his remainder in mortmaine , the lord might haue entred , l and vpon such a remainder the lord may haue a cessauit , m but the heire shall not haue an assise of mortdauncester . n 4 a thing may be extinct or in suspence in one respect , and in esse in an other respect : the father being tenant in taile alieneth the land with warrantie , and hath a rent charge in fee issuing out of the land of his sonne and heire apparant , which rent discendeth to the sonne , this rent is a good assets for the value in respect of the discontinuee : and yet it is extinct in respect of the issue . o a man seised of a rent seruice is bound in statute staple , and after purchaseth the land , out of which the rent is issuing after execution , the rent is extinct , as to the conusor , but in esse as to the conusee . p a corrodie is graunted to i. s. for life , who graunteth it backe to the grauntor for terme of yeares rendring rent , the corrodie is in esse as to the payment of the rent , but in suspence as to the taking of the corrodie . q and it was lately ruled in one caires case in the court of wardes , that if a man held land of the queene by a certaine rent , and the queene graunteth the rent to a stranger , who graunteth it to the tenant , the rent is extinct as to the payment , but in esse as to the tenure . the king seised of a forrest graunted the office of the forrester to one rendring rent , and he graunteth the forrest to an other , the forrester forfayteth his office , yet the grauntor shall haue the rent : r so that it must needes be that the office to the intendment of law is to that intent in esse . and if a man graunt to an other a rent out of his land in fee vpon condition , that if the grauntee or any of his heires dye , their heire being wythin age , the rent shall cease during the minoritie , if the grauntee dye hys heire wythin age , his wyfe shall haue dower , but cessabit executio during the nonage : ſ but in this case it seemeth that if the heyre dye during his nonage , the wyfe of the heire shall not haue dower of the rent : because it was neuer leuiable by the sonne , as it was by the father . a man seysed of two acres of lande hath issue two daughters and dyeth , now the rent is in suspence , as to one moitie , and in esse as to an other moitie . t 5 the intendement of the law is as stronge in a matter of law , as the trueth it selfe in a matter in facto : and therfore if a. be disseised , and hys brother maketh a release with warrantie to the disseisee , and afterward entreth into religion , this warrantie shall be a barre to a. although that hee be lyuing : u for a. may haue his land by discent , and therefore it seemeth to be reason , that the warrantie should discende vpon him as his heyre . note here of what validitie the intendement of law is touching a ciuill death . the wardein of the fleete who hath the office in fee dyeth seised , and the office discendeth to his sonne and heire , being then in prison , the law doth presently discharge him of imprisonment , because he is to be at large the better to looke to others , that be in pryson . w a man maketh a lease to one for terme of life , rendring the first seauen yeares a rose , and if he will hold the land any longer then seauen yeares , that then he shall pay foure markes yerely : liuerie is made , the lessee surrendreth at the ende of the first seauen yeares , his estate was adiudged to be but a terme ab initio , and no freehold , and the writ of couenant brought against him for not repayring was qui tenuit ad terminum annorum . a if a man make a lease of land excepting the trees which grow vpon the land , the trees are seuered in law : for he hath no reuersion of them , and if he sell them , and after the sale make a feoffement , the feoffee shall not haue them , because they were seuered by the vendition or sale of them , b for by the exception they were seuered from the terme , but not from the inheritance , but by the vendition they were seuered from the inheritance . if the baylife of the land doe demaunde a rent seruice , and the tenant denyeth it , and the baylife sayth that hee will distraine for it ▪ and the tenant sayth that hee shall not distrayne , wherefore the baylife dare not proceede further to take a distresse , for doubt of death , thys is a disseystn of the rent in the eye of the lawe . c and if a rent seruice be warranted to one , and the land doth escheat , the law as m. finchden thinketh transferreth the warrantie to the land . d 6. one thing in the vnderstanding of law may be of seuerall natures in seueral respects , and so one writ may be two seuerall writs to two seuerall intents : in an action of debt the declaration was of x. li. vpon a sale , and v. li. which he had deliuered to the defendaut to redeliuer , and it was held good , because the action was in the debet and detinet , and the warrantie of atturney and the essoine in this case shall be in placito debiti . e quaere , if a man lease land to one for terme of yeares rendring rent , and the lessor graunteth his rent to a stranger , and the lessee surrendreth ; this doth not extinguish the rent , for now it is a rent seck which doth not depend vpon the reuersion , f and so one man to the vnderstanding of law may haue seuerall capacities or respects : for if a man disseise a feme sole , being an inheritrix of certaine land , and after he taketh her to wife , and they haue issue , and the husband is disseised , and the disseisor leuieth a fine wyth proclamations , the husband dyeth fower yeres after the proclamations , and before the fifth yere be passed , the issue being of full age , and after the wife dyeth , and the fifth yere passeth , now the issue is bound as heire to his father , yet he may haue other fiue yeres , as heire to his mother , to be accompted from the death of his father . g so if i. s. be tenant of land , for terme of an other mans life , the remainder to an other for life , the remainder to the said i. s. for terme of his life , or in fee : and he is disseised , and the disseisor leuieth a fine with proclamations , and the fiue yeares incurre , now is i. s. bound for the present estate , but if he in the mesne remainder for life die , hee shall haue other fiue yeres for the other estate . h so if a man haue an estate in land for the life of a. the reuersion to himselfe for the life of b. the remainder to himselfe for the life of c. and is disseised , and the disseisour leuieth a fine with proclamations , he shal haue fiue yeares seuerally after euerie seuerall estate determined . i i. s. giueth land to a. his daughter in taile , and hath issue b. another daughter , and dieth , a. dieth hauing issue c. a precipe is brought against c. who voucheth to warrantie her selfe and b. as heires to the donour of the reuersion to haue the warrantie paramount , in this case is c. both the vouchor and the vouchee . k a terme is deuised to one who is made executor , he entreth , this is an administration and an execution of the terme vnto him , and he is both deuisee and executor . l a. couenanteth by indenture with b. that the sonne of a. shal marrie the daughter of b. and that therefore b. shall giue vnto a. an 100. li. & if the marriage did not take effect before such a day that then a. and his heires should stand seised to the vse of b. and his heires vntill the hundred pound be payed by a. his heires or executours b. dyeth , and after the marriage taketh not effect , the vse and possession of the land vesteth in the heire of b. but quaere saith brooke whether he shall be in ward or no , for he is an heire and yet he is a purchasor . m if i. s. be deane of p. i may giue him land to him and his successours , and to him and to his heires , there hee taketh both as deane and as a priuate man , and is tenant in common with him selfe : so if a rent charge be graunted in such manner , he shal ioine with himselfe in an auowry . n likewise the lawe may deny one a benefite as he is i. s. and yet allow it vnto him as he is executor to i. n. and therefore if an executour be outlawed , or excommunicated , which be disabilities in law : yet as an executour hee may maintaine an action , because he sueth and is to recouer to the vse of an other person . o and so an executour may haue an action of trespasse in his owne name , without nameing his companion in the executorshippe , if goods be taken out of his possession . p for he is possessed of them as a priuate man , but he is possessed of them to the vse of an other as executour . q and he need not in the case aforesaid name , himselfe executour . r for if he do , it may tend to the abatement of the writ according to m. kebles opiniō . ſ who saith that the possession of one of the executors ( his meaning is as he is executor ) is the possession of both , and herewith agreeth the opinion of newton , but by their fauors though the propertie of the executors in the goods of the testator be one and the same , yet the possession may be seueral , for he that hath the custody of goods may only be said to be in real and actual possession of the same , which kinde of possession is onely heare meant , for which cause a writ of detinue that concerneth the possession of goods , shall bee brought only against that executor who is possest of the goods . 7 t the law may worke seueral thinges in one instant as if a disseisor make a lease for yeres , and after he and the disseisee release , by one deed to the tenant for yeres , the law adiudgeth the release of the disseisor first to take effect , and after the release of the disseisee , for there is no priuity nor estate in the lessee , vpon which the release of the disseisee may inure , if the law doe not make such construction . u if the tenant for thirtie yeres make a lease for tenne yeares , and they both surrender to him in the reuersion , the surrender is good for both estates , and yet the lessee for tenne yeares , coulde not surrender by himselfe for defaulte of priuitie , but when the other ioineth with him , his surrender shall hee taken to goe before and the other to followe it . w likewise if the tenaunt for terme of life surrender to the grauntee of the reuersion , this is both an attournement and also a surrender . a so if a man haue land by discent by the mother side , and leaseth it for yeares , the lessee couenanteth and graunteth to pay yerely to the lessour and his heires xx . s. the lessor dyeth , the law in a moment will conuey the reuersion , to the heire of the part of the mother , and the twenty shillings to the heire of the fathers side , because it is a sūme in grosse . b 8 by intendement and admittance of law a thing suspended may bee reuiued , for if the donour disseise the donee in taile , and after maketh a feoffement , and the tenant in taile reentreth , nowe the feoffee shall haue the reuersion . c so if the heire in taile entreth vpon the discontinuee , and maketh a feoffement vpon condition , and for the condition broken reentreth , and after a recouerie is had by the discontinuee , the issue in taile is now restored to his first action , and the entaile is reuiued , for by the breach of the condition the feoffement is disanulled . d tenant for life , the remainder in taile , the remainder in fee to the heires of the tenant for terme of life , graunteth a rent charge in fee , this shall charge the land during his life , but it shall be suspended during the entaile , and after the entaile determined it shall be reuiued , and shall charge the heire of the tenant for life . e 9 the law altereth the nature or substance of a thing by matter , ex post facto , a man seised of lande in right of his wife , entreth into religion , the wife alieneth , the husbande is deraigned , the husband may reenter into the land . f so if a man bee indebted to a villaine , who recouereth in an action of debt , and after the debtour purchaseth the mannor to which the villain is regardant , and after alieneth it , the villaine may nowe haue execution . g if a man make a lease for terme of an other mans life rendring rent , and the arrerages incurre , the lessor shall not haue an action of debt , because he hath a franktenement in the rent , but if cesty que vie die , now is the freehold as to the rent conuerted into a chattell , and nowe he shall haue an action of debt . h likewise a deuorce altereth the estate of frankemariage into a bare freehoold . i if a man adde a condition to a single obligation after the deliuery , this maketh the obligation void , for now it is not his deed , and the same law is of the rasing or enterlining of a condition after the deliuery of the obligation . k if land bee giuen to one in taile , and the donee giueth the land to the donour , and to a straunger for terme of their liues , this is a discontinuance conditionall , namely if the straunger suruiue . l if the sheriffe attache one by force of a capias that is iustistable , but if hee returne a non est inuentus vpon the writ , he is a trespassour ab initio . m if i. disseise i. s. and leuie a fine to i. n. and after i. s. entreth vpon i. n. and enfeoffeth me , and i. n. entreth vpon me , and i bring my assise , and i. n. pleadeth the fine in barre , i may auoide the fine by shewing the matter aforesaid . n if a fine be leuyed of land in auncient demesne , and the lord disanulleth the fine leuied at the common lawe , he hath restored the right to him that leuied the fine . o if hee which abateth after the death of the tenant in fee simple make a feoffement vpon condition to be perfourmed within nine yeres ensuing , and after the feoffee leuieth a fine with proclamations , and the fiue yeares incurre the condition is broken , and the abator reentreth , now the heire of him that dyed seysed may haue an assise of mordauncestor against the abator , whereas before hee was bounde by the fine . p tenant in tayle maketh a feoffement and taketh backe an estate in fee , and bindeth him selfe in statute marchant , and then maketh a feoffement vpon condition , and after the recognisance is put in execution , and the tenant in taile dyeth , and the heire in taile being within age entreth for the condition broken , he is remitted , and the recognisans auoided , but otherwise it had bin if he had bin of full age : for then he comming in vnder the estoppell should not haue auoided the estoppel , nor by consequence the recognisans . q if my very tenant be seised of a manor held of the king in capite , and of an other manor held of me by knightes seruice , and he is disseised of the mannor helde of the king , and afterward dyeth seised of the manor held of mee , wherevpon i seise the body of the heire , and after the heire within age recouereth the mannor held of the king , nowe the king may haue my lande also in warde , because the heire shall nowe be adiudged to bee in by discent , and the king shall haue the wardeshippe of the body . r if my horse strike one , and after i sell the horse , and afterwarde the partye that was stroken , dyeth of the stroke , nowe shall the horse be forfayted as a deodand . ſ if a villaine inflicte vpon himselfe a mortall wounde , and the lorde seyseth his goods , and then the villaine dyeth , nowe shall the queene haue his goods because hee is felo de se . t a man administreth of his owne wrong , and after taketh letters of administration of the ordinarie , this shall relate to the death of the intestate . v the heire chargeth land which is after recouered in a writ of dower , the woman shal holde it discharged . w thus it is euident that the vnderstanding of the lawe worketh especially vpon relations on the first causes of thinges reducing through many straites of colourable pretenses and obiections the right of a thing to him to whom it appertaineth , according to the qualitie and exigence of the said right and title , so that the vnderstanding of the student when it entreth into the suruey of these intricate and hidden pointes , must bee of this abilitie to compound thinges , and to resolue them by imagination , to builde and destroy , and to turne sayle by circumstances and occurrences : for there is no case which accidents may not alter , but that one thing may counteruaile an other , or that a defect may be supplied by enforcement of reason , or that a wrong may bee purged and transfourmed into right , and blacke as it were changed into white , contrary to nature is the worke of intelligence reflecting vpon it selfe , some perhaps carry such spiced and scrupulus consciences , that they cannot abide any fiction or representation of a thing that is not in facto , but surely the supposall admittance and intendement of the law is necessarie , without which neither the science of the law , nor any other which consist in contemplation and abstraction of the essences of thinges from the confusion and mixture of circumstances can be of any woorth or force . and though i must confesse that euery thing , which is imagined to be done , and is not actually done is a phantasie , or an vntruth , yet this must be graunted , that , that which is not really done , and yet for auoyding inconuenience must be supposed to be done in facto is not a fault , though it be false . many things of thys kind & qualitie haue i before immediatly proposed which will be voide of all effect , if you take imagination from the law : let it therefore be considered what this imagination is whereof we speak , that by the description thereof it may be better knowen . it may thus appeare vnto vs , fictio a supposall or admittance of a thing to be is , legis aduersus veritatem in re possibili ex iusta causa dispositio , the disposing of the law against a matter of truth in a thing that is possible , grounded vpon iust cause : and there is great difference betwixt imagination and presumption , because fictio iuris the imagination of law tantum operatur quantum veritas ipsa , in the conclusions and decisions of law , and the law maketh sometime ens ex non ente in intelligence , though not in existence : but praesumptio stat in dubio it is doubted of , and yet it is accompted veritatis comes , the companion of trueth , qu●tenus in contrarium nulla est probatio : and the vse of supposall or fiction in the law is onely to supplie that quod desideratur in facto , which is wanting in fact , vt ex ipsa produc●ntur veri i●ris effectus , that true effectes and conclusions of law may proceede from it . the logicians say that the vniuersals are not in rerum natura , for if they were they should be monstra : for an vniuersal man , or an vniuersall tree comprehending in it all trees , is r●●her by vnderstanding to be comprehended then by sense to be compassed , yet i would not haue any imagination to be vsed : but where equitie and the orderly coherence of thinges doth require it . that the student ought well to conceiue the reason and iustice of the law in distinguishing and establishing the propertie and communitie of thinges . the seauenth chapter . the ende and effect of the law is to settle the propertie and right of thinges in them to whom they belong : and to iudge those things common which continuance of time and the entercourse of parties hath distributed & warranted to many , for if all thinges should be common , there should be nothing in order , and if nothing should be common , men would hardly be kept in duitie , for then should friendship , societie , and conuersation , the comforts of mankind faile , which would turne the whole common weale into a wildernes : therfore the most prudent and politike law-makers haue thought it most conuenient , that betwixt these two extremities a middle & euen course should be taken , whereby propertie myght be reteigned , and yet communitie preserued . plato , because once he was of opinion that all thinges ought to be common , hath therefore many blowes of his scholler aristotle writing against him in hys politikes , in which booke he hath a learned difference , that all that be common 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in vse but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in possession and title , which notwithstanding is not generally and indefinitely to be admitted , because then it tendeth to the ouerthrow and vtter subuersion of all common weales : but plato being after better aduised did retractate his former opinion , and laboureth to confute it : for in his book of lawes he writeth in one place , let euery man haue the free vse and possession of his goodes by law , whether he be citizen or stranger , a and in an other place : the distinction of demeanes , inheritances , and titles , is the foundation of all priuate contractes , which must be seuerely established by law : therefore meum and tuum ought to be in euery common weale . b and againe , let the inheritances and properties of thinges be definite and certaine in euery common weale , and let a certaine manner of purchasing them be prescribed by law. c thus it is euident that a distinct propertie of thinges is commodious and conuenient for the good administration of a common weale : it is of two sortes , eyther an absolute and indefeasible propertie , or els a qualified propertie and sub modo . an absolute propertie is such which is not in any sort subiect to the claime of any other : but a qualified propertie is that , which one man may claime after one sort , and wyth a certaine limitation , and an other may claime after an other maner , and wythout limitation : as if a man doe hyre beastes of an other to manure his land for a certaine tearme , hee that hyreth them hath a propertie in the beasts pro tempore , and therefore if the beastes during the tearme be taken away , he may haue a generall repleuine : d so he may haue of beastes which bee in his custodie and were committed to his keeping : e and so he may haue a generall writ of trespasse for the taking or dryueing away of beastes in his custodie , though the absolute propertie bee in an other man : but if hee whych hath the verie propertie doth take them , an action of the case will onely lye f and the bailie of corne or money , being out of sacke or bagge , hath so farre foorth a propertie in the thinge deliuered , that if the bailie be afterward attainted of felonie , he shall forfait the corne and the money : for it cannot be knowen whether they be mine or no. g and the lord may haue a repleuine of the beastes of hys villaine , or bondman , if hee haue bin seised of his villaine . h and it appeareth by diuerse bookes , that in an action of trespas , it is no plea to say that the propertie , that is the verie propertie , is in an other . i and it is sayd lykewise , that hee out of whose possession goodes are stolne , may haue an appeal : and he lykewise may haue an appeal who is the verie proprietarie . k and therefore it is a firme conclusion in law , that if sheepe be deliuered , or leased to one for a certaine time to marle his ground , the deliuerie or demise is a good plea in barre of an action of trespasse , or repleuine , because hee hath a propertie modo et forma against the baylor himselfe , or lessour , and may haue an action against him for taking them away wythin the time . l 2 and as the propertie of thinges may be particuler or generall , so likewise it may be ioint or seuerall : a ioint propertie is where two or more are ioyntly interessed in a thing : a seuerall propertie when they haue seuerall interestes in seuerall thinges : and therefore where the propertie or right in goodes and chattels is ioint , there the action which is brought to trie the propertie must not bee seuerall : and therefore in a writte of rauishment of a warde the defendant sayd that the plaintife had nothing in the seygniorie but onely in common wyth such a one , and this was helde a good plea , wythout saying that hee had nothing in the warde in seueraltie , or wythout shewing how hee helde in common in parcenarie , or by iointenauncie . m and so if the propertie bee seuerall , the action must not be ioint but seuerall : and therefore if in a writte of repleuine brought by two for certaine beastes , if the propertie of some of the beastes belong to one of them onely , and the propertie of some of the beastes to the other , the writte shall abate . n thus it is euident that the lawe doth maintayne and vpholde the ioynt and seuerall propertie of thinges , without which the common weale could not consist . now let vs consider how the communitie of thinges is lykewise respected by law. 3 a man may obserue and deduce hys accompt from former times , that it hath bin thought very necessarie and conuenient that mutuall commerce and trafique betwixt nation and nation should be entertayned & continued : o and therefore plato wisely admonisheth , peregrinorum commercia respub . né auersetur : and amásis the egyptian king was so glad of the commerce and resort of strangers , that he graunted to the grecian merchants beeing meere aliens , the vse and exercise of their rites and religion in their owne language : and to the ende that strangers might more commodiously practise their negociation in that realme , there was a certaine place appointed in that kingdome , namely naucrate for the receit of forraine wares , p which course is greatly approoued by aristotle , whose opinion is , that a principall citie must be erected in some conuenient place whereto thinges which be necessarie to thys lyfe may bee abundantly conueyed , and to which there may bee easie passing for them that be in league w●th vs , and hard for others : q and therefore sayth he it ought to be scituate neere to the sea . r and doubtles iust was the quarrell and complaint of the people of megara against the athenians , who had vtterly barred and secluded them from theyr hauens , and from all marting wyth them : ſ for he whych breaketh and dissolueth the reciprocall entercourse of nations , is an enimie to the societie of mankind . and strabo in hys last booke noteth it as the propertie of the barbarians , to repulse and keepe out of theyr territories all straungers , which custome is agaynst the lawe of nations , what a great point of inhumanitie is it to deny them the sea which by nature is open to all : t yea , it ought to be as common as the vse of the aire : u and all creatures may claime the free vse of that , as may appeare by that ●aying of daedalus : omnia possideat , non possidet aera minos . w though minos all things do possesse , the aire is not his owne . and the shore of the sea is by nature common to all , as neralius sayth , a and though empires and kingdomes be deuided , yet the vse of such things remaineth still in common , and therefore the saying of maro in the person of one of his traueilers was vttered with good reason : quod genus hoc hominū , quaeue hunc tam barbara more● permittit patria ? hospitio prohibemur arenae . but yet to enimies , because in them the league of friendship doth faile , the right of fellowship should not be graunted . for grossely are they deceiued , who would without restraint haue all things common , of which error the anabaptists are patrons , and do endeuour to ground their error vpon scripture , but falsely , for abraham and the patriarches were men of great riches : iosua did publikely and priuately distribnte his goodes to the people of israell . there be in solomon precepts of the proprietie of things . and god woulde not haue sayd , thou shalt not steale , if he would haue had all things common : for to steale , is to take away goods wherein others haue a propertie , and therefore theft is sayd to bee contrectatio rei alienae animo furandi , inuito illo cuius illa res est . b 3 but yet the rule of charitie and societie requireth that some things should bee in regarde of vse and benefit common to other , and therefore by customes of countryes , and by lawe , the offspring of these customes , the earth is in parte appropriated vnto some , and in parte participated and made common to others . therefore the common lawe doth well allowe and mainteine the common vse of certaine things , as namely , the vse of fishing in another mans pond , c of pasture for hys beasts in an other mans soyle , d of taking of an estouer or maintenance of wood in another mans groue , e of hauing a franchise and libertie in an other mans mannor or seignorie , f and lastly , of hauing a way through an other mans ground . g 4 some thinges there are , the propertie whereof the lawe can not vest in any , and therefore it leaueth them to the occupant , that is in playne tearmes to hym that can seise them , as things which are by nature ferae naturae , as beasts , birds , or fishes , being in theyr owne libertie . and as to the propertie it is not materiall whether they bee taken in a mans owne ground , or in an other mans , and such things be his no longer then they bee in hys possession or custodye : for when they haue escaped and recouered their naturall and pristinate libertye , then they cease to be his , but then the lawe vnderstandeth such things to haue recouered their naturall libertie , when they are eyther past the view , or els being in view they be hard to be followed , and recouered . the nature of bees is wilde , and therefore when a swarme of them lighteth vpō thy tree , they are no more thine before they be couered with thy hiue , h then hawkes , which haue made their neasts in some of thy trees , or doues in thy doue-house for though the yong birds be thine , whereof thou mayest bring an action of trespasse , quare vi & armis pullos esperueriorum suorum in bosco indificantium , or columbas columbaris sui caepit , which writ is not only maintenable , whē the doue-house is broken or the dore open , and the young doues be taken out of their neastes , but an action of trespas wil also lye for the troubling or hurting of the old doues within the doue-house , though they be ferae naturae , as wel as for chasing & killing conies in a mans warren , i yet he shall not vse this word suos , k in his writ , yet because he hath them by reason of his warren or doue-house wherein he hath a propertie , he shall haue an action for the chasing or the taking of them . l the nature of cranes and doues is wilde : neyther is it materiall that by custome they are wont anolare & reuolare , to flye from home , and returne home . and in such things which are came , and by custome are wont to depart and yet to returne , this rule is allowed , that so long they may be sayd to be thine , as they haue animum reuertendi . and felonie cannot be committed in the taking of beasts that be sauage , if they be sauage and vntamed at the time of the taking , nor for taking of doues being out of a douecoate , nor for taking of fishes being at large in the riuer , for such taking is not contrectatio rei alienae sed quae est nullius in bonis . m and the stealing of a doe which is tame and domesticall is fellonie , but then saith m. stamford , it seemeth that hee that stealeth it should haue certaine knowledge that it is tame n but if the doe be killed and then stolne , this is felonie . o and though a man may haue for the taking of his ferret an action of trespasse , because hee is profitable to take connies for the vse of his maister . yet because a ferret is ferae naturae , a man cannot haue an appeale of fellonie for him , no more then he may haue for the stealing of his hauke and popiniay , or such like , for such things are ferae naturae , and a man can haue no propertie in them , neither can he say in his writ feras suas , for that implyeth a contradiction , and because they are sauage , therefore they are not tithable . but when such things are made came by my labour and cost , the propertie of them is changed , and the nature altered , and then if a man take them out of my possession , i may haue an action . for a man may haue an action quare molossum suum cepit , because he is necessarie for the keeping of his house , or the keeping of his folde or a fish pond . p but the nature of hennes and geese is not sauage , and therefore if they shall flye away , though they be past thine eye-sight , notwithstanding in what place so euer they be , they cease not to be thine : and who so euer deteyneth them , is punishable by way of action . q 4 in the ciuill lawe there is this case , certaine sheepe were caried away from the shepherd of a. by wolfes , an husbandman of the next village hauing pursued them with great and strong dogs which he kept for the safetie of his beasts , recouered them from the wolfes , for the dogs did enforce the wolfes to leaue them , and when a. did demaund the sheepe , the question was whether the sheepe became his that did so recouer them , or remained still the sheepe of a , for the dogs did get them by a kinde of hunting : yet pomponius thought in this case , that as those things which are taken either on sea , or on land , do cease to be theirs that tooke them , when they are come to their naturall libertie , so by the same reason our goods takē away with beasts liuing either in the sea , or on the land , do cease to be ours whē the beasts that tooke them haue escaped our pursuit . and who wil affirme that that continueth to be ours which a bird flying hither and thether , carieth out of our barne , or out of our field , or by any meanes carieth it away from vs , if therefore it cease to be ours when it commeth to the mouthes of beasts , in common apperance , irrecuperably , it must needs become his who first recouereth it , and so be made proper to the occupant , euen as a fish , or bird , which hath escaped our power , if it be taken of an other , is streightway his , but he thinketh it more reasonable that it should continue ours , so long as it may be recouered . r 5 likewise a thing pro derelicto habita , waiued & forsaken , is nullius in bonis , as when a man for feare of a tempest casteth his things into the sea , or some danger being imminent , leaueth them vpon the land , or els of his owne free will leaueth that which is his owne sine spe rehabendi . ſ if a thing be fallen out of a chariot or wagon , it may be sayd to be lost or waiued . t and if a man haue a libertie to take wayfes and strayes in his mannor by prescription , and certaine beasts be wayued or do stray within the precincts of his mannor , and a stranger taketh them , he that hath the mannor shall not haue an action of trespasse generall for the taking of them before he hath seised them , u though the lawe be taken to be otherwise by some . w but 13. e. 3. a writ was mainteined by an abbot by reason of his franchise in the like case , but that was an action vpon the case , which prooueth that the propertie was not in him before seisure . x but it hath been held for cleare lawe , that felonie is not committed in the taking of treasurie found , wreck of the sea , wayfe and stray , and such like , vnlesse they haue been before seised , and the reason is , quia dominus rerum non apparet , ideo cuius sunt incertum est , and therefore the punishment in such cases is by fine , and not by the taking away of life and member . y such landes , the propertie whereof hath been executed by possession , cannot be wayued but by matter of record . z and it is a certaine rule and sound reason , that such things as cannot passe but by matter of record , cannot be wayued or relinquished , but by matter of record . * 6 such things are said to be nullius in bonis , which haue not from time out of minde bin knowne to belong to any man , as treasures hid in the earth , as when any money , gold , siluer , plate bullion is founde in any place , and no man knoweth in whome the propertie is . the lawe bestoweth it vpon the king , and it becommeth res fiscalis , parcell of the treasurie royall , and therefore it is called in the common lawe treasure troue , that is to say , treasure found , whereby it appeareth , that the king is not proprietarie of it , till it be founde , but it is before nullius in bonis . but if any mine of mettall be found in any ground , that alway pertaineth to the lord of the soyle , except it be a mine of gold or siluer , or a mine which hath vaines of gold and siluer , which shall alway be the kings in whose ground soeuer they be found : a and in auncient time , as m. bracton sayth , it belonged by the lawe of nature to him that found it : but now by the lawe of nations it is res fisci , and belongeth to the king : but heretofore it hath bene ruled quod thesaurus non competit regi , nisi quando nemo scit quis abscondit th●saurum : b for then ( as m. stamford collecteth ) it shall belong to him in whom the propertie was before , and if he dye before such finding , his executors shall haue it . c and because there might befall some square or variance betwixt the lord of the soyle , and the king about the propertie of such treasure , it is therefore decided quod thesaurus competit domino regi & non domino libertatis si non sit per verba specialia aut per praescriptionem . d 7 and things are sayde to bee nullius in bonis by common consent , as things consecrate and religious : for though the goods belonging to a church , as belles , seruicebookes , surplices , chalices , and other things , must be supposed in a writ of trespasse brought by the churchwardens to be bona parochianorum in custodia nostra existentium . e yet in that the lawe giueth the action to the church-wardens , and to their successors , for the recouerie of such goods vniustly taken , and doth giue the propertie to the parishioners , this properlie must be intended to be to the vse of the church , that is , to the vse of the parochians , as they are the church : for though it be true that rolfe sayth , 8. h. 5. that a church parochiall can not otherwise be intended , but a house made of stones , and walles , and roofe , and such materiall things which can not take by gift or feofment no more then a church conuentuall which lacketh a soueraigne : f yet it cannot bee denyed that the parishioners are incorporate for the purchasing of personall thinges , and that in regarde of such capacitie , they may be sayde to be the church it selfe , as well as the parson and his successors in auncient time were sayd to be the church in the purchase of land and realties , which may appeare by this case : land was deuised to one for life , the remainder to an other for tearme of life , the remainder to the church of s. andrew in holburne , this is adiudged to be a good deuise , g and this must needes goe to the parson and hys successors , because the church-wardens and parishioners were neuer admitted by lawe to purchase land to the vse of the church . and belknappe sayde , that the cloathes of a dead man being found dead in the field , did belong to hys executors if hee had made a will , otherwise that they should be deliuered to the church for celebration of diuine seruice for the soule of the dead : for his meaning is ( as i take it ) that the ordinarie should intermeddle with them for the disposing of them . h and if a man take a coate-armor which hangeth ouer a dead mans tombe in a church , the enditement must be bona executorum , of the dead man : but if a graue-stone be taken away , the enditement must be bona ecclesiae . i that the words or termes vsed in bookes of lawe ought to be vnderstoode and applied as the lawe doth expound and conceiue them . the eight chapter . it is not possible for a man to be skilfull in any science , vnlesse he do perfitly know the words which do occurre and are often vsed in that science . i doe not meane wordes of arte onely , which by lexicons and explanatorie bookes may easily be conceiued , but such as do import and concerne the obiects of the science , about which it is principally conuersant . to pursue therefore briefely an interpretation of such words as in the lawe are materiall , i take it not to be dissonant from order to begin with the diuersitie of lawes , and to shew how these words , the lawe of nature , the lawe of nations , the lawe ciuil , the common lawe , the statute law , the customarie law ius merum , and aequum et bonum , are vsed in the lawe bookes , and are to be vnderstood , that so it may be knowne how and in what sort one lawe differeth from an other , and of what qualitie and condition that lawe is to which the student is addicted , or vpon which hee doth grounde his reason . the lawe of nature therefore is that , which the nature of natures , or the god of natures of the philosophers called natura naturaus , hath caught all creatures that haue sense by the mediation of nature created of which they consist : for this lawe is grounded in the roote and inwarde partes of nature , and therefore one sayeth well , habemus non scriptam sed natam legem , quam non didicimus sed hausimus : this is according to iustinian his definition , in hys institutes , to whom d. hotoman may seeme at the first to doe iniurie by obiecting that by this definition , to eate , to sleepe , to mooue , and to rest , are parcell of the lawe of nature : and though this be aunswered by some , a that these thinges are excluded from the definition , by this word ius , yet what absurditie woulde followe if such thinges shoulde bee graunted to bee parcell of the lawe of nature , why not as well as the repulsing of force , which apparantly proceedeth from the lawe of nature . for in truth there is no difference in the effect betwixt externall force , and the force whiche a liuing creature hauing sense should doe to it selfe , if it shoulde not performe these aforesayde actions of nature , as to eate , to sleepe , to mooue , and to rest , whereby nature is preserued and kept in time . this is playne in men , who by the ciuill lawe are sayde to kill , in denying nourishment to themselues , or others , whereby life and nature may be mayntayned . and iosephus writeth well , that it is against the nature of liuing creatures for any of them to kill it selfe . b but d. hotom . doth further cauill , following hys forefather valla , that lawe cannot bee applyed to beastes , no more then iniurie may be done vnto them . to this may be replyed , that iniurie in some sense may be done vnto them , if iniurie be taken for that quod inre non fit , which is not done according to that lawe , that is prescribed vnto them by nature . but if it bee done according to the rule of nature , though it differ from the nature of all other things , yet it is not iniurious or vnnaturall , for example . all birds except the cuckoe , doe foster and bring vp theyr young , these doe it by the lawe of nature , this doth it not by the lawe of nature , and yet doth no iniurie to her young , because shee doth it by the instinct and priuiledge of nature . this lawe is of all most auncient , beeing connaturall vnto vs , and following immediatly and indissolubly , the very principles of nature created , being an euen leuill , and most iust lawe in it selfe , though wrested and corrupted by the corruption of things : but in what kinde so euer it is vniformely executed , it is without all blemish of vniustice , as in mankinde it is vniformely apparant , that euery man is inclined by nature to prouide for posteritie . but when some prouide too much , some too little , some with pinching from themselues , some in seeking to make their children farre greater then themselues , this is not vniforme , this therefore is vniust : neyther doe i dissent from the opinion of them that thinke the lawes of moses doe imitate and resemble the simplicitie , integritie , and vniformitie of the lawe of nature . the lawe of nations is that which naturall reason hath propounded and appointed in common to all men : i doe not saye that nature hath appoynted , but nature with reason , or naturall reason . and it is also seuered from the lawe of nature , because it is appropriated onely to men , yet communicated to all nations , for there is no nation which vseth it not . the distinguishing of demesues , the diuersitie of realmes and kingdomes is parcell of the lawe of nations . likewise warres , contracts , and such like , are braunches of that lawe , the definition of it may be shortly this , a lawe in which all nations doe consent . but this pleaseth not bodinus , for saith he , all nations haue consented to idolatry , yet who will accompt that a lawe ? c but this definition is meant of humaine things , not of diuine , for who will so vnderstand it ? for all the nations of the world may not prescribe a lawe to god , nor capitulate any thing touching these thinges that concerne him , hee is a law-maker for hymselfe , and therefore hath sayde quod praecipio tibi hoc tantum facito , non addas , nec minuas . d but in humane things that whiche all nations doe allowe for a lawe that is for gouernment and publique respect ( for which intent the worde lawe is vsed in the definition ) that is to be receyued and acknowledged for the lawe of nations . the lawe ciuill i doe not take so largely as some doe interpret it , to bee a lawe which euery citie or people hath appropriated to it selfe : for though the originall denomination of it came from this word citie , yet by that was meant onely one citie where that lawe was practised and obserued , and that was the auncient citie of rome , for which cause the ciuil law is at this day called by some ius romanum . e and though many cities and commonweales be now gouerned by that lawe , yet therefore it can not be sayde to be ius ciuile , sith it had the name before . the common lawe is that which by common vse or common reason is made , not by common assemblie , as statutes or actes of parliament are established : and it differeth likewise from statute lawes in this , that in such lawes there are many times prouisoes and exceptions of certaine persons . but the common lawe bindeth all alike , and is not applyed and vsed as a plaister to one part , but as a strong purgation to all the partes of the bodie politique , and it may challenge a thirde difference , for that the common lawe ariseth from the people and multitude , but the statute originally from the king , because before euery parliament , writs of summons issue from the king for preparation to that solemne meeting of the states . againe , the king may dispense with penall statutes , f by clause of non obstante , but hee may not alter the course of the common lawe , g though the worde of common lawe extende by the generallitie of it , to any lawe that is commonly vsed in any place , yet vse hath restreigned it to the law of this realme of england , to the dominions of which it is confined , & beyond this neast streatcheth not her feathers . the customary law is nothing els but a custome long time continued , which may bee thus more fully defined , custome is a law not written , by the manners and vsage of a certain people or the greater part of them vpon good reason and iudgement , begun , and continued , and hauing the force of a law. i said ( a law not written ) because the bare memory of man is the register of customes . i said by the manners and vsage &c. ) because no custome doth grow without the consent of certains people or the maior part of them ▪ i said ( begunne vpon good reason and iudgement ) because such things as are introduced by error , are not to be obserued . i said ( continued ) because without diuturnitie of time , custome can haue no force or strength . i said ( hauing the force of law ) because it must bee of equall power in the place where it is vsed with the law. acustome against the law of nature is of no force , because naturalia sunt immutabilia ; a custome against the law of nations is of no validitie , because that is grounded vpon the law of nature . a custome against the law positiue is either against publi●● v●ilitie or priuate profit , if it be derogatorie to publike vtilitie , it is void : if it be onely against priuate profit it is good and effectual , and a custome once disallowed and defeated by law , cannot be recontinued or reuiued by any meanes . it hath bin questioned how many actes or deedes of men be required to bring in a custome , and the opinion of the most learned hath bin , that so many actes and so notorious , that the thing which is done may be intimated into the notice of the people , so that it may seeme to be allowed by the secrete consent or likeing of the people . but one notorious act cannot induce a custome , for that is against the name of a custōe : for consuetudo is nothing els but communis assuetudo . it hath bin also doubted whether an act contrarie to a custome do interrupt the custome , to which it may be thus answered , either the custome was not yet perfitte , and then it doth interrupt the custome , for the consent of the people did not yet euidently appeare , or els it was complete and perfit , and then it cannot be defeated by one act , but by so much time and in such maner as it was induced . ius merum is that law which hath no mixture nor regarde of circumstances , but groundeth a rigorous conclusion vpon thinges done without further examination how or why they were done , as if a man sell a lease of lande for yeres , and certaine cloth for tenne pound , the contract is entier , and if the title of the vendor be not good as to the lease , yet he shall haue the entire summe though the vendee be dispossessed of the lease at the time of the action brought for the money , h because in strict reason the contract was entire , so if a man sel his owne horse , and the horse of i. s. to a. for tenne pound , and i. s. taketh away his horse , yet an action of debt will lye for the whole summe , because the contract was in it selfe entire . i but if a man reteigne one in seruice for a yeare , for tenne pounde to bee payed at two feastes of the yeare , and the master dyeth after the first feast , and before the latter , the seruaunt shall haue his wages but for the first feaste , because the contracte was at the first time apportioned . k the law which is termed aequum & bonum , is that which doth mildely interprete , amend , and mollifie the hard and rigorus speaches , and censures of the other lawes : and is sometime sharpe and seuere , where the other lawes are remisse and conniuent : as may appeare by that saying of salust , sentencing the proceeding of the romaines in a matter of estate fit reus magis aequo bonoque quam iure gentium bomilcar comes eius qui romam ●ide publica venerat , & this is not so much comprehended in writing , as in the true vnderstanding of that which is written . it is necessary by the iudgement of an other law , which saith etsi nihil facile mutandum est ex solennibus , tamen vbi aequitas euidens poscit subueniendum est . l and againe iustus iudex aequitatem solutius sequitur . m this though it haue place somtimes in the precepts , rules , and cases , of the ciuil and common laws : yet it hath more affinity with the law of nature , and the law of nations , which are ignorant of the knots , and intricate points of these aforesaid lawes . now that we haue discoursed of these seueral lawes , it remaineth that we should shew what things are the principall obiects of the law , which may be reduced to two heads , for either they are real or personall . that which is reall , is either land , or that which issueth out of land : land is either firme and fixed earth , or that which is immediatly and coherently annexed to the earth , as houses . by the differences of this diuision a pischarie or fishing is excluded , whether it be libera piscaria , that is a libertie of fishing in an other mans pondes , or waters , which he hath in common with others . for xx . persons may haue a fishing after that sort in one riuer , and it is therefore called libera because none may disturbe them to whom the fishing belongeth : n or seperalis piscaria , which in our bookes hath seuerall significations , for either it may signifie a seuerall fishing , which one man alone hath in an other mans soile . o or els where a man hath a seuerall fishing to himselfe in his owne ground , and so it is a thing compounded of water and of earth , and therefore it is said , that where a graunt is made of a stagne or piscarie , the land passeth . p and in a formedon brought of a gorse , which in latin is called gurges , a gulfe or d●epe ▪ yarmouth , wherein fishes are commonly taken , the demaundant shall recouer the land and soile it selfe . q and it hath bin adiudged that a fishing so taken lyeth in tenure . r and a writ of aiell was brought of a fishing as a thing lying in demes●e . ſ and also of a stagne or poole : t but it cannot be termed land , because the water is not coherently fired to the soile , but otherwise it is of an acre of lande which is couered with water : for though that be ouerflowed with water , yet it is not naturally ouerflowed , as a ponde or fishe-poole is . v and therefore it is said 12. h. 7. that a man may haue a praecipe de vna acra terrae cum aqua cooperta , or de vna acraterrae generally at his election . w but a tenement cannot be said to bee freehold , except it touche the earth , and therefore a chamber built vpon a hallor parlor , cannot be said to bee freehold , because it cannot be perpetuall , for the foundation may perishe , and for that cause it cannot be demaunded by plaint or writ . a yet 9. e. 4. an exchaunge was made of lande for a chamber , b but that prooueth it not to be freehold , for an exchange may be of things of diuers natures , as of land for rent . c and so of a rent for a common . d a castell whether it bee a thing either of it selfe , or parcell of a seigniory or mannor may well be called land or freehold . e for though land may not be parcell of land no more then one leete or hundred may bee parcell of an other . f yet land may be parcell of a manor . g and a parke may be parcell of a mannor . h and land may be parcel of an honor. i and of a castle . k it is nowe shewed what may properly be called land , and it is not impertment to declare how many sortes of land , which we haue before called firme ground , may be demaunded by law , of which the law hath a seueral contemplation . land therefore as it is subiect to the consideration of law is sixefold , arua , florida , consita , compascua mineralis , in frugifera . arua is the arable ground which is tilled with the plough . florida , the garden ground , which procreateth flowers , herbes , & all such thinges as the bee doth feede vpon . consita , is the wooddie ground which is throughly replenished , with trees , plants , shrubbes , and such like . compascua is that which bringeth forth grasse and fodder . mineralis is that , wherein mines are conteigned whether they be regall mines , as mines of gold or siluer , or baser mines , as brasse , leade , copper , tinne , coales , or the like . infrugifera is that which is barren , and cannot be helped by manurance as the soile where rushes , weedes , ferne , and such things doe grow , and it is good to know the diuersitie of these seuerall sortes of grounde , that when such thinges are to be demaunded by writ , they may be demaunded by their proper names and kinds , and therefore if a feoffement be made of two roodes of land , and after a house is built there vpon , and part of it is become medowe , parcel pasture ground , and parcell wood , the demaund must be by the name of a house , medowe , pasture , and wood , l and there is a writ in the register , de minera plumbi & cuiuscunque generis metalli cum pertinentijs . m and ruscaria the soile where rushes do grow must be demanded by number of acres . n and where a stagne hath bin , or land couered with water , if the water be turned out of the course or dried , the land may be demaunded by the name of medow . o that which issueth out of land , or the profits of land are of three sortes , naturall , industriall , and artificial . the naturall profits of land are such as doe rise by the force and benefit of nature principally , and not by the diligence and labour of man , as apples , hearbes , trees , and such like . industriall profits are such as doe principally require the diligence and culture of man , which vnlesse it be continually applyed , natura nihil operatur , as corne , hoppes , woad , saffron , and such like . artificiall profits are these , which are reserued , graunted or issuing out of land by the acte of man , and the approbation of law , as a common of pasture , a warren , a rent , and thinges of like sort . common of pasture is of fower sortes appendant which is belonging onely to arable grounde , or to land that consisteth as well of arable ground , as of other thinges , as a mannor or measuage , but the appendancy doth principally grow by reason of the arable , and therefore it belongeth to such beastes onely as doe manure or marle the grounde , as horses , oxen , kine , and sheepe . p and if a man haue common to certaine arable landes in one village , hee cannot vse the common with beastes that manure his arrable in an other village . q and this ought to bee intended of auncyent arrable ground , not of land newely improued . r for continuance of time immemoriall maketh the appendancy , wherefore if the arrable land to which common is appendant , do by purchase come into the possession of the owner of the soile , in which the common is to be taken , the common is extinguished in his person : but if after the tenements be seuered by alienation as they were before , the common is reuiued by some aucthoritie , ſ because the same auncient arable land to which before it belonged still continueth : but by some it is otherwise , because being once extinguished it cannot be de nouo and in an instant made appendant . t common appurtenant is where a man prescribeth to haue common of pasture belonging to his land with all maner of beastes , it differeth from a common appendant in this , that a common appendant is onely to be taken by such beasts as manure or marle the ground , and by such number of beastes as will serue to manure or marle the ground , to which the common may be claimed , and belongeth onely to them as long as they are demurrant vppon the land : but a common appurtenant may be taken by all maner of beastes . a likewise a common appendant must be onely claimed by reason of land which may be marled or manured : but a common appurtenant may bee claimed by reason of a mesuage or house . b furthermore a common appendant groweth onely by continuance of tune , and the essence of it is prescription ioyned wyth appendancie , c but a common appurtenant may bee graunted at this day , and springeth vp in an instant . d and a common appendant can not be seuered from the land to which it belongeth : e but a common appurtenant may be seuered : f and they differ in this , that a common appendant must be vsed and taken , according to the rate and quantitie of ground , in regarde of which it is granted or claimed . g but a common appurtenant may be claimed for beastes sans number : for by the opinion of monbray none shall haue a writ of admeasuremēt of pasture , but he that hath a common appendant : h so that it may be probably collected , that a common appurtenant because it cannot be admeasured , may be wel enough sans number : and it may be likewise to a certaine number of beastes , for if a man at this day will grant one a mesuage with a common appurtenant for tenne beasts , i doubt not , but this is a good common appurtenant to the mesuage . common by vicinage is where two townships or moe do entercommon , and haue entercommoned from time out of mind , which is not to be vsed , by putting the beastes of the inhabitants of one towne , into the landes of the inhabitants of an other towne , for so they may be distrayned damage feasant : but they must put them in their owne fieldes , & if they stray into the fieldes of the other village , they must suffer them to be there , and they must put in their beastes , hauing regarde to the freehold of the inhabitants of that village where the common is to be vsed . i this kind of common mast . littleton maketh appendant , k but by other aucthoritie it is a feueral and distince kind of common . common in grosse is where a man claymeth to haue common for all maner of beastes , whether the number be certaine or vncertaine by speciall graunt in writing , or by prescription in him that claymeth or his auncestors , or they whose estate he hath not by reason of any particuler land : & this common may be vsed by the beasts of a stranger , which the proprietarie of the common may giest , as we tearme it . m a warren is a profite likewise which may be taken out of other mens ground by prescription , n and if the owner of the soile 〈◊〉 any one by his commaundement ; or as his seruant doe come vpon the soyle , and do ●hase the conies , he cannot iustifie the chasing , o though he may iustifie his entrie into the ground . p and a rent is also a profit issuing out of the soyle of a stranger , and sauoureth of the nature of the land ; out of which it issueth & therfore if rent issue out of land in auncient demesne , it is auncient demeshe , & so it is of rent granted out of land in gauelkind , it shal be deuided as the lād it selfe : q and so it is of rent graunted out of land deuisable by custome , though the rent bee graunted but of late time . r and so if rent be receiueable out of customarie land , as borough english , or where dower is to be had of the halfe part , and such like , the rent shall be of the custome and nature of the land , and therfore in the demaunde of such rent by praecipe , or in a repl●●in , the tenure by auncient demesne of the land is a good plea. ſ and so if land in taile be deuided amongest parceners , the 〈◊〉 reserued to one of the 〈◊〉 parceners shall be in 〈◊〉 , and of the same condition as the land was . t parsonall thinges 〈◊〉 thinges either in possession , or in action : thinges in possession are either goodes or chattels : the name of goodes is naturall and ciuill , by the naturall signification all such thinges are comprehended vnder the name of goodes , which may profite . u but as the name of goodes is taken ciuilly , it stretcheth to the whole he ape and bodie of a mans wealth , together with the charge and deductions : the reason of this differenceis because nature conside●●● thinges as 〈◊〉 they are : but a common weale or citie after such sort as is most expedient a and though the charge which followeth goodes do de●race somewhat from the value and estimation of the same , yet because it is to be discharged and satisfied out of the goodes , it is therefore ioyntly reckoned and considered with the goodes themselues . chattels which in the common law are tearmed catalla , are diuersly taken , for the profits of land if they be gyuen generally vnto the king by acte of law , they may be called chattels , and therefore the profits and issues of the landes and 〈◊〉 of them which flie for felony are forfaited vnto the king , vntill such time as they be acquited , and that by the statute of praetog . cap. 10. which sayth that the king shall haue omnia catalla talium fugitiuorum , and vnder the word catalla is comprehended the corne which was growing vpon the land , at the time when the forfeyture of the goodes did begin to take place , b and if a man be outlawed in an action of debt , and the outlawrie be retourned , so that the writte issueth to the escheator to seise the goodes , chattels , and land of the partie outlawed , the issues of the land shall be taken to the kinges vse vntill he haue sued his charter of pardon : c for an outlawed person shal not forfait any land , but the profites onely , as rent and corne , if he be outlawed in a personall action : otherwise it is if he be outlawed of felonie , for then the king shall haue the escheat of the land , or the annum , diem , & vastum . d but if the profites of land be generally graunted by the act of the partie , then they are the substance of the land and doe not passe without liuerie : and if a man graunt the profites of land , the land it selfe passeth . e and therefore it hath bin held by fortescue and danby iustices , that tenant in fee simple may graunt vesturam terrae , and the grauntee shall haue it after his death : but the tenant in taile , for life , tenant in dower , and tenant by the curtesie cannot make any such graunt , but if they dye the graunt is determined . f and if a feoffement be made of land vpon condition that neither the feoffee nor his heires shall take the profites , the condition is voide , and the feoffement simple and absolute , g and in such cases the profites of land may not be tearmed catalla , no more then the landes themselues : but vnder the word chattels , a lease for terme of yeares is comprised . h and likewise a right of action for goodes : as if goods be taken wrongfully from a felon : i or when one is indebted to a felon by bond : k or when he is accomptable to a felon by reason of any receipt , or otherwise . l thinges in action are such in which a man hath neither propertie nor possession : as if a man doe owe to an other xx . pound vpon a writing obligatorie , though he haue a propertie and possession in the m writing or charter , yet the summe contained is a thing in action , in which he hath neither propertie nor possession : and so it is of an aduowson when the church is voide of an incumbent : for the patron can not graunt it to any other , because then he should graunt but fructum aduocationis , which is a thing rather imagined by law , then subsistent by nature : and therfore the patron can not truely be said to haue propertie or possession in it . but though such thinges be to some intent merely in action , yet in some cases they are taken as thinges vested : and therefore if a man be seised of an aduowson , and the church become void and he dieth , his executors shall present , and not the heire , n for the aduowson in regard of the executors was a chattel vested in the testator . the king may graunt things in action , o and so may a common person in some cases : as if a man bring an action of debt against i. n. and the plaintife is indebted to me , and promiseth me that if i will ayde him against i. n. that i shall be paied out of the summe in demaunde : there it is lawfull for me to ayde and maintaine the plaintifie against i. n , because by the promise i haue interest in the summe demaunded . p and where a man is indebted to me in xx . pound , and an other oweth him xx . pound by obligation , he may assigne this obligation and debt to me in satisfaction : and i may maintaine suit for it in the name of the other . a table of certain words in the interpretation whereof the common law of this realme and the ciuill law doe seeme to agree . a. accusatio a bill of presentment , is a regular fourme of complaint , whereby offences , are opened and punished . acquisitum purchased , that is said to be whereof the propertie is translated from one to an other . affines are the kinsmen of the husband and the wife by mariage , so called , because two kindreds which are diuerse one from the other , are coupled by marryage , and one of them commeth to the borders or marches of the other kindred . ad nos pertinere is said that which doth belong vnto vs , eyther by way of propertie , or by way of possession , or by charge , or by administration . aedes , plural : a house consisting of diuerse rowmes , ( for domus may consist onely of foundation , wall , couer ) as the integrall partes , or as some briefly say , which consisteth of soyle and superficies , aestas sommer , a part of the yeare , which beginneth at the equinoctial of the spring , and endeth at the equinoctiall of autum , and so sommer & winter are deuided by vi . moneths . annona vittaile , is not referred onely to corne , but to the meate of the shambles , as well to fish as flesh . aperta vis , open force , which is manifest and euident , and doth not receiue any excuse of simplicitie . arborvento deiecta , hath not now the name of a tree , but the name of wood . arbor dum crescit , lignum cum crescere nescit . area , a floare is a vacant place , therefore called area quasi exaruerit , and were not able to bring forth any thing , it hath bin taken to be such an emptie place as doth lye discouered , locus ab aedificio purus , and hath no superficies : it is called a plot of groūd , court or yard . argen●um siluer , it is of three sorts , infectū , factum , signatum . infectum is that which is vnpollished and not adorned with any particular forme being in the ore , or bullion , newly seuered and singled from the ore . factum , is that which is beutified with some particuler forme , of which kind is a siluer cuppe , a siluer goblet , a siluer bowle , or a siluer mazard . signatum is that which beareth some speciall image or impression , & such is the siluer that is coined & accompted currant , argentum factū must be described by the kinde or shape , infectum by the weight , signatū by the number . arrestare , is by the authoritie or warrant of the lawe , to hinder that either a man or his goodes bee at his owne libertie , vntill the lawe be satisfied . artifices , artificers , are they which sell things laboured by them , and by their labour reduced into a particular forme , as shomakers , smithes , glouers , taylors and weauers , but artificium if it be largely taken , extendeth to the knowledge of euery arte : artifex and opifex differ , for in the one there is labour and iudgement , in the other labour only . assultus , an assault is a violence done to a mans person , by the person of an other man. b. bona fides a sincere conscience , excusing one of ill meaning . c. carcer is taken two wayes , for it is eyther locus custodiae , or locus paenae . cauillatio when a man turneth his speach ab euidenter veris , ad euidenter falsa . cella because there we do celare , we do hide that which we would keepe secret or close . ciuitas , a citie : it is taken materially , and formally : being vnderstoode materially , it doth signifie a multitude of houses made of stone and timber , being formally taken it is ciuilis societas quasi societas simul viuens , and not viuens simplie , but viuens bene , for as cicero saith , ciuitas sine legibus is corpus sine anima , and therefore aristotle sayth , non concedimus vt homo imperet sed ratio . cliens , is he that is in suite , so called quasi colens , and hee who dealeth for him in the cause is called patronus , quasi pater . codicillus , the declaratiō of a mās last wil , which without the iust solemnitie of a testament a man ob impedimenti necessitatem is inforced to write , but now the vse of codicills or testaments are without any necessitie confounded , which is contrary to lawe , for a ●odicill ought to serue necessitie , & not a rash onset . cognatio kindred , it is deuided into three parts ; 1. into parents , 2. into childrē , 3. into cosins . parents are they of whom we are begotten , as father , mother , grandfather , grandmother , and these which are in degree aboue them . children are they which are begotten of our bodies , as sonne , daughter , grandchild , and such as he vnderneath them , et nati natorum et qui nascentur ab illis . cosins are they which haue neither begotten vs , nor bin begotten of vs , but haue a common roote and originall with vs , as brother , sister , vncle , aunt , and such as do discend from them . colludere , is in fraudem tertij conuenire . commenda , the custodie of a church committed and commended to some . commodare is to graunt the vse of some thing for a certain time , there is difference betwixt commodare & mutuo dare , because cōmodare is to lend , to haue the same againe , as bookes , apparel , and such like , but mutuo dare is to trust , hoping to haue the like againe , as money , corne , salt , spices , and such like . compromissum , is the power that is giuen to the arbitrator , so called because both the parties doe promise to obey the opinion of the iudge , & therfore he is called compromissarius index to whom the matter is referred . communitas , a comminalty , is societas hominum communi lege viuentium . conditio , when a thing dependeth super casum incertum which may tende eyther ad esse or ad non esse . confessio , is double : either iudicial , or extraiudicial , iudiciall is that which is done before the iudge , extraiudicial which is done in presence of good and honest men . consentire , is to meete in one opinion . constitutiones , iudgements , rules and awardes concerning seueral matters whereupon this verse hath bin made . quatuor ex verbis virtutem collige legis , permittit , punit , imperat , atque vetat . controuersum ius , is that which is on both sides doubtful : certum ius is that which is certainly determined & is called positiue law. copulatiua the coniunction copulatiue is taken after two sorts , either in a deuided sense , or in a compounded sense , in a deuided sense as when i say , sir robert booke , and sir iames dyer were lord chiefe , iustices of the cōmon pleas , for they were not chiefe iustices together , but at diuerse times : in a compounded sense , as when i say two & three do make fiue . d. debito is he of whom we may against his wil exact money . decimae are of three sorts praediales , personales , and mixt praediales are they which arise of farmes or lands , as corne , hay , and the fruits of trees : personal which are due by personall labor , as by some trade , trafick , or mistery , mixt of which it may be doubted whether they be predial or personal as wool , lambe , milke &c. defensio , is the auoiding of a surmised & pretended offence . delegatus a delegate , to whom a cause is cōmitted to be determined and ordered . de plano , vel sine figura iudicij , vel summarie . deprehendere , is to take a man in ipso facto , so that he can neuer flye , nor denye the facte . discendere to discende or to spring of ones body , hereupon they which are borne of vs are called by the name of discendents , which with them that ascend make the right line , and the ascendents and discendents cannot marry together , wherefore if adam were now liuing he could not marrie a wife . dicecesis , the gouernment of a certaine prouince by the bishop , for as a territorie is so called , quatenus iudex ius terrendi habet , so a diocese as farre as a bishop hath ius administrandi sacra . dispensatio , a release of common right , either ex causa vtilitatis , necessitatis , or ingentis praerogatiuae meritorum . diuersa , such things whose subiect is not alike , or whose definition is not alike . dominium is a right to dispose perfitly de re corporali . domus instructa , a house furnished , if a man deuise such a house the household stuffe passeth , but not the wine that is within the house , because by common intendement a house is not furnished by wine . dubia causa , is that which is but semiplene probata . e. error , an opinion , whereby that is approoued and allowed to be true which is false , and that to be false which is true , and error may be two wayes , eyther in iure constituto , or els in iure quod quis in suo habet negotio , the one is an error in lawe , the other in facto . euanescit actio , the action doth faile , or abate , euanescit actio , by the power of the lawe , or of the iudges , remittitur actio , by the will of the plaintife . executor , an executor , which is after three sorts , executor testamentarius , executor legalis , that is to say the ordinarie , executor datiuus , the administrator . election , is the certainetie of our will , it may be of persons , or of thinges , places , or times : of things , as if a man should pay a summe of money , or els a horse or a hawke : or of persons , as if he should pay it to i. s. or to i. n. or of places , as if he should pay it at london , or at lincolne . or of the time , as the first day of april , or the second day of may. f. falsitas , falshood is immutatio veritatis cum doto & damno alterius , the chaunge of truth with falsehoode to the deceiuing and endamaging of an other man. fama , is a common report proceeding from suspition , and published by the voices of men , and it differeth from rumor , because that is a diuerse whispering of men , which is not so effectuall as fame . fama constans is that which is dispersed abroade neither by men vnknowen , nor of light credit , nec ignotis nec improbis . fide●●●●● is he which bindeth himselfe for another , quasi inssu alterius ponens fidem suam . fortuitus casus , a meare chaunce which by mans counsaile , care , and diligence can neyther praeuideri or praecaueri , be fore-seene or foreclosed . g. generalis lex , a general law which comprehendeth all cases , except such as be vnlawfull , and vniust . for there is nothing more absurde then to draw a iust lawe to an vniust interpretation . germani fratres are they which are of the same father & mother , consanguinei which haue the same father , but not the same mother , vterini which haue the same mother , but not the same father . gestores negotionū , factors or procurators be of three sorts , voluntarij which gratis and of their owne accord do regard the busines of their friend : necessarij which by obligation of their office doe follow matters : quasi necessarij , which haue some colour to deale in matters . graeca mercari fide . i. pecunia numerata with money paied in hand . i. illegitimi bastardes , whereof there be three sortes , incestuosi which be begotten of kinsmen and kinswomen within the degrees prohibited : nefarij , which are begotten of descendents , the chyldren of the same parent : spurij , or adulterini , which are borne in adulterie . iniuria whatsoeuer is done against law and right , whether by wordes , as by slander : or by deede , as by violence of hand . inops sine ope without helpe , which hath no wealth nor maintenance , whereby he may helpe himselfe . instaurare , is to bring a thing into his fourmer estate . insula , a plot of ground compassed on all sides with the sea , quasi in fato posita , it is of two sortes : perpetua , and natiua . perpetua , which hath bin from time out of minde part of a prouince : natiua , which hath bin lately discouered by the ebbe and drought of waters . interlocutoria sententia , which doth not define or determine the controuersie , for that is called sententia definitiua : an awarde . iudex limitaneus , which hath a limitted inrisdiction , as the lord in court baron who onely holdeth plea of a summe vnder xl . shillinges , and within the precinct of his mannour . iuramentum an oath , it is the affirming or denying of a thing with religious assertion , or attestation , and it is double : extraiudicial or iudicial . extraiudicial , as iuramentum conuentionale , when vppon a bargaine one doth sweare to an other . iudicial is of two sorts , necessarium , & suppletiu●m : necessarium , which is ad litem aestimandam , when witnesses are produced by the parties . suppletiuum , when the iudge doth enforce the partie himselfe to sweare for want of other proofes . inseperabile , that is said to be which is so inherent in the subiect , that it cannot be remoued , but they do either stand together or fall together . a thing may be said to be indiuidual or inseperable in many respects , 1. according to the fourme required in the act : and therefore if three be bound iointly , they must be sued iointly , 2. by reason of necessarie depending , and therefore the principal being defeated , the accessorie is also destroyed , because it cleaueth inseperably vnto the principal : and therfore if the marriage be not lawfull , the endowment cannot be lawfull , 3. by the meaning of the parties : as when a submission is made to two arbitrators , it is not to be imagined that the parties had an intent of seuerance , 4. by the nature of the thing : as when a thing will not suffer a particion : as a seignorie in grosse , a common , a condition , and so a iurisdiction is an entier thing : and therfore if a man will bring an action in a base court of a debt of 4. li. it is not good for thirtie shillinges , or a lesse summe : for a iudge or officer hath a precise power of the law , and if he passe his iurisdiction , his sentence or act is voide . integrum is that which is compounded of diuerse partes , for partes compacted & ioyned together doe make the whole , but an entier thing may be diuersly : for it may be eyther totum numerale consisting of many numbers lincked together , 2. totum vniuersale , as the general nature wherof the particulers ar comprehended : as homo of animal , auis of brutum , 3. totum integrale which is made whole and entier by many partes , and it is of two sorts , heterogeneū , and homogeneum : heterogeneum the partes whereof are not of the nature of the whole thing , as a house which doth consist of soyle , stone , woode , morter , & couer . homogeneum which is of the same nature with the whole , as water , fier , earth , wherof euery part hath the name of the whole . l. lacus is that which hath perpetuā aquam . stagnum that which hath water at sometime , and is sometime drie . fossa a receptacle for water made by mans hand . lana , wolle , which may be cloath , but yet is not wrought in cloath . and if a man by his will do deuise his wolle to any , be it wrought or not wrought , dyed or not dyed ▪ or be it spunne , it is comprised vnder the name of wolle , and it is called by the name of volle vntill it be made cloth . littus , that place to which the greatest floude of the sea do●h come . m. maiestas , a soueraigne honour : maiestie is said to be the daughter of honor & reuerence . marinum et maritinum do thus differ , marinum is that quod mare incolit , which lyueth in the sea , or which is bredde in the sea , maritinum quod mare accolit , which is adioyning , or adiacent vnto the sea . mercator , a merchant , is not as some think tearmed a merce , but of the word mercor , which signifieth to buy , and they are properly tearmed mercatores , qui res emunt quas in eadem specie cariús vendant . moneta , à monendo , money , so tearmed , because by the impression of the stampe it doth giue vs notice , either of the prince whose it is , or the price which it beareth : it taketh legem valoris , the rule of the value of the superiour , & therefore it cannot be abased or refused , but by the commaundement of the superiour . mortua res , that is said to be by which a man is not richer . motu proprio , ex certa●scientia , de plenitudine potestatis , are praegnantes clausulae , clauses of importance , against which none may be heard . mutuum , quasi ex meo ●●uum . n. narratio , a declaration of a matter eyther ore tenus ▪ or in forme of law : if it be ore tenus , it is called a motion , & thereof it is said , qui bene narrat , bene impetrat : if it be in forme of law , it is a declaration grounded vpon a writ , contayning the whole state of the matter , as the plaintife supposeth it . naturaliter possidere he is said , which possesseth a thing corporally , & taketh the profits of the thing possessed , and this of the common lawyers is called possessio in facto : but if a mans father die seised , & the sonne doth not enter , nor actually take the profites , neither doth any other disturbe him to take possession , this is called a possession in law , or eiuilis possessio . negotium meum , that is said to be , cuius ●●erum & damnum ad me pertinet . o. obuentio is a kind of re●enew : it differeth from reditus , being strictly taken , in this , that obuētiones are conting entiū ▪ reditus certorū . oculis res subijci dicitur when it is plaine & manifest , it is well said of erasmus , ad cognitionem magis faciuntaures , ad fidem faciendam certiores sunt oculi . officialis , an officiall , who in a certaine part of the diocesse is the bishops deputie . opera labour , it is double , officialis , and artificialis : officialis , is that which is spent & bestowed vpon the diligent attendance done by the seruant to the master . artificialis , is the labour of the trade , as printing , paueing , feeling , graueing , embrodering , & such like . p. pactum is the consent of two or more in a matter which pleaseth both parties , pollicitatio is when there is not the consent of two , but onely one agreeth . pactio nuptialis is a matrimonial contract . pactum retrouendēdi is when the vendee couenanteth , that if the vendor or his heires or executors will within a certain time pay so much money , as the vendee doth pay , that then he shall haue the land again , and be in his former estate . palam fa●tū is that which is done opēly . publice factū is that which is done corā populo . paries , a wall ▪ thereof there be diuerse kindes : lateritius which is made of clay , testaceus which is made of bricke , coementar●us which is made of lime , stone , and water mingled together , cratitius which is made of wood , boardes , or boughes , platted together . paraecos , a parishioner , an inhabitant in a certaine place , who hath brought his houshold to a certaine place , to reside there . praetor maior , he maior of a city , as rhodiginus saith : for others ar called praetores minores . priuilegium is in s ●singulare , whereby a priuate man , or a particuler corporation is exempted from the rigor of common law , for that which is now called proprium , hath bin called of olde writers priuum . proprium that which doth so belong to one that it is not cōmon to an other , & though that wherein we haue a ioint propertie with others may be called nostrum : yet it cannot be called propriū , for propriū doth not admit any communion , but proprium & suum be equipollent , and of the same sense . puer hath three significations , either it signifieth the estate of a man : as when we call seruants pueros : secondly the sexe , as when we call a male child puerum : or els the age , as when we call one that is yong puerum . pars is that wherby the whole is supported , it is either pars diuisa , or pars indiuisa , this diuision wil hold both in nature & law : in nature that id a diuided part , which consisteth of diuerse parcels : as the wing of a bird , or the clouen hoofe of a beast , or the finne of a fish are said to be parts diuided : in law there is also a diuided part , as the third part wherof a woman is indowed after the death of her husbād , & after the assignment made , and the third part of the land of the tenant in capite , which the king hath after his death : likewise the partes of a manor diuided by parceners : a part vndiuided is manifest to the vnderstanding & to the eye : to the vnderstanding , as the moitie or third part of iointenants , parceners , tenāts in common , before particion : to the eye , as the vnclouen hoofe of a beast , or the partes of the earth cleauing contumately together . r. ripa , a banke , it is proper to a floude , as the shoare is to the sea . ripa is that which doth flumen continere , stay the natural force of his course , and that is said to be a banke , quae plenissimum flumen continet , which stayeth the water , when it is at the highest . s. sequestratio is either a seperation , by way of compounding , or by interdiction of possession : it is voluntaria , or necessaria , voluntaria , when it is done by the consent of the parties , necessaria , whe● it is done by one that hath a competent aucthoritie to sequester . sylua caedua , which being cut may grow againe . t. tugurium , quasi ●egurium , it is taken of some for euery countrie house , but not rightly , for the house which doth consist of walles and tiles or bricke is no cotage , but a cotage is that which doth principally consist of reedes or thatch or soddes , earth and twigs layed together , and compacted by clay or slime , or which hath in it a very small deale of timber . tumultus is taken for euery perilous commotion , if it be publiquely and hastely done . turba , a multitude , consisting at the least of the number of tenne . v. vacillaus testis , which doth giue an inconstant and diuerse testimonie . vagabundus , which hath neither certaine house , nor stedfast habitation , a man , as one tearmeth him , sine re , sine spe , sine fide , sine sede . vel , a particle , it doth not alwayes disioyne , but sometimes explane . vis force or violence : it is of diuers sorts , vis detractiua , when a man taketh a thing from one against his will : vis compulsiua , when i compell a man to assent to a certaine acte , vis diuina , commonly called vis maior , whereof there is no resistance : vis expulsiua , which is done with weapon , and it is called of some vis armata , vis inquietatiua , when i am disseised by force , vis imminens the striking or assault of a man. vis is not verbis , but facto , for he is not said vim pati , which is onely touched by wordes . vniuersale quod ad vniuersos pertinet . what methode is to be vsed in handling and disposing matters of law. the ninth chapter . of methode it were better to write nothing then little , for so many diuerse methodes are proposed by many diuers authors , that plentie breedeth scarsity , and a man can hardelye tell which to choose . curiositie as in all other thinges it is vaine , so in methode it is necessarie . for to proceede without equalitie of tenor is negligence , and to obserue methode vnartificially is ignorance . they that giue a reason of the beginning , continuance , and ending of their tractats and discourses , are without doubte the most iudiciall and most plausible methodistes : or they which so temper and moderate the course of matters , that though they render not a precise reason of their doeings : yet it is apparant to the reason and vnderstanding of others . a twofolde methode is verie much talked of , and that is by proceeding either a singularibus ad vniuersalia or ab vniuersalibus ad singularia , the one of these i accompt no methode at all , howsoeuer it hath vsurped the name , being but a natural discerning of thinges done in facto by the ordinary direction of the senses , and making thereof a generall conclusion , which is easie and familiar to euery mans capacitie , so that the praise of that action is diligence and not art , for is it any difficult thing to reason and conclude , wood is heauie , stone is heauie , iron is heauie , & sic in caeteris : therefore all thinges made of earth are heauie ? how pro●e and readie is the perceauing of these particulars to euerie mans sense ? and how easilie may the conclusion be framed by his vnderstanding ? but in deede the discoursing from vniuersalles to particulars is more hard , more artificiall , more compendious , for it is done in lesse compasse and fewer wordes , which is a great argument of a good methode , and therefore i doe not agree to aristotle that athenian doctor , when hee saieth , ars tum existit , cum ex multis experientiae notionibus vna● quae ad vniuersum genus accommodetur nascitur praeceptio . a vnlesse hee meane it of vulgar and mechanicall trades and occupations , whereof onely i admit it to be true , but i rather approoue that which he saith , and doth likewise : progrediendum est ab vniuersalibus ad singularia . b but there be some which will not allow any discourse but that which is furnished with mathematicall and demonstratiue reasons . some would haue euery thing handled by examples , as ramus , a man happier in writing , then in reproouing one that writ better then hee : who in handling logicall places , doth illustrate them with many examples , but with neuer a rule . what manner of teaching is this , to shewe vnto thee that others did thus : but not to shewe why they did so : which default is for want of rules , in which the reason and knowledge of doing thinges aright is conteyned . a man cannot make a shooe by a number of lastes , but hee must haue instruction of one that is skilfull in the trade . some againe will haue euery thing confirmed by the authorities and testimonies of them that be learned , thinking that onely to be the fit way of teaching . but the certaine and necessarie reasons of the mathematikes , are not in all artes to be required . c neyther is there an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or accurate kinde of handling things in all sciences alike to be vsed and obserued : but in euery science things are so to be ordred and digested , as the subiect or matter doth require where about it is employed , and so farre forth as may be agreeable to the profession of the science . for a geometrician and a carpenter doe diuersly handle and vse a right line , the one , as it may be profitable to his worke which he carueth , the other searcheth what kinde of thing it is , and of what nature and so other sciences must be ruled by the subiect which they contemplate , least there be more 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in them : neyther is a cause or reason to be exacted in all things , for of many it is sufficient to haue this knowledge quòd ita sunt , though we cannot know propter quod ita sunt , as of principles which are the first and highest rules in artes and sciences , and therefore no reason can be yeelded , because they are prima , the very first in the discourse of reason , and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for thēselues to be beleeued ▪ surely methode is so conuenient a thing in the studie of the lawe , that without it neither can the vnderstanding be well taught , nor the memorie well directed . it is not enough to haue a great heape of things that are to be read , vnlesse the vse or order and manner of reading them ●e well vnderstoode : and as in things that ●e fit for banquets , tho●gh there be great varietie of sweete meates , yet there is nothing more vnpleasant or vnholsome if they be mingled together , so the student must haue a care least the order of his reading be confounded , least the last things be handled in the first place , and these thinges which should be in the middest be put in the last place , whiche whosoeuer doe , they cannot onely not comprehende the thinges which they studie , but vtterly debilitate and weaken the strength of the memorie : therefore it is good for students to vse an artificiall analysis , or resolution of things , into their principles , which may teach to deuide the whole into his partes , and to subdeuide partes into parcells , and in the end to make a consent and coherence of the entire thing and his partes : for though the skilfull partition of things be profitable and pleasant for the memorie , yet the synthesis , that is the apt composition , coordination , and mutuall dependance of them doth more satisfie the vnderstanding . d therefore polybius a iudicious aucthor saith well , that they which thinke by the knowledge of particulars dispersed to attaine to the full and perfit knowledge of the entire thing , doe no lesse erre , then hee who viewing the partes of a handsome and comely body seuerally and apart , doth therefore imagin that hee knoweth the whole feature and portraicture of the same man , who if hee had beheld these parts ioyned together , and compacted , and moued by the spirit of life , would haue iudged farre otherwise . for though a man may haue a confused notion , or conceite of the whole , by viewing the seperate and disioyned partes , yet it is not possible that hee should haue certaine knowledge of the same , no more then a man by seeing perticular mappes of cities , may certainely perceiue the figure , situation , and order of the whole world . but he that can easily resolue things , may easily compound : for when he knoweth the particular sense and vse of the thinges resolued , hee may easily gather a generall knowledge of the whole thing , that is , a generall knowledge of manye particulars , whiche make one entire thing . the forme of this analysis following , whiche is of maister littleton his two chapiters of fee simple , and fee taile , i doe offer to the student , as a thing to be considered of , because it is incident to this purpose , which though it gaine not his good liking , yet if it minister but occasion vnto him to aduenture vpon the conueyance of some other analysis , that may receiue the generall approbation , and iust applause of the learned , i shall thinke my labour herein well bestowed , and woulde gladlye reape profit by other mens presidents . the analysis of littletons chapiter of fee simple . tenure in fee simple may bee considered by the definition inuented . fee simple is as much to say , as a lawfull and pure inheritance . expounded . he that will purchase lands in fee simple must haue these wordes in his purchase , ( to haue and to hold to him and to his heires , for these words his heires make the estate of inheritance , and he that lacketh this word ( heires ) and hath to haue and to hold to him and to his assignes for euer , hath estate but for terme of life . by the tenant in fee simple who is after two sorts to be considered . generally . tenant in fee simple , is he which hath landes or teneme●●s to hold to him and to his heires for euer . particularly . by purchase as when a man both lands and t●●ements by his deede , or by his agreement , to the possession of which he commeth not , by title of discent from none of his auncestors , or his ●osins , but by his owne act . by discent who may be thus described . he that is tenant in fee simple must be of the whole bloud w●● may bee proued by two examples . 1 if a man haue issue two sonnes by two venters , and the elder purchaseth lands in fee simple , and dieth without issue , the yonger brother shall not haue the land , but the vncle of the elder brother , or some other his ●ye cosins shall haue it , for that the yonger is but of the halfe bloud to the elder brother . 2. if a man haue a sonne and daughter by one venter , & a sonne by an other venter , and the sonne by the first venter ▪ purchaseth lands in fee simple , and dieth without issue , the sister shall haue the land by discent as heire vnto her brother , for that the sister is of the whole bloud to the elder brother . by the properties of fee simple . 1 inheritance in fee simple may lineallie discend but not lineally ascende which may be illustrated by sixe prerogatiues . 1 by the vncles prerogatiue if the fathers sonne purchase land in fee simple , the vncle shal haue the land as heire vnto the sonne , and not the father , because it cannot lineally ascende . 2 by the fathers prerogatiue which is threefold . 1 if the foresaid vncle dye without issue , the father liuing , the father shall haue the land as heire vnto the vncle , and not vnto the sonne , for that he commeth to the land by collaterall discent , and not by lineal ascention . 2 if landes discend by the fathers side , the fathers side shall inherite , and none of the mothers side . 3 if the sonne die without issue , and haue purchased lands in fee simple they of the bloud of the fathers side shall be heire vnto him before any of the mothers side . 3. by the mothers prerogatiue which is twofold . 1 if the sonne hauing purchased lands in fee simple haue no heires on the fathers side , then shall the land discend vnto the heire on the mothers side . 2 if a man take a wife inheritrix in fee simple , which hath issue a sonne and then dieth , and the sonne entreth into the tenements as sonne and heire to his mother , and after dieth without issue , the heires of the mothers side ought to inherite the tenementes , and not the heires of the fathers side . 4 by the brothers prerogatiue which is after two sorts . 1 if there be three brethren , and the middle or yonger brother purchase land and dye without issue , the elder brother shall haue the land by discent , for that he is more worthie of bloud . 2 if there be two brethren by diuers venters , and the elder is seised in fee simple and dyeth without issue and his vncle entreth as heire vnto him which also dyeth without issue the yonger sonne shall inherite the tenementes as heire to the vncle , because hee is of the whole bloud to his vncle . 5 by the sisters prerogatiue . if a man be seised of land in fee simple , which hath issue a sonne and a daughter by one venter , and a sonne by an other venter , and dieth : and the elder sonne entreth , and dyeth without issue , the daughter shall haue the land , and not the yonger sonne , but if the elder brother die before entrye be made , then the yonger brother shall haue the land . qui a possessio fratris defe●do simplici facit sororem esse heredem . 6 by the prerogatiue of the whole kindred . if a man purchase land in fee simple and dye without issue , euery one that is his next cousin collateral for default of issue may inherite . 2 of such thinges whereof a man may haue a manuall occupation , possession or receite as of lands , tenemēts , rents , or such other , a man shall say in his pleading & in way of barre , that one such was seised in his demesne as of fee , but of such things that lye not in manual occupation , as of an aduowson of a church , or such maner of things , there he shal say , that he was seised as of fee and not in his demesne as of fee. 3 fee simple is the largest & greatest inheritance that a man can haue . 4 for default of lawful heires the lord shal haue the land held in fee simple by eschete . obseruations vpon the analysis . this definition , which maister littleton vseth , soundeth like a good logicall definition , as consisting of the true genus , and the proper difference : for this word ( inheritance ) is the genus , which extendeth as well to fee simple , as to fee taile , and this word ( pure ) is a difference , whereby it is distinguished from fee taile : for fee simple is a pure inheritance , that is without limitation or restreint , but fee taile is a limitted or a restreigned inheritance . this word ( lawfull ) in the definition is not idle : but the meaning of it is , that it is an inheritance according to the meaning of common lawe , for if by ( lawfull ) should be meant rightfull , then a fee simple by diseisin should be excluded , which i thinke was not maister littletons intent . and againe , if this worde ( lawfull ) shoulde extend to all lawes , inheritance should be heere taken according to the interpretation of other lawes also , which cannot be . maister littleton well beginneth with the definition , for there are but foure things to be doubted of , first , whether a thing be in rerum natura , secondly , what it is , and of what nature , thirdly , whether it be such and so qualified or no , fourthly , why it is such , and so qualified : and he that wel openeth these foure points ▪ shall in all learned discourses shewe hymselfe excellent and absolute . the nature of fee simple may bee somewhat vnderstoode by applying it to the subiect to which it apperteineth , for tenant in fee simple , and tenure in fee simple , beeing coniugata , hee that well knoweth the one , must of necessitie well vnderstand the other . maister littleton lastly describeth estate in fee simple by certaine adiuncts or properties which do greatly serue to illustrate , and explaine the things whereof wee intreate : they are of two sortes , externall and internall . internall are they whiche flowe from the nature of the thing it selfe : of such sorte are the first and third properties mentioned in the analysis , for in that fee simple may lineally discende , and not lineally ascende , the nature of the tenure is the onely cause , for it beeyng to a man and so hys heyres , the more worthie heire is he that is of the bodie , the lesse worthie he that is of the bloud and not of the bodie , but the father in regard of the sonne can be neither of these but in regard and by mediation of the vncle he may be heire to the sonne , because he is of the vncles bloud , so that in the direct line it is euident , that the fee simple cannot ascend : and it is a very essential propertie to fee simple to be the largest and greatest inheritance , because it is to a man and his heires without limitation . externall properties are these ; which do so go before a thing , or so follow it ; or so cleaue to it , that notwithstanding there is no necessitie of any of these : as for example , before the killing of a man , commonly there is some brawling and contention of words ▪ with the acte doth concurre the sighing or groaning of him that is slaine , and the flight , feare , lurking , trembling , and vnconstant answere of him that did kill him do follow the acte , howbeit some be slaine , without the concurrence of these circumstances . there be two sortes of adiunctes , some belonging to the person , some to the thing it selfe , to the person as the kinred , countrey , se●e , age , education , the habit of the bodie , the fortune , the estate , the qualities of his minde , the manner of his life . the adiuncts of the thing are the causes , the place , the time , the manner of doing a thing , and such like . of these , some be common , and some be proper : common , as if one should commend achilles , because he was of good birth , because he was a great captaine , because he was in fight against the troians , for euery of whiche , diomedes is as much to be commended as achilles . proper adiuncts be , as if thou shouldest commend achilles for his great valor in killing hector the stoutest of the troians , and for his good fortune in killing cygnus , who being inuulnerable , did barre all the gretians from comming downe the wall , and because beeing young , and not bound by any othe or leageance , he fought so valiantly for the gretians . these two later of the proper adiuncts , i call externall , as not flowing from the essence of a thing , but befalling externally to it when it is in esse . of this kinde there are two in the analysis , the seconde and fourth . the analysis of littletons chapiter of fee taile . fee taile may be diuers waies considered by the first originall . tenant in fee taile is by force of the statute w. 2. cap. 1. for at the common law before the said statute , all inheritances were fee simple . a by the definition . inuented . feodum taliatum est haereditas in quadam certitudine limitata . expounded after ij . sorts . 1 if tenant in taile die without issue , the donor or his heires shall inherite as in their reuersion , for in euery gift in the taile the reuersion of the fee simple is in the donor . 2 if a man giue lands or tenements to an other to haue and to hold to him and to his heires males or females , he to whom such gift is made hath fee simple , for that it is not limitted by the gift of what bodie the issue male or female shall be . by the diuerse kindes thereof in respect of the nature of the entaile . taile general which is to be considered by the definition . inuented . taile general is where landes be giuen to one and to the heires of his bodie begotten . expounded . therefore it is called generall taile , because whatsouer woman the tenant taketh to wife , if he haue many wiues , & by each of thē haue issue , yet any of these issues by possibility may inherite the tenements by force of the said gift , because that euery such issue is of his body ingendred . so if lands be giuen to a woman , and to the heires of her body , howbeit that she haue many husbands , yet the issue that she hath by each husband may inherite . by an example or speciall kinde thereof if tenements be giuen to a man and to his wife , & to the heires of the body of the man ingendred , in this case the husband hath estate in the general taile , & the wife estate but for terme of life . taile speciall which is to be examined according to the definition . inuented . tenant in taile special is where lands & tenements be giuen to a man and his wife ( iointly or seuerally ) & to the heires of their two bodies begotten . expoūded after two sorts . 1 in such case none may enherite by force of such gift , but those which be engendred betweene them two , & it is called special taile : for that if the wife die and he take an other wife , and hath issu , the issue of the second wife shal neuer inherite by force of such gift , nor also the issue of the second husband if the first die . 2 in the same maner it is where lands & tenements be giuen by a man vnto another with a wife , which is the daughter or cousin to the giuer in frankmariage , which gift hath inheritance by this word ( frankma● ) vnto it annexed , howbeit they be not expressely said nor rehearsed in the gift , that is to say , that these donees shall haue these lands or tenements to them & to their 〈◊〉 betweene them two ingengred , & this is called special tail , because the issue of the second wife may not inherit , & the woman donee in frankma● must be of kin to the donor , & they shal do no seruice but feal it , till the 4. degree to be accompted from the donor be past . diuerse kindes thereof . 1 if lands be giuen to the husband and to the wife , and to the heires of the husband which he begetteth of the body of the wife , in this case the husbād hath estate in special taile , and the wife but for terme of life . 2 if the gift be made to the husband and to the wife , and to the heires of the wife of her body by the husband ingendred , the wife hath estate in special taile , & the husband but for terme of life . 3 if lands be giuen to the husband & the wife , and to the heires which the husband hath by his wife in this case , both haue estate in taile special , for that this word ( heires ) is not limited more to the one then to the other . 4 if lands begiuen to a mau & his heirs with he engēdreth on the body of his wife in this case the husbād hath estate in the tail special , & the wife nothing at al. in respect of the persons to whom the taile belongeth . taile to the heire male which is two fold . 1. if landes be giuen to a man & his heires males of his body ingendred , in such case his heire male shall inherite , but his issue female shal neuer inherite . 2 if lands be giuen to a man & to his heires males of his body engendred , & he hath issu ij . sonnes & deceaseth , and the elder sonne entreth as heire male , and hath issue a daughter and deceaseth , his brother shall haue the land and not the daughter , for that the brother is heire male . taile to the heire female with is to bee cōsidered by the definition . taile to the heire female , is where lands be giuen to a man & to his heires females of his body ingendred , in this case his issue female shall inherite by force and forme of the said gift , and not the issue male , for that in such cases where the gift is , who ought to inherite , and who not , the will of the donor shall be obserued . by the properties . 1 whosoeuer shal inherite by force of a gift in the taile made vnto the heires males it behoueth him to cōuey his discent by the males with may be illustrated by 2. exāples . 1 if lands be giuen to a man and to his heires males of his body ingendred , and he hath issue a daughter , who hath issue a sonne , and deceaseth , in this case the sonne of the daughter shall not inherite by force of the taile , but in such case the donor shall enter . 2 if lands be giuen to a man and his wife , and to the heires males of their two bodies begotten , and they haue issue after the like sort , the like shall happen . 2 the death of a man taketh not away the estate of those that be in the tail , as if a man haue issue a sonne & deceaseth , and land is giuen to the sonne , and to the heires of the body of his father ingendred , this is a good tail , and yet the father was dead at the time of the gift . 3 the donees and their issue shall hold of the donor and his heires as he holdeth of the lord paramount . obseruations vpon the analysis . this definition , which maister littleton maketh of estate taile , consisteth likewise of genus , and of a difference . the genus is haereditas , which is common both to it and to fee simple : the difference in quadam certitudine limitata , by which it is distinguished from fee simple , for that is non limitata & sine certitudine , and by this definition a man may know what a fee simple is , and by the definition of fee simple what fee taile is , so that the rules of arte are well obserued , which are that rectum est iudex sui obliqui , and opposita iuxta se posita magis illucescunt . though the diuision or tenure of estate taile doth in the table precedent consist of two members , or two differences , yet the especiall taile is deuided into more partes : and that manner of deuiding is not contrary to the rules of methode , for it is too much curiositie to exact in euery diuision two onely opposed essentiall differences , and two distinct kindes . there be three causes wherefore a diuision cannot be made by two differences . first because of noe kind of thing , both the essential differences cannot certainly bee knowen , but the one of them wee doe expresse by a negatiue . secondly , because that difference which wee set downe in the affirmatiue is not alway the true difference . thirdly , because the diuerse nature of diuerse immediate kindes of one thing wil not alwaies permit a twofold diuision , for though the diuision of animal in hominem & brutum bee bimembris and according to rigorous exaction , yet sithe there be many kindes of brutish creatures , some that swimme , some that flye , some that goe , some that creepe , and the particulars of these kindes doe differ in the quintessence of their nature , surely to comprehend all these distinct thinges vnder two differences is not to be required , because it is either impossible , or a thing of exceeding difficultie . but when things are to be handled by way of disputation , as the arguing of cases which is of great vse in the lawe , another methode and course must be vsed then hath bene taken in the framing of this analysis , for there the principall case must be fully set downe , the points of ●awe orderly distinguished , the reasons on the one part must be first set downe , with answeres annexed vnto them , then the reasons on the other part , with answeres likewise in their due places : and lastly , the conclusion of the whole controuersie debated , whether it were by iudgement , adiournement , or by the concord of the parties , or by other speciall meane , and for better direction herein ( i am desirous to profit others if i could ) i haue set downe an homely paterne according to the plaines of my conceit , in the disposing and ordering of a case , famous in our yeare bookes , and of great weight and vse , being the prior of mertons case , being very often at large argued , namely , in the eightenth , ninetenth , twentith , and twentie one yeares of the raigne of king edward the fourth at seuerall times , and was likewise touched the second yeare of richard the third , and all the contents of the arguments vpon this case deliuered , as many as did concerne the principall points then in question ( for by matters are to be reposed in a seuerall place by themselues ) i haue brought into the compasse of a fewe lines , if you respect the large leafes wherein they are handled . le case enter le prior de merton plaintife , & le prior de bingham defendant . en le . 3. an de h. le . 3. vn fine fuit leuie parenter le prior de merton pl. et le prior de bingham deforceant sur vn briefe de couent , que fuit en ceux parolls : cest le finall concorde parēter le prior de merton querentem et le prior de bingham deforceantem de 5. markes , et v. s̄ . rent cū pertinentiis en s. et r. sur que vn brief de couenant fuit sum̄on enter eux que fuit que lauantdit prior de bingham acknowledge et grante pur luy et ses successors que touts iours , apres ils payer chescun an al esglise de merton pur les tenemēts queux il tient del dit prior et pur les tenemēts queux w. de w. ascun foits tient del dit prior en les villages auantdits cinque markes , et v. s̄ . a deux termes dans , pur touts suites et seruices , et que il ferroit a le chiefe seign̄or del fee pur lauantdit prior de m. et ses successors touts seruices queux apperteignont a les dits tenemēts : et pur cest graunt le dit prior de m. grant pur luy , et ses successors , que ils violent garrant̄ al auantdit prior de bingham et ses successors touts lauantdits tenements pur les auantdits seruices contra omnes gentes : sur que vient en le courte vn i. prior de merton et prya scire faci . enuers w. prior de bingham dauer execution darrerages del dit rent , que fuerōt due en les ans darrein passe , et il auoit : et fuit returne &c. a quel iour le prior de bingham vient eins , et dit que le fine prooue le rente grant a le predecessors del pl. destre vn rent seruice on a●●une auter rent issuant hors de terre et nemy vn annuitie , per que entant que il auoit acknowledge , que cest rent fuit execute , il doit auer vn assise ou distres , et nemy vn brief que est en nature de briefe dannuitie ▪ et sur cest ils demurront . les quaestions de ley . 1. si le fine fuit bien leuie . 2. si le rent soit vn annuitie . 1. negat . que le fine ne fuit bien leuie . littleton . fines he sont bon e●●eant leuies de choses queux ne sont in rerum natura al temps del fine leuie , et le rent de que cest fine fuit ●eu●e ne fuit in esse al temps pe● que &c. brian . ceo ne besoigne . car si ieo auoy in islington 20. li. rent issuant de terres de twentie homes per seuerall grauntes , si ieo graunt per fine a vous 20. li. rent hors de lour terres ou tenements in islington vous naueres 20. li. rent queur ieo auoy in islington mes vous aueres vn nouell rent : mes est diuersitie ou le chose de que le fine est destre leuie gist en demesne , et ou nemy . car lou gist en demesne , la doit estre in esse al temps del fine leuie , come si ies leuie fine de mon terre en dale lou ieo nauera ascun terre en dale , cest fine est voide , mes de chose que poit issuer hors de terre vn fine poit estre leuie , coment que ne soit in rerum natura , come de rent ou common in dale , ou en fait il nauoit ascun common ou rent in dale al temps &c. mes sil auoit common in grosse en 〈◊〉 le ville , et graunt a moy vn common , et ne monstra quel common , ceo serra construe le common que il auoit en 〈◊〉 le ville . neale . cest fine est leuie de vn mere annuitie , et pur ceo est male , cont̄ si de chose naturallment surdant hors de terre come si ieo conust tout mon dr̄t en vn acre de terre auous et vous per 〈◊〉 le fine graunt a moy vn annual rēt de 20. s̄ . hors de 〈◊〉 le terre , cest bon grant , vn● ne fuit ascun originall de ceo : per que &c. brian . en auncient temps home puissoit auer conus vn fine sans originall , et sil soit leuie a cest iour il poit auer scire facias et si aduowso● discend al coparceners et ils ꝑ indenture enrolle voilent agree de presenter ꝑ turne , chescun de eux quant son temps vient auera scire facias : per que &c. piggot . en auncient temps fines fue● leuie deo et ecclesie , mes le ley estore alter : mes come ieo pensa chescun fine doit auer originall et de accorder a ● . car le note est placitum conuentionis , et en nostre case nest ascun couen̄ dun annuitie , mes dun rent solement , et si le originall seit de 20. acres et le fine soit leuie de 40. acres quant al 20. le partie ser● discharge : car ne fuit ascun originall de eux , et en praecipe quod reddat le fine poit estre leuie del chose en demaunde , car le originall conteigne et concerne c̄ . issint si brief de couen̄ soit de 20 acres en dale et le fine est leuie , de 20 acres en sale le fine nest bon , ou si le originall soit de terre arable , et le counusans de pasture . 1. affirmat ' . que le fine fuit bien leuie . sulyarde . si en vn brief de couen̄ port dun mannor , le plaintif graunt le mannor al le deforceant , et graunt oustre a discharger le dit mannor enuers le seignior del fee , cest bon fine , et vnc● le clause de discharging ne fuit en le briefe de couen̄ , donques en cest case &c. sulyarde . si en vn briefe de droit de customes et seruices le seignior poit releaser per fine tout son droit , que il ad en le terre , et le ten̄ poit graunt per 〈◊〉 le fine 20. ● . annualment , donques &c. catesby . quant vn home acknowledge le droit de terre a vn et vn rēt est reserue sur le graunt et ren● , ou vn common , ou tot carectae ligni destre prise del ter● , cest bon , car ils sont conteigne implicatiue , en le originall , mes si le fine est leuie dun chose nient expresse ne implide en le originall cest voide , donques en cest case , pur c̄ que le fine est dun rent seruice , car le fine est pro omnibus alijs seruitijs per cest ꝑoll ( alijs ) est implide , que le rent est aliquod ▪ seruitium . 2. negat . que le rent en cest ●ase nest vn annuitie . piggot . le fine est que le prior de merton pur les seruices auant dits acquite le prior de bingham de touts seruices enuers le seignour del fee , et pur ceo cest rent seruice et nemie rent secke . collowe . le rent est change per le fine , car ambideur les parties serront estoppe de denyer lestate prise ꝑ le fine , come si home soit seise de terre en fee , et vn fine soit leuie perenter est● et luy , per que lestraunge acknowledge m̄ le terre a luy et a les heires de son corps ingendres , ore son estate est change , issint si home tient per seruice de chiualer , et le signior per fine acknowledge que il tient en soccage ore le tenure est alter , et il tiendra en socage , et en cest case le rent ne poit estre rent seruice , car donques le partie poit distr sur le terre et ceo ne poit estre . car touts suits quant al terre sont discharge per le fine : et ne poit estre rent charge . car nul terre est charge oue distr : et rent secke ne poit estre : car donques il serra demaund sur le terre : et annuitie ne poit estre : car le priour ne poit charge lemeas●● . pigot . si le prior ne b. ●e poit extinguisher les seruices per ses parolles , on per●son act , le ●ent seruice continue , per q̄ &c. si home tient de moy per xx . s̄ , et ies confirme son estate de tener per vn denier pur touts maners de seruices , il ferra fealtie , & cest rent est parcel del auncient rent , per que &c. 2. affirmat ' . que le rent est vn annuitie . starkey . si vn home ne poit graunt al auter ceo ḡ il auoit deuant , donques le rent ḡ le prior de bingham graunt a le prior de merton ne poit estre launcient rent , mes vn nouel rent ou vn annuitie , per que &c. si ieo teigne de vous per homage , fealtie , et ● . s̄ . rent , et ieo voile graunter a vous per fine xii . d. rent pur les tenements queux ieo teigne de vous , cest vn nouel rent , & nemy launcient rent , per que &c. vauisor . si per fine sur conusans de droit come ceo , vn nouel rent poit este graunt , car cesty a que le conusans est fait poit graunt vn rent a le conusor , et le cause est pur ceo que il serra intende que cesty a que le conusans est fait est seisie vel terre : mes auterment est de fine sur graunt & render , car le ley ne i●tende que le grauntee est seisie del terre , donques en cest ●ase le rent est vn nouel rent . choke . si ceux parolx , que le prior de bingham ferra touts les seruices pur le prior de merton , ne prouant ceo destre rent seruice : car si soient seignior et tenant , et le seignior release a le tenant per fait indent tout son droit que il auoit , reddendo vnum denarium , & faciendo capitali domino seruitia &c. en le behalfe del seignior ●eux parolx sont voides , car per le release son seigniorie est extinct , donques en cest case &c. iudgement . trois des iustices agarderont ḡ le pl poit suer execution per scire facias , et issint iudgement fuit enter ▪ e●maintenant sedente curia , vn briefe derror fuit mise eins . et fuit touche en le bank del roy 2. r. 3. mes nest la decids , ne argue . obseruations vpon the precedent forme of arguing . a. the first reason made by mast . littleton is drawen from the cause of the thing generally , and specially from the material cause : for if the onely material causes of fines be thinges which are in esse , it is a probable conclusion to say that of this rent being not in esse , a fine could not be leuied . and as the rule of logicke is , quae eadem sunt eorum generationes et corruptiones , causae constituentes et corrumpentes eaedem sunt : e so of such thinges which be the same in kind , the causes material are the same : and therfore the material causes of fines , that is the thing whereof they are leuied , ought to be the same . b. the aunswere of brian to mast . littletons reason is by way of distinguishing , for euery aunswere must be either by direct granting , or direct denying , or els by distinguishing which is partly a granting partly a denying . c. mast . neale his reason is drawen from the same place of logicke , from which mast . littletons was deriued : for he supposeth that an ammitie is no fit materiall cause whereof a fine may be leuied . d. sulyards reason is drawen à comparatis patibus from thinges alike probable : for if a man in a writ of couenant brought of a manor , may graunt and couenant to discharge the said mannor against the lord of the fee , though in the writ of couenant there were no mentioning of any such discharge : by the like reason a man may leuie a fine of a thing which is not mentioned in the writ of couenant , and which was no● in esse before . and this maner of reasoning is grounded vpon that rule in logike , si duo duobus aeque conueniant , & hoc huic conueniat , etiam illud illi conueniet . f e. sulyards second reason is drawen á simili : for like as in a fine leuied vpon a writ of right brought of customes and seruices , the tenant may graunt a rent which was not in esse before : so likewise in this case the fine might be leuied of a rent , which had no being before . and this consequens is warranted by this rule , si in vno eorum quae similia sunt aliquo modo se res habeat , eodem etiam modo in alijs se habebit . g f. the first reason whereby pigot goeth about to prooue that the rent is not an annuitie is deduced à genere : for if it be truely named by the generall name of seruice in the fine , it must be intended to be a speciall kind of rent seruice , and not a rent secke , according to the rule , si aliquid sit genus , species ab e● comprehensa participabit natura eius , sed non natura eius quod est contrarium generi . h. g. pigot his second reason is drawen a comparatis paribus . h. his third reason is drawen a simili . i. starkey his first reason is drawen a comparatis paribus . k. the reasons vsed by vauisour and choke to prooue the rent to be an annuitie are drawen a simili . finis . notes, typically marginal, from the original text notes for div a01287-e390 aa prouerb . 2● aym. cons . 145 viso proces●● in fi . a cyprian de 12. abusio . b can. venden . q. 3. canon pauper 11. q. 3. c deuteron . 1 d can. sex . 23. q. 3. e can. omnis & sequ . can . discipli . 45. dist . f l. 12. tabula● . c. 6. g cicer. 2. de legi . h lib. 2. de sta● homiū . i lib. 2. de legi . k cicae . pro caecin . l lib. 2. de legi . m cicer. lib. 3. de legi . n cicer. lib. 〈◊〉 de inuent . pro. 16. chroni . 2. c. 19 o senec in thy. p l. medic . 1. 6 de profes . & medi. q d. l. medicos . r l. vnica & rubri . de profes . qui in vrbe constantinopol . docent ex lege meruerūt . comit. li. 12. c. tit . 15. ſ angel. aretin in §. proaem . institut . t plowd . in epi. a les estudents de le cōmon ley . v vir. aeneid . 6. x plat. in polit . a cicer. lib. 9. epist . famil . b cicer. in ora . pro caecin . c marcell . 2. ff . de iur . et fact . ignor . d in orat . pro cluentio . e 3. lib. 1. de legi . f quid. metamorph . a aristot . lib. 10. ethico● , ad nicomach . b leg. 12. tabular . c. 1. c cocles in physiognom . d cicer. in tusc . quest . e iacob . c. 1. f in analytic . posterior . f cicer. tuscula . 3. g cicer. in catone maior . h lapud iulianum de fide commissis liberal . in p. p aristoteles lib. nicoma chior . 2. & 3. & in lib. magnor . morali . q plat. in conuiui . r cicer. lib. 1. officior . s scalig. lib. 3. poetic . alberic . gentil . lib. de leg . 3. c. 13. t stobaeus de temperantia . u senec. epistol . 111. x plato in timae . y ioui . lib. 28. a albericus gentilis dialogo primo de iuris interpretibus . b lib. 4. de sanitate tuend . c. 16. c cicer. offic. lib. 1. d liuius lib. 22. e plato in politic . ee liuius lib. 31. f diogen . laer. in vit . platonis . cicer. lib. 1. officior . g dionys . halicarnast . lib. 8. h erasmus in encom . mo●ae . i senec. lib. 1. de ira . k flor. lib. 1. histor . l valeri . maxi. lib. 5. c. 1. k marsilius ficinus lib. de vita sana . c. 7. l lib. de somno & vigil . c. 3. m lemnius lib. 1. de complexion . c. 9 n prouer. c. 8. ver . 17. o ecclesi . c. 3. p ecclesi . c. 4. q in epist . ad com. iust . r varro lib. 4. de lingua latin . ſ polybius lib. 3. hystor . t iuli. scaliger in exercitation . v plato lib. 7. de legi . x abberie . gentilis li. 4. de iur. inter●p . a alciat . lib. vlt. parerg . c. vltim . b iul. scalig. in exercitati . c xiphili . in vita m. anto. philoso . d eras . li. colloquior . in synod . gramma . e aristot . metaphy sicor . 2. c. 1. f cicer. lib. ● . de fi● . a celsus li. 9. digestor . plowd . comment . 82. per saunders . aa guido question . 252. aaa imo c. literas de resscript . 38. h. 6. 10. 39. h. 6. 6. temp. e. 1. common 28. & 21. e. 3. 2. per wilby . b philip. dec. comment . ad regul . iur . bb li. adiger . § quamuis . de iur . patron . li. 7. p. tit . 14. c. cum cessante de appell . c l. non possunt et li. nam et ait pedius de ll . in p. d iulian in l. ita vulnerat . § quod si quis absurde ad leg . aquilei . e l. i §. huius . ff . de insti . et iur . f l. pen. c. de princip . li. 12. h horati . i alciat . li. 1. de verb. sign . l cicer. in ora . ad brut. m plat. lib. 1. de leg . n alber. gentilis lib. 2. epistol . c. 2. o castr . in eo § item si reip . p li. 2. de orig . iur . q abberic . gentil . lib. 3. epistol . c. 17. r alciat . lib. 4. perarerg . c. 17. ſ l. meminerint . c. vn . vi . li● . 42. coll . 9. t l. quod fauor ▪ c. de legi ▪ a l. non aliter . ff . de legat . 3. decis . neapol . 44. numb . 26. c marius salmonius ad . l. omnes populi ff . de iustitia & iure . d quaero . §. inter locatorem . ff . locat . e l. 4. §. totie● ff . de damn . infer . f l. si repetendi c. de condi● . ob causam . g l. non alit●● ff . de leg . 3. h bal. in c. mandat . de rescript . i l. penult . ff . ad exhib . alciat . in l. 1. ff . de verb. sign . k tiraquell . in l. si vnquam ad verb. lib. num. 35. c. de reuoc . donat . l quintilian . lib. 7. c. 7. m ad . d. l. si inguam in princi . num . 54. n l. semper in stipulationibu● ff . eod . o loriotus de reg . axiom . 105. p l. tutor petitus §. 1. ff . de excus . tut . q bartol . in l. si quis serio coll . vltim c. de fur ▪ & cons . 275. lib 2. num . 2. r l. si commodissim . ff . de liber . & posthu . l. post dotem . ff . solut . mat●im . ſ l. vlt. c. de posth . haered . instit . bald. ad l. 1. c. qui admit . ad bonor . post . & col . 9. t l. labeo ff . de supell . legat . u socyn consi . 4. lib. 41. iason . cons . 140. lib. 2. x l. 3. ff . de testi . l. de minore . ff . de quaest . a l. si de interpret . ff . de ll . b l. minime ff . de legi . c bodin . lib. 1. de repub . c. 10. d athenaeus lib. 12. c. 22. e polibyus histor . lib. 6. f horat. lib. 4. ●arm ▪ ode . 24. g c. cum delect . de consuetud . l. cum quidam . ff . de lib. & posth . h aymo consil . 170. nu . 3. baldus in l. non possunt ff . de legib . i l. arrianus . ff . de oblig . & act . k l. absentem . ff . de paenis . l cap. vbi maius sup . de elect . lib. 6. m alciat . ad l. 2. in num . 44. de verb. oblig . n l. 1. ff . solut . matrim . o l. ad rem mobil . ff . de procur . l. 2. ff . de iurisd . om . iud . temps e. 1. grauntes . 41. p bald . ad l. quamuis . c. de fide comm . q baldus ad d. l. non dubi . in 13. oppositione r l. quoties ff . de verb. oblig . ſ bart. in l. 3. parag . condemnat . ff . de re iud . t 9. e. 4. 3. gloss . in verb. defensiones in de saepe de verb. figu . a iustin . in §. alio . insti . quib . modis tes . infirm . & in §. sed ne in primis de leg . b veget. lib. 1. de re militari . c l. domitins labio de testā . d in l. precib . c. de impub. e arist . metaphys . 3. f in l. legatis §. ornatri . de leg . 3. g in. l. mune● . §. mista . de muneri . & honori . l 3. eliz. 186. dyer . a 43. e. 3. 27. et . br. cases . b 16. e. 2. per herle , couenants 25. c 14. eliz. 416. com. bracebridges case . d 4. e. 3. 47. e 12. e. 4. 21. per choke . f 12. e. 4. 21. per choke . et vide 7. r. 2. tit entre en le per , en le collect . de bellew . g 18. h. 8. 5. 15. e. 4. 4. h 4. e. 6. 68. dyer . i 15. e. 4. 13. per littleton . k 40. e. 3. 43. l 15. e. 4. 13. m 27. e. 3. 87. n 39. e. 3. 3. mortdauncester 50. fitzh . na. bre . 196. k. o 31. e. 3. garrantie 39. p 4. eliz. 205. dyer . q 20. e. 4. 12. 22. e. 4. 17. 18. r 26. ass . p. 60. ſ 10. h. 7. 13. per keble . t 9. e. 3. charge 4. 9. ass . p. 22. u 34. e. 3. garrantie 72. w plow . com̄ plats c. 37. a 50. e. 3. 27. b 20. h. ● . 22. c 49. e. 3. 14. assise 66. d 45. e. 3. voucher 72. per finchden . e 32. e. 3. brief 288. f ●0 . e. 4. 12. g plow . com. stowels c. 367 h ibid. i plow . com. 368. stow. cas . k 2. h. 6. 16. l 20. eli. com̄ weldens cas m 3. mar. br. feff . al vses 59. & vide 3. mar. 128. dy. wilf . cas & 13. e. 3. br̄ exting . 45. n 24. h. 8. 30. per pollard o 14. h. 6. 14. 21. h. 6. 3 p 42. e. 3. execut̄s 67. q 11. h. 6. 35 r 12. r. 2. executors 75. ſ 16. h. 7. 4. ꝑ keble 19. h. 6. 65. per new● . t 21. h. 6. 1. 39 e. 3. 59. h. 5. 14 11. h. 4. 46 u 21. eli. com̄ 539. para. cas . w 14. h. 7. 1. & 4. a 19. eliz. 258. dyer . b plow . com̄ 132. brow. cas c 9. h. 7. 25. per fineux d 23. h. 8 br. restore al primer acc ' 5. e 5. e. 4. 2. f 33. e. 3. ent̄ congeable 52. g 12. h. 4. execuc ' 28. h 39. h. 6. 26. per paston i 7. h. 4. 16. k 36. h. 6. 5 per ash . iust . l 28. h. 8. 7 dy. per fitzh . m 3. h. 7. 11 n 15. e. 4. 5 per litt̄ . o 16. e. 2. cont̄ claime 10 p plow . com̄ 358. b sto. cas . q 8. h. 7. 7. r 15. e. 4. 14 per littleton skreenes cas ſ com̄ 290. ꝑ car. dame hales . cas t ibid. v 9. e. 4. 33. w 10. h. 7. charge 3. a plat. lib. 8. de legib . b plat. lib. 11. de legib . c plat. lib. 12. de ligib . d 42. e. 3. 18. 11. h. 4. 17. 17. e. 4. 2. e 47. e. 3. 12. f 48. e. 3. 20. 11. h. 4. 23. g 3. e. 3. corone 317. 323. 334. h 42. e. 3. 18. na. br . fitz. 69. 9. h. 6. 25. per bab. 19. e. 3. repleuin 32. 33. e. 3. rep. 43 i 12. h. 6. 19. 27. h. 8. 21. k 19. e. 3. repleuin 32. l 21. h. 7. 14. m 6. h. 4. 6. 12. h. 6. 4. 22. h. 6. 14. & 1. e. 4. 7. n 28. e. 3. 92. 3. h. 4. 12. 34. h. 6. 37. 2. e. 4. 23. 10. e. 4. 2. 8. e. 3. 15. o plat. lib. 12. de legib . p herodot . lib. 2. q arist . 5. polit . cap. 7. 6. polit . ca. 7. et lib. 7. ca. 4. et 5. r 7. polit . cap. 5. ſ plutarch . in peric . t vlpian . lib. 8. digestor . tit . 4. c. 14. u celsus li. 43. digestor . tit . 8. c. 3. w ouid. in metamorph. a c. 14. tit . digestor . de acquirend . rerum domini . b stamford . fol. 24. c 18. h. 6. 29. & 92. 17. e. 4. 7. 7. h. 7. 13. 18. e. 4. 4. d 9. h. 6. 36. 27. h. 6. 10. 15. e. 3. common . 12. 22. assis . pl. 36. 36. assis . pl. 3. 4. h. 6. 13. 37. h. 6. 34. 4. e. 4. 29. 10. e. 3. 15. 10. e. 3. 56. 4. e. 3. 4. 15. assis . pl. 5. 14. e. 3. barre . 277. 17. e. 2. commō . 23. 22. h. 6. 51. e n. b. quod permit . 11. elizab. 281. dy. f 13. e. 45. 10. h. 7. 13. 7. e. 4. 10. 48. e. 3. 17. 30. e. 3. 20. 3. h. 6. 12. 34. h. 6. 43. g 33. h. 6. 26. 8. e. 4. 9. 6. e. 3. 23. 2. e. 4. 9. 20. e. 3. admeas . 8. 21. e. 3. 2. 11. h. 4. 82. 2. h. 4. 11. h iustinia . lib. institut . 2. i 16. e. 4. 7. 22. h. 6. 6. 67. 18. e. 4. 8. k 43. e. 3. 24. 12. h. 8. per newdig . 14. eliz. 307. dy. l 8. e. 4. 5. 22. h. 6. 55. n. b. fitzh . en le briefe de trespasse . m 18. h. 8. 2. 22. assis . pl. 95. n stamf. lib. 1. c. 16. o 10. e. 4. 15. p 12. h. 8. 3. fillowes c. per brooke . pollarde . brudnell . newport & newdigate . q iustini . lib. institution . 2. r vlpianus lib. 19. ad edictum . ſ 29. e. 3. 29. 12. e. 4. 5. t vlpia . lib. 56. ad edictum . u 16. elizab. 138. dy. w ibid. & fitzh . n. b. 19. x 13. e. 3. briefe 678. y 22. assis . pl. 99. z 7. e. 4. 7. & 20. * 8. h. 4. 13. a exposit . des tearmes de ley , plowd . in le case de informat . pur mines . b fitzh . corone 446. c stamf. lib. 1. cap. 42. d fitzh . corone . 281. 436. e 8. e. 4. 6. 37. h. 6. 30. 12. h. 7. 27. 8. h. 5. 4. 11. h. 4. 12. 19. h. 6. 66. f 8. h. 5. 4. g 21. r. 2. deuis . 27. h 48. e. 3. enditement . 27. i lambard eirenarc . 494. 495. a gou. lib. 1. lect . ●ur . c. 19. b ioseph . de bel . iud. lib. 3. c bodin . lib. de repub. d deuter. 12. v. 32 e alber. gentil . lib. lecti . & epistolar . 2. c. 14. f 34. h. 8. 52. dy. g 11. h. 4. 73. h 24. h. 8. br. contract 35. 7. h. 7. 4 i 30. h. 8. br. apportion 7 k 27. e. 3. br. apportion 6. l l. 183. de reg. iur . m l. 14. de reg . iur . § de relig . n 17. e. 4. 7. o 18. h. 6. 29. p 4. e. 3. 3. feoffem̄r 79 q 14. e. 3. formedon 34. r 40. e. 3. 44 ſ 20. e. 3. bre 685 t temps e. 1. briefe 861 v 18. e. 4. 4 w 12. h. 7. 4 a 3. h. 6. 1. plaint 1● . b 9. e. 4. 40. c 3. e. 4. 10. d 9. e. 4. 21. e 7. h. 6. 36. f 3. mar. 1. com̄ 168. hilles cas . 7. e. 6 com̄ 80. pa●●idg . cas . 23. h. 8. br. 〈◊〉 . 53. g 4. e. 4. 16. 42. e. 3. 22. 44 e. 3. 40. feoff . 53. lib. ●undā . leg . fo . 70. h 3. e. 3. br. iurisd . 39. i 26. ass . pl. 60. k 4. e. 4. 17. l 3. h. 6. 8. m regist . 165 n 16. ass . pl. 9. o 33. e. 3. entre 80. p 37. h. 6. 34 q 10. e. 3. 56 r 10. e. 2. cōmon 22. 5. ass . pl ' 2. ſ 4. e. 3. 45. 17. e. 2. common 23. t 14. h. 4. 2. a 37. h. 6. 34. 9. e. 4. 3. b 22. h. 6. 43. 4. e. 4. 29. c 26. h. 8. 4. 5. h. 7. 7. 4. h. 6. 13. d 26. h. 8. 4. 15. assis . pl. 5. common 13. e 5. h. 7. 7. f 26. h. 8. 4. g 15. assis . pl. 5. h 18. e. 3. 30. i 13. h. 7. 13. 15. elizab. 316. dyer . 16. e. 3. common 9. 22. h 6. 51. 6. e. 6. 70. dier . k 7. e. 4. 26. m 11. h. 6. per babing . mart. & paston . 45. e. 3. 25. assise 61. 36. ass . pl. 3. 15. ass . pl. 5. perkins tit . graunts . n 30. h. 6. 28. dyer . o 34. h. 6. 43. p 3. h. 6. 12. q 4. e. 3. 53. 14. h. 8. 5. r 22. ass . pl. 78. ſ 14. h. 8. 5. t 2. h. 7. 5. 15. h. 7. 14. u 1. 49. de verb. signific . a alber. gentil . lib. 4. epist . c. 7. b 3. e. 3. corone 3. 4. c 8. r. 2. supersedeas 19. d 9. h. 6. 20. e 14. h. 8. 5. 45. e. 3. 90. 4. elizab. 210. dyer . f 37. h. 6. 30. g 21. h. 7. 24. h 39. h. 6. 35. i 6. h. 7. 9. k 19. h. 6. 47. l 28. e. 3. 92. et 50. m 1. h. 7. 15. n fitz. na. br . 34. o 2. h. 7. 8. p 15. h. 7. 2. a me●aphys . 1 ▪ c. 1. b physicor . 1. c. 1. c arist . metaphys . 1. part . poster . c. 3. d polyb. lib. 1. histor . a. b. c. scir . faci . 18. e. 4. 22. 19. e. 4. 2. 47. 20. e. 4. 16. 21. e. 4. 60. 2. r. 3. 5. a. ratio prima . b. responsum . c. ratio . 2. respons . replicat ad hoc respons . d. ratio 1. e. ratio 2. r. 3. f. ratio . 1. respons . g. rat. 2. h. rat. 3. i. rat. 1. con●ir . ratio . r. rat. 2. rat. 3. e arist . top. 7. c. 1. f arist . top. 2 c. 4. g arist . top. 2 c. 4. a briefe conference of diuers lawes diuided into certaine regiments. by lodowick lloyd esquier, one of her maiesties serieants at armes. lloyd, lodowick, fl. 1573-1610. 1602 approx. 298 kb of xml-encoded text transcribed from 79 1-bit group-iv tiff page images. 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siefring text and markup reviewed and edited 2003-04 pfs batch review (qc) and xml conversion a briefe conference of divers lawes : diuided into certaine regiments . by lodowick lloyd esquier , one of her maiesties serieants at armes . eccle. 21. vidi in loco iudicij impietatem , & in loco institiae iniquitatem . london printed by thomas creede , 1602. to the most high and mightie prince , elizabeth , by the grace of god , queene of england , france and ireland , &c. i knew not how most gratious queene , to make my most bounden & dutifull seruice known vnto your maiestie ; but as dauids seruaunts ventured theyr liues through the middest of their enemies to fetch water from the well of bethelem , to please their lord and maister ; so my selfe thought it my dutie to trauell into some farre countries in no daunger , but of your maiesties displeasure , by presenting some straunge iewels among so many , as might dislike your highnesse , which should scorch mee more then the sunne did ionas when his gourd was off ; and terrifie me more , then the countenance of moses terrified the iewes without his vaile on . but your maiestie , which forget nothing but iniuries , will the sooner forgiue mee my ouermuch boldnesse , the rather for that i present your highnesse , but with iewels , & such as far excell the iewels on aarons garment , the onely pearles which ought to be bought with al the wealth we haue , the iewels which we ought to seeke with all the studie and trauell wee can ; the onely vrim and thummim , which should shine bright on a princes breast , which the auncient kings of israel ware as tablets about their necks , as frontlets on their foreheads , and gardes on their garments , which iewels many other kings sought and mist. licurgus sought these iewels for the lacedemonians at delphos , mena sought them of mercurius for egipt , numa of the nymph egeria for the romanes , & zaleucus of minerua for the locreās . of these iewels also i brought the best pearles i could finde among them vnto your maiestie , in hope of your wonted gracious fauour to accept these iewels for their owne sake , as artaxerxes accepted water of the riuer cyrus , for cyrus sake . your maiesties most bounden and obedient seruant , lodowick lloyd . a briefe conference of diuers lawes , diuided into certaine regiments . in the first regiment is expressed the antiquitie and force of the lawe , the states of common-wealths vnder diuers kindes of gouernments . all creatures of god , as well in heauen as in earth , had lawes giuen them after they were created , to be gouerned and ruled by , the sunne , the moone , and the starres to keepe their perpetuall motions and course in their places and regiments , so the seas haue their limits and bounds , how farre they should rule and raigne , and though one starre differeth from an other in glorie , in greatnesse , and in brightnesse , yet are they gouerned by one perpetuall lawe ; so the seas , though the waues thereof be so loftie and proud , yet are they shut vp within doores , and commaunded to keepe in , and not to goe further then the place to them by lawe appointed . by lawe also the elements are commaunded to staie within their owne regiments , without trespassing one of another , as manilius faith ; certa stant omnia lege , for the stanes by lawe haue their leaders before them , they haue their watch giuen them , they haue their motions and marching appointed them , and as all riuers and waters haue their course and recourse , to the seas , and from the seas , as from their chiefe commaunder , so all starres haue their brightnesse & light from the sun , as from their chiefe generall . neither were the angels in heauen , being the first and the chiefest creatures of god , nor man in paradise beeing the last creature , tanquam epilogus operum dei , without lawe , the breach wherof made such a generall confusion , that it so obscured the first integritie of the lawe of nature , that the angels that offended in heauen , lost heauen , and were iudged to perpetuall darkenesse , and man for his disobedience in paradise , cast out of paradise to euerlasting punishment , so that the angels were not pure , nor the heauens cleare before god. the earth likewise and the seas , and all the creatures in them , by breaking of the first lawe which tertullian calleth primordialem l●…gem & legum omnium matricem , lost the benefites of the first creation , for in adams fall all creatures were cursed , which made augustine to wōder , vtrùm mirabilius homines iustos creare , quàm iniustos instificare , whether the mercy of god were more in creating iust men , or in iustifying wicked men , though with god it was of equall and like power ; yet said augustine , it was of greater mercy to iustifie vniust men , for that iustificatio er at secunda hominis creatio . yet the old patriarches liued vnder the lawe of nature , so paul testifieth that the lawe was first written , not in tables of stones , but in fleshly tables of the heart , for i will put my lawe saith the lorde in their inward parts , and in their hearts will i write it ; so augustine saith , audi linguam non in lapide sed in corde scribentem ; for from the eternall lawe , which is creatrix & gubernatrix vniuersitatis , was reuiued and lightned the lawe of nature , vnder the which the patriarches liued , for the lawe of nature which the patriarches had , being not corrupted , differeth nothing frō the written lawe giuen to moses , which is the whole summe of the morall lawe . what else is the lawe written giuen to moses , but a short repetition , and compendious catalogue , expounding vnto vs the lawe of nature , beeing obscured and corrupted by the fall of adam , but by the second adam renued , written , and giuen to moses in tables of stones , tanquam norma rectitudinis in deo. so paule sayeth , that if the gentiles which haue not the lawe , doo by nature those things contained in the lawe , they hauiug not the lawe , are a lawe to themselues , and therefore the heathens are not excuseable , for conscience which is that flammeus gladius , is a witnesse of theyr fault , and a signe of the anger and iudgement against them for theyr sinne . agnitio peccatilex , and therefore the lawe was giuen to shewe vs our infirmities , and that by the lawe grace might bee sought for , fides enim impetrat , quod lex imperat : for when the lawe was first giuen in mount sinai to moses , it was with such feare , lightning and thundering , with such cloudes , smoake , and fire , that euery part of sinai trembled and quaked , when the lawe was giuen , for the law is full of terror and ministreth vnto death . the law said plato , punisheth wicked mē , & rewardeth good mē , so cicero saith ; lex vitiorū emēdatrix & virtutū est commendatrix . by the lawe we know our selues , without the which we wander in darknesse without light , in ignorance without knowledge , in sin without feare , whose force and authoritie is from god and not from man : so could cicero say , tantalegis vis est , vt ea non homini sed deo delphico tribueretur . and therefore the first and auncient kings and law-makers of the world , quibus omnes antiquae gentes quondā paruerunt , both for the more credit of thēselues & better authoritie of their lawes , made their subiects & people beleeue , when their first lawes were made , that the gods were so carefull , that they gaue them seuerall lawes to gouerne the people . so mena one of the first kings of egipt , affirmed that he had instructions for making of his lawes and decrees to the egiptians , from god mercurius . in like sort licurgus made the lacedemonians beleeue , that the lawes which he gaue vnto them were deliuered vnto him from appollo in delphos . the people of creete were perswaded fully by minoes their first lawe-maker , that the lawes which he gaue vnto them , were deliuered vnto him from iupiter , that thereby the law might the more be feared , and the law-makers better obeyed . so did numa pomp. warrant his lawes which he established among the romanes concerning religion , from the nimph egeria , for the gouernmēt which was vnder kings , is by aristotle called primus & diuinissimus principatus . when the first gouernment and state of common-wealths fell by too much seueritie of kings , as among the romaines who were wearie of kings , and had no lawe but ius regis , the iudgement and sentence of the king , called in romulus time , lex curiata , whose seueritie grew to be such , that the second gouernment in rome , which was by consuls and senators , tooke place by fall of the first , which lawe was called senatus consultus , which grew so great by authoritie of the consuls , that a third kind of popular gouernment vnder the tribune of the people , was authorised to suppresse the misgouernment both of the consuls and senators , as the ephori were among the lacedemonians made by theopompus , to bridle the insolencie of the kings . so were the wise men called magi in persia , without whom the kings of persia could make no lawes . and so the magistrates called megistenes , had the like authoritie with the kings of armenia , as the ephori had in sparta . among the carthagineans also were two chiefe magistrates named suffetes , the one with the other to looke to the gouernment of the kings , that they should iustly and rightly minister iustice to the people . the hebrewes likewise , where god placed iudges to gouerne the people , of the which they were wearie , and would haue a king , so that the romanes being wearie of kings , would haue consuls , and the hebrewes being wearie of iudges , would haue kings , for all nations at the beginning began with the gouernment of kings , sauing the hebrewes , which were as straungers and bondmen in egipt , without eyther king , lawe , or libertie , foure hundred & thirtie yeares , euen from the comming of abraham into egipt , vntil moses and aaron were commaunded to bring israel out of egipt , at what time a lawe was giuen in mount sinai to moses , within fiftie dayes after the israelites came out of egipt , that they should bee gouerned thereby before they possessed the land of canaan . after they had receiued the lawe , the lorde commaunded them that they should not make gods of siluer , nor gods of golde : hee also commaunded that they should make him an aultar , and thereon to offer burnt offerings and peace offerings , with a straight charge that they should not make him an aultar of hewed stones like the aulter at damascus , which achab brought to israel , for that they should doo nothing of themselues after the manner of the gentiles , but by the lords prescript rules , which are his eternall lawes . yet before this lawe was giuen to moses , there were aultars builded and sacrifices offered , by noah after hee landed out of the arke at baterion , by abraham after he came to the land of canaan at sychem , by isaac in bersabe , by iacob in bethel , where hee fled from his brother esau , they were instructed by the lawe of nature , written in the tables of their hearts , to worship the lord , & to feare him euen from the creation . vnder the lawe of nature the people of god liued , and were assisted by the spirit of the lord , ministred vnto them by angels , and instructed by the patriarches , and liuely tradition of the fathers to the sonnes , two thousand fiue hundred yeares before the lawe written . who doubtes but what methusalem ( beeing in the company of adam aboue two hundred & fiftie yeares , and with the rest of the patriarches vnto the very floud , liuing vnder the lawe of nature ) heard of adam , but methusalem deliuered it to sem ? what sem heard of methusalem , but hee instructed abraham therewith ? what abraham heard of sem , hee shewed it to iacob ? and what iacob heard of abraham , hee taught it to amri , who was father to moses , to whom the lawe written was giuen , so that the one was instructed by the other , from the father to the sonne , to serue and feare the lord by the lawe of nature . so that enoch , noah , abraham , iacob , iob , and all the olde patriarches and godly fathers , liued in the feare of god by the lawe of nature . no doubt many things were written of the olde fathers before the floud , and left to their posterities , and after the floud generally ouer the whole world before the vse of paper , lawes and learning were giuē by traditions frō the parents , to the children & their posterities , as the indians which had no lawes written no more then the lacedemonians , but by obseruations , vntill the indian philosophers called brachmaines , found meanes to write in sindone , fine linnen , or lawne , as the old egiptians vsed to write on the inward side of the barke of the tree biblus , or as vlpian saith , the grecians vsed to write on the barke of the tree tilia ; for in auntient time from the beginning , lawes were written on the inward side of barks of trees , as on the barke of beech trees , elme , ashe , palme trees , and such ; for the great library in alexandria , by philadelphis compiled , and the library in asia by a●…talus and eumenes gathered together , were written in haedonis chartis in goate skinnes . during all which time , there was no mention made neither of gods nor of idols , though satan plaid the first idolater in practising to adam & eue , saying ; eritis vt dij ; ye shal be like gods on earth , & your eies shal be opened . satan by degrees deceiued adā , first asking him questions , then doubting , then denying , saying , you shal not die , which was the first lye in the world ; so satan proceedeth with his stratagems , as gregorius magnus saith in vnoquoque lapsu a minimis semper incipitur . yet after the lawe written was giuen , idolatry was presently committed before moses came downe from the mount ; so that there was no idols mentioned nor spoken of , before rachel , iacobs wife , stole her father labans image , and brought it from mesopotamia in her husbands company towards canaan , where laban accused his daughter , that she stole his gods away . but iacob within a while after he came to canaan , commaunded his houshold and all that were with him , to put away the straunge gods that were among them , to cleanse themselues , and chaunge their garments , and iacob buried and hid their images vnder an oake by sichem , and went to bethel , and made an aultar there to his god , as the lord had commaunded him . so ninus a little before that time set vp the first image that is read of to bee among the gentiles , to belus his father , from which time the name of baal , his prophets , and his priests , began to multiply so many in niniuie and in babilon , yea in iudah it selfe among the israelites , to whome the lawe was giuen from the lord to moses , forbidding them to serue straunge gods . ieroboam salomons seruant , and king of israel , which made israel first to sinne , by making two golden calues theyr gods , the one in dan , the other in bethel , saying to the people , these be thy gods ( ô israel ) which brought thee out of the land of egipt . within a while after , wicked achab being not satisfied with the gods of samaria , the golden calues which ieroboam made , brought baal frō assyria to iudah , where he kept and maintained 450. false prophets , to instruct and teach israel in the religion of baal , contrarie to the lawe which the lord gaue vnto moses ; for the lawe was , thou shalt haue no other gods but me : so that the gods of the moabites and ammonites , yea the gods of the gentiles , came to be worshipped in the middest of ierusalem : and mount oliuet was so full of idolatry vnder euery greene tree , and in euery groue , that thereby it was called the mount of corruption , so that ierusalem had as many straunge aultars in the time of salomon , as athens had in the time of paul. the iewes therefore were as idolatrous , and had as many gods as the gentiles had , and rather serued the dumbe idols of the gentiles , then the liuing god of israel . so vaine and wicked were the israelites , that while moses was in the mount with the lord for the lawe , before he came downe from the mount , they had forced aaron to make them a calfe of mettall , as a god to go before them , for so the lord said vnto moses , vp and get thee downe quickly , for the people haue made them a god of mettall , at what time the lord was so angrie , that he determined to destroy all the hebrues for their idolatrie , had not moses earnestly praied , and made intercession for them . for the hebrues before they came out of egipt , sawe the idolatry of the egiptians , in worshipping oxen , calues , serpents , crocodiles , and other beasts as gods , the lawe was not so soone giuen to moses , but it was as soone broken by the people , who forsooke the lord and his lawe , and followed other gods , baalim and ashtaroth , after ioshuahs death , for during the whole time of ioshuah , he kept israel from idolatry , and they serued the lord , but after his death they committed fornication with the daughters of moab , who brought israel to worship and serue theyr goddes , that the lord was angrie with israel , and bad moses take vp the chiefe men among the people , and hang them vp to the lorde against the sunne , that the lords wrath might bee taken away . so after gedeons death israel fell to their idolatrie , as they were wont to doo , that manasses a most wicked idolatrous king builded aultars to all the host of heauen in the house of the lord , and he put vp an image in the temple of the lord , where the lord himselfe said , in ierusalem will i put my name , hee worshipped and serued them , hee reared vp aultars and made groues , he built high aultars , which ezechiah his father destroyed , and following achab king of israel , offered his sonne in fire , so that in ierusalem the israelites worshipped more gods , and had more aultars to their gods , then the athenians had in athens , which paul testified , who sawe so many gods and so many aultars in athens , one to lust , one to shame , and one among so many , ignotodeo , to an vnknowne god . the second regiment of lawes , containing the contempt of religion seuerely punished among diuers nations : of the sundrie sacrifices and vowes of the heathens , and of the multitude of idols and aultars in israel . socrates deriding & scoffing at the multitude of the goddes and aultars of athens , was by the athenians put to death , not for breaking their aultars , destroying their temples , nor betraying the citie , but because he sware by a straunge god , thinking thereby hee had despised the goddes of athens , and more esteemed straunge gods . plato his scholler , though hee was of the like opinion as his maister socrates was , yet durst hee not openly confesse it , for feare of the people , though king dyonisius knew platos minde by his letters , therein signified , that when plato wrote to king dyonisius of one god , then hee wrote seriously and earnestly , but when hee wrote of many gods , hee ieasted with scoffes as socrates did . plato was of oipnion that poets and painters filled greece with all kinde of idols , for what the poets faigned in greece in fables , the same the painters painted in greece in tables , and therefore plato thought good to remoue homer crowned & annointed with all reuerence out of greece , for that hee ( through the opinion of the greekes had of him ) filled greece with too many gods and aultars . but the lord commanded israel to ouerthrowe the ●…ltars of the gentiles , to breake their pillars , cut downe their groues , and burne the images of their goddes with fire , saying ; couet not the golde nor the siluer that is about the heathens images , as achan did , least thou be sna●…ed thereby , for it is an abhomination to the lord. among the romanes they thought it a great sacriledge to contemne and prophane the religion of theyr gods , for so alcibiades was accused of sacriledge for that he offended the lawe of the athenians , despising the holy misteries of the goddesse ceres , entred with his torch-bearer and v●…rger before him , against the lawe of eumolpides , into the secret sacrifice and misteries of ceres , for the which his goods were confiscated , and himselfe banished out of athens for his contempt . so for the like clodius was accused in rome , for that he entered secretly into the misteries of flora , where none should bee but women , and the priests of flora , but as alcibiades was banished out of athens , so clo●…ius after was slaine in rome , for that clodius offended the lawe , being rather suspected for pompeia caesars wife , then for the zeale hee had to floraes sacrifice . so zealous were the heathens , that euen among the scythians , rude and sauage people , for that anacharsis the philosopher brought the ceremonies of the grecians and their religion into scythia , and vsed the same in scythia , he was slain by his owne countreymen the scythians . in like maner the athenians vsed certaine of the acarnanites , who being not priests , prophaned the gods of athens in their religion , which was taken of the athenians for a sacriledge against their gods , and therefore were the acarnanites slaine in athens . if the gentiles do this for dumbe idols and woodden gods , and allow no straunge gods to bee worshipped nor serued within their territories , neither suffered their religion to bee altered , how much more should israel obserue the lawe of their lord and god ? for of him , through him , and for him , are all things ; and as hillarius saith , quicquid in deo est deus est , & totum quod in deo est , vnum est : hermes though a heathen man amōg the egiptians , could say : deus est quae sunt & ea quae non sunt . and plato among the greekes , could say : deum esse aequalem totum & ipsum singulum . such was the blinde zeale of the gentiles towards theyr goddes , that they exceeded the iewes , for as theyr gods were innumerable , so were theyr ceremonies , theyr sacrifices , feasts and vowes infinite , they were so religious to theyr goddes , that they sought neither health , wealth , nor any thing else , without vowes made , eyther to dedicate temples and aultars , to sacrifice and make playes , as the romaines did for the health of theyr consuls , dictators , and emperours , or for any thing else , the priestes of iupiter called flamines should offer the sacrifice of haecatombae vnto theyr gods . the grecians also when their gods were offended with them , vowed for their assistance and helpe , to stand with them to dedicate statues & images , with crownes , chaines , and iewels . the egiptians when they had offended their gods , they should shaue their heads and their beards , and dedicate the haires thereof at memphis , with vowes made that they would build temples of marble and of iuorie to their gods . the persians which haue neither temples nor images , but the sunne onely whom they worship , whose temple said they , is the whole world , to whom the persians made a pile of wood , offered sacrifice , and powred wine , milke & hony , which with supplication & vowes they made to the sunne , for the persians had neither temples nor idolls , which made xerxes when he came to greece with his persian armie , and sawe their goddes and idolls so full painted and pictured on the walles of their temples , that he left neither gods nor temples that he could come vnto , vnburned . in so much that the lorde complained by his prophets , and brings these heathens , the romanes , egiptians , persians , & others in , for a proofe against his people , saying ; how these gentiles obserue and keep the lawes of their gods , and suffer no straunge god to be worshipped among them , but my people will not obey me saith the lord. the prophet ieremy cried so to israel , saying ; looke how many cities are in thee ( oh iudah ) so many strange gods do you worship within iudah . and so the lord complained how the rechabites kept the lawes and ordinances of their father ionadab , that commaunded them , they should neuer drinke wine , build no house , sowe no seede , plant no vines , and haue no vineyards , they haue kept their fathers lawes , but my people will not obey my lawes , nor keepe my commaundements saith the lord. so did the sonnes of mattathias , as the sonnes of ionadab did , obeyed their fathers commaundement in obseruing the lawes of the lord. the examples are verified in all the kings of israel , euen from salomon , for hee forsooke the lorde , and serued straunge gods , and builded aultars to chemosh , god of the moabites , and to moloch , god of the ammonites . but dauid burnt the images and idolls of the philistines in the valley of giants , so in like sort were the idols of the iamnites burned . the lord therefore sent ahiah the sylonite , to ieroboam , salomons seruant , which tooke his mantle , and rent it into twelue peeces ; thus saith the lord , so will i rent the kingdome out of salomons hand , and will giue tenne tribes to thee , although they read in the lawe of the lord , that the sword of the lord is sent against them that worship images , as the lorde said , i will whet my sworde which shall eate the flesh of ido●…ators , and will make my arrowes drunken with ●…heyr bloud , i will destroye your aultars , ouerthrowe your images , and cast your bodies vpon the ●…arkasses of your idols , yet would not israel bee in●…tructed . and therefore it was prophesied and said of ierusalem , thou shalt serue thy enemie in hunger , in thirst , ●…n nakednesse , and in neede , and he shall put a yoake of iron vpon thy necke , vntill hee haue destroyed thee ; thou shalt eate the fruite of thy body , euen the flesh of ●…hy sonnes and daughters , during the siege and straight●…esse wherein thy enemies shall inclose thee , because thou obeyedst not the voice of the lord , so that thorne and thistle shall grow on their aultar , and they shall say to the mountaines , couer vs , and to the hilles fall vpon vs. and therefore zaleucus pythagoras scholler , the first lawe that he made among the locreans , was first to establish religion , and to honour and worship the gods , acknowledging all things that are good , to come from diuine powers ; the second lawe was against contention and discord among the people , exhorting one to loue an other , agreeable to the lawe of nature , which lawe was giuē vnto vs that we should loue others , and do for others , as much as for our selues . hence grew that paradoxe of pythagoras , that all things should be common amongst friendes , and friendship most common ; and therefore socrates was wont to curse that man , qui primus vtilitatem a natura seiunxisset , for what nation is in the world , but by the law of nature , loues lenitie , humanitie , gratitude and goodnesse , and by the selfe same lawe hates crueltie , pride , vngratefulnesse and wickednesse . it seemed that zeleucus read moses lawe , for that his first lawe was concerning religion in the first table , and his second lawe touching loue and charitie betweene neighbours in the second table . licurgus among the lacedemonians made a lawe that no straunger might come and dwell in sparta , not in any part of lacedemonia , lest they should defile & prophane their lawes and religion , neither should that lacedemonian , that went out of his countrey , returne to his countrey , lest he should corrupt their religion . so it was among the israelites by the lawe of moses , that no straunger might match with the israelites , neither by marriage , nor by any societie , vnles they would become obedient to the lawe of moses . it was not lawfull in athens to thinke , much lesse to speake any thing against their gods , and for that auaxagoras the philosopher said , the sunne was but a fierie stone , he was by the athenians put to death , for that the athenians iudged the same to be a god. so carefull were the gentiles to serue theyr gods , that gedeons death was sought , for the breaking of the aultar of baal , ieptha was threatned to be slaine in his owne house , whereby hee was forced to flie to the land of tob. protagoras , because the athenians found that hee doubted in his opinion of the gods of athens , they so sought him , that had he not fled betimes hee had died for it . the like hapned to a romane captaine in egipt for killing of a catte one of the gods of egipt , which was against his will , he hardly escaped with his life , whom the people so followed and pursued to alexandria , that ptolomeu the king and all his princes had their hands full to saue him and others from death . the athenians also were so zealous and religious towards their gods , that they decreed 600. crownes to any man that would kill diagoras , for that hee was charged , that hee scoft and laughed at their gods , and doubted whether any gods were , & if there were , what maner of gods they were . too many examples might be brought for the proofe of this in all ages , and in all countries . the lawes of moses by the lord set downe , was to serue him in the temple of salomon : and that onely in ierusalem , yet salomon in his old age forsooke the temple , which he made to serue the lord , and was the first himselfe that serued straunge gods in groues , and vnder euery green tree , that from salomons time idolatry grew so in iudah , that the israelites had as many lawes , as they had gods , and as many gods as they had cities , and although they had not so many temples builded to their gods as the gentiles had , yet they had as many aultars in groues & vnder euery green tree , for among the israelites in euery groue was a temple , & vnder euery greene tree an aultar ; & yet they spared not to defile the temple of the lord in ierusalem ; among the gentiles they were so carefull of their gods , that euery god had his temple , for among them two gods might not be in one temple . so the romanes could endure nothing worse then to suffer strange gods to be among them , for lu. aemilius the consul , was by the senators commaunded to pull downe the temples of isis & serapis 〈◊〉 ●…at they were egiptian gods : for there was a lawe among the senators of rome , that dij peregrini e ciuitate ●…ijciantur . and therfore the romanes so esteemed their gods , that when pilate wrote vnto his lord and mais●…r tiberius caesar , to haue one iesus allowed to be one of the gods in rome , who did many miracles and great wonders in iudah & ierusalem ; and yet of malice by the iewes was put to death : though caesar would allow it , and would haue the senate also to allow 〈◊〉 , yet the senators thought it not fit that a strange god should be accepted in rome , among the romane gods , so that the romains & the grecians could serue many gods , but israel could not allow nor accept their lord & god , for the samaritans draue him out of their cities , the gergesites banished him out of their country , and in ierusalem his owne citie , the iewes crucified him , preferring barabas the murtherer , before iesus their sauiour . yet cyrus king of persia , caused it to be proclaimed by writing throughout all his empire , that the lorde god of heauen , had commaunded him to build him a house at ierusalem in iudah , confessing that he onely is the god that is at ierusalem ; and therfore cyrus commanded the israelites to build their temple againe . artaxerxes , surnamed long hand , made the like lawe for repairing of the temple of ierusalem . nabuchodonozer published a lawe that he should be torne in peeces , and his house made a iakes that blasphemed the god of israel , but before he said , what god can take you out of my hand , at what time holofernes said , there was no other god but nabuchodonozer . darius medus made a streight lawe , that all dominions and people should feare the god of daniel , but before he proclaimed an edict , that whosoeuer desired any petition , either of any god or man , within 30. dayes but of himselfe , should be cast into a lions den , so that daniel was found against the statute praying to his god , and was cast into the lions denne . king agrippa all in cloth of siluer , glistring garments , making an oration to the people vpon the theaters at caesaria , because hee suffered the people to flatter him , and to say it is the voice of god & not of man , which as thucidides saith , is one of the three most dangerous enemies to ouerthrow a common-wealth : this king in the very face of these his flatterers , was presently so tormented with such pangues of death , that dying hee spake to the people , see whom you called a god a little before , dieth now like a most wretched man , like bel the god of nabuchodonozer , who after that daniel tooke pitch , fat , and haire , and did seethe them together , and put it in bels mouth , god bel burst in sunder , of whō daniel said , behold your god bel whom you worship , for the greatest king is like an earthen vessell soone broken , a spider is able to poyson him , a gnat is able to choake him , and a little pinne able to kill him , this is the greatest glory that man can bragge of himselfe . in the third regiment is set downe the idolatry and superstitiousnesse of the israelites , compared by application with the customes and lawes of the gentiles , in egipt the mother of all idolatry , from whence the grecians , the romanes , and all the world were instructed to serue straunge gods , they had most sumptuous temples of marble and of iuory , bedect with gold & siluer most richly ; but such ridiculous gods were in egipt , as apes , dogges , crocodiles , calues , oxen , serpents , and cattes , that euery seuerall citie in egipt , had a seuerall beast for their god , in memphis a bull , in heliopilis an oxe , in medeta a bucke goate , in the citie of elephantina a crocodile , and so of the rest . and therefore the greekes scoffed the egiptians , for that there was no beast so vile but they would make him a god in egipt , and none but beasts were gods in egipt , the grecians gods were carued & made like men . the romains made themselues gods , as domitianus , after he decreed to be called sonne vnto pallas , was not contented therwith , but would be called dominus deus domitianus . so caius and other some of the later caesars , would bee called sonne vnto iupiter , others brothers to the sunne and moone , which both augustus caesar and tiberius refused to be honored with those names though they were offered ; others would haue their image set vp in the temple at ierusalem ; but woe be vnto him that saith vnto a peece of wood , arise , and to a dumbe stone , stand vp . and therefore the prophet saith , confundantur omnes qui adorant sculptilia , & gloriantur in simulachris suis. wee are forbidden to bring rubbers and napkins , and to holde a looking glasse to iuno , for it is not pauls napkin , peters shadow , elizeus staffe , moses rodde , nor elias mantle , but the lord god of elias , as elizeus said . when pilate the romane president was commanded by tiberius the emperour , to set vp his image in the temple of ierusalem , some of the best of the iewes went to caesaria to pilate , requesting with teares , that hee would not violate the temple with images , pilate aunswered , caesars image must be set vp , or else you die for it , they presently offered their neckes bare to be cut off , before theyr lawe should be broken , or the temple violated with images . the like commaundement had petronius from his maister cai. caesar , to set vp his image in the temple , but in like manner as before to pilate , the iewes came with their wiues and children to entreate petronius , who told them as pilate did , that the image of caesar must bee set vp in theyr temple , as other nations suffered the romaine emperours images to bee set in their temples among their gods , as fellowes to theyr gods , or else they must dye for it , the iewes answered petronius , that all the iewes in iudah , men , women , and children , shall and will dye before the lawe shall be broken . thus were they so slaine and killed betweene the romaine emperours and the kings of assyria , that their bloud was shed out like water on euery side of ierusalem , and yet would they not allowe images , nor haue theyr lawes broken . the romaines had no images for 170. yeares , though afterwards they had in their closets diuers images which they worshipped as goddes , they had also houshold and peculiar gods at their gates , and in theyr entries , besides the images and statues of themselues and of their friends , so that the romaines so esteemed images , that in the time of the late caesars , theodosius the emperour thought to destroy antiochia , for the pulling downe of the image of his friend placilla , had not macedonius perswaded him to the contrarie . so agrippa for his woman drusilla despised paul. among the iewes one theudas a magitian tooke vpon him to be the messias , perswaded the people that he was that prophet which they looked for , and that he was able with a word to deuide the riuer iorden into two , and to giue him and his company place to passe through , but he was slaine and his company , and theudas head brought to ierusalem by cuspius the romaine president . an other after theudas , called attonges a shepheard , affecting the kingdome , made himselfe the messias . and after attonges one barcosma , who tooke vpon him to be the messias , whom the iewes so affected and followed thirtie yeares , and when they perceiued hee could not keepe promise with them in vanquishing the romanes , the iewes slew him . but as the israelites offered the bloud of beasts , and sprinkled theyr aultars , according to the lawe of moses , so the gentiles imitated the hebrewes , offered also bloud , but the bloud of theyr seruants and children . the heathens thought no bloud too deare to please their gods . for the romains were admonished out of the bookes of the sibils , which they more honoured and esteemed in rome , then the bookes of the prophets were in iudah , as it may seeme by torquinius priscus , who bought them so deare , and after were more carefully kept , then zedechiah king of iudah kept the lawes of god , for hee did burne and teare the booke which ieremiah sent to him from the lord , without any dread or care had of the prophet , so that the bookes of the sibils were more reuerently kept , and their lawes obserued in rome , then the bookes of the prophets in ierusalem . so zedechiah the false prophet was preferred by achab before michaeah the true prophet of the lord , and baals priests before the lords prophets . the romanes had their warrants from the bookes of the sibils , to sacrifice vnto iuno a quicke man buried , as the grecians were wont to sacrifice to bacchus . the phaenizians and the carthagineans sacrificed to saturnus with infants bloud , the laodicians sacrificed a young virgin vnto pallas ; so the lacedemonians sacrificed to mars with bloud ; the old germanes to mercurie with bloud . these sacrifices of bloud were contrarie to the lawe of licurgus , taught among the lacedemonians , and after by numa pomp. imitated in rome in all his lawes , taught to him by the nimphe egeria , as licurgus lawes were taught to him by apollo in delphos . yet pythagoras brought this lawe of licurgus , after numas time , from greece to other parts of italy , for it was pythagoras lawe according to licurgus , that nihil animatum dijs litetur , that no bloud should be sacrificed , but fruites , hearbes , flowers , meale , milke , honie , and wine , which was the lawe of licurgus among the lacedemonians . the romaines as cicero said , had their temples made to pietie , faith , vertue , and to the minde , as degrees and steppes to ascend vp to heauen , but by the same lawe of cicero , they were forbidden to build any temples to any prophane vice , contrarie to the greekes , and to the egiptians , who allowed all kinde of theyr countrey gods , but yet would allow no straunge gods . it was the chiefest poynt among all heathen princes , to bee carefull of their religion . oportet principem saith aristotle , ante omnia , res diuinas videre curari . for in pauls time when he came to athens and sawe so many gods , and so many aultars , paul waxed angrle to see one aultar to lust , an other to shame , and another to an vnknowne god , after he had disputed with certain philosophers of the stoiks and epicures against theyr gods and their aultars , he had no other commendations of the philosophers in athens , but to be called spermolagos , a teacher of straunge doctrine . among the iewes the punishment of idolators was , to bring them to bee stoned with stones to death , beeing lawfully conuicted with two or three witnesses , and the handes of the witnesses shall be first vpon them to kill them , and the handes of all the people . i neede not goe out of iudah for examples to the gentiles in following straunge gods , in committing idolatrie , and in forsaking the lawes of the lord. manasses built aultars in the house of the lord for all the hosts of heauen , gaue himselfe to witchery and forcerie , vsed them that were soothsayers , and had familiar spirits , and caused his sonnes to passe through fire in the valley of hinnon . wicked ahaz king of iudah , made an idolatrous aultar , sacrificed & offered the bloud of his son through fire to moloch . so wicked achab offered the bloud of his sonne likewise in tophet , to moloch , following the king of moab , who sacrificed his sonne that should haue raigned next after him king , to please his idoll chemosh . thus the kings of iudah and israel prophaned the lords aultar with the bloud of their owne children to please their dumbe idols . yet pythagoras and vlixes , two heathens , sacrificed to vrania , but with water and hony mingled , according to numa pomp. lawe , which commanded that no bloud should be offered in sacrifice , but milke and hony . no doubt the gentiles imitated these wicked kings of iudah in their sacrifices , in their vowes , and in the dedicatiō of their temples and aultars , taking abraham for their warrant in sacrificing his sonne isaac , and ieptha in sacrificing of his daughter , for their idolatrous sacrifice , in murdering their children , as is said before of achab , manasses , and others . the ammonites had a great image called moloch , which had seuen chambers within the hollownesse of it , one to receiue meale , the second to receiue turtle doues , the third a sheepe , the fourth a ramme , the fift a calfe , the sixt an oxe , and the seuenth a man. this idoll had the face of a calfe , with stretched out hands to receiue gifts , certaine samaritan priests called chemarims , attended vpon this idoll moloch , & though i know well that graue & godly iudges are not acquainted with molochs reaching hand , nor with his chambers , yet i doubt some like chemarims , that liue in the world and serue moloch , attend more vpon the reaching hand of moloch , and his hollow chambers , then their maisters becke in true seruice , to whom may bee said , as christ spake to nicodemus , art thou a maister in israel , and knowest not how to be borne againe ? euen among the persians cambises though a tyrant and a wicked king , yet would he haue the persian lawes obserued , for the breach whereof hee caused one of his iudges named sinetes , corrupted with money , to haue his skinne fleyed from his backe , and to be made a carpet for his sonne that succeeded after him to leane vpon to put him in remembrance of his fathers corruption , and punishment by the law , that his sonne therby might better obserue the lawe , remota iustitia regna magna latrocinia sunt . darius king of persia caused sandoces one of his iudges , for that he was corrupted with money to iudge vniustly against the law , to be hanged and codemned by the lawe , in that very place where hee was appointed to be a iudge . of these corrupt iudges , and of the like , the prophet saith , dextra eorum repleta est muneribus . these and such lawiers and iudges that oppresse poore widowes and orphants , robbe the poore & are corrupted with rewards , cannot be hold the brightnesse of moses face , without a vaile to couer their face . these are the lawiers of which the prophet speakes , that turne the lawe to wormewood , righteousnesse , to bitternesse , and cast downe iustice to the ground , for nihil tam ven●… quam aduocat●…m praesid●… , saith aristotle . and therefore the prophet esay reprehended the iudges of israel , and called them companions of theeues , following after gifts and rewards as samuels sonnes did , he called them tyrants of zodome , and people of gomorah , learne to do right saith the lord , apply your selues to equitie , let the widdowes complaint come before you , and helpe the fatherlesse to his right . this is the lawe onely of the lord , these be the precepts and summe of all lawes , to liue honestly , to hurt none , and to giue to euery man his owne , for where good kings rule and raigne , there lawes are obeyed . iudges ought to doo righteous iudgement , they ought to accept no persons , but iudge according to the lawe of the people , they should heare the small and the great alike , neither accept the face of the poore , nor feare the face of the mightie , for that iudgement is the lordes , therefore iudges are called goddes , for the lawe commaundeth that thou shalt not raile vpon the magistrates , neither curse the ruler of the people . so homer saide , ex ioue sunt reges . to that effect dooth plato likewise say , deus quispiam humanus rex est . what lawe had then nabuchodonozer to say , what god is hee that is able to take iudah out of my hand ? or holofernes to say , there was no god but onely his maister nabuchodonozer , such lawes made domitianus , that he would be called dominus deus domitianus . what lawe had king zedechiah to answere his nobles that sought the prophet ieremies death , take ieremie and do with him what you list , it is not lawfull for me to denie you any thing . the like lawe and the like words vsed king ashuerus to ammon , who sought the destruction of the iewes throughout all the kingdome of persia ( age quod placet ) do what thou list with the iewes . the like lawes vsed darius at the request of his persian princes , to throwe daniel the prophet of the lord to be deuoured of lyons ; these are the lawes of tyrants and not of kings , to kill the prophets of the lord without lawe , they forget the lawe of the lord written by esay the prophet , woe be vnto you that make vnrighteous lawes , and deuise lawes which are hard to keepe , and are not to be kept , that thereby the innocents are robbed of iudgement , such a lawe made iezabel for naboths vineyard with false witnesse . these kings like tyrants , vse the sword for bloud , and not the scepter for iustice , like pharao , to whom when moses alledged all the lawes of the lord , hee said , who is the lord ? nescio dominum , i know not the lord , like lysander of sparta , who said to a lawier that pleaded lawes and customes on their sides , he pleadeth best in lawe which pleadeth with this , said lysander , laying his hand on his sword , for this penne doth write with bloud . sileant leges inter arma . so also pompey the great said , what prattle you to vs of your lawes , when wee haue our swordes in our hands . who doth warrant the sword but the lawe ? who defends the lawe but the sword ? he that commaunded peter to put vp his sword in his sheath in mount oliuet , was euen he that commaunded ioshua to pull his sword out of his sheath to destroy the canaanites : the first commaundement that was giuen to man after the creation , was the lawe , and vpon breach of the lawe , was the sword giuen to reuenge iustice , for the lord is iust , for as lawes are made by god , and ministred by angels vnto men , so must lawes be obeyed with reuerence , and defended with the sword , prudentem dicemus sibi & reipub ▪ consulere , potentem , & validum . so plato saith , that he is valiant and wise that can both with the sword and the law defend a common-wealth . in egipt it was not lawfull for any heard-man to come within their temples , neither among the hebrewes was it lawfull for men or women that had any white or blacke spottes , somewhat reddish , or pale , to come among the congregation to the temple , for the priests should pronounce them vncleane . so among the persians by the lawe of their magi , none that had any pimples or red speckes on their face , might touch the aultar , or offer any sacrifice to their gods , for in persia they had neither temples nor images , but among the persians and the arabians laid fire vpon the aultar in a vessel called arula , and offered frankinsence in sacrifice onely to the sunne , for the gentiles trimmed their aultars diuersly , the aultar of iupiter with oaken branches , the aultar of appollo with lawrell , the aultar of bacchus with iuye , the aultar of hercules with popley , and of pluto with cypresse , so were the aultars of minerua with oliue , and of venus with myrtle , so that there was no seruice omitted , no dutie forgotten , no lawe broken in the superstitious and prophane religion of the heathens . so fond and superstitious were both the athenians and the romaines , that the athenians builded temples out of athens , to pouertie and old age , because they would faine expell these aged and poore gods out of athens , or else to put the athenians in remembrance that they should pray vnto them , least they should come to pouertie and to want . the romans and egiptians builded temples to those gods that might annoy their cities , out of their cities , as the romanes builded the temples of bellona & mars foure miles out of the gate capaena in rome , to re●…ist and withstand the trecherie and violence of their enemies . the egiptians builded the temples of saturnus and serapis out of the cities , as gods to watch , ward , & to defend their cities from the enemies , and least their gods by inuocation or supplication of the enemies should forsake their cities , the romanes bound fast the image of mars , and the carthaginians hercules . see how blinde men in religion , are ignorant in gods seruice , and yet ignorance with some late learned men , was termed the mother of deuotion . the lord commaunded israel to serue no straunge gods , but him onely , and to come at three appointed feasts in the yeare to one place in the citie of ierusalem , to serue him , and to sacrifice in one temple , the temple of salomon ; for as the lord made choise of one nation to be his peculiar people , so hee made also choise of one place ierusalem , where his name should bee worshipped and called vpon . after that the tabernacle was set vp , & the arke of testimonie set therin , the lord commanded moses to bring aaron and his sonnes vnto the doore of the tabernacle , and there to wash them with water , & after to put vpon aaron the holy garments , to annoint him and 〈◊〉 him , that he might minister in the priests office . the gentiles vsed the like ceremonies at the first co●…crating of any tēple , which they dedicated to their gods , that they should lay their hands vpon the porch poste , calling vpō the name of that god , to whō they consecrated the temple , for whatsoeuer the gentiles dedicated to their gods ( though prophane before ) yet after they were cōsecrated , they were , sacra diuino cu●… mācipata ; ci●…er temples , aultars , mony , religious places , or otherwise . for among the romains & the grecians , the dumbe , deafe , blind , lame , or maimed otherwise by nature , were reiected from any office in the temples of their gods . so was it among the persians in like sort , that no blinde or maimed man should minister vnto their gods . whence had they all these originals , but ( as it seemeth ) from the lawe of moses ? and as moses was commaunded that aaron and his sons should be first washt with water , before they should put on their holy garments and minister vnto the lord ; so the priests of egipt should often wash and annoint themselues , before they should serue and sacrifice in the temple of isis. so the priests of greece washt and annointed themselues before they would sacrifice vnto ceres . and so among the romanes & in other places , they seemed ( though they erred much ) to imitate the ceremonies of the iewes , who had their warrant from the lord , and they from the diuell . moses put on aaron the coate , and girded him with a girdle , cloathed him with the robe , and put the ephod on him , after he put the brest-plate thereon , and put in the brest-plate the vrim and thummim ; he also put the golden plate and the miter vpon his head , and vpon the miter the holy crowne , as the lord had commaunded moses , and he powred of the annointed oyle vpon aarons head and annointed him , that the excellencie of his calling might be knowne , and the dignitie of his office present the maiestie of the highest . hence the heathens and the gentiles tooke their platforme , as an example to be followed in the annointing and crowning of their kings , by the lord warranted and particularly set downe to moses , whereby you shall find by comparison , that the prophane ceremonies of the gentiles tooke their originall from moses lawe , in the annointing of their kings . in the fourth regiment is shewed , how the gentiles confirmed their lawes by diuers authorities , faining that their la●…s were giuen to them of their gods , with the straight keeping of the same . there was no lawe among the gentiles made nor established , vnlesse they were authorized and confirmed by some diuine power to satisfie ignorant people , for the heathens most preferred that lawe , and esteemed that gouernment , which was commaunded and allowed as it were , from the gods , as by mercurius in egipt , by iupiter in greece , and by appollo in sparta , as you heard before . so among the locreans , their lawes were authorized by minerua , among the getes by the goddesse vesta , and so the lawe which sergius compiled to the turkes , to this day the turkes holde it authorized and confirmed from the very mouth of their great prophet mahomet . and for that a sperhawke brought in her clawes a booke written with red letters to the priests at heliop●…lis in egipt , containing the lawes and religion of theyr gods , the priests therefore euer after ware red scar●… caps , like the colour of the letters , & the feather of a sperhawke in their caps , in memorie thereof . so no warre was commenced , nor battell taken in hand without such policies to intice and allure the souldiers to fight , as sertorius had his white hinde , which he taught to follow him in his affrican warres , by whom he made his souldiers belieue hee was instructed to d●… any thing he did . so lu. sylla would take vpon him in the sight of his souldiers , to consult with the picture of appollo , to make his souldiers more obedient and valorous . so did marius with his scythian woman martha , and so of others , which i spake of in my booke of stratagems , and now to the sabboth . the obseruation of the sabboth , was seuerely by the lawe of the iewes kept , for the lord blessed the seuenth day and hallowed it , to rest from our workes , a●…d to serue the lord , signifying vnto vs our eternall rest to come : and therefore the iewes gathered vpon the sixt day in the wildernesse , so much manna as serued them vpon the sabboth , because they should not breake the sabboth . as the lord iesus was crucified on the sabboth eue , and rested in his graue the sabboth day , so careful were the iewes to obserue the sabboth , that the holy womē that followed christ , with their odors , ointments , and spices , staied from the annointing of his body vpon the sabboth , for the sabboth was made especially , that they should cease from labour , and come to heare the lawes of the lord , and the voices of the prophets , which are read euery sabboth day in the temple . after the destruction of the temple first builded by salomon , the lord stirred vp cyrus for the second building of the temple , and to deliuer all the vesselles of golde and siluer , which nabuchodonozer had taken out of the temple of ierusalem , to be placed againe in the house of the lord at ierusalem , according to the prop●… sie of esay , two hundred yeares before cyrus time . after cyrus , darius and artaxerxes , kings of pers●… , commaunded in like manner that the temple which was hindred for a time by meanes of the samaritans to cambises and others , should be with great diligence b●…ded , and all the vessels wich king nabuchodonozer too●… away , should be according to cyrus , darius , and a●… erxes , three mightie kings of persia , againe restored to ierusalem . among the grecians the first day of euery moneth was their sabboth , called among them ( as among the iewes ) neomenia , which they kept most solemnly & serued most religiously their gods . among the romanes the nones and ides of eu●… moneth were their sabboths , and obserued as religious daies , on which daies they would commence no bat●… , but as a sabboth to serue their gods ; for on the ides of euery moneth throughout the yeare , the romanes 〈◊〉 great solemnities , with diuers sacrifices and religious ceremonies . among the parthians they obserued the very day that arsaces ouerthrew zaleucus to bee theyr sabboth , for that they were restored on that day to theyr libertie by arsaces , which daye they keepe as a religious day , and vse great solemnitie in memorie of their libertie . the day that cyrus ouercame the scythians , was one of the sabboths of the persians , which they call sacas . and an other sabboth day of the persians , had on the very day that their rebellious magi were slain that would haue vsurped the kingdome , in memory whereof they consecrated a feast called magoph●…niah , the which day was so solemne a sabboth among the persians , that it was not lawfull for any of the magi , that day to goe out of his house . the victories at marathon and at micala ouer the persians , was the sabboth of the athenians , for among the heathens the dayes of their victories and triumphs , the dayes of their liberties restored , and of their feasts ; were their sabboths ; for as it was not lawfull among the iewes to fight vpō the sabboth day , so among the heathens they straightly obserued their religious dayes as their sabboth . phillip king of macedonia , vpon the very day that his sonne alexander was borne got two victories , the one was with his mares in the games of olympia , and the other with his men of armes in thracia , for memorie whereof , hee decreed an annuall feast to bee made , which was obserued for a sabboth among the macedonians . the iewes so obeyed and reuerenced their lawes , that they would not breake theyr sabboth daye , in so much that they suffered theyr enemins to kill and ouerthrow them , because they would not fight vpon the sabboth day , so did they when they began to build the temple , before they would build houses to dwell in , or walles to defend them , but euery man readie with weapon in one hand for their enemies , & working with the other hand . nicanor going to strike a fielde with iud. machabaeus vppon the sabboth daye , was willed to hallowe the sabboth , who said , is there a god mightie in heauen that commands to keepe the sabboth day ▪ and i am mightie on earth that commaund the con●…ry , but nicanor lost the battell , and his life in the battell , and his head , his hands , and his blasphemous tongue were cut off , and hangd on the pinnacles of the temple at ierusalem . nehemias finding some israelites prophaning the sabboth day , in carrying burthens , he tooke them and rebuked them sharply for prophaning of the sabboth day . so straightly the iewes obserued their lawes , that he that gathered but a fewe stickes vpon the sabboth day , was taken and brought to moses , and moses brought him before the lorde , and sentence of death was giuen vpon him by the lord , for breaking of the sabboath , saying ; let him bee stoned to death by the people . such reuerence & obedience the iewes had to moses lawe , that when alexander the great commaunded the high priest to aske him whatsoeuer he would haue him to do , whereas he might haue had territories and countries giuen him , hee requested but the liberties and lawes of his countrey to the poore iewes that did inhabite within asia , and all the dominions of alexander . so did the iewes that dwelt in greece , in asia , and in antioch , requested of zaleucus and antiochus the great nothing but that they might liue , and enioy the benefites of the lawes of their countrey , which is the lawe of moses . neither could the iewes endure any that would despise theyr lawes , for a souldier vnder cumanus the romane president , for tearing of moyses bookes in contempt , mooued suche sedition , that they came armed to cumanus , and claimed to haue iustice executed vpon the souldiers that so despised their law , for the tearing of one leafe . the like sedition moued an other romane souldier vpon the feast day of the iewes by shewing his genitall parts , scoffiing and flowting theyr lawes and religion , so that cumanus to satisfie the iewes , put both the romaines to death , to the losse of twentie thousande iewes by the romaine armyes afterwards . the iewes suffered many ouerthrowes most willingly vpon the sabboth day , saying : moriamur omnes , because they would resist neither pompey the great , nor antiochus king of syria vpon the sabboth , a●… the romaines and the syrians euer found mea●… to fight with the iewes vppon the sabboth daye , on the which daye pompey the great tooke ierusalem . therefore iud. machabaeus made a lawe , that to fight vppon the sabboth day , in defence of theyr lawes , of theyr countreys , and of theyr liues , was no seruile worke , but thought it lawfull to fight vppon the sabboth daye with nicanor a blasphemer , and an enemie of the lorde and his armye , and so ouerthrew nicanor , and slew nine thousand of his host , so that vpon the sabboth day any man may do good . so christ aunswered the israelites for his disciples , beeing accused that they brake the lawe in eating the eares of corne , haue you not read what dauid did when hee was a hungrye , to eate the shewe bread , which was not lawfull but onely for the priests : so he also answered for himselfe , beeing accused of the israelites that he brake the lawe in healing the 〈◊〉 vpon the sabboth day : which of you said christ will not loose his oxe or his asse from his cribbe vpon the sabboth day to water them ? the sabboth day is the schoole of the lord , in the which he would haue his people taught and instructed , not onely to heare the lawes read vnto them , but to learne the lawes , and to liue according as the lawe commaundeth them , to that ende was man created that hee should bee the temple of god , where the lord might dwell and raigne within him , and that the lord should be our aultar , vpō the which we should offer our selues vnto him in sacrifice , both in body and ●…ule . among the heathens the sabboth of the lorde was not knowne , for that they knew not the lord of the sabboth : this commandement pertained onely to the children of the lord the israelites , to whom the law was giuen in hope of eternall rest . the restoring to their libertie , their victories , their triumphes , theyr feastes , and the dayes of their birth , these were the sabboths of the gentiles , to serue , to giue thankes , and to sacrifice to their gods , as before 〈◊〉 written , but the lord spake to israel , you shall not obserue time to make some dayes luckie , and others vnluckie , as the gentiles did , but only obserue your sabboths ▪ and to come to the temple to heare the lawes of the lord read . when hanibal departed out of italy , the temples were set opē according to the custome of the roman●… that they might goe and giue thanks to the gods for the vanquishing of such an enemie . archidamus began first with seruice and sacrifice to the gods , before he would attempt any great battel with the enemie . xenophon before hee had gotten his whole armie reconciled , and willing to craue the fauour of the gods in any distresse , hee would take no iourney in hand . the gentiles obserued times , dayes , and moneths , as the kings of macedonia commenced nowarre during the whole moneth of iune . the romans likewise obserued the nones of euery moneth as vnluckie and religious dayes , and refrained that time to take any great thing in hand . the germaines also had a lawe not to fight any battell in the wane of the moone , much like the lacedemonians , who were forbidden by licurgus lawe , that they should take no warre or battell in hand before the full of the moone , they were therein so religious , that they absented from the battell at marathon foure dayes . the romans also would enter into no field , neither wage any battell vpon their religious dayes . cai. caesar in his warres against ariouistus , king of the germaines , knowing that the germaines hadde a lawe set downe , that it was not lawfull for them to commence any battell in the wane of the moone , caesar obseruing the germaines to bee so religious , gaue them a battell vnexspected , and ouerthrew them . so titus vespasian vpon a satterday , the sabboth of the iewes , subdued the iewes , destroyed the temple , and tooke ierusalem , as pompey the great did before . before the temple was builded in ierusalem by salomon , the israelites came to siloh , where the taber●…cle rested , to offer to the lord , as after they did to ie●…salem . in this temple at ierusalem , the lord promised to salomon , that he would present himselfe , and appeare at the prayer of salomon , as hee promised to moses in the wildernesse to appeare at the doore of the tabernacle , to comfort them , and to further them in all theyr lawes . the angels that brake the lawes of the lord in heauen , were condemned , and had iudgement giuen to bee prisoners in perpetuall darkenesse , and man that brake the lawe in paradise , had sentence of death pronounced against him by the lorde himselfe in paradise . and therefore licurgus to haue his lawes continue among the lacedemonians , to performe the oracle of appollo , which was , so long should the lacedemonians keep licurgus lawes vndefiled , as long as licurgus should keepe himselfe absent from the lacedemonians , and therefore most willingly banished himselfe out of his countrey to dye in delos , that by his absence the lawes which he established amōg the lacedemonians should continue , his lawes therefore continued 500. yeares and more after his death . the contempt & breach of lawes in all countries were seuerely punished , in so much that charondas made a law to the carthaginians , archadians , & others , that they that found fault with paenall lawes , should be crowned with tamarisk , and be carried round about the towne , and so thence to be banished , according to the lawe of the 12. tables , violati iuris paena este . and therefore antalcidas accused agesilaus for the breach of licurgus lawe , for that he taught the persians by often warres to become men from women ; non diù in hos bellaadum ne ipsi bellicosi euaderint . charondas made an other lawe , that if any that were cōuicted , thought his lawe to be too seuere , they might vpon condition make meanes to the people for abrogating of the lawe , the condition was , they should come with halters about their neckes , before all the people in one place assembled , which if they by complaining of the seuerities of the lawe , should goe free , the former law should be abrogated , or mitigated , but if they falsly accused and slaundered the integritie of the lawe , they should be strangled with the same halters which they ware about their necks , to accuse the law , for the words of the lawes of the twelue tables which agree with charondas lawe are these ; legum iusta imperia sunto , hisque ciues modestè & sine recusatione parento . and yet it is necessary vpon occasions that lawes should be altered , for saith hypocrates , tempus est in quo occasio , & occasio in qua tempus , though he applied this to phisicke , yet in the selfe same reason it serueth for the lawe . cicero thinketh the life and manners of good men often changed , to be the cause of changing of the lawes and states of cities ; and plato , whom cicero calleth deum philosophorum , said , that the least lawe made , may not be chaunged nor abrogated , without doing hurt or harme to the publique state of a common-wealth ; and therefore in aegina he was euer accounted accurst , that went about to make new lawes , by abrogating the former . for when lysander went about to alter and change licurgus lawes among the lacedemonians , hee was resisted by the senators and the people , though lysander was the onely chiefe man in sparta . likewise the whole summe of aristotles aeconomicall and politicall lawes , are but instructions teaching the rule and gouernment of a common wealth , iubendo & parendo , how men should know to doo good , and auoyd to do euil , to gouern and to be gouerned , that the people should be defended from wrong , so is the law of the twelue tables , vis in populo abesto , causas populi tencto . and therefore positiue lawes in all countries were and are made from the beginning to maintaine ciuill orders , and to determine of such orders and circumstances as are necessary and requisite for the keeping of the people in obedience of the same . of these and such lawes plato wrote his booke de repub . tending to the administration and gouernment of the people , according to the lawe . the morall lawe commaundeth a iust and vpright ordering of iudgements , contracts , and punishments in a common-wealth . alexander seuerus the emperour , therefore would make no lawes without the iudgement of 20. of the best learned ciuilians , with the aduise and consent of 50. of the grauest and wifest councellors that were within his empire , to examine whether the lawes were iust & profitable for the people , before they should be published , but being once published as a lawe , extreame punishment was appointed for the breach thereof , as is before spoken , without any appeale frō the lawe , without some great extraordinary cause of appeale . as among the hebrewes in any citie of iudah , that if they could not rightly iudge , nor discerne throughly the cause , according to iustice , by the magistrates of the citie , they might appeale to the iudges named sinadrion in ierusalem , from whence no appeale could be had . so among the grecians , they might appeale from the areopagites in athens , from the ephories in sparta , and all other cities of greece to the amphictions at trozaena , which were appointed general iudges for the vniuersall state of greece , in martiall and military causes , and there to sit and determine twise a yeare of the whole state of greece , and further to heare and to iudge of some other great causes and capitall crimes , from whose sentence no other appeale was to be had ; for out of euery citie in greece in the spring and in the autumne , to the amphictions at trozaena they sent embassadors , whom the greekes called pytagorae . so among the romanes a lawfull appeale might be had from the consuls to the senators , from the senators to the tribune of the people , and from the people to the dictator , which continued vntill the time of the iudges called centum viri ; for sententia dictatoris , & iudicia centum viralia , were both lawes of life and death , from whose iudgement and sentences , there were no greater iudges to appeale vnto : of the like authoritie were the decem viri , from whom also there was no appeale during their gouernment . so in diuine causes we may appeale to mount sion from mount sinai , from the lawe to the gospell , from moses to christ our perpetuall dictator , from whom we haue no place to appeale vnto for our eternall saluation . in the fift regiment is declared the choice of wise gouernours to gouerne the people , and to execute the lawes among all nations , and also the education and obedience of theyr children to their parents and magistrates . all nations made their choise of the wisest and chiefest men to rule and gouerne their countrey , imitating moses , who was by the lord commanded to choose seuentie wise graue men to be iudges among the israelites , called synadrion , which continued from moses time who first appointed these magistrates , vntill herods time who last destroyed them , for in euery citie of iudah seuen magistrates were appointed to gouerne , and to iudge according to the law of moses , and for their further instructions in the lawe , they had of the tribes of the leuites two in euery citie ; to instruct and assist the magistrates in all actions according to the lawe . the egiptians being next neighbours to the hebrewes , though they mortally hated the hebrewes , yet theyr gouernment of dinastia vnder thirtie gouernours elected and chosen out of eliopolis , memphis , pellusium , thaebes , and other chiefe cities of egipt , seemed to imitate moyses lawe vnder aristocratia . so solon appointed in athens certaine wise men called areopagitae , as iudges to determine of life and death , and of other criminall causes . among the old gaules , the druydes sage and wise religious men , had authoritie both in warre and peace to make lawes , and to determine of the state of theyr countrey . the lawes of all nations against disobedient children to theyr parents are manifest , not onely the lawe of nature among all nations vnwritten , but also the diuine lawe of the lorde written , commaundes children to bee obedient to theyr parents , as the lawe sayeth , whosoeuer curseth his father or mother shall dye , and his bloud bee on his owne head , for that hee curseth his father or mother . if a man hath a sonne that is stubborne or disobedient , let his parentes bring him vnto the elders of the cittie , and there accuse him of his faultes , saying , my sonne is a ryotour , a drunkarde , and disobedient vnto his parentes , the lawe is , that all the men of that cittie shall stone him with stones to death . this commaundement was esteemed among all nations , euen among wicked men , as esau beeing a reprobate , so the lorde saide , esau haue i hated , and iacob haue i loued , yet esau hating his brother iacob in heart , saying that the dayes of his fathers sorrowes were at hande , for i will kill my brother , and most like it is that he would haue done so had not the lorde ( which appeared to laban the syrian in a dreame by night , for that hee followed iacob from mesopotamia ) said to laban , take heed to thy selfe , that thou doo or speake to iacob nothing but good : as the lorde kept iacob from laban , so he kept him from his brother esau. notwithstanding esau came to his father , and said , hast thou any blessing for me ? see that obedience and feare was in esau towards his father isaac , though hee was a wicked man , he determined not to kill his brother before his father died , least isaac his father should curse him . the sonnes of samuel the prophet , ioel , and abiath , which were made iudges in bersabe by rheyr father samuel , beeing olde , they turned from theyr fathers wayes , tooke rewards , and peruerted the right , the people complained to samuel that his sonnes followed not his steppes , and therefore they would haue a king to gouerne them , as other nations had . see the ende of iudges in israel , by the wicked iudges ioel and abiath , two wicked sonnes of a good and godly father , and the cause of the ouerthrowe of the iudges in israel . the two sonnes of eli , their offences were such , that their father being an olde man , was rebuked of the lord for suffering their vnthriftinesse and wickednesse , which was the cause that the priesthood was taken from the house of eli for euer , so that the gouernment of iudges in iudah , and also of the priesthood , were taken away by the corruption and disobedience of wicked and vngodly children . obserue likewise the end of kings and kingdomes by wicked kings , by ahaz who offered his sonnes in fire to moloch , by ioachim and his sonne , wicked fathers , which brought vp wicked sonnes . the kings which were 21. in number , continued fiue hundred and odde yeares . who would haue iudged that three such good kings of iudah , should haue three such wicked children ? as dauid had absolon , who sought most trecherously to dispossesse his father of his kingdome . as ezechias had manasses , who offered his sonne in fire to moloch , and filled ierusalem with bloud . or as iosias had ioachim , whose wickednesse together with zedechiah , was so disobedient to the lord and his prophets that he lost the kingdome of iudah . who would haue iudged that salomon the onely wise king of the world , hauing 700. queenes , and 300. concubines , and hauing but one sonne which is read of , and that so wicked , that through his wicked and cruell dealing to his people , the lord tooke 10. of the 12. tribes of israel away from salomons sonne , & gaue them to ieroboam , salomons seruant . it was a commaundement giuen from moses to the people , that they should not forget the lawes of the lord but teach them to their sonnes , and their sonnes sonnes , and therefore the lawes were commaunded to be set as frontlets betweene their eyes , to bee written vpon the postes of their houses , vpon their gates , and to bind them for a signe vpon their hands , that their children should not forget , but be instructed by the sight thereof in the lawes of the lord. for the olde pharisies were wont to weare philacteria , which were scrolles of parchment about their heads and armes , hauing the tenne commandements written on them , & therefore christ pronounced so many woes against the scribes and pharisies for their hipocrisie . hence grew the beginning of setting vp of pictures in porches , the images of philosophers in schooles and vniuersities , and the images of the goddes in the temples and secret closets of princes , as alex. seuerus had the image of christ , abraham , orpheus , and appollonius in his closet worshipped as gods , so the heathens and pagans had the images of their countrie gods set vp at theyr gates , galleries , and closets . among the olde romanes in auntient times they were buried in theyr gardens , and in theyr houses , and therefore they had their houshold godeds to doo sacrifice vnto them , and to vse funerall ceremonies vnto these idols , for it was not lawfull by the lawe of the 12. tables to burie any within the citie , for the lawe was ne in vrbem sepelito ; and it was also platos lawe , that the dead should bee buried in the fieldes or some barren ground , out of the cities , least the dead bodies should infect the quicke . these lawes were called leges funerales . but the lord spake to ioshuah , let not the booke of this lawe depart out of thy mouth , see that thou doo and obserue all the lawes which moses commaunded thee , so ioshuah did , & made a couenant with the people at his death , set ordinances and lawes before them in sychem , and tooke a great stone , and pitched it vnder an oake that stood in the sanctuarie , and said , behold this stone shal be a witnesse vnto vs , and a memoriall of the couenant betweene vs. so iacob set vp a stone , and said to his bretheren , gather stones and make a heape , which hee called gilead , and said to laban , this heape of stones be a witnesse betweene thee and me . it was a custome among the olde hebrewes , as markes of witnesse , and memoriall of things past , to put vp stones , as samuel did in his victorie against the philistines , pitched vp a stone , and named it the stone of helpe . so carefull were the kings of persia , that they made choise of foure principall men in all knowledge to instruct the kings children after fourteene yeares of age , and therefore the persian lawes for education of theyr youth , were not onely commended of many , but of many imitated , they should learne three principall lessons , to take heed of lyes , and onely to speake the truth ; secondly to deale iustly , and wrong no man ; and thirdly to knowe what was wrong and what was iustice . the children in persia were brought vp with such reuerence to their parents , that it was not lawfull for them in the presence of their parents , either to sit , to spit , or to blowe their noses : theyr children might not so much as taste wine , though it were vpon their feast day , which among the persians , is the most solemne feast : also the children might not come to their parents sight before they were seuen yeares olde , there is nothing so requisite in parents as the education of children . and therefore charondas made a lawe , that the citizens which were gouerned by his lawes , should bring vp their children in schooles , to be taught to know good from euill , and to be accustomed with vertuous education , that thereby they might stand in stead to theyr countrey , with wisedome , iudgement , and counsell . the like law is set downe by plato , who saith , si rempub. verè institues , virrtus cum ciuibus comunicanda est . for as euery citie hath her phisitions , to prouide for health , and to care for the bodye , so i thinke it rather better saide chaerondas , to haue schoolemaisters and teachers to bring vp youth in vertue and knowledge , and to bee taught in the lawes of god & man to serue their countrey . diuers nations , as the carthagineans , arcadians , baeotians , and mazacens , sent for charondas lawes to gouerne their countrey , and as the romanes sent to greece for hermadorus to interpret the 12. tables , so the mazacens sent for one to thuria to interpret charondas lawes . so the iewes after their return from babilon , appointed esdras to read & interpret the law of moses vnto thē , before whom they sware that they would turne away theyr straunge women the ammonites and moabites , and that they would keepe the lawes of the lord. the lacedemonians would make their hindes and husbandmen drunken , hauing roddes in their hands , to whip and beat them for their drunkennesse , and would bring them out before their children & other youths of sparta , which was both plato and anacharsis order to the grecians , because their children might see the faults and beastlinesse of the seruants , to terrifie the children , that thereby they might loath vice , and loue vertue , and learne to bee obedient to their parents , for the greatest care the lacedemonians had , was to bring vp their children in musicke and military discipline , esteeming the education of their chidren in any thing else indifferent . nabuchodonozer king of babilon , caused foure of the kings stocke zedechiah , daniel , and his fellowes , to bee brought vp in the chaldaean discipline , that they might serue the king in his chamber and at his table . in auntient time the olde romanes were not onely studious and carefull to bring vp their children to obserue the lawes of their gods at rome , but also vsed yearly to make choise often of the best mens children in rome , and to send thē to etruria , a religious nation , there to be taught in the etrurian discipline , concerning religion to their gods , and to learne dutie and seruice to their countrey , beeing in the latin tongue instructed first , then in the greeke tongue , and after to learne wise and pithy sentences , as paradoxes and aphorismes . charondas iudged those parents not fit to be of counsell , nor worthy to be magistrates to rule in their countrey , that hauing many children by the first wife , would marry a second , for he supposed that they would neuer be carefull ouer their country , that would not be careful ouer their children . and therefore the lawes of diuers of the gentiles were not to bee allowed in selling theyr children to straunge nations , as the phrygians and others did for to relieue theyr parents for necessitie sake , and yet farre better then to burne , kill , and sacrifice theyr children to images and idols , as ahaz , manasses , and others did . bocchoris made a lawe against idlenesse , for all idle men in egipt were compelled to write theyr names and to giue account how they liued . this lawe was brought by solon from egipt vnto athens , where they gaue the like account in athens as they did in egipt before the areopagites ; for we read that the figge tree because it was barren and bare no fruite was spoyled of his leaues , and therefore the well exercised man is compared to the bee that gathereth honye of euery weede , and the euil sloathful man to the spider , which gathereth poison of euery flower . bocchoris made an other lawe against those that clipt any coine , diminished the waight , changed the form , or altered the letters about the coine , that both their hands should be cut off , for bocchoris lawe was , that those members should be punished that committed the offence . so carefull were the hebrew women for their children , that their fathers should not name them , but the mothers should giue them such names , as should signifie some goodnesse or holinesse to come , as a memoriall to the parents to thinke vpon their children , besides giuing them their names , their naturall mothers should be nurses to their childrē , as sarah was a nurse to isaac her son , zephorah a nurse to her son moses , & the blessed virgin mary a nurse to her sonne christ iesus our sauiour , so the two wiues of iacob , leah , and rachel , gaue names to all their children , the twelue patriarkes , the sonnes of iacob . so iacob corrected his children , kept them vnder , and blessed them at his death , so iob prayed for his children , and offered for his children vnto the lord euery day a burnt offering , and so was dauid for his sonne salomon so carefull , that he committed him to the prophet nathan to be brought vp in wisedome , and in the law of the lord , this care had the hebrewes to bring vp theyr children in the lawe and feare of the lord. the very heathens , euen phillip king of macedonia , was glad to haue his sonne alexander borne in aristotles daies , because he might be brought vp in his house with him , and instructed with so great a philosopher . agamemnon was in his youth brought vp with wise nestor , of whom agamemnon was wont to say , that if he had but ten such wise consuls as nestor was , he doubted not , but soone to subdue troy. and so was antigonus brought vp with zeno , chiefe of the stoik philosophers , where hee could heare & see nothing , but what he sawe and heard from his maister zeno. there bee many parents in the world that weigh not how they liue themselues , neither esteeme how to bring vp their children , like the troglodites , whose children were named after the names of the beastes of their countrey , as horse , ramme , oxe , sheepe , lambe , and such , alledging that the beasts were their best parents , in feeding , in cloathing , and in all other necessary helpes , and therefore they would rather bee named after these beasts that maintained them in life and liuing , then after their parents , who gaue them but bare birth , against the lawe of nature , and therfore they and such are to be called antinomi . i doubt too many of these in many places may bee called antinomi , which degenerate from their parents both in name and in nature , yea from all lawes , rather to be beasts , then to haue the name of beasts , like people in affrica called atlantes , whose children haue no names at all , but as the troglodites were named after theyr beasts , and therefore well called antinomi , so these people leaue their children like themselues without names , not like beasts , but beasts indeed , and therefore well and truly to be called anomi ; for many haue the names of beasts , that be neither beasts , nor like beasts ; for as the troglodites that before their parents preferre beastes against the lawe of nature , are called antinomi , so these atlantes in affrica , worse then beasts , are called anomi , which is without any name . it is much therefore in parents to shewe good examples before their children , for what children see in the parents , or heare from theyr parents , that lightly will they imitate , for the tree is bended when it is tender , the horse is broken when he is a colte , and the dogge taught when hee is a whelpe , so children must be instructed and brought vp when they are young , for that seede which is sowed in youth , appeareth in age , for vertue must haue a time to growe to ripenesse . therfore marc : cato the censor , made meanes to remoue manlius from the senat house , because he wantonly imbraced and kist his wife before his daughter , saying , that his wife durst neyther imbrace nor kisse him before his children , but for very feare when it lightned and thundered . hieron king of cicilia , sharpely punished epicarmus the poet , for that he made and read certaine light verses before his daughter . so was ouid for the like offence bannished from rome , and so was archiloccus from sparta , for saying it was better for a souldier to loose his shield then to loose his life . the children of bethel had they bene well brought vp , they would not haue mocked & flouted elizeus the prophet , they might as well haue said ozanna in excelsis , with the children of ierusalem , as to say , ascende calue ; vp balde fellowe . but true it is as isocrates faieth , that rude and barbarous men , not brought vp in vertue from theyr youthes , should neuer or seldome prooue iust or honest . and so it is written that equus indomitus euadet durus , & filius remissus euadet praeceps . and therefore both the romaines and the grecians were carefull to haue graue , wise , vertuous , and learned men to bring vp theyr children in the feare of god. among the lacedemonians , licurgus lawe was , that expert and iudiciall men should bee founde out , which were named paedonomi , to instruct and teach the youth of laced●…mon , for in three things especially the grecians brought theyr children vp , in learning , in painting , and in musicke , and especially great mens children , in dauncing and in singing , as epaminondas and cimon , and for that themistocles & alcibiades found great fault for that great captains should become dancers , they were therefore reprehended , and answered that epaminondas and cimon were as great captaines as they . the egiptians were wont to bring vp theyr children in arithmeticke and geometry , and the kings children in magicke . people of creete brought theyr children vp in three things , first to learne the lawes of theyr countrey ; secondly to learne hymnes and psalmes to praise theyr gods ; and thirdly to learne to sing the praise and fame of their great captaines . among the indians theyr wise men called brachmanes , made a lawe that theyr children should be brought after two monethes olde before the magistrates , and there to iudge by the sight of the children , that if they were fit for warres , they should be brought vp in military discipline , if otherwise , they should be appointed to mechanicall occupations . the aethiopian philosophers made a lawe that all magistrates and parentes should examine theyr children and the youthes of theyr countries , what labour and exercise they had done euery day before they should take meate , and if it were founde that they had not exercised either mechanicall or militarie exercise , they should goe away vndined for that day . among the grecians all the orators and poets came from all parts of greece , sometimes to thesius graue , sometimes to helicon , and there the poets to contend in verses and the orators in oratory , with diuers kindes of crownes and garlands , which exercise was vsed to draw and intice the youthes of greece to vertue and learning , and as the romane youths had a garment like the dictators garment , called toga praetexta , in honor of armes to exercise military discipline in martius field , so the grecians had for those youthes that excelled in learning , the garment called palladium . the sixt regiment intreateth of murther and reuenge of blood amongst all nations , against the which the gentiles had diuers lawe-makers which made lawes to punish the same . as the gentiles in all countries had their lawes made to rule and gouerne them , as among the egiptians by bocchoris , among the persians and baetrians by zoroastes , among the carthagineans by charondas , among the magnesians and cicilians by plato , among the athenians by solon , and among the lacedemonians by licurgus , so had they certaine magistrates to execute the same lawe after them , as the thirtie senators in egipt , the areopagites in athens , the ephori in sparta , and so of the rest . this is the lawe of nature , written first in tables of flesh , and after in tables of stone . cain the first-man born ; and the first murtherer , he slue his brother abel , and had sentence of the lord with a perpetual marke of torture , that no man should kill cain , but to liue as a vagabound and a rogue , cursed vpon the earth ; the witnesse that accused him was his brother abels blood , so the lorde spake , vox sanguinis fratris tui edit clamorem ad caelum , blood therefore was the first witnesse on earth against murther , and called in scripture the iudge of blood . cain for disobedience to his father , and murthering of his brother , became a cursed vagabound vpon the earth , and all his wicked posteritie were drowned in the deludge . so scoffing cham was cursed of his father noah , and in him all his posteritie likewise accursed , for the canaanites which were of the stocke of cham , were slaine by the israelites , and the gibionites which came from the canaanites , were made slaues to the israelites , and so the egiptians and aethiopians the ofspring of cham , were taken captiue by the assyrians , so that cham was cursed in himselfe , and cursed in his posteritie , for the scorning of the nakednesse of his father ; so the parents of the idolaters and blasphemers , brought the first stone to presse their owne sonnes . the second murtherer in scripture was lamech , which killed cain , against whome the lorde made a lawe , that whosoeuer should slea cain should be punished seuen folde , for so lamech confessed himselfe , that cain should be auenged seuen-folde , but lamech seuentie times seuen fold , there shall want no witnesses against murtherers , and oppressers of orphants , and widowes . the witnesse against the filthie lust of the sodomites , was the verie crie of sodome before the lorde , for so is the lawe , that the iustice of blood shall slea the murtherer . iacobs children consented all sauing ruben and iudah , to kill ioseph their younger brother which made ruben speake to his brethren in egipt , that the blood of ioseph was the cause that they were thus imprisoned and charged with theft and robberies . there are foure witnesses which the lord stirreth vp against murtherers , oppressors of orphants , infants and widowes ; first the lorde himselfe is a witnesse , the seconde the witnesse of blood , the thirde the witnesse of stones in the streets , and the fourth , the witnesse of fowles in the aire . the like murther was in esaus heart against iacob his brother , for esau saide that the dayes of his fathers sorrowes were at hand , for i will slea my brother iacob , but iacob fled to aran to his vncle laban , by his mothers counsell rebecca , for feare of his brother . naboth was stoned to death by false and wicked witnesse , for his vineard , of achab , by his wife iezabels counsell . the like murther was in sauls heart against dauid , practising by all meanes possible to kill dauid , first by himselfe , then by his sonne ionathan , by his daughter michol , dauids wife , and by his seruants , for there is three kindes of murther , the first in the heart against the lorde , as in cains heart against abel , in esaus heart against iacob , and in sauls heart against dauid ; the seconde by the tongue , either by false witnesse , as iezabel with false witnesse against naboth for his vineard ; or else by slaunder , as the two elders in babilon slaundered susanna ; the third performed by the hand , of the which there are two many examples , but all murthers by the hande and by the tongue proceed from the heart : the enuie of cain in his heart towardes his brother abel , was the cause that he slew his brother . the murther of naboth was the couetousnesse of achab in his heart , to haue his vineyard . the murthering of vriah came from dauids heart by lust to berseba , vriahs wife . there be other kinde of murtherers , that rise early in the morning to kill in the day and rob in the night . so iob saith , manè surgit homicida , interficit egenum & pauperem . againe there bee other kinde of murtherers , as the prophet saieth , qui viduam & aduenam interficiunt . so may it be said of ambition in the heart , for by ambition herod caused all the childrē in bethelem and about bethelem to be slain , seeking to destroy him which could not be destroyed , which was christ. against such kings & tyrants , the more wicked crueltie they vse , the more iust punishment they shall receiue , iudicium enim durissimum ijs qui presunt , fiet , and the more wrong and iniurie they do to honest and iust men , the greater torments they shall suffer , fortioribus fortior instat cruciatio . by ambition in the heart abimelech slew three score and eight of gedeons sonnes his bretheren . and so by the selfesame ambition thalia caused all that were of the kings bloud to be put to death , so is hee that enuieth , hateth , & wisheth ill to his brother , a man-slaughterer . the punishment of murther in cain and in lamech , was giuen by the lawe of nature of the lorde before the written lawe was giuen to moses , as thamar the daughter in lawe of iudah for whoredome , and as murther and whoredome were punished first by the lawe of nature before the lawe written , so all other offences contained in the decalogue , were by the same lawe punished , long before the lawe was written and giuen to moses in mount tabor . the murthering of the prophets , of the apostles , and of the martirs of god , euen frō the bloud of righteous abel vnto the bloud of zacharias the priest , crye and call for iustice and iudgement , saying : how long lord will it be before vengeance be taken vpon wicked murtherers and tyrants ? of these the prophet saith , dederunt cadauera seru●…rum tuorum in cibum anibus caeli , & carnes piorum bestijs terrae . but when the lord is readie to be reuenged vpon these cruell murtherers , and ambitious murmurers , who can quench the fire in the stubble when it beginneth to burne ? who can turne againe the arrow shot of a strong archer ? or driue away a hungry lyon in the wood ? who can resist the lord in his purpose and decree ? murtherers haue their markes , as cain had such a marke , that hee could not dye , though hee wisht to dye . esau had such a marke , that though he sought with teares to repent , yet he could not repent . pharao had such a marke that he could not confesse the lord to be god , though he sought moses to pray for him , but no doubt markes of murther , for cain kild his brother abel , esau sought , and said he would kill his brother iacob , and pharao in his heart threatned death to moses and aaron , and to all the hebrewes . these signes and markes which these reprobates had , were not outward markes seene , but inward , burned with hotte irons in their consciences , but the hebrewes in the land of gosen , were marked with the letter tau in their foreheads , as signes to be saued from the plagues in egipt , they that lamented and wept for ierusalem , were marked in theyr foreheads with the letter tau of the angell : so all christians are saued by this letter tau , made like a crosse , which we must beare in our harts , and not in our foreheads . the punishment of paracides among the olde romanes was such , that the murtherer should bee put in a sacke aliue , bound hand and foote , together with an ape , a cocke , and a viper , which should so byte and torment him , vntill he were almost dead , and then to bee throwne into tiber , with his three companions with him ; so was marc. malleolus for killing of his mother , iudged so to die by the senators . the second paracide in rome was histius , after the second romane warres with the affricans , with the like iudgement giuen as before : this kind of punishment for paracides continued a long time among the romaines ; for in former time while yet the romaines were poore , not acquainted with money , long before they knew affrike or asia , their punishment for murther was but a ramme , which the romanes slew and sacrificed to their gods . the grecians like the romains in auntient time , punished a murtherer with a certaine set number of cattell ; yet in other countries they punished murther most seuerely and cruelly . as in egipt they would thrust long needles made sharpe of steele , vnder the nailes of their hands & of their toes , and after cut the flesh of the murtherer in small peeces , and throwe it by gobbets into the fire , & burne it in his sight while yet he had life in him . a lawe was made among the said egiptians , that if any man had killed his sonne , the father should be lockt together with the sonne slaine by him in one chamber , without meate or drinke for three dayes , beholding still before his face the dead body of his sonne , by himselfe slaine , ( with a watch that none should come to him ) thinking that by looking theron , there could be no greater torture or punishment to the father , then to see his sonne so slaine by himselfe which was his father . among the persians a lawe was made , that he that killed his father was thought that he neuer had a father , for they thought it against the lawe of nature , a thing vnnaturall , yea and vnpossible that the sonne should kill his father , and therefore he should be euer after called a bastard ( a greater reproach among the persians could not be ) and therefore romulus in rome , and solon in athens , being demaunded why they made no lawes against paracides , answered that they thought none so wicked or so cruell as to thinke on such wickednesse , and therefore they thought it fit , that no lawe should be mentioned for so wicked a fact , though by dracoes lawe , solons predecessor , the least fault in athens was punished with death , and therefore called in ieast , lex draconis . in lusitania a paracide should be stoned to death , not within their country , least the murtherers bloud should defile their countrie , but they should be banished to the next confines , and there to die . dauid was forbidden to build the temple in ierusalem , for that he was a man of bloud , so the lord said , thou art a man of bloud , and therefore thy sonne salomon shall build me a temple . in the citie elephantina in aethiopia , a murtherer should bee forced by the lawe to eate the hearbe called ophiusa , which being eaten , the murtherer should be so tormented with such terrible visions and dreames , that he could neuer take rest or sleepe before he had kild himselfe . the macedonians in like sort stoned them not onely to death that committed any murther or treason against their prince and their countrey , but also such as were consenting therevnto ; and therfore plato in athens made a law that the hand that slew himselfe should not be buried with the body , but should either be throwne away to be eaten of dogges , or else to be nailed in some publike place , to be eaten of fowles of the ayre , as actor of the murther . in many places murther was lesse esteemed of men , then of birds or of beasts , as in egipt to kill an egiptian cat , was more dangerous then to kill a romane captain . the history is written in diod. sic . at large . so to kill the bird called ibis in egipt , there was by the lawe capitall punishment for it . in thessalia none might kill a stoike ; neither in athens by the lawe of solon , none might sacrifice an oxe . cai. caligula after he had murthered so many , much complained because he could not murther more , & oftentimes wished that all rome had but one necke , that he might with one stroake cut it off . there was found in this emperours studie , after he was murthered , like a sword and a dagger , the one written on and named gladius , the other pugio , in the which were written the most part of the names of the chief senators , appointed by caligula to bee slaine , and in the same studie was found a chest full of cups , filled vp with diuers kindes of poysons , which likewise he appointed to poyson the most part of the romane knights , as well of the senate as of the citie , which poisons being throwne into the seas by claudius the emperour his successor , so infected the seas , that it killed an infinite number of fish , which fish being dead , the seas cast off to the next shores : so by the death of one murtherer , most part of the senators and knights of rome escaped from murther and poyson . in the time that clau. marcellus was consull in rome , there were found 370. olde auntient women , supposed matrons , accused and condemned for poysoning so many in rome , that it was thought by the citizens and senators of rome , that it was a common plague eyther by corruption of the ayre , or otherwise , that so destroyed the people , such rewards haue tyrants . for he that killed saul in mount gilboa , & brought his crowne to dauid , supposing to haue some great reward , had the reward of a murtherer , commaunded by dauid to be slaine . the like reward had rechab & banah , which brought isbosheths head to dauid , their reward was , to haue their heads and their hands cut off , and to be hanged vp ouer the poole in haebron : murther neuer wants his due deserts , nor iust rewards . charondas lawe was , that he that pulled a mans eye out , should loose an other of his owne for it , but if a man had but one eye , and that were pluckt out , charondas thought the lawe were satisfied , if one eye of the offender were lost for it , yet the one eyed man by loosing of his eye , was depriued of all his sight , and therfore sought by the lawe to haue the offender as blinde as he , for though hee lost but one eye , yet lost hee all his sight , and thereby would haue the penaltie of the lawe for his sight , and not for the eye , and claimed therefore iustice of the lawe against the offender . but the lawe of moses is otherwise , that if a man strike his seruant in the eye , that his eye perish , hee shall let his seruant go free , for that he lost his eye , also if a man smite out his seruants tooth , the lawe is that he shall likewise let his seruant goe free . yet in matters of death , moses lawe is , eye for eye , member for member , life for life , bloud for bloud , so is the lawe of the twelue tables , siquis membrum rupit in eum talio esto . so samuel spake to king agag the amalekite , as thy sword made many women without children , so without children shal be thy mother , and cut him in peeces , according to talions lawe . was not andronicus stript out of his purple cloathing by king antiochus commaundement for his murther , and caused to bee killed in the same very place where he caused the high priest onias to be slaine ? the lordes iust iudgement euer reuengeth innocent bloud . zimri through ambition , which is the roote of all mischiefe , conspired against his maister elam , and killed him as he was drinking in samaria . how long raigned he ? seuen dayes after hee was besieged in his owne pallace , where he was forced to burne himselfe and his house . zellum through ambition conspired against his maister zachariah , flew him , and raigned in his stead but a moneth in samaria . if men looke to the end of kings , gouernors , and generals , more are found betraied & slaine by friends & seruants in their chambers , thē by the enemies in the field . for these be called cubiculares consiliarij , à quibus b●…nus & cautus imperator venditur . thus is murther euer committed , either by couetousnes , pride , malice , enuie , or ambition , which is chief , the very ringleader of murther and treason . was not saul ambitious when samuel tolde him that the lorde had reicted him for his disobedience , to say to samuel , yet honour me before the people . the idoll appollo in delphos could say no more to augustus caesar , when he came to know what should become of the empire of rome , but that an hebrew childe was borne that commaunded vs to silence , yet as saul spake to samuel , so the idollspake to augustus , yet depart thou with reuerence from our aultar before the people . these wicked mens liues are compared in the booke of wisedome , to a shadowe , or to a poste riding in haste on the way , or to a ship in the sea , whose path cannot be seene , or to a fowle flying in the ayre , whose steppes cannot be found , whose wicked hope is compared to an arrow that is shot , and falleth quickly to the ground . was not absolon ambitious to say , i wish that there were some by the king appointed to heare the iust complaint of the people . thus by ambitious meanes he practised secret trecherie against the king his father for the kingdome . in the seuenth regiment is manifested the great zeale of good men , where whoredome is punished in many countries , and lest vnpunished in other countries , with the praise and commendation of chastitie . as you read before in the first & fourth regimēts , how the egiptians , the lacedemonians , the locreans & the getes , affirmed to haue their lawes from oracles and diuine powers . so numa pomp. made the old romaines beleeue , that all the lawes and religion which he gaue to thepeople , were deliuered vnto him by the nymph egeria , yea euen the verie barbarous scythians , brag that they haue their lawes from their god zamolxis . and as the turkes at this day confesse , that they haue their lawes from mahomet , so many other lawmakers in diuers countries , made their people beleeue , that they consulted with some diuine powers , and were instructed to make their lawes . such therefore is the strength and authoritie of the lawe , that paul calleth the lawe the minister vnto death , and yet a schoole maister to know christ. plato called lawes the sinewes of a common-wealth . demosthenes a diuine gift . cicero the bands of cities . plutarch the very life of a common-wealth . the lawes are as keyes to opē vnto vs the way vnto obedience , and to know sinne ; for if the lawe had not commanded me , thou shalt not defile thy neighbours wife , i had not knowne adultery to be a sinne . there is no offence so grieuously punished by gods lawe , neither by mans lawe , as adulterie was euen from the creation , in so much that all men defiled themselues with that sinne , all flesh corrupted his way . hence grew the lords anger so great , that hee punished the whole worlde with an vniuersall deluge , sauing eight persons : after the deluge , for the selfe same sinne , the lorde destroyed the fiue cities of palestine with fire and brimstone , the lorde would not haue so filthy a sinne to raigne among his people . how was israel plagued for theyr adulterie with the moabites , with whom the lorde commaunded that they should not ioyne in marriage , and therefore the lorde commaunded moses to hang their princes vp against the sunne for theyr filthy lust with the moabites , and the women that had lien with men , were commaunded by moses to bee slaine , and the virgines to bee reserued in the warres against the madianites , and moses was angrie with the captaines for that they hadde not slaine the madianite women . and therefore phineas the sonne of eleazer , for his zeale against adulterie , slew coshi the madianite harlot , and zimri the israelite , thrust them through both theyr bellies in the act , for the which the lord was so pleased , that the plague ceased in the campe , and the priesthood was giuen for euer to phineas & his stocke , for the lord would not haue a whore to liue in israel . the zeale of iehu was such , that hee caused seuentie sonnes of achab to bee slaine , and caused iezabal his wife to bee cast headlong downe out of a windowe to be eaten of dogges , hee slew 42. of achabs bretheren , and destroyed all the priests of baal , and left not one of achabs house aliue . the zeale of iehu so pleased the lord , that his children raigned foure generations after him . the zeale and faith of abraham was such , that he was readie to offer & sacrifice his onely sonne isaac to obey the lords commandement . the zeale and loue of ioseph in egipt was such , that he preferred the lawes and loue of the lord before the loue of his mistresse , putiphars wife . such also was the loue and zeale of moses to israel , that hee requested to be put out of the booke of life , before israel should be destroyed of the lorde in his anger . salomon was so zealous in the lawes of the lord , that he sought nothing but wisedome to rule his people , and to know his lawes . so iob loued the lord and his lawes , that for all the losse of his goods and children , and for diuers plagues and punishments of body , yet he still stood constant in the lawes of the lord. adulterers are cryed out vpon in the scripture , and often mentioned in the olde and newe testament , compared by the prophet to stoned horses , neying vpon other mens wiues . women so corrupted salomon , that hee forsooke the lorde , and worshipped straunge goddes , and lost thereby tenne of the twelue tribes of israel . dauid his father was so punished for his offences with one woman against the lord , that he welnigh lost his kingdome by it . if dauid , if moses and paul were buffeted by sathan , who can think himselfe free from sathan ? we must therfore watch if we will not be deceiued , we must fight if we thinke to haue victorie , not against flesh and bloud onely , but against armies of spirits , infernall powers , against spirituall enemies , and against sathan the prince and ruler of darknesse . for many are the stratagems of sathan , with whom wee must wrestle as iacob did with the angell , with such weapons as is taught in paul , or as dauid did with goliah , or as iob did with sathan himselfe . the euill counsell of achitophel to absolon , to lye with his fathers concubines , brought both absolon and achitophel to hanging . pharao for lusting on sarah abrahams wife , both hee and all his house were scourged and plagued with angels and visions . the beniamites for their abhominable abuse of the leuites wife , was the cause that three score & fiue thousand died in israel . sychem & all the sychemites for the rauishment of dina , iacobs daughter , were slain , & the towne ouerthrown by simeon and leui , iacobs sonnes . the lawes of all countries and nations appointed such due seuere punishments for adulterie , as in rome lex iulia was as sharpely executed against adulterers , as against traitors , and still renewed by many of the emperours ( after iulius caesar , who made this lawe ) as tiberius , seuerus , and others , who with great seueritie punished adulterie . lawes were made in many countries to suppresse adulterie , for concupiscence and euill affections were condemned by the lawes among the gentiles , to be the roote of all mischiefe ; for euill thoughts breed delectation , delectation bredeth consent , consent action , action custome , and custome necessitie , for custome is as another nature . adultery was punished in egipt by the lawe of bocchoris , in this sort ; the man should be beaten with rods to a thousand stripes , and the womans nose should be cut off to deforme her face , as a perpetuall marke of her adultery : but if she were a free woman , the man should haue his priuie members cut off , for that member which offended the law , should be punished by the law , which law sometime was executed among the romaines , for so was carbo gelded by bibienus the consul for his adultery ; the romanes had rather make lawes , then keepe the lawes which they made . therefore charondas made a lawe to keep the good from the bad , for to flie from vice is vertue ; that by taking away the cause the effect might also be remoued ; for vertue is soone corrupted with vice , and a litle leauen infecteth the whole doughe ; and therefore an action might be had by the lawe of charondas , not onely against honest women that vsed the company of leaude men , but also against men that should be often found in the societie of wicked men ; for charondas saide , good men become better by obedience of the lawe , and become wicked , by wicked company which obey no lawes ; for that lawe said charondas is euer best , by the which men become more honest then rich . par est eos esse meliores qui ex melioribus . lysander being demaunded what maner of gouernment he best liked , said ; where good men are rewarded for their weldoing , and euil men punished for their wickednesse : as plato said , omnis respub : paena & praemio continetur . so demosthenes euer thought that law best , which prouided for good men aduancement , and for euill men punishment . to the like effect zaleucus made a lawe that no honest or modest woman should goe in the street but with one maide with her ; and if shee had two , the lawe was , she should be noted for a drunkarde : neither might knowne honest women goe out of the towne in the night time , vnlesse they would be noted to goe in the company of adulterers . neither might any modest woman or sober matron be attired with braue apparell , imbrodered or wrought with gold , siluer , bugles , and such , vnlesse shee would be noted by the lawe of zaleucus , that shee went abroad to play the strumpet , for among the locreans an adulterous nation , people much giuen to lust and lecherie , zaleucus made a lawe , that by their comely and modest apparell they should be knowne from harlots , and light women , which vsed to weare light , garrish , and all kinde of glistering garments to be looked at . aurelianus the emperour punished a souldier found in the campe in adultery in this sort , to tye both his legs to two toppes of trees , bended to the earth , and so his bodie by the swinge of the trees to cleaue in the midst through , that the one halfe hangd on the one tree , and the other halfe vpon the other tree . the like or rather more horrible punishment vsed macrinus the emperour against two souldiers in the campe that deflowred a maide in their lodging , he caused two oxen to be opened , and sowed aliue one of the souldiers in the one oxe , and the other souldier in the other oxe , and left their heads out of the oxen , that thereby they might speake one to an other as long as they liued . was not abraham called from the chaldeans ; because they were wicked idolaters ? did not iacob long in mesopotamia for the land of canaan ? did not dauid wish to be in iudah from among the amalekites , wicked infidels ? were not the captiue israelites most desirous from babilon to come to ierusalem ? yet not before the time that god had appointed and determined ; for elizeus could not prophesie before elias threw his mantle vpon him , neither could dauid appeale the furie of saul before hee played on his harpe ; neither could aaron become a high priest before his rod blossomd in the arke . the very heathens forsooke the company & countrey of wicked people , as hermadorus forsooke his countrey ephesus for the iniquitie of the people . anacharsis left scythia his barbarous countrey , and came to greece to learne wisedome and philosophie in athens . plato left athens , and went from greece to egipt to be taught in the religion , ceremonies , and lawes of the egiptians . paul left tharsis to goe to ierusalem to learne the lawes of the iewes at gamaliel . queene saba came from aethiope to heare salomons wisedome in ierusalem . it was lawfull by the lawe of solon in athens , to kill an adulterer beeing taken in the act , as among the olde romanes , the husband might kill his wife , if hee found her an adulteresse : but this lawe of solon in athens , was after mitigated by solon with a lesse punishment . the parthians supposed no offence greater then adultery , neither thought they any punishment to be equall with so great a crime . among the arabians the lawe was , that the adulterer should die such a death as the partie grieued should appoint . diuers philosophers euer thought adultery worse then periurie , and without doubt greater harmes growe by adultery then periurie , though the one be in the first table against the maiestie of god , to take his name in vaine ; and the other in the second table against thy neighbour , whom thou oughtest to loue as thy selfe ; and yet some of the best philosophers as plato , crisippus , and zeno , iudged that common-wealth best gouerned , where adultery was freely permitted without punishment , that libertie they brought from egipt vnto greece , where the egiptians might marrie as many wiues as they would , like the persians . among diuers other nations , adulterie was left vnpunished , for that they had no lawe against adultery . histories make mention that the virgins of cypria and of phaenizia , get their dowrie with the hire of their bodies , vntil they gaue so much for their dowries , that they might make choise of their husbands , and be married . the troglodites the nights before they be married vnto their husbands , must lye and keepe company with the next of their kin , and after their marriage they were with most seuere lawes punished if they had offended . it should seeme by the lawes of licurgus in sparta , 300. yeares before the law of solon in athens , which was 200. yeares before the law of plato among the cicilians , which made no lawes against adultery , that the grecians tooke their instructions by imitation from the egiptians . for one after an other , solon after licurgus , and plato after solon , trauelled to egipt & to other farre countries , and brought the lawe of bocchoris out of egipt , the lawe of mynoes out of creete , and the lawes of the gymnosophists out of india into greece . as among the lesbians , garamites , indians , massagets , scythians , and such , that were more like to sauage beasts , then to temperate people , for by the lawe wee knowe sinne , for i had not knowne what adultery was , vnlesse the lawe had commaunded thou shalt not lust . and therefore it was not lawfull by moses lawe , that a bastard , or the sonne of a commonwoman , should come vnto the congregation of the lord , or serue in any place of the tabernacle , or enter into the ministerie vntill the tenth generation , so hatefull vnto the lord was fornication , adulterie , and vncleannesse of life . when iacob had blessed all his children , yet for that ruben lay with his fathers concubine bilha , his father iacob prophesied , that he should not be the chiefest of his bretheren , though hee was the eldest sonne of iacob , and the eldest of his bretheren , for that he was as vnstable as water for defiling his fathers bed ; for among the israelites it was a great shame and reproach for women to be barren , & therfore the wiues brought their maides to their husbands for childrens sake , as sarah brought her maide agar vnto abraham , and leah and rachel brought to iacob their two maides , bilha and zilpha ; so rachel gaue leaue to iacob to lye with bilha her maide , who bare to iacob two sonnes , whom rachel though not their mother , named them as her owne sonnes , dan and nepthali . so leah brought her maide zilpha to iacob , who conceiued and brought him two sonnes , of whom leah was so glad , that she named them as her owne sons , the one gad , and the other asar , so that foure of iacobs sonnes were borne by his maides and not by his wiues . this was tollerated , but not lawfull . though the hebrewes were tollerated by the lawe of moses to haue many wiues and concubines , and libels of diuorcement , for the hardnesse of the lewes hearts , as christ said , yet said our sauiour , non fuit sic ab initio , it was not so from the beginning . euen from the creation men liued vnder the law of nature , for in mans heart ( yet not corrupted before the fall ) there was perfect knowledge in the lawe of nature , as in the first man adam was seene before his fall , vnder the which the olde patriarkes liued , and sinnes were corrected and punished by the same lawe , for it was a positiue lawe by nature set foorth and written in the hearts of men , thus was the written lawe yet by moses tollerated . when it was tolde iudah that his daughter in lawe thamar was with childe , hee commaunded that shee should be brought forth , and be burnt . here the law of nature before the lawe written , commaunded whoredome to be punished with death ; here iudah though he detested whoredome in thamar , yet being found that the incest was committed by him , found his fault greater then hers . if a man be found with a woman that hath a wedded husband , let them both die the death , so shalt thou put euill away from israel , for the lawe is , you shall maintain no harlots in israel , as the cyprians and locreans doo . it was not lawfull among the old romaines to call a bastard by the name of his father , because he was the son of a common woman , and no man knew who should be his father ; but they vsed for his name to write these two letters , s. p. quasi sine patre , as though he had neuer a father . in athens by the law of solon , a bastard might choose whether he would be acquainted with his father or no , or giue him a meals meat in his house , or a cup of drinke at his doore , for that he was the cause of his ignominious and infamous birth . among the israelites if a man marry a young virgin , and after proue her not to be a virgin when hee married her , the lawe is , that she should be brought to the doore of her fathers house , and the men of that citie should stone her with stones to death , but if her husband falsly accused her , then the elders of that citie should chastise him , and mearce him in an hundred sickles of siluer , and giue them to the father of the damzell , and she to continue with him as his wife . but in israel there was an other lawe , that if a man be taken committing fornication with a virgin , & after the matter come before a iudge , he shall be caused to marrie the woman , and to liue with her during his life , and to pay 50. sickles of siluer to the maides father for his offence . a woman with childe condemned to death , might challenge the time of her childbirth by the lawe of bocchoris , which lawe was brought by solon from egipt vnto greece , for the law thought it not fit , that the guiltlesse should die for the fault of the guiltie . an other lawe was made , that if a man hurt a woman with childe so that her child depart from her , and she die not , hee shall be punished according as the womans husband shall appoint , or pay as arbiters will determine . againe in israel there was an other lawe , that the wife of the dead shall not be giuen vnto a straunger , but her brother in lawe shall take her to wife , and marrie her , and the eldest sonne which shee beareth , shal be the child of the brother that was dead , and not of him that begat him , but if the brother refuseth to marrie his brothers wife , the elders of the citie shall call vnto him , and commune with him , before whom if hee denie to take her to wife , then the sister in lawe should go in presence of the elders , and loose his shooe of his foote , spit in his face , and say , so shall his name be called in israel of the vnshod house . the lawe of moses was , that an adulteresse should be brought by her husband vnto the priest , and the priest to bring her and set her before the lord , & shall vncouer her head , & haue bitter & cursed water in his hand , and say , if thou be not an adulteresse , and defiled not thy selfe vnknowne to thy husband , then haue thou no harme of this bitter and cursed water , but if thou be defiled by an other man besides thy husband , the lord make thee accurst , and make thy thigh rot and thy belly swell , and this cursed water goe into thy bowels , and the woman his wife so accused , shall say , amen . the lawe which the lorde punished his people for committing adulterie , was with such seueritie , that they should die the death , either by stoning or burning , which was the lawe among the israelites . the people called cortini , had a law in their country , that an adulterer should bee crowned with wooll , and should sit in the market place in open sight of the people to be laught at , and to be noted as an infamous adulterer all his life long in his countrey . the people called pisidae had a law made , that the adulterer should be bound vpon an asse , and be carried from towne to towne , for the space of three dayes , with his face backwards , holding the taile of the asse in his hand for a bridle . they had in athens by the law of solon a place called casaluion , & the women were called casaluides , to whom any athenian might resort to auoyd adultery with the matrons and virgins of athens . the like place they had in rome called summaenium , for the like purpose ; and the like are tollerated in many countries to auoyd great offences , but rather a nurserie of whoredome then a prohibition . these vsed the like words as iulia did in rome , licet , si libet , like anaxarchus , being demanded by cambises , is it lawfull for the kings of persia to marry their sisters ? we finde not such lawes , said anaxarchus , non fas potentes posse , fieri quod nefas , but wee finde an other lawe that the kings of persia may do what they list . what vice can be greater in man then incontinencie ? for it doth sin against the body it selfe , & doth weary and languish all the parts thereof ; for as fish saith plato , are taken with hookes , so men are taken and deceiued with pleasures ; in so much that xerxes , the great king of persia , decreed by lawe , a reward to any man that could inuent andfind out new kinds of pleasures , but he was slain , and lost the kingdom of persia by his pleasures . and therfore well said solon , cōsule non quae suauissima , sed quae optima . hanibal hauing welnigh subdued the romane empire , yet being taken with the baites and pleasures of campania , in company of wine and women , and all delicacies and pleasures that could be inuented , of which seneca saith ; conuiuiorum luxuria & vestium , aegrae ciuitatis indicia sunt , that by meanes of his incontinency in campania , he was driuen out of italy , and after out of his own country of affrike , by him that was one of the chiefest and chastest captaines of all the romaines , scypio affrican , who made a lawe to bannish all women out of his camp , to whom in his affrican wars was brought a passing faire young gentlewoman of singular beautie and of a noble house , whom scypio vsed so honourably , with great care and diligence for her good name & credite , vntill allucius a young gentleman that should be married to the virgine , brought a great raunsome from her parents , to redeeme her , to whom scypio deliuered both the young virgin into his hands , and bestowed the gold which her father sent vnto him for her raunsome , vpon allucius for her dowry ; by this honourable dealing of scypio , the whole prouince which stood out in armes against scypio , yeelded vnto him , & sought peace at scypios hand , for his courteous modestitie & temperancie ; where hanibal lost all italy and campania , by his incontinencie and vnchaste life . if darius king of persia , had escaped from his last ouerthrow at arbela by alexander , no doubt in respect of the honourable vsage which alexander shewed to darius wife and his daughters , he would haue yeelded all the whole empire of persia vnto alexander . narseus king of persia , being ouerthrowne , and his armie slaine , by dioclesian the emperor of rome , and the king himselfe constrained to flight , his wife and his daughters were taken by the romanes , and were vsed so honourably , that the persians confessed , that the romanes did not only exceed all nations in armes & valour , but in modestie and temperancie ; the honourable vsage of his wife and daughters , made narseus to yeeld vnto the komanes , and to deliuer to the romais hands armenia , with fiue other prouinces , and to conclude a peace ; see the force of vertue and power of chastitie in heathens , that alexander , scypio , and dioclesian , wanne by temperance and chastitie , that which they could not conquere by armes . antigonus vnderstanding that his sonne lodged in a house where three sisters were , of passing beautie , wrote that he was most straightly besieged of three great enemies , and therefore wished him to remoue his campe , and afterwards made a decree , that his son should lodge in no place , but where the woman should be 50. yeares of age . the lawe was among the grecians , that women should not sit among men , vnlesse it were with thier husbands , and among their next neighbours . the like lawe was among the romains , the woman that might be found with strangers in banquets , her husband might put her away , and be diuorced frō her , and therefore it is written in the lawe , that conuiuia , veneris praeludia sunt . licurgus lawe was among the lacedemonians , that none should fare better then an other in banquets , but all by lawe should be equally feasted ; the number was appointed in banquets from three vnto seuen among the greekes , so that it grew to be a prouerbe among the grecians , septem conuiuium , nouem conuitium facere . so among the auntient romanes , not aboue foure or fiue should be allowed or admittted to a feast or banquet : for the chiefe feast by platoes lawe called bellaria platonis , was figges , berries , oliues , pease , beanes , masts of beech trees tosted , and prunes , for the temperate fare and thin dyet both of the olde greekes and of the romanes , were magis iucunda quam profusa . but after in time it grew to such excesse among the romanes , that they came to their feasts and banquets with garlands crowned , and there to drinke the first draught to iupiter , as the grecians drank the last draught to mercurius . vnto these kinde of feasts the romanes might not come in black or sad coloured garments , but all in white . wisedome exclaimes against those that say , coronemus nos vosis ante quā marcescant & vino precioso nos impleamus . so likewise among the grecians it grew to such excesse , that they forgot anacharsis lawe , which was but three draughts of wine ; or democritus lawe , which was but foure at the most , though afterward it came to a popular lawe , aut biberent aut abirent . this the greekes had frō the persians , who with their wiues and concubines , consulted of state matters at their feasts . licurgus also decreed an other lawe , that in any publike feast or banquet , whē neighbours and friends were disposed to be merrie , that the best and auntientest man of the company should speake to the rest , that nothing spoken or done in this feast , should passe yonder doore , shewing to the company with his finger , the chamber doore which they came in at . these feasts were not bellaria platonis , but rather praeludia veneris . in the eight regiment is contained the commendation of chastitie in vertuous and godly women , with the sinister means of the gentiles to become chaste . after lawes were made in euery countrey , confirmed by diuine authoritie , and executed by graue and wise magistrates , these lawes for necessitie sake were sent for from one kingdome to an other , to gouerne & to rule theyr countreys . philadelphus king of egipt , sent three from alexandria to eleazarus the high priest at ierusalem , for the lawes of moses to bee translated from hebrew into greeke . so the senators of rome sent three for the lawe of the 12. tables , to be brought from athens to rome . so the mazacens sent for the lawe of charondas to thuria , and so the grecians sent for the lawes of king minoes into creete . philadelphus much wondred after the reading of the hebrew lawes , being so wise and godly a lawe , that welnigh for a thousand & two hundred yeares , no nation among the gentiles made any mention of this lawe , though before that time they must needs heare and read of it , by reason of the greatnesse and authoritie of the iewes common-wealth . demetrius and menedemus two great philosophers , at that time answered the king , that none durst attempt to mingle the diuine lawes of the hebrewes with the prophane lawes of the gentiles , for both theodectus and theopompus were punished , the one with madnesse , the other with blindnesse , for making no difference betweene the lawes of the lord , and the lawes of the gentiles , for as dagon their god fel , & could not stand before the arke , where the presence of god , and the figure of christ was , so the lawes of the lord suffered no prophane lawes to be ioyned with them . seeing we are commaunded by the lawe to forsake adultery , wee must learne by the selfe same lawe how to become chaste , not as the priests of athens did , called hierophantae , before they should come to doo sacrifice to their goddesse pallas , they would drinke a very colde drinke made of cicuta hemblocke to make themselues chaste , sometimes vsed in athens to poison condemned men , which was the last drinke and draught of socrates . neither like the romaine priests who vsed to drinke and to wash themselues often , with the colde water cicalda , to become chaste to sacrifice to the goddesse ceres . neither as the priests of egipt did by shauing theyr beards , and the haires of their heads , by abstaining from wine , women , and flesh , or by ofren washing or annointing of their bodies , to become the more continent to serue their goddesse ifis . these heathens all , for that they knew not christ , missed in the meanes to become temperate . so the priests of cybeles did amputare virilia , because they might continue chast and religious to sacrifice , and serue their goddesse cybeles . but it was commanded by the lord , to aaron and his sonnes , that they should make no baldnesse on theyr heads , nor shaue off the lockes of their beards , nor make any marke in their flesh as the gentiles did . it was not lawfull for them to marrie with a widowe , or woman diuorced from her husband , or any polluted woman , but onely with a maide , for the lord would haue his priests holy which kindle fire on his aultar , and offer bread in his sacrifice . if the priests daughter play the harlot , she should be burnt by the lawe , though others by the lawe should be stoned to death . to become chaste is to serue god , and to say as sarah , tobiahs wife said in her praiers , thou knowest ( ô lord ) how i haue kept my soule cleane without any desire or company of man. likewise to become temperate , is to imitate iudith the widdowe , that sate all day long in her house in sackcloath , and kept her selfe close within doores with her maides , fasting all the daies of her life , excepting onely the sabboth and the feast of the new moone , not like dina gadding to sichem to see the manners and fashions of the sichemites ; neiiher like the sabine virgins going to the feast consualia to see playes in rome ; neither like the maides in siloh , to go abroad to play , to daunce , and to sing . what was the end of this libertie ? first the ouerthrow of sichem and the sichemites , for violating dina iacobs daughter ; secondly the rauishment of the sabine virgins , which moued publike warres betweene the sabines and the romanes ; and so of the virgins of siloh . neither like that light woman which is spoken of in the prouerbes of salomon , saying : i haue deckt my bed with ornaments , with carpets , and carued workes , & laces of egipt , i haue perfumed it with mirrhe , aloes and synamom , come and let vs take our fill of loue vntill the morning , and take our pleasure in dalliance , and he followed her as an oxe that goeth to the slaughter , as a foole to the stockes , or as a bird hastneth to the snare , not knowing what danger he runneth into , for can a man take fire in his bosome and not be burnt ? can a man goe barefoote vpon coales , and his feete not be burnt ? so he that goeth to his neighbours wife shall not be innocent saith salomon . it was a custome among the hebrewes , that the spowse was brought to her her husband , her head being couered ; so rebecca tooke availe and couered her head , when shee sawe isaac , in token of shamefastnesse and chastity , for the way to become chast , is first to be shamefaste . men must haue chaste eyes , holosernes offended and desired to sinne with iudith , at the sight of her slippers . so the two elders offended at the sight of sufan●… bathing her selfe in the well . this made abraham to speake to his wife sarah , i know thou art a faire woman , that when the egiptians see thee , they will kill me to obtaine thee . the eye of herod was delighted so much at the dancing of herodias daughter , that he foolishly promised whatsoeuer she would aske , which hee cruelly performed with the head of iohn baptist. to become chast is the gift of the lord , not by vnlawfull meanes as origen did , though learned and religious , yet missed in the meanes to be temperate , so that he made himselfe to be made an euenuke , and his stones to be taken away , thinking thereby to become continent , for you shall not teare , nor cut your flesh , nor make any print of a marke by whipping of your bodies , or burning marks any where vpon the flesh , as the heathens and pagans did . so the prophet elizeus commaunded naman the syrian to goe to wash him in iordan , to elense him of his leprosie . so christ commanded a poore cripple to goe to the water of syloh to wash him , the water wherof being stirred by the angell , many were healed ; i do not speake of the waters which in olde time the romaine marchants vsed to sprinkle themselues withall , called aqua mercurij , whereby they supposed that their god mercurius , would giue them good successe & great gaines . mary magdalene trusting too much the false reports of some rabines , was deceiued in the seeking of the messias , but hauing founde ( whome shee sought ) the messias , her loue was such , that shee washt his feete with the teares of repentance , and dried them with the haires of her head , and therefore many sinnes were forgiuen her , because she loued the lord much . among the gentiles also , there were so many that made meanes to become chast , as they which were called animphi , and another sort called abij , which in no sort could abide women , but led a single life ; especially the heathē priests in all countries , they should not come and offer sacrifice vnto their gods , vntil they had shaued their haires , and washed their bodies ouer from top to to toe , and abstained from wine and women . the gymnosophists in aethiopia , graue and wise iudges , they made means likewise to become chast , by thin fare , feeding on gurgins and course bread , made of the huskes of corne , with apples and rice , this was their meanes to become temperate in their prophane religiō . so in india , sacedotes solis , the priestes of the sunne , thought the meanes to make themselues continent , not only by abstaining from flesh , wine and women , as the priests of athens , of rome , and of egipt did , but also by refraining their owne beds in their owne houses , and to liue sub dio , to lie in their cloathes vpon the earth . among the romanes and the grecians the lawes of the 12. tables commaunded & commended to them chastitie , in such sort that they might neither serue , sacrifice , nor offer vnto their gods , vnlesse for a certaine time they had abstained frō wine & women , the words of the law were these , ad diuos adeunto castè , pietatem adhibento , opes admouento . how straightly the gentiles obserued this , you read before , yet seeke they their warrant from moses , for the high priest abimelech would know of dauid whether he and his company were pure and cleane froō women before they should eat of the shewe bread , which was lawfull for no man to eate but the priest. the lawe of moses was , that money gotten by common women might not be accepted , neither in offring , nor in sacrifice vpon the lords aultar , for the law saith , thou shalt neither bring the hire of a whore , nor the price of a dogge into the house of the lorde , for euen both these are abhominations vnto the lord , for there shall be no whore , nor whore keeper in israel . so numa pomp , made a lawe in rome , that a strumpet or a leaud woman should not so much as touch the aultar of iuno , for it was his lawe that pellex non tanger●… innonis aram , so all the pagans and heathens would haue cleane and pure things offered and sacrificed vnto their gods vpon their prophane aultars : so it is written by cicero , impij donis non audeant placare deos . in the ninth regiment is signified the continuance of lawes in diuers countries , and the care in keeping of their lawes . after lawes were made and executed in all countries , reuerenced with obedience , and so kept with care , that licurgus lawes were kept in sparta among the lacedemonians , fiue hundred and odde yeares , the lawes of the sybils in rome , continued welnigh fiue hundred yeares ; the lawes of bocchoris in egipt , endured seuen hundred yeares , the lawes of solon in athens , continued one hundred yeares from solons time to xerxes , at what time athens was burnt by the persians . the lawes of the rechabites were obserued & kept three hundred yeares by the children of ionadab , but the lawes of the iewes from the comming of moses out of egipt to the last destruction of ierusalem vnder titus , continued 1500. yeares . so carefull were the first age , that the children of seth ( hearing adam prophesying of two destructions which should come vpon the whole world , the one by fire , the other by water ) builded vp two arches or pillars , the one of bricke , the other of stone , in the which were written many things concerning the lawe of nature , and the influence and motions of the starres , that if the bricke pillar were destroyed by water , the stone pillar should reserue and keepe safe their lawes , theyr seruice , and sacrifice to god ; which the patriarkes vsed as instructions to their posteritie after the floud , which continued vntill iosephus time ; which as iosephus himself writes , he sawe in syria . moses at his death deliuered to the hebrewes the booke of the lawe , and he commaunded them to lay vp those lawes in the arke within the tabernacle , where it was lawfull for none to come to them , but the high priest , which continued from moses time vntill ierusalem was destroyed by nabuchodonozer , at what time ieremie tooke the tabernacle , the arke , and the aultar of incense , and brought them to mount nebo , where moses dyed , where he found a hollow caue , wherein he layed the tabernacle , the arke , & the aultar of incense , and so closed and stopped the caue . among the egiptians their lawes were so reuerenced and honoured , that none but onely the priests of memphis had the keeping thereof in the temple of vulcan . the lacedemonians in like sort so reuerenced and kept their lawes , that their kings and the magistrates called ephori , came once a moneth to the temple which they dedicated to the goddesse feare , and there in the porch of the temple , the senators of lacedemonia , which were 28. in number , did minister an oath both to the king and the ephori before the people , to serue & keep licurgus lawes , in the which temple their lawes were lockt vp , and kept with great care . the romaines made so much of the lawes of their sybils , that they were so kept and so strongly lockt with such care and diligence in a stony arke in the capitoll vnder the ground , where none might come to them , see nor read them , but the officers called duumuiri , who had the charge ouer them , neither they vntill the consuls , and the senate had occasions to conferre with the lawes , which continued from torquinius priscus time , vntill lu. syllas time , at what time the capitoll was burnt , and withall the lawes of the sybils , and if any of these officers would reueale any secrets out of the lawes of the sybils , hee was punished like a murtherer , sowed aliue in a sheete , and throwne into tiber. so the athenians very carefull of their lawes , written first by draco , and after by solon in tables of wood , called syrbes , that they were set vp to bee kept in theyr chiefe court place , which the athenians named prytanion , where magistrates should sit and iudge causes of lawes . the lawe of the turkes is , that the priests after some ceremonies done , should haue a sword and a speare , which is set by him in the pulpit , and to shewe the same to the people , saying ; see that you haue these weapons in a readinesse to defend the lawes and religion of mahomet , the penaltie of the turkes lawe is , that if any man speake against their law , his tongue should be cut out ; in so much that the booke called muzaph , wherein their lawe is written , is so reuerenced and honoured among the turkes , that no man may touch it with bare hands . thus were lawes in all countries reuerenced , and with great care and diligence obserued . after lawes , decrees and statutes were made in euery countrey , with such circumstances as agreed with the time , with the place , and with the people , for without law no common-wealth nor kingdome can be gouerned , as aristotle saith , in legibus salus ciuitatis si ta est . iudges were appointed to execute the same in all countries , and magistrates in euery citie , as among the hebrewes the elders called synadrion iudges , and yet in euery citie of iudah was a seuerall iudge . among the egiptians they had 30. iudges which they elected , from eliopolis , memphis , thaebes , alexandria , and other citties of egipt , of the which 30. they elected one to be chiefe . among the aethiopians the sage philosophers , the gymnosophists , executed theyr lawes , among the indians likewise the brachmaines , called also sacerdotes solis . among the grecians , the generall iudges called amphictions , which sate twise in the yeare , once at trozaena in the spring time , and in the autumne , in the temple of neptune in isthmos . in many countries women for their wisedome and knowledge , were admitted to sit in counsell , as among the persians with king xerxes , who in any great cause of counsell , would sende for artemisia , queene of caria , whose counsell he found so wise , that chiefly among all the princes of persia in many causes he allowed and followed her counsell . so the queenes in egipt , altogether ruled and gouerned the whole estate of the kingdome , to whom greater honour and homage was giuen , rather then to the kings of egipt , for that the whole state of their kingdome was rather gouerned by the queenes then by the kings . women among the lacedemonians were not only admitted in publike counsell , to sit and determine in courts , but also sent for to cōsult in secret matters of state with the senators . the old gaules in the time of haniball , in any contention betweene them and the carthagineans , if the breach of the lawes , or any league broken were committed by the gaules , the women should determine a satisfaction to the carthagineans ; if any offence grew by the carthagineans , the senators of carthage should satisfie the gaules . it is as well saith aristotle , if men gouerne like women , that women should gouerne . quid inter est vtrùm faeminae , an qui gubernant , gubernentur à faeminis . the romaines though they had a lawe that no woman nor young man should bee admitted to counsell , yet suffered they such graue and wise women , as agrippina , meza , cornelia , and others , to sit in some secrete place where they might see , and not bee seene . solon therfore forbad by law that young men should neither giue counsell , nor be magistrates in a common-wealth . so plato saith , concilium eius est , qui rei cunisque peritus est . yet deberah and hebrew woman , was a iudge in israel , gouerned and ruled the hebrews for fortie yeares . to this woman came all the children of israel for iudgement , and she gouerned them wisely , and discreetly ministred vnto them in all points the lawes of moses , and deliuered them out of the hand of iabin king of canaan , who had sore oppressed israel for the space of twentie yeares . but among the athenians , it was not lawfull that women should sit and determine in matters of state in athens , as the women in sparta did ; or as the women of persia. the athenians sent to delphos to know what lawe and religion were best to bee obserued among the people ; it was answered , the auntient lawes and religion of their elders . the second time they sent againe , saying , that the lawes of the elders were often chaunged ; it was by the oracle answered , that they should take the best lawes of diuers lawes , for it was the manner as well among the grecians , as among the romaines , euer to make lawes , and neuer to keepe them . and though the authoritie of the kings were taken away , and derogated in many countries , yet the force and power of the law stood in effect , though the change thereof were dangerous . for the lawe sayth , thou shalt not steale , nor deale falsely , heerein is included vnder the name of stealing , all kinde of sacriledge , falshood , fraud , lying one to an other , and all other crimes pertaining to stealing . achan for his cunning stealing of a cursed babylonian garmēt , two hundred sickles of siluer , and a toong of gold against the lawe at the spoile of iericho , was deliuered by the lord to ioshuahs hand , who brought him with his sonnes , his daughters , all his cattells , his tent , and all that hee had vnto the valley of achor , and there stoned achan to death , and burned them with fire , the lord euer preferreth obedience before sacrifice , for the disobedience in achan for breaking the lawe , was the cause of his stoning . the disobedience of saul against the commaundement of the lord was such , that he lost both his kingdome and his life . a prophet that went from iudah with the word of the lord to bethel , for that he did eat bread in that place being forbidden , he was killed of a lion as he returned . the man that gathered stickes vpon the sabboth day against the commaundement , the lord commaunded he should be stoned to death . we might thinke that the gathering of stickes , and the eating of a peece of bread were but small faults , that thereby the one should be stoned , and the other killed of a lyon , had it not bene forbidden by the lawe . so such men suppose adams fault to be but little , that for earing of an apple in paradise , not onely he , but his posteritie after him should loose paradise , but as the angels in heauen , by their disobedience lost heauen , so adam by his disobedience lost paradise . the lorde spared not kings for breach of the law , as oza , and ozias both kings , the one for vnreuerent handling of the arke , vsurping the leuites office against the lawe , was strooken with sudden death ; and the other for burning incense against the lawe , which was the priestes office , was strooken with leprosie . the lord spared not his owne priest aaron , that for his incredulitie before the people , he died for it in mount hor. neither spared the lord his owne seruant moses for his disobedience , so that hee also died in mount nebo , that neither of them both came to the land of canaan , for their disobedience and diffidence in the lord. so seuere the lawe of the lord was , that 50000. bethsamites died for looking into the arke . aarons sonnes nadab and abihu , for offering strange fire before the lord against the lawe , were destroyed by fire from heauen . hence grew the ceremoniall lawes of the gentiles , touching their religion and sacrifices to their gods. so the women that attended the fire on the aultar of apollo in delphos , were seuerely punished , if by any negligence it happened to be extinguished , neither might that fire being so extinguished , be kindled again by any other then by the said women , and by no other fire thē by the beames of the sunne . the vestall virgins in rome , if the sacred fire of vesta weare out by any negligence , that vestall virgine that then attended , should be brought per regem sacrorum to the bishop to be whipt , neither might any fire be kindeled againe to the goddesse vesta , but by the heate of the sunne , neither might they sweare by any other then by the name of vesta : the like ceremonies they vsed to minerua in athens . so among the persians , assyrians and chaldeans , they worship their sacred fire , vt deorum maximum on their aultars , seeming to follow moses lawe . zaleucus an auncient lawe-maker among the locreans , brought vp with pythagoras the phylosopher , made a lawe against adulterers , that both the eyes of the adulterer should be pulled out , which being broken by his eldest sonne , though all the locreans ioyntly en treated for zaleucus sonne , yet said he the lawe must nobe broken ; and to satisfie the lawe , zaleucus pulled one of his sonnes eyes out , and an other of his owne , shewing himselfe a natural father to his sonne , & a iust iudge , to performe the lawes which hee made to the locreans ; so seuerely were they punished that brake the lawes , or sought to breake the lawes among the gentiles . those people said alcibiades , do better which keepe the lawes they haue ( though they be worse ) then often changed for better , obseruatio legum & morum tutissima , that plant cannot take roote which is often remoued . so augustus caesar wrote to the senators , that what lawes soeuer they had decreed and set downe , should not be chaunged nor altered ; for better were it not to make lawes , then to make so many lawes , and not to keepe them . positas semel leges constanter seruate , nec vllam earum immutate , & si deteriores sint , tamem vtiliores sunt reipub. lu. papirius cursor the dictator , for that fabius rutilius brake the decree of the dictator , though hee had good successe , and wonne a great victorie , yet the lawe was , that fabius should dye , neither could the captaines entreate him for his pardon , that fabius was constrained secretly to flye to rome , and to appeale to the tribune of the people , and to the senators ; the dictator followed fabius to rome , saying , that there was no lawe that any appeale should be made from the dictator , vntill fabius and his father fell vpon their knees , with the senators and tribune of the people , to entreat for him , and that for breach of the lawe , though hee was magister equitum , the greatest and next in authoritie to the dictator , for the lawe-makers themselues that brake their owne lawes were punished , as zaleucus spared not his owne eye , nor diocles his owne life for breach of the lawe . the like we find in plato , comparing the lawe to medicines mingled with poyson , to that ende the patient might recouer his health by the medicine , so that ( saith plato ) the law is profitable to correct and amend the offender , vt medicamentis venena miscemus salutarifine , instar pharmaci haec talia vtilia esse . diocles , among other of his lawes in syracusa , made a lawe , that if any should come armed with weapons into any senate , court of councell , or before any magistrate or assembly of people , sitting in lawe causes , he should die for it by the lawe of diocles. this lawe of diocles was the cause of his own death , for as he was riding into the towne , being met & sent for to mitigate some contention , and debates among the people , he making hast , forgetting his sword on his side , came to the court , and opened to them the lawe made to the people , to be gouerned by , & willed them to obey the same , but hee was tolde by some seditious men , that he made lawes and brake them himselfe , to come with his sword on his side against his owne lawe to the court , diocles forgetting that he had his sword on his side , answered , i will streight satisfie the lawe , drew his sword out and slue himselfe in presence of all the multitude . i am not ignorant that some say that charondas was he that made this lawe and not diocles. so licurgus willingly banished himselfe to die out of his countrey , that the lawes which he made in his countrey might continue according to the oracle . pythagoras disciples thought whatsoeuer their maister said was sound and sure , they would haue no other proofe but what pythagoras said , ipse dixit . likewise aristoles schollers , they would seeke no other proofe , whether it were right or wrong , but what they found in aristotles booke , est aristotelis . vilescit princeps qui quae iusserat , vetat , & quae vetuerat , iubet . for the which fault cato reprehended pompey , for that hee brake the lawe which hee made before when hee was consull . the israelites had not such trust and confidence in their lord and god , as eyther the schollers of pythygoras , or of aristotle , had in their maisters , but said , wee will obey the queene of heauen , wee will sacrifice to the calfe in bethel , and offer our children to moloch , in the valley of hinnon . see the diffidence which the israelites had of their lord and god , of whom the prophet said , ipse dixit , & facta sunt , ipse mandauit & creata sunt : for by his word heauen and earth were made , and by his commaundement all things created , and yet not so much obeyed as pythagoras was of his disciples , or aristotle of his schollers , nor so much worshipped of his people israel , as the two calues made by ieroboam in dan and bethel . old customes once rooted & in long time confirmed , are taken for lawes ; also whatsoeuer is done by example , it is supposed that it may bee done by lawe , so cicero saith , quod exemplo fit , id etiam iure fieri putant , when in truth wicked customes are named vetustas erroris , & non veritas legis , though corrupt and leaud manners of men were first the cause that lawes were made , yet euill examples may not bee allowed as lawes . the auntient fathers and patriarkes were poliga●… , but not thereby to make good lawes by ill examples ; for it is said , praua consetudo magnus tyr annus . in the tenth regiment is shewed the disobedience of man against the lord , with the seuere punishments of all nations against theft . the lord commaunded rauens to feed elias , and they did obey him ; he commaunded the sunne to stay ouer gibeon , and the moone ouer aialō a whole day , and they obeyed him ; the lord commaunded the winds , the seas , fire , haile , snowe , ise , and tempests , and they obeyed his commaundement ; all creatures obey the lord , but man the chiefe creature , which the lord created according to his owne image . and therefore said cicero , legi obediunt maria , terraeque , & hominum vitaiussis supraemaelegis obtemperat , the heauens , the earth , the sea , and all men liuing , obey the supreme lawe , which is the lawe of god , which cicero calleth the lawe of nature , lex est illa circaea virga , qua taetaeferae , hominesque , mitescunt . lawe is the rod apointed to tame man and beast . the fraud of giezi , elizeus seruant , because he went secretly like a theese , after naman the syrian , and made a large lye that elizeus his maister sent for a tallent of siluer , and two garments , the prophet beeing his maister , gaue sentence on him , that the leprosie of naman shoulde cleaue and sticke to him for euer : giezi heere stole nothing , but onely for his falsehood and lyes , which with sacriledge and robberies , stealing of cattell , fraud , deceit , and the like , are included within the precept of stealing , for the law is , thou shalt not steale , nor deale falsly , neither lie one to another , thou shalt not do thy neighbour wrong , neither robbe him . the vision of the flying booke , signified the curse of theeues , and such as abuse the name of the lorde with oathes , for all theeues and swearers shall be iudged by this booke , for this booke shall remaine in theeues houses , and in the houses of them that sweare falsly by my name saith the lord , and shall consume them with the timber and stones thereof . many poore theeues are fettered & chained in prisons , but great and publike theeues are cloathed in gold and purple . such was heliodorus that came to robbe the temple of ierusalem from king zaleucus , who was so scourged and whipt , that for golde and siluer , he had stripes and stroakes , that scarse thence he escaped aliue . so should shesac king of egipt , antiochus king of syria , pompey the great , and mar. crassus the romain consul , these foure great mightie theeues , had bene as wel plagued and punished , as heliodorus was , when they robd the temple , had it not bene for the great sinnes of iudah and ierusalem . many like dyonisius , after he spoyled the temple of proserpina in locris , and sailing with a good gale of wind from locris to syracusa , see ( said he ) to his mates & fellowes , how prosperously we saile after this our sacriledge . many againe robbe in scoffing sort , like the same dyonisius the tyrant , who tooke the golden garment from iupiter olimpian in peloponesus , saying , that it was too heauie for sommer , and too colde for winter , and therefore he commaunded that iupiter should be cloathed with a woollen garment , light for sommer , and warme for winter ; many such like sacriledges are scoffingly committed in christian churches . many make but a ieast of theyr theeuerye and falshood with dyonisius , who when hee had taken the golden beard of aesculapius away , said , it was no reason the sonne should weare a beard , seeing his father appollo had none . if any man be found stealing any of his brethren the children of israel , and selleth him , the thiefe shall die for the same ; the like is spoken to him that taketh the neather or vpper milstone to pledge . the seuere lawes that they had in phrygia against theft , were such , that hee that stole but a ploughe share from the fielde , or a forke , or a rake from a meadowe , should by the lawe in phrygia die . in athens the lawes of draco were so hard & streight against theft , that for the least filching or stealing , the theefe should die for it . if any man in athens should steale hearbes to make pottage , or to take some dung of beasts for to dung his owne ground , from another mans ground , it was by dracoes lawe a capitall crime . he that borrowed a horse of his neighbour , and would ride further then the place appointed , by the lawe of draco hee might haue an action ; and therefore demades saide , that dracoes lawes were leges sanguine scriptae , lawes written with blood : the least fault in athens , by the lawe of draco was punished with death , which lawes by solon his successor were mittigated . among the indians though adultery was left vnpunished , as it was among the scythians , yet theft was most odious to both these nations , and most sharply to be punished by the lawes of india and scythia . in all countries among all nations , theeues were diuersly punished . in egipt the lawe of bocchoris was such against theft , that if the theefe after hee had stolne any thing had brought his stealth willingly of himselfe vnto the chiefe priest called princeps sacerdotum , before he was accused of it , he that lost the goods , should write the time , the day and the houre when it was lost , vnto the priest , and should haue again three parts of his goods , & the theefe should haue the fourth part that stole it , for that he confest it before he was accused , which is according to moses lawe , that if the theft be found in the theeues hands , he shall restore double ; but if a theefe steale an oxe or a sheepe and kill it , or sell it , he shall restore fiue oxen for an oxe , and foure sheepe for a sheepe , for in the ciuil lawe it is written , propter manifestum furtum restituatur quadruplum . the romanes therefore verie carefull hereof , kept in their capitoll dogges quicke for smelling and sent , and fed geese for sacrifice to iuno , quicke of hearing , lest theeues should rob the capitoll , and so manliu●… by geese , saued not only the capitoll , but rome it selfe from the gaules . another lawe of bocchoris , that if any were accused falsly of theft in egipt , before a iudge , the lawe was , that hee which wrongfully accused the partie , should suffer that punishment which was due to him that was accused , if he had committed the fault ; so is moses lawe , that if a false witnesse accuse a man of trespasse , before●… iudge , and be not able to proue it , then shall the iudge do vnto the false witnesse as hee had thought to haue done vnto his brother . charondas made a lawe in fauour and education of orphants , that the wealth and legacies which were left vnto them by their parents , should be answered to the orphants by the next of theyr fathers kindred , when they came to age , and the orphants to bee brought vp with the next of their mothers kindred , & therfore charondas made this lawe , least the fathers kindred or mothers kindred should deceiue the orphants either by any fraud , deceit , or guile , which is plaine theft . the like lawe made solon in athens , as charondas made among the thurians and carthagineans , least , any fraude or deceit should bee practised against infants or orphants , and therefore the indians vsed none of the kindred or of the bloud of the orphants , but two straungers as tutors and gardens to answere to the pupuls their goods and legacies according to the lawe of india . among the persians as among the indians , the lawe was , that the patrons that deceiued their clients should die for it ; so was the law of the 12. tables , as wel among the romanes as among the grecians , patronus si clienti fraudem fecerit sacer esto . the daughters of zalphod were restored to theyr fathers heritage , for the lord commaunded moses that hee should turne the inheritance of theyr father vnto them , and gaue them a possession to inherit among their fathers bretheren ; this is the lawe of the lord , if a man die and haue no sonne , his inheritance shall turne to his daughter , if hee haue no daughter , to his bretheren , if hee haue no bretheren , to his fathers bretheren . among the arabians the lawe was , that the eldest brother was allowed to the inheritance before the eldest sonne . in aethiopia in like manner not the kings children , but his brothers childrē should succeed him in the kingdome . among the lycians also , the daughters and not the sonnes should be their fathers heires , neither were they named after their fathers name , but after their mothers name . this is against voconius lawe in rome called plaebiscita , for that he was tribune of the people , by the which law it was lawful that no woman should haue ( though she were the onely daughter of her father ) but the fourth part ; and because women grew so rich by patrimonie and by legacies , domitianus the emperour confirmed voconius lawe , and made a decree that no defamed woman should possesse the heritage of her father , neither should she be carried in a coach , were shee euer so great or so rich ; for the lawe was , nequis etiam census vnicam relinqueret filiam haeredem , contrarie to the law of the 12. tables , which was , that the testator might dispose of his goods as pleased himselfe , according to the lawe , vti legasset suae reiquisque , ita ius esto . therefore the lawe commaunds iust and true dealings to be exercised and embraced as well in words as in deedes , for negatiue commaundements include in themselues affirmatiues , as , thou shalt doo no murther , therefore thou must aide and helpe thy neighbour , wherefore we must loue our neighbours in heart , and wish them no more harme then to our selues , and shewe the same in word and deed . such loue was in moses and in paul , that the one wished to be put out of the booke of life to saue the people from destruction , the other of meere loue wished to be accursed for their bretheren to do them good . such is the nature of perfect loue , that abraham prayed for the zodomites , and moses for pharao and the egiptians , though they were wicked people ; for that is the lawe , loue your enemies , and do good to them that hate you . so stephen the first martyr , following the example of his maister christ , prayed for them that stoned him , for all vertues haue their force & power from praiers , faith is strengthened by praiers , loue confirmed by praiers , and repentance continued by praiers . in the eleuenth regimēt is described the diuers kinds of thefts , of vsurie , and slaunder , and of lawes prouided for the punishment of the same . the lawe commaundeth , thou shalt not steale , which containeth not onely all kinde of falsehood , fraude and deceit , as before is spoken , but also iustice , equitie , charitie , and conscience . such was the iustice of abraham to his nephew lot , that though their seruants contended and fell out , yet they both agreed , for abraham vsed great iustice , diuided their portions equally into two parts , and gaue the choosing thereof to lot. the like iustice was betweene iacob , and his father in lawe laban , seperate thou or i said iacob , all the sheepe which haue great spots , and little spots , and all blacke lambes among the sheepe shall be my portion and wages , and euery one that is not black , nor 〈◊〉 ted among the sheepe and the lambes , shall be the 〈◊〉 to me , for my righteousnes shall answere for me . thus were they in auncient time instructed by the law of nature to loue one another , and to vse iustice and charitie . a heathen man could say almost so much , prudentia non vult falli nec fallere potest ; that a wise man neither can , nor will be deceiued . in like sort , thou shalt not commit adultery ; and therefore the lawe commandeth men to be chast , sober , and temperate , both in bodie and minde ; for the lawe requireth inward and outward obedience , as well in angels as in men , for outward euil springs from inward corruption ; murther proceeds from hatred and malice of the heart ; adultery commeth from wicked and filthie lust of the heart ; theft is falshood and fraude in the heart ; to steale other mens goods , therefore to do , or to wish any thing against the lawe is sinne : for the lawe is spirituall , and he that is not subiect to the lawe , saith paul is subiect to the wrath of the lorde , for by the lawe we know our sinnes , and in the lawe , consisteth the knowledge of our life ; for the lord hath decreed a necessiti●… of obedience to the lawes of ciuil magistrates ; for it is said , inuictae leges necessitatis , and though the law doth accuse all men , yet the lawe doth freely promise with a condition of obedience , as the gospell promiseth with a conditiō of faith , for as by the lawe we see as in a glasse the corruption of nature , and deformitie of sinne , so by the lawe we are taught what is to be done , and by the gospell , how things ought to be done . among the romaines for the space of 300. yearer , welnigh after the building of rome , they had no lawes written , but ius regis , before they sent for the lawe of the 12. tables , from athens , which law was so obscure , that they brought hermadorus from greece to rome , to interpret the lawes of the 12. tables , which lawe against theft was so seuerely executed , that it was lawfull to kill a theefe , that would not yeld , especially in the night time ; for the lawe was , sifurtum sit factum nocte , si eum aliquis occidit , iure caesus esto , if a theefe be found breaking any mans house in the night time , & be smitten to death , no bloud must be shead for him , which is also moses law , except the sunne be vp when he is found ; but if a theefe were taken in the day time with his theft with him , hee was by the lawe of the 12. tables , to become his slaue and bondman , of whom he stole it , & to be vsed as pleased the partie all his life time after . an other lawe of the twelue tables against other iniuries was , that if any mans seruant had stolne any thing , or his beast had done harme , or endamaged his neighbour , or a straunger , he was to yeeld his seruant , or his beast that so offended , to the party grieued , and so by the lawe of the 12. tables , the maister of the seruant was free ; for a theefe that cannot make restitution for his theft , must be solde , according to moses lawe . the seuerest lawe among the romanes , was lex iulia , which appointed iust punishment for treason , adulterie , and theft : by lex iulia in rome , theft was as seuerely punished as adulterie , and adulterie punished as treason , for the lawe saith , a man must not robbe , for theeues are accursed , men must haue no conuersation with theeues . also there was a lawe in lycia , that if a free man should steale any thing , he should loose his freedome , and become a bond-seruant to him of whome hee stole it , and by the lawe of lycia neuer after to recouer his libertie , but to liue as a bondman all his life time . bocchoris lawe in egipt was , that if any wayfaring man finde a man in daunger of his life , and so to be slain by theeues and robbers , and not helpe him , eyther by his sloathfulnesse or negligence , if he could , hee was by the lawe of bocchoris guiltie of death , because hee did not ayde and helpe him with all meanes possible hee could . againe if a man were robd by theeues on the way , though he were not killed , and not rescued of any that could , and neglecting to follow after the theeues , hee or they ( by the lawe of bocchoris ) were punished and beaten with a certaine number of stripes , and kept without victualls three daies . licurgus made no lawes in sparta against theft , for it was lawfull by licurgus lawe , among the lacedemonians to vse theft , vnlesse the partie were taken with the theft ; which if he were , he should be seuerely punished , following the maner and custome of the egiptians , and the old germanes , which had no lawe written against theft , but left vnpunished , and therfore there is no transgression , where there is no lawe . there was then , and is now a greater kinde of theft then stealing among diuers nations , which is vsurie , forbidden by the lawes of god , as well as theft , for before bocchoris lawe , which banished vsurie , the lawe was in egipt , that the creditors might arrest the bodies of the dead for debts , and that they should be vnburied till the depts were paid , pecunia est enim anima & sanguis mortalibus , which lawe was abrogated by bocchoris , that debts onely should be paid of the goods of the debters , and not their bodies to be imprisoned , for that they should be alwaies readie for defence of their countrey , and not imprisoned either for debt , or vsurie . solon brought this lawe from egipt vnto athens , and called it sysacthia , against vsurers . this lawe was after executed in the market place of athens by agis , who extreamely hated vsurie , where hee burnt all the vsurers writing tables , of which fire agesilaus was wont to say , that he neuer lawe a better fire in egipt , persia , nor in greece , then when agis burnt all the writing tables of the vsurers in the market place at athens , for before solon brought this law from egipt vnto athens , dead mens bodies might be arrested , and an actiō might be had before the magistrate called zeteta , for satisfaction of debts in athens . therefore solons lawe was , that no man should credit the sonne while the father liued , & to auoyd further daungers , least the sonne should practise against the father ( which children do vse against their parents ) the law was , that he which would c●…dit the sonne , during the life of the father , should haue no action against the son , after the fathers death . so hatefull was vsurie among ( welnigh ) all nations , that where punishment of theft was but double , punishment of vsurie was quadruple , and therfore lu. genutius , tribune of the people in rome , abrogated former lawes of vsurie in rome . lucullus in his victorie ouer asia , among other romanie lawes which hee gaue them , set all asia free , and at libertie from vsurie . so cato made a lawe , that no vsurer should dwell within the prouince of cicilia . so also licurgus made a lawe to bannish vsurie so farre from sparta , that it should neuer be named , nor spoken of within sparta . the lawe of moses among the hebrewes was , thou shalt not giue to vsurie to thy brother , as vsurie of money , vsurie of meate , or vsurie of any thing that is put to vsurie , thou shalt take no vsurie or aduantage of him , but thou shalt feare thy god , that thy brother may liue with thee ; if thou take thy neighbours rayment to pledge , thou shalt restore it vnto him before the sunne goe downe , ye shall not oppresse the poore with vsurie . an example therof in the gospell , a seruant ought to his maister ten thousand talents , and vpon intreatie his maister loosed him , and forgaue him the debt , but that seruant went out , and found one of his fellowes that ought him an hundred pence , laid hands on him , tooke him by the throate , and cast him into prison without compassion , vntill the debts were payd . there is an other kinde of theft which is not the least , to steale the good name and fame of any man by scandalous tongues , and therefore it was not lawfull in athens , not so much as to reach the longest finger towards any man , for it was a note of infamie , as though he should call him catapygos , a dog or a beast . likewise if any would call a man hodidocos , or sycophant in athens , he might haue an action by the lawe of solon , before the iudges called areopagitae . so to call a man in egipt an asse , an action might bee had by the lawe of bocchoris against the partie . the like lawe was in persia against those that would call a man a coward . the lawe of christ set downe in the gospell , is , that whosoeuer calleth his brother racha , or a foole , is in danger of iudgement : so it is commaunded by the lawe of moses , that none shall goe vp and downe with slaunderous tongues , to tell tales among the people , for the punishment of this fault is stripes , or amerciaments by the same lawe . and therefore he that will see good dayes , must refraine his tongue from euil , and his lips that they speake no guile , saith the prophet , liber a animā meam à labijs iniquis & lingua dolosae . the tongue is fire , yea a world of wickednesse , it defileth the whole body , it setteth on fire the curse of nature , wee put bittes into the horses mouthes , that they should obey vs , and we turne them about as we list . and therfore saith xenophon , omnibus animalibus facilius est quàm hominibus imperitare , all creatures are more obedient to the lawe then man. shippes which though they bee so great , yet are they turned about with a very small rudder ; our of one mouth proceedeth blessings & cursings , with the which we blesse god , and curse men , which are made after the similitude of god ; all things are tamed by man , but the tongue can no man tame , for it is an vnruly euill , full of deadly poison . thou shalt not slaunder thy neighbour , neither shalt thou hate thy brother in thy heart . these and many such iudiciall lawes are set downe in the lawe of moses . therefore said salomon , he that keepeth his mouth , keepeth his life , but the wicked mans tongue is full of slaunder and shame ; futiles in vtiles , and therefore it is great wisedome not to beleeue any thing rashly , for it was euer good counsel , caue cui credas neruus sapientiae est , and therefore the punishment of the tongue , was in diuers countries diuersly punished . and therefore alexander the great reading certaine secret letters , suffered his onely friend ephestion to read the same letters , and after ephestion had read them , alexander tooke his signet & laide it on ephestions mouth , as a seale to keep silence , and said , anima consilij secretum . and therefore the punishment of the tongue , was in diuers countries , diuersly punished . in persia the tongue should be cut off , and nailed to a post , or to a pillar , in the market place . in egipt the tongue should be cut off , and sowed vpon the souldiers helmet ; in offending the lawe of armes , or for offending the state , hangd vpon their hats or caps . in other places for their blasphemy , itshould be hangd vpō pinnacles of temples , or on walles of cities to be eaten of fowles of the aire . the like lawe made plato for the hand that kild it selfe , that it should not be buried . yet augustus caesar , being perswaded by his friends , that one aelianus that spake hard of the emperor should be punished for his ill tongue , answered , no more but aelianus shal know that caesar augustus hath also a toong . the like answere gaue phillip of macedon to an ill tongued man , whom when his councell would haue him banished out of macedonia , god forbid said philip , he will speake worse of me in a straunge country , then in his owne . but ramyrus king of spaine , being so soft and so gentle of nature , that many of his nobles had him in contempt for his softnesse , but he at length in the midst of their contempt and of his softnesse , caused eleuen of them to be beheaded in the citie of osca ; saying , nescit vulpecula cā quo ludat ; for it is an old saying , it is dangerous to plaie with lyons ; leonē vellicare periculosum est . yet many slaunderous tongues with wicked counsell , euer practised mischiefe , as doigs counsell to saul against abimelich , achitophels counselto abs●…on , against dauid his father . but the counsell of daniel to nabuchodonozer , was to hate sinne by righteousnes , and his iniquitie by mercy towards the poore , such was the counsell of ioseph to pharao in egipt , in prouiding against the famin to come . many with the false prophet balaam , haue theyr tongues with israel , but their hearts with balaac . multi malum sub lingua , non in lingua habent . many there be like laban , that deceiued iacob for his wife , and gaue leah for rachel ; too many there be like the samaritans , that seemed in publique shewe to helpe the israelites to build the temple , and yet secretly in what they could hindred them . many such say with sigismundus the emperour , that he which cannot dissemble cannot liue , like tiberius , who onely preferred and commended his dissimulation , before all other his vertues ; for it was euer tiberius saying , nullam ex suis virtutibus magis quam dissimulationem diligebat . vlixes dissembling to be beside himselfe , least hee should go out of greece with agamemnon to the warres , palamides tried him with this stratagem , laid vlixes child before the plough share , whereby vlixes dissimulation was found out by palamides . so gedeon found out the ephraimites not to be true giliadites , by pronouncing the letter schiboleth , who slaundered the gileadites to be runnagates of ephraim , and therefore gedeon commaunded that none should passe ouer iorden , vnlesse he could pronounce schiboleth . the gibionites very cunningly dissembled how farre they came , what paine and trauell they tooke , to feeke the fauour of ioshua and the israelites . yet plato allowed dissimulations in princes and gouernours to effect some purpose , for said he , mendatie & fraude vti imperantes debere , ad comodum subditorum . there is nothing so necessary in a common-wealth saith cicero in some respect , as dissimulation , nunqua●… regent , qui non tegent . that made seneca to say , that in courts with kings and princes , dissimulation must haue chiefe place . fra●… enim sublimi regnat in aula . for if loue be not perfect nor esteemed and imbraced for it selfe , where shall we finde true friendship ? if all men be addicted to their priuate gaine without doing good to any man , or speaking wel ofany man , where shall we finde a beneficiall man to his countrey or to his friend ? for hee that thinketh to do good to another to gaine profit to himselfe , that man said cicero is not to be thought beneficiall to his friend nor to his country , but an vsurer to himselfe . the naturall societie among men , and mutuall loue ought to be such , that as cicero said , if any would ascend vp to the heauens to viewe the beautie and ornament thereof , vnsweete were the admirations he sawe , vnlesse it might be imparted to friends . so may wee speake of vngratefull and slaunderous men , who are not thankfull for any benefits done , and therefore an action might be had against vngratefull men among the macedonians , and be brought before a iudge , as if they were in debt , as debters , not requi●…ing one good turne with another , according to the lawe of nature , much like to charondas lawe , which forbad ciuil citizens to associate themselues with euil vngrateful men , which are as cicero saith , tanquā glabra ad libidinem via , which infect good men for being familiar with them , and therefore an action might be had by lawe against honest men for comming oft to the company of these wicked euil men . and so it was among the athenians , which had the like lawe against vnthankfull men ; for as demosthenes said , he that receiueth a benefit , ought euer to be mindfull to requite it , and he that benefites his friend ought to forget it , as a man bound to do any good he can by the lawe of nature , for so iust men are bound to do ; non solum iuxta leges sed legibus ipsis imperare . the wicked & vngratefull gergesites hunted christ out of their countrey , because he healed a man possessed of a diuel , they had rather haue their diuel dwell with them then christ ; they more esteemed their swine then the doctrine of christ , like the iewes who had made choice of barrabas the murtherer , before christ their sauiour . in the twelfth regiment is mentioned the seuerepunishment of false witnesse , together with the lawfull oathes of diuers godly men . the lawe is , that if any bee found that hath giuen false witnesse against his brother , let him stand before the lord and before the iudges , and you shall doo to him , as he thought to do to his brother , that life for life , eye for eye , tooth for tooth , hand for hand , and foote for foote , should goe ; a false witnesse shall no remaine vnpunished , and hee that speaketh lyes shallperish . againe , be no false witnesse against thy neighbour , hurt him not with thy lippes . this is the sentence of the lawe pronounced by the lord. he that priuily slaundereth his neighbour , him will i destroy ( saith the lord ) for he that telleth lyes shall not dwell in my house , nor tarrie in my sight , cursed is hee that striketh his neighbour secretly , and cursed is he that taketh reward to shead innocent bloud , and all the people shall say , amen . and for that lyes and periurie are knit together with false witnesse , we will examine the lawes of other nations with the lawes of god , and what punishment they haue for the same . foure hundred false witnesses did the prophet michaeas reproue of baals prophets , which counselled king achab to warre against the king of syria . did not one true prophet micheas , proue these 400. false prophets to be false witnesses against the lord ? but achab by the king of syria was slaine , as michaeas prophesied . so did elias kill foure hundred and fiftie false prophets of baal at the brooke kyson , for bearing false witnesse against the lord ; for they affirmed that baal was god. and the prophet daniel caused 80. of baals priests to be slaine at babilon , for their lyes and false witnesse to the people against the lord. these idolaters were the worst kinde of witnesses , because they bare false witnesse against the lord , to please nabuchodonozer & king achab. the two elders made themselues false witnesses against suzanna in babilon , they were found by daniel to be false witnesses and adulterous iudges , and were stoned to death according to the lawe . iezabel brought two false witnesses against naboth for his vineyard , to her husband king achab , and they said that they heard naboth curse god and the king , and naboth was caried out of the citie , and there they stoned him with stones to death ; but sentence was pronounced against him by elias the prophet , saying : in the same place where the dogs licked the bloud of naboth , shall the dogs licke the bloud of achab also . non magis potest mactari opima ioui , quàm rexiniquus . thales being demanded , what was the strongest thing that he sawe , answered , tyrannum senem . stephen was accused that he spake against the lord and moses , and the iewes brought two false witnesses against s. stephen , saying : this man neuer ceaseth to speake euill words against this place , the lawes , and the holy temple . how often fought the iewes meanes through false witnesse to condemne paul , crying out vpon him , this paul speaketh against this holy place , against the lawe , and against the people , and brought tertullus the orator , as a false witnesse to accuse and to plead against paul before faelix the romaine deputie . these forget the saying of the prophet michaeas , who cryed out and said , you iudges , you giue sentence for gifts ; ye priests , you teach for lucre ; ye prophets , you prophesie for money , you build vp syon with bloud , and ierusalem with doing wrong . what dare not false witnesse do , when they accused christ to be a gluttō , a bibber of wine , a blasphemer , denying tribute to caesar , for being a seducer of the people , a samaritan , a coniurer , and one that had the diuell , a breaker of the sabboth day , they wanted no false witnesse to proue all these things against christ , and yet against mar. cato , being accused by his enemies in rome fiftie seuerall times before the senators , they could not bring any one witnesse to prooue any thing against cato . aristophantes in athens , beeing accused before the iudges areopagitae , 95. times , he pleaded his cause , and shifted out himselfe from the maliee of his enemies , not able to bring one witnesse against him , that both cato in rome , and aristophantes in athens , were set at libertie , and yet the martyr stephen , the apostle paul , and the sonne of god himselfe , wanted no witnesses , but had all ierusalem to beare witnesse against them . zaleueus made many lawes , but especially religious and ceremoniall lawes , imitating his maister pythagoras , who was a very ceremoniall philosopher , he made a law that no man should go about to corrupt iustice or iudgement , either by periurie , false witnesse , or otherwise , and the punishment for those that brake zaleucus lawe , was not redeemed with money , but performed with shame and infamy , paines and tortures . and therefore bocchoris made the like lawe in egipt against periurers and false witnesses , as against those that brake their professed faith and religion towardes god , and violated their faith and bond of societie towards man , with no lesse punishment then with death . artaxerxes so hated lyes , that hee made a decree among the persians , that whosoeuer were found & proued a lyar , should haue his tongue set vnto a poste , or a pillar in the market place , fastned with three nailes thervnto . the lawes of moses to the israelites against any great offence , was to stone them , to burne them , or to run vpon them . the lawes of the indians against false witnesse was , to cut off the endes of all his fingers from his hands , and the ends of all his toes from his feete . the lawes of the persians as you heard by cambises and darius , was fleying and hanging against false witnesses and corrupt iudges , as you read of sandoces and sinetes . the punishment of false witnesse by the turkes , was and is executed in this sort , that hee shall bee set on a mule with his face backwards , holding the tayle of the mule for a bridle in his hand , and so to bee carried round about through euery streete of the towne , and after burned in the forehead with two letters , as a marke of false witnesse . by the lawe of the 12. tables among the romanes , he that was conuicted for a false witnesse , should bee throwne headlong downe frō the rocke tarpeia , which lawe was first exercised and executed in egipt , and a long time after brought from athens to rome . for the law among the egiptians was , that false wie nesses should pe punished with the like death . the indians had the like lawe as the persians had , that if any man were found three times a lyar , what state soeuer he were of , he should be neither magistrate nor officer , during his life , but should be depriued of all honour and credit , and lead his life priuate in silence ; and yet among the egiptians lyes were left without lawes vnpunished . the lawes of all countries were sharpe and seuere , against rebellious seruants and false witnesses , which like seditious serpents seeke secretly to forsake and defraude their maister both in word and deed . and therefore the testimonie of the seruant against their maister , by the lawe of romulus among the auntient romanes , was not admitted ; so that many of the late emperours of rome made a decree , that those seruants that would accuse their maisters , should be slaine as vngratefull and trecherous seruants . so did sylla vse sulpitius seruant for betraying of his maister , though sulpitius was syllas enemie . this continued vntil punishments were set downe , and appointed by lawe , for crimes and offences by seruants , as carrying a forke made like a gallowes on his shoulders , or with paucicapa , or burning markes in the foreheads , as the syracusans vsed to burne their bondseruants in the forehead with the print of a horse , to note them as their owne bond-slaues . melius enim est vitiosas partes sancare quàm execare . for the lawe doth respect no person otherwise then by iustice ; lawes then were made , how much , and how farre the authorities of maisters extended ouer their seruants . among the lacedemonians , the lawe of licurgus was so austere , that it was lawfull for their maisters to kill those wicked wilfull seruants , that would practise either by word or deed any falsehood against their maisters . alexander in his great furie , against all lawes , slew calistenes his seruant and philosopher , for some sharpe and quick words , yet calistenes spake but what he ought to speake , but not how he ought to speake . quae debebat , dicebat , sed non quomodo debebat . calistenes though a philosopher , yet hee forgot this lesson , facile prsse loqui cum rege , sed non de rege . heerein that which was spoken of hanibal , may be spoken of alexander : armis vicit , vitijs victus . but better could anaxarchus flatter alexander then calistenes , lamenting the dearh of clitus , whom he slew in his furie . art thou ignorant king alexander ( said anaxarchus ) how auntient wise men caused the image of iustice to stand by iupiter , that whatsoeuer iupiter had decreed , it was taken for a lawe , for that iustice was on his side . the like speech may bee spoken of iulia , procuring her sonne in lawe to offend with her . doest thou not know thou art an emperor , which makest law to others , and makest it not to thy selfe ? a lawe was made in athens , not onely against seruants , but against any trecherous man whatsoeuer , were he neuer so great , that though hee died in his countrey , yet should he not be buried in his countrey , but be carried out of the confines of athens ; so was phocion and others that were suspected of any treason . an other law among the grecians was , that he which prodigally and wilfully consumed his fathers patrimonie , should not be buried within his owne countrey of greece , so those kings of egipt , that neither obeyed , nor liued vnder the lawe while they liued , should not be buried in their pyramides : so were some of the kings of iudah and of israel , vnburied for breaking of the lawe . there was a lawe made by king agis in sparta , that the seruants called hilotae , for their rebellious sedition against their maisters , were condemned to be in perpetuall seruitude ; neither might their maisters make them free in sparta , neither might the seruaunts goe out of sparta , but liue there like bondslaues , and their posteritie after them , which should be called hilotae . oportes enim supplicia more patrio sumi , offenders most be punished , as aristotle saith , after the lawes and custome of the country . the like law made salomon against semeia , for that he tooke part with absalon against the king , railed and slaundered dauid , and threw stones at him , that if hee should but once goe out of ierusalem , he should die for it , by the sentence of salomon . and so in athens the like lawe was made , that those that the athenians ouercame at the riuer hister , they and theyr posteritie should be as captiues and bondslaues in perpetuall bondage , with one name giuen to them and theyr posteritie called getae , as hilotae were in sparta . among the persians , their lawe was , that the seruant being bought with money , that fled afterwards from his maister , beeing taken , hee should be fettered and bound in chaines , and so bound to serue his maister . false witnesses are lyars , periurers , and blasphemers , either with periured tongues for a mans life , or with slaunderous tongues for his name and good fame , calling god to be witnesse of vntruth ; so the false prophets and priests of baal did , whom elias therefore destroyed at the brooke kyson , false witnesse is a murtherer of his neighbours , false witnesse selleth bloud for money , a theefe that selleth mens lands , liuings and liues secretly ; for it is written in the lawe of moses , that thou shalt not remoue thy neighbours marke which they of olde time haue set in thine inheritance . so numa pomp. made the selfe same lawe in rome , that whosoeuer would plough vp , any of his neighbors markes or meeres , both he and his oxen should be slaine and sacrificed to god terminus , vpon the very meere where the offence was done . false witnesse is a defamer and slaunderer of mens credite , and therefore the lawe of the twelue tables saith , siquis occentauisset , aut carmen condidisset quod infamiam faceret flagitiumque alteri capitale sit , if any would write slaunderous libelles , or infamous verses , touching a mans credite , good name and fame , he should die for it . the selfe same lawe was by solon made in athens , that vpon any slaunders or nicknames an action might be had before the iudges areopagites . how much more false witnesses and periurers , that seeke mens liues by false oathes are to bee punished , whose conscience are burned with hotte irons , of whom is said , conscientia , pietatis lacinia , for you shall not sweare by my name falsely saith the lord , neither shall you defile the name of your god. the lord though he commaunded his people that they should not sweare at all , neither by heauen , for it is the lords throane , neither by the earth , for it is his footestoole , for the scripture vsed the speech of the lord for an oath , dixit dominus , it was an oath , and the lord sware by the excellencie of iacob , he sware by himselfe , per me ipsum iuraui . oathes may bee well and iustly required in lawfull causes , for abraham made his seruant to sweare by the god of heauen and earth , not to take a wife to his sonne isaac , of the daughters of the canaanites , but of his owne stocke and kindred , and therefore hee caused his seruant to lay his hand vnder his thigh , which ceremony declareth the dutie and obedience the seruant should haue to his maister . iacob sware the like oath , as his grandfather abraham did , and caused ioseph his sonne to put his hand vnder his thigh , as an oath that he should not suffer him to be buried in egipt , but to be brought from egipt to haebron , to the field machpela●… , and there to be buried with his fathers . abimelech requested abraham to sweare , iura per deum , ne noceas mihi , nec stirpimeae , and abraham sware vnto abimelech , and named the place where they both sware berseba . iacob sware vnto laban his father in law , pertimorem in patrissui , by the feare of his father . dauid sware against nabal , and said , hocfaciat mihi dominus , thus god do vnto me , if i leaue nabal a head , for that he denied me and my company a little victualls , being a hungrie . salomon sware vnto his mother , by the lord , thus god do vnto me , if adoniah liue , for that by seeking abizaig he seeketh also the kingdome . elias the prophet sware vnto achab king of israel , viuit dominus , as sure as the lord liueth . so elize●…s sware vnto elias the like oath , viuit dominus , i will not forsake thee : this kind of oath is often vsed in scripture , as the lord liueth , or as thy soule liueth . paul the apostle vsed this oath , god is my witnesse , whom i feare : in an other place , testem deum inuoco in animam meam , i call god to witnesse to my soule : and againe , god knoweth that i lye not . in the thirteenth regiment is set downe the danger and inconveniences that hapned by ambition , and what lawes diuers countries made to banish the same . the states of princes and countries are euer in most danger , where ambitious men be , who fearing nothing at all secretly to speake against princes and magistrates ambitiously , whose ambitious nature seekes not onely to rule and raigne , but also to practise ( without feare ) through pollicie , to vndermine states , and to ouerthrowe their countrey through ambition . pacem contemnentes & gloriam appetentes pacem & gloriam perdunt . of these men plato saith : siquis priuatim sine publico scitu , pacem bellumuè fecerit , capitale esto . ambitious men are not so glad and proud to see many follow them and obey them , as they are spitefull and disdainfull against any one man that esteemes them not ; so ambitious and proud was ammon , that he could not endure the sight of mardochaeus . the ambition of abimelech was such , that hee slew three score and eight lawfull sonnes of gedeon , his bretheren , vpon one stone , to become a iudge in israel , himselfe , being but a bastard . absolon the naturall sonne of dauid , went most ambitiously about to winne the hearts of israel from his father , embracing and kissing euery one that came vnto him , saying ; i wish there were some that would minister iustice to the people . such is the nature of ambitious men , qui honores quieta repub : desperant , perturbata , se consequi posse arbitrantur . can a man goe barefooted on thornes , and not bee prickt ? can a man put coles in his bosome , and not bee burnt ? can a man be ambitious , and not be trecherous ? for ambition claspeth enuie , as the iuye claspeth the oake , and as the iuye sucketh all the moysture of the oake , so enuie sucketh all the moysture of the ambitious man. what was the end of ammon for his ambition ? to be hanged vpon the selfe-same gallowes which he prepared for mardocheus . what got abimelech by his ambition and murthering of his bretheren , but to haue his braine panne broken and slaine , and that by a woman in the cittie of argos . the end of absolon was no better , but to be brought by his owne mule , and to be hanged by the haire of his owne head in the wood of ephraim , where his mule left him . impia proditio celeri paena uindicanda . had these ambitious men obserued the three precepts which brasidas taught his countrey men the athenians , velle , vereri , & obedire , they might haue died a more honourable death , then to be hanged and killed by those whom they sought ambitiously to destroy by their next kinred , and chiefe friends . these bee such men , qui suam sibi fortunam fingunt . the like lawe was appointed by plato for treason , as for sacriledge , iudices istis proditoribus dantur , qui sacrilegis solent : for as philip of maecedon was wont to say , amare se prodituros non proditores , so augustus caesar after him vsed the like wordes ; proditionem non proditores amo . and therefore corah , dathan , and abiron , and all their complices , to the number of two hundred and fiftie , were swallowed vp of the earth aliue , for theyr ambitious murmuring against moses . the lord spared neither aaron , moses brother , nor myria his sister for the like offence ; so seuere was the lord in his lawes , that he spared not moses himselfe . and therefore zaleucus made a lawe among the locreans , to suppresse the pride and insolencie of great men , who did more harme theyr countrey through pride and ambition , then they did profit theyr countrey by iust and true dealing . the like lawe against ambitious men , was made in syracusa , which secretly sought through ambition to excell others in singularitie , both in wisedome and in wealth , and therefore were they banished for fiue yeares out of syracusa , according to the lawe which was made against ambitiō called petalismus , least their greatnesse through ambition should do more harme to their countrey , then good . in rome for a time ambition was not knowne ; vntill the romaines grew great out of italy , then cai. petilius tribune of the people , made a lawe , that no man through ambition , which then grew in rome , together with the greatnesse of the empire , should make meanes by money or reward to beare office in rome . after petilius , cincius decreed an other straight lawe against ambitious meanes to become magistrates , that none of the patricians , or any other that were ambitious to become magistrates or officers in rome , should come in a gowne or any long garment into the senate , least they should carrie money secretly in their bosome , to corrupt the people , for the choosing of censors , praetors , consuls , and other officers , were in the election of the people both in rome and in athens alike ; for there was nothing in rome but forum & senatus , lawes decreed in the senate by the senators , and weapons in the market place by the tribune ansd the people , to resist the same . the lawe of cass. longinus , tribune of the people was , that euery tribe by it selfe of the 35. should bring their seuerall tables , where the voyces of the people were secretly prickt to auoyd ambition and quarels , which lawe was called lex tabellaria . an other lawe among the romanes was , to auoyd ambition among the people , that the senators with the consent of the people , should elect one consul , and that consul so chosen , should choose one of his own friends to be his fellow consul ; for it was not lawfull for both the consuls at one time to haue serieants to beare maces before them , but one after an other monethly ; neyther might a consul be chosen againe within ten yeares after his consulship , which lawes were made onely to auoyd ambition . the like law was among the thaebans against merchants that were called mercurij proles , which hunted for priuate profits , and gaped for gaine , which forbad them that had bene officers within ten yeares after , not to be chosen gouernours againe in that office , for that merchants be not fit men to be magistrates : and as aristotle saieth , parum generosa haec ratio , vitae & vertuti aduersa . against which demosthenes exclaimed in his bannishment , the three monsters of athens , populus , noctua , and draco , but two of these monsters ruled alwaies in rome and in athens , noctua & populus , men and money . and therefore the lawe ostracismus was made in a thens against such ambitious men , as would secretly seeke to growe into greatnesse to win the fauour of the people , that they should be banished out of athens for tenne yeares , as themistocles , alcibades , demosthenes , and others . this lawe of ostracismus , was euer readie in a thens , so long against the greatnesse of ambitious men , that at length it grewe against base men that would practise any sinister meanes among the people . for it was a practise among the athenian , least one should growe greater then an other , to make this lawe ostracismus , according to aristotles rule , neminem vnum magnum facere , communis custodia principatas . the kings of egipt that did not minister iustice rightly , nor obserue the lawe iustly while they liued , might not be buried after they dyed , for it was lawfull for any man to accuse the kings of egipt , before they were buried , of any ambition , iniustice , or crime , before committed against the law , for nothing was more ignominious to the kings of egipt , then to bee depriued of their burialls , which made them liue more circumspectly , vsing iustice and obseruing the lawe . but what were the kings of egipt better to be buried in sweete odours in their pyramides , or the heathen princes of the world to be buried in suis mausoleis ? was not poore lazarus better in abrahams bosome , then the rich man tormented in hell ? for hee cannot bee ill buried wheresoeuer he is buried that dyeth well ; neyther can he dye ill , wheresoeuer , or howsoeuer he dieth , that liueth well ; and therefore , non potest male mori , qui bene vixcrit , saith augustine . a people in india called pedalij , among other theyr vowes and prayers , they wished nothing to bee graunted vnto them of the gods , but to be iust , and to vse iustice . appollonius thianeus the philosophers wish was , pa●…a habere & nullius in digere , and to knowe good and iust men , and to auoyd the company of wicked and vniust men . socrates wish was , to haue a sound minde in a sound body . in eliopolis , a cittie of egipt , the image of iustice was set vp in the market place without a head , and on the right side of iustice , the image of a king was painted blinde , without eyes , because he should not see his friends nor foes , but gouerne without affections ; and on the left side of iustice , the image of a iudge was painted without handes , because hee should not receiue bribes , and be corrupted in his iudgement , iuditij venenum sua cuique vtilitas , and therefore the iudges called areopagitae in athens , might not sit on life and death in the day time , while the sunne were vp ; but in the night , because they might not see the prisoner in the face , to moue affections , but to heare theyr causes to do iustice ; so is the lawe of the lorde ; accept not the face of the poore , feare not the face of the mightie . so the philosopher could say , deus enim nusquam & nunquam iniurius , semper iustissimus . a philosopher after hee had seene these pictures at eliopolis , hee caused the picture of an ambitious magistrate to be painted without legges , because hee should not climbe too high , saying , agesilaus climbes in sparta , to ouerthrowe thaebes , and epaminondas climbes in thaebes to ouercome sparta . this is that ambition euery where , quae frontem aperit & mentem tegit . but these ambitious men remember not lots wife , who seeking to saue her life by looking back on sodome , she lost both her selfe , sodome and zegor . so that among all nations in all countreys , ambitious men are such , that some with absolon , seeke to plant and set their names on earth by some monuments of fame , but die ignominiously without monuments or fame , like absolon . some with sebna build them sumptuous tombes in theyr owne countrey , but are buried in an other countrey . some with achab build them iuorie houses , who most ambitiously sought naboths vineyard , but hee did not long enioy it ; and some seeke with nimrod to build towers in the ayre , like to the king of mexico , when hee is sworne at the first comming to the kingdome , who among other oathes must sweare , that the sunne must keepe his course , shyning alwaies in sight ; that the cloudes must let raine fall downe ; that the riuers must runne their course , and that the earth must bring forth all kinde of fruites . these kinde of men search those things that be vnder the earth , and those things that be aboue the heauens , satagunt inquirentes ( saith plato ) quae subter terram & quae super caelum sunt . we read of antiochus , after hee had taken ierusalem , after such slaughter of men , women , virgins , children , and infants , that within three daies there was slain foure score thousand , and as many solde as were slaine , and 4000. taken prisoners , after he had taken a thousand and eight hundred talents out of the temple , he went with such a haughtie proude minde from ierusalem to antioch , as xerxes went from persia into greece , thinking in his pride to make men saile vpon drie lande , and to walke vpon the seas , but as they liued both , so they dyed , the one miserably murthered in his owne country , the other most miserably dyed out of his countrey . these and such ambitious men , in seeking to build their great name and fame on earth , as xerxes and antiochus , they become so odious and contemptible in their own country , as ammon was in persia among the iewes , whose name when the iewes heard of , they beate and stampt on the ground with theyr feete , because they would not heare his name : for the like ambition the name of hercules might not be mentioned among the dardanians , nor the name of achilles among the taenedians , for that they destroyed both these countreys . to forget these great iniuries , thrasibulus made a lawe in athens called amnestia , because the crueltie of the thirtie tyrants , which caused the children to daunce in their fathers bloud in athens , might no further bee remembred , least by reuenging of the same , more bloud should be lost , much like the dictators in rome , who might put to death any free cittizen at theyr pleasure . so did opimius , vsurping the office of a dictator , beeing but consul , caused gracchus , fuluius , and diuers other cittizens to bee slaine . but after iulius caesar became the first emperour , and perpetuus dictator , the other emperours that succeeded him , claiming the like authoritie , made such lawes in rome as pleased themselues , sit fortitudo nostra lex iniusticiae , for when the honour of the senators were abrogated , and past by hortensius lawe vnder the emperour caesar and his successors , that they onely made such lawes as were called placita principum , without authoritie of the senators , or counsel of the people , which were accepted as lawes among the romaines , during the time of the emperors , as iusregis was in rome during the raigne of the kings . the law called plebiscita , made by the tribune of the people , could not be allowed vnlesse it were confirmed by the senators , neither could the law made by senators called senatus consultus , be allowed without the voyce of the people . in like sort responsa prudētū , for that they had authoritie to enterpret the law in matters of controuersies , their sentence & iudgement was accepted as lawes , so that the body and whole summe ( welnigh ) of the ciuill lawe , consisted in these lawes before named . none might in auntient time among the romanes , be elected dictator , consul , praetor , or censor , vnlesse he were one of the patritians , but in time it grew , that the patricians and the plebeians were ioyned together , that one consul should be chosen by the patritians , the other by the people . this lawe called amnestia , was afterwards brought to rome from athens , and renewed by cicero , that they should forget the murthering of caesar , least a greater harme should come by reuenging of caesars death by ciuill warres , omni enim populo inest malignum quiddam & querulum in imperautes . this lawe was put in practise by the iewes in mazphah , for the trecherous murthering of godoliah by ambitious ismael , for they thought it best to put vp iniuries by forgetting of iniuries . but the lawe of draco in athens was , not to forget iniuries , as thrasibulus lawe was , neither to please the people , as the lawe of gracchus was in rome , but seuerely to punish the people , and that with such seueritie , that it was called according to his name , lex draconis , the lawe of a dragon ; for the least fault in athens , by the lawe of draco , during the time of his raigne , was punished with death , who for his lawes was strangled in aegina vppon the theaters , by the people . so that in rome , for the lawes which gracchus made to please the people , he himselfe , and diuers others were slaine . so in athens and in diuers other places , by offending the people too much by cruell lawes , they were strangled , killed , and slaine of the people for their lawes , as draco was in aegina , and perillus in agregutum , who found out the brazen bull to please the tyrant phalaris , who decreed by lawe a reward to those that would find out new kindes of torments and tortures to punish offenders . so xerxes promised great gifts and rewards to any that would finde out diuers straunge kinds of pleasures to feed his humour , as an epicure . of these kinde of fellowes aristotle saith , subtilia illa & ignea ingenia in assiduo motu , nouandis , quam rebus gerendis aptiora , and therefore rash young men must not bee magistrates , or officers , by aristotles rule . in the fourteenth regiment is set downe the change and alteration of diuers lawes ; of the libertie and tyrannie of some lawes : of the authoritie of soothsayers , both among the romaines and the grecians . heliogabalus , a monster and not an emperour , maintained rather women as senators to sit with him in councell in mount quirinal , to make lawes to feed his filthy humours , then the senators , which haue beene iudges , equall with kings in councell , after kings with consuls , after consuls with good emperours , for heliogabalus called the senators togatos seruos , to whom augustus caesar gaue great reuerence , in any publike assembly or meeting , and with whom in the senate house he sate in councell . facilius est errare naturam quàm sui dissimilem possit princeps formare rempub. so tiberius caesar and traiane , that whatsoeuer was done in rome , was then done by the senators with the consent of good emperours , which with the senators made lawes , and obeyed those lawes which they made , for vnum imperij corpus & vnius animoregendum : in so much that adrian the emperour , when hee sawe a proud citizen of rome walking in the market place betweene two senators , hee commaunded an officer to giue him first a buffet , and after to bring him to prison , for that hee made himsefe a fellowe and companion of senators , to whom he was scarce worthie to be a seruant . for the wise & prudent emperors of rome , were wont to haue learned & graue men with thē , as well in warres in their camp , as also for counsell at home ; for augustus would not allow in rome that libertie , which the indian philosophers allowed to the indians , for they thought it fond and foolish , sith the lawes were equall to all , but that euery man should be equally gouerned by the law , sith the lawe made all men free , that there should be no seruants in that part of india . farre from the athenians , who made so much of their freedome , for pericles lawe was , that none might be free in athens , vnlesse they were borne and their parents before them in the citie of athens . and it was the lawe of solon , that no stranger borne should haue ius ciuitatis , vnlesse hee with his house and houshold goods were for euer banished out of his country , or had comen to athens alicuius artis causa . but among the lacedemonians the maner was , that they that should be made free , should be crowned , with greene branches made of boughes of trees , and should goe round about the temples of that citie where they were made free . the ceremonies and manners of making free men among the auncient romanes was , that the seruants or bondmen should come with their heads shaued before the romane praetor , and there the serieant at the commaundement of the praetor , should strike them on the head three times , with a little rodde or wande , called virgula vindictae , and they that were so made free , were called manumissi vindicta . but if they were souldiers taken by the enemie , and had lost the libertie of their freedome , if afterwards they returned to rome , they should againe receiue their freedome , iure postliminij . but both those which were made free , cum virga vindictae , the rod of reuenge , and they which were taken by the enemies , should goe vnto the temple of feronea , and there they should receiue libertorum munia . after that the romaines became lords of italy , they graunted ius latij vnto the italians , which was the lawe then vsed within the citie of rome , and after they had conquered the most part of asia and affrike , both affrike and asia had ius latinitatis , which was the auntient law among the old italians to be ruled & gouerned by , for the romans would haue their romaine lawes and romaine magistrates to gouern those prouinces which they got with the sword . among the romains , during the time of their kings , they had no law but the sentence and iudgement of the king , in any great cause , and this lawe was called lex curiata by romulus , and by the rest of his successors continued during the time of kings : this lawe was without the consent of the people , but with the counsell & consent of the king and of the senators , and for that papirianus a learned romane , gathered these lawes together and recorded them into one volume , they were called ius papirianum . but when the name of kings was banished out of rome , and consuls created to be chiefe gouernours in rome , then the lawe was betweene the consuls and the senators called senatus consultus , then came in the authoritie of the people , and no lawe was allowed and ratified , but by consent of the people ; but when the people had voices to make lawes , so many lawes were made in rome , as one lawe confounded an other , against platoes rule , who euer preferred fewe lawes before many lawes , for said plato , corruptissima respub . vbi plurimae leges . that lawe which was made by the senators and consuls in rome , was not accepted , vnlesse it were allowed by the people ; for whatsoeuer the consuls and senators had determined , the people should be iudge thereof . so plyni with plato saide , that multiude of lawes were hurtfull , videat princeps nè ciuitas legibus fundata , legibus euertatur . so it was among the lacedemonians by licurgus law , that the people had authoritie and power to iudge of that which the kings and senators did determine . of these thus saith homer , popliuorus princeps populoiudice , cuipecuniam eripere , idem quod vitam . there was a lawe decreed in aegina , that hee that went about to inuent and bring in new lawes by abrogating the former , should die for it , for oftentimes , specie aliqua legum , leges euertunt . it is not so among the achaians , as it was among the romaines and the grecians , for in achaia there was no other lawe but what aratus set downe , and in syracusa no other lawe , but what timoleon said . yet the senators of rome might without the consent of the people call a senate , and make election of senators , they might also gouerne and rule the romane prouinces abroad ; they might dispense and distribute the money of the cōmon treasurie ; but for making of lawes , creating of magistrates , to make warres , or to conclude peace , the senators had no authoritie to do it , without the consent of the people . so that in time lawes were rather authorized in rome by force & weapons in the market place , then in the senate house by the senators , for populus comitiorom princeps bare sway euer in rome . so pompey by force of armes authorized caesars law to please the people , with diuision of lands , and distribution of corne , though cato spake bitterly against it , yet could hee not bee heard , but was by caesar beeing then consul , commanded to prison . they pleaded ius in armis , as pompey and lysander said , non cessabitis nobis gladio accinctis , leges praedicare . lex agraria was the most dangerous lawe among the romaines , for that the tribune of the people sought euer to please the people , by lands , by corne , or by any meanes to become strong by the people , which had the chiefest voyce in rome , that the tribune would often cōtroll the consuls , & resist the senators , as tiberius and cai. gracchus , marius , and fuluius , with others , preferred alwaies this lawe to please the people , but gracchus and fuluius lost their heads for it , & were carried vpon a pole to opimius the consul , who was then commaunded by the senators to resist the tribunes , and people-pleasers , for at that commaundement were slaine three thousand at rome , whose bodies were throwne into tiber. no common-wealth can bee without armes , no armes without stipend , no stipend without tribute , and therefore saith plato , quemque opes suas in censum deferre ad multa vtillia . neither were the magistrates called ephori , opposed against the kings in sparta without cause , by theopompus ; neither were they remoued afterwards without cause by king cleomenes , plena enim periculi aula . neither were the tribunes of the people in rome without cause , appointed to resist the consuls and senators , though sometimes they were reiected and suppressed , & sometimes slaine , for so was the old law of the twelue tables . salus populi suprema lex esto . the lacedemonians had also their senate of eight and twentie graue and auncient wise men , which by licurgus lawe should be 60. yeares old before they should be chosen and accepted to be of councell . the carthagineans in like manner made choice of 30. of their principall and chiefe men of carthage , called conipodes , to sit and determine in secret councell of the state of their citie , for the carthagineans though they followed charondas lawe , yet they imitated the lacedemonians in all other gouernment , as well in warreas in peace . so wearie were many nations of kings , that when the hebrewes sought to alter the gouernment of iudges to haue kings , the lord commaunded samuel to set downe to the hebrewes the lawes of kings , that they will take their sonnes , their daughters , the best of their fields , of their vineards , and of their oliue trees , & giue them to their seruaunts , and they shall take the best of their men-seruants , and their maid-seruants , their yong men and their asses , to do their worke withall . so the vine , the figge tree and the oliue , answered the trees which would haue a king ; shall we loose our fatnesse and sweetnesse to become a king ? notwithstanding the bramble would be a king ouer the trees . the storke also would accept to be king ouer the the frogges , though all nations desire generally rather to be ruled by one then by many , yet many that were elected kings would faine haue forsaken it . q. cincinnatus being taken from the plough to be a dictator in rome , & to weare togam praetextam , assoone as sixe moneths were expired ( so long the office of the dictatorship endured ) he returned again to his plough , according to salomons speech , better is a morsel of bread in a poore mans house peaceably , then to bee a consul or a dictator in rome among vnruly people . and therefore the ephori of sparta grew so ambitious , that they began to enuie their kings , and therefore deuised this lawe to expell their kings , to obserue the starres euery ninth yeare in a cleare bright night , which if they sawe any starre eyther shooting , sliding , or any way remouing from their place , they with the consent of the whole colledge of soothsayers , accused their kings that they had offended their gods , and therefore deposed their kings ; so were king agis , and king pausanias deposed from their kingdome by lysander . this was against the lawe of the lord , who said vnto iob , where wast thou when i placed hyades in theyr places , and plyades in their course ? canst thou know the course and orders of septentriones , and of other starres , and of the reason thereof , nunquid nosti rationem caeli , saith the lord ? against these starre-gazers plato writeth , men should not bee too curious to seeke causes supernaturall , and saith , nequè inquiri oportere , nec fas esse curiosè , satagere causas scrutantes . that was the cause why andronicus the emperour , hearing two learned men reasoning of the like , to say , if they would not leaue their curious and friuolous disputations , the riuer rindacus should be iudge betweene them , and end the controuersie , for , non sapit , qui nimis sapit . so were the priests called mantes in athens , of such authoritie , that nothing could be done in any publike councell concerning religion and matters of state , vnlesse they were in place present . the like lawe the romaines vsed euery fiftyeare , being taught and commaunded to bee obserued out of the bookes of the sybils , that vpon any appearances or sights of two sunnes together , or of three moones , or any other great causes , the soothsayers might remoue either consul or praetor from their place . the like ambition began in persia after cambises dyed , that it was not lawfull for the kings of persia to make any lawes otherwise then they were instructed by theyr magi ; neither was there any lawe made among the auntient romaines , without the counsell of their soothsayers , who were called interpretes iouis & nuntijdeorum ; for these lawes were called among the romains and the persians , leges augurales , but of these augural lawes , i haue toucht them in my booke of stratagems , which were as much esteemed and feared of captaines and souldiers , as their military lawes , for both the persians , grecians , and romains , followed the counsell of soothsayers in their warres , contrary to moses lawe , which forbad dreames and soothsaying to be vsed as the gentiles did , for saith the lawe , non declinetis ad magos . the superstitious error of the gentiles in their soothsayers grew to be so great , that if the soothsaiers said that esculapius beeing dead , could sooner restore health and minister medicine to the sicke by dreames , then galen could do by his art aliue , some would beleeue it , and therefore the pythagorians abstained from beanes when they went to sleepe , because it filleth rather the minde with vaine dreames , then the belley with good meate . if any soothsayers would say that serapis and minerua through diuination could minister medicine and restore the sicke vnto health without the helpe of phisitions , sooner then the phisitions themselues , these flatterers would be ( as they are ) accepted in court & countrey ; tanquā syrenes aulae , the gentiles would beleeue it , which as thucydides saith , are two most noysome things in a common-wealth , for nothing could be spoken so absurd , but some philosopher or other will maintaine it and defend it . the philosophers among the indians , which would either prognosticate or defend falsehood , or seeme to affirme that to be true which was false , they were by law for euer after commaunded to perpetuall silence . the lawe of diuination was such in all kingdomes and countries , eyther by fleeting of starres , flying of fowles , by intrailes of beasts , or by dreames , that whatsoeuer the soothsayers spake among the persians , grecians , and the romaines , it was taken for maximum & praestantissimum ius reipub ; for the words of the lawe were auspicia seruanto : for example therof , cicero reciteth many histories , and crisippus gathered many oracles together . but if the lawe of the gospell were so kept among christians , as the law of augurers was among the gentiles , and the words of the preacher were so obserued as the words of the soothsayers among pagans ; if mens affections were set on a heauenlycommon-wealth , vbi rex est veritas , lex charitas , & modus aeternitas , as worldlings are set on an earthly habitation , vbi rex est vanitas , lex infidelitas , & modus breuitas ; as it hath bene seene in the greeks , which first florished before the affricans ; in the affricans , which florished before the romains ; and in the romains , which flourished before the scythians ; and therefore in rebus cunctis , est morum , & temporum , & imperiorum vices ; so that all commo●… wealths , all kingdomes , and all countries , were ruled , are , and shall be gouerned , by diuine prouidence , from the beginning to the worlds ende . finis . a table containing a briefe summe of the whole booke . the old patriarkes liued vnder the lawe of nature . page . 2 the lawe of nature is a short repetition of the lawe written . pa. 3 the lawe writtten giuen to moses pa. ead . the credit and confirmation of lawes pa. 4 chiefe magistrates and gouernors in diuers countries pa. 5 the lord commaunded an aultar to be made pa. 6 diuers aultars before the lawe written pa. ead . how they vsed to write in auntitient time . pa. 7 the first image brought by rachel , iacobs wife pa. 8 the image of belus in niniuie . pa. ead . ieroboam made two golden calues pa. ead . israel committed idolatry while moses was in the mount. pa. 9 socrates poysoned in athens for religion pa. 11 platoes opinion of poets and painters pa. ead . alcibiades banished from athens pa. 12 clodius slaine in rome pa. ead . anacharsis slaine in scythia . pa. ead . the vowes and supplications of the gentiles pa. 13 xerxes burnt the temples in greece pa. 14 the rechabites lawes pa. ead . the prophet ahiahs speech to ieroboam pa. 15 zaleucus lawes of religion to the locreans pa. 16 licurgus lawe against straungers in sparta . pa. ead anaxagoras put to death . pa. 17 the zeale of the gentiles in theyr religion pa. ead . cyrus confessed the god of israel pa. 18 darius made a lawe that all dominions should feare the god of daniel pa. 19 egipt the mother of all idolatrie . pa. 20 the iewes obserued straightly the lawes of moses pa. 21 diuers tooke vpon them to be the messias pa. 22 idolatrous sacrifice of the gentiles pa. 23. no bloud offered in sacrifice by licurgus lawe pa. ead . paul called in athens spermologos of the philosophers . pa. 24 molochs reaching hand and seuen chambers pa. 25 punishment of corrupt iudges in persia pa. 26 the lawe of the lord set downe by esay the prophet . pa. ead . of diuers kings blaspheming the name of the lord pa. 27. lysander and pompeys taunt to a lawyer pa. 28 ceremoniall lawes of the gentiles pa. 29 the gentiles builded diuers temples to their gods pa. ead . the manner of the dedication of the temples of the heathens . pa. 30 the consecratiō of aaron by moses pa. 31 by what authoritie all nations confirme their lawes . pa. 32 the straight obseruation of the sabboth by the iewes . pa. 33 the second building of the temple by the appointment of cyrus pa. ead diuers kindes of sabboths among the heathens pa. 34 the blasphemie of nicanor . pa. 35 how dearely the iewes esteemed their lawes pa. 36 certaine romaines slaine by the iewes pa. 37 the lawe of iud. machabaeus . pa. ead . among the heathens the sabboth of the lord was not knowne . pa. 38 licurgus lawe for time to goe to battell pa. 39 before the temple was made , the israelites came to sitoh . pa. 40 the continuance of licurgus lawes pa. ead . charondas lawes against contemners of lawes pa. ead . licurgus lawe called rhetra . pa. 41 the lawe of the 12. tables touching obedience pa. ead . the summe of lawes set downe by plato pa. 42 the forme and manner of diuers appeales among the heathens . pa. 43 the wise and graue iudges in diuers countries pa. 44 lawes of all nations against disobedient children pa. 45 corruption of iudges pa. 46 good parents had ill children . pa. ead . markes of monuments and couenants pa. 48. the lawes and care of the kings of persia to bring vp their children pa. 49 charondas lawe for education of children pa. ead . plato and anacharsis lawe for the education of the youth in greece pa. 50 the romanes care for their children pa. ead . bocchoris lawes against idlenesse , and clippers of coyne . pa. 51 the care of the hebrew women in naming and nursing theyr children pa. 52 the carelesse nature of the people called troglodites & atlantes for their children . pa. 53 manlius remoued from the senate house pa. 54 licurgus appointed schoolemaisters in sparta , called paedonomi pa. ead . the lawe of the brachmaines in india pa. 55 orators and poets contended in greece 56 of lawe-makers and magistrates in diuers countries pa. ead . bloud the first witnesse against murther pa. 57 foure witnesses against murther . pa. 58 the enuie of saul towards dauid pa. ead . punishment of murther by the law of nature , before the lawe written pa. 59 murtherers haue their markes . pa 60 how paracides were punished in rome pa. 61 bocchoris lawe in egipt against murther pa. ead . no lawe against paracides , neither by romulus nor solō . pa. 62 platos lawe against him that kild himselfe pa. 63 the punishment of murther in diuers countries pa. 64 charondas lawe for pulling out ones eyes pa. ead . the law of the 12. tables imitated moses law pa. 65 the gentiles both allow & confirme their lawes by oracles . pa. 67 pentapolis destroyed for sodomiticall sinne pa. 68 the israelites punished for theyr sinne with the moabite . pa. ead . commendation of godly zeale . pa. 69 adultery punished in diuers countries pa. 70 bocchoris lawe against adulterie . pa. 71 charondas lawe against adultery . pa. ead . zaleucus lawes against adultery . pa. 72 punishment of adulterie by aurelianus & macrinus both emperors of rome pa. ead . the law of solon called paratilmus , against adulterie pa. 73 the opinion of diuers philosophers cōcerning adultery . pa. 74 moses law against bastards . pa. 75 lawes of diuers nations against bastards pa 76 bocchoris lawe in egipt for a woman with childe pa. 77 the lawe of the unshod house . pa. 78 moses lawe against an adulteresse pa. ead . xerxes reward to inuent pleasures pa. 79 commendation of chastitie . pa 80 leges conuiuales pa. 81 platos lawe called bellaris platonis pa. ead . good lawes sent for frō one countrey to an other pa. 82. & 83 meanes made by the gentiles to become chaste pa. 84 examples of chastitie in good women pa. ead . the harme that hapneth by too much libertie pa. 85 the offence of the eye . pa. 86 the chastitie of the people named animphi and abij pa. 87 the lawe of the twelue tables for chastitie pa. ead . continuance of lawes in all countries pa. 88 the tabernacle hidden by leremie pa. 89 the care and diligence of a●… nations in keeping theyr lawes . pa. 90 iudges appointed in all countreys to execute lawes pa. 91 of counsell and gouernment of women pa. 92 the athenians sent to delphos . pa. 93 achan stoned to death for theft . pa. 94 the punishment of the lorde for breach of his lawes , pa. ead . the lawe of zaleucus for breach of his lawe pa. 95 the seueritie of lu. papirius for breach of the lawe . page . 96 diocles slew himselfe , to satisfie the offenee hee did to his owne lawe pa. 97 licurgus banished himselfe for continuance of his lawes . pa. ead . the credit of aristotle and pythagoras , with their schollers . pa. 98 the israelites sacrificed theyr children to moloch pa. ead . all creatures obey the lorde more then man , the chiefe creature pa. 99 the fraude of giezi plaine theft . pa. ead . the vision of the flying booke . pa. 100 foure great men that robd the temple in ierusalem . pa. ead . the lawe plagium pa. 101 the lawe of the phrigians against theft pa. ead . the lawes of draco in athens against theft pa. ead . bocchoris lawes in egipt against theft pa. 102 charondas lawe in fauour of orphants pa. 103 solons lawe in athens for orphants and infants pa. ead . the daughters of zalphod restorea by moses lawe to their fathers inheritance pa ead . the effect of loue and praiers pa. 105 the effectes of lawes in inward and outward obedience . pa. 106 the lawes of the 12. tables against theft pa. 107 iulius lawe against theft . pa. ead . bocchoris lawe against theft . pa. 108 theft left vnpunished by licurgus lawe pa. ead . bocchoris lawe against vsurie . pa. ead . solons lawe against vsury , called sysacthia pa. 109 lucullus and cato banished vsurie pa. ead . moses lawe against vsury . pa. 110 solons lawe against slaunderers . pa. ead . description of ill tongues . page . 111 the diuerse punishmēt of tongues . pa. 112 slaunderous tongues practised mischiefe pa. 113 a lawe in athens against vngratefull men pa. 115 diuers false prophets reproued . pa. 116 naboth and stephen stoned to death pa. 117 false witnesse against christ himselfe pa. 118 zaleucus lawe against false witnesse pa. ead . the lawe of bocchoris in egipt against periurers pa. 119 punishment of false witnes among the turkes pa. ead . the lawe of the twelue tables against false witnesse . page . ead . diuers lawes against rebellious and trecherous seruants . pa. 120. 121. 122 the law of the 12. tables against staunderers pa. 123 of the maner of swearing among the hebrewes pa. 124 of diuers ambitious men . pa. 125. 126 the euill end of ambition . pa. ead . zaleucus lawe against ambitious men pa. 127 cincius lawe in rome against ambition pa. 128 the lawe ostracismus in athens against ambition pa. 129 ambitious kings in egipt might not be buried pa. ead . the image of iustice in eliopolis . pa. 130 of the oaths of the kings of mexico , at their consecratiō . pa. 131 the pride and insolencie of xerxes and antiochus pa , 132 the lawe of thrasibulus in athens called amnestia . pa. ead . the lawe plebiscita pa. 133 the lawe of the indian philosophers pa. 136 of liberties and freedomes in diuers countries pa. ead . the first law of romulus in rome called lex curiata pa. 137 the second lawe in rome called senatus consultus pa. ead . what the senators of rome might do without the consent of the people pa. 138 gracchus law in rome called lex agraria pa. 139 thirtie senators in carthage called conipodes pa. 140 aristocratia chaunged to monarchia among the hebrewes . pa. ead . kings deposed in sparta by the ephori pa. 141 platos lawe against curious men . pa. ead . consuls remoued in rome from their office by soothsayers . pa , 142 the lawe called lex auguralis . pa. 143 finis . notes, typically marginal, from the original text notes for div a06131-e380 iob. 38. iob. 25. the old patriarkes liued vnder the law of nature . 2. cor 3. iere. 31. the lawe of nature is a short repetition of the lawe written . the lawe written and giuen to moses . cic de leg . lib. 1. cic. de leg . lib. 3. cic. de diuini . lib 1. diod. sic . lib. 2. cap. 5. lex curiata . chiefe magistrates & gouernors in diuers countries the lord cōmaunded an aultar to bee made . exod. 20. diuers aultars be●…ore the law written . septe longaeui tylia otherwise called phyllida . vlpian . f. de leg . 3. rachel stole her father labans image . gen. 31. gen. 35. the image of belus made by his sonne ninus . ieroboam made two golden calues . israel made a god of mettall while moses was with the lord for the lawe . deut. 9. num. 25. 4. reg●… . notes for div a06131-e2910 socreates poisoned in athens for religion . platoes opinion of poets & painters . ioseph . lib. 2. contra . apion . 〈◊〉 alcibiades 〈◊〉 ed from athens . clo●…ius slaine in rome . anacharsis slaine . ioseph . lib. 2. contra apion . paul. 〈◊〉 . ad rom. hermes in poemand . plato in phaed. the romains vowe . grecians . vowes of the gentiles to their gods . pers●… xerxes burnt the temples in greece . cic. de legib . lib. 2. ●…em 1●… . the rechabites lawes . ahiahs speech to ieroboam . deut. 32 : deut. 38. hose . 10. zeleueus first lawes to the locreans . diod. sic . li. 12. cic. de leg 1. licurgus lawe that no stranger should dwell in sparta . anaxagoras put to death . ioseph . lib. 2. contra apion . iudic. 6. protagoras diod. sic . lib. 2. diagoras . talentū . atticum . cic. de natura deor . lib. 1. val. max. de peregrin . religione , cap. 3. cyrus confessed the god which the lewes worshipped . 1. eldr. 〈◊〉 . artax . nabuchodonozer . darius made a lawe that all dominions should feare the god of daniel . agrippa . ioseph . de antiq . li. 19. ca. 7. notes for div a06131-e5120 egipt the mother of all idolatrie . dio●…ic . lib. 2. ioseph lib 2. con●… apion . gode . c. ●…n li. 2. viget . cap. 1. the iewes obserued straitly their lawes . alex. neapolit . genial . lib. 5 cap. 24. diuers tooke vpon thē to be the mesias . ioseph . de antiquit. lib. 20. cap 5. torquinius . three hundred aureos . idolatrous sacrifice of the gentiles . no bloud offered in sacrifice by licurgus lawe . cic. de leg . lib 2. arist lib. 5. polit . cap. 11. paul called spermologos in athens . deut. 17. 2. reg. 21. moloches 7. chambers . hose . 10. punishment of corrupt iudges in persia. psal. 25. law turned to wormewood . &c. amos. 4. arist. rhet. 1. cap. 3. the lawe of the lord set down by esay the prophet . esai . 〈◊〉 . deut. 7. exod. 22. plato polit . wicked answers of kings●… ashuerus . darius . iezabels lawe for naboths vineyard . lysander and pompeys speech to a lawier . ●…ammius glad●…us . plato in alcibiad . leuit. 13. alex. neapo . lit . gnial lib. 4. ●…a 7. ceremoniall lawes of the gentiles . the gentiles builded diuers temples to their gods . exod. 40. the maner of the gentiles in dedicating their temples , &c. alex. neapo . lit . li. 6. cap 14. alex. neapo . lit . genial . lib. 4 cap. 17. the consecration of aaron . leuit. 8. notes for div a06131-e8550 by what authorities all nations confirmed their lawes . diod. sic . lib 2. cap. 4. plut. in sylla . the straight obseruation of the sabboth by the iewes . exod. 16. luk. 23. iohn . 19. the second building of the temple by cyrus . 1. esdr. 1. darius & artaxerxes . neomenia . the romains , sabboths . parthians . the diuers kinds of sabboths among the heathens . heredot . lib. 6 phillip . the blasphemy of nicanor . ioseph lib. 11. cap. 8. ioseph . lib. 12. cap 3. certaine romanes slaine by the iewes . ioseph . lib. 20. cap. 4. 1. machab. 2. plut. in pomp. the lawe of iud. macha●… . math. 12. among the heathens the sabboth of the lord was not knowne . liui 〈◊〉 . thueyd . 1. xenoph. de expedit . cyri. 3. plut. in alex. licurgus lawe for time of battell . front. lib. 2. cap. 1. before y temple was made in ierusalem , the israelites came to siloh . esay . 45. the continuance of licurgus lawes . charondas lawes against those that disobeyed & contemned lawes . licurgus law . rhe●…ra . plut. in licurgo . the lawe of the 12. tables . hipocrates in praecep●… . cicero de leg . 2. cic. de diuin . lib. 1. cic. de leg . lib. 3. alex. neapolit . genial . lib. 6 cap. 23. ioseph . lib. 4. cap. 8. the diuers orders of appeales among the heathens . alex. neapolit . genial . lib. 3 cap. 16. notes for div a06131-e11150 ioseph . lib. 4. cap. 8. the wise and graue iudges in diuers countries . diod. sic . lib. 2. cap. 3. exod. 20. lawes of all natiōs against disobedient children . deut. 21. esau. gen. 27. gen 31. the corruption of iudges . ophnes and phinees . good parents haue ill children . 1. reg. 16. 1. reg. 24. the care of the hebrues to keepe moses lawe . deut. 6. godese . lib. 2. cap. 6. alex. neapolit . lib. 6. cap. 14 platoes lawe . markes of monuments and couenants by ioshua , iacob , and samuel . gent. 31. the care of the kings of persia to bring vp their children . charondas lawe sxr education of children . plato in alcibiad . alex. neapol . lib. 6. cap. 25. nehemiae . cap. 8. & 10. plato & anacharsis order for the youth in greece . ioseph . lib. 10. cap. 11. the romanes care for theyr children . cic. de diuin . 1. charondas lawe . bocchoris lawes . the care of the hebrew women in naming and in nursing their children . iacob . iob. dauid . phillip . agamemnon . antigonus . troglodites called antinomi . the carelesse nature of the troglodites & atlantes for their children atlantes called anomi . manlius remoued from the senate house . epicarmus punished . eccle. 30. licurgus appointed schoole maisters in spart●… , called paedonomi . the lawe of the br●…chmanes for their children in india . orators and poets contended in greece notes for div a06131-e14040 the names of lawe makers & magistrates in diuers coūtries . gene. 4. blood the first witnesse against murther . c ham was accursed . deut. 1●… . the second murtherer in scripture . gene. 27. ioseph threatned to be killed . foure witnesses against murtherers . iacob fledde from esau. the enuie of saul towards dauid . three kindes of murther . 3. reg 21. iob. 20. psal. 93. math. 2. sap. 6. 2. reg. 11. punishment vpon cain and others by the law of nature . esd. li. 4. ca. 16. murtherers haue theyr markes . how paracides were punished in rome . alex. neapol . genial . lib. 3. cap. 5. bocchoris lawes in egipt for murther . diod. sic . lib. 2. no law made against paracides , neither by romulus nor solon . platoeslaw for the man that kild himselfe . caligula . oros. li. 7. ca 5 oros. lib. 3. cap. 10. diuers horrible murtherers punished . charondas lawe . exod. 21. the law of the 12. tables like moses lawe . andronicus killed . zimri . 3. reg. 15. zellum . 4. reg. 15. curtis . 9. vopisc . in aurel . saul . absolon . notes for div a06131-e16890 plut. in numa the gentiles confirm their lawes by authoritie of oracles from their gods . the fiue cities called pentapolis destroyed . the israelites plagued for their sin with the moabites . nomb. 13. 4. reg. 10. the commendation and reward of godly zeale . ephes. cap. 6. example of adultery in diuers countries punished . gen. 1●… . iudic. 19. gen. 34. lawes in diuers countries against adultery . bocchoris lawe against adultery . charondas lawe against adultery . arist. 5. polit : demosthenes aduersus leptin . plato de leg . zaleucus lawes against adultery . fla. vobise . in aureliano . punishment of adultery by aurelianus and macrinus both emperors of rome . capitolin . in vita macrini . time hath euer bene appointed for godly men to effect theyr purpose . the lawe paratilmus against adultry . the opinion of diuers philosophers concerning adultery . alex. neapol . lib. 1. cap. 24. diod. sic . lib. 2. cap. 6. moses lawe against bastard●… gen. 49. gen. 30. lawe of nature . gen. 3●… . leuit. 19. lawes of nations against bastards . deut. 22. deut. 22. bocchoris law for a woman with childe . exod. 21. the lawe of the vnshod house . deut. 25. the lawe of moses against an adulteresse cortini . pisidae . casaluion . summaenium . xerxes offred rewards to inuent pleasures laert. in solone . haniball . scypio . commendation of chastitie . alexander . dioclesian . sext. ruffinus . front. lib. 4. cap. 1. l. consensu c. de repud . lib. 1. cap. 2. leges conuiuales . sapien. 2. notes for div a06131-e20790 vertuous and good lawes were so honored that they were sent for frō one countrey to an other . philadelphus . ioseph . lib. 12 , cap. 2. alex. neapol . genial lib. 4. cap. 7. sinister means of the gentiles to become chaste . toby . 3. examples of chastitie in good women . iedith . 10. & 1●… . neom●…nia . prou 7. the harme that hapneth by too much libertie . prou. 6. gene. 12. the offence of the eye . math. 14. aqua mercurij . mary magdalene . people called animphi and abij . gymnosophists . the lawe of 12. tables for chastitie . deut. 23. val. max. li. 6. cap. 1. cic. de leg . 3. notes for div a06131-e22210 continuance of lawes in all countries . ioseph . lib. 1. ca. 3. de antiq. the tabernacle hidden by ieremy . 2. macab . 2. egiptians . lacedemonians . the care and diligence of all nations in keeping their lawes . alex. neapol . genial lib. 3. cap. 16. athenians . chron. turcor . arist. rhet. 1. cap. 3. iudges appointed in all countries to execute lawes of counsell and gouernment of women . aristot. 〈◊〉 . polit . ●…ap . 7. plato in alcib . alex. neapol . lib. cap. 3. cic. de leg . lib. 2. the athenians sent to delphos . leuit. 19. achan stoned to death for theft . ioshua 7. 3. reg. 13. num. 15. the law of the lorde for breach of his lawes . malac. 1. nadab and abihu . the lawe of zaleucus for breach of the lawe . thueyd . lib. 6. august . apud . dyon . 3. the seueritie of l. papirius , for breach of the lawe . front. li. 4. ca. 1 plato de rep. 5. diocles lawe . diocles killed himselfe to satisfie his owne lawe . licurgus banished himselfe . the credit of pythagoras and aristotle , with theyr schollers . plato de rep. 5. the israelites sacrificed their children to moloch . notes for div a06131-e24800 3. reg. 1●… . luk. 8. the disobedience of man against god. psal. 141. cic. de leg . 3. liui. lib. 6. the fraud of giezi plain●… theft . leuit. 19. the vision of the flying booke . za●…h . 5. cato censorius de re militari . foure that robd the temple . cic. de natura deor . lib 3. dyonisius . a lawe called plagium . the seuere lawes of the phrygians against theft . the lawes of draco in athens against theft . the lawe of bocchoris in egipt against theft . diod. sic . lib. 2. cap. 3. exod. 22. bocchoris lawe against theft . deut. 19. charondas lawe in fauour of orphants . solons law for orphants and infants . alex. neapol . lib. 6. cap. 10. the daughters of zalphod restored to their fathers inheritance . nomb , 27. voconius law . alex. neapol . lib. 6. cap. 15. exod. 32. effect of loue and praiers . gen. 18. gen. 22. notes for div a06131-e26310 gen. 13. gen. 3. cic. de finibus . 5. the effects of lawes in inward and outward obedience . edictum principis . the lawe of the 12. tables against theft . an other law●… of the twelue tables . exod. 22. iulius lawe against theft . bocchoris lawes . theft left vnpunished by licurgus lawe bocchoris law against vsurie . illiad . 1. solons lawe against vsurie called sysacthia . diod. sic . lib. 2 cap. 3. zeteta . solons lawe . lucullus and caro bannished vsurie . alex. neapol . lib. 1. cap. 7. licurgus . moses lawe against vsurie . deut. 23. math. 18. solons lawe against nick-names . catapygos . obscessor via●…um . bocchoris law leuit. 19. psal. 33. xenoph. 1. paed. iames cap. 3. pro. 13. platoes lawe . suet. in augusto . achisophel . slanderous tongues practised mischief . tacit. 1. annal . pleto de repub . 5. cic. pro milone . cic. de leg . lib. 1. alex. neapolit . 5. cap. 1. plato in 〈◊〉 . notes for div a06131-e28820 deut. 19. prou. 19. & 24. psal. 101. deut. 27. diuers false prophets of baal reproued by michaeas and elias . 80. of baals priests reproued . suzanna . naboth stoned to death by false witnes stephen the first martyr paul. act. 24. false witnesse against christ our sauiour . mar. cato . aristophantes zaleucus lawe against false witnesse . bocchoris law diod. fic . lib. 2. cap. 3. alex neapol . lib. cap. 10. the turkes punishment of false witnes . the lawe of the 12. tables . indians . lawes against rebellious seruants . alex neapol . lib. 3. cap. 20. paucicapa a kind of punishment . cic. ad attic. epist. 1. licurgus law●… plut. in alex. alex. neapol . lib. 6. cap. 14. hilotae . arist lib. 5. polit , cap. 11. 〈◊〉 . deut. 19. the lawe of the 12. tables against slaunderers . alex neapolit . 6. cap. 10. leuit. 9. oathes . of oathes . amos. 8. gen. 24. of the maner of oathes among the hebrewes . gen. 27. gen. 22. 1. reg. 25. 3. reg. 17. galath . 1. coloss. 1. notes for div a06131-e31570 plato de leg . lib. 12. the pride of ammon . abimelech . absolon . many great mē ambitious . the nature of ambition . iudic. 9. the end of ambitious mē . plato de leg 9. stobaeus sermo . numb . 16. numb . 12. zaleucus law against ambitious men . the lawe petalismus against ambitious men . cai. petilius & cincius lawes against ambition in rome . alex. neapol . lib. 4. cap. 3. cie . de leg . li. 3 arist lib. 3. polit . cap. 〈◊〉 . the lawe ostracismus in athens against ambitious arist. 5 poli●… . cap. 11. amzitious kings of egipt might not be buried . diod. sic . lib. 〈◊〉 cap. 3. the lawe of the people pedalij to iustice . alex. neapol . lib. 6. cap. 17. appollonius and socrates wishes . the image of iustice , &c. the picture of ambition without legs . cic. proplan●… . luk 17. sebna . achab. nimrod . plato in apol. the pride and ambition of antiochus . ammon . hercules . achilles . the lawe of thrasibulus in athens called amnestia . alex neapol . lib. 6. cap. 23. draco strangled in egina . perillus died by those torments which he inuented . arist. polit . lib. 3. cap. 3. notes for div a06131-e34260 tib. caesar. tacit. 1. annal. lamp. in alex. lamp. in alex . the lawe of the indian philosophers . diod. sic . lib. 3. alex. neapolit . lib. 4. ca. 10. the first lawe of romulus called lex curiata . the second lawe in rome called senatus consultus . plato . plyni . paneg. alex. neapol . lib 4. cap. 11. illiad . 1. alex. neapol . lib. 6. cap. 14. what the senators might do without the people . plut. in pomp. gracchus law called lex agraria . platos lawes . 28. senators in sparta . 30. senators of carthage called conipodes . aristocratia changed to menarchia . 〈◊〉 . sam. cap. 8. kings deposed in sparta by the ephori . platos lawe . cic de diuin . lib. 1. consuls remoued in rome from their office . lex auguralis alex. neapol . lib. 5. cap. 19. leuit. 19. cic. de diuin . lib. 2. diod. sic . lib. 3. cap. 10. cic de diuin . lib. 1. tacit. annal . 3 the harmony of natural and positive divine laws charleton, walter, 1619-1707. 1682 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(eebo-tcp ; phase 1, no. a32695) transcribed from: (early english books online ; image set 64291) images scanned from microfilm: (early english books, 1641-1700 ; 347:15) the harmony of natural and positive divine laws charleton, walter, 1619-1707. [16], 219 p. printed for walter kettilby ..., london : 1682. attributed to walter charleton. cf. halkett & laing (2nd ed.). advertisements: p. [1]-[4] at end. reproduction of original in british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -philosophy. natural law. law (theology) -biblical teaching. 2003-09 tcp assigned for keying and markup 2003-09 aptara keyed and coded from proquest page images 2003-10 rina kor sampled and proofread 2003-10 rina kor text and markup reviewed and edited 2003-12 pfs batch review (qc) and xml conversion the harmony of natural and positive divine laws . chrysostom . ad demetrium . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; quòd praeceptis non creditur , ex inertia ad implenda quae praecepta sunt , venit . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . deo parere , non libertate tantùm , sed & regno praestantius est . philo lib. de regno . london , printed for walter kettilby , at the bishop's head in st. paul's church-yard . 1682. the publisher to the reader . fortune , though beyond my merit , and beside my expectation so propitious , as to give me , not only the liberty of reading the original manuscript of this compendious treatise , but also a right of adjudging it , either to perpetual darkness in my cabinet , or to publick light , as i should think convenient : hath yet been so reserv'd , or sullen , as to deny me the knowledge of the author's name and quality ; as if it were favour great enough , that she entrusted me to dispose of anothers treasure , without understanding from whom she had receiv'd it ; or as if she design'd to make trial of my faith , whether i would lay claim to what seem'd to want an owner . but this her caprichio , as it hath not deterr'd me from divulging , so ought it not to discourage you , candid reader , from seriously perusing this manual . for 't is an ancient and wise saying of a philosopher , non tam quis dixerit refert , quam quid dictum sit : and if the book be good enough to commend it self , what can it concern you or me to be inquisitive who compos'd it ? if not ; certainly no name , how much soever celebrated , can defend it from neglect and contempt . besides , when we remain ignorant upon whom to fix the blame of our frustrations , commonly that ignorance turns to our advantage , by mitigating our resentments , and keeping our displeasure from transgressing the limits of humanity and moderation . this i speak , neither out of dislike of that natural curiosity by which all men are led to search into things conceal'd , nor from vain hope to restrain you from using the liberty of conjecturing , that is equally common to all : but only from good manners , which forbid us to pry into the secrets of another , chiefly of him who judges the communication of them to be unsafe to himself , and no way useful to us . if therefore our author , duly conscious to himself of human frailty , and diffident of his own learning and judgment , fears to come upon the stage in this censorious age , wherein the illiterate blush not to condemn the knowing : we are at once to acknowledge his modesty , and commend his prudence , not to envy him the privacy he affects . and this is enough for me to say , and for you to know concerning him . as for my self ; if i , from good will to all mankind , desire to make common to that benefit , which seems have been at first intended to be inclosed and kept peculiar : i neither invade the authors propriety , nor abuse the freedom permitted to me , but charitably dispense to many the wealth i might have kept intirely to my self . and this too , following the writers example , i choose to do unknown ; that my charity may be exempt from all suspition of ostentation , and that i may prevent all thanks of those that take it in good part . so that in fine , all i ask of you is , that you would freely enjoy the pleasure of his studies , and of my benevolence , without thinking your self obliged to either , without perturbing the quiet we both hope from our belov'd obscurity . this , good reader , you cannot with equity deny to men , who leaving to censure the liberty wherein chiefly it delights , do by concealing the more expose themselves . it remains only , that i add a short advertisement concerning the book it self , of the good reception whereof by the learned and the iudicious , i am not a little solicitous , and from whose fate i may learn how rightly to estimate the small judgment i have in discourses of this kind . permit me therefore to inform you , that it was written by the author to no other end , but to confirm his faith by inquiring into the reasonableness and purity of it , and to augment his piety toward god. in a word , that he might offer to the divine majesty , not the sacrifice of fools , but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , worship consentaneous to right reason : as appears from the laudible profession he makes in the fifth article of the second chapter of the first part ; and from the plainness and simplicity of the stile , such as serious men use , when they commit to writing their collections and remarks for their own private use ; and ( what is yet more convincing ) from the scope of the whole disquisition . the design then you will ( i presume ) acknowledge to be good , worthy a philosopher and a christian. and if he hath pursued it so far as to satisfie his own reason , why may not i hope from the same cause the like good effect also in the minds of others ? from this , and only this hope it is , that i permit this compendium of natural and positive divine laws to see the publick light. if my hope be by wiser heads found to stand upon an infirm basis ; the charity of my intention may at least excuse , if not expiate the error of my understanding . the contents of the first part . chap. i. of right and law in general . pag. 1. ii. god's right to soveraign dominion over all things in the world. 10 iii. of the precepts of the sons of noah , in general . 18. iv. of extraneous worshipor idolatry 21 v. of malediction of the most holy name , or blasphemy . 28 vi. of shedding blood , or homicide . 32 vii . of uncovering nakedness , or unlawful copulation . 40 viii . of theft or rapine . 54 ix . of iudgments , or the administration of iustice in courts of iudicature ; and of civil obedience . 65 x. prints of the six precedent natural precepts , found in the book of job . 73 xi . of not eating any member of an animal alive . 76 of the second part . chap. i. the preface to the decalogue explained . page 81 ii. the first precept explicated 96 iii. the second precept explicated 111 iv. the third precept explicated 143 v. the fourth precept explicated 148 vi. the fifth precept explicated 172 vii . the sixth precept explicated 181 viii . the seventh precept explicated 185 ix . the eighth precept explicated 187 x. the ninth precept explicated 189 xi . the tenth precept explicated 193 xii . evangelic precepts reduced to those of the decalogue . 200 appendix , containing a short history of the iews talmud . 209 the concordance of natural and positive divine laws . part i. containing a brief explication of the precepts of the sons of noah , and reduction of them to the dictates of right reason . chap. i. of right and law in general . what is by the ancient wise men of greece , as well philosophers as legislators , call'd sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; by the latines , ius ; and by the english , right ; may not unfitly be defined to be the rule , measure , and index of what is lawful , and what vnlawful . this is consider'd in a twofold sense , first as it is obligative or binding , and then it is called also preceptive or commanded : or secondly as it is only permissive , and then it is named also concessive . in the former sense it takes place in those things that are commanded or forbidden , as to give every man his due , not to swear falsly , &c. in the later , it is found in those things whereof the use is neither commanded nor forbidden , but yet notwithstanding permitted ; as in the act of buying , selling , manumission , in the conditions of contractors used to be added to their contracts , and in others of that kind . but both these kinds of right belong , either to all mankind universally , that is , to all nations , or not to all . that which belongs to all mankind , or all nations , is again distinguish'd into natural and divine . the natural is that which is manifest from the light of mans natural reason , or the right use of his faculty of understanding and inferring ; elegantly defined by tertullian ( lib. de corona militis ) to be lex communis in publico mundi & naturalibus tabulis scripta ; and call'd by the two best of all the greek historians , thucidides ( lib. 4. ) and polibius ( lib. 2. ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , communia hominum jura ; and by iurisconsults , ius gentium primaevum . the divine , that which hath been ordain'd and declar'd by divine oracles , committed to writing in the holy bible . and this , as well as the natural , deserves to be acknowledged to be ius gentium vniversale , seu omnium commune . because all the laws of nature , are the laws of god himself ; because his positive or written laws are no other but sanctions or explications of his unwritten or natural : and because whatsoever is obligatory in either natural or divine universal right , either from the nature of the thing it self , or rather from the auctority of the author of nature , is by all men held to be immutable . whence that maxime so often asserted by philosophers , theologues , jurisconsults ; iura naturalia esse immutabilia . which cannot be truly said of right permissive , whether natural or divine , extending to all mankind . for that this is variously mutable , according to the judgment of governors , is manifest to every man of common sense , even from the name permissive , and from dayly experience , which teaches that permissive right admits obrogations , abrogations , temperaments , and limitations , i. e. mutations . whereas the obligatory , tho' it admit indeed of increments or additions ( namely such by which it may be either more firmly , or more decently observed ) yet admits no mutations , by which its force or vertue may be in the least diminished . from the additions of obligatory right , and the mutations of permissive , there hath risen up that other right , which being of less extent , belongs not to all nations , or to mankind universally , but only to some parts of it , and is wont rightly enough ( as being put or founded , whether by god , or by men ) to be call'd positive , and sometimes also civil , and an additament of right reason natural . this positive right may with good reason be distinguished into that which is proper and singular to some one nation or people coalescent into a society ; ( such long ago was that patria potestas among the romans , and that which was in use at athens , mention'd by demosthenes ( in orat. contra aristocratem ) and that which is common to many nations . which is again distinguish'd into that , to the observation whereof more nations than one are at once , equally , and in common obliged : and that under which many nations live , not at the same time , equally , and from any common obligation , but singly and by accident . of this triple species of positive right the first may conveniently be term'd right simply civil , as pertinent to some one city or commonwealth : the second , common right of many nations , because of the communion of obligation : the third , civil or domestick right of some or many nations , because the obligation under which they are , is only domestick and civil to each of them singly , not common to all . for example , the twelve tables brought from athens to rome obtain'd to be of equal force in both nations , the attic and the roman : but from no communion of obligation or conjunction of peoples . the right of those tables therefore might much more commodiously have been call'd , the civil right of these nations , than simply the right of both , because this later phrase indicates a communion . but as for the common right of more than one nation founded upon communion of obligation ; this likewise is to be parted into two branches : viz. that which is imperative to many nations or peoples , and that which is intervenient . by imperative , we mean that right of nations , which is or ought to be observ'd by many nations or peoples , otherwise subject to divers governments and soveraign powers , from an obligation common indeed to every one of them , and equal , but deriv'd from the command either of god or of man. such was the right of the dolopes , magnetes , phthiotae , thessali , and other peoples of graecia , who by a common obligation receiv'd from the command of acrisius king of the argives , were under the jurisdiction of the great amphictyonic council at athens . such also was the singular right of war by god prescrib'd not only to the hebrews , but to the canaanites too , with whom they were to make war. for both nations were obliged though diversimodè , by the authority of the imperant . and when divers nations convene in like manner into the same right , by the authority and command of the pope of rome , that is to be call'd an imperative right of those nations . but we call the intervenient right of nations , that which ariseth , not from an empire common to many , but from intervenient pact or use of customs , and is wont to be call'd ius gentium secundarium . heads of this right are remarkable in the right of demanding satisfaction for injury , of proclaiming war , of embassies , of captives , of hostages , of leagues , of commerces , and other like things usually intervenient among divers nations . for what right soever , in these things , is made up of the additions that have come to the universal obligative right of nations , and of the mutations that have come to the universal permissive right , among divers nations ; all that , and not more , deserves the name of either imperative or intervenient . the rest , 't is evident , retains the name of the universal or most ancient right of nations . the caesarian right also , which is so much insisted upon in the above-mention'd heads of intervenient right , when they come to be discuss'd by jurisconsults , so far forth as it agrees with the universal right of nations , whether natural or divine , is also to be put under the same name : but so far as the heads and some decrees of it , which are not of universal right , are made use of from the consent of some nations , with whom they are in force ; it is most fitly to be denoted by the title of right intervenient among those nations . and in fine , so far as the same caesarean right is by some single nations receiv'd into their forum or court of judicature ; it is to be named the civil right of some nations , or their domestick right . from this consideration of the nature , various notions , and differences of right , we may easily be able to distinguish betwixt those two things , which many learned writers confound , using the words right and law promiscuously . for from the premisses it may be collected , that right consisteth in liberty of doing or not doing : but law obligeth to do , or not to do , and therefore right and law differ as liberty and obligation , which about the same thing are inconsistent . hence we may define natural right , to be the liberty , which every man hath of using , according to his own will and pleasure , his power to the conservation of his nature ; and ( by consequence ) of doing all things that he shall judge to be conducive thereunto : understanding by liberty ( what that word properly signifies ) absence of external impediments . and natural law , to be a precept , or general rule excogitated by reason , by which every man is prohibited to do that which he shall judge to tend to his hurt , harm , or wrong . by nature all wise men understand the order , method and oeconomy instituted and established by god from the beginning or creation , for government and conservation of the world. all the laws of nature therefore are the laws of god : and that which is called natural , and moral , is also divine law : as well because reason , which is the very law of nature , is given by god to every man for a rule of his actions ; as because the precepts of living , which are thence deriv'd , are the very same that are promulged by the divine majesty for laws of the kingdom of heaven , by our most blessed lord iesus christ , and by the holy prophets , and apostles ; nor is there in truth any one branch of natural or moral law , which may not be plainly and fully confirm'd by the divine laws delivered in holy scripture : as will soon appear to any man who shall attentively read and consider what our master hobbs hath with singular judgment written in the 4 th . chapter of his book de cive : where he confirms all the laws of nature by comparing them singly with divine precepts given in the old and new testament . whoever therefore desires clearly to understand the reasonableness , equity , justice , and utility of moral laws , and the true causes of the obligation under which he is to observe them , in order to his felicity , as well in this life , as in that which is to come ; ought most seriously and profoundly to consider the divine laws or precepts recorded in that collection of sacred writings call'd the bible . which i , though of learning inferiour to so noble an undertaking , and subject by the nature of my profession and studies to various distractions every day , yet resolve with my self to attempt , according to the module of my weak understanding , not for information of others , but for my own private satisfaction . chap. ii. god's sovereign right to dominion over all things in the world. that god is by highest right soveraign lord , and monarch of the universe , having in himself most absolute power both of legislation , and of iurisdiction ; is sufficiently manifest even from this , that he is sole author and creator of the world and all things therein contain'd , and doth by his most wise providence perpetually conserve and sustain them . and that he only can relax or remit the obligation under which his subjects are to observe the laws by him given for their regimen ; and to whom he pleaseth pardon the violation of them : is no less manifest from his very supremacy . so that it belongs not to the right of any mortal ruler , either to command what god forbids , or to forbid what god commands . the reason is , because , as in natural causes , the inferiour have no force against the efficacy of the superior ; so it is in moral also . upon which reason st. austin seems to have fixt his most discerning eye , when teaching that the commands of kings and emperors , so far as they contradict any divine command , cannot impose an obligation to obedience ; advances to his conclusion by the degrees of this climax or scale . if the curator commands somewhat , it is not to be done if the proconsul forbids . herein we contemn not the power , but choose to obey the higher . again if the proconsul bid one thing , and the emperor injoin the contrary , without doubt you must give obedience to the emperor . therefore if the emperor exact one thing and god another ; what is to be done ? god is certainly the greater power : give us leave , o emperor , to obey him. from the same reason that most wise emperor , marcus aurelius also said , the magistrates judge private men ; princes the magistrates , and god the princes : and seneca the tragedian , quicquid à vobis minor extimescit , major hoc vobis dominus minatur : omne sub regno graviore regnum est . for his sense is , deum esse supra omnes summates hominum , regum timendorum in proprios greges , reges in ipsos imperium est iovis . this monarchy of god is double , natural and civil . by the natural , is to be understood the absolute dominion which from the creation he hath exercis'd , and at this day doth exercise over all men naturally or by right of his omnipotency . by the civil i understand that which in the holy scriptures is most frequently named the kingdom of god , and which is most properly call'd kingdom , because constituted by consent of the hebrew nation , who by express pact or covenant chose god to be their king : he promising to give them possession of the land of canaan , and they promising to obey him in all things . but this kingdom being by divine justice , for the disobedience and many rebellions of that perverse people , long since extinct , they now remain in the same state of subjection with all other nations , namely under the natural empire of the universal monarch god. but ( what is worthy our more serious remark and consideration ) tho the common-wealth of the hebrews , the form of whose government may be most properly call'd a theocraty ( for , the supreme ruler and president was , not moses , but almighty god himself ) hath been , so many ages past , dissolv'd : yet the most excellent positive divine laws , principally those comprehended in the decalogue , upon which that empire was founded , have lost nothing of their sanction and original force , but still continue sacred and obligatory , not only to the posterity of the hebrews , but also to all the sons of men of what nation soever . which the learned cunaeus hath ( de rep . hebraeor . cap. 1. ) with singular judgment observ'd in words of this sense . the laws of other nations , inventions of humane wit , are enforced only by penalties , which by time , or through the sloath of governors , lose their terror : but the iewish ordinances , being the decrees of the eternal god , not weakned by either continuance of time , or softness of the judges , remain still the same ; and when the ax and the scourge are no longer fear'd , mens minds are nevertheless kept in awe by religion . and as the stability of these laws given by moses , whom god had consituted his representative and vicegerent in the promulgation of them , to the people of israel , is by cunaeus rightly referr'd to the eternity and immutability of the divine decrees : so is it lawful for us to assert the vniversal extent of them from this reason , that the divine law of the decalogue is an explication of the law natural written in the mind of every individual man from the beginning ; though we must at the same time acknowledge , that the very giving the same in precept to the iews , added a new sanction and obligation to the former ; so that the iew doing the contrary , not only offended in doing an act simply vitious , but also in doing an act strictly for bidden ; because ( as st. paul speaks rom. 11. 23. ) by the transgression of the law he dishonoureth god. that this different obligation of laws natural and divine may be yet more clearly understood , we observe , that the determining of human actions ariseth , either from their own nature ; as to honour and worship god , is due ; to lye , unlawful of it self : or from the positive divine law. those of the former sort are referr'd to the law natural : those of the latter are such as have been prescribed by god , some to single persons , namely to abraham , isaac , iacob , moses , and other servants of god : among all people , to israel alone god prescribed many positive laws pertaining to their religion , which was the same with their politie . to all mankind , some things were commanded for a time ; as the observation of the sabbath , presently after the creation , as many of the most learned think ; the law of not eating bloud , or the strangled , after the floud : others to last for ever , as the institutions of christ , concerning excommunication , baptism , the supper , &c. if there be any more of that kind . so that one and the same vitious action is more or less offensive to god , according to the determination of it to be so by positive law , or by meer light of reason , i. e. by law natural . because though both laws be divine , yet the obligation of the former is double , of the later single . having thus , briefly indeed , but plainly asserted gods right to the monarchy of the whole world ; distinguish'd his natural dominion from his civil ; defined what is law natural , what positive divine ; and shewn the difference betwixt that and this , as to their obligation : it seems to me , that i have not only prevented all such erroneous conceptions , which otherwise might arise , either from ambiguity of the words , right , dominion , government , law , and obligation ; or from confusion of various notions of single things : but also laid the corner stone as it were , of the little structure i propose to my self to erect , in order to the stronger defence of my mind against allurements to do evil , i. e. to violate any of god's laws . for in this illaborate exercise of my pen , i have no other end or design but this ; to investigate and examine the perfect concordance betwixt the laws of nature , and positive divine laws , principally those of the decalogue ; to the end that being at length fully convinced of the double obligation incumbent on me not to transgress any one of the latter sort , i may in the little remnant of my days do my best devoir to live more inoffensively both toward god , and toward men. for certainly who is throughly conscious of the justice , equity , and decency of religious duties , will be so much the more solicitous to perform them : because the more the understanding is illuminate by the rays of truth and evidence , by so much the less prone it is to be imposed upon by the specious pretexts of passions , and by consequence the more apt to direct its handmaid the will in the right way to felicity ; which consists in the knowledge , love , and veneration of god. as for method ; the work in which my thoughts are at present versed , will be in bulk so little , i need not be over curious what form to give it ; the materials so few , i need not be solicitous in what order to range them to the best advantage . without affectation therefore of ornament from either of those two things , and without farther amusing my self with variety of distinctions ( many times of more subtilty than use ) i will content my self with tracing , as faithfully as i can , the footsteps of time , or ( to speak a little more plainly ) reciting and considering the various moral laws , whether meerly traditional , or written , given by god , first to noah and his little family , when soon after the deluge they began to replenish the earth with inhabitants ; and then to moses , when he constituted and established the most admirable common-wealth of the hebrews , in the same order in which they are said to have been delivered ; and breifly comparing them singly with the laws of nature ; it being ( as i just now profest ) my chief scope in this disquisition , to find the concordance betwixt these and those . chap. iii. of the precepts of the sons of noah in general . i begin from the moral laws , which , according to the tradition of the talumdic masters , were given to noah and his sons soon after the floud , and which are thence named praecepta noachidarum . which before i recite , three things not altogether unworthy to be noted , for our more facile understanding of their authority and extent , are to be premis'd . the first , that by the patronymie noachidae , the rabbins unanimously understand all nations besides the hebrews , who affect rather to be call'd abrahamidae , from the father of all the faithful , abraham . the second , that the same rabbins , firmly believing , and confidently teaching , that there hath been no age wherein these precepts have not obtained ; therefore take them for the natural and common right of all men . whence we may receive a glimps of light whereby to discern , both what they thought of the religion of the ancients before the law , and upon what condition it was lawful for strangers to reside in the land of israel , after the law. for , while the hebrews were sui juris , i e. lived under no laws but those of their own republick , within their territory no dwelling was permitted to any idolatrous gentile . but the stranger , who in the presence of three men , had taken upon himself the seven precepts of the sons of noah , and promised to observe them , was held to be proselytus domicilii ; and tho' he were neither circumcised , nor baptized , might nevertheless , as a sojourner , dwell among the hebrews . the third , that tho' in the mishna or collection of ancient traditions made by rabbi iehuda , surnamed hakadosh , the saint ( who lived under the three antonins , pius , marcus , and commodus , and finish'd his syntagme of the mishna in the year 120. from the destruction of the temple , but of the christian aera 190. ) there be no memory of these precepts : yet in the babylonian gemara or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] complement , compos'd by rab. ase , about 400 years after the former , they are not only mentioned , but with sacred respect commended to posterity ; so that even our prince of antiquaries mr. selden , thought it a task well worthy his diligence , and admirable learning , to explicate and comment upon them in his seven books de iure naturali & gentium ; tho' he had found the masters themselves embroil'd in a kind of civil war about the number of them , some accounting but six , others seven , others eight , and others again adding two or three more . as appears from the gemara it self , where ( ad titul . sanhedrin . c. 7. sect . 5. ) is found this list of the precepts . traditur à rabbinis , septem praecepta imperata esse noachidis ; de iudiciis , de maledictione numinis , de cultu extraneo , de revelatione turpitudinum , de sanguinis effusione , de rapina seu furto , de membro animalis viventis . r. chanina dixit etiam , de sanguine viventis : r. chidka etiam , de castratione ; r. simeon etiam , de magia ; r. eliezer etiam , de heterogeneorum animalium admissione , arborumque insitione . and from rabbi moses ben maimon ( vulgarly maimonides and rambam ) who saith , that the six former were delivered to adam ; that of abstaining from any member of a living creature , to noah ; that of circumcision , to father abraham ; in halak melakim , c. 9. but the major part of these learned commentators upon the mishna give their suffrages to no more than seven . of those therefore , supposing them to be genuine and universal , i choose to speak in this treatise : preferring these two that belong to religion or divine worship , to the rest which concern the mutual offices or duties of men. chap. iv. the first precept . of extraneous worship or idolatry . by extraneous worship , the ancient egyptians seem to have understood and detested only whatsoever [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] their parents had not taught them ; as may be collected from that prayer , or apology rather , used by them at funerals , translated from the egyptian tongue into the greek by euphantus , and from him transmitted to posterity by porphyrius in lib. de abstinentia 4. sect . 10. for in this apology , one of the overseers of the obsequies , personating the defunct , and speaking in his or her name , pronounces among many other these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : ego enim deos , quos mihi parentes commonstrarunt , piè colui quamdiu in hoc saeculo vixi . but the hebrews thereby understood , that the worship of any creature whatsoever , as well of angels , and bodies celestial or terrestrial , as of images or idols , was strictly prohibited . for , to acknowledge and worship one god , and him the true god , was to them , as it is now to us christians , the fundament of religion . this difference betwixt the egyptian and hebraick religïon , even tacitus treating of the iews ( hist. l. 5. ) clearly enough observes in these words ; corpora condere , quàm cremare , è more aegyptio ; eademque cura ; & de infernis persuasio . coelestium contrà : aegyptii pleraque animalia , effigiésque compositas venerantur ; judaei mente solâ , unumque numen intelligunt ; profanos , qui deûm imagines mortalibus materiis in species hominum effingant ; summum illud & aeternum , neque mutabile , neque interiturum . itaque nulla simulacra urbibus suis , nedum templis sunt . from the times of abraham , idolatry was held by the hebrews to be of all crimes the greatest , and to be fled from as the worst of plagues : but that which is interdicted in the decalogue and other laws , seems to have respect to the manifold idolatry of the egyptians . in the parts of lower egypt , the highest honour and veneration was given to a sort of buck-goats with long shaggy hair , call'd seirim : and the israelites placed there , were grown so mad with this mendesian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that they needed a special interdict to restrain them . which they receiv'd in this form ( lev. c. 17. v. 7. ) they shall no more offer their sacrifices [ pilosis ] unto devils , after whom they have gone a whoring . where not only our translators , but maimonides ( in more neboch . part 1. cap. 36. ) by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , understand devils appearing to their votaries in the shape of hee-goats with long hair . the same rabbi ( doct. perplex . lib. 3. cap. 46. pag. 480. ) saith moreover ; of the zabians there have been some , who worship'd daemons , and believ'd them to have the form of male-goats , and thence call'd them also seirim , i. e. goats . which foolish and ridiculous opinion was in moses's time diffused far and wide ; as appears from the above recited prohibition , non sacrificabunt ultrà sacrificia sua lasseirim , hircis , i. e. daemonibus ita appellatis : and was the true cause why the eating of such goats was piacular among the zabians , by which name he understands chiefly the mendesii , people of a province in lower egypt . to enumerate all the various kinds of idolatry used by the egyptians in the time of the israelites servitude under them , would require a large volume . for not contented to adore all the host of heaven , by an idolatry common to them with many other nations ; they were then grown so impiously devout , that they form'd to themselves deities of all sorts of animals , four-footed beasts , fowls , fishes , serpents , insects , not excepting plants , trees , and herbs . so that it was not without reason that moses , solicitous to extirpate the reliques of idolatry out of the hearts of the infected israelites , at once , and by one universal antidote ; gave them this command ( deut. c. 12. v. 2. & 3. ) you shall utterly destroy all the places wherein the nations which ye shall possess , served their gods , upon the high mountains , and upon hills , and under every green tree . and you shall overthrow their altars , and break their pillars , and burn their groves with fire , and hew down the graven images of their gods , and destroy the names of them out of that place . yea more , he made it unlawful for them either to enter into a league of what kind soever with any people serving idols intra solum israeliticum ; or to have conversation , or commerce with them . ( exod. cap. 34. ver . 15. and deut. cap. 7. ver . 2. ) before the law , iacob the patriarch erected [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , cippum , statum ] a pillar , ( gen. 35. 14. ) and moses , before the tabernacle was built , rais'd an altar , and twelve titles ( exod. 24. 4. ) but lest from these conspicuous examples occasion might be given to idolatry , the law forbid such things also . ( levit. 26. 1. ) but these laws , peculiar to the israelites , did not per se oblige a noachid or stranger ; to whom living without the hebrew territory , it was lawful to raise such pillars , altars , monuments , &c. at his pleasure ; provided he did it not in cultum extraneum : within the promis'd land , lest from such example encouragement might be taken for idolatry , it was no more permitted to the stranger , than to an israelite , either to set up a statue , or plant a grove , or make images , or do any other thing of that kind , no not meerly for ornament sake ; as mr. selden hath truly observ'd ( de iure naturali & gentium lib. 2. c. 6. ) the rabbins hold a humane image protuberant to be unlawful : but not that which is made in plano , flat , or in concavo , in a hollow . of caelestial bodies neither prominent , nor plane made for ornament , were lawful ; but made for teaching or learning , as in diagrams astronomical , and the like , they were permitted . other figures , as well an israelite , as a noachid might form as they pleas'd . of the same respect is that interdict ( deut. 7. 26. ) non inferes quidpiam ex idolo in domum tuam , thou shalt not bring ( as our translation renders it ) an abomination into thy house : which the iewish masters thus interpret . to have , use and enjoy an image made only for ornament , was lawful , the same being part of domestick furniture : but one made by a gentile for worship sake , was not to be admitted into promiscuous use with other utensils ; nor was it permitted , either to possess , or to sell victims , oblations , vessels , instruments consecrated to idolatrous uses . nor was any thing , whose use had been interdicted , to be retain'd ; but either burned , or broken in pieces , and thrown into the air , river or sea : nay the very ashes or coals thereof were an abomination . but an idol it self , if melted or broken in pieces and applied to common uses by a gentile , before it came into the possession of an israelite , might be kept , and among other utensils commodious to life used : because the liquation , comminution , and application thereof to common uses by the gentile , was a manifest resecration or solution of the religion of it : and the idol being once resecrate , all furniture and utensils belonging to it , are so too . but whatsoever has not been made by man , as a mountain , fountain , river , four-footed beast , and other terrestrial things , the works of nature , tho' worship'd as an idol ; the use and possession thereof was not prohibited . a grove or tree planted by a gentile for worship , or only to shadow , or adorn an idol was so abominable , that to an israelite , it was unlawful either to shelter himself from heat , cold , rain or wind under the boughs of it ; or to pass through it , if there were any other way ; or to eat the eggs or young of birds building their nest in the branches of it ; to bring home the wood for building , instruments of agriculture , or fewel , or to eat any bread or meat dress'd with fire made of the wood ; or to wear cloth woven with a shuttle of the wood ; or to make use of the ashes . and yet the use of herbs growing there , was not unlawful ; because the soil it self was unpoluted . now of all these things , whatever was unlawful to an israelite to do , or possess ; the same was equally unlawful to a proselyte of the house . and this is a summary of the most learned rabbins exposition of this first precept against extraneous worship or idolatry . chap. v. the second precept . of malediction of the most holy name , or blasphemy . so agreeable is this interdict to the law of nature or light of reason , that even the old egyptians themselves , tho' overspread with the leprosie of polytheism , acknowledged themselves under a most strict obligation punctually to observe it : as may be inferr'd from hence , that hermippus , in the life of pythagoras , whose doctrines were all deriv'd from egypt , among many other statutes of that sect concerning the soul's purification , &c. sets down this for one ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to abstain from all blasphemy . to the israelites god expresly gives the same . ( lev. 22. 32. ) keep my commandments and do them ; i am the lord ; ye shall not prophane my holy name , that i may be sanctified in the midst of the children of israel . now among the hebrews , a more diligent observation of the law is call'd sanctification of the divine name : and on the contrary , to perpetrate any thing against the law , is call'd prophanation of it ; as mr. selden hath out of the princes of their rabbins judiciously remark'd , de iure natur. & gent. lib. 2. cap. 10. the more notable interdicts of idolatry , homicide , unlawful coition , were not to be violated , tho' to avoid the danger of imminent death : for of a less danger no account is made . in time of publick persecution , life was not to be redeem'd by violation of any law. at another time , it was sufficient to violation of the law , to obey the person impellent by menaces of death , rather than to be kill'd ; at least if the act turn'd to the emolument of the impellent : as where work was to be done for him upon the sabbath , or if ten or more hebrews were not present . to a sick man it was lawful to eat things prohibited , to deliver himself from death . farther , a sin against more establish'd customs or manners and humane society , tho' not against the law , is a prophanation of the holy name . nor is such prophanation in any case observ'd to have been fully remitted to any man before the very moment of death ; according to that of isai. cap. 22. ver . 14. this iniquity shall not be purged from you till ye die . this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , pollution or prophanation of the divine name , seems to be call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the apostle , ( rom. 2. 24. ) but is not that which is interdicted to the noachid here in this second precept ; and naaman the syrian cleans'd from the leprosie ( 2. of kings c. 5. v. 18. ) is brought for an example . the difference is clearly shewn by mr. selden ( de iur. nat. & gent. lib. 2. cap. 11. ) whose words therefore i here faithfully translate . the blasphemy or malediction by this precept forbidden , is that most horrible wickedness [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . ] execration of the divine name , when any reproach and audacious contumely is openly and maliciously thrown forth against god ; such as was cast forth by those most impious miscreants , the son of shelomith ( levit. 24. ) and rabshakeh's ( kings 2. ch . 18. v. 30. ) also when the divine majesty is understood to be knowingly and proudly denied , from the consequence of any act or profession : as when any man , not from ignorance , but out of malapertness and pride , professeth and endeavors to perswade others , that idolatry is to be imbraced ; this man , tho' he hath himself worship'd no idol , denies god by consequence , and is to be held a blasphemer . and against this most execrable impiety is turned the edge of that sacred law ( numb . 15. 30. ) but the soul that doth ought presumptuously , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] with an high hand , whether he be born in the land , or a stranger [ ex proselytis , tam domicilii quam justiciae ] the same reproacheth the lord ; and that soul shall be cut off from among his people . upon which law maimonides commenting ( more neboch . pa. 3. c. 41. ) saith ; no man so sinneth , but he into whose soul another opinion , that is repugnant to the law , hath crept . the scripture there speaks also de cultu extraneo , because that is opposite to the very foundation of the law. so that a balsphemer is equal to an idolater , both denying the fundamental principle of all religion . other sins committed from error , or ignorance , or force of concupiscence or pravity of manners , were to be expiated by certain sacrifices , or corrected by other sorts of punishments : idolatry and blasphemy always to be punished by excision or cutting off , to be inflicted by divine vengeance ; but blasphemy also by stoning , ( levit. 24. 16. ) and these explications of the hebrew doctors seem to me sufficient to evince the equal obligation of these two precepts concerning divine worship , and common to the noachides with the israelites . i proceed therefore to the rest , which concern the mutual offices of men. chap. vi. the third precept . of spilling blood or homicide . that this precept also was contain'd in the moral discipline of the ol● egyptians , is evident from the precedent apology of the overseer of the obsequie● in sacred use among them , in which he● in the name of the defuntct , makes thi● profession , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ▪ of other men i have kill'd none . and to 〈◊〉 noachid belongs that of gen. 9. 5. i wi●● require your blood of your lives . which is to be understood of incruent or bloodless homicide also of what kind soever . some interpret it of suicide or self-murder . whoso sheddeth mans blood , by man shall his blood be shed : not by judgment pronounced in court , but by natural right of talion , or like for like . and this interdict is renewed in the decalogue , thou shalt do no murder ; and elsewhere more than once in the mosaic body of the law. philo the jew ( de leg. special . praecept . 6. & 7. ) saith , the exposing of infants is among many nations , by reason of their native inhumanity , a vulgar impeity . to the hebrews it was expresly forbidden , either to extingusih a foetus in the womb , or to expose children . and tacitus could say , ( hist. lib. 5. ) augendae multitudini consulitur . nam & necare quenquam ex gnatis nefas . egyptians also , if we believe the records of diodorus the sicilian , the best of antiquaries , ( lib. 1. p. 51. ) were obliged to nourish all their infants , for increase of mankind , which highly conduceth to the felicity of their countrey . voluntary or wilful murder was , ex fo●ensi sententiâ , to be punish'd by the sword : but philo iudaeus ( de leg. special . p. 617. ) saith , the murderer was to be suspended or hanged upon a gibbet . he that killeth any man , saith moses ( levit. 24. 21. ) shall be put to death . ye shall have one manner of law , as well for the stranger ( or proselyte , of iustice , not of the house ) as for one born in your own country . for so the masters understand this text : and as for the punishment of this sort of homicide ; they have some differences betwixt the gentiles living within the territories of the israelites , and the natives and proselytes ritely circumcised . again moses saith ( numb . 35. 21. ) the revenger of blood shall slay the murderer , when he meeteth him [ without any place of refuge . ] now the right of the revenger of blood , in the territories of the israelites , belonged no less to the gentiles and proselytes of the house , than to the hebrews themselves , but whether it obtained among the noachides before the law , or among the egyptians , is uncertain : but that name seems to derive it self , not so much from the mosaic constitution , as from a custom more ancient . however , most certain it is , that the revenger of blood was the next heir of the slain . homicide by chance , or error , had right of sanctuary . of which right , or cities of refuge , the sacred law hath ordain'd many things ( numb . 35. ) and the masters deliver many necessary to the interpretation of the law. to a gentile , the priviledge of sanctuary did not appertain ; he was obnoxious to the revenger of blood : nor to a proselyte of the house , in the casual slaughter of one circumcised ; but he enjoy'd the right of asyle , when he had by chance slain another of his own kind or quality ; as mr , selden hath curiously collected ( de iur. nat. & gent. l. 4. ● . 2. ) who in the next chapter proceeds to the interpretation of divers other niceties concerning this precept , from the commentraries of the iewish masters of greatest estimation and authority . thou shalt not stand against the blood of thy neighbour , saith moses ( levit. 19. 16. ) that is , thou shalt not stand idle , when danger of death is imminent over one of thy own kind , stock or nation ; but shalt help to deliver him . the force of an aggressor with purpose to kill , also of a buggerer , of an adulterer , of an intestuous person , was to be hinder'd , tho' with loss of life , that they might not commit sin . and such wicked force was also ●o be punish'd by private force ; if it could ●e done , by blows ( not mortal ) or by ●utting off a member ; if not , rather than fail , even by killing . if an israelite shall have delivered an israelite , or his goods , into the power of a gentile , whether by fraud or by force : it was lawful either to slay him , or to give him up into the power of a gentile , that he might not betray or deliver up others in like manner . to kill an israelite a prevaricator ( i. e. a worshipper of idols , or a sinner in contempt of the divine majesty ) as also an epicurean ( i. e. an apostate denying the holy law and the prophesies ) it was lawful to any other israelite to kill him , either in publick with the sword , or by stratagem . for by his prevarication and apostacy , he is depriv'd of the title and priviledge of a neighbour , i. e. he hath ceased to be an israelite . by fraud to circumvent a gentile an idolater , to his destruction , was not lawful : and yet notwithstanding the law doth not command to deliver him from imminent death , seeing he is not a neighbour . other kinds of homicide there were , permitted to private men . a thief in the night breaking into a house inhabited , might be impunely slain . which is also in the platonick laws , and in those of the twelve tables . in child-birth , it was lawful , for the mothers preservation , to extinguish the foetus in her womb : but not vice versâ . for worshipping the calf , three thousand were slain , not twenty-three thousand as the vulgar . from the notorious example of phinehas the son of eleazar ( numb . 25. 11. ) was deriv'd ius zelotarum , the right of zelots , by which it was lawful for private men led by pious zeal , whensoever an israelite , openly and before at least ten israelites , violated the sanctity of the divine majesty , temple , or nation , to punish the wickedness in the same moment by beating , wounding , and even by slaying the offender persevering in his sin . by this receiv'd right of zelots , mattathias ( macchab. lib. 1. cap. 2. v. 24. ) kill'd a iew going to sacrifice after the grecian rite : and our lord iesus christ himself , as a private person , by whipping drove out money-changers and buyers and sellers violating the sanctity of the temple , without reprehension ; because they had prophanely made the house of prayer a den of thieves : and his disciples refer'd this fact of their lord to zeal of thy house . under pretext of the same right , the iews in their assembly ran upon our lord himself as guilty of blasphemy , and smote him on the face with their hands : and a servant of the high priest struck him presently , because he seem'd , by an irreverent answer , to have violated the sanctity of the high priest. in fine , under the same pretext , st. stephen was stoned to death , and a conspiracy undertaken against st. paul ; and at length in the iewish war sprang up from the same root a power of horrid villanies and dire mischiefs . from this universal interdict of homicide , what we read of abraham's readiness to immolate his son isaac , seems very much to derogate : and some there are , who think it to have been lawful to the hebrews , from the sacred law de anathemate , of a thing vowed or devoted , by voluntary consecration , to devote to death their sons and servants whom they had in their power ; and they affirm , that iephtha offer'd up his devoted daughter in sacrifice . yea iosephus ( antiq. l. 5. c. 9. ) professeth himself to be of this opinion : but hath been clearly convicted of error therein by his rival in the search of the iewish antiquities , our incomparable selden ; who ( de iur. nat. & gent. lib. 4. cap. 11. ) from rabbi kimchi's commentaries , and the very words of the sacred text , concludes most rationally , that iephtha , in accomplishment of his vow , built a house for his daughter in a solitary place , and brought her into it ; where she remain'd during life secluded from the sons of men , and from all secular affairs ; and it was a statute in israel , that the daughters of israel should yearly visit her , to condole her perpetual virginity . the father indeed is said to have deplored the cruelty of his vow , and rent his garments for sorrow : but not because he thought himself thereby bound to immolate her , but because he had cut off all hope of issue from her . so that she seems to have been rather the first nun in the world , not an example of a right granted , by the law de anathemate , to the iews of consecrating or devoting their children to death . for humane slaughter was by no right of the hebrews permitted , unless in case of legitimate punishment , and of just war : and then too the very act of killing was in it self reputed so hateful and impure , that it required solemn lustration of the actor , by virtue of this command ( numb . 31. 19. ) whoever hath kill'd any man [ malefactor justly condemned , or enemy in war ] and whoever hath touch'd a dead body , let him be purified , as well ye as your captives . chap. vii . the fourth precept . of uncovering nakedness , or vnlawful copulation . of matrimony both the original , and the necessity are derived from the very creation . male and female created he them ; and god blessed them , and said to them , be fruitful , and multiply , and replenish the earth . which was repeated to the sons of noah soon after the deluge . from natural right , was interdicted coition with mother , with step-mother , with anothers wife , with a sister of the same venter , with a male , with a beast saith mr. selden ( de iure nat. & gent. lib. 5. cap. 1. ) to the children of adam indeed it was of absolute necessity not to observe the fourth branch of this natural interdict , because the males had no other females , with whom to conjoin themselves , besides their uterine sisters : but all the rest have at all times been unlawful . nevertheless , after mankind had been sufficiently multiplied , even till the law was given , the germane sister , i. e. of the paternal blood only , was not interdicted to the brother . abraham saith of sarah , in truth she is my sister . for she is daughter of my father , tho' not of my mother ; and she became my wife . and thence they collect , ( that i may repeat the words of clement of alexandria , stromat . 2. ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; that uterine sisters ought not to be taken for wives . also solon the athenian permitted the marriage of sisters begotten by the same father , not those born of the same mother ; as philo iudaeus ( de spec. leg . p. 602. ) delivers . and he had reason , more perhaps than he or any man else then understood . for if the curious observations of dr. harvey , de graaf , swammerdam , and other anatomists of this our age be true ( as doubtless they are ) the father contributes much less to the generation of the foetus , than the mother doth . he gives only fecundity to the egg , in and of which pre-existent in her ovary the foetus is formed : she gives the seminal matter , the augmenting nourishment , the cherishing warmth , and the secure closet in which it is conserved and brought to perfection . and therefore the consanguinity betwixt brothers and sisters of the same womb seems to be naturally greater than betwixt those born of divers mothers , but of the same father : and by consequence , the interdict of marriage to those , is founded upon more of natural right . but this reason being occult to solon , i am inclin'd to think , that in making this law against marriage of brother and sister uterine , either he follow'd the example of the hebrews , or had respect to this proverbial saying , the mother's is still the surest side . to which the lacedemonian lawgiver seems to have given no belief at all . for he on the contrary ( as philo the most learned iew hath recorded in the place just now cited ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , permitted marriage to vternine brother and sister , not to those of the same father : persuaded perhaps , that the seminal principle deriv'd from the father is more energetick , than that proceeding from the mother , in the work of forming organizing , augmenting , and perfecting the faetus . but among the egyptians , by a constitution or custom different from all these here mention'd , it was free to the brother to marry the sister either of the whole or the half blood , elder or younger , or equal ; for sometimes brother and sister are born twins . and this licence in process of time descended also to the grecians . for the example drawn form isis , obtain'd among the macedonians . arsinöe had ptolomeus ( thence named ) philadelphus , both brother and husband . yea , to honest this incestuous use by yet more illustrious examples , they say , the gods themselves affected such marriages , as most divine ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sic & deorum sacra connubia confecta sunt , saith theocritus ( idyll . 18. v. 130. ) and ovid ( metam . l. 9. v. 498. ) — dii nempe suas habuere sorores ; vt saturnus opim junctam sibi sanguine duxit ; oceanus tethyn , iunonem rector olympi . so that even from hence we may understand , that the deities of the west were traduced from egypt . hence also we understand , why philadelphus and arsinöe , by a kind of second marriage [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of deification , obtain the title 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of brother and sister gods , in coins and marbles . among the persians , from the late example of cambyses , the like marriages were introduced ; as herodian ( l. 3. c. 31. ) hath transmitted to posterity . antiochus soter languishing with love of stratonice his step-mother , obtain'd her , even by his fathers consent , for his wife ; by an example sufficiently rare : as lucian ( de dea syria ) observes . but this matrimony was not unlawful by the right of the east , rather than by that of greece . in a word all kind of incest , adultery , yea [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] sodomy it self were by some of the ancients , and those too renowned for wisedom , accounted among things indifferent . concerning which sextus empiricus ( l. 3. c. 24. ) deserves above all others to be consulted . as for the hebrew constitutions concerning matrimony , the various degrees of consanguinity , in which it was interdicted to the israelites to marry , are either expresly set down by the writer of the books of moses in the eighteenth chapter of levit. or may be from thence by easie and familiar reasoning inferr'd ; as the prohibition of wedlock with the own daughter may be by an argument à majori ad minus , inferr'd from the interdict of contracting matrimony with the wifes niece , &c. the custom of marrying the wife of the brother deceas'd without issue , seems to be of remotest antiquity . for iuda the patriarch said to his son onan ( who died before the entrance of the israelites into egypt ) go in unto thy brothers wife , and [ jure leviri ] marry her , and raise up seed to thy brother ( gen. 38. 8. ) and this right moses long after by a singular law confirm'd ( deut. 25. 5. ) which our immortal selden occasionally considering ( vxor. ebr. l. 1. c. 13. ) observes , that some of the masters hotly contend , that the cause and mystery of this marriage of the surviving brother with the relict of the brother defunct , is to be fetch'd from the opinion of a metempsychosis or transmigration of the soul : which tho' commonly fathered upon pythagoras , was of much higher antiquity , and born in egypt . where also this jus leviri obtain'd , from their antique laws deriv'd down to the times of the emperor zeno. who ( in iustiniani cod. l. 5. tit . 6. leg . 8. ) saith ; the egyptians therefore by matrimony conjoyned to themselves the widows of their brethren , because they were said to remain virgins after the former husband's death ; for they thought , that when the man and wife had not conjoin'd bodies , the marriage seem'd not contracted , according to the mind of some law-makers . from the reason then , which the egyptians render of this law , it appears plainly , that among them the nuptial contract was not perfect without carnal knowledge . nor was it indeed otherwise among the hebrews before the law : but after , from the civil right of that nation , consent alone sufficed to contracting matrimony . before the law , women unmarried among the hebrews might freely permit the use of their bodies to whom they pleas'd : and of the egyptians sextus empiricus ( pyrrhon . l. 3. c. 24. p. 152. ) saith , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; the same was esteem'd honourable by many of the egyptians . this the law expresly prohibits ( deut. 23. 17. ) there shall be no whore of the daughters of israel . before the law , the matrimonial pact remain'd firm and stable , so long as both parties continued in consent : but was , either party renouncing , dissolved . among the athenians , the man had jus ejiciendi vxorem , and the woman jus relinquendi maritum ; as pollux ( l. 3. c. 3. sect . 5. ) records . the law of moses introduced the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] bill of divorce , that the matter might be brought before the judges the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] wifes dereliction or leaving of the husband , was long after induced by salome , sister of herod the great , in favour of her sex ; as iosephus ( antiq. lib. 15. cap. 11. ) before the law , lamech , abraham , iacob , esau , enjoy'd the pleasure of variety in many wives : which was permitted also by the law. elkanah had two , david more , solomon seven hundred princesses , besides three hundred concubines , tho' it were forbidden to the king to multiply wives , beyond the number ( say the masters ) of eighteen . iust so many wives rehoboam had ( 2 chron. c. 11. v. 21. ) and iosephus ( antiq. l. 8. c. 3. ) calls them legitimate wives . of this license of polygamy among the hebrews , maimonides ( in halach ishoth c. 14. ) hath this memoir . it is lawful to marry many wives , even a hundred , either all at one time , or one after another ; nor hath the wife married before , any power of hind'ring the husband herein : provided he be of estate sufficient to maintain them all in food and raiment , according to their degree and quality ; and of strength of body sufficient to pay to each one her conjugal debt , i. e. once in a week at least to each , nor to run upon the score above a month with any one . concerning the oeconomy of these ancient polygamists , and how they preserved peace and quiet in their families , or seraglio's rather ; epiphanius ( haeres . 80. ) hath this brief remark ; tametsi quidam è patribus duas & tres vxores habuerunt , non tamen in una domo vxores fuerunt . they kept them in several houses , or several apartments at least , to prevent jealousy . by the law of moses , the high-priest was obliged to take a wife in her virginity , ( levit 21. 13. ) and because a wife , in the singular number , the masters , thence conclude , that he ought to have but one . besides that singular law ( deut. 21. 10. ) by which liberty was indulged to an hebrew souldier of lying once before marriage with a captive gentile ; the hebrews had no right at all given them , either of coition , or matrimony with strangers , not yet admitted into iudaism : nor was the same right granted to all proselytes of marriage with hebrews . after circumcision was instituted among the hebrews , before their entrance into egypt , the sons of iacob say to sichem ( gen. 34. 14. ) we cannot do this thing , to give our sister to one that is vncircumcised : for that were a reproach to us . of the gentiles , moses saith , thou shalt not contract assinity with them : thy daughter thou shalt not give to his son , nor shalt thou take his daughter unto thy son ( deut. 7. 3. ) which law extends , not only to the seven nations there named , but also to all uncircumcised nations whatsoever . of the circumcised , the law inroll'd ( deut 23. 7. ) decrees far otherwise . now the egyptians were circumcised , so were the idumeans by esau ( call'd also edom ) and the ishmaelites by their father ishmael , whom abraham himself circumcised . with the nephews and nieces therefore of proselytes of egyptians or idumeans , it was permitted to the israelites to marry : and solomon's nuptial contract with an egyptian proselyte , daughter of king pharaoh , was legitimate . by the mosaic law ( deut. 23. 1. & 2. ) neither eunuch , nor bastard might enter into the congregation of the lord. the marriages of such therefore were interdicted , even to the tenth generation . of eunuchs , because they were unfit for generation : of bastards , because of the infamy of their birth , the ignominy of the parents sin descending to their posterity . nevertheless the manzers or bastards were not prohibited to contract matrimony with either proselytes of justice , or libertines . if a maid-servant , being a proselyte , were join'd to a manzer , the son born of her of servile condition , was , by manumission , accounted a libertine : and by such emendation of his birth , both he and his posterity put off the ignominious name of bastard , and enjoy'd equal right with proselytes . an ingenuous ( i. e. a free-born ) gentile admitted into iudaism , was call'd a proselyte of iustice ; a servant , in the very act of his admission made free , was call'd a libertine : the same civil regeneration , and blotting out of former cognation ; the same participation of the iudaic right and name ; the same retention of peregrinity in their posterity , were common to both . also to both proselytes and libertines , marriages with either forreigners , or servants , were no less unlawful , than to natives ; among themselves , of whatsoever nation , they might freely inter-marry : nor did the diversly interdicted marriages with the aforesaid nations belong to them , but to the originaries only . when a gentile was made a proselyte ; or a servant , a libertine ; all his former consanguinity ceased , and was ipso facto utterly extinguished : so that his marriage with his sister or mother was not incestuous . among the sons of a female proselyte was no fraternity , unless both were as well conceiv'd as born in sanctity , i. e. after her conversion and admission into judaism . thamar ( the masters say ) was david's daughter conceiv'd of maacha , a captive and yet a gentile ; and amnon was his son by his wife ahinoam : thamar then was germane sister to amnon in respect of blood , but not by right of regeneration . she therefore saith to amnon ravishing her , nay my brother , do not force me ; for no such thing ought to be done in israel . — but speak rather to the king for he will not withhold me from thee . and she spake with understanding . for the consanguinity that was betwixt her and amnon , being by her mother's proselytism taken away , the marriage was lawful . a handmaid receiv'd into iudaism , her servitude retain'd , was not ritely capable of matrimonial right ; as mr. selden ( de iur. nat , & gent. l. 5. c. 17. ) and iosephus ( antiq. l. 4. c. 8. ) but to one manumitted , i. e. made free , as having obtain'd entire freedom , marriage was permitted . with a handmaid partly a libertine , the whole price of her liberty not yet paid , espousals were neither void , nor of full force . ( levit. 19. 20. ) whosoever lieth carnally with a woman that is a bondmaid betrothed to an husband , and not at all redeemed , nor freedom given her ; she shall be scourged : they shall not be put to death , because she was not free. death therefore , the vltimum supplicium , was not to be inflicted upon her , as in the case of adultery , because matrimony with a maid not perfectly redeemed , or made free , was not absolute . a proselyte man-servant , his servitude retain'd , was not participant of civil right ( extra sacra : ) nor was there among such , either any respect of cognation , or any legitimation of espousals . the maid-servant join'd by the master to the man-servant , ut in fructu prolem haberet ; was not his wife , but his contubernali● , chamber or bed-fellow : and this contubernium or bed-fellowship was dissolved by the same master at his pleasure ; nor was there , as to this matter , any thing of difference betwixt such servants , and beasts inured to labour in carriage or tillage . but the more humane and mild doctrine of christianity at length remitted this extream rigor of the iewish law , and introduced the right de servorum conjugio , by canon law , or right pontifical . by which also marriage is interdicted even to the seventh degree of consanguinity ( caus. 25. q. 2. & 3. ) according to the names of cognations , in the cesarean law , to which inheritances and guardianships are ascribed . but in the council of lateran , anno dom. 1215. it was decreed ( cap. 50. ) that prohibition of matrimony exceed not the fourth degree of consanguinity and affinity . and in england ( by statute 32. of hen. 8. c. 38. ) the levitical constitutions concerning degrees of kindred to be excluded from contract matrimonial , are restored . chap. viii . the fifth precept . concerning theft and rapine . if by this precept , not only the taking away , whether privily or by open force , from another any thing that is rightfully his , but also the interring upon another any loss or detriment whatever , contrary to right and the common faith of mankind , be ( as certainly it is ) interdicted : then am i well assured , that the egyptians of old were under an obligation to observe it . for , reflecting upon the apology made by the overseer of the solemn funeral rites used among them , in the name of the defunct , more than once above-mention'd ; i therein find these words ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , neque eos deposito defraudavi , nor have i defrauded them of any thing committed to my trust . and that theft , which properly is clandestine stealing , was among them unlawful , is sufficiently manifest , even from the memorable example of the thief in herodotus ( lib. 2. c. 22. ) who plundering king rhampsmites's treasury , and being at length catch'd in a snare or trap by the neck , chose rather to have his head cut off , than to be detected . as for robbery indeed , they had a singular law , yet extant in the most faithful monuments of diodorus siculus ( lib. 1. p. 50. ) which was this : he gave command , that they who would addict themselves to robbery , should profess their names [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] before the prince of thieves , and solemnly promise to bring to him so soon as they could , whatever they had stolen ; and that the persons robbed should likewise send to him in a written bill or ticket a particular account of the things they had lost , with mention also of the place where , and of the day and hour when they were taken from them . by which means the goods being easily found , the loser recovered what was his own , paying the fourth part of the real value thereof . for since it seems impossible , that all men should abstain from stealing , the maker of this law found out a way , by which the whole thing stolen might be redeem'd for a small part of the price of it . by virtue of this natural interdict , as the talmudists ( gem. bab. tit . sanhed . c. 7. ) affirm ; every one of the sons of noah was obnoxious to punishment , if he had stolen any thing from gentile or israelite , either clancularly or openly , goods or persons ; or detained wages from an hireling , or done ought of that kind . in the mosaic law , theft is simply forbidden more than once ; in the decalogue , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not steal : as of goods , so of men , as well servants , as free. ( exod. 21. 16. ) he that stealeth a man , and selleth him , or if he be found in his hand , he shall surely be put to death . which was interdicted also by the roman law ( f. f. de furtis 37. 60. ) the defraudation of wages is particularly prohibited . ( deut. 24. 14. ) other thefts there are of that kind , which are call'd not manifest : such as the deceitful removing the boundaries or marks of fields . ( deut. 27. 17. ) let him be accursed , that removeth his neighbours land-mark , namely the bounds which your fathers have put in thy inheritance . which is understood of the limits or boundaries set in the first distribution of the holy land : as also of the limits of the nations confining thereupon , without just cause of war. whence that of iosephus ( antiq. l. 4. c. 8. p. 123. ) terminos terrae movere non liceat , neque propriae , neque alienae quibuscum nobis pax est . sed cavendum nè auferatur , quod velut dei calculus in aeternum figitur . among the egyptians , fraudulent practices were severely punish'd , whether they were of publick or private wrong . witness diodorus siculus ( l. 1. p. 50. ) the law commanded , saith he , that both the hands should be cut off [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of those that adulterated mony , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] substituted new weights , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] counterfeited seals , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] scribes that wrote forg'd tables or instruments , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] took away any thing from written records or deeds , or obtruded false bonds . to the end that every offender might suffer punishment in that part of his body , with which he had offended against the law , and by an irreparable loss deter others from committing the like crime . to the hebrews it was forbidden , not only to use false weights and measures , but even to use any fraud of words in contracts , or to lie to anothers wrong . ( lev. 19. 11. ) ye shall not steal , neither deal falsly , neither lie one to another . upon which text the masters commenting , pronounce , that tho' an israelite accounted not a gentile for his neighbour , yet by the natural interdict of theft , gentiles were not to be any ways defrauded in negotiations . nefas est , say they , quenquam decipere in emptione & venditione , aut in consensum arte pellicere : quod pariter obtinet in gentilibus atque in israelitis . nevertheless , in the violation of this interdict , the babylonic gemara ( tit . sanhed . ) makes the right of foreiners different from that of natives . if a labourer working in a vine-yard or olive-yard , eat of the fruit thereof , at any other time than that wherein he laboured there , he was guilty of theft , tho' he were a noachid : but with an israelite the case was otherwise , he might eat at any time . and this difference arises from the mosaic right ( deut. 23. 24. ) when thou comest into thy neighbour's vine-yard , thou mayest eat grapes thy fill , at thine own pleasure , but thou shalt not put any into thy vessel . and so of the standing corn. by which law there was given to the israelites , not a licence of stealing , but iuris modus , a measure or rule how far the right extended . another example of this difference may be from the value of the thing taken away by stealth , which is not taxed by moses . by the institute of their ancestors , an hebrew was not lyable to an action of theft , if he filched from another , what was in value less than a prota ( which is the smallest piece of mony , the eighth part of an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , weighing half a grain of pure silver ; ) but a noachid was guilty of theft , if he took away by stealth any thing of less value than a prota ; and for so small a trifle was to be punish'd with the sword ; from this natural interdict , not from the civil law of the hebrews , which in such cases required neither attonement of the divine majesty , nor compensation of the neighbour . but capital punishment was , in the dominion of the hebrews , inflicted upon gentiles for almost every light offence . satisfaction for damage sustain'd , was always to be made , either by restitution of the very thing that had been taken away , or by payment of the price thereof and a fifth part more , to the heirs of the person that sustain'd the damage , if he himself were dead ; if he had no heir , to the lord , and in his right to the priest. ( numb . 27. 8. ) an israelite could not want an heir ; and therefore this law is to be understood to concern only the proselyte , who had no kindred , nor heir , unless one born after his regeneration ; nor had the occupant any right to the goods that had been by stealth taken from a proselyte deceas'd without heir . restitution of things lost ( saith mr. selden , de iur. nat. & gent. l. 6. c. 4. ) depended , not upon this natural interdict of theft , but upon that mosaic law in deut. 22. 2. to an israelite it was lawful to retain a thing that a gentile had by chance lost ; as left , and not yet occupied : but on the contre-part , 't was not lawful to a gentile to retain what he had found of an israelites . to deceive a gentile in reckoning , was unlawful : but if a gentile in casting up accounts , through error pretermitted any thing , the israelite had the same right to make his advantage of the mistake , that he had to retain what he had found of the others , and so might refuse afterward to pay it ; as maimonides ( galiz . waib . c. 11. ) also any thing lost by an israelite , if he despair'd to find it , became the finders own , as if it had been left of purpose : or if he could not so describe the signs or marks of the thing lost , as that it might be thence known , that it ought to be restored ; 't was then to be presum'd , that the owner had despair'd to find it . ( ibid. c. 14. ) in mutual commerce to impose upon another by an unequal price , was unlawful by that mosaic law in levit. 25. 14. which is understood ( saith mr. selden l. 6. c. 5. ) of goods moveable , as the law of redemption is of lands and houses . nor doth the same belong to a gentile : but if a gentile had brought damage to an israelite by an unequal price , he was by judgment of court to refund . from the receiv'd interpretation of the law , if the price were by a sixth part less than the true valor of the thing , nothing was to be refunded : if greater by a sixth part , the buyer might require his mony to be restored , the seller his ware. the punishment of theft was capital , from ius noachidarum , not from that of the hebrews , which required ( exod. 22. 1. ) five-fold , four-fold , or double restitution to be made . if the person convict were not able to give the satisfaction required , he was by sentence pronounced in court , adjudged to servitude of the actor or plaintiff , until his service should equal the price of the theft : but the restitution double , quadruple , or quintuple , was to be expected from his more prosperous fortune after his servitude . nor was a woman sold for her theft . neither was a man convict of theft adjudged in servitude to a proselyte , whether of iustice or of the house , much less to a gentile , but only to an hebrew ; who was obliged to give food , raiment , and a house , not only to him , but to his wife and children too : who notwithstanding were not the masters servants , but when the husbands and fathers servitude was ended , went away with him . and all this by virtue of that law in exod. 21. 3. to an hebrew servant adjudged by sentence of court , who had by a lawful wife fulfill'd the command of multiplication , it was permitted to have carnal conversation with a maid-servant that was a canaanite , that the master might be enriched by the children born of her : provided he were not kept apart from his legitimate wife and children , and that but one maid-servant were conjoin'd to one man-servant , not to two or more . other causes of servitude there were also among the hebrews . if thy brother compell'd by poverty , shall sell himself to thee , &c. ( levit. 25. 39. ) if any shall have sold his daughter for a servant , &c. ( exod. 21. 7. ) these addictions or sales were not permitted but in case of extream poverty , when the seller had nothing left , not so much as a garment , and that his life was to be sustain'd by the price agreed on . this selling of a daughter is understood only of a minor ; nor without hope of her marriage to the emptor , or to his son : without espousals , she obtain'd her liberty gratis , when first the signs of puberty appear'd upon her . also an hebrew was made a servant privately ; that by his addiction or sale he might not lose his dignity together with his liberty . now from this permission of an israelite reduced to extream want , to sell himself or his child for sustenance , lest he should die of hunger , it is sufficiently manifest , that from the very law of nature obtaining among the hebrews , it was not lawful to steal for even the greatest necessity . to exercise vsury was more than once forbidden by the hebrew law : and the lender upon vsury was compell'd , by sentence of court , to restore to the debtor ; what he had receiv'd for the loan of mony , as a thing taken away by stealth , ( deut. 23. 20. ) to a stranger thou maist lend upon vsury ; to thy brother thou shalt not lend upon vsury . to steal the goods of a gentile , was no less unlawful , than to steal from an israelite : but to take usury of a gentile was permitted ; of which the contract arises from the consent as well of the receiver , as of the giver . for neither from natural right was it unlawful to lend upon usury . by the statutes of their fore-fathers ( as mr. selden de iure nat. & gent. lib. 6. c. 11. delivers ) an hebrew was guilty of theft , who made any gain to himself by playing at dice , cockal , tables , or committing wild or tame beasts , or fowls to fight together , to make sport for the spectators . for they judged no gain to be honest , that arose from a contract depending upon fortune . but it was not theft , if a iew contending with a gentile won the prize or wager : tho' that also , as a thing inutile or unprofitable to humane society were prohibited . by the same ancient right , he also was a thief , who so bred up and taught doves or other birds , or beasts wild or tame , as that they should fly or go abroad , and alluring or decoying others of the same kind , bring them home , to the gain of their owner : nor was it lawful to go a fowling after pigeons in a place inhabited , or within four miles thereof : because pigeons were reckoned among the goods of other men , and were nourished by the owners , either for sacrifices , or for food . nor was it lawful for any man to build a dove-house in his field , unless he had ground of his own lying round about it , of fifty cubits extent every way . chap. ix . the sixth precept . of judgments , or administration of iustice in courts of iudicature ; and of civil obedience . from this natural precept , the masters ( saith maimonides , hal. melak . c. 9. ) acknowledge that the rulers ought to constitute judges and prefects in every city and town , both to judge all causes pertaining to the six precepts of the sons of noah , and to admonish the people of their observation of them . and so indeed the mosaic law also at length commanded ( deut. 16. 18. ) iudges and officers shalt thou make thee in all thy gates , &c. in many other places also , juridical prefectures are commanded to be constituted , according as the civil societies of men require . many and memorable things indeed hath that most excellent interpreter of eastern antiquities , mr. selden , written of the councils or assemblies of the ancient hebrews , in that interval of time that preceded the giving of the holy law on mount sinai : but to me ( i confess ) it doth not from thence appear , that any one of the patriarchs , before moses , exercised jurisdiction in foro , in court ; much less constituted juridical prefectures in cities and towns. the family of the hebrews , descending from sem to abraham , lived in mesopotamia : nor is it constant from the scripture , whether it were at that time sui iuris , or under the laws of the neighbour nations . the grand-children of abraham were toss'd to and fro in continual peregrination , until at length they sate down in egypt ; where they were so far from living by laws and customs of their own , that they groan'd long under a most cruel servitude . common-wealth of hebrews there was none . tribunal or court of judicature they had none , till after their deliverance from the egyptian bondage . then , and not till then it was , that the people of god being greatly multiplied , and divided into twelve tribes , the precept concerning judgments was given in mara ; exod. 18. 25. among the traditions of the masters we find mention'd often , the house of iudgment of methusalem ; also of sem , and eber : which yet are not to be taken for juridical prefectures , but for schools . witness maimonides ( more neboch . part . 2. c. 39. ) who saith ; the wise men speak of the prophets that were before moses , the house of judgment of eber , the house of judgment of methusalem , that is , the school of methusalem . all [ those ] were prophets , and taught men after the manner of preachers , or doctors . nor is it otherwise said of abraham , ( gen. 18. 19. ) i know him , that he will command his children and houshold after him , and they shall keep the way of the lord , to do iustice and iudgment , &c. for this was a thing oeconomical , not political . soon after the deluge , god proclaimed this edict ; ( gen. 9. 6. ) he that sheddeth mans blood , by man shall his blood be shed : not by judgment of any court of those times , but by natural right of talion . cum lex haec lata est ( saith the incomparable hugo grotius , in locum ) nondum constituta erant iudicia : aucto humano genere , & in gentes distributo , meritò solis judicibus permissum fuit jus illud primaevum . from these places of genesis therefore truly interpreted , no pretext can be drawn to excuse their error , who dream of i know not what publick tribunals or courts of judicature constituted before moses . neither can any be drawn from either of these two examples following . simeon and levi , in revenge of the rape committed upon their sister dinah , by sichem the hivite , slew him and his father and all the males of the city . but this was done by war , not from any sentence of a judicial court ; nor is this revenge of a private injury to be brought for an example here , where the question is concerning publick iudgments . it was told iudah , thamar thy daughter in law hath played the harlot , and is with child [ per fornicationes ] by whoredome . and judah said , bring her forth , that she may be burnt . but this saying of iudah , rashly pronounced , and in heat of anger , is by no means to be accepted for a iuridical sentence . for by the law of moses ( levit. 21. 9. ) the priests daughter was for fornication ( the masters understand adultery , not stuprum , whoredome ) to be burnt alive . but thamar was neither priests daughter , nor wife , but a widow expecting to be married to the brother of her husband deceas'd ; and this law was not then made . others think , that there was such a law peculiar to this family , to which iudah had respect : which is in truth repugnant to the ius noachidarum , by which it was accounted no crime for an unmarried woman , to humble her self to whom she pleas'd . of which right maimonides being conscious , and speaking of this our thamar , saith ; ante legem datam , coitus cum scorto erat sicut coitus hominis cum vxore suâ ; hoc est , licitus erat , nec homini fugiendus , [ velut delictum ] &c. thamar then , by virtue of this ancient right then obtaining , was not to be held guilty . whence other interpreters understand the combustion or burning mentioned in the text , to signifie , not burning to death , but a stigmatizing or marking in the forehead with an hot iron , by which she might be known to be an harlot . again , when thamar was brought forth ( not ad poenam , as the vulgar latin ) the whole matter being detected , iuda non cessavit eam cognoscere , that is , he took his daughter in law to be his wife ; such marriages being not unlawful before the mosaic law. this place is ( i acknowledge ) translated by the seventy seniors thus ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non adjecti ultrà cognoscere eam ; vel , ultrà non cognovit eam : but the hebrew verb 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying as well cessare , as adjicere ; i am inclined to prefer the foremr interpretation , and the more inclined , because the genealogy of king david and of our saviour christ is deduced from one of the male twins she brought forth at that birth . these examples therefore not sufficing to prove that for which they have been alledged by some interpreters , otherwise of profound erudition and solid judgment , and it remaining still difficult to demonstrate , that there were any such things in the world , as courts of judicature more ancient than those erected by moses : let us enquire what was the ius noachidarum in the common-wealth of the israelites , as to iudgment . they that preside over the tribunals of the israelites ( saith maimonides in hal. melak● c. 10. ) ought to appoint judges for the proselytes of the house , to hear and determine their causes according to the rights of the sons of noah : lest humane society should suffer any thing of detriment : and that they might constitute these judges , either by electing them out of the proselytes themselves , or from among the hebrews , at their pleasure . in another place ( viz. c. 9. ) he saith , a noachid is put to death by the sentence of one judge , and upon the testimony of one witness ; and that without premonition and the testimony of neighbours : but not upon the testimony of a woman . nor was it lawful to a woman to give judgment upon them , [ nor upon the hebrews . ] on the other side , by the civil right of the hebrews , three judges at least were to hear and determine causes pecuniary , and twenty-three to judge of causes capital , not without plurality of witnesses , and premonition . by the receiv'd right of the sons of noah , the violation of these seven precepts was punish'd in a proselyte of the house , with death inflicted by a sword : but an israelite , by his own right , was not to be punish'd with death , for violation of the three latter . no gentile that was under age of discretion , or blind , or deaf , or mad , was punish'd ; because such were not reputed sons of the precepts , i. e. capable to observe them . a noachid that was a blasphemer , or an idolater , or an adulterer with the wife of a noachid , and after that made a proselyte of iustice , was not to be call'd into judgment , but was free : but if he had slain an israelite , or committed adultery with the wife of an israelite , and were after made a proselyte of iustice ; he was to be punish'd , with the sword , for homicide ; with a halter , for adultery ; that is with the punishments of the israelites . by the vertue of proselytism , which was regeneration by the hebrew law , crimes committed against equals , yea also against god himself , were purged away : those committed against an israelite , not . all which nice differences betwixt the primitive right of the sons of noah , and the civil right of the israelites , punctually observed by judges in hearing and determining causes , in foro ; have been with vast labour collected out of the monuments of the masters , and with exact faith and judgment recited by selden the great in lib. 7. de iure nat. & gent. to whom i owe the knowledge of them , with many other remarkable things of good use toward the interpretation of divers difficult places in holy scripture . chap. x. prints of the six precedent precepts observable in the book of job . the same most excellent antiquary , to add the more of credit and authority to the six foregoing precepts of the sons of noah , hath also observed manifest prints of them in the book of iob , a man ( as st. austin , de civit. dei , l. 18. c. 47. ) of admirable sanctity and patience ; who was neither native , nor proselyte of the people of israel , but an idumean by descent and birth , and died there ; and by consequence could not be obliged to keep the laws of moses , of which perhaps , nay most probably , he never so much as heard . for this just man is said ( iob 1. 5. ) to have offer'd up victims , in the name of his sons ; not according to the form and rites ordain'd in the mosaic law , by which it was enacted , under the penalty of excision , that all sacrifices should be immolated at the door of the tabernacle : whence some learned men infer , that he lived before the law was given . others affirm , that there never was any such man , and the book that bears that name , is not a true history , but a parable , or poem ( for the original is written in verse ) concerning providence divine . which of these two opinions is to be preferr'd , i pretend not now to enquire . certain it is however , that this book contains many remarkable things pertaining to natural law , principally these following . of idolatry . ( chap. 31. v. 26. ) if i beheld the sun when it shined , or the moon walking in brightness : and my heart hath been secretly enticed , or my mouth kissed my hand : this also were an iniquity to be punish'd by the iudge : for i should have denied the god that is above . of blasphemy . ( chap. 1. v. 5. ) in the morning he offer'd burnt-offerings according to the number of them all . for job said , it may be that my sons have sinned , and cursed god in their hearts . of homicide . ( chap. 31. v. 29. ) if i rejoyced at the destruction of him that hated me , or lift up my self when evil found him . neither have i suffered my mouth to sin , by wishing a curse to his soul. if the men of my tabernacle said not , oh that we had of his flesh ! we cannot be satisfied . of adultery . ( chap. 31. v. 9. ) if my heart hath been deceived by a woman , or if i have laid wait at my neighbours door : then let my wife grind unto another , and let others bow down upon her ; or , as the vulgar latin , scortum alterius sit vxor mea . to turn about a mill , was among the ancient services of women . of theft , or the unlawful laying hands upon the goods of another . ( chap. 31. v. 7. ) if any blot have cleaved to my hands : then let me saw , and let another eat ; yea , let my offspring be rooted out . of judgments he speaks in chap. 29. from v. 7. to the end , where he relates , that himself had in the days of his prosperity sate on the tribunal , and been a prince among the judges of his nation . most evident it is then , that all these precepts of the sons of noah obtain'd among , and were sacred to the idumeans , who lived not under the laws of moses . chap. xi . the seventh precept . of not eating any member of an animal alive . this precept was added after the flood , according to the traditions of the rabbines ; who say , that the eating of flesh , which had been interdicted to adam , was permitted to noah : and understand this interdict to be comprehended in that of not eating blood. god at first said to adam ( gen. 1. 29. ) i have given you every herb bearing seed , and every tree , in which is the fruit of a tree yeilding seed : to you it shall be for meat . after he said to noah ( gen. 9. 3. ) every moving thing that liveth shall be meat for you ; even as the green herb have i given you all things : but flesh with the life thereof , which is the blood thereof shall you not eat . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , at carnem in sanguine animae non comedetis : where by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 anima , we are to understand the life . the eating of blood is , by the levitical law , forbidden in the same form with the immolation of a son to moloch . ( levit. 20. 3. ) i will set my face against him that eateth blood . nor is this manner of speaking to be found in any third precept : which maimonides well observes ( in more nebochim part 3. c. 46. pag. 484. ) because the eating of blood gave occasion to the worship of devils , and he fetcheth the reason of the interdict from idolaters who thought blood to be the meat of daemons . hence also it is commanded ( levit. 17. 10. ) that the blood of victims be sprinkled upon the altar ; and moreover that it be covered with dust , or sprinkled upon the ground as water . some of the zabii used to eat the blood ; some others , who reckoned this to inhumanity , at the killing of a beast reserv'd the blood , and put it into a vessel or trench , and then sitting down in a circle about it , eat up the flesh , and pleas'd themselves with an opinion , that their daemons fed upon the blood , and that this manner of sitting at the same table with their gods , would endear them to a nearer tie of conversation and familiarity ; and promising to themselves also , that these spirits would insinuate themselves in dreams , and render them capable of prophesy and predicting things to come . now in reference to these absurd and idolatrous ways of the amorites it was , that god expresly forbad his people to eat blood , for so some of the zabians did ; and to prevent their imitation of others who reserved it in a vessel , he commanded that the blood should be spilt upon the ground like water . and with the same respect to the zabian rites it seems to be , that it was also forbidden ( exod. 23. 19. and deut. 14. 21. ) to any man of israel , to seeth a kid or lamb in his mothers milk , as our many-tongued mr. gregory ( in posthum . ) hath learnedly asserted . the law in another place ( viz. deut. 14. 21. ) saith , ye shall not eat [ morticinum ullum ] of any thing that dieth of it self . thou shalt give it unto the stranger that is within thy gates , that he may eat it : or thou mayst sell it unto an alien . whence some collect , that the eating of blood was not forbidden to either proselytes of the house , or the sons of noah ; but only of flesh torn from an animal alive ; as the stones of a lamb cut out . maimonides ( more neboch . part 3. cap. 48. pag. 496. ) brings these reasons of the interdict : both because that is a sign of cruelty , and because the kings of the gentiles in that age were wont so to do , upon the account of idolatry ; namely they cut some member from a living creature , and eat it presently . nor is this so strange a thing , since clem. alexandrinus ( in protreptico , p. 9. ) commemorates the same execrable cruelty and bestial carnage to have been practised in bacchanals : bacchi orgiis celebrant dionysium maenolem , crudarum carnium esu sacram insaniam agentes , & caesarum carnium divulsionem peragunt , coronati serpentibus . nay more inhumanity yet hath been solemnly practised in the furious devotion of the adorers of the same drunken diety . prophyry ( de abstinentia l. 3. sect . 55. ) saith ; in chio sacrificabant baccho [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] crudis gaudenti , hominem membratim discerpentes . idem in tenedo obtinuit . well therefore do they speak who call idolatry madness in the last degree . jobus ludolfus ( in historia aethiopica lib. 3. cap. 1. num . 51. ) saith of the habessins , a sanguine verò & suffocatis abstinent , non vigore legis mosaicae , sed statuti apostolici in ecclesia orientali semper , in occidentali verò per mutla secula observati , & in conciliis nonnullis repetiti : nosque reprehendunt , quòd id in desuetudinem passi fuerimus venire . to these seven natural precepts , given ( as hath been said ) first to mankind in general , and after revived in mara ( according to the doctrine of the talmudists ) in the recension and explication of which according to the sense of the most learned interpreters of the hebrew antiquities , i have hitherto exercised my unequal pen ; some have subjoined another , of honouring parents . but of this , tho' equally natural with the former , and among moral precepts principal , i defer to speak , until the thred of the method i have prescrib'd to my self in this disquisition , shall have brought me to the first precept in the second table of the decalogue : both because some of the masters do not reckon it in the number of the primitive and genuine precepts of the sons of noah , but affirm that it was not given until the israelites were encamped in marah ; and because i would prevent repetition of the same things in divers places . nor doth any thing more , concerning the seven precepts precedent , occur to my mind at this time , that seems of moment enough to excuse me , if by insisting thereupon i should longer defer to put a period to this first part of my present province . ¶ the end of the first part. the concordance of natural and positive divine laws . part ii. containing a short explication of the laws of the decalogue , and reduction of evangelick precepts to them . chap. i. the preface to the decalogue explicated . from primitive laws meerly traditional , or such as were delivered down from generation to generation , not in writing , but only by voice or word of mouth , and seem to have constituted the most ancient right of mankind ; we come now to the most ancient of written laws , such as were committed to writing , and consecrated to the memory and observation of posterity . of this sort , the mosaic laws certainly are , as the best , so also the first of all known in the world. the grecians indeed , ambitious of the honour of being reputed founders of government , by making good laws for the regulation of humane societies ; among many other benefits , wherewith they boast themselves to have obliged other nations , put legislation in the head of the account . lycurgus , draco , solon , and other ancient sages , are great names they glory in . but their glory is altogether vain . for all the pretensions and brags of that arrogant nation in this kind , have been long since refuted and silenced by the jew flavius iosephus , in his apology against apion , full of admirable learning . there he shews , that the greek legislators , compar'd to moses , are but of yesterday : for at what time their father homer liv'd , they knew not the name of laws , nor is it extant in all his poems ; only the people had in their mouth certain common sayings and sentences , whereby they were govern'd ; to supply the defects whereof , the unwritten edicts of princes were upon occasion added . and he had reason . for the truth is , moses , senior to homer by many ages , was the first writer and publisher of laws , teaching the people what was right or wrong , just or unjust , and by what decrees the common-wealth was to be established , which the most high god had commanded to settle in palestine . before the time of this moses , no written laws were known in the world. for although mankind liv'd not altogether without laws before , yet were not those laws consecrated and kept in any publick records or monuments . of this sort were the afore-recited seven precepts given to the sons of noah , concerning certain rules of righteousness necessary to humane life . wherefore they were of so large extent , that whosoever knew them not , those the israelites were commanded to destroy by war , and deprive them of all communion with mankind : and justly ; for they that had receiv'd no law , seem'd worse than beasts ; and ( as aristotle hath divinely spoken ) injustice strengthened with arms and power , is most cruel and intolerable it must then be acknowledg'd , that of all legislators moses was the most ancient : nor can it be with truth denied , that he was also the wisest . for he ordain'd such a kind of government , which cannot be so significantly stil'd , either monarchy , or oligarchy , or democracy , as theocracy ; that is , a common-wealth whose ruler and president is god alone : openly professing , that all affairs were managed by divine judgment and authority . and of this he gave a full demonstration , in as much as although he saw all matters depending upon him , and had all the people at his devotion ; yet upon so fair an invitation he sought no power , no wealth , no honour for himself . a thing whereby he shew'd himself more than man. then he ordered that the magistrates should not be lords and masters , but keepers of the laws , and ministers . an excellent constitution this . for seeing that even the best men are sometimes transported by passion , the laws alone are they that speak with all persons in one and the same impartial voice : which may well be conceiv'd to be the sense of that fine saying of aristotle , the law is a mind without affection . to these two undeniable arguments of admirable wisdom in moses , may be added a third no less considerable , viz. the eternal stability of his laws : whereto to add , wherefrom to take ought away , was a most high offence . so that , neither old laws were abolish'd , nor new brought in ; but the observation of the first was with rigor exacted of all , even in the declination of that common-wealth . which was not so in other common-wealths , most of which have been ruined by law-making . the reason of this diversity cannot be abstruse to him that considers , that the laws of other nations were the inventions of humane wit , and enforced only by penalties , that by time , or remissness of rulers , lose their terror : but those of the iews , being the decrees of the eternal god , not enervated by continuance of time , or softness of judges , remain still the same ; mens minds being still kept in awe by religion , as i have in the former part of this discourse intimated . now if in these three things ( to which i might here subjoin others , if i thought it necessary ) the excellent wisdom and prudence of moses be not clearly visible ; i know not what is so . of these mosaic laws , upon which by divine wisdom both the polity and the religion of the holy nation are so establish'd , as to be , not only connex'd , but made one and the same thing ; some are moral , others ceremonial . the moral ( which only belong to my present province ) are comprehended in that sacred systeme call'd the decalogue , or ten commandments , in which the whole duty of man , as well towards god as towards men , is prescrib'd . these ten precepts therefore i intend ( the omnipotent author of them assisting me ) seriously and according to the best of my weak understanding , to consider , one by one , in the same order in which they are delivered in the twentieth chapter of exodus . and that neither want of skill in the hebrew language , and in the idiotisms or proper modes of speaking used by esdras ( or whoever else was ) the writer of the pentateuch ; nor the slenderness of my judgment , may lead me into errors , in the interpretation of the sacred text : i am resolved to resign up my self entirely to the conduct and manuduction of the most celebrated interpreters of the holy scripture , and among them principally of the illustrious hugo grotius ( a man no less admirable for the singular felicity of his judgment in difficult questions , than for the immensity of his erudition ) in his explication of the decalogue , as it is extant in the greek version of the seventy seniors ; choosing rather to tread in his very footsteps , than to deviate from the right way , in an argument of so great moment . not that i think it necessary to recite whatsoever he hath congested of this subject in that part of his theological writings , wherein are deliver'd many curious criticisms concerning the various significations and uses of as well greek as hebrew words and phrases , that belong chiefly to the cognizance of philologers : but that i design from thence to select only such things that seem requisite to my right understanding of the sense of all and singular the precepts , that i am now about to consider . in pursuance therefore of this design i begin from . the preface to the decalogue . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the lord spake . here by the lord , is meant the god of gods. and the reason why the greek interpreters chose rather to use the word [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] lord , than [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] god , seems to be this ; that writing to the greeks amongst whom , are to be number'd the egyptian kings of the macedonian blood , by the hebrews call'd kings of graecia ; and that among the graecians also they who were reputed wiser than the rest , as the platonicks , of which order were the ptolomies kings , used to give the appellation [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of god also to those whom they call [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] daemons , and sometimes , in imitation of the hebrews , [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] angels : they thought themselves religiously concern'd openly to testifie , that they spake of that god only , who by supreme right ruled and commanded all those that they honor'd by the name of gods : as among mortal kings , the king of the persians was call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the king of kings ; and even at this day the king of the habessins in ethiopia writes himself [ negûsa nagast zaitjopja ] king of the kings of ethiopia , with respect to some petty kings subject to him , or his vice-roys , who also are honoured with the title of negus , king ; as the most learned iobus ludolfus observes ( in hist. aethiop . l. 2. c. 1. printed at francfurt this present year 1681. ) but although the lord , that is , the highest god , be here said to speak these words that follow ; yet ought we to hold for certain , that he spake them not by himself , or immediately , but by an angel sent as an embassador , acting in the name of the most high god : which ought to be understood also of other the like visions , that have hapned to holy men in old times . for it was an angel that spake to moses and the people in sinah ; if we believe the writer of the acts of the apostles ( chap. 7. v. 38. ) and so thought the grave iosephus also , when ( antiq. l. 15. ) he said , cum nos dogmatum potissima , & sanctissimam legum partem per angelos à deo acceperimus . they err greatly , who here by angel understand the second substance of god , or second person in the trinity . for god spake indeed in various and manifold manners to the fathers of old ; but in the last times he began to speak to us by his son , ( hebr. 1. 1. ) the law was given by angels by the ministry of [ internuncii ] an embassador or mediator ( namely of moses ) that it might be of force , until the promised seed should come ( galat. 3. 19. ) and the writer to the hebrews prefers the gospel to the law from this , that the gospel was given by our lord iesus himself , the law only by angels . ( heb. 2. 2. ) in which places angels are named in the plural number , tho' st. stephen saith angel in the singular ; because such is the manner of visions of that kind , that there is one angel sustaining the person and name of god , and others present with him as apparitors , or ministers . as in gen. 18. & luke 2. 13. conferr'd with 1 thess. 4. 16. and with matth. 13. 39. 41. 49. as therefore the angel that pronounced the law , saith , i iehovah , so also do other angels , that have been likewise sent from god , as embassadors , to transact affairs of great importance , speak in the first person , just as the crier of a court pronounces the words of the judge ; as st. austin ( l. 2. de trinitate c. 2. ) makes the comparison . so moses ( exod. 3. 15. ) saith , that the god iehovah spake to him in the bush : and he that then spake to moses , had newly said , i who am , which is an explication of the word iehovah , i. e. existens , or being ; for being without beginning , without end , and without dependence , is proper to god alone . but st. stephen ( acts 7. 30. ) saith , that an angel of the lord appear'd to moses in a flame of fire in a bush : and that from the authority of moses himself . ( exod. 3. 2. ) of which st. athanasius ( orat. 6. ) saith ; et vocavit dominus mosem exrubo , dicens : ego sum deus patris tui : deus abraham , deus isaac , & deus jacob : at angelus ille non erat deus abraham , sed in angelo loquebatur deus ; & qui conspiciebatur , erat angelus , &c. of the same judgment was the author of the responses to the orthodox christians , when he said ; angelorum , qui dei loco visi aut locuti sunt hominibus , dei vocabulo nominati sunt , ut ille qui jacobo , quique mosi est locutus . etiam homines dii vocantur . vtrisque ob officium ipsis injunctum datum est , & dei vicem & nomen obtinere . expleto autem officio , desinunt vocari dii , qui tantùm operae alicujus causâ id nomen acceperunt . we must acknowledge then , that the words recited in this place of exodus , were pronounced by an angel in the name of god : but we are not obliged to believe the same of those that are in deut. 5. for they were the words of moses by memory rehearsing the former , and indeed with such liberty , that he transposeth some words , changeth some for others of the same signification , omitteth others , and addeth new for interpretation sake . for deuteronomy , or , ( as philo speaks ) epinomis , is nothing else but the law and history summarily repeated , in favour of those who were not present at the promulgation of the law , and at the transactions of that time . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; all these sermons , saying . these very words ; that no man of posterity might think ; that ought had been added or taken away . in deuteronomy 5. are not found these words so express : and therefore it sufficeth , that there the sense of the reciter is signified , as we just now siad . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; i am the lord thy god who hath brought thee out of the land of egypt , out of the house of servitude . by the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the septuagint have interpreted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , empire is signified . the same word is attributed sometimes also to angels , as in psalm 82. v. 2. and sometimes to eminent magistrates , as in exod. 21. 6. & 22. 26. so that in psalm 82. 1. & 131. 1. it is a great doubt among the most learned of the hebrew doctors , whether angels or magistrates are to be understood . but whensoever the plural is conjoin'd with the singular [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] by apposition , but [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] defective , no doubt is to be made , but that he alone is to be understood , who with highest and most absolute empire presides over all both angels and magistrates . but to that word , the possessive case is wont to be added , whereby it is signified , that to this most high god , besides the soveraign right he hath of most absolute dominion over all angels and men , there belongs also a certain peculiar right of dominion over some particular men or nation , by vertue of not common benefits conferr'd upon them . for such is the nature of benefits , that it always gives to him who hath conferr'd a benefit , somewhat of new right over him that hath receiv'd it . and this is the cause , why here no mention is made of god's creation of mankind in the beginning , but of those things that properly belonged to the posterity of iacob , nor of all those neither , but only of the most recent , the memory whereof sticks more firmly and efficaciously in the minds of men. compare with this , the cause of keeping the law , which fathers are commanded to deliver down to their children , in deut. 26. 10. and following verses . now what is said in this place , is not law , but a preface to the law , seneca indeed approves not of a law with a prologue , because a law is made , not to persuade , but to command . but zaleucus , charondas , plato , philo , and some other philosophers were of another opinion . certainly the middle way is the best ; let the prologue be brief and grave , such as carries the face of authority , not of disputation . the number ten is to almost all nations the end of numbering ; for the numbers that follow , are distinguished by compound names , either by the sound , as vndecim , duodecim , eleven , twelve ; or by signification , as an hundred , a thousand , &c. and certainly the most ancient way of numeration was by the fingers , of which man hath ten. for which reason , also in these precepts , which were above all other things to be imprinted upon the receivers memory , god was pleas'd to choose this number , wherein that all diversities of numbers , all analogies , all geometrical figures relating to numbers , are found ; philo largely shews in his enarration of the ten precepts . and martianus capella , where he saith ; decas verò ultra omnes habenda , quae omnes numeros diversae virtutis ac perfectionis intra se habet . nor was it from any other reason , that the pythagoreans , and after them the peripateticks referr'd all kinds of things into ten classes , vulgarly call'd categories : or that not only in the law , but also before it , tenths were devoted to god ; as may be collected from the history of camillus written by livy and plutarch , and from herodotus , who speaks of that custom as most ancient . the place wherein the law was given , also exacts our notice . it was given in a wilderness barren and desolate ; with design , that the people remote from the contagion of cities , and purged by hardship and sore afflictions , and by miracles taught not to depend upon things created , might be well prepared for that common-wealth which god was about to found and establish . nor ought we without a remark , to pass by the particle [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] thy god. which not only here in the preface , but in the precepts ensuing , is used ; intimating , that the law commanding and forbidding speaks to every individual man in the number of unity ; to the end , that it may declare , that here the condition of the prince , and of the lowest hebrew of the vulgar , is one and the same , none , high or low , being exempted from the obligation thereof . chap. ii. the first precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not have other gods beside me . in the words , other gods beside me , seems to be a pleonasm , or redundance of speech . for it had been sufficient even to men of common sense , to have said , other gods. but the like speech occurs also in 1 corinth . 8. 4. and 1 corinth . 3. 1. and the meaning is , that other gods are neither to be substituted in the place of the true god , nor to be assumed to him , which many did , as in 1 kings 17. 33. here by gods are to be understood , not only angels and iudges or other magistrates of eminent dignity , who are ( as we have already hinted in the preface ) sometimes in the scripture honour'd with the title of gods , while they execute their office ; but also all those whom the gentiles , tho' without just cause , call'd by that name ; [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] who are call'd gods ( 1 corinth . 8. 5. ) so some are call'd prophets , who boast and magnifie themselves for such , ( ier. 28. 1. ) let us therefore consider , first the false gods of the ancient gentiles , and then those that are not without cause call'd gods. that the first things which men worshiped as gods , were the celestial fires or luminaries ; is the opinion of the most learned and judicious of the hebrew masters , abenesdras , moses maimonides , and others . and this opinion is highly favor'd , both by the tradition of abraham , who is said to have abandoned his native countrey , and travell'd into a strange land , meerly out of detestation of this kind of idolatry ; and from the history of iob taken from times most ancient ( chap. 31. v. 26. 27. 28. ) whereto may be added that of deut. ( chap. 4. v. 19. and chap. 17. v. 3. ) now that the sun , moon , and other lights of heaven are false gods , is most evident , not only from hence , that no great goods or benefits come from them to mankind ; but also from this , that they neither understand mens adoration and prayers , nor have the liberty of doing good more to one man than to another : which two things are conjunctim requir'd to fill up the true signification of the name god , ( heb. 11. 6. ) no sooner had men made to themselves gods of the stars , but they began to make also stars of men , and to worship them with divine honours . kings and queens ( that there might be deities forsooth of both sexes ) were after their decease , what by the cunning and pride of their posterity , what by the adulation of the learned of those darker times , deified and adored ; and that too under the names of eminent stars . and from this antique custom st. chrysostom ( ad 12. cap. secundae ad corinth . ) derives the worship of idols : sic enim idolorum cultus primùm obtinuerunt , cum homines supra meritum in admirationem venirent . that divine honors were by the syrians attributed to azael and aderus their kings , iosephus relates : and athenaeus affirms , that this custom came first out of egypt . but the most ancient memoir of the thing is found in sanchuniathon , who hath recorded for truth , that [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] kronos king of the phenicians was by them consecrated into that star , which the greeks , taught by the phenicians , call'd from his name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the latines saturnus . and he is the same to whom , by way of excellency named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. the king , the phenicians used to sacrifice their children : a most inhuman and execrable custom , that from them descended down to the tyrians ( a colony of theirs ) and from them to the carthaginians and other peoples of africa . thus was astarte also consecrated into the planet venus ; and not long after among the egyptians , osiris was stellified into the sun , isis into the moon . thus was hammon translated into aries , the ram ; derceto into piscis , the fish. but of the moors , a people of mauritania , st. cyprian saith ; manifestè reges colunt , nec ullo velamento hoc nomen obtexunt . from the deification of stars , and stellification of men , in process of time they proceeded to yet a higher degree of madness , idolizing of brute animals . for , either because the asterisms or constellations of stars had been before , by the curious observers of them , formed into the figures of divers animals , from some similitude they fancied in one or more stars ; or because some animals were believ'd to have , i know not what , secret natural cognation with certain asterism , and to receive a more vigorous influence and virtue from them ; or perhaps for both these causes : therefore were those animals supposed to have somewhat of divine in their natures , and accordingly number'd among deities by the egyptians , who adored them as such . hence an ox was call'd apis , with relation to luna , or lunus rather ( for a great part of the east call'd that planet by a masculine name ; ) the phoenix ( tho' probably there never was any such bird in rerum natura ) was worship'd as a favourite of the sun ; as also were the lizard , lyon , dragon , falcon , for the same reason ; the bird ibis , out of respect to mercury ; the dog , in respect to sirius , the dog-star : and in like manner other animals also , betwixt which and the asterisms ( to which notwithstanding the chaldeans gave figures different from those the persians imagined , and the indians different from those that either of those two nations had fancied ) they conceiv'd any resemblance of shape , or cognation of nature to be . they proceeded yet farther . without any respect at all to celestial bodies , they honour'd as gods all such living creatures that were highly useful and profitable unto men ; such as are reckon'd up by diodorus siculus cited by eusebius ( in praeparat . evang. ) by pliny ( l. 8. c. 27. ) philo ( ad praecept . secun . ) and porphyry ( de abstinentia l. 4. ) now of all these brutal deities of the egyptians , we need say no more than what we said just now of the host of heaven , to prove them to be false gods ; viz. that they neither understand the prayers , nor have power to do good to one man more than to another of their stupid adorers , as wanting the faculties of reason and election . the same cannot be said of angels , who are able , both to hear and understand prayers address'd to them , and from a certain liberty of mind to confer benefits upon those whom they are commanded to favour and assist . he therefore that honours them with due respect and reverence , also he that hopes to obtain some eminent benefit by their help and assistance ; doth not sin against this law : but he doth , who attributes to them the things that are proper to the most high god. for the word god in this precept , is to be understood in sensu summitatis , i. e. as signifying the god of gods. examples will illustrate the thing . they sinned not who as often as angels appeared to them , shewed great veneration of them by falling down upon their faces , as in ioshuah ( c. 5. v. 14. ) since as much of honour as that comes to , was given also to prophets , without sin ; as to him that was thought to be samuel ( 1 sam. 28. 15. ) to eliah ( 2 kings 1. 13. ) to daniel ( 2. 46. ) who forbids offerings and sacrifices , doth not forbid a sign of simple reverence . nor did the angel in the revelation refuse that honour , because there was ought of unlawful in it , but because he would shew that the apostle was equal to him , both being ministers of christ , now head of the angels , ( see coloss. 1. 16. 18. ) and that an apostolick legation designed for mens salvation , was in no part inferior to an angelick : and equals are not wont to usurp such signs of submission one of the other . nor is this explication of that place new , but delivered down to us by st. ambrose and gregory the great . nor do i think that man would sin , who should beseech an angel appearing to him , to recommend him before god ; to the proof of which point maimonides brings what is in iob ( 33. 23. ) with whom philo consents , often calling angels [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] mediators . but in both exhibiting signs of reverence to angels , and in imploring their commendation , it highly concerns us to see , that he that appears to us under the form or shape of an angel , be not an evil daemon come to delude and seduce us ; a cheat not seldom practised by the prince of impostors satan , as st. paul observes ( 2 corinth . 11. 14. ) and porphyry ( de abstinentia l. 2. ) in these words ; aliorum deorum velut vultum induti , nostra imprudentia fruuntur ; and iamblicus ( de myster . aegypt . l. 3. c. 32 , & l. 4. c. 17. ) nor is it difficult to discern betwixt good and evil angels appearing to us . for those that endeavour to seduce men from the worship of the true god , or pretend themselves to be equal to him ; are most certainly emissaries [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of the devil , and to be resisted . true it is nevertheless , that there are many signs of honour that cannot be exhibited even to good angels , without manifest violation of this holy precept . first if those signs of singular veneration be exhibited to them , which the consent of nations hath made proper to divine worship , as sacrifices , oblations , incense , expresly declined by the angel that appear'd to manoah , ( iudg. 13. 16. ) and mentioned in daniel ( 2. 46. ) secondly if we solemnly vow or swear by them , or beg of them those things , which by god's command ought to be petitioned for from god alone , or now under the new covenant from god and christ , such are remission of sins , the holy spirit , eternal life . for this is , as philo rightly observes , aequalia dare inaequalibus , qui non est inferiorum honos , sed superioris depressio ; nor is it less than crimen laesae majestatis summae , high treason against the divine majesty , to give his honour to his ministers . to petition superiors , principally kings and princes , who are presidents of human peace , and conservators of every private mans right and propriety , for such things as are in their power to grant ; is not against this law. nor are we by the same forbidden to honour them by kneeling or prostrating our bodies in their presence , where custom of the place or nation requires those signs of respect and reverence ; for this is civil , not divine honour . nathan prostrated himself before david , only as he was king ( 1 kings 1. 23. ) and the writer of illustrious lives saith ( in conon . ) necesse est , si in conspectum veneris , venerari te regem , quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 illi vocant . the greeks instead of that word often put 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , procumbere , to lye down flat upon the ground , in token of submission and veneration . livy speaking of certain embassadors of the carthaginians , saith ; more adorantium ( accepto credo ritu ex ea regione ex qua oriundi erant ) procubuerunt . he means from the phenicians , neighbours of the hebrews , whose custom of yenerating their kings in this manner euripides ( in phoeniss . ) thus expresses ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . supplex te , rex , venerans genibus patrio advolvor de more tuis . but if this prostration of the body be in any nation used only in divine worship ; then is the case quite alter'd , and to use it in honour of the king himself , will be unlawful . for this very reason the grecians , who were not accustomed to prostrate themselves unless in sacris , refus'd to venerate the king of the persians in that manner : and some macedonians , tho' eminent in the army and court of alexander the great , could not either by flattery or terror be brought to prophane the religious gesture of procumbency , by using it before him even when he affected to be thought a god. particularly callisthenes and polypercon : the former of whom , in the close of his free oration to alexander , fear'd not to say ; non pudet patriae , nec desidero , ad quem modum rex mihi colendus sit discere , the other openly derided one of the persians that , from veneration of the same mighty king , lay with their faces upon the ground , jeeringly advising him , ut vehementius caput quateret ad terram , as curtius ( lib. 8. cap. 5. ) relates . there were times when the christians thought it not alien from their religion , to humble themselves by such prostration before the statues and images of emperors . but after iulian had commanded , that images of false gods should be added to his own images , the more prudent of the christians held themselves obliged in conscience to suffer the worst of torments , rather than to fall down before them ; as gregorius nazianzenus hath recorded . and hither may we refer that of tertullian to scapula ; colimus ergo imperatorem sic , quomodo & nobis licet , & ipsi expedit , ut hominem à deo secundum , & quicquid est à deo consecutum , & solo deo minorem . hitherto we have enquir'd , what gods are falsely and without just cause so called ; and who are sometimes not without cause named gods ; and how far these of the latter sort may , without offence of the most high god , be honour'd . it remains only , that we enquire , what is the grand scope or principal design of this first precept . the most learned iew , philo , and the christians following him , rightly call this precept [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of the empire of one , or also [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the destruction of a multitude of gods. for no doubt is to be made , but that the chief purpose of this law is to extirpate polytheism ; and that too , as maimonides wisely observes , not for god's sake ( for what benefit can he receive from humane worship ? ) but for man's , whose felicity consisteth only in this ; that he be advanced from things sensible to that insensible god , from things subject to decay and destruction , or such as had a beginning , to that eternal ens. nor is any thing so useful , as the belief of one god , to conjoin and bind men together in peace and mutual amity . whence that memorable sentence of the greek author of the book ( de monarchia l. 1. ) amatorium vehementissimum , & vinculum insolubile benevolentiae atque amoris , cultus unius dei. whereto he adds , for confirmation , or that he might inculcate the same as a maxime of perpetual truth , and universal too ; causa concordiae & summa & maxima , de uno deo persuasio , a quo velut fonte procedit amicitia firma & insolubilis hominibus inter se. to this great verity tacitus seems to have had respect , when speaking of the religion of the iews , he saith ; honor sacerdotii firmamentum potentiae assumitur . for if the honour of the priesthood be the grand sanction of the power and authority of the civil magistrate in all common-wealths ( as is confest by that common axiom , sublato sacerdotio tollitur simul & lex ) and religion be the basis upon which the honour of the priesthood stands ( which is by all men acknowledg'd ) and the persuasion of one god be the firmest fundament of religion ( which cannot be denied ) then it will of necessity follow , that the perswasion of one god , is the firmament of empire , because the strongest ligament whereby the minds of men are combin'd and disposed to live , both in obedience to governors , and in peace and mutual amity among themselves . admirable therefore is the goodness shewn by god to the israelites , in this : that having selected them before all other nations to be his peculiar people , and being now about to constitute a new form of government or republick , wherein himself was to preside : he gave them this first precept , as the fundamental law upon which the stability of their empire , and their felicity was to depend ; and to which the light of nature or right reason would oblige them to assent . for the agnition of one , eternal , infinite , omnipotent god , is to a considering man , without much difficulty of thoughts , inferrible from any one of these subsequent reasonings . 1. he that from any natural effect whatever , which he hath seen , shall reason to the next cause thereof , and thence proceed to the next cause of that cause , and then immerge himself profoundly into the order of causes ; will at length find ( with the philosophers of clearest understanding ) that there is one first mover , i. e. one eternal cause of all things , which all men call god : and this without all cogitation of his own fortune , the solicitude whereof both begets fear of evil to come , and averts the mind from the inquisition of natural causes , and at the same time gives occasion of imagining many gods. 2. god is necessarily , or by himself ; and whatsoever is so , is consider'd , not as it is in genere , but in actu ; and in actu things are single . now if you suppose more than one god , you shall find in singulis nothing , wherefore they should be necessarily or by themselves ; nothing wherefore two should be believ'd to be rather than three , or ten rather than five . add , that the multiplication of singular things of the same kind is from the fecundity of causes , according to which more or fewer things are bred out of them : but of god there is neither original , nor any cause . and then again in divers singulars , there are certain singular proprieties , by which they are distinguish'd among themselves ; which to suppose in god , who by his nature necessarily is , is not necessary . 3. nor can you any where find signs of more than one god. for this whole university makes one world ; in the world is but one sun ; in man also but one mind governs . 4. if there were two or more gods ; acting and willing freely ; they might will contrary things at the same time , and consequently one might hinder the other from doing what he would ; but to imagine it possible for god to be hinder'd from doing what he wills , is to imagine him not to be god. evident therefore and necessary it is , that there is but one god. evident it is also , that the israelites were under a double obligation to obey this precept : one from god's express command ; the other , from the light of nature , which alone is sufficient to teach men , both that there is but one god properly so call'd , and that to him alone all divine worship is due . chap. iii. the second precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. thou shalt not make to thy self any graven image , &c. in greek writers the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is often used to signify [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] an apparition or ostent : but in the sacred books we no where find it used in that signification , but always of the same with [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] graven , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , an image , or effigies ; and therefore st. ierom translates it sometimes idolum , sometimes sculptile , then imago , and in other places simulacrum . so the calf made in horeb is by st. luke ( act. 7. 41. ) call'd an idol , and they that worship'd it are by st. paul ( 1 corinth . 10. 7. ) call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] idolaters . and the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 answers exactly to the hebrew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whereby is signifi'd worship alien from the law : not that an idol signifies any thing of evil per se , as some think ; but because , after the law , there was no more evident sign of distinction betwixt the pious and the superstitious , than this , that all these had graven images , those had none . and therefore tho' the greek version renders not word for word , yet the sense is plainly enough express'd . nor did the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] worshippers of many gods only make and set up images to them , but thought also that by magical rites some certain ethereal spirit was brought down into those images ; as may be seen , both in the dialogue of trismegistus ( whoever he was that impos'd that mighty name upon himself ) with asclepius , and in maimonides in many places of his book intituled ductor dubitantium , as also in abenesdras upon this precept . the same is noted by tertullian ( l. de idololatria ) in these words , rapere ad se daemonia & omnem spiritum immundum per consecrationis obligamentum ; and ( in l. de spectaculis ) he saith , that demons operate in images : and minutius felix , isti impuri spiritus sub statuis & imaginibus consecratis delitescunt . that such were the images which in iacob's history are named teraphim , is the opinion of abenesdras , maimonides , and kimchi : tho' the word it self be of good and bad signification indifferently , and is sometimes ( as in iudg. 17. 5. and hosea 3. 5. ) taken for cherubins . such also was the gamaheu or little image that nero had , or at least was willing men should believe he had , by the suggestions whereof , he pretended to be premonished of things to come , as suetonius relates . that many images , telesmatically made forsooth , and erected have been vocal , yea , and oraculous too ; many grave writers have made no scruple to affirm ; and maimonides ( parte 3. cap. 29. ductor dubitant . ) tells us , that he had read two books of speaking images . these authors perhaps had from others heard of such statues , and believ'd what they had heard to be true : but to me ( i freely profess ) it seems more probable , that either they gave credit too easily to fabulous relations , or that the relators themselves had been imposed upon by frauds and impostures of heathen priests speaking in , and pronouncing enigmatick oracles from the hollow of statues , to delude the credulous , and at the same time propagate the honour of the false gods represented by those idols ; than that evil demons should as it were animate a statue , and cause it to express articulate sounds , without vocal organs . and as for memnon's statue or colossus made of black marble , set up in that magnificent temple of serapis in thebes , and for the musick it made upon the striking of the beams of the sun upon it , so much celebrated by ancient writers as well latine as greek ; certainly it was meerly a piece of art , a kind of pneumatic machine contrived by the theban priests , men of not vulgar skill in astronomy and all other philosophical sciences . athanasius kircher ( i remember ) in his oedipus aegyptiacus ( tom. 2. ) according to his usual credulity , conceives it was a telesme , or made by talismanic art ; and that the devil was conjur'd within the hollow of it , to perform that effect , because it continued musical for so long a time , namely to the days of apollonius tyaneus , which from the first erection of it was about eleven hundred years . but yet he shews , that such a musical statue may be made by mathematical and natural contrivance upon the ground of rarefaction ; saying , magnam enim vim in natura rerum , rarefactionem obtinere , nemo ignorat ; and subnecting various other pneumatical devices among the aegyptians in their temples . but whether it were the devil or the priest that spake in those consecrated statues ; or whether the vulgar , in all ages easie to be gull'd by men of more learning and cunning , were only deluded into a belief that they spake : certain it is however , that the opinion of some spirit or other included within them , so far advanced their reputation , that they were now no longer lookt upon as representations of gods , but as real gods themselves , and accordingly worshiped and consulted about future events . from this opinion it was , that laban ( in genesis 31. 30. ) expostulating with iacob about the teraphim or images that rachel had secretly taken from him , saith , wherefore hast thou stolen my gods ? that these teraphim were fram'd by astrologers , for divination sake , and that they might predict things to come ; is the judgment of rabbi kimchi : and that they were also made of human form , so as to be the more capable of coelestial influence , is observ'd to us by rabbi abraham ben-ezra , the greatest theologue and astrologue of the iews . who adds , that rachel stole the images from her father laban for this reason alone , lest from the inspection of them he might learn what way iacob had taken in his flight , and so pursue him . and st. austin ( quaestion 94. in genes . ) grants that laban consulted these idols for divination ; saying , quod laban dicit , quare furatus es deos meos , hinc est illud fortasse quòd & augurari se dixerat . capite enim praecedenti , ad jacobum dixit , auguratus sum , ( not as our translation , i have learned by experience ) quod benedixerit mihi deus propter te . so mr. selden ( de diis syris syntagm . 1. c. 2. ) assures us , the ancients interpret nichasti ; and the hebrews understand that place ( ver . 27. ) of fore-knowing or conjecturing . but whether or no these teraphim were worshiped as gods , though they were call'd so , is an old controversie among the masters , as appears from r. simeon ben-joachi ( in libro zohar fol. 94. ) as for the dismal manner how these teraphim were made , mr. selden ( from r. elias in thisbi ) describes it thus : they killed a first-born son , twisted or wrung off his head from his body , then embalm'd it with salt and aromatick powders , and wrote upon a thin plate of gold the name of an unclean spirit ; which plate being put under the embalm'd head , they placed it in a niche of the wall , burning candles , and adoring before it . and with such teraphim as these laban used to divine . if this be a true description , i wonder why the author of it , and onkelos too , in this place of genesis translate teraphim by tzilmenaia ; when tzilmenaia signifie figures , effigies or images ; and a dead mans head is neither of these . of micha also we read ( iudg. 17. 5. ) that he had a temple of gods , and made an ephod and teraphim , and consecrated one of his sons , ( that is , filled his hand with sacrifices ; ) which ancient rite used in the initiation of priests , we find mention'd in exod. ( 29. 24. ) and levit. ( 8. 27. ) and he became his priest. upon which text mr. selden , according to his wonted sagacity , well observes , that this micah did ill to mix the worship of the true god , with that of idols and demons ; for doubtless he consecrated the ephod and levite to the true god , but the teraphim , the molten , and the graven image to demons : from which the danites soon after obtain'd an oracle , as if it had been from god himself ; as appears in the chapter following . nor did the idolaters give credit to the ephod , which they referr'd to god ; or to the teraphim of demons , singly or apart : and therefore they foolishly and impiously thought , that both together were to be consulted , both to be worshiped , and conciliated by the same divine worship . it seems by the history , that the molten image , and the graven image of micah were the gods to whom the teraphim were consecrated . but yet the teraphim also , in respect to their egregious use in divination , were held to be gods. hence arises somewhat of light to us for our clearer discerning of what is meant by that darksome place in hosea ( 3. 4. ) for the children of israel shall abide many days without a king , and without a prince , and without sacrifice , and without an image , and without an ephod , and teraphim . for the sacrifice and ephod are referr'd to divine worship of the true god ; the statue or image and teraphim , to idolatry : according to r. kimchi's interpretation , who ( in radice ) saith , absque sacrificio , respicit deum verum ; absque [ matzebah ] statua , cultum alienum sive numina gentium ; & absque epho , item deum verum ; & teraphim , cultum alienum . as to the matter whereof these [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] puppets or idolillo's were made ; the most antique of eastern nations , the zabii , or chaldeans ( out of whose books r. moses the aegyptian transcrib'd many remarkable memoirs ) made them of gold sometimes , sometimes of silver , according to the rate of their fortunes . these they dedicated to the moon , those to the sun : and they built temples or houses to receive them , as he , ( more nebochim . l. 3. c. 30. ) records ; et posuerunt in eis imagines & dixerunt quod splendor potentiorum stellarum diffundebatur super illas imagines , & loquebantur cum hominibus , & annunciabant eis utilia . which quadrates exactly with their doctrine who teach , that the teraphim were always made according to the precepts of astrology , and to certain positions of the stars , ( as those which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) and to the figures , imagined to be in heaven , that they might be , not only [ mechavi ] annunciantes , fortune-tellers , but also [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] averrunci dii , drivers away of evil. nor do the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 indeed , as to the astrological reason , differ from the teraphim , unless in this , that these were design'd to predict things to come , but those to drive away evils ; and the makers of the talismans were named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . much nearer to the nature of the teraphim do those images come , that were believ'd both to give oracles , and to protect from evil : not only from their having been astrologically formed and erected , but [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 daemoniorum ] from the coming of demons into them : and we are told by michael psellus , that demons are said [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] to make their intrada's or entrances , when being invocated by their adorers or conjurers , they enter into statues or images consecrated to them . of this sort of images the most ancient memory is found mention'd by that hermes trismegistus in his dialogue with asclepius . such was that wooden seal by apuleius called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and by him under a secret name worshiped ; of which magical practice being accused , he wrote an elegant apology . the same is to be thought of that head of a statue , which gerebert arch-bishop first of rhemes , and after of ravenna , and at last pope , by the name of sylvester the second , taught by the saracens of spain , to the satiety of humane curiosity , made into an oracle for his own use ; as our william of malsbury ( de gestis regum angliae , lib. 2. cap. 10. ) relates . this head , saith william , would never speak , but when interrogated ; and then it fail'd not to speak truth , either affirmatively , or negatively . for instance , when gerebert asked , shall i be apostolick ? the head would answer , thou shalt . shall i dye before i have sung mass in jerusalem ? no. but by this answer , the pope ( as is well observ'd by selden , de diis syris . l. 1. c. 2. ) was deceived , as to the time of his death : for he understood it of the city ierusalem ; but the oracle meant a church so called in rome ; in which , immediately after his holiness had upon the sunday call'd statio ad ierusalem , celebrated mass , he ended his life miserably . that the like head was made of brass , and to the same purpose too , by our country-man roger bacon of oxford , a minorite ( a man of greater learning than the gloomy age wherein he lived , could well bear ) is confidently reported by the vulgar ; not without injury to his admirable skill in all parts of the mathematicks , which his works now extant shew to have been profound and pure , and of which the most renowned university of oxon hath , in their late history and antiquities , given an honourable testimony . nor have our annals any the least ground , upon which this scandalous fiction could be rais'd . of what matter the image of the great diana of the ephesians was made , is left to conjecture ; no less uncertain than the founder of her magnificent temple in that city : but that the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] silver shrines made there by demetrius a silver smith , and other crafts-men , not for , but of diana , and mentioned in acts 19. 24. were little chappels representing the form of the ephesian temple , with the image of diana enshrin'd ; hath been affirm'd by the great erasmus , and sufficiently proved by our most learned mr. gregory , ( in posthum . c. 11. ) and to this agree the heathen rites of those times . for ammianus marcellinus ( in iuliano , l. 22. numb . 12. ) relates , that asclepiades the philosopher was wont to carry about with him whithersoever he went , a little silver image of the coelestial goddess , or vrania : and dion ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 40. fol. 81. ) saith of the roman ensign , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that it was a little temple , and in that , the figure of an eagle set in gold. now that which moved demetrius and other workmen of the like occupation to stir up the beast of many heads to raise a tumult against st. paul , was not zeal for the honour of diana , as they cunningly pretended , but fear lest their trade should be ruin'd . for at this time there was a solemn confluence of all the lesser asians , to the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] holy games celebrated at ephesus , to the honour of other gods , but of diana in chief . and it must have cut off the stream of profit from the craftsmen , if the people had been convinced of the absurdity of their devotion by st. paul's doctrine , that these enshrin'd idolillos of diana so much bought up by bigots , were no gods , because made with hands . in the prophesie of amos ( 5. 27. ) is mention'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the tabernacle of moloch , which probably was an image of saturn in a shrine , like these of diana here describ'd . for that moloch was saturn , selden hath render'd indubitable : and that the aegyptians worshiped him under the name of rephan , is evident from the coptick table of the planets explicated by athan. kircher in prodrom . coptic . c. 5. pag. 147. but of what materials soever the idols of the ancient gentils were made , still the worshipers of them seem to have been possessed with an opinion , that there was [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] some numen or divine power latent in them . and this opinion had been so diffused through all the oriental nations , before the law ; that god thought it necessary to the peace and felicity of the hebrew commonwealth now to be established , by this precept to interdict all graven images of any animal whatsoever , such being thought , by reason of their hollowness and secret recesses , more capable of demons , than others . for we are to understand , that to the hebrews , as it was expresly forbidden to worship any such image , so was the meer making of any not permitted ; lest from the shape or form of the image , the israelites might perhaps take occasion to believe , as the heathens did , that such images were ( to use the phrase of the false trismegistus , in dialog . cum asclepio ) animatae sensu , & spiritu plenae ; or ( as iamblicus calls them ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , divino consortio simulacra plena . where that consortium or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is of angels or daemons , whom they conjur'd into the images , by certain magical rites and sacrifices . nay more ; god strictly commanded that all such statues and images should be destroy'd and utterly abolish'd , exod. 34. 13. numb . 33. 52. deut. 7. 5. hence it was , that when pilate had nayl'd up certain shields or bucklers in the holy temple , the iews were unquiet and mutinous , until he had caus'd them to be taken away ; because there were in them [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the countenances or faces of some of the caesars emboss'd or prominent , perhaps in messo relievo . hence also herod having set up certain trophies , was in danger of being outraged by the fury of the iews , until by exposing them uncover'd , he shew'd , that no images lay conceal'd under them . in like manner the golden eagle set up by the same herod over the gate of the temple , was thrown down , as repugnant to the holy law ; as iosephus ( antiq. l. 17. ) relates . nor was this law unknown to tacitus , who speaking of the iews , saith , nulla simulacra urbibus , nedum templis sunt . and he was in the right ; for even dion could tell his readers , that to have graven images or statues , not only in their temple but in any other place whatsoever , was to the jews unlawful . to endeavour to exempt himself from the obligation of this law , while the sanctity of it continued , was criminal to any man , from the prince to the meanest of the vulgar : god reserving to himself alone , the power of exception , as being the law-maker . he by his right commanded cherubins , winged images with human countenances , to be set up in the sanctum sanctorum of the temple in that very place , into which none but the high priest , nor he but once in the year , upon the day of solemn and general expiation , was permitted to enter : as well knowing , that there was nothing of divine in them ; and designing , that by them should be signified , either ( as philo thinks ) that the actions of god in rewarding good men , and in punishing the disobedient , are winged and swift ; or ( as maimonides and others conjecture ) that god uses the most ready and expedite ministry of angels to execute all his commands . of this his prerogative royal ▪ he again made use , when he gave order , that the brazen serpent should be erected in the wilderness for the healing of the people bitten by fiery serpents ; and therefore tertullian ( de idololatria ) saith , extraordinario praecepto serpentis similitudinem induxit . that the fiery serpents by which the mutinous israelites were bitten , were ex genere chersydrorum , a kind of water serpents , grown more venenous by heat and thirst , and so truly seraphim , i. e. ardentes , and exurentes ; and that they were not bred in the place call'd phunon , where the brazen serpent was erected , but brought thither vi quadam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by divine power , to punish the contumacious people ; hath been amply proved by the many-tongued bochartus , ( in hierozoici parte posteriori . l. 3. c. 13. ) to whom we owe all the knowledge we have acquired of the various kinds of animals mentioned in the holy bible . as for solomon's adding the images of oxen and lions , to the brazen laver ; either he did it by secret intimation or suggestion from god ; or ( as iosephus judges , and other learned iews ) it was his first step toward the idolatry to which after he arrived . when we said that graven images of animals were by this law forbidden , we comprehend also images of the caelestial luminaries , because they too have their motions ; not animal indeed , but regular and periodick . for , that not the coelestial orbs , but the stars and planets are moved in caelo liquido , in the aethereal spaces or firmament ; is the most ancient opinion of the hebrews , as the gemara teaches at the beginning of genesis , saying , orbes fixi , sed sidera mobilia . and they expressed in figure , either the form of some single planet , as of the sun , moon , saturn , ( call'd the star of your god remphan , or rephan , in act. 7. 43 , ) lucifer , jupiter , &c. or some whole constellation made up of many stars , and by men fancied to resemble a man , or brute animal , or serpent , or other living creature . wherefore images of this kind also fall under the interdiction of this law. it appears nevertheless , that the images and figures here interdicted , are in the number of things in their own nature neither good nor evil , but indifferent , and consequently not unlawful ; and which are prohibited only for caution of some evil that may arise from the abuse of them . and that very many things interdicted in the mosaic law , are indeed by their own nature , or per se [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] indifferent ; but directly opposed by god to the institutes of the aegyptians , phoenicians , arabians , to the end that the hebrews might be kept the more remote from polytheism or the worship of many gods ; is prudently observ'd by maimonides . but besides this caution , there is another excellent use of this interdict of images , viz. to admonish men that god is most remote from our sight and other senses . the invisible god is not to be worshiped by images , symbols or representations . ye saw not , saith moses , any similitude in the day wherein the lord spake unto you in horeb out of the midst of the fire , lest perhaps being deceived ye might make to your selves any graven image . and seneca ( nat. quaest. 8. 30. ) could say of god ; effugit oculos , cogitatione visendus est . also antiphanes the philosopher ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. god is not seen by eyes , he is like to no man ; whence no man can know him by an effigies . and that this was the reason of this law , is intimated both by philo , when ( de-legatione ) he said ; eum qui inaspicuus est , in simulacro aut fictili opere ostendere , nefas : and by diodorus siculus , when he said of moses , imaginem statuit nullam , quòd non crederet deum homini esse similem : and by tacitus , iudaei mente solâ unumque numen intelligunt . prophanos qui deûm imagines mortalibus materiis in speciem hominum effingunt . for the same reason halicarnensis and plutarch affirm , that numa caus'd all images to be remov'd out of the roman roman temples ; quod non sanctum ratus , assimulare meliora pejoribus , neque ad deum accedi aliter posse quàm cogitatu . and varro hath left upon record , that the romans for more than one hundred and seventy years from the building of their city , worshipped the gods sine simulacro : adding , that if that wise custom had been continued , to his days , the gods would have been observed more religiously ; and alledging the example of the jewish nation to attest that his sentence ; and at length concluding , that they who first set up images of gods for the people , took away fear from their cities , and put error in the place of it . what therefore shall we say of pictures or forms of animals made in flats , or cut in hollows ; are they also by this precept forbidden , or not ? certainly this place cannot be interpreted to condemn them . that not all pictures were prohibited , may with good reason , and assurance too , be inferr'd from the ensigns of the hebrews bearing a man , a lyon , a bull , an eagle , &c. some pictures are indeed forbidden , but in other places ; namely all those which idolaters used in their superstitious and detestable worship . levit. 26. 1. to which may be adjoyn'd the figures cut or engraven upon metals , and believ'd to be of power , after their consecration with certain magical words and ceremonies , to defend men and cities from invasion of enemies , scorpions , lyons , serpents , and other hurtful animals , commemorated copiously by maimonides ( ductor dubitant . part . 3. cap. 37. ) which opinion the graecians following , call'd such magical figures [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] perfect works : whence comes the corrupt word of the arabians talisman signifying the same thing . others call them ( as we have before hinted ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , principles , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , traditions of elements . of these frequent examples occur in the constantinopolitan history , in the posthume works of scaliger , in gaffarel , and in our mr. gregories opuscula . that we may come now to the christians ; they have believ'd themselves to be oblig'd , neither by other laws of the hebrews indeterminately , nor by that of having no graven images of living creatures . for such images and statues both of emperors and of private men renowned for learning and wisdom , have been in most cities extant among them , and are so at this day , without danger of idolatry ; and therefore without offence . and as for figures painted or engraven ; since these were not without difference interdicted even to the hebrews , they have used them more freely , as the figure of a shepherd in a cup or chalice mention'd in tertullian assures us . nay , they abstain'd not from the figure of our saviour christ , after the emperors became christians : witness , these three ancient verses , written by prudentius : christus purpureum gemmanti textus in auro signabat labarum , clypeorum insignia christus scripserat , ardebat summis crux addita crist is . christs figure of bright gold on purple born , did the imperial standard long adorn : drawn upon shields , for arms his picture stood ; and on their crests was rais'd a cross of blood. the same excellent poet ( in passione cassiani ) hath transmitted to posterity , that in the monuments of martyrs was express'd in figures , the manner of their martyrdom , and what they had so gloriously suffer'd . long it was notwithstanding before pictures were admitted into churches , as appears from the eliberin canon , and from that so celebrated fact of epiphanius . longer before statues and prominent images were admitted , nor then without much dispute and opposition ; not because they were prohibited by the law , but only because they were thought to give occasion to error ; which reason was indeed , while paganism remain'd , of no little moment . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not adore them . so abundant was the goodness and favour of god towards the israelites , that not thinking it sufficient to provide for their defence against the false opinions , and impious customs of that age , for the time they were to live in the society of their own people ; he having a longer prospect , was pleas'd to superad cautions for those of their nation , who should in future times travel abroad and reside among strangers . for there , since they could not hinder the making , and superstitious use of graven images of animals or stars ; another preservative was requisite to prevent their infection by the contagion of some evil and absurd opinion and institute : and the most powerful antidote against all contagion of that kind , was to prohibit to them the imitation of all such gestures , by which that errour was nourished . the hebrew word here by the septuagint translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is sufficiently general ; signifying an act , not of the mind , but of the body , whether done by bowing down the head only , or by inclining the whole body , or by bending the knees , or by sitting upon the hams , or ( which is a sign of the greatest honour ) by falling prostrate upon the ground . and yet notwithstanding the greek interpreters had reason on their side , when they rendr'd it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , adorare , to adore . for , as among the peoples of the east , veneration was shewn by various forms of bending the body ; so among the greeks , and some other nations , veneration was generally signified by putting the hand to the mouth ; which properly is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 [ in utero fero , & suavior ] whence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is , osculor , i kiss . nor doth the latine word adorare own any other signification , being in truth deriv'd , not from orare , to pray or entreat , but ab ore quod manus admoveatur ori , from putting the hand to the mouth , or kissing the hand . which was not unknown to st. jerom , who ( in apologia contra ruffinum ) saith , qui adorant , solent de osculari manum : nor to apuleius , who interprets adoratio , adveneratio , to be , a putting the hand to the mouth , or kissing the hand , in token of singular honour and veneration . what in an old epigram is , ingressus scenam populum saltator adorat ; is the same with that in phaedrus , jactat basia tibicen . how ancient this manner of veneration is , may be learned from that expression of iob ( 31. 26 ) if my mouth hath kissed my hand , i. e. if i have offended by extraneous worship . but what hath hap'ned to many other words , that they remain not in the sense of their original ; nay that in process of time , and by long use , the adoptive sense comes at length to prevail over the genuine ; the same hath been the fate of this greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it began to be used for any gesture whatever testifying reverence . and therefore what the interpreter of st. matthew ( 8. 2. ) calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , adorare ; the same in st. luke ( 5. 12. ) is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to fall upon the face ; and in st. mark ( 5. 22. ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to fall at the feet . sometimes for perspicuity of the sense , one is explicated by the other added , as in st. matt. ( 2. 11. ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , falling down they worshipped : and ( act. 10. 25. ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , falling upon his face he shall worship god. hence it came , that an external thing being referr'd to an internal , that word is sometimes , though not often indeed , to signifie an act of the mind also , as the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sacrifice ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , oblation ; and many other made by time ambiguous . but in this place doubtless is signified , every act whereby honour is wont to be demonstrated to superiours . for as the hebrews are in exod. ( 23. 13. ) forbidden to use the names of false gods , though in common talk : so here they are forbid to give any sign of honour to images , quocunque tandem animo id fieret , as moses de cotzi ( praecepto vetante 19. ) prudently noteth . but that by this interdict of bowing the body to , or before images , strangers-born , how pious soever , are of right obliged ; the hebrews themselves deny , alledging the example of naaman the syrian . nor did the ancient christians believe themselves to be thereby obliged indistinctly , but only so far as there was in the testimony of honour exhibited before an image , a veneration of a false god , which is , per se & omni modo evil : which may be understood from the forecited place in job , from that in the acts ( 10. 25. ) and from the well known history of nazianzen . but in places of prayer , whether it were lawful to bow their bodies , in sign of honour , before the images of christ , or of saints , which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. a sign of love and reverence towards men eminent and honourable for sanctimony ; was a question long disputed and not without seditions in the east . to germany and france , this seem'd not to be free from evil , or an appearance at least of evil : as appears from the synods of francfurt , and paris , which were held in the times of charles the great and his children . but yet it is to be remark'd , that in those synods the greeks were more harshly treated , because the western bishops interpreted the sentence of the greeks express'd in the second nicen synod , in a harder or more rigid sense , than it was intended , or than the words could well bear : being deceiv'd by the acts of that nicen synod , translated into latine so unfaithfully , as that sometimes they exhibited a sense contrary to the greek ; which may be observ'd , as in other places , so chiefly in those things which constantine bishop of constantia in cyprus had spoken about images . the errours of which translation , so far as they concern this question , have been particularly detected , and by comparing the latine with the greek copy corrected by the incomparable hugo grotius ( ad exod. cap. 20. ) of whom i borrow'd much , and the best of what is here said . but to end this digression ; that there was somewhat of danger in this honour exhibited to the images of saints ; st. augustin in his time observ'd , when speaking of the christians , he saith , novi multos esse sepulchrorum & picturarum adoratores . at this day the greeks prefer pictures to images , as thinking that in those is less of danger . the armenians abstain'd from both . and as for the habessines , the most learned iobus ludolfus ( hist. ethiopic . lib. 3. cap. 5. num . 82. ) speaking of the singular honour and veneration they have for the blessed virgin mother , saith , eam tanto prosequuntur affectu , ut parum illis videatur , quidquid ecclesia romana in ejus honorem excogitavit : tantùm nullas ei statuas erigunt , picturis contenti . so that being in all things true iacobites , they follow the example of the greeks , who judged pictures of saints more innocent than images . of the muscovites , who yet boast themselves to be the only true christians in the world , since they only are baptized , whereas others are but sprinkled ; olearius assures us , that they universally give their saints and their images the honour due to god alone ; and that the vulgar among them place all religion in the honours and veneration they exhibit to images , teaching their children to stand with profound respect , and to say their prayers before those images for which the parents have most devotion . herein therefore they have degenerated from the greek christians , from whom they pre●end to have deriv'd their faith , doctrin , and sacred rites . ' 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , nor worship them . if by this law god permitted not the honour that was wont to be given to eminent men , to be exhibited , i do not now say to , but before images , or in places where they stood ; he thought it more unfit for his people to be permitted to do before images any of those things , which the custom of nations had made proper to the honour of a divine numen , whether true , or only believ'd to be such . here the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is indeed of ample signification , but when spoken with relation to any thing , is wont to be , by the greeks translated as well by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to serve , as by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to obey ; and sometimes also by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to minister unto . but because , when the same is used of things divine , the same interpreters render the sense of it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thence sprung up that difference , with the latine christians , more than the greek use . otherwise , if propriety be consider'd , there is no more in the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , than in the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; as appears from psal. 2. 11. compared with 1 thess. 1. 9. in both which places , what is meant by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is the same that in heb , 9. 4. is meant by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but where the writer treats of things divine whether truly such , or only thought to be such ; there the hebrew word here used , is wont to signifie particularly those things , which by receiv'd custom through all the east , and that which after was diffused through all graecia , and wider too , were used in divine worship , whether true or false ; namely , sacrifices , oblations , and incense . for these properly are the things , which whensoever they are used in honour of any but the true god , the hellenists or iews speaking greek , and as well the apostles themselves , as apostolic writers , following the hellenists , express by ' 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the worship or service of idols . and in this apostolic sense , idolatry is , as tertullian describes it , quicquid ultra humani honoris modum ad instar divinae sublimitatis attollitur . now both the rites of which we have just now spoken , and all bowing before images are prohibited to the hebrews , because the precept of throwing down and breaking images , in countries not within their jurisdiction or dominion had no place ; as the hebrew doctors rightly observe . with whom agrees that in the lx. canon of the eliberin council ; si quis idola fregerit , & ibidem fuerit occisus , quatenus in evangelio non scriptum est , neque invenitur sub apostolis unquam sactum , placuit in numero martyrum eum non recipi . of the same judgment was st. austin , who ( 2. contra literas petiliani ) saith , non enim auferenda idola de terra , quod tanto ante futurum praedictum est , posset quisquam jubere privatus : and the african synod under honorius and the younger theodosius , which petitions the emperours to take away the reliques of idols through all africa . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for i am the lord thy god , a jealous god. this clause belongeth , not only to this second precept ; but also , and principally to the first : to the second , so far as that is inservient to the first . by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is signified , the supream lord ; i who have soveraign right and empire over thee . the other , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies strong , mighty , potent ; appositely , because mention of revenge immediately follows in the next comma . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is properly impatient of a rival , as appears in the law concerning the jealous husband ( numb . 5. ) * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , visiting the iniquity of the fathers upon the children . the hebrew word here interpreted by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , reddens , or rendring , signifies visiting , as our translation rightly hath it ; and is usually taken in the sense of vindicating : and accordingly by the greeks very often expounded by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to revenge . but here is not treated of all sins , but of that sin in particular which is committed about false gods ; as appears from the antecedents and the consequents . this sin therefore , as committed against his divine majesty , god revenges , not only in those who have committed it , but also in their posterity ; namely , by delivering them up into miserable servitude : which he , by the right of his supreme dominion over all men , can do without any the least iniustice . to give authority to this explication , we bring that place in levit. ( 26. 39. ) and they that are left of you , shall pine away in their iniquities in your enemies lands ; and also in the iniquities of their fathers shall they pine away with them . we bring also the example of zion , ( lam. 5. 6. ) we have given the hand to the aegyptians , and to the assyrians , to be satisfied with bread . our fathers have sinned , and are not , and we have born their iniquities , &c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to the third and fourth generation . even to the grand-childrens grand-children . this is a proverbial speech ; used also by plato , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he transmits revenge to the fourth generation : and by the poets . et nati natorum , & qui nascentur ab illis . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of those that hate me . because properly the evil touches the posterity , the punishment the parents . st. chrysostom ( homilia 29. ad 9. genes . ) nulla poena plus adfert doloris , quàm si quis ex se natos sui causâ in malis esse videat . and tertullian : duritia populi ad talia remedia compulerat , ut vel posteritati suae prospicientes legi divinae obedirent . in sacred writ they are said to hate god ; particularly , who worship false gods : so that maimonides denies , that that kind of speech is found in any other sense . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and shewing mercy unto thousands . god spake in the plural number , not to a thousand , but to thousands ; shewing how much larger god is in doing good , and conferring benefits , than in punishing . this is what the hebrews mean when they say , that the angel michael [ the minister of god's wrath and vengeance ] flyes with but one wing ; gabriel [ the minister of his mercy , love , and blessing ] with two . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to those that love me . to those that worship me , and that are therefore call'd pious . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and keep my precepts . who are attent to observe all my commandments , but chiefly those which pertain to the exclusion and extinction of idolatry and all wicked superstitions : and who are therefore call'd righteous or iust. chap. iv. the third precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thou shalt not take the name of the lord thy god , &c. in the hebrew , thou shalt not bear or carry , namely in thy mouth ; which is the same with , thou shalt not take , viz. into thy mouth . here also is , of the lord ; because by that title the tremend majesty of god is best understood . we may en passant observe , that here the manner of speech is changed . for according to the way of speaking used in the former precepts , it should have been my name ; but to the hebrews this is frequent , to put a noun for a pronoun ; as in exod. 23. 18 , 19. genes . 2. 20. numb . 10. 29. and many other places , where the like translation from the first person to the third occurs . * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in vain , or ( as aquila ) rashly , or ( as philo ) to testifie a lye. but to omit all other interpretations of these words , we have the sense of them compendiously exprest in st. matthew ( 5. 33. ) thou shalt not forswear thy self : nor is it to be doubted , but our saviour christ in this place urged the very words of the law , where the syrian hath put words that signifie , thou shalt not lye in thy oath or swearing . only this is to be accurately noted , that in this place is treated , not of an oath taken for testimony , of which the ninth precept was particularly given ; but of an oath promissory , which the words following immediately in the same verse of st. matthew sufficiently declare , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt perform unto the lord thy oaths ; ( taken most certainly from numb . 30. 2. ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to forswear , taken in its proper sense , is ( as hath been critically observ'd by chrysippus ) to make void what thou hast sworn , or not to stand to what thou hast by oath promised . the weight or hainousness of this execrable crime , philo wisely sheweth , where he saith ; that he who commits it , doth either not believe , that god takes care of humane affairs ( which is an abnegation of gods providence , and the fountain of all injustice , ) or if he doth believe that , he makes god less than any honest man , whom none that designs to assert a lye , would dare to call in for a witness of what he knows to be false . abenesdras adds , that in other sins somewhat of commodity , profit , or pleasure is lookt upon , whereby men may be tempted and carryed away ; but in this oftentimes there is not the least commodity or emolument : that other crimes cannot always be committed , this always . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for the lord will not hold him guiltless that taketh the name of the lord his god in vain . here according to the greek custome , two negatives are put for one in the hebrew : and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies , to pass by one as innocent . so that the sense is , god will not leave him unpunished : which is a figure call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] an extenuation , such as is used in the gospel of st. matthew ( 12. 31. ) blasphemy against the holy ghost shall not be forgiven unto men ; that is , shall be severely punished ; and in many other places of scripture . and this sin is even by the light of nature so hainous and detestable , that the heathens themselves believ'd , that it was always severely punished by god. hesiod said , et juramentum , clades mortalibus unde adveniunt , quoties fallaci pectore jurant . dire miseries pursue those men , that dare , themselves with heart fallacious to forswear . in herodotus this oracle is related . at juramento quaedam est sine nomine proles , trunca manus & trunca pedes : tamen impete magno advenit , atque omnem vastat stirpemque domumque . from perjury a nameless issue springs with maimed hand and foot ; which yet still brings revenge with mighty force ; and doth at last , both the whole race and family devast . and the sweet-tongu'd tibullus could say ; ah miser ! et si quis primo perjuria celat , sera tamen tacitis poena venit pedibus . ah wretch ! though one his perjury conceal , vengeance with silent feet will on him steal . and he had reason ; for an oath is a religious affirmation , as cicero defines it : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a testimony of god upon a doubtful matter , as philo : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , an affirmation with an assumption of god for witness , as clement of alexandria : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the strongest seal of human faith , as dionysius halicarnensis : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the last and most certain pledge of faith , as procopius . wherefore the ancients , even wehre a specious excuse might be brought , held themselves religiously oblig'd to fulfill whatsoever they had by oath promised . concerning the sanction of an oath or vow , consult iudges 20. 1. 1 sam. 14. 24 , 26 , 27. ioshua 19. 15. psal. 21. 2 , 6 , 7 , 8. now the reason why god threatens to send from himself dire punishments upon those who either worship false gods , or violate his most holy name by perjury , seems to be this ; to let them know , that though men may perhaps be ignorant of , or neglect to vindicate these crimes , yet they shall never escape the certain hand of divine vengeance in the end ; which many times indeed is slow in lifting up , but always first or last strikes sure and home . chap. v. the fourth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , remember the sabbath day , &c. in deuteronomy 't is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] observe the sabbath day ; and in the hebrew is the like difference : in the latter place moses expounds what is meant by remember in the former , namely attend to the sabbath . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to sanctifie it ; viz. by a glad and grateful recordation of the worlds creation by god. for most true is the sentence of rabbi iudah barbesathel , and r. ephraim in keli iacar , that in these words one thing is commanded , and another in the following . the keeping holy of the sabbath day , hath for its true cause the creation of the world : the rest from labour , the egyptian servitude . that extends to all mankind : this to the hebrews only , exod. 31. 13. which is the judgment also of irenaeus ( lib. 4. c. 30. ) and of eusebius ( 1 histor. c. 4. ) and thus may we best explicate that of genesis 2. god blessed the seventh day and sanctified it ; which the hebrew masters will have to be spoken by [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] anticpation , as if moses should say , that this cessation of god from his work of creation was the cause , why after in the time of moses the celebration or sanctification of the seventh day was ordained . but the righter interpretation is that , which distinguishes the precept of keeping holy the sabbath , from the precept of resting from labour , as by the causes , so also by the times . and to this difference moses himself seems to have had respect , when in duternomy to these words , observe the sabbath day to sanctifie it , he adds , as the lord thy god hath commanded three ; namly long ago from the very beginning of the world , as grotius conceives ; or , as selden , from the time when the israelites were encamp'd in mara ( a part of the wilderness so call'd from the brackish bitterness of the waters ) where the observation of the sabbath was first instituted , about forty days before that institution was renew'd in the decalogue . for he refers the first word of this precept ( remember ) to the first sabbath there instituted . and true it is , that the first sabbath was celebrated by the israelites in their tenth mansion or encamping in alush , part of the desert of sin. they came from elim into the desert of sin upon the fifteenth day of the second month from their beginning to march . six days manna was gathered , and one the seventh the people sabbatized . so that the first observation of the sabbath fell upon the 22. day of the same month ; which being the second month from their exit out of egypt , was after named iiar ( for the names of the hebrew months were then unborn ) and that 22. day of this month answers to the 23. of may in the julian year . the seder olam makes this month hollow , i. e. of but twenty nine days ; not full , i. e. of thirty days . whence in computing the feriae or holy days of these months , there hath risen up a discrepancy of one day betwixt that chronicon , and the talmudist's . but that alternate distinction of months , as our most excellent chronologist sir iohn marsham ( in chronic. canon . pag ▪ 184. ) observes , doth not well agree with the antick chronology of the hebrews . how then shall we reconcile these two different opinions concerning the respect of the word remember , the one asserted by grotius , the other by selden ? by granting , that the precept de observando sabbato , in commemoration of the aegyptian servitude , was first given to the israelites in mara , and a little after renewed at the promulgation of the decalogue , as pertinent particularly and only to them ; and consequently that so far selden is in the right : but that the institution of the sabbath in grateful memory of the worlds creation by god , wherein all mankind were equally concern'd , was as ancient as the world it self , and extended to all nations universally ; and therefore grotius , who seems to have consider'd this general institution and the cause of it , is so far in the right too . for , that some knowledge and veneration of the sabbath was by tradition of highest antiquity derived to other nations beside the hebrews , and remain'd among them for some ages ; clemens alexandrinus ( stromat . l. 5. ) and eusebius ( in praepar . evang. ) have clearly shewn , as by other testimonies , so particularly by the verses of hesiod , where [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the seventh day is call'd holy. and in iosephus , philo , theophilus , and lucan , are places that manifestly attest the same long-liv'd tradition . and upon this account it was , that the primitive christians , who believ'd that by christ all things were reduced to the same state wherein they had been constituted from the beginning , piously celebrated the sabbath , and therein held their solemn assemblies , in which the law was publickly read and expounded , as appears from that of the acts 15. 21. which custom flourished until it was antiquated by the laodicen synod , which judged it more convenient and profitable to christians , that instead of the law , the gospels should be upon that day read to the people assembled . so sacred in those more pure and pious times was the memory of the sabbath originally instituted , that men might with glad and grateful hearts acknowledge and celebrate with praises the infinite wisdom , power , and goodness of god shewn in the creation of the universe ; that they equall'd the sanctity thereof to that of the lord's day consecrated to the perpetual remembrance of that greatest seal of our faith , and pledge of our hopes , the resurrection of our redeemer from the dead . hence balsamo most appositely said ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. by the holy fathers the sabbath days were held in all respects equal to the lords days . hence also gregorius nyssenus calls these two days brethren , as worthy of equal veneration and solemnity : and the ancient book of the constitutions of clement ( l. 7. c. 24. ) gives this in precept ; diem sabbatti & diem dominicam festas habete , quoniam illa creationis , altera resurrections memoriae dicata est . nor was it from any other cause , that by the most ancient church was introduced the custom of not fasting upon the sabbath , because it was a day of joy and gladness : as appears from the epistle of st. ignatius ad philippenses , where he saith , si quis aut dominicâ aut sabbato jejunet , excepto uno sabbato , is christum occidit . the same may be inferr'd from that memorable place in tertullian ( advers . marcionem ) meminerat enim & ille hoc privilegium donatum sabbato à primordio , quo dies ipse compertus est ; veniam jejunii dico . where we cannot but observe , that this custom is deduced from the beginning of the world. from the same reason it came , that constantine the emperor , permitting to christians the free use of their worship , at the same time forbad their being compell'd to appear before any tribunal or court of judicature upon the sabbath , no less than upon the lords day : which edict is yet extant in eusebius . these things being known are sufficient to refute those who think that [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the lord's day was surrogated into the place of the sabbath ; of which mention is no where made by christ , no where by any of the apostles . and st. paul , when ( colossi . 2. 16 ) he saith , that the christians are not to be condemned for their sabbaths and new moons ; sheweth plainly , that they are free from that law of resting from labour , which liberty would signifie nothing , if , the law remaining , the day were changed . that the christians therefore appointed and held their assemblies upon that day , wherein their lord had risen from the dead ; was not from any precept either of god , or of the apostles , but they did it by vertue of the liberty granted to them , and by voluntary consent among themselves . and to violate such consent , after it hath passed into a custom , is not the part of men living in society . but this custom obliged not to rest from labour , farther than was necessary to the holding their assemblies . having thus briefly shewn the difference betwixt the precept instituting a sabbath in memory of the creation , which was from the beginning given to adam and his whole posterity ; and the precept given particularly to the hebrews , both in marah , and soon after at the promulgation of the decalogue , whereby they were obliged to celebrate the sabbath , by resting from dayly labours , in remembrance of their redemption from the aegyptian servitude ; and assigned to each its proper cause and time : it will not perhaps be impertinent , if we subjoin a line or two concerning the word sabbata here used in the plural number . this word among the greeks is listed in the catalogue of those , which tho' pronounced in the number of multitude , are yet notwithstanding often contented with the signification of unity . and so is it often found in the greek pentateuch ; so also in mat. 12. 1 , 5 , 10 , 11 , 12. and c. 28. 1. in mark 1. 21. and 2. 23 , 24. in luke 4. 16. on the contrary st. iohn every where speaks it in the singular , as do also the greek interpreters of the other books extra pentateuchum . the latines often exprest it , as here , in the plural . so horace , sunt h●die tricesima sabbata ; and iuvenal , quidam sortiti metuentem sabbata patrem . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , six days shalt thou work , and do all thy works . here now begins that constitution which is not common to all mankind , but proper to the hebrews . and what is here spoken in the imperative , and in the future , which is often taken from the imperative hath not the force of a command , but the sense only of suffering or permitting . for lest the modes might be too much multiplyed , it hath seem'd good to almost all nations to express the sense of permitting , as also of praying , with the same sound , with which they express the sense of commanding : as , for example , sequere italian ventis , in virgil ; and ubi nos laverimus , si voles , lavato , in terence ; and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vre haec cremaque membra , in an old greek tragedy . by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here are signified all sorts of work , by cicero ( de ligibus l. 2. ) call'd famula opera ; ferii jurgia amovento , eaque in famulis operibus patratis habento : and by tertullian , humana opera quotidiana , whatsoever men commonly do in their ordinary vocations or daily business . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; but on the seventh day is the sabbath of the lord thy god. the seventh day is dedicated to god from the beginning . and wisely do maimonides and other hebrew masters distinguish the cause why rest or quiet was commanded , from the cause why it was commanded upon this day . the former cause is exprest in deuteronomy plainly to be , because the israelites lately freed from the aegyptian slavery by divine help , ought to remember and consider how hard and grievous servitude is , and therefore to treat their servants and others subject to their command with humanity and clemency ; as dido in virgil , non ignara mali miseries succurrere disco . the latter is declar'd in this place , where it is signifi'd , that when any day might have been taken for rest or vacation for labour , this was chosen by god , because from the beginning it had been dedicated to joy , and the grateful commemoration of the worlds creation by him ; and because upon the same day god had finish'd all things , and ceas'd from creating , whence the seventh day deriv'd the name sabbath . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not do every work therein . god by many words inculcates this precept concerning the sabbath , that by the perpetual observation thereof might be impressed upon the minds of all , a firm knowledge that this world was not from eternity , but made by god , which is a strong inducement to the veneration of the omnipotent creator , as on the contrary , the belief of the worlds eternity , is the way to impiety and down-right atheism . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; thy son and thy daughter . he understands those , who by reason of their minority have not yet attain'd to knowledge of the law ; whom their parents ought to restrain from working upon the sabbath . for they that are of more advanced age and understanding , are by the law bound for themselves ; as likewise in the law of circumcision . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; thy man-servant and thy maid-servant . this is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] a kind and courteous way of speaking , much used by the greeks to their servants , and in imitation of them by the latins , who with like softness and humanity call'd their men-servants , pueros , as hath been of old noted by servius upon that of virgil , claudite jam rivos pueri . hence the names of ancient men-servants , marcipor , quintipor , &c. so epicurus call'd his servants friends , as seneca ( epist. 107. ) observes , who in imitation of him , saith of them ( epist. 47. ) servi sunt ? imò homines . servi sunt ? imo contubernales . servi sunt ? imò humiles amici . servi sunt ? imò conservi , si cogitaveris tantundem in utrosque licere fortunae . than which he could have said nothing more becoming his great prudence and erudition . hence also were masters call'd patres-familias , and mistrisses matres-familias , that by the very name they might be admonished of humanity . and this precept obligeth masters , not only not to injoyn labours to their servants of either sex , but not to suffer them to work upon the sabbath . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; thy ox , and thy ass , and every beast of thine . observable here is the great clemency of god , who by this law requires some goodness and mercy to be exercised even to brute animals , that he might remove men the farther from cruelty toward each other : and to confirm this mild precept , the like is given in deuteron . 5. 4. the same reason is urged by porphyry [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of abstinence from eating of the flesh of animals . hence also was the slaughter of a plowing ox prohibited by a law common to the phrygians , cyprians , atticks , peloponesians , and romans , as we find recorded by varro , pliny , columella , porphyry , aelian , vegetius and others . the athenians made a decree , that a mule should be fed at the publick cost , which worn out by labour and age , used to accompany other mules drawing burdens : and banished a boy for putting out the eyes of little birds , taking it for a sign of a mischievous and cruel disposition in him . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are , besides oxen , asses , and mules , which also were used to the yoke . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , beasts , as well dogs as other quadrupeds . but these words are by the greek interpreters translated hither from deuteron . 5. for in the hebrew is found only one general name , signifying all mute animals whatsoever : which the greeks render sometimes by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , beasts ; sometimes by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , four-footed living creatures , and sometimes ( from the sense of the place ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , wild beasts . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : and the stranger that is within thy gates . of proselytes there are ( as we have often hinted in the former part of this disquisition ) two sorts ; some , who subjected themselves to the whole mosaic law , that they might be participant of the right of marriages and honours among the holy people : others , who though of forreign blood , were notwithstanding permitted to dwell among the hebrews , so long as they worshipped one god , and observ'd the perpetual and common laws of all nations , together with the additional laws interdicting incestuous copulation , and eating of blood ; of both which we have spoken profess'dly in the precepts of the sons of noah . now it is of this latter kind of proselytes ( as abenesdras noteth ) that the precept here speaks , such as had not admitted the seal of circumcision , and whom st. luke ( act. 17. 4. ) rightly enough calls [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] devout greeks , because the hebrews used to call all gentiles greeks . * here it may be inquir'd , why such a stranger or proselyte , though not oblig'd by other laws of moses , as appears from deuter. ( 4. 2. ) was yet bound to keep this of resting from labours upon the sabbath . the reason is this ; if while the hebrews rested , strangers had been permitted promiscuously to work and dispatch their businesses ; they would have diverted the stream of gain and profit from the natives ; which was repugnant to justice and equity . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is to the latines incola , a sojourner , one that fixeth his seat in a soil not native to him . thus in the gospel of st. luke ( 24. 18. ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou art a peregrine or stranger . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for in six days the lord made heaven , and earth , and the sea , and all things that are in them . a brief description of the universe , as in acts. 4. 24. at first the earth was rude and without form , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , mud , to the phaenicians , intermixt and overwhelm'd with waters , which is call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the abyss or bottomless gulph . of these god made the earth dry land , gather'd together the seas , and distinguish'd the air into two parts , the superior or aetherial , wherein he placed the stars ; and the inferiour , which surrounds the terraqueous globe : then to this lower air , to the earth , and to the waters he added their proper animals ; and particularly to the earth he affix'd herbs , trees , &c. and in fine , he made man : and all in six days , though he could have made them in one moment , that he might by his example , teach men to act with counsel and deliberation , and [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] to hasten slowly . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and he rested upon the seventh day . the sense is taken from genes . 2. 2. by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , requievit , is signified , not that god was weary with working , whereof the divine nature is incapable ; but that he ceas'd from creating , or put an end to all his works : converting himself to the survey and contemplation of the most beautiful world he had newly rais'd and made out of nothing ; as philo excellently observes . from gods example the hebrews also were commanded to devote this day to pious contemplation , and the learning and commemorating sacred things . of which pious custom there remains an ancient testimony in 2 kings , 4. 23. and the number seven was call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , more anciently 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , worshipping . * concerning this seventh day , by philo ( lib. de vita mosis ) call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the worlds birth day , various are the opinions of the iewish masters . some think that the septenary period of days was first instituted by adam , and began from the six days of the creation . others affirm , that seth found out the way of computing the flux of time by weeks , months , and years . but however disputable this question be , highly probable it is , that philo hit the white of truth , when he observ'd , that the true seventh or sabbatical day came first to be known to the hebrews from the miraculous cessation of manna to rain upon that day : whence 't was easie for them to understand , what day in the weekly circle of seven days ought to be reckon'd the seventh from the creation , which was altogether unknown to them before . the same most learned and wise iew , treating [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of the making of the world , and of the number seven , saith , that this number hath been held of singular honour by the more illustrious of the greeks and barbarians ; who were versed in mathematick studies . and certainly the aegyptians were the most ancient masters of the mathematicks , by whom , both pythagoras and plato being taught , have very subtilly philosophiz'd concerning the power and dignity of the septenary number in general , which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this number ( saith a. gellius from old varro ) makes in heaven the septentriones or charle's wain , and lesser constellation of the same name ; also the pleiades , and the seven planets . nor doth the zodiac want characters of that noble number . for in the seventh sign is made the solstice from winter , or the shortest day in the year , and again , from the summer solstice in the seventh sign is made the winter solstice . both equinoxes are confin'd to a seventh sign . whence in the sacred rites of osiris , a little before the winter solstice , plutarch tells us ( in iside . pag. 372. ) the aegyptians used to lead a cow seven times about the temple , because the course of the sun from solstice to solstice is finish'd in the seventh month. and they affirm , that all the great dangers of the life and fortunes of men , which the chaldeans call climactericks , happen in septenaries : of which abstruse argument clemens alexandrinus ( stromat . l. 6. pag. 685. ) and macrobius ( in somn. scipionis ) have written copiously , and with no less assurance , than if they had certainly known that there are such climacterical mutations of human life . in sacred things also , in purifications , invocations , and other religious rites , the septenary number hath been esteem'd of singular vertue and solemn observation . whence apuleius describing the manner and ceremonies of his preparation for the worship of isis ( metamorphos . l. 9. initio ) saith , me , purificandi studio , marino lavacro trado , septies submerso fluctibus capite ; quòd eum numerum praecipuè religioni aptissimum divinus ille pythagoras prodidit . and virgil ( aeneid . 6. vers . 645. ) testifies that invocations also were to be seven times repeated . — longâ cum veste sacerdos obloquitur numeris septem discrimina vocum . of the septenary number of days , they observe , that the monthly course of the moon is performed in four times seven , i. e. in twenty eight days ; that the birth of infants depends very much upon the power of this number : and they observe the first seven days , the fourth week , and the seventh ; as a. gellius . and from the scholiast upon aristophanes we learn ( in plut. p. 107. ) that by the athenians some certain days of every month , besides other feasts or holy-days , were consecrated to some gods particularly ; as the new-moon , and the seventh to apollo , the fourth to mercury , the eighth to theseus . the same was long before taught by hesiod in this distich : primùm prima , quarta , & septima dies sacra est : hâc enim apollinem auri-ensem genuit latona . in the mosaic rites also the septenary number is solemnly respected . in the consecration of the altar , oyl is seven times sprinkled upon it : in seven days the consecration of priests is consummated : in the expiation of sin committed through ignorance , the blood of the bullock is sprinkled by the priest seven times before the mercy-seat ( levit. 16. 15. ) a woman that hath brough forth a male child , is unclean seven days : she that hath brought forth a female , is unclean twice seven . a man unclean by touching a dead corpse , is expiated upon the seventh day . in the purification of a leprous man , seven aspersions , and seven days are ordain'd : and accordingly naaman wash'd himself seven times in iordan . iob offer'd for his friends seven bulls , and as many rams . balaam built seven altars , and prepared seven bullocks , and seven rams . seven priests sounding trumpets went seven times round about iericho , and on the seventh day the walls thereof fell down . just so many priests sounded with trumpets before the ark , and an equal number of bulls and rams were offer'd in sacrifice . ezechias also offer'd seven bulls , seven rams , seven lambs , and seven hee-goats ( 2 chron. 29. 21. ) in ezechiel ( 39. 9. ) arms and weapons are commanded to be burnt with fire seven years : and the land purged in seven months ; and ( chapt. 43. 25. ) the altar is in seven days expiated . daniel numbers the times by hebdomadas . in the apocalyps , the book is seal'd with seven seals , the lamb hath seven horns , seven eyes , which are the seven spirits of god ; and to the seven angels are given seven trumpets , and seven phials . in a word , in mysteries this number as the most perfect ; hath always been preferr'd to all other . but the most celebrated , and to our present enquiry the most pertinent , is the septenary cycle or round of days , or the seventh day in the weekly periods of days perpetually recurrent ; such as is the sabbath of the iews . the aegyptians , the most ancient computers of times , are reported by authors of good credit , to have deriv'd the weekly circle of days from the number of the planets , and to have propagated that account of time , together with their astrological discipline . for herodotus recounting the noble inventions of that mighty nation , saith ( in lib. 2. c. 82. ) alia etiam ab egyptiis inventa sunt : quis mensis , & quis dies cujusque sit deorum : & quo quis die genitus , qualia sortietur , & quam mortem obiet , & qualis existet . quibus rebus usi sunt ii qui è graecis in poesi versabantur . where dies deorum are the days of the week , denominate from the vii planets : for in the genethliac art of the egyptians , they obtain the name of gods , and every planet hath his peculiar holy-day assign'd to him : and therefore dio cassius the greek historian ( lib. 36. pag. 37. ) said truly , quòd verò dies assignantur septem planetis , id certè inventum est egyptiorum . but in the denomination of the seven days , they have not observed the order of the planets , that is in the series of the coelestial orbs. whereof various writers have excogitated various causes . of all these , the reason given by our venerable bede seems to be the most simple , and therefore the best . the gentiles ( saith he , de tempor . ratione cap. 6. ) though that they by good right consecrated the first day to the sun , because it is the greatest luminary ; the second to the moon , because it is the second luminary . then by an ordinate alternation , they made the first planet from the sun , mars , president of the third day , the first from the moon , mercury , lord of the fourth ; the second from the sun , iupiter , ruler of the fifth ; the second from the moon , venus , lady of the sixth ; and the third from the sun , saturn , governour of the seventh . now because this saturn was by astrologers imagined to be a sad , ill-natur'd , and malignant planet ; therefore the seventh day , in which he ruled , hath been accounted a black and unlucky day ( forsooth ) and unfit for business and the performing of any work , and so set apart for leisure and rest . nor have orpheus and hesiod doubted to propagate this precarious and superstitious doctrine . to which tacitus , writing of the jews , seems to have respect in these lines : septimo die otium placuisse ferunt ; quia is finem laborum tulerit . alii honorem eum saturno haberi ; seu quòd è septem sideribus ( queis mortales reguntur ) altissimo orbe , & praecipuâ potentiâ , stella saturni feratur ; ac pleraque coelestium vim suam & cursum per septenos numeros conficiant . but whatever was the reason that induced the egyptians to assign the seventh day to saturn , we have none to doubt but that this planetary denomination of the days , though not received into use by the grecians till many ages after , is originally of remotest antiquity , equal to that of astrology it self , and to the age of mercury the first , who taught the egyptians the art of computing the year and times . for beside the auctority of herodotus and dio cassius above-cited , we have that of plato also ; who ( in phaedro ) introduces socrates speaking of the egyptian theuth , i. e. mercury ; these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that is , that he first invented numbers and computation , and geometry and astronomy , and the games of cockle-blanck and dice . nor are there wanting some of the rabbins themselves , who have granted that this denomination of the days was in use among the gentiles before the decalogue was given . and chaeremon in porphyry ( de abstinentia ) affirms , that the egyptian priests , in their purifications observ'd the seventh days . we may therefore acquiesce in this persuasion , that the weekly cycle of days was taken from mathematick discipline , and from the most secret treasury of egyptian antiquity : but that the sacred observation of every seventh day , and the feast of the hebdomadical sabbath , constituted by this mosaic law , in memory of the egyptian servitude , was now first receiv'd into the religion of the hebrews ; as also that this their sabbath was by the miracle of manna ceasing to rain down upon that day , fixt upon the true seventh day from the creation , which god had from the beginning sanctified . nor is it to be doubted but that this precept of keeping holy the sabbath day , was peculiar to the israelites . for god himself was pleased to say ( exod. 31. 13. ) it is a sign betwixt me and you in your generations ; that ye may know that i am the lord who sanctifie you . ye shall therefore keep the sabbath ; for to you it is holy . nor will the masters allow it to have pertained to the gentiles . some exempt even proselytes of the house from the obligation of this precept ; but how that exemption can be brought to consist with those words of the law [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] and the stranger that is within thy gates , i see not . chap. vi. the fifth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. honour thy father and thy mother , &c. that this precept ( among those that are as it were imprinted upon the mind of man by nature , and legible by the light of right reason , not the least ) was first given to the israelites in marah ; we have the authority of the babylonian gemara , where ( in titulo sanhedrin . cap. 7. sect . 5. ) we read ; decem praecepta acceperunt israelitae , in mara : septem quae noachidarum fuere ; jam vero adjecta sunt iudicia , sabbatum , & parentum honos . that it obtain'd among the egyptians also , and was by them placed next after the precept of divine worship ; is evident from the funeral apology used among them , wherein the libitinarius personating the defunct , saith , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , i have ever honour'd those who begat my body . and that the same was taught also in the school of pythagoras , who learned all his doctrines from the egyptian priests ; is equally manifest from the golden verses , where immediately after the precept of worshipping the godsfollows , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and honour thy parents . but long before the days of pythagoras was this law placed in the temple of ceres eleusinia , if we may confide in the testimony of porphyry , who ( from hermippus ) in de abstinentia , p. 1. and 399. saith , as st. ierom hath translated the place ( iovinian . l. 2. p. 528. xenocrates philosophus de triptolemi legibus apud athenienses tria tantum praecepta in templo eleusinae residere scribit : honorandos parentes , venerandos deos , carnibus non vescendum . and socrates in xenophon . ( memorabil . l. 2. p. 743. ) saith , civitas ingratitudinis alterius rotionem non habet , neque datur actio in eam : verùm si quis parentes non honorârit , & actio adversùs eum scribitur , & magistratum capessere non permittitur . for , in the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] inquisition made into the manners and life of those who were to be admitted to magistracy , they were interrogated first , if they were descended for three generations at least on both sides from athenian citizens ? and secondly , if they had duely honor'd their parents ? because he that is impious toward his parents , cannot be judged pious toward his country . nor toward god neither , saith menander in this distick , qui patrem incilat , voce maledicit patri : at in hoc se parat at ipsi maledicat deo. to return to the egyptians ; doubtless the sons among them shew'd all signs of filial respect and honour to their fathers while they lived , since they piously venerated them even after their decease , and paid a kind of religious reverence to their dead bodies , to that end preserv'd by precious embalmments ; as if death could not cancel their bonds of gratitude , nor fate extinguish their sentiments of natural piety . whence that honourable testimony given of them by the prince of antiquaries , diodorus the sicilian ( lib. 1. pag. 58. ) sanctissimè receptum est inter egyptios , ut appareant parentes aut majores , ad eternam habitationem translatos , impensius honorasse . whereto he adds , that it was lawful for them , in case of necessity to pawn the dead bodies of their parents : but those who redeem'd them not , were punish'd with highest infamy and contempt during life , and after death with privation of sepulture . nor were the egyptians the only nation that taught and urged obedience and honor to parents , from the dictates of nature . for the grave plutarch ( de philadelphia ) saith , omnes dicunt atque canunt , primum ac praecipuum honorem post deos , parentibus destinasse & naturam , & naturae legem . nor is there is the whole world any people so barbarous and savage , but by mere natural instinct they understand , that honour and reverence are due to parents . wisely therefore did philo iudaeus account this precept now confirmed at the promulgation of the decalogue , the last of the first table , and placed in confinio utriusque his reason this ; natura parentum videtur esse confinium immortalis & mortalis essentiae . immortal , because a father by begetting resembles god the genitor of all things : and in the violation of it he puts the highest inhumanity , most detestable to god and man ; feritatis primas ferunt , qui parentes negligunt . and in truth this law is the cement of human society . for he that loves and reveres his parents , will requite their care with good education of his children , love his brethren and sisters as branches of the same stock with himself , cherish and assist all his kindred as descendent from the same progenitors : whence flows that whole series of consanguinity and natural relation ; and whence was the most ancient original of nations , cities , and towns , when tribes and numerous families conjoyn'd themselves into societies under the government of their heads . after this , when men conven'd from many places , they began by common consent to constitute kings and governours , by the example of parents , to whom the ancients therefore gave the most proper and obliging name of fathers . for which reason in the roman laws , and in those of other nations , the crime of majesty , which we call high treason , is put before all other crimes , as most pernicious to the peace and safety of the common-wealth : and for the same reason is this precept of honouring parents put before the rest that respect human society . here god hath been pleased to name ( and certainly as he is the author of nature , and maker of all children in the mothers womb , so is he the most equal judge ) the mother as well as the father . whereas the laws of this kind made by men , provide almost for fathers only ; as the persian law commemorated by aristotle , and the roman described in the digests and institutions , mentioned first by epictetus , then by simplicius , and philo ( de legatione ) and though ( in collisu ) the right of the father be the better , by reason of the prevalency of his sex , for which god gave the husband dominion over the wife : yet certainly obedience and reverence , which are here signified by the word honour , are from children due to both . in the same word is comprehended also the duty of thankfulness and a grateful requital , as much as in children lyeth ; for indeed a full requital can never be made to parents for the great blessing of existence and life given by them to children ; as both aristotle and philo have observ'd : quomodo enim ab aliquibus genitus eos vicissim generare possit ? and as god was pleased , for mans imitation , to impress upon mute animals visible characters of almost all virtues , of justice , clemency , chastity , fidelity , friendship , &c. not of all in all , but of each in particular species : so hath he given for an example of filial love and piety , to men the storks which sustain and nourish their parents , when they are grown old and weak . for this also is comprehended in the first word of this precept [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] honour , which in its chief sense signifies to nourish , as appears from the 1 timothy 5. 3. honour widows that are widows indeed , i. e. relieve their wants , and contribute to their maintenance . and so the hebrews interpret that text in numbers 22. 17. i will promote thee unto very great honour . so cicero ( officior . 1. ) treating of duties to kindred and near relations , saith , necessaria praesidia vitae debentur his maxime . and hierocles , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : i. e. we shall highly honour parents , if we most readily serve them with the ministry of our body , and the help of mony . here i cannot but take notice of a strange distinction made betwixt sons and daughters , by the egyptians in their law of nourishing parents labouring of old age or poverty , and recorded by herodotus ( l. 2. 35. ) nulla est necessitas filiis alendi parentes , nolentibus : sed filiabus summa , etiamsi nolint . sons are under no necessity to feed and sustain their parents , against their own will : but daughters are most strictly bound to nourish them , though against their will. an odd law this , to impose the burden upon the weaker sex , and exempt the stronger ; and the more admirable to me , because no reason is added to it by herodotus , nor can i fix my conjecture upon any that is probable . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that it may be well with thee . this is here added out of deuteronomy , for explication sake ; or perhaps ascribed on the margin from that place in epist. to the ephesians , 6. 1. 3. many such additional clauses being found in the scripture . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that thou mayst live long . here abenesdras noteth , that god is wont , when he forbids any thing , to annex the penalty ; where he commands , the reward , as in this place . but st. paul in the just now cited place to the ephesians , noteth this more , that this is the first commandment with promise . the law in direct words promiseth only temporal felicity , as st. ierom observes ( l. 2. commentar . in epist. ad galat. & 1. dialog . contra pelagium , ) and st. austin ( de civit. dei l. 10. cap. 15. ) and of temporal felicity the principal part is long life . which is generally promis'd to those that keep the law , as in levit. 18. 5. and 25. 18. and in deuter. 6. 17. 18. and in ezech. 20. 11. some expound the hebrew words , that they may prolong thy days , namely thy parents by their favour and prayers to god. but i fear lest this interpretation be too subtile , and adhere rather to the seventy and other interpreters , who take the hebrew word , though of an active form , in a passive sense ; viz. that thy days may be prolonged . to absolom violating this precept , his days were cut off or shortned . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vpon the earth , or in the land. life in exile , is not life , but a long death . therefore god promiseth to obsequious and dutiful children a long life , and that too at home in their own country . and ezechiel enumerating the causes of deserved exile , puts the contempt of parents in the head of the catologue ; chap. 27. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the good land. this also hath been added from deut. 8. 7. but deservedly . for that land was in those days truly good and singularly fertil , abounding with milk , honey , and corn , and other fruits ; and the only land that produced balsam , which it continued to do in good plenty down to the days of pliny , who therefore praised it , and doth even at this time though in less quantity . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which the lord thy god will give thee . the present for the future , as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , who will come , matth. 3. 2. it must be something great and highly estimable , that god confers as a donative upon the posterity of those whom he loved above all others , and to whom he promised to give it . but as god promises great blessings to those that observe this precept : so on the contrary he threatneth grievous punishment to those that contemn and revile their parents , namely death by decree of the judge , if the matter be by sufficient testimonies prov'd against them , exod. 21. 15. 17. ) and if the matter be not brought to publick notice , divine wrath ( deut. 27. 16. ) than which nothing is more dreadful , and from which good lord deliver us . chap. vii . the sixth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not commit adultery . in the hebrew this precept is placed next after that against murder , and the greek copies also now keep the same order in the rehersal of the decalogue in deuteronomy . but lest any should think this transposition of these two precepts a thing recent , i must observe , that philo in his time read them , as we now do ; and that he gives this reason for it [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] that among unjust facts adultery is the greatest . and again after he hath with admirable eloquence described the many evil consequents of this crime , he saith , meritò deo & hominibus exosa res adulterium inter crimina ordinem ducit , meaning the crimes that are injurious to men . nor did the ancient christians read them otherwise , following the greek codes ; as appears from tertullian ( de pudicitia ) who saith , eo amplius praemittens , non maechaberis , adjungit , non occides . oneravit utique maechiam , quam homicidio anteponit , &c. wherefore whenever the ancients bring in these precepts in another order , they bring them out of deuteronomy , not out of this place of exodus . let us then , since we may do so without injury to the diligence of the masorets , follow the greek edition , which we have taken into our hands , and which may be defended not only by its antiquity , but also by this probable reason , that many of the hebrew women preferr'd chastity to life ; and that in the judgment of aristotle , the crimes that proceed from the desire of pleasure , are more hainous than those that come from anger . abenesdras thinks , that by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he hath committed adultery , all unlawful venery ; and simple fornication is signified : but we find , that among the hebrews that word is every-where taken only in the sense of adultery , and so translated in this and other places , by the greek , latin and other interpreters . true it is indeed , that in the mosaic law there is an interdict , that there should be no whores in the people of israel ; and that incests , and marriages with strange women that worshipped false gods , and the portenta veneris or unnatural lusts , are also strictly prohibited . but there was nothing of necessity that in so brief a decalogue all the crimes that were afterward to be interdicted , should be mentioned , when it was enough that those were toucht upon , that might most hurt either piety , or human society . so there is no mention made of wounds inflicted , but of murder , which of all kinds of violence offer'd to the bodies of men is the greatest . in these words therefore is properly comprehended both the wife that yields the use of her body to any other man besides her husband , and the man that polutes anothers wife . both are condemned to suffer death , levit. 20. 10. which punishment the christian emperors , constans and constantius long after introduced into the roman empire , as appears from the theodosian code . nor is this capital punishment to be thought more severe than equity requires , if we well consider that common-wealths arise from , and are conserv'd by marriages , that their very foundations are shook by adultery , that conjugal love is converted into mutual hatred , that inheritances are alienated to a spurious issue , while the right heir is supplanted ; that whole houses are fill'd with reproaches and feuds , which descend to posterity ; and not seldom break forth into publick miseries and destruction . of these dire mischiefs , and a hundred other ( too many to be here in this brief and desultory discourse particularly mentioned ) sad and tragical examples occur in almost all histories , whether ancient or modern : and the consideration of them made epicurus , in the moral sentences ascribed to him , to say , what evil doth it not draw upon a man , to desire to have to do with a woman , whose company is interdicted to him by the laws ? doubtless a wise man must be deterred from admitting such a design into his thoughts , if not by the manifest injustice thereof , yet at least by the great solicitude of mind requisite to obviate the many and great dangers that threaten him in the pursuit of it : it being found true by daily experience , that those who attempt to enjoy forbidden women , are frequently rewarded with wounds , death , imprisonment , exile , and other grievous punishments . whence it comes , that for a pleasure which is but short , little , and not necessary to nature , and which might have been either otherwise enjoy'd or wholly omitted , men too often expose themselves to very great pain , danger , or at best , late and bitter repentance . chap. viii . the seventh precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not kill . that in the books of our time this precept hath been unduly placed after that against theft , philo , tertullian , and others clearly shew . philo saith truly , that he who commits homicide , is guilty also of sacriledge , in that he violates the image of god : and then he most hainously sins against society , to which all men are born , and which cannot consist , if innocency be not safe from violence . since nature hath instituted a certain cognation betwixt us , it is a genuine consequence , saith florentinus most wisely , that for one man to lye in wait for the blood of another , is a high crime against the law of nature . then again , he that assumes to himself that power over the life of another , how nocent soever , which the law attributes only to the judge , violates the civil laws . so that homicide is a crime against the majesty of god , against the law of nature , and against the laws of humane society , or civil government . but by the verb [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] to kill , is here signified , not every act by which the life of another is taken away , but the unlawful act , which is wont to be the sense of the hebrew word , [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] he hath murder'd . what therefore is done in defence of life or chastity , is exempt from this law , by that of exod. 22. 2. and deut. 22. 26. so are other killings that the law permits , as the killing of him that attempts to seduce to the worship of strange gods , deut. 25. 6 , 7 , 8. and the killing of an homicide is permitted to the revenger of blood , who was the next of kin to the person slain . the same is to be said also of those who have receiv'd from god a special mandate to kill some peoples or men. for there is no injury in what god commands , who hath by highest right most absolute dominion of the life and death of all men , even without cause given . of the right of zealots , deriv'd from the example of phineas the son of eleazar ( numb . 25. 11. ) we have formerly spoken in art. 6. of chap. 6. of the former part of this disquisition . chap. ix . the eighth precept explained . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not steal . under the name of theft is comprehended all subduction or taking away of the goods of another , whether it be done by force , or by fraud . society , to which ( as was just now said ) all men are born , cannot subsist , unless every mans possessions be in safety . he therefore that either by open violence , or by privy stealing , takes any thing from a private man ; at the same time both wrongs him , by invading his propriety ; and hurts the common-wealth , by dissolving the common ligament or bond of it , which is the safety of every mans private right or propriety . nor is it to be doubted , but he that indulges to himself that licence , would , if he could , invade all things of all men , and by open force make the common-wealth his own . for injustice strengthned by power , becomes tyranny . therefore , * the seeds of so great and pernicious an evil were to be early oppress'd , and the diligence of all men to be excited to labours , by faith made to them , that they should quietly keep , possess and enjoy whatsoever they by their honest pains , art , and industry acquired . to admit theft , saith paul the learned roman lawyer , is prohibited by law natural . and vlpian saith , that theft and adultery are by nature shameful and odious . by the mosaic law , the panishments of theft were various , according to the quality and valour of the things stolen , and some other circumstances . but theft of the most precious thing , of a man , which the latines call plagium , was punish'd with death . exod. 21. 16. and deut. 24. 7. which abenesdras , in his notes upon this precept , will have to be understood only de puero , of a boy or child that cannot speak . theft of a man was interdicted also by the roman law , f. f. de furtis 37. 60. so it is by our law , which makes it felony . chap. x. the ninth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not speak against thy neighbour a false testimony . neighbour here is , an israelite of the same country ; as appears from exod . 11. 13. and levit. 19. 18. where it is said , thou shalt not stand against the blood of thy neighbour . which according to the interpretation of the masters is , thou shalt not stand an idle spectator when an israelite one of thy own nation , is assaulted , and his life in danger , but help to deliver him from the aggressor . and to this neighbour is opposed [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] an enemy . but in the gospel , neighbour is every man of whatsoever nation or country , as in st. luke 10. 33. where the good samaritan is by christ himself declared to be neighbour to the iew that was wounded by robbers : and before the law of moses , all men were neighbours , as is hinted in genes . 11. 3. and they said one to another , i. e. in the hebrew , a man said to his neighbour . the hebrew word here englished speak , properly signifies to give answer to an interrogation ; and in that sense we take it , for witnesses were wont to be solemnly sworn or adjured , i. e. by an oath administred and taken by the most holy name of god , excited to give true testimony in the matter under enquiry before the judge , who administred the oath : and then to answer the questions by him propos'd . so are we to understand that of levit. 5. 1. and if a soul sin , and [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] hear the voice of adjuration , and is a witness , &c. the party accused was also adjured by the judge in the name of god : of which ancient custom we have an example in ioshua 7. 19. and in matth. 26. 63. and the form of interrogating and adjuring the accused was , [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] give glory to god ; as in the examination of achan by ioshua , my son , give glory to the lord god of israel , and make confession unto him , and tell me now what thou hast done . hence some learned men with good reason collect , that achan was not without hope , that the souls of men survive their bodies , and remain after death to eternity . for by what other hope could he be brought to confess himself guilty of a crime , which he knew to be capital without pardon ? nor could he be ignorant of the common perswasion of the hebrews , that by confession and death , full forgiveness of such crimes might be impetrated or obtain'd from god. this form of adjuration was used by the prophets and judges of the great sanhedrin constituted by god , as hath been rightly observ'd by grotius ( ad ioannis cap. 9. vers . 24. ) and in the thalmudic digests ( titulo de synedrio ) simeon one of the senators thus spake to king iannaeus ; non stas coram nobis , sed coram eo qui dixit , fiat & factus est mundus . sometimes this form indeed was express'd in other words , but the same sence was still retain'd : as in 1 kings 22. 16. [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] i adjure thee to speak to me the truth in the name of the lord. now this crime of bearing false witness , which is here prohibited , is also hainous and execrable in various respects . first because verity , which is as it were another sun among men , is thereby violated and brought into contempt . then because the guilty are helped and absolved , and the innocent hurt and oppress'd ; both which are against the rules of justice . in fine , because a false witness deceives and mocks the judge , who is gods vicegerent ; and doubtless would do the same to god himself also , if he were not above all illusion . the punishment appointed by the law of moses for a false witness , was most apposite , namely what the latines call poenam talionis , i. e. an evil equal to that which the person against whom the false witness gave testimony , might have suffer'd , in case the testimony had imposed upon the judge : so that the punishment might reach even to death , if the party accused were upon trial for life . chap. xi . the tenth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not covet thy neighbour's wife , nor his house . by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to desire , here most fitly used by the greek interpreters , is signified , not every sudden motion of the mind , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] phantasie exciting the mind , as philo speaks , but the passion or disease of the mind call'd lust , when a man resigns up the conduct of his will to that sensual desire , and pursues the object of it ; or as the poet pathetically expresses the passion , vulnus alit venis , & caeco carpitur igne . seneca ( de ira lib. 2. cap. 4. ) calls the former , a motion not voluntary , a stroke of the mind that cannot be declin'd by reason : the latter he saith , arises from judgment , and is by judgment to be taken away . of this moreover he makes two degrees ; one , that is not yet obstinate , but vincible by reason ; the other , that already triumphs over the understanding , and leads the will captive in chains of impotent desire . in the old testament also we find the hebrew words here used to express concupiscence , most frequently to denote , not those first and indeclinable motions alone , but the permanent study and fixt purpose to obey , cherish , and gratifie them ; as in michaea 2. yea , more in this place seem to be noted , the acts by which the wife or house &c. of another man is indirectly coveted ; such are the sowing or fomenting of discord and animosities betwixt husband and wife , whence follows divorce ; promoting suits at law , and other artifices of conceal'd iniquity . and this to me seems to be the reason why st. mark ( 10. 19. ) expounds this precept by [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] ne fraudem feceris , defraud not : which both the order of the laws there recited shews , and because [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] thou shalt not steal , went before . but although this may seem to be the sense of this precept [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] in a grosser interpretation ; yet have philosophers of the soundest judgment always held , that the meer purpose in lust or coveting , though it never proceed to act , is sinful . aelian said wisely , non solùm malus est , qui injuriam fecit , sed & qui facere voluit , me quidem judice . nay , ovid himself , though no example of chastity , could say ; quae quia non licuit , non facit , illa facit vt jam servaris benè corpus , adultera mens est . seneca the father saith the same thing , and with equal elegancy ; incesta est etiam sine stupro , quae cupit stuprum . the son ; non immeritò in numerum peccantium refertur , quae pudicitiam timori praestitit , non sibi : and in another place , of crimes in general ; omnia scelera etiam ante effectum operis , quantum culpae satis est , perfecta sunt . so typhoninus the lawyer affirms , that a man is call'd an adulterer ex animi propositione sola , though he hath never actually corrupted any mother of a family . so also porphyry ( de abstinentia lib. 1. ) postquam factis abstinueris , abstinendum & motibus , ac maximè ipsis animi morbis . quid enim prodest factis absistere , si causis unde ea proeedunt astrictus maneas . these philosophers then saw farther into the nature of concupiscence , and required greater purity of mind , than the iewish masters that were in our saviour's time , and a little before and after ; who finding in the mosaic law no penalty ordain'd for thoughts and desires of interverting the wife or goods and possessions of another man , therefore deny that any sin is committed by the will alone , without any overt act , unless in the case of worshipping false gods , because to such thoughts , counsel , and purpose , a penalty was assign'd , and to no other . and that this was the judgment of most rabbins , abenesdras noteth at the beginning of the decalogue : and iosephus certainly was of the same , when treating of the sacrilege designed by antiochus , he said ; non erat paenae obnoxium consilium sine effectu . nor would st. paul , educated under such masters , have believed otherwise , had not a more exact and more spiritual consideration of the law convinced him , and brought him to write ( romans 7. 13. ) that the law being spiritual , makes concupiscence in thought , though it proceed no farther , sinful . but what shall we christians say of what our saviour prescribes to us in the gospel of st. matthew ( 5. ) that this law , which we now consider , was thereby only vindicated from an erroneous interpretation ; or that somewhat was aded unto it ? the latter is more probable ; viz. that christ prohibited not only a firm purpose and design to gratifie our lusts , but also the assent or yielding to the motions of them ; which he commands us to suppress and extinguish so soon as they are felt and perceived within us , and to avoid all occasions that may foment them , which he teacheth very significantly , though in parable , by the casting away of hand , eye , and foot , i. e. by the loss of those things that are dear to us . nor content to have taught this purer doctrine , he addeth a more grievous penalty to offenders , than any found in the old law , namely that of hell ; whereas for such delicts the law of moses prescribes no punishment at all , as the masters rightly observe . certainly the ancient christians held , that in the gospel somewhat more perfect is exacted , than what the law expressly treats of . witness tertullian . nos ergo soli innocentes ? quid mirum , si necesse est ? enimvero necesse est : innocentiam à deo edocti , & perfectè eam novimus , ut à perfecto magistro revelatam ; & fideliter custodimus , ut ab incontemptibili dispectore mandatam . let us for example take that precept of not lusting after a woman , which the ancients thus explicate . iustin writing to zena and serenus , saith that [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the first fume of this appetite is interdicted by christ. athenagoras saith ; we are so far from thinking such things indifferent , that it is not permitted to us to look upon a woman with desire . tertullian ( de velandis virginibus ) a christian beholds a woman with safe eyes : in mind he is blind toward lust . and minutius ; ye punish wicked acts ; to us , but to think an ill thought , is to sin . this more refined precept deliver'd by christ , with some other of like perfection , seem'd so new , and so heavy withal to the iews , that tryphon , the most learned and eloquent among them , doubted not to say to iustin ; your precepts in the evangel i know to be so great and admirable , that no man is i think , able to observe them : not considering what had been taught by christ ( matth. 19. 26. ) with men this is impossible ; to god all things are possible . namely christ hath obtain'd for those that believe in him , a more certain faith of eternal life , and a spirit much greater , than had ever before been given to men : and then by his sufferings upon the cross he gave us an example most absolute ; and that nothing is so hard at first , which may not by exercise and a willing mind be made easy and familiar ; as most of the fathers have noted upon that in st. matthew ( 12. 30. ) by this custom of repugning it comes to pass , that those lustful motions by degrees subdued , dare no more rise up within us . this is that noble and glorious victory by faith , of which st. iohn speaks in his epistle . c. 5. v. 45. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : nor his field , nor his man-servant , nor his maid-servant , nor his ox , nor his ass , nor any beast of his , nor any thing that is thy neighbours . nor his field , hath crept hither from deuteronomy ; and , nor any beast of his , from the precept of the sabbath : for neither is found in the hebrew of this place . but these differences are of little moment . tertullian spake all in a word , when he said , alienum non concupisces , thou shall covet nothing that belongs to another ; not the least things ought to be excepted , lest by degrees men should go higher ; nor the greatest , because in such the virtue of justice is most resplendent . and aristotle being asked what was [ tò 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] iust , answered , as became the prince of philosophers , [ tò 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] non concupiscere aliena ; in which all moral precepts are reduced to one . chap. xii . evangelick precepts conferr'd with those of the decalogue . it was wisely observ'd by philo , that the masters of his nation were wont to referr to these ten precepts of the decalogue , which we have endeavor'd briefly to explicate , whatsoever was contained in the whole law of moses : not that all the mosaic institutes were comprehended in the words of the ten commandments , but that these all pertain to certain kinds of actions , to which the rest may be , for help of the memory , referr'd ; as all things are by philosophers referr'd to ten categories or predicaments , for more facility of teaching . this very thing have the christians also done , referring all evangelic precepts to their respective places in the decalogue : but they have done it much more fully and perfectly , as being both endowed with a greater spirit , and obliged by their most noble faith and profession to exercise sublimer virtues . thus to the first head , which is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of gods vnity and single government , they congruously refer , not only all those doctrines of the gospel that forbid the least shew or appearance of worship exhibited to false gods , deliver'd in acts 15. 20. and 29. in 1 corinth . 8. 10. in 1 iohn 5. 21. and particularly expounded by tertullian ( in apologetico ) and the ancient canons : but also those that command the vnity of the church most strictly to be observ'd , taught in iohn 17. 3. and 21. in 1 corinth . 8. 6. and 12. 2. 18. 19. and 25. and in ephes. 4. 5. to the second , which interdicteth idols or images , they refer all the evangelic ; precepts by which we are prohibited to addict our selves to , or fix our affections upon things subject to sense , so as to prefer them before , or equal them to god : such as are given in matth. 6. 24. in ephes. 5. 5. in coloss. 3. 5. in philip. 3. 19. and in romans 16. 17. of which argument we may read excellent things in st. chrysostom , upon the fifth chapter of the epistle to the ephesians . to the third , of not swearing or vowing by gods holy name in vain , they refer whatever we are taught in the new testament concerning the great reverence due to the divine name , in matth. 6. 9. so great , that out of respect thereunto we ought to abstain from all swearing , unless in matters highly pertaining to the honor of god ; as in matth. 5. 34. and iames 5. 12. to the fourth , of keeping holy the sabbath , they refer the christians certain hope of a most tranquil and happy life to come , assured by that in hebrews 4. from the first verse to the 11 th . whereof a certain tast is in the mean time given in that peace of conscience which st. paul so justly preferrs to all other enjoyments in this transitory life , when ( romans 5. 1 , 2. ) he saith , being justified by faith , we have peace with god , &c. to the fifth , commanding honour to be given to parents , the christians refer all the evangelical mandates of giving civil honour and obedience , within the limits of divine commands , to kings and governours , and all that are put in authority under them . such are given in rom. 13. from verse 1. to 8. in 1 tim. 2. 1 , 2 , and 3. in 1 pet. 2. 13. of obedience to masters , in ephes. 6. 3. and coloss. 3. 22. of honour and obedience to husbands , in 1 corinth . 11. 3. 1 coloss. 3. 18. in 1 pet. 3. 1 , and 2. in 1 tim. 2. 12. in tit. 2. 9. also to pastors or ministers of the gospel , in 1 tim. 5. 17. in hebr. 13. 17. and in 1 pet. 5. 5. and to others of eminent quality , in rom. 13. 7 , and 8. to the sixth , by which adultery is prohibited , are accounted the evangelic interdicts against all sorts of unnatural lusts , all scortation or whoring , all uncleanness and polution venereal of whatsoever kind or degree : such as are promulged in st. matth. 15. 19. in mark 7. 21. in acts 15. 20. in rom. 1. 19. in 1 cor. 6. 13. and 2 cor. 12. 21. in gal. 5. 19. in ephes. 5. 3. in coloss. 3. 3. in 1 thess. 4. 3. and 2 thess. 2. 3. also all divorces , unless in the case of adultery , as in matth. 5. 32. and 19. 9. to the seventh , interdicting homicide , are referr'd all animosities , anger , hatred , and malice , the seeds of fights and murders , condemned and forbidden in matth. 5. 22. 43 , 44 , 45. and the following comma's ; in eph. 4. 31. in coloss. 3. 8. in 1 tim. 2. 8. in iames 1. 20. in 1 ep. of iohn 3. 15. and in other places of the new-testament . to the eighth , against theft , are reduced those most equitable precepts by which christians are , not only forbidden to infer any damage , loss or detriment upon others , but obliged on the contrary to do good to all men , even to their enemies , to the best of their faculties and power . such we find in matth. 5. 44. in luke 6. 35. in 1 cor. 6. 7. and 8. in 2 cor. 7. 2. in 2 coloss. 3. 25. in ephes. 2. in 1 pet. 4. 18. in rom. 5. 14. in galat. 5. 22. in 2 thess. 1. 11. under the ninth by which it is made criminal to give a false testimony , are listed the precepts by which we are commanded to shun all falshood , lying , and deceit in speech , and to be highly studious of veracity and faith in all conversation , and transactions . such are recorded in iohn 8. 44. ephes. 4. 24 , 25 , 26. 1 iohn 2. 21. coloss. 3. 9. rom. 3. 4. 1 tim. 1. 10. 1 cor. 5. 8. the last prohibiting concupiscence , is by christians so far extended , as that no permission is to be indulged to the motions of the mind that sead to unlawful counsels , designs and actions ; but that they ought to be checkt and extinguished , so soon as we perceive them to arise within us , as appears both from the places already cited in 5 th . art. of the chapt. next precedent , and in mark 4. 19. gal. 5. 24. 1 pet. 2. 11. and this mortification of our sensual appetites , is what the holy scripture intends by crucifying , killing , and putting off the old man ; in coloss. 3. 5. and 9. rom. 6. 6. ephes. 4 , 22. and what lactantius ( l. 6. c. 18. ) adviseth when he saith , priùs tamen quàm commotio illa prosiliat ad nocendum , quoad fieri potest maturius sopiatur . the three allurements of these sensual motions are , pleasure , pride , riches ; in the judgment of st. iohn ( 1 epist. 2. 16 , and 17. ) to whom philo consenting , deduceth all sins and mischiefs [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] from one fountain , viz. the desire either of money , or of honour , or of pleasure . to conclude ; the sum of all the hitherto . recited precepts , of the mosaic somewhat more obscurely indeed , and with many shadows intermixt ; but of the evangelical most openly and brightly , is no more but this , that god be loved above all things , and that every man be loved as our selves . this is the sole scope , as of the law and the prophets , so also of the gospel . witness psal. 15. esai . 32. 15. mich. 6. 8. matth. 22. 37 , 38 , 39 , 40. mark 12. 30 , 31. luke 10. 27. rom. 13. 8 , 9 , 10 , and 11. 1 cor. 8. 3. and 13. 2. gal. 5. 14. 1 tim. 1. 5. 1 pet. 1. 22. iam. 2. 8. 1 iohn 2. 10. and 3. 17. and 4. 7 , 8 , 9. and 2. 12. 20. by this love faith is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] operating , gal. 5. 6. [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] and perfect , iam. 2. 22. without it , and the works thereof , it is a dead faith , iam. 2. 20. this love therefore let us pray to god to give unto , and increase in us , for his sons sake , by the holy spirit . amen . from this harmony of the mosaic and evangelic laws , i might take occasion to enquire also into the things in which these differ from and excel those ; and thence to shew , how incomparably more noble in it self , and more agreeable to the spiritual nature and proper affections of a rational soul , the christian religion is , than the iudaic , or any other hitherto known in the world. which would not be difficult to me to do , since various arguments offer themselves to every considering man , from the excellency of the reward by god himself promised and infallibly assured to all true and sincere professors of christianism , viz. eternal life and immutable felicity after a joyful resurrection : from the singular sanctity of its doctrine and precepts , as well concerning the true and most congruous worship of god in spirit , and from pure love , as concerning all the offices of humanity due from us to our neighbour , though our enemy ; the mortification of all sensual lusts and unjust desires , nay the contempt of all temporal goods in comparison with eternal ; from the divine virtues , inculpable life , miraculous works , patient sufferings , and certain resurrection of christ the author of it : and in fine , from the wonderful propagation thereof , whether we consider the infirmity , simplicity , and obscurity of the men that in the first times taught and diffus'd it , or the mighty impediments that retracted their hearers from embracing , or deterr'd them from professing it . from all these heads i might ( i say ) fully evince the excellency of our religion . but because this matter is alien from my present theme , and principally because the same hath been already treated by many others of much greater ability than i can pretend unto , more professedly with philosophic subtility by raimundus de sebunde , with variety of dialogues by ludovicus vives , with solid erudition and charming eloquence by mornaeus , and with inimitable gravity of judgment by grotius : therefore i restrain my unworthy pen from profaning a verity so sacred , and as well from its own splendor as from the light it hath receiv'd from those illustrious writers , so conspicuous ; and acquiesce in the full persuasion thereof , wishing equal conviction of mind to all mankind . appendix . a short history of the iews talmvd . collected out of josephus , philo judaeus , bishop walton's prolegomena ad biblia polyglotta , the chronicus canon of sir john marsham , &c. having in the precedent shadow of a book often cited the talmvd or pandects of the iews ; and now presuming it to be possible , that those papers , of how little value soever in themselves , and however secretly kept by me in my life time , may yet , after my death , come into the hands of some men , who are not perhaps so conversant in those greek and latine authors who have written of the civil and canonical laws , and traditions of that nation , as to know from what original , of what antiquity , and of how great authority among them that talmud is : therefore i am inclin'd to hope , that the more learned will not condemn me , either of vanity or impertinence ; if for information of the less learned , i here add a brief history thereof , not without somewhat of diligence and labour , collected from writers of excellent erudition and undoubted faith. after the macedonians had spread their victorious arms over the east , and the hasmoneans with equally successful courage asserted the liberty of their country ; there arose out of the school of antigonus sochaeus two mighty sects among the iews : the pharisees , so call'd from their separation ; and the sadduces , who deriv'd their name from sadocus their head and ring-leader . the former deliver'd to the people , many precepts receiv'd by tradition from their ancestors , which were not written in the pentateuch among the laws of moses ; the latter directly opposing the admission and sanction of those traditions , maintain'd that the precepts recorded in the books ascrib'd to their legislator moses , were all of sacred authority , and therefore to be diligently observ'd ; but those taught by the pharisees , from tradition only by word of mouth , were not obliging ; as iosephus relates ( antiquit. l. 13. c. 18. ) from this division of the disciples of antigonus , in a short time it came to pass , that the whole nation of the iews also was divided into sects ; of which there is no memory in any of their monuments , before the government of ionathan , who succeeded his brother iudas machabaeus , ( whose history we have in the books of the maccabees ) in the year of nabonassar 588. and of the iulian period 4553. at which time , as the same iosephus commemorates ( antiquit. l. 13. c. 9. ) there grew up three sects or heresies of the iews , which delivered divers doctrines , not of religious duties , but of human affairs , principally de fato ; one , of the pharisees ; a second , of the sadduces ; a third of the essens , who lived an active life , different from the others . so philo ( de vita contemplativa ) distinguishes them from the theoretics , whom he call's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : and so photius ( in bibliothec. n. 104. ) interpreting philo , saith ; lectae sunt philosophantium apud iudaeos vivendi rationes , & contemplativa , & activa : quorum hi esseni , illi therapeut ae appellantur . these esseni [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] denominated from their sanctity , retiring from the noise and crowds of populous cities into solitary villages , affected solitude ; gens sola , sine ulla faemina , sine pecunia , socia palmarum , &c. no wonder then , if all the four evangelists be silent concerning them , since they lived strangers ; and unknown even to the inhabitants of ierusalem , nor is any mention of them to be found in the writings of any rabbins before zacuthius , a late writer , and living in the year of our lord 1502. but the pharisees , and their antagonists the sadduces made a great bustle and noise in the court of ierusalem where they lived in mutual emulation , drawing mighty parties after them : the rich for the most part patronizing the sadduces , and the common people adhering to the pharisees ; as we read in iosephus ( antiquit . l. 13. c. 18. ) and in truth those [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] unwritten traditions asserted by the pharisees , grew more and more authentic in the schools , were openly taught by the rabbins by word of mouth to their disciples , and studiously propagated as sacred verities ; but not published in writing . yet at length , after the city of ierusalem had been sack'd and demolish'd by titus , and repair'd by hadrian in such sort , that the poor iews retain'd neither their name , nor nation , nor religion ; while by the sedition of one barchocebas , almost all iudea was reduced to a desert , as xiphili● ( in vita hadriani ) reports ; and while the iews were dispers'd , and in exile , prohibited to set a foot upon their native soil ; and the schools that had been design'd to promote the pharisaic discipline failed ; one rabbi iehuda , whom they call hakadosh , i. e. the saint , with vast labour collecting all the traditions , judgments , opinions , and expositions , that the synagogues of all ages precedent had deliver'd upon the whole law ; composed of them the book of the mishna , and read it publickly . and this he did , lest the traditions of their ancestors might otherwise be lost and forgotten . he lived under the three antonins , pius , marcus , and commodus , and finished this syntagm of the mishna , in the reign of the last , and ( as de gantz computes ) in the year 120. from the destruction of the temple , but of the christian aera 190. this mishna is their [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] second law , so call'd to distinguish it from the first , which was written . of christian writers , the first that remembers this book of the mishna , seems to be the emperor iustinian ( a greater collector of ancient , but civil laws and constitutions ) who in the year of christ 551. gave leave to the iews to read the holy scriptures publickly in their synagogues ; but interdicted the like use of the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or second edition of their law , the mishna , as neither conjoyn'd to the pentateuch , nor deliver'd down from the old prophets , but invented by men that had nothing of the divine spirit in them : as appears from novel 146. pag. 295. but since neither origen , nor epiphanius , nor st. ierom ( who all make mention frequently of the judaic traditions ) takes notice of any such book as the mishna ; and since st. austin ( contra adversarios legis & prophetarum l. 2. c. 1. ) saith expressly , habere , praeter scripturas legitimas et propheticas , iudaeos quasdam traditiones suas , quas non scriptas habent , sed memoriter tenent , et alter in alterum loquendo transfundit , quam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocant : it seems probable , that the mishna was , either not written , or at least not well known in the world , in the year of christ 400. as the modern rabbins would have it to have been . among these maimonides ( in praefat . ad mishnam ) affirms , that about 300 years from the destruction of the temple , rabbi iochanan , head of a synagogue in palestin added the gemara [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] or complement , call'd the ierusalem gemara . which joyned with the mishna of iudas , makes the ierusalem talmud . and this maimonides well deserves our belief . for his extraordinary wisdom and learning are to this day so much admired by the iews , that they commonly say of him . à mose usque ad mosem nequaquam fuisse hactenus talem mosem : and mr. selden ( de diis syris syntagmate 2 cap. 4. ) prefers him to all other rabbins , saying , primus rabbinorum fuit , qui delirare desiit . the iews at length passing from the subjection of the romans to that of the persians , about 100 years after , rabbi ase in the land of babylon composed another gemara or complement of the mishna ; which from thence was denominated the babylonic gemara , and which contains many ridiculous fictions , and fables incredible . and this , with the mishna , makes the babylonian talmud , which is now most in use ; nay doctrinal to all the iews , as if all their discipline , all law both divine and human were therein comprehended : in which notwithstanding the sadduces are never remember'd , but under the name of hereticks or epicureans . in the mishna if self were contain'd , not only the judgments , ordinances and decrees of all precedent consistories , but also a collection of all the traditions which they call the law oral , and pretend to have been originally receiv'd from the mouth of moses himself . and to give more credit and authority to these traditional precepts , rabbi eliezar ( in pirke cap. 49. editionis vorstianae pag. 123. ) tells us , that during the 40 days absence of moses on the mount , he spent the days in reading the scripture , and the nights in composing the mishna : and in the babylonic gemara is a formal story of the very manner ( forsooth ) how moses communicated and explain'd the oral law to aaron and his sons and the elders . the elders ( saith the pirke aboth , i. e. capitula patrum , a talmudic treatise ) deliver'd the same to the prophets , and the prophets to the men of the great synagogue , and they again handed it down to their successors . but these things being too compendiously spoken , to evince the succession through so many ages , the more recent rabbins have put their wit upon the rack to explicate the matter more particularly . after the finishing of the talmud , for an age or two , there is nothing but thick darkness in the histories of the iews : but then they being expulsed out of babylon , and their schools left empty and desolate , about the year of our lord 1040. a great part of the rabbins and people came for refuge into europe , and chiefly into spain : there appearing to us no memorials of european iews before that time . since that , innumerable rabbins men of great learning & skill in all sciences , nor addicting themselves and studies to the extravagant and absurd dreams of the talmud , as their predecessors had done ; have written copiously : and the succession of the cabbala hath been sought for in the east . rabbi moses ben maimon , vulgarly maimonides and rambam , born at corduba , in the year of christ 1135. died at the age of 70. after he had written commentaries upon the mishna ; in the preface to which he gives a long series or list of those who had propagated the oral law successively . which yet appearing imperfect and interrupt to rabbi abraham zacuth of salamanca , who wrote iuchasiin in the year of christ 1502. he and his contemporany don isaac abarbinel an exiled spaniard , and after them , david ganz ( who brought his chronology down to the year of christ 1592. in his book entitled tzemach or germen davidis ) found , or made that catalogue of the propagators of the traditional law more perfect and continued . herein zacuth indeed follow'd maimonides ; and ganz trod in the steps of abarbinel : but guitiel . vorstius ( in observat . in ganz , pag. 213. ) comparing these successions each with the other ; from the diversity of computation from the interruption and gaping conjunction thereof , argues the catalogue to be plainly fictitious . there are nevertheless even among our christian divines some , who lay hold upon that continuation of traditions , and use it to serve their turn : how prudently , let others judge . for i have not undertaken curiously to examine that series and the nine classes of iewish doctors : contenting my self at present with these few collections concerning the original and antiquity of the talmud . finis . books printed for walter kettilby , at the bishop's head in st. paul's church-yard . h. mori opera theologica , & philosophica , fol. three vol. dr. more 's reply to the answer to his antidote against idolatry . with his appendix . octavio . — remarques on judge ▪ hales , of fluid bodies , &c. octavo . — exposition on the apocalyps . quarto . — exposition on daniel . quarto . — confutation of astrology , against butler . quarto . dr. sherlock's discourse of the knowledge of jesus christ. with his defence . octavo . — answer to danson . quarto . — account of ferguson's common-place-book . quarto . dr. falkener's libertas ecclesiastica . octavo . — christian loyalty . octavo . — vindication of liturgies . octavo . dr. fowler 's libertas evangelica . octavo . mr. scot's christian life . octavo . dr. worthington's great duty of self-resignation . octavo . dr. smith's pourtraict of old age. octavo . mr. kidder's discourse of christian fortitude . oct. mr. allen's discourse of divine assistance . octavo . — christian justification stated . octavo . — against ferguson , of justification . octav. — perswasive to peace and unity . with a large preface . octavo . — preface to the perswasive . alone . octav. — against the quakers . octavo . — mystery of iniquity unfolded against the papists . octavo . — serious and friendly address to the nonconformists . octavo . — practical discourse of humility . octavo . mr. lamb's stop to the course of separation . octa. — fresh suit against independency . octavo . mr. hotchkis discourse of the imputation of christs righteousness to us , and our sins to him . in two parts . octavo . mr. long 's history of the donatists . octavo . — character of a separatist . octavo . — against hales , of schism . with mr. baxter's arguments for conformity . octavo . — non-conformists plea for peace , impleaded against mr. baxter . octavo . dr. grove's vindication of the conforming clergy . quarto . — defence of the church , and clergy of england . quarto . — defensio suae responsionis ad nuperum libellum , qui inscribitur celeusma , &c. in quarto . — responsio ad celeusma , &c. quarto . the spirit of popery speaking out of the mouths of fanatical protestants . fol. dr. hicks's sermon at the act at oxford . quarto . — before the lord mayor . peculium dei. quarto . — notion of persecution . quarto . dr. hicks , sermon before the lord mayor , ian. 30. at bow-church . 1682. dr. sharp's sermon before the lord mayor . quarto . — sermon at the spittle , & york-shire feast . quar. — sermon before the house of commons . april 11. 1679. — at the election of the lord mayor . 1680. dr. william smith's unjust mans doom , and discourse of partial conformity . octavo . — two assize sermons . octavo . — two sermons , on the 3 d. of may , & 29 th . of may. — lent sermon . quarto . dr. thorp's sermon before the lord mayor . quarto . dr. woodrof's sermon before the lord mayor . quarto . mr. williams's sermon before the l. mayor . quarto . — christianity abused by the church of rome , and popery shewed to be a corruption of it : being an answer to a late printed paper given about by papists . in a letter to a gentleman . quarto . remarks on the growth and progress of nonconformity quarto . baxters vindication of the church of england in her rites and ceremonies , discipline and church orders . mr. lynford's sermon . quarto . mr. bryan turner's sermon . testimonium iesu. quarto . mr. iohn turner's sermon of transubstantiation . quarto . dr. butler's sermon before the king at windsor . mr. lamb's sermon before the king at windsor . mr. brown's visitation sermon . quarto . dr. fowler 's sermon at the assizes at gloucester . quarto . mr. cutlove's two assize sermons at st. edmunds-bury . quarto . mr. inet's sermon at the assizes at warwick . quar. mr. edward sermon 's sermon before the l. mayor . mr. resbury's sermon before the charter-house scholars . quarto . — sermon at the funeral of sir allen broderick . mr. needham's six sermons at cambridge . octavo . dr. eachard's dialogue against hobbs . 2 d. part. mr. hallywel's discourse of the excellency of christianity . octavo . — true and lively representation of popery : shewing that popery is only new-modelled paganism . quarto . — account of familism against the quakers . — sacred method of saving humane souls by jesus christ. — discourse of the polity , and kingdom of darkness . octavo . dr. goodall's vindication of the colledge of physicians . octavo . mr. l' emery's course of chymistry . with the appendix . dr. grew's anatomy of trunks . with nineteen copper plates . octavo . d. sydenhami observationes de morbis acutis . octav. — epistolae duae de morbis epidemicis , & de lue venerea . octav. — dissertatio epistolaris de variolis , nenon de affectione hysterica & de hypochondriaca . octavo . lossii observationes medicae . octavo . mayow tractatus . 5. e. med. de sal. nitro . &c. octav. burnetii telluris theoria sacra de diluvio & paradise . quarto . spenseri dissertat . de urim , & thummium . octavo . speed epigrammata iuvenilia . encomia , seria , satyrae & iocosa . octavo . lord bacon's essays octavo . gage's survey of the west-indies . mr. claget's reply to the mischief of impositions . in answer to dr. stillingfleet's sermon . quarto . the true english-man humbly proposing something to rid us of the plot in the state , and contentions in the church . quarto . a perswasive to reformation and union , as the best security against the designs of our popish enemies . quarto . the roman wonder : being truth confest by papists , &c. being the jesuits morals condemned . fol. essex free-holders behaviour , &c. folio . two sheets . the country club , a poem . quarto . amyraldus discourse of divine dreams . octavo . dr. arden's directions about the matter and stile of sermons . twelves . protestant loyalty fairly drawn . in answer to a dialogue at oxford between a tutor and pupil , &c. and an impartial account of the late addresses , &c. quarto . mr. tho. smith's sermon concerning the doctrine , unity , and profession of the christian faith. preached before the university of oxford . with an appendix concerning the apostles creed . quarto . 1682. mr. lamb's sermon before the lord mayor , feb. 5. 1682. dr. calamy's , sermon preached before the lord mayor , aldermen and citizens of london , at bow-church on the 29. of may. 1682. prosecution no persecution : or , the difference between suffering for disobedience and faction , in a sermon upon phil. 1. 29. preached at bury st. edmunds in suffolk , on the 22. of march , 1681. by nath. bisbie . d. d. notes, typically marginal, from the original text notes for div a32695-e1250 article . 1. right defined , and 2. distinguished into preceptive and concessive . 3. what is right natural , and what divine . 4. what is right positive or civil . 5. civil right either peculiar to one nation , or common to many nations . 6. right common to many nations subdivided into imperative and intervenient . 7. right distinguish'd from law. 8. natural right , and 9. natural law defined . 10. that all the laws of nature are the laws of god. 1. god's right to the absolute monarchy of the world. 2. his dominion over men natural , and civil . 3. the stability of his positive divine laws given to the iews ; and universal extent of the same . 4. the difference betwixt law natural & positive divine , as to their obligation . 5. the importance of the premisses , & design of the subsequent discourse . 6. the method and heads of the same . article 1. three preliminaries concerning these precepts . 2 , various opinions of the rabbines concerning the number of these precepts . article 1 : what was understood to be extraneous worship by the egyptians ; and what by the hebrews . 3. that the interdict of idolatry given to the hebrews , seems to have respect to the manifold idolatry of the egyptians . 3. egyptian polytheism , contagious to the hebrews ; and therefore obviated by one general interdict . 4. the setting up of pillars , statues , &c. why forbidden by moses to the hebrews ; tho' not unlawful to the stranger , unless used to idolatry . 5. the mosaic law concerning idols , explicated . article 1. blasphemy forbidden among the egyptians , 2. what was blasphemy to the hebrews . 3. blasphemy and idolatry , equal crimes and always to be punished by excision . arti. 1. homicide prohibited to the egyptians and other gentiles , by law natural : and after to the israelites , by the mosaic . 2. exposing of infants , and procuring of abortion also interdicted . 3. punishment of wilful murder in the common-wealth of the hebrews . 4. right of asyle , in casual homicide . 5. how far an aggressor was to be resisted by a by-stander , in defence of the assaulted . 6. homicide , in what cases permited , and whence arose the right of zealots . 7. that the law de anathemate gave the hebrews no right to devote their children or servants to death : and therefore that the daughter of iephtha was made , not a victim , but a nun. 1. incest , adultery sodomy , and bestiality , interdicted by the law of nature . 2. before the mosaic law , marriage of the brother with the germane , not with the uterine sister , permitted : & why . 3. lacedemonian law permitting marriage with uterine sisters , not with germane . 4. marriage with both uterine and germane sister , lawful among the egyptiane , 5. and persians . 6. marriages interdicted to the israelites . 7. the right of marrying with the brothers widow , most ancient , and confirm'd by moses . 8. the same used by the egyptians . 9. the hebrew women unmarried , free to humble themselves to whom they pleased before the law. 10. the right of divorce instituted by moses . 11. polygamy permitted to the hebrews both before and after the law. 12. the hebrews not permitted to lie , or marry with gentiles not proselytes . 13. eunuchs & bastards excluded from matrimony with israelites . 14. the right of proselytes and libertines . 15. the maid-servant not permitted to marry , before she was made absolutely free by redemption or manumission : 16. nor the man-servant ; until the christians gave them jus conjugii . article 1. theft interdicted among the egyptians , whose singular law concerning robbery is recited . 2. theft , of what kind soever , forbidden also to the sons of noah , by law natural : and 3. by the mosaic , to the hebrews . 4. fraudulent removing of ancient land-marks , theft . 5. punishment of various frauds among the egyptians . 6. all fraud , even in words , unlawful to the hebrews . 7. the difference betwixt the right of an hebrew , and of a gentile , as to pilfering things of small value . 8. satisfaction for damage , always to be made , by the mosaic law ; and to whom . 9. the law of restoring things lost , explicated . 10. an unequal price , unlawful . 11. punishment of theft capital , not from the law of the hebrews , but from that given to the sons of noah . 21 : the mosaic interdict of theft deduced from law natural . 13. vsury unlawful to the hebrews among themselves ; lawful to the gentiles . 14. gain from games , unlawful to an hebrew . artic. 1. the administration of justice by iudges , prescribed , first by natural law , & after by the mosaic . 2. courts iuridical not constituted before moses . 3. the contrary not evident from the traditions of the rabbins ; nor from the scripture . 4. nor from the example of simeon and levi , and of iudah in the cause of thamar . 5. the right of a gentile in the common-wealth of the hebrews , as to judgments in foro . article 1. eating of blood interdicted , first to noah , and after to the israelites . 2. the reason of this interdict . 3. the law against eating of any thing that died of it self , and of any member torn off from an animal alive : and the reason thereof . 4. examples of such cruelty & carnage in bacchanals . article 1. the mosaic law , of all written laws the most ancient . 2. moses , the wisest of all law-givers . 3. the writers design & method in the e●suing explication of the decalogue . 4. why god is here call'd the lord. 5. that the law was given , not immediately by god himself , but by an angel in the name of god. 6. why the angel that pronounced the law , said , i am the lord , &c. 7. why the writer of the law saith , all these words . 8. god's peculiar right to the title of supream lord of the israelites . 9. the preface to a law ought to be brief and full of authority . 10. why god , in these precept , chose the number ten. 11. why the law was given in the wilderness . 12. why it is here said , thy , in the singular number . article 1. why it is here said , other gods beside me . 2. gods distinguish'd into two classes . 3. the celestial luminaries , the first false gods. 4. kings and queens deified after death , the second false gods. 5. whence it was that brutes came to be worship'd as gods. 6. honor due to good angels , and what . 7. signs of honour proper to god , not to be exhibited to good angels . 8. civil veneration of kings , not unlawful . 9. extirpation of polytheism , the principal design of this precept . 10. the unity of god , manifest by the light of nature . article 1. in what sense the word idol is always used in holy scripture . 2. that idolatry was founded upon an opinion that images magically consecrate were animated by daemons , and therefore vocal . 3. teraphim used chiefly for divination . 4. teraphim , how made & 5. of what materials 6. what were the silver shrines of diana of the ephesians . 7. why graven images of animals were by god interdicted to the hebrews . 8. that god reserv'd to himself a right of exception to this law ; from the instances of the cherubims and of the brazen serpent erected by his command . 9. images of the stars , also interdicted by this precept ; and that to prevent polytheism . & 10. to admonish men , that the invisible god cannot be represented by images . 11. what pictures fall under this interdict . 12. that the christians have not thought themselves indeterminately obliged by this law. 13. what is here signified by adoration of images . 14. different opinions of christians about honour exhibited to saints before their images & pictures . 15. the true sense of the word idolatry . 16. private men among christians ought not to pull down idols * 17. that god revenges idolatry only to the third and fourth generation : and that by delivering up the posterity of idolaters into miserable servitude . 18. who are properly said to hate god. 19. why god is here said to shew mercy unto thousands . 20. who are by god call'd pious , and who righteous men. article 1. why it is here said , the name of the lord , not my name . * 2. perjury interdicted chiefly by this precept : and 3. threatned to be severely punish'd by god himself . 4. the sanctity of an oath . 5. why god threatneth to revenge perjury by punishments inflicted by himself . article 1. the precept of keeping holy the sabbath , distinguish'd from the precept of resting from labour upon the sabbath ; as by the causes , so also by the times . 2. the different interpretations of grotius and selden , of the word remember , reconciled . 3. testimonies of the sabbath observ'd anciently by gentiles also . 4. why the primitive christians held their assemblies upon the sabbath day . 5 the lords day not surrogated into the place of the sabbath . 6. why the greeks and latins use the word sabbata , not sabbatum . 7. labour upon six days of the week , not commanded , but only permitted . 8. why god fixed the sabbath upon the seventh day . 9. why he by many words inculcated this precept . 10. who are to be understood here by thy son and thy daughter . 11. humanity of masters towards servants here intimated . 12. some goodness and mercy to be exercised also toward brutes , by this precept . 13. who is here meant by the stranger that is within thy gates . * 14. why the stranger was by this law obliged to abstain from labour upon the sabbath . 15. why god made the universe in six days . 16. what is to be understood by his resting upon the seventh day , * 17. how the true seventh or sabbatical day was first made known to the hebrews . 18. the honour of the number seven , deriv'd from the aegyptian mathematicians . 19. the septenary number of days observ'd by gentiles in their feasts 20. the number seven of solemn respect in the mosaic rites & in other mysteries . 21. the weekly circle of days , deriv'd by the aegyptian astrologers from the seven planets . 22. bede's reason why in the planetary denomination of the seven days of the week , the natural order of the planets was not observ'd . 23. why saturn was made lord of the seventh day . 24. the antiquity of the planetary denomination of the seven days : and conclusion of this chapter . article 1. that this precept was anciently observed by the egyptians , the pythagoreans , and 2. the athenians . 3. honour and reverence given by the egyptians even to the dead bodies of their parents . 4. other nations also honour'd parents . 5. excellency and usefulness of this law. 6. the right of mothers to honour and reverence from their children . 7. children by this law obliged to relieve their parents in want . 8. longaevity , the reward of filial reverence . 9. the penalty added to this law. article . 1. murder a crime against god , nature , and civil laws . 2. exempts from this law. article . 1. theft , injurious to private men , and hurtful to the public . * 2. the necessity and utility of this interdict . 3. theft of a man , capital among the hebrews . article 1. who is here to be understood by neighbour . 2. the form of adjuration used by the hebrew judges to witnesses and to the accused . 3. false testimony , a hainous crime . 4. the punishment of a false witness among the hebrews . article 1. what is here meant by concupiscence , according to the interpretation of the hebrew masters . 2. acts indirectly tending to the gratification of lusts , interdicted by this precept . 3. as also the simple purpose to fulfil them . 4. concupiscence without effect , no sin , according to the judgment of the rabbins . 5. but condemn'd by the christians , who are obliged to purity of mind . 6. not to covet any thing that belongs to another , the sum of all moral precepts . the excellency and præheminence of the lavv of england, above all other humane lawes in the world asserted in a learned reading upon the statute of 35 to 8. cap. 6 : concerning tryals by jury of twelve men and tales be circumstanibus / by thomas williams ... williams, thomas, 1513?-1566. 1680 approx. 354 kb of xml-encoded text transcribed from 153 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-03 (eebo-tcp phase 1). a66452 wing w2772 estc r2394 13439754 ocm 13439754 99556 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text 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(eebo-tcp ; phase 1, no. a66452) transcribed from: (early english books online ; image set 99556) images scanned from microfilm: (early english books, 1641-1700 ; 481:5) the excellency and præheminence of the lavv of england, above all other humane lawes in the world asserted in a learned reading upon the statute of 35 to 8. cap. 6 : concerning tryals by jury of twelve men and tales be circumstanibus / by thomas williams ... williams, thomas, 1513?-1566. hale, matthew, sir, 1609-1676. risden, thomas. gray's inn. [8], 318 p. printed by the assigns of r. and e. atkins ... for norman nelson ..., london : 1680. "judge hale his opinion in some select cases" and "certain select moot-cases, intituled, les cases de greys-inn ..." each has special t.p. with imprint : london, printed for norman nelson, 1680. reproduction of original in cambridge university library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -england. 2008-03 tcp assigned for keying and markup 2008-05 spi global keyed and coded from proquest page images 2008-06 emma (leeson) huber sampled and proofread 2008-06 emma (leeson) huber text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion the excellency and praeheminence of the lavv of england , above all other humane lawes in the world . asserted in a learned reading upon the statute of 35 h. 8. cap. 6. concerning tryals by iury of twelve men , and tales de circumstantibus . by thomas williams , late of the inner temple , esq sometime speaker of the commons house in parliament . ii. mr. risden's reading upon the statute of 21 h. 8. chap. 19. of avowries . iii. judge hale's opinion in some select cases . iv. certain cases which have been formerly mooted by the society of greys-inn . london , printed by the assigns of r. and e. atkins , esquires , for norman nelson at greys-inn-gate in holbourn , mdclxxx . the publisher's preface . the book consisting of four several and distinct tracts , it will not be unnecessary to give the reader a brief praeliminary account of each . and first to begin with the reading upon the statute of 35 h. 8. cap. 6. of jurours , and tales de circumstantibus , by mr. williams of the inner-temple ( to whom mr. dugdale in his origines juridiciales , gives the title of prolocutor parliamenti ) begun in quadragesima 3 & 4 phil. & mariae ; it is usher'd into the world with an incomparable praeface , wherein is most learnedly asserted the excellency and preheminence of the lawes of england , above all other humane lawes in the world , in respect of the great benefits and advantages the subjects of england do receive and enjoy in their trials by juries and the verdict of twelve honest men of the neighbourhood where the fact is committed , or the cause of action doth arise . which reading he hath divided into nine branches or lectures ; in the first whereof he tells us in what actions , suits and demands the triall provided by this statute shall take effect ; and in what not . and in what courts such actions &c. ought to be brought and commenced . and in what place the court ought to be kept . and when the ●ction shall be commenc'd in one court , and shall be sent to be tried in another court. and that it is his opinion that the triall ordain'd by this statute lies only in such actions as have their trial by 12 men , and no more ; and that only in such actions in which the proces of venire facias , habeas corpora , and distringas doth lie against the jurours after issue joyn'd ; and in no other actions . in the second lecture , by way of exposition upon these words of the statute , issues joyn'd between party and party , he shews between what persons and parties the trial provided by this statute shall take effect , and who shall be said to be party within the purview of this statute , and who not . thirdly , he discovers what issue joyn'd shall be tried according to the intendment of the statute , and what not ; also of what issues the plaintiff or demandant may be ousted of his triall ordain'd by this statute , and of what not . and moreover , forasmuch as the words of the statute be , that in every writ of venire facias which hath this clause , quorum quilibet , every one who shall be retorn'd ought to have freehold of the value of 40 s. per annum at the least ; and every one that shall be retorn'd in the other writ of venire facias upon this clause , quorum quilibet , ought to have some freehold , he tells us in his fourth lecture what shall be said sufficient franktenement for jurours upon the one writ , and upon the other . fifthly , you have his opinion upon those words of the statute , that the sheriff shall not omit to retorn such persons as have sufficient freehold , &c. upon pain of forfeiting 20 s. when the sheriff or other minister retorns any persons who at the time of the panel made have not any freehold , and yet have sufficient when they are to be sworn , shall not lose the penalty of the statute ; and when they shall lose the penalty where they retorn persons who have sufficient freehold at the time of the retorn , and when they shall be sworn they have nothing ; and when they shall not lose the penalty in such case upon this statute . and when the sheriff may by their retorn of jurours of sufficient freehold otherwise lose the penalty intended by this statute , and when not . sixthly , whereas the words of the statute are , that the sheriff shall impanel upon every venire facias 6 sufficient hundredors , and that he shall lose for every hundredor omitted in the panel 20 s. he shews who shall be said sufficient hundredors according to the intendment of the statute , and who not ; and when he shall lose the penalty for retorning no hundredors . seventhly , he tells you upon what default or non-appearance of the jurours the justices of nisi prius may award tales according to the statute , and upon what not ; and when the plaintiff or demandant shall have a tales upon his prayer , and yet when it is retorn'd , he shall not proceed to the taking of the inquest according to the intendment of the statute ; and how many persons the sheriff may retorn upon a tales according to the statute . in the eighth lecture , he informs us what person plaintiff or demandant may pray the tales according to the statute , and what not ; and what persons the sheriff &c. may retorn upon the tales , and what not . ninthly and lastly , he gives us an account what challenges the parties may have to the array , or to the poll of the tales de circumstantibus , and what not ; and what shall be said a principal challenge , and what not ; and when the poll-challenge shall be drawn presently upon the challenge , and when not . the second treatise in order , is that of mr. risden of the same house , being a reading upon the statute of 21 h. 8. cap. 19. of avowries , distinguished into five divisions or lectures ; in the first whereof he shews , 1. what mannors , lands , tenements and hereditaments may be holden . 2. what persons may hold such lands , &c , and , 3. of what persons such lands &c. may be holden within the purview of the statute ; and what not . in the second lecture he demonstrates what rents , customs , and services are meant intended and provided for , within the purview of this act ; and what not . in the third lecture he tells us , in what actions , suits and courts the lord may avow . 2. in what cases he shall make conusance : and , 3. in what cases he may justifie , within the statute ; and what not . fourthly , he declares his opinion , what things may be distrain'd , and upon what lands such distress may be taken ; and upon what not , within the statute . 2. if seisins and other observances in avowries at common law , be required in avowries upon this statute . and lastly , he explains how far the second branch of the statute extends to other rents than those are included in the first ; and to what other rents . and in what cases the defendant shall recover costs and damages by this statute ; and in what not . the third and fourth parts of this collection being genuine and authentique copies of some select cases of the late lord chief justice hale , in which he gave his opinion when he was at the bar ; as also of several moot-cases called the cases of greys-inn ; i conceive it would be both vanity and presumption in me to offer at any encomium upon the first , lest i should injure the manes of that reverend person , whose learning and integrity not only now flourishes in the memories of ( but is never to be forgotten by ) the gentlemen of the long robe . nor can i think it at all becoming me to express my private sentiments of the latter , but submit the cases themselves to the more eximious judgment of that honourable society , from whence they derive their title . w. b. the authors preface . when god created man , at first he left him free , not subject to any law , until he fell from god through disobedience and the breach of one single command ; which was the first offence that was committed upon the earth . after which , adam being in some measure restor'd to favour , liv'd under that law , which we call the law of nature , which in effect is compriz'd in these few words , do as thou would'st be done by . by which law , the holy patriarchs , enoch , noah , abraham , and several others , were for many ages guided ; that is to say , till the law was given by moses . the same law was also extended to another sort of people , who absolutely contemn'd it ; and making their wills their law , render'd themselves as wicked , as the others were sincere and upright . and as they differ'd from the holy fathers in the government of their lives , so did they likewise vary from them in the ends they propos'd to themselves . i mean the corrupted race of cain , the giants of nimrod , of ishmael and others , who after the fall of adam were the first examples of impiety and disobedience . whereby you are not only to understand that the first thing requir'd of god from man , was obedience , but also that the law was first ordained by god for the reformation of man ; the perfection whereof consisteth in due obedience , without which the best laws and ordinances in the world can never be well executed , nor kingdoms or countreys be preserv'd . for although at the beginning the heart of man had not receiv'd or entertain'd any law wherein obedience and order were prescrib'd unto him , yet our human fabrick from the first creation of the world , has taught us to be sensible , that disobedience and discord among our very members , causes the destruction and dissolution of the whole frame ; whereby nature her self not onely teaches us the necessity of that duty and obedience which the members owe each to other , but also of that obedience and duty , which all the members joyntly owe to the head ; and consequently what care the head ought to take for the preservation of the members . nature thereby giving us to understand , that the one cannot subsist in a sure and perfect estate , without the assistance of the other . the consideration whereof has occasion'd several of the ancient writers to resemble the estate of every good common-wealth to the natural body of man , whose health and vigour depends upon the orderly government of the several parts ; which occasions me to reiterate the same resemblance in some measure , and to divide a commonwealth into four parts . the first and chiefest part i take to be the royal estate , and the person , by god and the lawes of the land constituted and appointed as the head of the same . in the next degree i place the nobility and chief magistrates , upon whose shoulders lies the greatest burthen and charge of good government . the third , i take to be the commons , divided into sundry inferiour degrees , which i reckon to be the members of this body politick , among which i accompt , one of the most necessary to be the ministers of the law , which i may liken to the hands of this body ; whose natural function it is , not onely to defend the body , but also to afford such virtue and advantages as they receive from this common-wealth , to every particular part and member of the same , as occasion requires . by the fourth part ( so plac'd in order , for the more easie explanation of the outer-parts of this body politick , though indeed it ought to be rank'd in the second degree , next to the head , ) i mean the prelacy and clergie , which may fitly be resembled to the heari and vitals contain'd within the body , as being naturally separated in their functions from the external parts . which as they lye more conceal'd and secret , so are they more liable to discomposure , and distemper , whereby they are not onely in a condition to weaken themselves , but the head , the members , and indeed all the whole frame of the body : so that while neither are able to exercise their functions as they ought , the totum compositum at length must absolutely perish . on the other side , the members being orderly dispos'd , and rightly directed , both strengthen and render the whole body more vigorous and active , free from distemper , and corruption of humours . and thus it fares with a common-wealth , the members of which being under a sound and orderly management , it followes of necessity , that the same must be preserv'd and continu'd by civil and good government , which is the law , without which , no commonwealth can be well ordered and perpetuated . and this is the opinion of the famous bracton , who in the first book of his treatise entitl'd , quae sint vera necessaria , thus delivers himself , si autem reges defecerint , sic exterminabitur justitia , nec erit qui justum faciat judicium . which plato also affirms in these words , quis non apertis oculis cernit , necessariam humano generi esse legem ? nam absque legibus nihil ab atrocissimis feris descrepamur . and this commonwealth , from its very first establishment , was always govern'd by law ; the intrinsic worth whereof , so much by bracton recommended , being the subject of my discourse in part , occasions me to recite what he writes of our law , and the execution of the same . for the better understanding whereof , i shall divide it into five parts . first , what the extent of this law is : concerning which , the same author thus expresses himself ; intentio legis est , ut per eam doceantur & corrigantur errantes , & ut puniantur contumaces ; et ut mali efficiantur boni , et boni meliores tum metu poenarum , tum expectatione praemiorum : secundum horatii dictum : oderunt peccare boni virtutis amore , oderunt peccare mali formidine poenae . the second is , what advantage it brings to the students thereof : of which he writes in these words ; utilitas , adeoque legis nobilitas addiscentes honores conduplicat , et profectus , et facit eos principare in regno , et sedere in aula regia , et in sede ipsius regis . the third is , what the end of the law is : of which he thus writes : lex eò tendit , ut per eam jurgia sopiantur , lites discindantur , et vitia expellantur ; et in regno conservetur pax et justitia . the fourth , how available the execution thereof is to the common-wealth : of which the same author thus writes : justa & manifesta legis executio est regis & regni praeservatio . fifthly , what rules the ministers of the law ought to observe , and how they ought to be qualify'd . tria sunt praecepta jurisprudentiae professori necessaria , honestè vivere , alterum non ledere , et jus suum unicuique tribuere . the conclusion of all which in short is this , that the law reforms evil men , and makes good men better ; it brings honour to the professors and practicers of it ; it puts an end to all strife and contention ; vice is thereby expell'd , and peace and justice establish'd . that the true execution thereof is the preservation of the king and kingdom , and prescribes to the ministers thereof an honest life , to hurt no body , and to do as they would be done by ; which is the sum of our law , and of the execution of the same . 't is true , our law has been by some persons of late dayes vilify'd and contemn'd , in regard that it is not a certain law digested into great volumes , like the civil law , nor us'd in any other country . to which effect , thus quintus fabius , perfaelices essent artes , si de illis soli artifices judicarent . ignotum vero non solum non amari , sed et sperni solet . however if no law were to be admitted , but that which is written , we should then condemn the law of nature , which is the parent of all good lawes in the world ; and by which the chosen of god were directed and guided many hundred years before there was any law written : but there were other unwritten lawes besides this , as plato seems to intimate in his epistles , leges non scriptae inspiratione quadam de mentibus divinis in mentes humanas transfusae sunt . so that although our law was never written , yet since it is grounded upon the law of god and the law of nature , it may be said to be altogether as much authoriz'd by gods word , as any other human written law : according to that of st. paul , cum enim gentes qui legem non habent , naturaliter ea quae legis sunt faciunt , hujusmodi legem non habentes ipsi sunt lex sibi ipsis . and our law , as bracton writes , consists both of reason and reasonable custome . nor was it grounded at first upon the onely will of the prince , according to the maxim , quod principi placet , legis habet vigorem , but was made and ordain'd with the public consent of many , pro conservatione regis & regni , et in utilitatem reipullicae . and therefore it is also call'd lex politica , according to that of st. thomas , in his book dedicated to the king of cyprus , lex politica ex assensu populi , optimè instituta minor is non est efficaciae aut virtutis , quam lex regalis ab optimo principe promulgata . so that the authority of our law is nothing inferiour to the authority of all other human lawes . neither can the certainty of our law be better asserted and proved , than by the daily experience of the same . for by the order of the common-law of this realm , the end of all suits is as certain as the commencement , and the determination as quick as in any other law. on the other side , whether it be so dilatory and tedious , as the civil law in processes of appeal , i shall submit to the judgment of those that have had experience of both . now the reason why our law varies from the lawes of other countries , is because the realm of england was not known at the begining when the foundations of the jus civile were erected , and that law first ordain'd to be the general law of nations , at that time discover'd and more familiarly made known . and although our law be private to our selves , and not known to forreign countries , yet we are deem'd , by men of great learning and judgment , to excel all other countries , not onely for that the subjects of this realm are better govern'd , and kept in a more orderly quiet and obedience , than the subjects of other countries under the restraint of other lawes , but because the ordinary way of tryal by the same is more reasonable , and grounded upon more equity and indifferency , than the manner of tryal by any other law. now in regard the statute upon which i intend to discourse , was made for the reformation of certain abuses , that were by corruption advanced to hinder and overturn the ordinary way of tryal , it behoves me therefore to let you understand how many sundry sorts of tryal were formerly in use by the allowance of the old law of this realm ; and how the same have been , upon occasion , alter'd and reform'd ; as also to let ye know , wherein the ordinary tryals of our law varie from the tryals by other lawes , and wherein they excel and are of more worth than other tryals . and in regard that treason , murder , and felony , are the highest offences against the commonwealth , and such as the law hath most reason to punish , i shall begin with the tryal of them . the tryal of these crimes then , as it appeareth by glanvil , in the first chapter of his 14 th book , according to the custome of the old law , was this : if there were no proof nor accuser after sundry examinations and inquisitions taken upon the circumstances of the matter suspected ; or if there were any accuser or direct proof , and yet the party accus'd deny'd the same ; then the tryal according to the old law was by wager of battel , if the party accus'd were under the age of 60 years , and sound of his limbs . if he were diseased , or lame , or above the age mention'd , then he was to be try'd per judicium dei , that is to say , per calidum ferrum vel aquam , with these two differences , that if he were a freeholder , he should be put to run bare-foot and bare-legg'd over a certain row of iron barrs laid over burning coals , which if he pass'd thrice without stop or fall , then the law held him acquitted , as one to whom god had shew'd mercy in that behalf ; and therefore it was call'd judicium . if the accused party were of the meaner sort , which glanvil calls by the name of rustici , he was bound to run barefoot through such a number of vessels fill'd with scalding water ; which if he could pass without stop or fall , as before , then the law adjudg'd him free from the guilt . but because the tryal of treason , murder and felony , as well upon appeals as upon indictments , of all sorts of persons of all ranks and degrees , is more amply set forth in a treatise written by mr. justice stamford , entituled , his pleas of the crown , i will not undertake to impair the credit of his learning , by any weak endeavours of my own . there was also a tryal used in writs of right , which was only by wager of battel , according to the custom of the old law ; but is now either by wager of battel , or grand assize , at the election of the tenant . which tryal by grand assize , arose at first from the great clemency of the prince , and his care to avoid the shedding of blood , as glanvil declares in his seventh chapter of his second book ; est autem , saith he , magna assiza regale quoddam beneficium , clementia principis , de consilio procerum , populis indultum . another tryal i read of in the old law , which was of nonage or infancy , which was by the verdict of 8. men , as appeareth by glanvil , in the 18. chapter of his 13 th . book , where he produces a special writ of the same : but this is no law at this day , in regard that nonage shall now be tryed by inspection , and full age by a verdict of 12 men . neither do i read in the old law of any other ordinary tryal by any less numbers than 12 : though the old law and the law at this day in attaints , and some other special cases has always permitted a tryal by above the number of 12. however , the usual and ordinary tryal of matters by the common law of this realm , is for the most part , and alwayes has been by a verdict of 12 men ; which nevertheless has been practised with this circumstance : first the sheriff that empanelleth the inquest , is , or ought to be fairly chosen without favour or affection , by the mutual assent of the noblest , discreetest and most learned men in the realm , as by them thought to be a man in his countrey both indifferent and of good fame , who upon his nomination is admitted by the king , and is also sworn truly and uprightly to execute all things that belong to his office ; as also among the rest to make a true return of able and judicious men upon all such inquests as are by him to be empanell'd , according to the tenour of the writ , all freeholders of the neighbourhood where the fact in issue was committed , or the difference first arose . of which four by the old law were to be such as through their vicinity , could not be thought to be without some knowledg of the fact it self , or of the circumstances of the matter which they are to try . moreover , by the words of the writ they ought not to be such as are of any affinity to the parties to the suit or indictment . nevertheless , now all parties at the time of the inquest taken , have their challenges allow'd them , if there be cause ; so that no person shall be sworn to try any issue , but such as shall be thought indifferent to both parties . neither is the manner of the said tryal private or secret , but openly us'd in the face of the world ; where every person present may understand and judge of the proceedings . neither are the jury allow'd to proceed barely upon their own knowledg , but the parties shall be heard by their counsel ; and witnesses shall be sworn to give in evidence what they can for the proof or disproof of the matter in issue , for the better instruction of the jury , and satisfaction of their consciences . after the evidence given on both sides , they are closely lockt up by one or more keepers , sworn to keep them from all persons , and without meat , drink , fire or candle , till they be agreed of their verdict . so that the ordinary tryal of the law of this realm is grounded upon so many circumstances of equity and indifference for the avoiding all corruption and sinister affection , that greater caution cannot be devis'd by man. which if we well consider , and then compare the tryal of other lawes with our own , we cannot but easily perceive the tryal of our own law to be of far more justice than the tryal of any other human law , in regard the tryal of all other lawes is by witness onely ; which being two in number , are sufficient , so that their credit be good . as for the extent and force of the depositions , it remains for the judge to make his construction and exposition of them . now how many hazards and inconveniences both of life and limb and estates , men may be brought into , whose causes depend upon the testimony of two witnesses , being sworn and examin'd in secret , out of the sight and hearing of the party against whom they are produc'd , who is thereby at a loss how to make his defence ; besides that the examples of holy writ it self sufficiently declare , in the case of jesebel and naboth , and susanna and the elders ; several other authentick stories are full of tragical presidents to the same purpose . briefly then i conclude , that the law of this realm , and the tryal by the same , is not to be amended or reform'd by the wit of man , so that it be rightly and duly executed according to the true intent and meaning of the first institution . but as no law in the world ever had or could have so good and pious an intent , but that the wickedness and perversness of human nature will be still contriving by sundry wayes and means to elude and pervert the course of justice , the same attacques were made to subvert the ordinary tryal of the common law of this realm , at first sincerely and uprightly instituted , and upon advice and mature deliberation admitted , to the onely end that justice and equity might be administred impartially to all sorts and degrees of men : and which was accordingly practiz'd for a long time , till it was interrupted and almost abrogated by the leud and sinister devices of several persons reaping advantages from the encouragement of enormity , particularly mentioned in the preamble of the statute made for reformation of those abuses and punishment of the malefactors relating to it . upon which statute , as being of great and weighty moment , i have here undertaken to make a short discourse . l'estatute de anno xxxv . henrici octavi , cap. vi . touchant l' appearance de jurours per brief de nisi prius . forasmuch as the issues joyned in every action , suit , and demaund between party and party at the common law , are by the lawes of this realm , for the most part tryed and tryable by the verdict of twelve men , wherein is daily seen great delay , partly for lack of appearance of the persons returned to try such issues , the occasion whereof cometh by reason of maintenance , imbracery , sinister labour , and corrupt demeanours ; and partly by reason of the challenges of the parties to the jurie or jurours so returned , to the great costs , charges and hinderance of the parties to the said actions , suits and demands , and to the great delay and hinderance of justice . for reformation whereof , and for the more expedition of justice hereafter to be had in such manner of tryals of issues : be it enacted by the authority of this present parliament , that in every case where such persons as should pass upon the tryal of any issue joyned in any of the kings courts of record , commonly holden at westminster , ought by the law to dispend forty shillings by the year of freehold for term of life : that the writs of venire facias which from and after the first day of april next coming , shall be awarded and directed for the impanelling of such persons as shall try the same issue , shall be in this form , rex &c. precipimus &c. qd ' venire fac ' coram &c. xii liberos & legales homines de visn ' de b. quorum quilibet habeat quadraginta solidat ' terrae tenementorum vel reddit ' per annum ad minus , per quos rei veritas melius sciri poterit . et qui nec &c. and so forth the residue of the said writ after the ancient form . and in every case where it is not requisite , that the persons that shall pass upon the tryal of any issue joyned in any of the kings courts aforesaid , shall dispend forty shillings by the year of freéhold : that then the writs of venire facias , that shall be awarded after the said first day of april , shall be made after the form aforesaid , omitting this clause , quorum quilibet habeat quandraginta solidat , terrae tenementorum vel reddit ' per annum ad minus . and that upon every such writ and writs of venire facias , that shall have the said clause quorum quilibet &c. the sheriff , or other minister or ministers to whom the making of the panel shall appertain shall not retorne in any such panel any person unless he may dispend forty shillings by the year at the least , of estate of freehold , out of ancient demesne within the county where the issue is to be tryed . and also shall return in every such panel upon the same venire facias six sufficient hundredors at the least , if there be so many hundredors within the said hundred where the venew lieth , upon pain to forfeit for every one being returned in any such panel , that cannot dispend forty shillings by the year , as is aforesaid , twenty shillings ; and for every hundredor that shall be omitted in such return of the number aforesaid , twenty shillings . and in every writ of venire facias , wherein the said clause quorom quilibet &c. shall be omitted , the sheriff or other minister or ministers , to whom the making of the panel shall appertain , shall not retorne in any such panel any person , unless he may dispend some lands or tenements of estate of freehold out of antient demesne within the county where the issue is to be tryed ; and also shall return in every such panel upon the same venire facias six sufficient hundredors at the least , if there be so many hundredors within the said hundred where the venew lyeth , upon like pain as is aforesaid . and furthermore be it enacted by the authority aforesaid , that upon every first writ of habeas corpora , or distringas with a nisi prius , delivered of record to the sheriff or other minister or ministers , to whom the making of the return shall appertain , the said sheriff or other minister or ministers shall from and after the said first day of april , return in issues upon every person impanelled and returned upon any such writ , at the least five shillings ; and at the second writ of habeas corpora or distringas with a nisi prius , upon every person impanelled and returned upon any such writ , ten shillings at the least ; and at the third writ of habeas corpora or distringas with a nisi prius that shall be further awarded upon every person impanelled and returned upon any such writ , thirteen shillings four pence ; and upon every writ that shall be further awarded to try any such issue , to double the issues last above specified , until a full iury be sworn , or the process otherwise cessed or determined , upon pain to forfeit , for every retorn to be made contrary to the form aforesaid , five pounds . and for a more speedy tryal of issues to be tryed by the verdict of twelve men hereafter to be had : be it further enacted by the authority aforesaid , that in every such writ of habeas corpora or distringas with a nisi prius , where a full iury shall not appear before the iustices of assize or nisi prius , or else after appearance of a full iury , by challenge of any of the parties , the iury is like to remain untaken for default of iurours : that then the same iustices , upon request made by the party plaintiff or demandant , shall have authority by vertue of this act , to command the sheriff or other minister or ministers , to whom the making of the said return shall appertain , to name and appoint as often as need shall require , so many of such other able persons of the said county then present at the said assizes or nisi prius , as shall make up a full iury ; which persons so to be named and impanelled by such sheriff or other minister or ministers , shall be added to the former panel , and their names annexed to the same ; and that every of the parties shall and may have his or their challenge to the iurours so named , added and annexed to the said former panel by the said sheriff or other minister or ministers , in such wise as if they had beén impanelled upon the venire facias awarded to try the said issue ; and that the said iustices shall and may proceed to the tryal of every such issue with those persons that were before impanelled and returned , and with those newly added and annexed to the said former panel by vertue of this act , in such wise as they might or ought to have done , if all the said iurours had beén returned upon the writ of venire facias awarded to try the said issue ; and that all and every such tryal had after the said first day of april , shall be as good and effectual in the law to all intents , constructions and purposes , as if such tryal had beén had and tryed by twelve of the iurours impanelled and returned upon the writ of venire facias awarded to try such issue : and in case such persons as the said sheriff , minister or ministers , shall name and appoint , as is aforesaid , or any of them , after they shall be called , be present and do not appear , or after his or their appearance do wilfully withdraw him or themselves from the presence of the court : that then such iustices shall and may set such fine upon every such iurour , making default , or wilfully withdrawing himself as is aforesaid , as they shall think good by their discretion ; the said fine to be levied in such manner and form as issues forfeited and lost by iurours of default for their appearance at the common law , have beén accustomed to be levied . and be it further enacted by the authority aforesaid , that where any iury , that shall be returned by the sheriff or other minister or ministers , shall be made full by the commandment of the said iustices by vertue of this present act , that yet nevertheless such persons as were returned in the said panel by the sheriff or other minister or ministers , to try any such issue that shall not appear , but make default , shall lose the issues upon them returned , in such wise as though the iury had remained for default of iurours . provided alway , and be it enacted , that upon a reasonable excuse for the default of appearance of any iurour or iurours sufficiently proved before the iustices of assize or nisi prius , at the day of their appearance by the oaths of two lawful and honest witnesses , that the same iustices shall have authority by their discretions to discharge every such iurour of every such forfeiture of issues upon him returned ; and that the sheriff and sheriffs , or other minister or ministers , having commandment by the said iustices to omit the returning of such issues , as is aforesaid , upon such iurour or iurours , shall be therein discharged of the penalties aforesaid , for the non-returning of the said issues , and that yet notwithstanding the said return to be good and effectual in the law ; any law , vsage , or custom to the contrary notwithstanding . provided also , and be it enacted by the authority aforesaid , that if the said iustices afore whom any iurour should appear in the county , where such issue is to be tryed by vertue of a writ of nisi prius , do not come at the day and place appointed , but that the assize or nisi prius for that time shall be discontinued for not coming of the said iustices , or for any other occasion , other then for default and lack of iurours , that then every one of the said iurours shall be discharged for forfeiting of any issues upon him returned in the same writ ; and the sheriff or other minister or ministers shall be likewise discharged of the penalties of this statute for the non returning of such issues as are before limited in this act ; any article or sentence herein contained to the contrary notwithstanding . and be it also further enacted by the authority aforesaid , that if upon any such writ of habeas corpora or distringas with a nisi prius , issues be returned upon any hundredours , iurour or iurours , by the sheriff or other minister or ministers to whom the execution of the same writ or writs shall appertain , whereas the same hundredours and iurours shall not be lawfully summoned , warned or distrained in that behalf , that then every such sheriff or other minister or ministers aforesaid , shall lose for every such offence so committed , double so much as the said issues returned upon such hundredours or iurours not lawfully summoned , warned or distrained , shall amount unto , the moyety of all which forfeitures contained in this present act , other then the issues to be returned upon the iurours as is aforesaid , shall be to the king our soveraign lord ; and the other half to him that will sue for the same , by action of debt , bill , plaint , or information , in any of the kings competent courts , in which no wager of law , essoine , or protection shall be allowed , nor admitted ; saving to all manner of persons and bodies politick and corporate , their heirs and successors , having lawful right , title and interest to have such issues to be before any such iustices of assize or nisi prius , at any time or times hereafter loft and forfeited , all such right , title and interest , as they or any of them shall or might have had to such issues to be lost and forfeited , as though this act had never been had or made . provided also , that this act nor any thing therein contained , shall not extend to any city or town corporate , or to any sheriff , minister or ministers in the same , for the returning of any inquest or panel to be made and returned of persons inhabiting in the said cities or towns corporate , but that they and every of them shall and may return such persons in every such inquest or panel , as before this time they might and have been accustomed to do , and as this act had never been had or made , so that the same sheriff , minister or ministers return upon such persons as shall be impanelled , like issues as are before mentioned in this act ; any thing in the same contained to the contrary notwithstanding . lectio prima . le mischeif al comen ley devant le fesans de cest estatute , appiert per le preamble de cest estatute ; et pur ceo què les parols d'estatute soient què issues joine in chescun action suit & demand perenter partie & partie al comen ley soient pur le pluis part per la ley del ' terre triable per le verdict de xii homes , les queux trials ount estre delay per le mischeif & abuse que l' estatute reherse ; pur remedy le quel cest estatute fuit fait ; et pur ceo que les parolls d estatute soient general que issues joine in chescun action suit & demand &c. et pur ceo que nul issue poet estre joine , ne ascun triall de ceo ensue mes per original ou action de ceo primerment commence : jeo entend ove vostre pacience primerment de monstre a vous en queux actions suits & demands le triall purrey per cest estatute prendra son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre port & commence ; et en quel lieu le court doiet estre tenus ; et quant l' action avera son commencement en l'un court , et serra mise a son triall en auter court. primerment moy semble que le triall ordeine per cest estatute gist forsque en tiels actions queux averont lour ordinarie triall per duodes homes & non plusors , et ceo forsque en ceux actions en queux le process de venire facias , habeas corpora , & distringas , gist vers les jurours apres issue joine ; et en nuls auters actions . 1. en appeal de mort d'un home , ou en appeal de robbery , ou rape , les defendants plede rien culpable , moy semble que le trial en ceux actions ne serra solonque l'entendment de cest estatute . 2. en un praemunire vers un qui suppose , què le defendant ad luy emplede en court christian pur chose touchant le corone determinable per le comen ley , a que le defendant plede rien culpable , moy semble què ceo nest triable deins le purvey de cest estatute . 3. en warantia chartae le defendant dit què le plaintiff ne fuit tenant del ' terre jour de breif purchase , sur que ils soient al issue , moy semble què ceo est triable solone ; l'entendment de cest estatute . 4. en ex gravi quaerela port , per que est suppose què la terre fuit devise a j. s. en tail , et le defendant dit que cestuy qui fist le devise fuit seisie en tail del ' terre al temps del devise , sur que ils soient al issue , moy semble què ceo nest triable deins le purvey de cest estatute . 5. en attaint le tenant del ' terre & le petit jury soient al issue ove le demandant sur le faux serement , moy semble que ceo nest triable solonque l'entendment de cest estatute . 6. en breif de droit devant les justices nostre seignioress la royne le tenant appiert et plede al grand assise , moy semble que ceo nest triable solonque l'entendment de cest estatute . 7. un esteant en execution sur estatute merchant port breif de audita querela supposant que le creansor avoit relesse a luy touts maners d'actions , sur que le creansor appiert , et plede nient son fait , moy semble que le plaintiff ne serra aide en son trial per cest estatute . 8. en breif de recto de rationabili parte devant les justices del ' comen bank l'issue est joine sur le privitie del sank , moy semble que le pl't poiet aver son trial solonque l'entendment de cest estatute nient obstant que il soit breif de droit . 9. en assise port devant les justices d'assise deins le countie de middlesex le tenant plede un forrein release sur que l'assise est adjourne en bank , et la ils soient al issue sur le release , moy semble que le demandant poiet aver son triall solonque l'entendment de cest estatute . 10. en breif de customs & services en le debet le demandant fist son demand d'aver homage , fealtie suit al court , & 4. soulz de rent , le tenant confesse le tenure del ' homage , et travers ' touts les auters services , sur quel ils soient al' issue , moy semble que le plaintiff serra aid en son trial per cest estatute . 11. en breif de customs & services le demandant demand ' d'aver les services de fealtie , suit al court , & 4 soulz de rent , et le tenant plede al issue pur touts les services , moy semble què le plaintiff ne serra aid en son trial per cest estatute . 12. en iuris vtrum port per le parson de dale devant les justices del comen bank , le defendant appiert et prie que les points del breif soient enquire , moy semble que le plaintiff ne serra aid en son trial per cest estatute . quaere . 13. en breif de droit sur disclaimer le demandant & le tenant soient al issue sur le tenure , moy semble que le plaintiff ne serra aid en son trial solonque l'entendment de cest estatute . 14. tenant per le curtesy port breif de customs & services vers un auter qui est tenant en fee , et ils soient al issue , moy semble que le plaintiff poiet estre aide en son trial per cest estatute . 15. en un attachment sur ne injuste vexes perenter le seignior & le tenant le count est d'encroachment des services per le seignior , et ils soient al issue sur le droit des services , moy semble que le tenant ne serra aide en son trial per cest estatute . 16. en decies tantum les plaintiff & defendant soient al issue sur le prisel des deniers , moy semble que le plaintiff ne serra aide en son trial per cest estatute , et uncore il est triable per verdict de xii . 17. en breif de champerty per que est suppose que le defendant avereit purchase certen terre puis champerty , a que le defendant plede rein culpable , moy semble que le plaintiff poiet estre aide en son trial accordant a les parolls de cest estatute . 18. en quo minus port per fermer le roy , ou per auter person que est accomptable al roy , le defendant plede al issue , moy semble que le plaintiff poiet estre aide en son triall accordant a cest estatute . 19. en quod ei deforceat le tenant appiert et monstre son title per que il reccon destre eins per un done en tail fait per j. s. in que ils soient al issue , moy semble que le demandant poiet estre aide en son trial per cest estatute . 20. en parco fracto le defendant justifie l'enfriender del ' pound per vertue d'un replevin , et le plaintiff maintaine que il ceo fist de son tort demesne &c. sur que ils soient al issue , et al jour del ' enquest en bank ascuns fueront jurès , et auters treits per challenge , per que l'enquest remaine pur default des jurours , moy semble que le pl't en cest case failera de son trial solonque l'entendment de cest estatute . quaere . 21. en assise de mordancestor port en le comen bank , le tenant appiert et prie que les points del breif soient enquires , moy semble que le plaintiff ne poiet aver son triall solonque l'entendment de cest estatute . 22. en certificate d'assise sue en le comen bank les parties soient al issue sur un release portant date en auter county que lou le terre est , moy semble què le plaintiff poiet aver son triall accordant a cest estatute . 23. en appeal de mayhem le defendant plede que le male que le plaintiff avoit fuit de son assaut demesne , & en son defenz , et le plaintiff dit de son tort demesne sanz tiel cause , sur que ils soient al issue , moy semble que le plaintiff avera nisi prius , et uncore il ne serra aide en son triall per cest estatute : mes en breif de trans ' pur tiel maime sur tiel issue le plaintiff poiet estre aide en son triall per cest estatute . quaere . 24. un abbe qui recover en breif de cessavit sue quale ius devant mesme les justices d'enquirer de son droit , moy semble que le breif de nisi prius poiet estre bien agard pur l'abbe en cest case , et uncore , moy semble que il navera son triall en ceo solonque l'entendment de cest estatute . 25. en attachment sur prohibition le defendant appiert et plede rien culpable sur que nisi prius est agard , moy semble que le plaintiff poet aver son triall solonque l'entendment de cest estatute . 26. en breif d'estrepement port per un qui fuit plaintiff en scire facias d'executer fine vers le tenant ' en quel il plede al issue , moy semble què le plaintiff poiet aver son triall en cest action accordant a les parolls de cest estatute . quaere . 27. en breif de disceit port de ceo que le defendant avoit fauxment gest un protection en ley d'un action que le plaintiff avoit pendant vers luy , en quel ils soient al issue , moy semble que le plaintiff ne serra aide en son triall per cest estatute . quaere . 28. en action sur l'estatute de labourers le defendant dit que il luy reteine esteant vagrant , sur que ils soient al issue , moy semble que le plaintiff poiet aver son triall solonque l'entendment de cest estatute . 29. en forger de faux faits le defendant plede rien culpable , moy semble que le plaintiff poet aver son trial solonque l'entendment de cest estatute . 30. en curia claudenda le defendant dit que le close prochein adjoinant al close a que le plaintiff claime l'enclosure est le franktenement de j. s. et nemy del ' defendant , sur quel ils soient al issue , moy semble que le plaintiff serra aide en son triall sur cest estatute . 31. en nuper obiit per un copercener vers un auter que dit què puis le mort de lour ancestor un j.s. fuit seisie del ' terre &c. et de ceo enfeoffe le plaintiff , sur quel ils soient al issue , moy semble que le plaintiff , poiet aver son trial per cest estatute . 32. en breif de faux iugement en le comen bank le defendant dit que le record est auter que est certifie , sur que ils soient al issue , moy semble que ceo serra trie per pais de xii homes , uncore le plaintiff ne serra aide en son triall per cest estatute . quaere . 33. en brief d'error pur reverser judgment done en precipe quod reddat le plaintiff assigne pur error que le tenant vers que le recovery fuit ewe fuit mort al temps del ' judgment done , sur que ils soient al issue , moy semble que le plaintiff en cest case poet aver son trial per cest estatute . quaere . 34. sur office trove per diem clausit extremum , est trove , que j. s. tenust le mannor de dale del ' roy en cheif , lou il ceo tenust d'un auter en socage , sur que l'heire mitte eins son travers , moy semble que ceo est triable al nisi prius per verdict de xii homes ; et uncore l'heire ne serra aide en son triall per cest estatute . 36. en quare incumbravit vers l'evesque de londres , il plede , que il ne incumbr ' pas , moy semble que ceo est triable per pais solonque l'entendment de cest estatute . 36. en breif de contra formam feoffamenti les parties soient al issue sur le quantity des services , moy semble que ceo poet estre trie solonque l'entendment de cest estatute . 37. en praecipe in capite l'issue est joine sur non-tenure , et al jour d'enquest venust j. s. et surmise al court , que le terre en demand est tenus de luy & nemy del ' roy en cheif ; et deliver as justices un special breif d'enquirer de ceo , sur que les justices agard que cest matter serra enquire per mesme l'enquest , sur que nisi prius est agard pur le trial de ceo , moy semble que le plaintiff en le primer breif serra aide en son trial per cest estatute , mes nemy j. s. quaere . 38. en disceit vers un auter de ceo que le defendant avoit forge un estatute per quel le plaintiff serroit tenus a luy en c. li. le defendant plede rien culpable , le plaintiff serra aide en son trial per cest estatute . 39. en action sur le case port per un des justices del ' comen bank , de ceo que le defendant avoit luy sclander overtment en le court del ' comen bank devant touts les justices , le defendant plede rien culpable , moy semble que ceo nest triable solonque l'entendment de cest estatute . 40. en action sur l'estatute que voet , que nul forester ne arresta ascun home deins le forrest si non que il luy trove ove le manner , a que le defendant dit , que il luy trove ove le manner &c. sur que ils soient al issue , moy semble que le plaintiff en ceo case poet aver son triall solonque l'entendment de cest estatute . et moy semble que cest estatute est cy bien destre entende des judicials & actions & demands come des originals si ascun issue soit joine en eux que est triable per nisi prius et per le verdict de xii homes . 41. si en scire facias d'executer un fine le tenant plede non-tenure ou seisin en le demand ' ou auter plee sur que tiel issue poet estre joine quel est triable per pais , moy semble que le plaintiff avera son trial en ceo solonque l'entendment de cest estatute . les parolls del ' statute sont des issues joine en ascun courts le roy de record comenment tenus a westminster , moy semble que ceo est destre entend en l'un de ceux courts scilicet le chancery , le bank le roy , le comen bank , & l' exchequer , et nemy d' ascun auters courts . 42. si ascun action soit port per ascun des clerks del ' chancery vers un auter , et ils plede al issue en mesme le court , ceo poet estre bien trie al nisi prius solonque l'entendment de cest estatute , mes nemy per breif de nisi prius hors de mesme le court. 43. en mesme le manner est si ascun qui ad privilege en l'excheker sue auter la per bill ou auterment , sur que issue est joine la que est triable per pais de xii homes , ceo serra trie per nisi prius hors de cest court , en quel le plaintiff poet aver son triall solonque l'entendment de cest estatute . cest estatute nest tantsolement destre entende de tiels actions & suits que soient primerment commence en un des dits courts , car en ascun case si l action soit commence en auter court , uncore serra trie solonque l'entendment de cest estatute , si l' issue que est d'estre trie soit joine en ascun des dits courts . 44. en breif de droit port en londres , ou praecipe quod reddat deins le county palatine lou le tenant vouche foreiner a garantie , le record serra mise en comen bank , et process la fait vers le vouchee , et sil appiert et counterplede le lieu , sur que ils soient al issue , ceo serra trie solonque l'entendment de cest estatute . lou l' estatute parle des issues joine en les courts le roy comenment te●us a westminster , uncore nest de necessity que l' issue doit estre joine en un des dits courts al westminster et nemy alyours ; car si les courts avandits soient remove de westminster al ascun auter lieu pur ascun cause per adjornement , on que les courts del ' bank le roy et le chancery ensueront le person le roy en ascun lieu deins le royalme , et l issue que est triable per nisi prius solonque l'entendment de cest estatute soit joine perenter partie & partie en ascun lieu ou ils soient hors de westminster ceux issues serra trie solonque l'entendment de cest estatute cybien sils ussoient estre joine cy al westminster . 45. si le court del ' comen bank ou bank le roy soit pur ascun cause remove deins le county de lincolne , en assise la port devant les justices les parties soient al issue la sur un forrein release , et puis les courts devant le triall de ceo soient remove al westminster , moy semble que le plaintiff poet aver nisi prius , et aver son trial solonque l'entendment de cest estatute . mes si l'issue ussoit estre joine sur le seisin & disseisin , moy semble que le plaintiff en ceo case poet aver nisi prius , mes n'avera son triall en ceo solonque l'entendment de cest estatute . et issint jeo ay monstre a vous mon opinion sur l un branch de cest estatute de quels actions suits & demands cest estatute est d'estre entende , et en queux courts , et en quel lieu les actions ou les issues doient estre commence et joine . lectio secunda . en mon darrein lecture jeo aye monstre a vous en queux actions , suits & demands le triall purvey per cest estatute prendra son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre port et commence , et en quel lieu le court doiet estre tenus , quant l' action serroit commence , et quant l' action commencera en l'un court & serra mise a son triall en auter court. et ore jeo entende ove vostre pacience de monstre a vous sur ceux parolls d' estatute des issues joine enter partie & partie , enter queux persons & parties le triall purvey per cest estatute prendra effect ; et que serra dit partie deins le purvey de cest estatute , et que nemy . et jeo entende que ceux parols d' estatute enter partie & partie serra tantsolement entende des comen persons , et nemy perenter le roy & ascun auter person , ne ou le roy joine ove ascun auter en ascun action le quel il poet per son release ou pardon discharge devant l' action port . 1. et pur ceo si le roy joine ove ascun auter en ascun popular action sur ascun estatute penal vers un auter , moy semble que nul d'eux est ascun partie deins le purvey de cest estatute . 2. si nostre jadis roy h. viii . qui fuit marrie al royne que fuit seisie del ' terre devant le coverture en quel un estranger fist trespass , en ascun action port vers luy durant le vie le roy nul d'eux serra dit partie deins le purvey de cest estatute ; mes si la royne , apres le mort le roy , ust port action pur cest trespass , la royne & le trespassor ussoient estre ambidieux parties deins le purvey de cest estatute . 3. si ascun entrude sur ascun des possessions la royne que ore est , el ( durant le vie le roy , ne apres son decease , si el luy survesquit , en ascun action port per luy pur punisher ceo ) ne serra dit partie deins le purvey de cest estatute . 4. en detinue de chartres le defendant dit , que ceux fueront liverès a luy per le plaintiff sur le condition , que si le plaintiff paiera al j. s. xl . s. al feast del ' pentecost darrein passe que adonque serra deliver a luy , et si'l fault de paiement que donque serra deliver al dit j. s. le quel j. s. vient per garnishment , et dit que les deniers ne fueront paie &c. le plaintiff averre que cy , sur que ils soient al issue , moy semble que j. s. est partie deins le purvey de cest estatute , et uncore il nest partie al original . 5. en detinue de chartres le defendant dit , que fueront liverès a luy per le plaintiff & per a. b. sur condition &c. le quel a. b. venust per garnishment , et dit que les chartres fueront liverès per luy mesme solement al defendant &c. sans ceo que ils fueront liverès per luy et per le plaintiff sur condition , sur que issue est prise , moy semble què a.b. nest partie deins le purvey de cest estatute . 6. en precipe quod reddat cestuy en reversion est receive pur default del ' tenant pur vie , et plede release del ' demandant fait al tenant pur vie sur que ils soient al issue , moy semble què le tenant per receit est partie deins le purvey de cest estatute . 7. deux coparceners ount cause d'action de formedon l'un d'eux entermarrie ove un alien , et le baron & feme & l'auter parcener portont formedon accordant a lour droit , moy semble què le parcener nient marrie est partie deins le purvey de cest estatute , mes le baron & feme nemy . 8. en detinue de chartres le defendant dit , què fueront bailès a luy per le plaintiff et deux auters sur condition , et prie garnishment , le vicount retorne què l'un est garnie , et l'auter nichil &c. cestuy qui fuit retorne garnie appiert , moy semble què il est partie deins cest estatute . 9. en detinue garnishment fuit prie vers deux queux soient retorne garnie , sur què l'un appiert , et l'auter fist default , moy semble què cestuy qui appiert est partie deins le purvey de cest estatute . 10. en detinue garnishment est prie vers deux queux soient retorne l'un garnie , et què l'auter est mort , cestuy qui fuit garnie appiert , moy semble què il en cest case est partie deins le purvey de cest estatute . 11. a. b. & c. d. deliveront un fait de feoffment ( containant condition , per que a.b. ad enfooffe c.d. del ' mannor de dale ) a un j.s. safement de garder & redeliver al a.b. sur certeins conditions destre performès , auterment il serra reliver a c. d. et puis j. s. enfreint le seale del ' dit fait per casualtie , et puis a. b. port breif de detinue pur mesme le fait , et j. s. venust et monstre al court le feoffment ove le seale enfreint , et prie garnishment vers c. d. moy semble què c. d. en cest case , ne poet estre dit partie deins le purvey de cest estatute . 12. seignior & tenant per fealtie & 10 s. de rent , le seignior per son bailiff distraine pur rent arreare , sur que le tenant sue replevin , et le bailiff fist cognizance come bailiff al seignior , a que le seignior agree , et joine & avowa le prisel per son bailiff , moy semble que le seignior est partie deins le purvey de cost estatute , et le bailiff nemy . 13. est trove per un office què a.b. al jour de son mort tenus le mannor de dale del ' roy en cheif , lou il ceo tenust d'un auter en socage , et j.s. esteant l'heire d'a.b. travers l'office , et moy semble que j. s. nest partie deins le purvey de cest estatute . 14. a. b. & c. d. tenants en comen del ' mannor de dale a que un advowson est appendant que est tenus del ' roy en cheif , a. b. morust ( son heire deins age ) le roy seisist , sur office trove , et grant proximam advocationem al j.s. l'esglise devient void , l'ordinary present de son tort j.s. et c. d. port quare impedit vers l'ordinary , moy semble què j.s. & c.d. soient parties deins le purvey de cest estatute ; mes si le roy & c. d. ount joine en quare impedit c. d. nust estre partie deins le purvey de cest estatute . 15. si le roy grant al abbe de westminster per les letters patents què les moignes del ' dit abbie averont touts les temporalties & touts les advowsons queux appertaine al abbie durant le vacation del ' abbie , et le abbe morust , advowson devient voide , les moignes present , uncore si estranger present , et ils porteront quare impedit de ceo , ils soient parties deins le purvey de cest estatute . 16. en quod ef deforceat le tenant maintaine le title de son primer breif per un done en frankmarriage , sur que le demandant vouche , et le vouchee enter en le garrantie , et plede le release del ' recoveror , en barre , sur que ils soient al issue ; moy semble què le recoveror ne le vouchee soient ascun parties deins le purvey de cest estatute . 17. en quod ei deforceat sur title fait per le tenant , le demandant vouche , et le vouchee appiert , et counterplede le lieu , sur que ils soient al issue ; moy semble què le demandant & le vouchee sont ambideux parties deins le purvey de cest estatute . 18. en precipe quod reddat le tenant vouche , et le vouchee appiert , et counterplede le lieu , sur que ils soient al issue , moy semble què le vouchee et le tenant soient parties deins le purvey de cest estatute . 19. en precipe quod reddat le tenant vouch j. s. qui enter en le garrantie per process , et vouch ouster un estranger , qui appiert per process , et enter en le garrantie come un qui ad reins per discent , et j. s. maintaine què il ad assets per discent deins le countie de c. sur que ils soient al issue ; moy semble què j. s. & le second vouchee soient parties deins le purvey de cest estatute . 20. en certificate d'assise devant les justices del ' bank , un issue est joine enter les parties , que est triable per assise , et pur ceo que le terre est en un auter countie que lou le breif est port nisi prius est agard ; moy semble què le plaintiff ne le defendant soient parties deins le purvey de cest estatute . 21. en dett per un alien vers un denison , ils soient al issue , et venire facias est agard ; moy semble què nul d'eux est partie deins le purvey de cest estatute . mesme le ley en breif de trespass ou auter action perenter denison & alien come jeo intende . 22. en breif de dett per un alien vers un auter alien , en que ils soient al issue ; moy semble què ils deux soient parties deins le purvey de cest estatute . 23. en dett port per un alien vers un denison , et pendant le breif le plaintiff est fait denison , et puis soient al issue ; moy semble què ils deux soient parties deins le purvey de cest estatute . 24. en breif de covenant port per un denison vers un alien & un denison , en quel ils soient al issue ; moy semble què les deux denisons soient parties deins le purvey de cest estatute : mes l'alien nest my partie deins le purvey de cest estatute : 25. en dett port per un alien vers un auter alien , et pendant le breif le plaintiff est fait denison , et puis soient al issue sur que un venire facias solonque les parolls de cest estatute est retorne ; moy semble què ambideux soient parties deins le purvey de cest estatute . mesme le ley est si le defendant ust estre fait denison pendant le plea. 26. en dett vers trois executors , deux appieront et plede le release del ' plaintiff , sur que ils soient al issue , et l'auter vient al exigent , et plede què est un auter executor qui ad administer nient nosmè en le breif ; moy semble què le plaintiff & les deux executors qui primes plede soient parties deins le purvey de cest estatute , et l'auter executor nest partie deins le purvey de cest estatute . 27. le roy grant per ses letters patents al major & communaltie de dale , què quandocunque què ascuns del ' communaltie soient emplede pur ascun contract per ascun de eux fait touchant merchandise , et il soy miste en enquest de ceo , que la moietie del ' dit enquest serra del ' dit communaltie , et un del ' communaltie est emplede pur chose touchant merchandise , qui plede al issue , et un venire facias est agard accordant a lour grant ; moy semble què le plaintiff ne le defendant ne soient parties deins le purvey de cest estatute . 28. le pape per ses bulles enhable un moigne d'estre parson d'esglise de dale , et d'aver tout ceo que appiert a tiel esglise , et auxy de prender de chescun auter donant terres ou tenements al endowment de son esglise , et puis terre est a luy done per licence le roy per le nosme de parson de dale & a ses successors , sur quel possession un estranger enter et fist trespass , sur que il port breif de trespass ; moy semble què le parson de dale est partie deins le purvey de cest estatute . 29. si le roy per les letters patents enhable un moigne et luy fait son fermour del ' mannor dale , et il per le nosme de j.s. moigne port breif de trespass vers estranger pur trespass fait sur cest terre ; moy semble què il est partie deins le purvey de cest estatute . 30. feme que ad baron qui est attaint et abjure le realme purchase terre en que un estranger fist trespass , et el port breif de trespass ; moy semble que el est partie deins le purvey de cest estatute . 31. un prior , qui est datife & removeable , et de temps d'ont memorie ad use de suer & destre sue per tiel nosme , il port breif de trespass en quel issue est joine , et puis est remove et un auter enstallè ; moy semble que cest novel prior est partie a cest issue deins le purvey de cest estatute . le roy grant le farme d'un ville ove un market deins ceo al un moigne d'estre tenus per deux jours en le semayne rendrant x li. per annum , et puis le roy grant al j. s. & a ses heires un market d'estre tenus deins lour ville de dale a mesme les jours que l'auter market serra tenus , ove ceux parolls issint que ne soit nusance del ' prochein market , et le moigne sue scire facias de reverser les darrein letters patents , en quel ils soient al issue sur le nusance ; moy semble que le moigne est partie deins le pvrvey de cest estatute . 35. un moigne est vicar d'esglise de dale perpetual et nient removeable , et ad use de pleder & d'estre emplede per tiel nosme de vicar &c. et il port breif de trespass fait en son glebe , en quel issue est joine ; moy semble què le moigne est partie deins le purvey de cest estatute . mes si le vicar morust et auter est fait vicar , moy semble què le darrein vicar nest partie a cest issue deins le purvey de cest estatute . 34. home qui est endette enter en religion , et le dettee port breif de dett vers l'abbe & le commoigne qui fuit endettè , et ils pledent al issue ; moy semble què l'abbe & le commoigne soient parties deins le purvey de cest estatute . 35. en trespass port per trois d'ont l'un est un moigne , et ils pledent al issue per attorney ; moy semble què le moigne & touts auters soient parties deins le purvey de cest estatute . 36. en trespass de battery per un abbe & son commoigne de battery fait al commoigne , en quel le defendant plede al issue ; moy semble que l'abbe & le commoigne soient parties deins le purvey de cest estatute . 37. en action sur l'estatute de anno octavo henrici sexti lou les parolls del ' breif soient tam pro domino rege quam pro seipso , et le defendant plede al issue ; moy semble què le plaintiff & le defendant soient parties deins le purvey de cest estatute . en mesme le manner est en action port sur l'estatute de 5 r. 2. 38. en breif de conspiracy port vers baron & feme , et ils plede al issue ; moy semble que ils ne soient parties deins le purvey de cest estatute . 39. en breif d'accompt vers deux l'un appiert & plede al issue , et process continue vers l'auter , sur que il est utlage , et vient eins sur capias utlegatum , a quel temps le plaintiff esteant present , il plede misnomer d'avoider l'utlary , et le plaintiff maintaine son nosme accordant al breif , sur que ils soient al issue ; moy semble que le person utlage en ceo case nest partie deins le purvey de cest estatute . 40. en replevin aide fuit prie d'un infant & process fait vers luy d'estre view , sur que il appiert , et fuit adjudge de plein age per agarde del ' court , per que il joine en aide maintenant , et plede al issue ove le plaintiff ; moy semble què le priee nest partie deins le purvey de cest estatute . 41. en quod ei deforceat le tenant maintaine le title de son breif , er le plaintiff vouch , et le vouchee enter en le garranty , savant a luy son cause d'action , et vouch ouster j. s. qui appiert et counterplede le garrantie , sur que ils soient al issue ; moy semble què ambideux vouchers ne soient parties deins le purvey de cest estatute . 42. sur issue joine en precipe in capite , et l'enquest ceo empanel , j.s. vient et surmise al court que la terre est tenus de luy et nemy del ' roy en cheif , et deliver un especial breif al' justices d'enquirer de ceo , per que ils agard què ceo serra trie per primer enquest , sur que un nisi prius est agard ; moy semble que j. s. est partie deins le purvey de cest estatute . 43. en precipe quod reddat le demandant ( pendant le plea ) fist attorney & devient lunatike ou de non sane memorie , et apres un issues est joine perenter luy & le tenant ; moy semble què le plaintiff est partie deins le purvey de cest estatute . en mesme le manner est si le tenant devient de non sane memory ou lunatike devant le issue joine ou apres . 44. en precipe quod reddat le demandant ( pendant le plea ) est excomenge de que le tenant ne prist advantage mes plede al issue ; moy semble que ambideux soient parties deins le purvey de cest estatute . 45. en breif de dett ( pendant le plea ) le plaintiff est utlage , et puis issue est joine perenter luy & le defendant , et nisi prius est agard ; moy semble què le plaintiff est partie deins le purvey de cest estatute . 46. en precipe quod reddat port per un clerk convict , le tenant appiert , et soient al issue ; moy semble que le plaintiff est partie deins le purvey de cest estatute . en mesme le manner est de clerk attaint come jeo entende . lectio tercia . en mes auters lectures jeo aie monstre a vous en queux actions suits & demands le triall purvey per cest estatute prendera son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre portès & commencès ; et en quel lieu le court doiet estre tenus ; quant l' action serra commence , et quant l' action commencera en un court , et serra mise a son triall en auter court ; e● enter queux persons & parties le triall purvey per cest estatute prendera son effect ; et que serra dit parties deins le purvey de cest estanute , & que nemy : et ore jeo entende de monstre a vous queux issues joine serra trie solonque l'entendment de cest estatute , et queux nemy ; de queux issues le plaintiff ou demandant poet estre oustè de son triall ordeine per cest estatute , & de queux nemy . et moy semble què nul issue est triable deins le purvey de cest estatute mes tiel que est triable per breve de nisi prius , et auxy per pais de xii homes tantsolement , et non per plusors . 1. en breif de trespass pur depaster ove avers en le more de sale en le county de lincolne , le defendant justifie per reason que il claime common appendant a son franktenement en le countie de essex ; l'issue est joine sur seisin de cest common : moy semble què cest issue nest triable solonque l'entendment de cest estatute . 2. en un ne injustie vexes en le comen bank le seignior counta vers le tenant coment il tenust le terre de luy per fealty & 10 s. de rent ; et le tenant plede en barr le confirmation del ' ancestor le seignior a tener per fealty tantum , sur que ils soient al issue ; moy semble que ceo est triable solonque l'entendment de cest estatute . mes si l'issue ussoit estre joine sur le droit des services ceo nest triable accordant a cest estatute . 3. un port breif de dett per le nosme de j.s. de dale sur especialty vers j.s. et le plaintiff counta què le defendant per son fait al dale avandit conust luy d'estre tenus al plaintiff &c. et le defendant plede nient son fait , sur que l'issue est joine ; moy semble què cest issue nest triable solonque l'entendment de cest estatute . 4. en breif de trespass pur le succider d'un arber que fuit cressant en le confine de deux counties que soient adjoynants , le defendant plede rien culpable ; moy semble què ceo serra trie solonque l'entendment de cest estatute . 5. en trespass pur prisel de 20 charents de frument al dale deins le countie de k. le defendant justifie per force d'un done d'eux fait al a. b. et le plaintiff dit que puis le dit done le defendant eux a luy redone & al a. b. deins le countie de h. et le defendant maintaine son barre , & travers le darrein done , sur que ils fuere al issue ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . 6. en ravishment de gard le plaintiff counta què le pere l'infant tenust de luy le mannor de a. en le countie de g. per service de chivaler per que il fuit seisie del ' gard tanque le defendant luy ravish , a que le defendant dit , que le pere l'infant tenust de luy le mannor de b. en le countie de w. per eigne feoffment , per que il prist le gard ; a que le plaintiff dit , què il tenust le dit mannor de a. en le countie de b. de luy per eigne feoffment , et què il tenust le mannor de b. en le countie de w. del ' defendant prist ; sur que ils soient al issue ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . quaere . 7. en dett sur obligation le defendant plede un release portant date devant le obligation que fuit a luy primerment deliver per le plaintiff puis le dit obligation al k. deins le countie de b. al que le plaintiff dit què cest release fuit a luy primerment deliver al b. deins le countie de c. mesme le jour que il port date , sans ceo què il fuit a luy primerment deliver al k. deins le countie de b. prist ; moy semble que cest issue est triable solonque l'entendment de cest estatute . 8. en dett sur obligation le defendant plede release deliver a luy per le plaintiff al dale puis le dit obligation , al que le plaintiff dit , que cest release fuit per luy primerment deliver al defendant al h. deins le countie de c. &c. et le defendant dit que le release fuit a luy primerment deliver per le plaintiff al dale puis le dit obligation , sans ceo què il fuit a luy primerment deliver al h. deins le countie de c. prist ; moy semble què cest issue nest triable solonque l'entendment de cest estatute . 9. en quare impedit d'un disturbance de presenter al esglise de dale deins le countie de middlesex , le plaintiff recover & ad breif al evesque , et ceo deliver al evesque al sale deins le countie de essex , le quel la il refuse d'admitter , son clerk , sur que le plaintiff port quare non admisit vers mesme l'evesque deins le countie de middlesex , et counta del ' refusal en le lieu avandit , sur que issue est joine ; moy semble què le plaintiff en cest case poet estre ouste de son triall purvey per cest estatute . 10. home port brief de droit d'advowson , et pendant le plea , il sue ne admittas al evesque , et ceo nient obstant l'evesque encombre , l'esglise per enduction d'un encombent , et puis le plaintiff ad judgment de recover , et port breif de quare incumbravit vers l'evesque , qui plede que il ne incombra pas prist ; moy semble que le demandant poet estre ouste de son trial ordeine per cest estatute . 11. l'abbe de westminster esteant parson empersonee d'esglise de dale en droit de son meason , un estranger luy disseisist de parcel de son glebe , et l'abbe morust & le successor de mesme l'abbe port brief d'entre en le quibus per le nosme del ' abbe de westminster ; et counta coment le defendant en temps son predecessor a tort ad entre en le dit terre parcel del ' glebe del ' rectory avandit , de que il fuit seisie come parson impersonee ; a le que le defendant plede què il n'entra pas &c. sur que ils soient al issue ; moy semble que l'abbe poet estre ouste de son trial ordeine per cest estatute . 12. l'evesque de sarum ( qui ad le rectory de dale impropriate al son evesquerie ) sans l'assent del ' chapiter de ceo enfeoffe un estranger et morust , le successor port breif de sine assensu capituli come evesque vers l'alienee , en quel le tenant plede al issue ; moy semble que l'evesque poet estre ouste de son trial purvey per cest estatute . 13. tenant per service de chivaler ad issue deux files , l'un de plein age , et l'auter deins age , et morust ; le seignior seisist la puisne et enter en le terre et fist wast ; l'eigne soer & la puisne esteant deins age portont breif de wast vers le seignior , et il plede nul wast fait ; moy semble què les plaintiff's poient estre oustès de lour trial ordeine per cest estatute . 14. sur un grand cape le tenant appiert et plede què il ne fuit summon solonque la ley del ' terre , al quel le plaintiff dit , què il fuit summon solonque la ley del ' terre , prist ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . mes s'il dit que il fuit imprison ou disturbe per crient endue et issue soit prise sur ceo , moy semble que ceo est triable accordant al cest estatute . 15. en dower le tenant plede què il fuit touts temps prist de render dower et le demandant dit que ne , sur que ils soient al issue , le demandant avera judgment de recover sa dower maintenant et uncore cest issue prise perenter luy & le tenant serra trie solonque l'entendment de cest estatute . 16. en breif de disceit d'avoider un recovery cestuy qui recovera plede què ceux qui fueront les summoners fueront auters persons , sur que ils soient al issue ; moy semble que cest issue est triable solonque le purvey de cest estatute . 17. en breif de disceit port vers cestuy qui recovera & vers un auter come tenant al terre , et le tenant plede jointenancy ove un auter , sur que ils soient al issue ; moy semble que cest issue est triable accordant al cest estatute . 18. en precipe quod reddat vers le major & communalty de dale ils appeere al jour del ' grand cape , et diont que ils ne fueront summon solonque la ley del ' terre , sur que ils soient al issue ; moy semble què cest issue est triable solonque l'entendment de cest estatute . 19. en attaint un del ' petit jury plede le release del ' plaintiff en barr , al que le desendant plede nient son fait , sur que ils soient al issue ; moy semble que ceo est triable per pais , et uncore nest triable solonque l'entent de cest estatute . quaere . 20. en mordancestor le second vouchee counterplede le fait del'lieu son ancestor per que le garrantie fuit fait , que port date en mesme le countie ou les tenements soient , sur que ils soient al issue ; moy semble que cest issue est triable solonque l'entendment de cest estatute , nient obstant què soiet triable en mesme le countie ou le terre est . 21. en breif de droit le tenant plede le release del ' ancestor collateral le demandant ove garrantie en barr , sur que ils soient al issue ; moy semble que ceo nest triable solonque l'entendment de cest estatute . 22. en breif d'ayel le tenant plede , le feoffment d'ancestor le demandant en que testymoynes soient nosmès , sur que ils soient al issue et process prie vers testymoynes ; moy semble què cest issue ove les testymoynes est triable solonque l'entendment de cest estatute . 23. en breif d'entre sur disseisin port per un come heir , le tenant plede , le fait son ancestor en barr , en quel un est nosme testymoyne qui est utlage , sur que ils soient al issue ; moy semble que cest issue est triable solonque l'entendment de cest estatute . issint est si les testymoynes nosme en le fait soient morts . 24. en iuris utrum le tenant plede le release del ' plaintiff nosme en barr , sur que ils soient al issue ; moy semble què ceo nest triable accordant al cest estatute , et uncore il serra trie per nisi prius & per verdict de xii homes . 25. en assise de mordancestor les parties soient al issue sur un darrein seisin ; moy semble què ceo est triable per nisi prius , mes nemy solonque l'entendment de cest estatute . 26. en breif de droit le tenant vouch et le vouchee appiert et counterplede le garrantie , sur que ils soient al issue ; moy semble que ceo est triable solonque l'entendment de cest estatute . 27. al grand cape en precipe quod reddat le tenant appiert , et dit què al temps del ' defaint il fuit deins age , et ore il est de plein age , sur que ils soient al issue fil fuit deins age al temps del ' default , ou nemy ; moy semble que ceo est triable accordant al purvey de cest estatute . 28. en faux iudgment le defendant dit què le record est auter que est certifie , sur que ils soient al issue ; moy semble que ceo est triable per verdict de xii homes , et uncore nest triable accordant al cest estatute . 29. vn del ' clerks d'exchequer est emplede en bank le roy per bill , et il plede special custome què touts les clerks d'exchequer ount use destre solement emplede en le court d'exchequer , sur quel custome issue est joine ; moy semble que cest issue est triable per pais solonque l'entendment de cest estatute . 30. en bill de dett port en le comen bank vers gardein del ' fleet sur escape le defendant dit què il touts temps en tiel case use destre emplede per breif , et nemy per bill , sur que issue est joine ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . 31. en breif de dett issue est joine sur nul tiel ville , deins mesme le countie ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . 32. en quare impedit le plaintiff fait son title come al' advowson appendant al son mannor de dale en auter countie què lou l'esglise est , le defendant fist son title al ceo come al advowson en grosse , sans ceo que il fuit appendant ; sur que ils soient al issue : moy semble que cest issue nest triable solonque l'entendment de cest estatute . 33. en precipe quod reddat de dedem acris terre en dale en le county de middlesex , le tenant dit que le ville de dale est en le county de essex et nemy en le county de middlesex , sur que ils soient al issue , moy semble que ceo nest triable solonque l'entendment de cest estatute . 34. en breif de dower le tenant dit què le baron le demandant est uncore en plein vie al dale deins mesme le county ou le breif est port , sur que ils soient al issue ; moy semble que ceo nest solonque l'entendmeht de cest estatute . mes en cui in vita si tiel issue soit joine ; moy semble que ceo poet estre trie solonque l'entendment de cest estatute . 35. en breif des customes & services le demandant demande d'●ver les services de homage , fea●●e & rent , et le tenant confesse le tenure del'homage , et plede al issue pur les auters services ; moy semble que cest issue poet estre trie solonque l'entendment de cest estatute . mes si le tenant ussoit plede al issue pur touts les services , moy semble que ceo ne serra trie solonque l'entendment de cest estatute . 36. en replevin dependant dit què le property des avers al temps del ' prisel fuit a luy et nemy al plaintiff , sur que ils soient al issue ; moy semble què cest issue ne poet estre trie solonque l'entendment de cest estatute . 37. en action port sur un private & especial estatute vers un auter , le defendant appiert et plede que nest ascun tiel estatute ; moy semble què ceo ne serra trie solonque l'entendment de cest estatute . 38. en precipe quod reddat le tenant plede feoffment l'ancestor le demandant ove garrantie en barre , a que le plaintiff dit què son ancestor al temps del ' fesans de cest fait , fuit moigne professe &c. sur que issue est joine ; moy semble que ceo est triable per pais solonque l'entendment de cest estatute . 39. en breif de dett port vers j. s. per nosme de j. s. chivaler , et il dit què al jour del ' breif purchase fuit counte de k. nient nosme counte , judgment &c. sur que ils soient al issue ; moy semble que ceo nest triable solonque l'entendment de cest estatute . mes en tiel action port vers un per le nosme d'evesque d'exeter , et il dit què il fuit abbe del ' monastery de dale jour del ' breif purchase , et nemy evesque ; et soient al issue sur ceo ; moy semble què cest issue est triable accordant al cest estatute . 40. en breif breif d'entre sur le disseisin le tenant plede recovery de mesme le terre vers le demandant en breif de wast ; al que le plaintiff dit què nest mesme le terre que fuit recover per breif de wast ; moy semble què cest issue nest triable solonque l'entendment de cest estatute . 41. home est oblige de server un auter de waiter & attender a ses besoynes en la citty de andwarpe per tout le temps d'un ann , en dett sur mesme l'obligation le defendant dit què il luy serve al andwarpe per tent le temps d'un ann accordant al obligation , et le plaintiff dit què per tout cest ann le defendant fuit demurrant en londres ; sur que ils soient al issue ; moy semble que ceo est triable solonque l'entendment de cest estatute . 42. sur un scire facias d'aver execution sur un recognizance , le viscount retorne le partie garnish , lou il ne fuit garnie , sur que execution est agard en breif de disceit vers le viscount pur son faux retorne , il averre què le plaintiff fuit garnie accordant al son retorne , et lauter que non ; sur que ils soient al issue ; moy semble que cest issue est triable solonque l'entendment de cest estatute . 43. sur un scire facias d'executer fine , le tenant dit què le terre d'ont il demand execution nest comprise deins le fine , l'auter dit què cy , & issint est trove ; et puis le demandant port breif d'entre sur disseisin de mesme le terre , et fist son title per le fine , l'auter dit nient comprise , sur que ils soient al issue ; moy semble què cest issue nest triable per pais solonque l'entendment de cest estatute . 44. en breif de trespass pur arbres coupès , le defendant plede recovery de mesme le terre ou &c. en assise , et issint justifie ; al que le plaintiff plede nient mise en view , et issint nient comprise , sur que ils soient al issue ; moy semble què ceo est triable per pais solonque l'entendment de cest estatute . 45. en un attachment sur prohibition le defendant dit que le plaintiff est excommenge , et monstre letters d'excommengement &c. al que le plaintiff dit què il fuit excommenge pur mesme la cause sur que il suet le prohibition , et l'auter dit que non , sur que ils soient al issue pur quel cause il fuit excommenge : moy semble que cest issue est triable solonque l'entendment de cest estatute . 46. en precipe quod reddat le tenant plede recovery vers le plaintiff mesme de cli. damages en breif de trespass pur que mesme le terre fuit extende , et liverè a luy per elegit ; sur que issue est prise : moy semble que cest issue est triable per circumstantibus solonque l'entendment de cest estatute . lectio quarta . en mes auters lectures adevant jeo aie monstre a vous en queux actions suits & demands le triall purvey per cest estatute prendera son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre port & commence ; et en quel lieu le court doiet estre tenus ; quant l'action serra commence , et quant l'action commencera en un court et serra mise a son triall en auter court ; et enter queux persons & parties le triall purvey per cest estatute prendera son effect ; et que serra dit parties deins le purvey de cest estatute , & que nemy : et queux issues serra trie solonque l'entendment de cest estatute , et queux nemy ; et de queux issues joine le demandant poet estre oustè de son triall purvey per cest estatute , & de queux nemy . et pur ceo que les parolls d'estatute soient ouster que en chescun breif de venire facias que ad cest clause quorum quilibet chescun que serra retorne doiet aver franktenement del ' value xl . s. al miens , et chescun que serra retorne en l'auter breif de venire facias sur cest clause quorum quilibet doit aver ascun franktenement : jeo ore entende ove vostre pacience de monstre a vous que serra dit sufficient franktenement pur jurours sur l'un breif , et sur l'auter . et pur ceo jeo entende que tiel home que ad terre , rent , office , ou auter profit apprendre hors d antient demesne al cleere annual value de xl . s. de quel il poet aver assise il ad sufficient franktenement destre un jurour sur l'un breif que conteine cest clause quorum quilibet . 1. lease pur anns del ' mannor de dale al value de x. li. per annum est fait rendrant xx.li. sur condition que si le rent soit arrere que donque le lessor et ses heirs poient re-enter et ceo retaine tanque le rent soit paie ; le rent est arrere , le lessor enter et morust seisie , le heire enter et continue son possession anns & jours , le rent nient paie ; moy semble que il n'ad sufficient franktenement durant le terme desire un jurour per cest estatute . 2. home fait lease pur vie ( sans impeachment de wast ) del ' terre al value de xl . s. per annum rendrant xl . s. de rent per annum , le lessee trove un mine de tin le profit de quel vault per annum 5 li. le lessee n'ad sufficient franktenement d'estre un jurour per cest estatute . 3. home seisie del ' mannor de dale de ceo enfeoffe un estranger sur condition què il paiera annualment al j s. et a ses heires 40 s. de rent , j.s. morust seisie de cest rent , et son heire ceo prist et est de ceo seisie per anns , & jours ; moy semble què le heire n'ad sufficient franktenement d'estre un jurour per cest estatute . 4. seignor & tenant per service de chivaler del ' terre al value de 5 l. le tenant morust son heire deins age , le heire accomplish son age , et est marrie , le seignior continue son possession del ' terre nient satisfie del ' value del ' marriage ; moy semble què le seignior n'ad sufficient franktenement d'estre un jurour . 5. gardein en chivalrie tendre marriage al infant qui refuse , et luy mesme marrie deins age , le gardein tient le terre pur le duble value , et fait lease pur plusors anns que il doit aver le terre pur le duble value rendrant 40 s. per annum ; moy semble què le gardein ad sufficient franktenement d'estre un jurour per cest esta-estatute . 6. lease pur anns del ' mannor de dale al value de x. li. est fait rendrant 20 s. de rent sur condition què si le rent soit arrere , que le lessor re-entra et tiendra le terre tanque il soit paie de le rent , le rent est arrere , le lessor reenter et continue possession anns & jours , le rent nient paie , et puis fait lease al estranger pur vie rendrant 40 s. de rent ; moy semble que le lessor ne le lessee n'ount sufficient franktenement d'estre un jurour durant le primer terme . 7. seignior & tenant per service de chivaler et 40 s. de rent , le tenant morust son heire d'age d'un ann , le seignior hap le gard del ' terre et del ' heire et fist ses executors et morust , les executors ount le gard del'terre et del ' heire , moy semble què l'heire le seignior ad sufficient franktenement destre un jurour . 8. home qui ad terre al value de 40 s. tenus del ' roy en cheif ceo alien al estranger en fee sans licence , l'alienee continue son possession per anns et jours , et puis sur office trove le roy seisist le terre pur le fine ; moy semble que l'alienee durant le possession le roy n'ad sufficient franktenement destre jurour . 9. home fait lease pur 100 anns del ' mannor de dale rendrant 20 s. per annum , sur condition què le lessee et ses assignes paiera annualment al lessor & ses heires 5 l. ouster le rent , et puis le lessor grant le reversion al un estranger en fee , savant a luy et a ses heires le dit annual paiement de 5 l. le tenant attorne ; moy semble què le lessor n'ad sufficient franktenement d'estre un jurour . 10. ieo grant al un 40 loads de fein de prender annualment hors de mon pree de dale durant sa vie , moy semble què le grantee n'ad sufficient franktenement destre un jurour sur cest estatute . 11. tenant pur terme d'ans del ' terre al value de 40 s. tient ouster son terme , et morust seisie , le lessor enter sur l'heire vers qui l'heire recover en assise ; moy semble què le heire ad sufcient franktenement destre un jurour sur cest estatute . 12. home seisie del ' terre al value de 40 s. de ceo fist lease pur vie rendrant a luy pur terme de sa vie 20 s. de rent , et apres son decease rendrant al j. b. son heire & a ses heirs 40 s. le lessor morust ; moy semble què j. b. ad sufficient franktenement d'estre un jurour . 13. home grant un rent de 40 s. per ann hors de son mannor de dale al j. s. pur terme de sa vie , le grantee per delivery de cest fait n'ad sufficient franktenement d'estre un jurour : mes si le grant soit fait ove clause de distresse le grantee per delivery de cest fait ad sufficient franktenement d'estre un jurour . 14. lease pur anns est fait al deux , l'un d'eux tenust ouster son terme et morust seisie , le lessor fist claime deins le lieu del ' terre , l'issue que est eins per discent waive son possession sur le claime fait , uncore , moy semble què le heire ad sufficient franktenement d'estre jurour , et le lessor nemy . 15. home grant un rent de 40 s. ove clause de distresse al un auter pur vie , et deliver le fait al grantee sur condition què il ne distraine pur mesme le rent deins cinque anns prochein apres le delivery del ' fait , le grantee ad sufficient franktenement d'estre un jurour deins les dits cinque anns. 16. home per son volunt en escript devise son mannor de dale al j. s. pur vie , le remainder al heire del ' corps de a. h. ( qui est attaint en premunire ) en taile , le remainder ouster al estranger en fee , a.h. ad issue s.h. al temps del ' devise , j.s. morust , moy semble què s. h. ad sufficient franktenement d'estre jurour per cest estatute . 17. deux iointenants del ' mannor de dale en fee , l'un de eux grant rent-charge de 40 s. al un auter pur vie hors de mesme le mannor , et morust , le joinrenant qui survesquist per sa volunt recite le grant et per son volunt confirme l'estate del ' grantee en mesme le rent , le grantee per cest confirmation ad sufficient franktenement d'estre jurour . 18. terre al value de 10 s. est lesse al un pur vie rendrant 1 d. de rent , ove condition de reentrie pur non paiement de ceo ; moy semble que le lessee n'ad sufficient franktenement d'estre un jurour per cest estatute sur l'un breif ne sur l'auter . 19. deux iointenants del ' mannor de dale al eux et a les heires de lour deux corps engendres , le un de eux grant rent-charge de 40 s. al un estranger pur vie , le auter jointenant confirme son estate en le rent ove garrantie , les jointenants moriont ; moy semble què le grantee ad sufficient franktenement d'estre jurour . 20. trois iointenants soient , l'un de eux release tout son droit a les deux auters , et les deux al queux le release fuit fait grant un rent-charge de 20 s. de rent al un estranger pur vie , et puis faiont partition & moriont ; moy semble que le grantee ad sufficient franktenement d'estre un jurour per cest estatute . 21. duex iointenants del ' mannor de dale l'un de eux grant un rent charge de 40 s. al un auter pur vie , et puis le grantor confirme l'estate l'auter jointenant en trois parts del ' dit mannor a aver et tener les dits trois parts a luy et a ses heirs , et morust ; moy semble que le grantee del ' rent ad sufficient franktenement destre un jurour per cest estatute . 22. feme seisie del ' mannor de dale grant rent-charge de 40 s. hors de ceo al un auter en fee , sur condition què si le grantee ne re-edifie un meason deins le dit mannor de dale deins trois anns , que adonque il avera le rent forsque pur 10 anns ; le feme prist baron deins le dits trois anns qui interrupte le grantee , et ne voet luy suffer de re-edifier le meason , trois anns expire , le baron morust ; moy semble què le grantee ad sufficient franktenement destre un jurour . 23. home grant rent-charge de 40 s. hors de son mannor de dale , et puis le demaines del ' mannnr soient recover vers luy sur un title per erronious iudgment ; moy semble què le grantee n'ad ore sufficient franktenement destre jurour : mes si le recovery ust estre per faux title ou faint action auterment est . 24. disseisor grant un rent-charge de 40 s. en fee , et puis enfeoffe le eigne fits le disseisee deins age ( le disseisee esteant en vie ) et puis le fits devient al son plein age en le vie son pere et confirme le estate del ' grantee en le rent , et puis le pere morust , moy semble què le grantee ad sufficient franktenement destre un jurour . 25. feme sole seisie de 10 acres de terre el & un estranger per le nosme de baron & feme de ceo levy fine al estranger , et puis la feme prist baron et ad issue et morust , le issue enter sur l'estranger et il fist continual claime ; moy semble què per cest continual claime il ad sufficient franktenement destre un jurour . 26. l'advowson del ' esglise de dale que est del ' annual valur de 10 l. est grant al j. s. què il avera chescun presentment de ceo quant il deviendra voide durant sa vie ; moy semble què le grantee n'ad sufficient franktenement destre un jurour . 27. seignior & tenant per fealtie et un annual rent de 38 s. et de render un rube rose quater anns , et chescun cinque ann suit al son molin ; moy semble què le seignior n'ad sufficient franktenement destre un jurour . 28. home fist lease del ' mannor de dale al value &c. enstore ove un stock des avers al un auter pur 100 anns rendrant durant la vie le lessor 40 s , et apres son decease rendrant pur le mannor 20 s. et pur le stock des avers auters 20 s. ove condition de re-entrie pur non paiement del ' dit rent ; moy semble que le lessor durant sa vie ad sufficient franktenement destre un jurour , mes nemy son heire apres son decease . 29. deux iointenants en feé del ' mannor de dale , l'un de eux accept lease pur anns per fait endentè del ' moiety del ' dit mannor d'un estranger , le auter jointenant grant rent-charge de 40 s. al j. s. pur vie et morust , vivant le jointenant qui accept le lease ; moy semble que j. s. ad sufficient franktenement destre un jurour . 30. quater iointenants del ' terre &c. l'un release à l'un & un auter release al un auter , les deux al queux les releases fueront faits grant rent charge de 20 s. al un auter en fee , et puis faiont un partition , et apres la moiety allotte a l'un est recover per bon title , uncore moy semble què le grantee del ' rent ad sufficient franktenement de 40 s. destre un jurour per cest estatute . 31. tenant en taile enfeoffe son heire deins age , le quel vient al plein age en le vie son pere et grant un rent-charge de 40 s. al un estranger ove garrantie , le pere morust ; moy semble què le grantee n'ad sufficient franktenement destre jurour : mes si le fits fist feoffment et prist estate arrere donque le grantee ad franktenement . 32. home per fait indente enrollè bargaine son mannor de dale al estranger pur 100 l. et per mesme l'endenture est covenant grant & agree què si le bargainor espouse le file le bargainee devant tiel jour què adonque il serra seisie del ' dit mannor al use le bargainor et de sa feme en taile , et as heires le dit bargainor ; le bargainor marrie la file le bargainee , et morust , apres quel mort la feme de ceo enfeoffe un estranger , le heire del ' bargainor enter ; moy semble què il ad sufficient franktenement destre un jurour . 33. home seisie del ' terre en droit sa feme , le baron et sa feme per fait endentè grant rent charge de 40 s. al estranger en fee ove garrantie , et puis le baron et feme font feoffment al un estranger en fee per fait endentè sur condition , la feme devie , le condition est enfreint , le baron devie , le heire enter sur le feoffee pur le condition enfreint ; moy semble què le grantee del ' rent n'ad ore ascun franktenement destre un jurour per cest estatute . 34. tenant en taile fait lease pur vie et morust , son issue grant rent-charge charge de 40 s. hors de mesme le terre al estranger en fee , et puis grant le reversion del ' tenant pur vie al estranger en fee , al qui le tenant pur vie surrender son estate , le issue en taile ad issue et devie , et le issue enter sur le grantee del ' reversion ; moy semble què le grantee del ' rent na'd ascun franktenement destre jurour per cest estatute . 35. deux iointenants l'un de plein age et l'auter deins age et il grant rent charge de 40 s. al estranger en fee et soynt disseisès , le disseisor morust seisie et apres le disseisee qui fuit deins age accomplish son age , le heire le disseisor fait lease de mesme le terre a les disseisees pur lour vies , l'un de eux devie , cestuy qui fuit deins age survive et soy tient eins per le survivor ; moy semble què le grantee del ' rent ad sufficient franktenement destre un jurour . 36. feme sole tenant in tail grant rent charge de 40 s. al estranger en fee , et puis recovery est ewe vers le feme per faux action per default , et el prist baron , le recoveror lesse terre all baron et feme pur lour vies , ils fount wast , le recoveror port breif de wast et recover , le baron et feme devie sans issue ; moy semble què le grantee ad sufficient franktenement destre un jurour . 37. deux disseisors al opes de l'un d'eux , cestuy que use fait done en tail a son joint disseisor , le disseisee release al donee en tail , et puis le donee grant rent charge de 40 s. al estranger en fee , le disseisee morust , le heire del disseisee reeover vers le donee en bred ' en try sur disseisin ; sur issue trie sur le diseisin moy semble que le grantee ad sufficient franktenement destre un jurour . 38. terre est done al deux femes a lun pur vie a lauter pur anns , cux deux grant rent charge de 40 s. al un auter en see , le tenant pur vie devie , le terme continue moy semble que le grantee del ' rent na'd sufficient franktenement destre jurour . 39. terre est done a deux femes , a lun et a ses heirs females , & a lauter et a ses heirs males de son corps loialment issuants , sur condition què si ascun d'eux morust sans heir de son corps què le donor et ses heirs poet reenter ; les deux femes joine en grant de rent charge de 40s . al un estranger en fee , la feme , a que la limitation de ses heirs females fuit , morust sans heir de son corps , le donor enter , uncore moy semble que le grantee ad sufficient franktenement destre jurour . 40. home sur consideration del ' marriage de sa file al i. s. fait feofment en fee del ' mannor de dale al estranger et a ses heirs per sait indente , al use del ' feoffee or ses heirs , per quel fait est covenant grant et agree qué le feoffee et ses heirs paiera al dit i. s. et a sa feme ( la file le feoffor ) 20 s. per annum , et sil faut de paiment què adonque i. s. et sa feme et lour heirs entront en la terre et ceo reteineront a touts jours , le rent nest paie accordant al agreement moy semble que i. s. ad franktenement del ' mannor destre un jurour . 41. le discontinuee del ' tenant en tail grant rent charge de 40 s. al estranger en fee , et puis est disseisie per tenant en tail , le discontinuee ad issue deins age et fait continual claime , et morust , le tenant en tail morust deins l'ann et devant l'entrie del ' heire del ' tenant en tail , le heir le discontinuee esteant deins age enter , moy semble què le grantee ad sufficient franktenement destre jurour . 42. rent charge de 40 s. est grant a feme sole en fee , el prist baron , le rent est arrere , le baron release al grantor touts manner d'actions , moy semble que le baron ad ascun franktenement destre jurour . 43. home fait lease al un auter dumodo solverit al lessor pur sen vie 40s et fait livery moy semble què le lessor ad sufficient franktenement destre jurour . 44. seignior et tenant per fealty et 30 s. de rent et suit de court a son mannor de dale de tribus septimanis in tres septimanas moy semble què le seignior n'ad sufficient franktenement destre jurour sur le primer brief de venire facias mencionè en cest estatute : mes si il tient per autiel rent et suit al molin moy semble què il ad sufficient franktenement destre un jurour . 45. home seisie del terre al value de 40s . deins le countie de midd. et de terre al value de 12d . deins le countie de sussex et grant rent charge de 40s . issuant hors de tout son terre al un estranger en fee moy semble que le grantee ad sufficient franktenement destre un jurour en l'un countie et en l'auter solonque l'en tend ment de cest estatute . 46. terre al value de 40 s. est done al baron et feme et a les heirs de loure deux corps engerdres , ils ount issue fits , le baron done le terre per fine al estranger et a ses heirs et morust , la feme entra et morust seisie , le fits n'ad sufficient franktenement destre jurour per cest estatute . lectio quinta . en mes auter lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actions suits et demands le tryal purvey per cest estatute prendera son effect et en queux nemy , et en queux courts tiels actions suits et demands doient estre port et commence , et en quel lieu le court doiet estre tenus , quant action serra commence en lun court et serra mise a son tryal en l'auter , et al enter queux persons et parties le trial purvey per cest estatute prendera son effect , et queux persons serra dits parties deins le purvey de cest estatute et queux nemy , et queux issues serra trie solonque le entendment de cest estatute et queux nemy , et ouster que serra dit sufficient franktenement pur un home destre un jurour sur un brief de venire facias mencionè en cest estatute , & que sur auter ; et pur ceo què les parolls de cest estatute , sont ouster que le viscount ne omitte de retorner tiels persons que ount sufficient franktenement sur l'un brief et sur l'auter accordant a les parolls del ' dit brief sur paine que chescun person que est issint retorne per le viscount ou auter minister quen'ad sufficient franktenement 20s : ore jeo intende ove vostre pacience de monstre a vous mon opinion quant le viscount ou auter minister retorne ascuns persons que al temqs del ' panell fait n'ount ascun franktenement et uncore s'ils ount sufficient quant ils soient destre jurn le viscount ou auter minister ne perdera le penalty levyt per cest estatute et quant ils en ceo case perdera le penalty per cest estatute lou les persons retorne per eux oun sufficient franktenement al temps del ' retorne et quant ils serra jurie ils nount ascun et quant ils ne perdra le penalty in tiel case sur cest estatute et quant le viscount ou auter minister poet per lour retorne des jurours de sufficient franktenement auterment perdra le penalty levyt per cest estatute et quant nemy . 1. morgagor et morgagee del ' terre al value de 5 l. sur condition de paiment , et non paiement del ' part le morgagee et puis et devant le jour de paiment le viscount empanel le morgagor et le morgagee en un panell et puis retorne del ' brief le morgagee fist default en son paiement per que se morgagor reenter moy semble què le viscount perdra le penalty pur le morgagor mes nemy pur le morgagee . 2. brief de venire facias vient al mains le viscount et il empanel j. s. qui adonque ad terre al value de 40s . et devant le brief retorne il ceo alien al estranger moy semble que le viscount ne perdra le penalty done per cest estatute . 3. le viscount empanel a.b. sur un venire facias qui al temps del ' panell fait n'ad ascun franktenement , et al jour del ' retorne del ' brief il purchase terre &c. le viscount ne per drale penalty per cest estatute . 4. home qui ad terre al value de 40s . est emplede pur mesme le terre per praecipe quod reddat et puis le viscount qui retorne mesme le brief luy empanel sur venire facias , qui est retorne et puis devant lenquest prist le terre est recover hors del ' possession cestuy qui fuit empanel moy semble què le viscount ne perdra le penalty done per cest estatute . quaere . 5. le viscount empanel un qui ad terre al value de 40 s , et puis le panell fait et devant le brief retorne cest terre est extend en les mains d'un estranger pur 100 l. sur bon estatute merchant , moy semble què le viscount perdra le penalty done per cest estatute . mes. si l'extent ussoit apres le retorne et devant le tenant enfreint le condition , moy semble què le viscount ne perdra le penalty per cest estatute . 6. home fait lease put 10 anns rendrant 40 s. per ann , sur condition què le lessee paiera al lessor 10 l. al fine de les primers deux anns auterment son estate serra void , et puis grant le reversion al estranger sur condition que si le lessee ne paiera les dits 10 l. ( come est avandit ) què adonques le grant del ' reversion serra void le tenant attorne et le grantee est empanel en un venire facias per le viscount et apres le breif retorne le tenant enfreint le condition moy semble què le viscount ne perdra le penalty sur cest estatute . 7. venire facias est direct al viscount de retorner xxiv quorum quilibet &c. et il empanel sur mesme le breif xxvi d'ont xxiv ount sufficient franktenement , et l'auters nemy , uncore , moy semble què le viscount ne perdra le penalty done per cest estatute . 8. seignior et tenant del ' terre al value de 40 s. le tenant morust sa feme esteant grossement enseint le seignior enter come en son estate le viscount empanel le seignior et puis le retorne del ' breif issue est nee moy semble que le viscount perdra le penalty per cest estatute . mes si la feme ust estre priviment enseint al jour del ' breif retorne le viscount ne perdra ascun penalty . 9. home seisie del ' terre al value de 5 l' que est tenus en cheif ceo alien en fee le alienee continue son possession per 10 anns ( le fine pur l'alienation nient paie ) le viscount empanel le alienee , et devant le breif retorne le roy seisist le terre pur le fine d'alienation , et le viscount retorne le breif ( esteant le terre en les mains le roy pur le fine ) moy semble què le viscount ne perdra le penalty done per cest estatute . 10. rent charge de 40 s. ove clause de distresse est grant al un en tail le viscount empanel le grantee sur un venire facias et apres le panell fait et devant le retorn del ' breif le grantee port breif d'annuity et le breif de venire facias est retorne , moy semble què le viscount perdra le penalty done per cest estatute . mes si le breif d'annuity ust estre port apres le breif de venire facias retorne le viscount ne perdra le penalty per cest estatute pur cest retorne . 11. seignior et villein le seignior est seisie del ' terre al value de 40 s. hors de que un estranger ad un rent charge de 40 s. le viscount empanell le seignior et le villein en un mesme panell al jour del ' breif retorne le grantee del ' rent grant mesme le rent al villein , moy semble què le viscount perdra le penalty done per cest estatute pur retorne del ' villein mes nemy pur le seignior . 12. sur issue joine en precipe quod reddat al comen ley le viscount retorne sur le venire facias xii qui demurront en gildable et xii qui demurront deins un franchise , moy semble què le viscount ne perdra le penalty done per cest estatute pur cest retorne . 13. le viscount empanel sur un venire facias un home attaint de felony , et un auter attaint en premunire , et un auter qui apres le fesans del ' panell ' et devant le retorne del ' breif devient paralitike ou lunatike , et chescun de eux al temps del ' retorne ad assets franktenement le viscount perdra le penalty de cest estatute pur retorne les deux persons attaints mes nemy pur le tierce . le viscount sur venire facias empanel j. s. le pere et t. s. le fits , le pere ayant terre al value de 40 s. et le fits riens et puis le retorne del ' breif et devant le breif de nisi prius agard le pere enter en religion , et le fits enter en la terre come heire , et puis est jurie sur nisi prius , uncore moy semble què le viiscount perdra le penalty purle fits , mes nemy pur le pere. mes sile pere ust estre mort devant le retorne del ' breif le viscount ne perdra le penalty de cest estatute pur l'un ne pur l'auter . 15. si le viscount empanel un sur venire facias qui est en malady al temps del ' retorne al conusans del ' viscount , et un auter qui ad continual infirmity , et un auter qui est decrepit , et ils touts ount sufficient franktenement , moy semble què le viscount ne perdra le penalty done per cest estatute pur retorne d'ascun d'eux . 16. le roy ses letters patents done terre al value &c. al j. s. en tail a tener a luy per servic̄ debit , et le donee fist lease a r. w. pur vie , le qui r. w. est empanel sur un breif de venire facias , et devant le jour de nisi prius j. s. morust sans issue , moy semble què le viscount ne perdra ascun penalty per cest estatute . 17. le roy per ses letters patents done terre al value de 40 s. a j. s. et a ses heires a tener a luy per le service de render annualment un sete et en default de ceo 40 s. j. s. est disseisie , et le viscount ambideux empanel sur un venire facias , et ceo retorne , et devant le jour de nisi prius j. s. morust sans heir , moy semble què le viscount perdra le penalty de cest estatute pur le disseisor et le disseisee auxy . 18. le tenant le roy morust sans heire general ou special , estranger abate et le viscount luy empanel sur un venire facias , moy semble què le viscount perdra le penalty done per cest estatute pur cest retorne . 19. done en tail est fait al i. s. rendrant un rose al feast del ' nativity de st. john baptist , et pur default de paiement un reentry ; le rent del ' rose est arrere , et le viscount empanel le donee , et puis le retorne et devant le jour de nisi prius le judgment est reverse moy semble què le viscount ne perdra le penalty done per cest estatute . 20. en precipe quod reddat un recover per erronious judgment , et le viscount retorne cestuy qui recover en un venire facias , et puis le retorne et devant le jour de nisi prius le iudgment est reverse moy semble que le viscount ne perdra le penalty per cest estatute . 21. gardein en chivalry assigne rent de 40 s. al feme pur sa dower hors de terre de quel el fuit dowable , lou el doiet estre endowe de droit forsque de teirce part al value de 20s , la ' feme prist baron et le gardein en chivalry esteant viscount empanel le baron sur un venire facias , et apres le brief retorne et devant le jour de nisi prius le heir accomplish son age et denie le rent moy semble que le viscount perdra le penalty done per cest estatute pur cest retorne . 22. recovery de terre al value de 40 s. est ewe vers a. b. esteant viscount en precipe quòd reddat per faux judgment , et mesme le viscount retorne le recoveror sur un venire facias , et apres le retorne et devant le jour de nisi prius le viscount reverse le judgment per brief de error et enter moy semble que le viscount perdra le penalty per cest estatute . 23. home seisie del ' mannor de dale en droit sa feme est empanel per le viscount et puis le retorne et devant le jour del ' nisi prius la feme morust moy semble que le viscount ne perdra le penalty de cest estatute mes si la feme morust apres le panell fait et devant le jour del ' retorne il perdra le penalty done per cest estatute . le viscount empanel j s. sur un venire facias qui ad franktenement et ●●●es panell fait et devant le jour del ' retorne j. s. morust moy semble que le viscount ne perdra le penalty de cest estatute pur cest retorne . 25. le viscount empanel i. s. sur un venire facias qui ad terre al value de 40 s. et apres le retorne et devant le appearance del ' inquest j. s. grant rent charge de 40s . al mesme le viscount issuant hors de mesme le terre moy semble que il ne perdra le penalty de cest estatute 26. le viscount port breif de wast vees son tenant a terme de vie , et pendant le breif il luy retorne sur un panell , et puis devant le jour de nisi prius le viscount recover le lieu wast moy semble que il perdra le penalty per cest estatute . 27. le viscount fait lease pur vie al estranger del ' terre al value &c. et mesme le viscount luy empanel en un enquest et puis le retorne del ' breif et devant le nisi prius il fist feoffment de mesme le terre al estranger , et fist letter d'attorny al lessee de faire livery qui fait livery accordant devant le jour de nisi prius moy semble què le viscount ore ne perdra le penalty per cest estatute . 28. l'abbe de westminster fait lease pur vie del terre al value &c. le viscount empanel le lessee et devant le retorne del ' breif de venire facias l'abbe fist feoffment de mesme le terre al dean et chapiter de paules ove letter de attorney al lessee de faire livery qui fait livery accordant , et puis le breif est retorne moy semble què le viscount ne perdra ascun penalty per cest estatute . 29. si le viscount empanel un sur venire facias qui ad franktenement al value de 40 s. et devant le retorne breif il grant rent eharge de 40s . al estranger moy semble què il ne perdra le penalty per cest estatute . 30. lease del ' mannor de dale est fait per un abbe al un auter per vie et puis le abbe fait feoffment del ' mannor al un estranger ove letter d' attorny al lessee de faire livery accordant , et breif de venire facias vient al viscount portant date mesme le jour que le livery fuit fait et le viscount empanel le lessee sur mesme le breif moy semble que il perdra le penalty de cest estatute . 31. tenant de terre al value de 40s . charge mesme le terre ove 40 s. al un auter , sur condition què le grantee luy enfeoffe de terre al value de 5 l. deins un moys que j. s. est fait viscount del ' county de c. auterment le rent cessera . j. s. est fait viscount , et deins 10 jours del ' fine del ' moys il retorne le grantor en un enquest moy semble què il ne perdra le penalty per cest estatute . 32. a. b. disseisist c. d. de terre al value &c. le viscount empanel a.b. sur un enquest et devant le jour de nisi prius le ancestor collateral le le disseisee release al disseisor et morust le garranty discend sur le disseisee moy semble que le viscount ne perdra ascun penalty per cest estatute . 33. en precipe quod reddat le tenant plede release portant date al dale que est franchise et county en luy mesme , sur que ils soient al issue per que venire facias est agard ove tiels parols del ' venire facias duodecim de villa de dale , sur que le viscount retorne xii jurours qui ount sufficient franktenement et auters xii qui n' ount ascun franktenement moy semble que le viscount ne perdra le penalty done per cest estatute . 34. en breif de dett de c. li. port per un denison vers un alien sur issue joine le viscount retorne certein aliens qui n'ount ascun franktenement moy semble que il ne perdra le penalty per cest estatute . 35. en breif de covenant port per un alien vers un denison ils pledont al issue , et apres l'issue joine et le breif de venire facias agard le alien est fait denison et le viscount retorne sur le venire facias certein aliens qui n'ount ascun franktenement moy semble que il ne perdra le penalty per cest estatute . 36. le viscount sur un venire facias retorne forsque xii iurours et non plusors , et chescun d'eux ad sufficient fraktenement moy semble què il ne perdra le penalty done per cest estatute . 37. le viscount de dale covenant per indenture ove j. s. què un estranger recovera vers luy le mannor de dale a tiel use entent et condition que le recoveror sur request executera estate del ' moiety del ' mannor al viscount pur vie , le remainder al dit j.s. rendrant 10 l. per annum , et apres cel estate execute què le recoveror doneroit et granteroit le reversion et le remainder del ' mannor al dit viscount et a ses heires . le recoveror sur request execute estate del ' moiety del ' dit mannor sans riens faire ove lauter moiety . le viscount empanel l'estranger moy semble què il perdra le penalty done per cest estatute . 38. si le viscount sur un venire empanel un qui ad sufficient franktenement , et il adevant avoit done al un auter un mortal plage , et puis le retorne cestuy qui fuit percusse morust moy semble què le viscount ne perdra le penalty done per cest estatute . 39. le viscount sur un venire facias empanel ascun persons que n'ount ascun franktenement , et puis le fesans del ' panell ' et devant le retorne del ' breif mesme le viscount est discharge et un auter viscount eslie et le viscount qui fist le panell ceo deliver per indenture enter auters breifs al novel viscount et il ceo retorne moy semble què nul de les viscounts perdra le penalty per cest estatute . lectio sexta . en mes auters lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actions , suits et demands le trial purvey per cest estatute prendra son effect et en queux nemy et en queux courts tiels actions suits et demands doient estre port et commence et en quel lieu le court doiet estre tenus quant l' action serra commence en l'un court et serra mise a son triall en l'auter court et enter queux persons & parties le tryal purvey per cest estatute prendera son effect et queux persons serra dit parties deins le purvey de cest estatute et queux issues serra trie solonque l'entendment de cest estatute et queux nemy et ouster que serra dit sufficient franktenement pur un home destre un jurour sur un breif et sur l auter solonque l'entendment de cest estatute et quant le viscount ou auter minister perdra le penalty limitte per cest estatute et quant nemy et pur ceo que les parolls d estatute soient què le viscount empanel sur chescun breif de venire facias sex sufficient hundredors et què il perdra pur chescun hundredor omitte en le panell 20 s. jeo entende ore ove vostre pacience de monstre a vous qui serra dit sufficient hundredor solonque l'entendment de cest estatute et qui nemy et quant le viscount perdra le penalty quant il retorne nul hundredor solonque l'entendment de cest estatute . 1. sur issue joine en breif de eschete le viscount sur le venire facias empanel ( enter auters ) deux ou trois seigniors del ' parliament et auters barons moy semble que ils soient sufficient hundredors solonque l'entendment de cest estatute . 2. home qui ad terre deins le hundred est empanel et devant le jour de nisi prius alien le terre al estranger moy semble què il est sufficient hundredor nient obstant . 3. home qui ad terre deins le hundred est empanel et devant le retorne del ' breif il grant rent charge al value del ' terre al j. s. uncore moy semble què il est sufficient hundredor deins le purvey de cest estatute . 4. le viscount empanel un qui demurrust deins le hundred ou &c. mes il n'ad ascun franktenement deins mesme le hundred ne deins mesme le county mes il ad deins auter county moy semble què il n'est sufficient hundredor deins le purvey de cest estatute . 5. en breif d annuity issue est joine sur le siesin que est allege d'estre en auter hundred què le esglise est et le viscount empanel , un qui ust assets ou l'esglise est moy semble què il est sufficient hundredor deins le purvey de cest estatute . 6. si le viscount empanel un qui ad sufficient deins le hundred ou &c. mes il demurrust en auter county moy semble què il est sufficient hundredor deins le purvey de cest estatute . 7. vn qui ad forsque un virge de terre deins le hundred ou &c. s'il ad auter sufficient franktenement deins mesme le county il est sufficient hundredor deins le purvey de cest estatute . 8. le hundred de dale esy deins le lete de sale et les hundredors de mesme le hundred ount use destre jurès ensemblement ove les resiants del ' lete et sur issue joine que est triable per le venue del ' hundred ' un qui demurrust ou ad assets deins le lete est empanel moy semble què il est sufficient hundredor nient obstant què il n'ad riens deins le hundred . 9. si le venue sur issue joine soit de un grand rape que ad un grand circuit hors de chescun hundred si le viscount sur venire facias empanel un qui ad franktenement et est demurrant deins mesme le rape il est sufficient hundredor solonque l'entendment de cest estatute . 10. issue est joine d'un chose fait deins un franchise ou ville corporate que est hors de chescun hundred si le viscount sur venire facias empanel un qui demurt deins mesme le ville ou franchise il est sufficient hundredor deins le purvey de cest estatute . 11. le viscount empanel un qui ad recover terre deins le hundred ou le venue est allege accordant a son title per erronious iudgment moy semble què il est sufficient hundredor deins le purvey de cest estatute . 12. home qui ad terre deins un hundred al value de 40 s. que il tient en ancient demesne en franktenement moy semble que il n'est sufficient hundredor deins le purvey de cest estatute . 13. en action sur le statute pur l'entre en le mannor de dale en sale le defendant plede non culpabilis le viscount empanel un qui demurrust deins le mannor de dale moy semble què il n'est sufficient hundredor deins le purvey de cest estatute . 14. home qui ad un office del ' bailywick deins le hundred ou le venue est allege si il soit empanel est sufficient hundredor . 15. home qui est seisie en feé del ' advowson del ' esglise de dale al value de 20 l. per annum que est deins un hundred moy semble què per ceo n'est sufficient hundredor destre empanel pur mesme le hundred . 16. home qui ad rent ou comen d'estovers ou comen de turbary deins un hundred il est sufficient hundredor destre empanel pur mesme le hundred . 17. home qui ad un market ou un faire pur terme de sa vie deins un hundred il est sufficient hundredor destre empanel pur mesme hundred . 18. home qui ad un freé piscarie ou frankfold deins un hundred moy semble què il est sufficient hundredor destre empanel deins mesme le hundred . 19. home qui ad un tolle ou un passage deins un hundred est sufficient hundredor destre empanel pur mesme le hundred . 20. home qui ad un lete destre tenus deins un hundred est sufficient hundredor destre empanel pur mesme le hundred . 21. en breif de entry sur disseisin del ' mannor de dale le tenant plede al issue le mannor est deins le ville de sale le viscount sur venire facias empanel trois franktenants del ' mannor et auters trois del sale moy semble què le viscount perdra le penalty per cest estatute . 22. en breif de trespasse sur l'estatute de 8 h. 6. pur l'entre en le mannor de dale en sale le defendant plede rien culpable le viscount retorne nul del ' venue del ' mannor moy semble què uncore què il ne perdra le penalty per cest estatute . 23. en trespasse suppose destre fait al dale deins le county de middlesex le defendant dit que deins mesme le county soient over-dale et nether-dale et nul sans addition et le plaintiff dit què le lieu ou &c. est dale sans addition prist ; sur que venire facias est agard en quel le viscount retorne nul hundredors moy semble què le viscount ne perdra ascun penalty per cest estatute . 24. issue est joine que est triable per deux venues deins un county le viscount sur le venire facias retorne forsque trois hundredors de chescun venue et nemy sex de chescun venue accordant a les parolls d'estatute uncore moy semble que il ne perdra le penalty de cest estatute . 25. en precipe quod reddat de deux acres de terre d'ont l'un est deins un franchise que ad retorna brevium et le auter gildable et l'issue est joine sur le disseisin le viscount retorne quater hundredors ou le terre gildable gist , et deux de franchise e le baily del ' franchise retorne sex del ' franchise et nul del ' hundred gildable moy semble què le visount perdra le penalty purvey per cest estatute . 26. sur issue joine le lieu est allege ; a. b. et le plaintiff monstre al court què touts les franktenants de mesme le hundred soient desouth le distresse del ' defendant et prie breif de venire facias al prochein hundred , le quel est a luy grant sans examination ou confession le defendant et sur mesme le breif le viscount retorne sex hundredors del ' hundred prochein adjoinant accordant as parolls del ' breif , et nul hundredor ou le venue est moy semble què il ne perdra le penalty de cest estatute . 27. si le viscount en son panel ne retorne tant des hundredors come le statute limitt , et quant ils soient d'estre jurès ils soient challenge pur le insufficiency del ' hundred , et per trial est trove què ils ount sufficient deins le hundred , lou ils n'ount riens , sur quel triall ils sont jurès come hundredors et trie l'issue moy semble que le viscount perdra ascun penalty per cest estatute . 28. si le viscount empanel sex hundredors mes chescun de eux est deins le distresse del ' plaintiffe ou defendant , ou que soient cosins ou gossips al plaintiff ou defendant moy semble què il ne perdra ascun penalty per cest estatute . 29. sur issue joine le plaintiff monstre covient touts qui soient hundredors deins le hundred ou le venue est allege soient deins le distresse del ' plaintiff et prie retorne del ' hundredors del ' hundred prochein adjoinant sur que breif de venue de prochein hundred est agard le viscount retorne forsque quater hundredors de mesme le hundred moy semble què il perdra le penalty per cest estatute . 30. en breif d'annuity issuant hors d'esglise de dale deins le county de middlesex , le seisin est allege deins le hundred de b. deins le county de kent le viscount sur venire facias retorne forsque quater hundredors moy semble què il ne perdra le penalty per cest estatute . 31. issue est joine que est triable per le venue de a. et venire facias est agard del ' venue de b. et puis le viscount retorne jury del ' venue de b. moy semble què le viscount doit retorne sex hundredors del ' venue de b. accordant a les parolls del ' breif sur paine containe en cest estatute uncore les parolls d'estatute sont què il retornera sex hundredors del ' hundred ou le breif gist . 32. en breif de dett vers a. b. de dale deins le county de o. qui dit que il ad nul tiel ville de dale hamlett ne lieu conus deins mesme le county hors de ville et hamlett et le plaintiff prist que cy . sur que venire facias est agard al viscount de mesme le county le quel rotorne nul hundredor deins le panel moy semble què il ne perdra le ●●●alty per cest estatute . 33 sur issue joine lou le venue serra d'un rape que ad un grand circuit que est hors de chescun hundred et sur venire facias a luy direct ' il retorne desouth le nomber de sex deins mesme le rape moy semble què le viscount perdra le penalty sur cest estatute et uncore le venue n'est d'ascun hundred accordant a les parolls d'estatute . 34. en trespasse vers deux l'un plede rien culpable , l'auter plede release portant date al auter lieu que ou le trespasse fuit fait , sur que deux venire facias soient agard moy semble què le viscount doit retorne sex hundredors del ' venue ou le trespasse fuit en l'un breif , et tant des hundredors del ' venue ou le fait port date auterment il perdra le penalty de cest estatute . 35. en quare impedit d'un disturbance de presenter al esglise de dale deins le county de kent le defendant dit que mesme le deins le county de surrey prist , sur que ils soient al issue et sur venire facias nul hundredors del ' venue de dale ou l'esglise est . soient retorne moy semble què le viscount ne perdra le penalty de cest estatute . 36. le ville de dale est un hundred que extend en d'eux counties et en breif de trespasse fait en le dit ville en le confine de les dits deux counties le defendant plede rien culpable , moy semble que chescun viscount de es dits counties a que venire facias est direct doit retorner sex hundredors de mesme le hundred sur le paine containe en cest estatute . 37. issue joine , surmyse est fait al court per le plaintiff que deins le hundred ou le venue est soient forsque deux hundredors per que il ad venire facias del ' hundred prochein adjoinant , sur que il retorne quater hundredors del ' venue mention en le breif et les deux de l'auter hundred ou le venue fuit allege moy semble què le viscount ne perdra le penalty de per cest estatute . 38. sur issue joine del ' venue de dale sur le default le plaintiff le defendant sue venire facias al viscount sur que il retorne quater hundredors moy semble què il perdra le penalty de cest estatute nient obstant que le breif ne fuit sue per le plaintiff ne demandant . 39. sur issue joine apres un default le plaintiff sue un breif de venire facias et le defendant un auter et le viscount retorne sur le breif del ' plaintiff sex hundredors et sur le breif le defendant forsque quater moy semble viscount ne perdra le penalty de cest estatute . 40. sur issue joine de chose fait deins un franchise ou ville corporate que est hors de chescun hundred , sur un venire facias le viscount retorne forsque quater deins mesme le franchise moy semble què il perdra le penalty de cest estatute . 41. sur issue joine en un venue lou soient forsque quater hundredors et le viscount retorne eux touts et retorne le breif servie mes ne fait alcun mention en son retorne que soient forsque quater hundredors deins mesme le hundred uncore moy semble que il ne perdra le penalty de cest estatute . 42. si sont forsque quater hundredors deins un hundred et sur venire facias le viscount empanel trois et retorne que ne sont plusors hundredors forsque les trois que il ad retorne moy semble què il ne perdra le penalty de cest estatute . 43. sur issue joine le venue est del ' ville de dale que est en le confine de deux hundreds et hors de chescun hundred et le viscount sur venire facias retorne trois hundredors de chescun de les dits hundreds et nul person del ' ville ou le venue fuit moy semble que le viscount ne perdra le penalty de cest estatute . 44. le viscount sur venire facias retorne forsque quater , hundredors et puis le retorne , et devant l'enquest prise deux auters del ' panell purchasont terre deins mesme le hundred , issint quant l'enquest est destre jure ils soient sex hundredors moy semble que le viscount perdra le penalty de cest estatute . 45. le viscount retorne forsque quater hundredors sur venire facias al jour del ' enquest , plein enquest est jure sans ascun challenge d'ascuns des parties pur le hundred moy semble que ceo nient obstant le viscount perdra le penalty de cest estatute . lectio septima . en mes auters lectures devant cest temps jeo aye monstre a vous mon opinion sur cest estatute en queux actious suits & demands le triall purvey per cest estatute prendra son effect et en queux nemy et en queux courts suits & demands ou actions doient estre port & commence et en quel lieu le court doit estre tenus quant le action serra commence et quant le action serra commence en l'un court & serra mise a son tryall en lauter court et enter queux persons & parties le tryall purvey per cest estatute prendra son effect et queux persons serra dits parties deins le purvey de cest estatute , et queux nemy et queux issues serra trie solonque l'entendment de cest estatute , et queux nemy et ouster , que serra dit sufficient franktenement pur un home destre un jurour sur l'un breif et sur l'auter solonque l'entendment de cest estatute et quant le viscount ou auter minister perdra le penalty limitt per cest estatute , et quant nemy et quant le viscount perdra le penalty de c●st estatute pur non retorner de sufficient hundredors solonque l'entendment de cest estatute , et quant nemy et pur ceo què les parolls del statute soient ouster què en chescun breif de habeas corpora ou distringas ove nisi prius lou plein jury appiert devant les justices d'assise ou nisi prius ou apres appearance de plein jury per challenge de ascun des parties le enquest remanera nient prise pur default des jurors què adonque mesme les justices sur request fait per le partie plaintiff ou demandant poet commander le viscount ou auter minister de retorner tales de circumstantibus &c. ore jeo entende desouth vostre pacience de monstre a vous sur quel default ou non appearance des jurors les justices de nisi prius poient agard tales de circumstantibas solonque l entendment de cest estatute , et sur quel nemy et quant le ▪ plaintiff ou demandant avera tales a son prier et uncore quant il est retorne il ne proccedera al prisel del enquest solonque l entendment de cest estatute . et quant des persons le viscount poet retorner sur un tales solonque l'entendment de cest estatute . 1. en cessavit le tenant plede què la terre fuit overt & sufficient al son distresse , sur quel issue est joine ; et al jour de nisi prius les jurours fount default , et le demandant prie tales de circumstantibus accordant al cest estatute , et le tenant adonque tender les arrearages al demandant et les jette en court les justices ceo nient obstant poent agard tales de circumstantibus accordant a cest estatute .. 2. en breif de wast issue est joine sur nul wast fait et al nisi prius le jury appiert plein des queux sex ount le lieu et puis per challenge deux de les vewors soient trete moy semble que le plaintiff a cest temps n'avera tales de circumstantibus accordant a les parolls de cest estatute . 3. en precipe quod reddat issue est joine sur feoffment ove testmoignes , per que process est agard de faire vener l'enquest et les testmoignes auxy , et al jour de nisi prius sur le primer distress les testmoignes ne appieront et ascun del ' enquest font default per que le enquest nest plein moy semble què tales ne poient estre agard solonque l'entendment de cest estatute . 4. en precipe qd reddat sur issue joine sur un fait ove testmoignes process continue vers les jurours et les testmoignes tanque al grand distress que est agard ove nisi prius et al jour del ' nisi prius les testmoignes ne appieront et parcell del ' enquest font default moy semble que les justices poent agard tales de circumstantibus al prier del ' demandant solonque l'entendment de cest estatute . 5. sur issue joine sur un fait ove testmoignes habeas corpora ove nisi prius est agard , et al jour del ' nisi prius le viscount retorne què les testmoignes n'ount riens deins mesme le county , ou què ils soient mortes et pur le enquest il retorne le breif servie et al mesme le jour parcell del ' enquest font default moy semble que les justices sur cel default poient agarder tales de circumstantibus si le plaintiff ou demandant ceo prie . 6. sur issue joine al nisi prius le enquest appiert plein des queux soient deux hundredors queux deux soient jurès enter auters jurours issint que le enquest nest plein pur default des hundredors moy semble que le plaintiff en cest case poet aver tales de circumstantibus de plusors hundredors si soient deins le lieu per force de les parolls de cest estatute . 7. al nisi prius plein enquest appiert d'ont sex soient hundredors accordant a les parolls d'estatute , et quater de les hundredors soient jurès , et auters touts de l'enquest soient tretes per challenge moy semble què le plaintiff avera tales de circumstantibus nient obstant que ne soient ascun auters hundredors deins le lieu et nient obstant que les parolls d'estatute soient que sex hundredors serra empanel en chescun enquest . 8. sur issue joine en breif de mesne sex hundredors soient retorne en le panel , et al jour de nisi prius le enquest appiert plein ouster les hundredors , et deux les hundredors sont jurès , et les auters hundredors tretes per challenge , et touts les auters del ' enquest al number de plein enquest soient challenge preter h. moy semble què les justices en cest case ne poient agarder tales de circumstantibus . 9. issue joine al nisi prius l'enquest est demand et un appiert et touts les auters font default moy semble que les justices poent agarder tales de circumstantibus al prier del ' plaintiff ou demandant . issint est si le plein enquest ust un foits appiere et ussoient estre treits per challenge touts forsque un . 10. sur issue joine le enquest appiert plein devant les justices de nisi pr●us et tout le enquest forsque un fuit treit per principal challenge et le jurour qui remaine est auxy challenge pur favor moy semble que ore les justices sur cel default ne poient agarder tales de circumstantibus solonque l'entendment de cest estatute . 11. al nisi prius plein enquest appiert et le defendant challenge le primer jurour quant il ne vient al lieu destre jurè et touts peravayle et touts les jurours forsque deux soient treits per challenge moy semble que les justices sur cel default ne poient agarder tales de circumstantibus solonque l'entendment de cest estatute . 12. breif de nisi prius est perenter deux grand seigniors et auters homes de grand poer , et sur special labour d'eux et lour amies le jurours font default et auters soient labours d'estre present en court pur estre retorne de circumstantibus issint que un grand tumult est semble que en cest case les justices de lour discretion poent ouster le plantiff ou demandant de son tales et per lour discretion eux adjorner en bank nient obstant cest estatute . 13. en breif de trespass le defendant plede rien culpable et al jour de nisi prius il monstre un arbitrement fait puis le darrein continuance le quel le plaintiff la confesse uncore moy semble que les justices poient agarder circumstantibus si le plaintiff ceo voilt prie . 14. sur venire facias xxiiii jurours soient retorne et sur le habeas corpora ove nisi prius l'un des jurours est omitte moy semble que sur default des jurours les justices en cel case ne poent agarder tales de circumstantibus . 15. sur issue joine nisi prius un protection est jette pur le defendant moy semble que les justices ore sur ascun default des jurours ne poent agarder tales de circumstantibus solonque le entendment de cest estatute . 16. al nisi prius pur default des primers jurours le plaintiff ad un tales a luy agard per les justices per quel le enquest ove les primer jurours est pleine , et quant ils vient destre jurès le defendant challenge le array del ' principal panell que est quash moy semble que il ne poet aver auter tales de faier plein enquest solonque l'entendment de cest estatute . 17. en quare impedit al nisi prius le plaintiff ad un tales de circumstantibus en quel le viscount retorne xvi queux appieront et quant le primer jury est destre jurè le defendant challenge l'array del ' primer enquest que est quash moy semble que le plaintiff ne puit ' prender plein jury del ' tales que appiert nient obstant les parolls de cest estatute et uncore sil ussoit al comen ley il puissoit aver plein enquest de tales et procedereit . 18. sur habeas corpora ove nisi prius retorne per le bailiff d'un franchise qui ad retorna brevium , al nisi prius les jurours font default per que le bailiff esteant present est command per les justices de retorner tales qui respond que ne soient plusors sufficient deins son bailiffwick moy semble que les justices al prier del ' plaintiff poent agarder tales de circumstantibus destre retorne per le viscount solonque l'entendment de cest estatute . 19. en curia claudenda sur default d'appearance al nisi prius tales est agard et que apperont ne ount ascun notice del ' terre a que l'enclosure est claime moy semble que en cest case le plaintiff ne prendra benefit de son triall de circumstantibus solonque l'entendment de cest estatute . 20. al nisi prius en curia claudenda tales de circumstantibus est retorne al prier del ' plaintiff et null del ' principal panell conust la terre a que l'enclosure est claime mes xii del ' tales qui appeeront ount conusans del ' terre moy semble que le plaintiff en cest case ne prendra benefit de son triall solonque l'entendment de cest estatute . 21. tales de circumstantibus est grant al nisi prius en breif de wast , per que est suppose le wast destre fait en terre et pree et les jurours del ' primer panell ount ewe le view del ' terre mes nemy del ' pree moy semble què en cest case le plaintiff ne proceedera en son triall solonque l'entendment de cest estatute . 22. en breif de wast touts les jurours forsque deux font default moy semble que le plaintiff ore n'avera tales de circumstantibus solonque l'entendment de cest estatute . 23. en cui in vita al nisi prius touts les jurours font default issint que nul de eux appiert moy semble què les justices , en cest case ne poient agarder tales de circumstantibus solonque l'entendment de cest estatute . 24. en precipe quod reddat vers baron et feme et un tierce person tales de circumstantibus est agard al prier del ' plaintiff . et quant le enquest appiert plein les tenants foient demand et le baron et feme font default et le tierce person appiert moy semble què le demandant en cest case ne proceedera a son triall solonque l'entendment de cest estatute . 25. issue est joine en breif de mesne sur le cause d'acquital per que le demandant sue un venire facias et le tenant un auter , et ambideux soient retorne , et chescun d'eux sue auxy un breif de nisi prius les queux breifs soient auxy mise eins devant mesme les justices de nisi prius moy semble que si ascun des jurours font default que le plaintiff n'avera tales de circumstantibus sur l'un brief ne sur l'auter . 26. si le viscount retorne nul home de franktenement en le venire facias le plaintiff al nisi prius poet estre ouster de son triall per cest estatute . 27. en precipe quod reddat sur default des jurours al nisi prius un tales de circumstantibus al prier del ' demandant est retorne sur que l'enquest ove ceux del ' primer jury appiert plein , et le tenant esteant demande fist default moy semble que le demandant ne procedera al enquest sur son tales solonque l'entendment de cest estatute . 28. al jour de nisi prius en precipe qd reddat le tenant vient et conust devant les justices què il tenust al terme de vie le reversion al roy et prie aide del ' roy moy semble què per ceo le plaintiff poet estre ouste de son tales de circumstantibus per entendment de cest estatute . 29. en breif de trespass port per deux villeins le seignior plede villenage en eux ambideux sur que issue est joine et al nisi prius le un des villeins luy conust destre villein al' defendant moy semble que le auter villein ne poet aver tales de circumstantibus solonque l'entendment de cest estatute . 30. en breif de trespass vers deux queux plede què le plaintiff est villein al un de eux sur que issue est joine et al nisi prius cestuy defendant al qui le plaintiff est suppose destre villein confesse que il est frank et nemy villein moy semble que sur default des jurours le plaintiff poet prier tales vers l'auter solonque l'entendment de cest estatute . 31. sur issue joine del ' terre que est parcell en franchise et parcell en gildable deux breifs de venire facias sur l'un per le viscount et l'auter per le bailiff soient retorne et al nisi prius pur default des jurours le plaintiff prie retorne per le viscount moy semble què ll n'avera ceo solonque l'entendment de cest estatute . 32. al nisi prius que est retorne per les coroners les jurours font default , et le plaintiff prie tales accordant al cest estatute , et la n'est forsque un coroner moy semble què le plaintiff n'avera ceo a cest temps solonque l'entendment de cest estatute . issint est lou le tales est destre retorne per essiers et touts sont absent forsque un . 33. sur issue joine un breif de nisi prius est sue per le defendant ove proviso en quel les jurours font default moy semble què le plaintiff poet aver tales solonque l'entendment de cest estatute nient obstant que soit sue per le defendant et nemy per luy mesme . 34. sur issue joine enter un denison et un alien venire facias est sue solonque les parolls de cest estatute si les jurours font default al nisi prius le plaintiff poet aver tales solonque l'entendment de cest estatute . 35. al nisi prius touts del ' enquest forsque deux soient challenge pur le hundred per le defendant , et le plaintiff ceo confesse et dit ouster que touts auters deins mesme le hundred sont deins son distress et prie que ceo poet estre trie per deux triers maintenant le quel est trove per les triers accordant per que le plaintiff prie tales de circumstantibus del ' hundred prochein adjoinant moy semble què il doit ceo aver solonque l'entendment de cest estatute . moy semble que le viscount ou auter minister per les parolls de cest estatute poet retorner 24 ou 40 persons ensemblement sur un tales de circumstantibus et ouster ceux tants auters en number que a luy pleist s'ils sont deins le view et nient empanel sur le primer panell car nient obstant que ils sont treits hors del ' primer per challenge uncore ils ne serra retorne sur le tales s'ils soient present deins le view mes ils sont discharge de cest enquest destre prise perenter ceux parties a cest temps . lectio octava . en mes auters lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actions , suits et demands le trial purvey per cest estatute prendra son effect et en queux nemy et en queux courts tiels actions suits et demands doient estre port et commence et en quel lieu le court doiet estre tenus quant l'action serra commence en l'un court et serra mise a son triall en l'auter court et enter queux persons & parties le tryal purvey per cest estatute prendera son effect et queux persons serra dits parties deins le purvey de cest estatute et queux issues serra trie solonque l'entendment de cest estatute et queux nemy et ouster que serra die sufficient franktenement pur un home destre jurour per cest estatute et que nemy et quant le viscount ou auter minister perdra le penalty limitte per cest estatute et quant nemy et qui serra dit sufficient hundredor solonque l'entendment de cest estatute et qui nemy et quant le viscount perdra le penalty de cest estatute pur non retorner de sufficient hundredors per cest estatute et quant nemy et ouster sur quel default ou non appearance des jurours les justices de nisi prius poent agarder tales de circumstantibas solonque l'entendment de cest estatute et sur quel nemy et quant le plaintiff ou demandant avera tales a son prier et uncore quant ceo est retorne il ne proceedera al prisel del ' enquest solonque l'entendment de cest estatute et quant des persons le viscount poet retorner sur un tales solonque l'entendment de cest estatute et pur ceo que les parolls d'estatute soient ouster que les justices sur request fait per le partie plaintiff ou demandant poient agarder tales de circumstantibus solonque l'entendment de cest estatute jeo entend ove vostre pacience de monstre a vous que person plaintiff ou demandant poet prier cest tales solonque l'entendment de cest estatute et que nemy et queux persons le viscount ou auter minister poet retorne sur le tales de circumstantibas et queux nemy . moy semble què chescun esteant plaintiff ou demandant qui poet prier tales accordant al cest estatute poet cybien ceo prier per attorney come en proper person nient obstant que l'estatute riens parle del ' attorney . 1. le vouchee en precipe qd reddat enter en le garrantie et vouch ouster un estranger qui vient per process et enter en le garranty come un qui ad riens per discent et le primer vouchee maintaine que il ad per discent deins le county de k. sur que issue est joine moy semble què al nisi prius le primer vouchee sur default des jurours poet prier tales de circumstantibus et uncore il n'est plaintiff ne demandant deins le primer action . 2. en replevin port per trois , le defendant avowa , et its soient al issue sur le avowry moy semble què si un des plaintiffs al nisi prius fist default què les auters deux ne avowera , nec poet ascun de eux prier tales solonque l'entendment de cest estatute . 3. en formedon port per deux coparceners le tenant plede al issue et al nisi prius l'un de eux fist default moy semble què le auter de eux poet prier tales de circumstantibus solonque l'entendment de cest estatute . 4. en breif de cosinage port per deux coparceners ils sont al issue et al nisi prius le tenant monstre release de touts actions de lu'n des coparceners puis le darrein continuance le quel el adonques confesse moy semble què cestuy que ne release poet prier tales de circumstantibus accordant al cest estatute .. 5. en precipe quod reddat port per a. b. major de c. et communalty de mesme le lieu le dit a. b. major & le pluis part del ' communalty al nisi prius ne poient en lour proper persons prier tales sur default des jurours . 6. en breif de trespass ou auter action port per un evesque ou abbe al nisi prius ils poent en lour proper persons prier tales de circumstantibus accordant a les parolls de cest estatute . 7. vn distress ove nisi prius en breif de dett què n'est deliver de record est retorne per le viscount al nisi prius , et les jurours font default ; moy semble què le plaintiff ne puit prier tales solonque l'entendment de cest estatute . 8. vn autiel breif ( come devant ) est deliver al viscount sur quel il retorne forsque 12 d en issues , ou nul issues moy semble que en cest case le plaintiff ne poet prier tales de circumstantibus . 9. en breif de wast port per le prior de dale qui est datiff & removable et per tiel nosme ad use de suer & destre sue le defendant plede nul wast fait sur que ils soient al issue et devant le nisi prius le prior est remove et un auter est enstall moy semble què le novel prior poet prier tales de circumstantibus nient obstant que il ne fuit plaintiff al temps del ' primer action commence . 10. en formedon port per deux coparceners devant le nisi prius l'un de eux prist baron et al nisi prius le jury font default moy semble què le sole coparcener poet prier tales de circumstantibus et le baron & feme nemy . 11. deux coparceners portont un breif de dum fuit infra etatem de le seisin lour ancestor et al jour del nisi prius ils appieront en proper person , et appiert al justices que l'un d'eux est deins age moy semble què nul de eux avera tales de circumstantibus solonque l'entendmenet de cest estatute . 12. en breif de trespass port per deux , al nisi prius le defendant monstroit un record al court per quel appiert que l'un des plaintiffs est utlage puis le darrein continuance moy semble que nul de eux poet prier tales solonque l'entendment de cest estatute . 13. en cui in vita port per deux coheirs , al nisi prius le defendant dit què l'un d'eux est moyne professe puis le darrein continuance my semble que l'auter que n'est professe ne poet prier tales solonque l'entendment de cest estatute . 14. le major del ' ville de dale esteant tenant in comen ove luy mesme d'un acre de terre en quel trespass est fait per j. s. en breif de trespass de ceo al nisi prius le jury font default moy semble que j. s. ne poet prier tales de circumstantibus solonque l'entendment de cest estatute . 15. sur issue joine sur un ne injuste vexes perenter le signior & le tenant nisi prius est agard moy semble que le tenant poet prier tales de circumstantibus accordant al cest estatute , et le seignior nemy . 16. deux tenants en comen del ' mannor al que advowson est appendant que est tenus del ' roy en cheif , l'un d'eux morust , son heire deins age , le heire sur office trove grant proximam advocationem al estranger et l'estranger et l'auter tenant en comen port quare impedit et al nisi prius l'un appiert et l'auter fist default moy semble què cestuy qui appiert ne poet prier tales solonque l'entendment de cest estatute . 17. en breif de dett port per deux executors al nisi prins l'un d'eux fist default moy semble que l'auter qui appiert ne poet prier tales solonque l'entendment de cest estatute .. 18. en ravishment de gard port per deux qui sue en lour proper persons al jour de nisi prius l'un des plaintiffs esteant la devient surde & mute moy semble què l'auter plaintiff esteant present ne poet prier tales solonque l'entendment de cest estatute . 19. en precipe qd reddat le demandant fist deux attornyes joint & several et ambideux attorneys esteant present al jour de nisi prius l'enquest fist default et l'un d'eux prie tales , et l'auter prie jour en bank moy semble què en cest case cestuy qui prie le tales doit a son prier ceo aver solonque l'entendment de cest estatute .. 20. en precipe quod reddat port per un infant il est admitte per le court de suer per deux gardeins et les dits gardeins esteant al nisi prius sur default d'appearance de jurours l'un de eux prie tales et l'auter iour en bank moy semble que ambideux doient prier le tales et nemy l'un deux a per luy . 21. en precipe quod reddat port per deux et chescun de eux fist several attorney a per luy et al jour de nisi prius les demandants esteant absent l'un des attorneys fist default et non appiert moy semble que cestuy qui appiert ne poet prier tales solonque l'entendment de cest estatute . 22. en breif de dett port per dean & chapiter del ' pauls apres issue joine le dean morust et devant le jour de nisi prius un auter est eslie dean moy semble que le novel dean ove le chapiter poient per lour primer attorney prie tales solonque l'entendment de cest estatute et uncore cest novel dean ne fuit plaintiff sur l'original . 23. breif de trespass port per j.s. major & le communalty de dale apres issue joine et devant le jour de nisi prius le major morust et a. b. est elect major moy semble què le novel major & le communalty ne poent prier tales solonque l'entendment de cest estatute . 24. l'abbe de westminster port breif de trespass le quel il sue per attorney et apres issue joine et devant le jour de nisi prius il est create evesque moy semble què ceo nient obstant il poet prier tales al nisi prius solonque l'entendment de cest estatute . 25. en breif de dett port per administrator vers j. s. apres issue joine et devant le jour de nisi prius l'ordinary committe l'administration al un auter le quel est monstre al justices desouth le seal del ' ordinary al nisl prius moy semble què ore le plaintiff ne poet prier tales solonque l'entendment de est estatute . 26. si le viscount sur tales de circumstantibus agard empanel un preist ou deacon s'il ad sufficient franktenement de lay fee il est able person solonque l'entendment de cest estatute . 27. si le viscount sur tales de circumstantibus agard empanel un infant et un auter d'age de 80 anns et chescun de eux ount sufficient franktenement moy semble què nul de eux est able person solonque l'entendment de cest estatute . 28. si le viscount sur tales de circumstantibus agard empanel les coroners ou auters capital minister d'ascun citty borough ou ville corporate , ou foresters , ou viridors d'afcun park ou forest de l'roy & royne s'ils ount sufficient franktenement ils soient persons able solonque l'entendment de cest estatute . 29. si les coroners sur tales de circumstantibus al eux agard empanel le viscount moy semble que il est person able solonque l'entendment de cest estatute . 30. si les coriners sur tales de circumstantibus a luy agard empanel un home qui est mute mes il poet oyer et ad perfect intelligence et ad sufficient franktenement moy semble que il est person able solonque l'entendment de cest estatute . issint est sil soit cece & mute & il ad son perfect intelligence mes auterment est sil soit surde . 31. si hmoe qui est excommenge soit empanel sur un tales et ad sufficient franktenement il est person able solonque l'entendment de cest estatute mes auterment est sil soit utlage ou attaint . 32. home de non sane memory ou alien qui ad sufficient franktenement ou clerk attaint ou home qui est ataint de faue verdict ceux ne soient persons ables destre retorne sur un tales solonque l'entendment de cest estatute . 33. le fits d'un alien enemy nee delns le terre , et clerk & home qui ust lucida intervalla touts ceux sils ount sufficient franktenement soient persons able destre empanel sur le tales de circumstantibus solonque l'entendment de cest estatute . lectio nona . en mes auters lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actious suits & demands le triall purvey per cest estatute prendra son effect et en queux nemy et en queux courts tiels actions suits & demands doient estre port & commence et en quil lieu le court doit estre tenus quant l'action serra commence en l'un court et serra mise a son tryall en l'auter court et enter queux persons & parties le tryall purvey per cest estatute prendra son effect et queux persons serra dits parties deins le purvey de cest estatute et queux nemy et queuxi issues serra trie solonque l'entendment de cest estatute , et queux nemy et que serra dit sufficient franktenement pur un home destre jurour et que nemy et quant le viscount ou auter minister perdra le penalty limitt per cest estatute pur jurours retorne dein sufficient franktenement et quant nemy et qui serra dit sufficient hundredors solonque l'entendment de cest estatute , et qui nemy et quant le viscount perdra le penalty de cest estatute et quant nemy pur retorner de insufficient hundredors et ouster sur quel default ou non appearance des jurours les justices de nisi prius poent agarder tales solonque l'entendment de cest estatute et sur quel nemy et ouster quant le plaintiff ou demandant avera tales retorne a son prier et uncore il ne proceedera solonque l'entendment de cest estatute et quant le viscount poet retorner sur un tales solonque l'entendment de cest estatute et ouster queux persons poent prier le tales solonque l'entendment de cest estatute et queux nemy et queux persons le viscount ou auter minister poet retorner sur un tales et que serra dits able persons solonque l'entendment de cest estatute et queux nemy et pur ceo què les parolls del ' estatute soient ouster que chescun des parties poient aver lour challenge a les jurours del ' tales issint retorne et annex a le primer panell en tiel manner come s'ils ussoient estre empanel sur le venire facias de trier le issue ore jeo entende ove vostre pacience de monstre a vous queux challenges les parties avera al array on a le poll de tales del circumstantibus retorne et queux nemy et que serra dit principal challenge et que nemy et quant le poll challenge serra treit maintenant sur le challenge et quant nemy . jeo entende per cest estatute nul des parties avera ascun challenge a l'array del ' tales retorne per le viscount mes tantsolement a le poll per les parolls de cest estatute . moy semble auxy què si ascun des parties en ascun action suit ou demand que est triable solonque le purvey de cest estatute challenge ascun poll del ' tales que est retorne pur le hundred , ou pur favour et ceo un foits trie que il apres n'avera ascun auter challenge a mesme le poll pur quecunque cause on matter que il soit a mesme le temps . 1. si le defendant en ascun action al nisi prius dit què un le tales qui est retorne est villein al demandant ou plaintiff moy semble que ceo est principal challenge , issint est e converso si le plaintiff luy challenge pur ceo què il est villein al demandant . 2. si un des pollez del ' tales qui est retorne soit challenge pur ceo què il est compere al fits ou file le plaintiff ou defendant moy semble que il est principal challenge . 3. si un del ' tales soit challenge pur ceo què il fuit compere al bastard le plaintiff ou defendant moy semble què ceo n'est ascun challenge d'aver le jurour treit . 4. si le defendant challenge un des pollez de tales pur ceo què il avoit un foits marrie le soer le plaintiff le quel al temps que il fuit empanel fuit mort sans issue moy semble que ceo est bon challenge pur favour mes nemy principal . 5. si un home soit empanel sur un tales qui est marrie al soer ou neece le plaintiff et ad issue per luy et le prisel del ' enquest est respite tanque al prochein jour ' et al jour la feme le jurour est mort et l'issue auxy et quant le jurour vient estre jurè le defendant luy challenge pur mesme le cause moy semble que nient obstant la feme del ' jurour & son issue sont mort a cest temps uncore il est principal challenge . 6. sur tales agard perenter le major & communalty de dale plaintiffs & j. s. defendant un del ' tales est challenge pur ceo què il est frere ou cousin al major ou al un del ' communalty moy semble que ceo est principal challenge . en mesme le manner est del ' dean & chapiter . 7. en precipe port per le abbe de westminster vers un auter si le defendant challenge un del ' tales pur ceo què il est cosin ou frere al un des commoignes del ' dit abbe moy semble que ceo est principal challenge . 8. si un del ' tales soit challenge per le plaintiff ou defendant come cousin , le quel est cosin hors de les degrees del ' marriage issint que il ne puit inheriter a luy a que le cousinage est allege ceo est un challenge pur favour mes nemy principal . 9. si un del ' tales soit challenge per le defendant pur ceo què il ad breif d'appeal ou breif de trespass de batery pendant perenter luy & le jurour moy semble que il est principal challenge mes si soit en breif de dett ou trespass ou hujusmodi auterment est . 10. home ad iudgment de recover per verdict en precipe qd reddat le quel est reverse per breif de error et en auter precipe pur mesme la terre sur issue joine un del ' tales fuit challenge de ceo què il fuit un des jurours qui done verdict vers luy en le primer action moy semble què ceo est principal challenge . 11. sur un tales de circumstantibus retorne un des tales est challenge per le defendant pur ceo que il avoit prise deniers del ' plaintiff a donor verdict pur luy moy semble que ceo est principal challenge . 12. si un del ' tales soit challenge per ascun des parties de ceo què il fuit auter soits attaint de faux verdict , ou condempne en action de forger de faux faits moy semble què ceux sont principal challenges . 13. sur tales agard en breif de trespass d'ont le plaintiff fuit endyte devant al fuit le roy si le defendant dit què le jurour fuit un des primer endytors moy semble que ceo u'est principal challenge . 14. sur decem tales de circumstantibus agard l'un de eux est challenge de ceo que il fuit un foits attaint en decies tantum moy semble que ceo nest principal challenge , ne pur favour . 15. si un des tales soit challenge de ceo que il fuit un des les endytors de a. b. et puis per auter verdict luy acquitt issint que il avoit done contrary verdict en un mesme chose moy semble què ceo nest ascun challenge pur treiter le iurour . 16. en precipe qd reddat port per deux coparceners l'un de eux est summon et severed , un del ' tales est challenge pur ceo què il est cousin ou gossip al cestuy que fuit summon & severed moy semble que ceo est principal challenge . issint en precipe port per auters qui ount joint cause d'action . 17. en breif de entry sur disseisin en le per un del ' tales est challenge pur ceo que il est mesme le person per que le primer entry est suppose moy semble que ceo est principal challenge . 18. en breif be maintenance un del ' tales est challenge pur ceo que fuit un des jurours en le primer action en que le maintenance est suppose moy semble que ceo nest principal challenge ne pur cause . 19. en brief de conspiracy un del ' tales est challenge pur ceo que fu● un des primer endytors sur quel il fuit acquitt moy semble que ceo est principal challenge . 20. en brief de trespass pur prisel certein deniers de le plaintiff un un del ' tales fuit challenge pur ceo que il est comen hosteler de larons et est demurrant al un lieu que est notorious & suspitious de male fame moy semble que ceo est principal challenge . 21. vn panell sur suggestion fait al court est fait del ' hundred prochein adjoinant a le hundred ou le visne est alledge , de quel panell trois sont jurès sur le principal et sur tales agard un de eux est challenge pur ceo que il n'ad riens deins le hundred ou le visne est alledge moy semble que cest challenge n'est bon per les parolls de cest estatute . finis . the cases of mr. risden , in his reading in august , 1612. upon the statute of the 21 h. 8. cap. 19. of avowries . london , printed for norman nelson at grayes-inn gate in holbourn , 1680. l'estatute de anno xxi . henrici octavi , cap. xix . de avowries . where as well the noblemen of this realm , as divers other persons by fines , recoveries , grants , and secret feoffments and leases , made by their tenants to persons unknown , of the lands and tenements holden of them , have been put from the knowledg of their tenants , upon whom they should by order of the law make their avowries for their rents , customs and services , to their great losses and hinderances : ¶ be it therefore enacted , established and ordained by authority of this present parliament , that wheresoever any mannors , lands , tenements , and other hereditaments , be holden by any manner of person or persons by rents , customs or services , that if the lord of whom any such mannors , lands , tenements , or hereditaments be so holden , distrein upon the same mannors , lands or tenements for any such rents , customs or services , and replevin thereof be made , that the lord of whom the same mannors , lands , tenements or hereditaments be so holden , may avow , or his bailiff of servant make cognizance or justifie for the taking of the said distresses , upon the same lands , tenements or hereditaments , so holden , as in lands or tenements within his fee or seigniory ; alleadging in the said avowry , cognizance and justification , the same mannors , lands and tenements to be holden of him , without naming of any person certain , to be tenant of the same , and without making any avowry , justification or cognizance , upon any person certain : and likewise the lord , bailiff or servant , to make avowry , justification or cognizance in like manner and form upon every writ sued of second deliverance . and also be it enacted by the said authority , that every avowant , and every other person and persons that make any such avowry , justification or cognizance , as bailiff or servant to any person or persons in any replegiare or second deliverance for rents , customs or services , or for damage fesant , or for other rents or rents upon any distress taken in any lands or tenements , if the same avowry , cognizance or justification be found for them , or the plaintiffs in the same be non-suited or otherwise barred , that then they shall recover their damages and cost against the said plaintiffs , as the said plaintiffs should have done or had , if they had recovered in the replegaire , or second deliverance found against the said defendants . and be it also ordained , that the said plaintiffs and defendants in the said writs of replegiare , or writs of second deliverance , and in every of them , shall have like plees , and like aid and prayers in all such avowries , cognizances , and iustification , plees of disclaimer only excepted , as they might have had before the making of this act , and as though the said avowry , cognizance , or justification had been made after the due order of the common law. and it is further enacted by the said authority , that all such persons as by the order of the common law may lawfully joyn to the plaintiffs or defendants in the said writs of replegiare , or second deliverance , as well without process as by process , shall from henceforth joyn unto the said plaintiffs or defendants , aswell without process as by process , and to have like pleés and like advantages in all things , disclaimer only excepted , as they might have done by the order of the common law before the making of this act. les cases de monsieur risden en son lecture in august 1612. sur l'estatute de 21 h. 8. cap. 19. de avowries . lectio prima tertio augusti sur les parolls del statute ( that wheresoever any mannors , lands , tenements , and other hereditaments be holden of any person or persons ) il monstre , what mannors , lands , tenements and hereditaments may be holden ; what person and person may hold such lands , tenements and hereditaments , and of what person and persons such lands , tenements and hereditaments may be holden within the purview of the statute , and what not . 1. deux mesnes per 12 d. les mesnes font done en tayle donee esteant implede , vouch a. et b. les donors , a. disclaime , b. enter en le garranty : le donee tient de b. per fealtie tantum , mes ne tient ascun terres deins l'estatute . 2. feme donee in tayle de mesnaltie tenus per 12 d. marrie ove tenant , seignior release al baron le baron devie , la feme devie , un estranger enter , l'issue distreine , il tient del donor per sealtie tantum , mes tient nul terre deins l'estatute . 3. estranger levie fine sur conuzance de droit come ceo &c. al b , de son terre demesne , et per fait enter eux le use est declare al a. et ses heires , donee enfeoffe deux ove garrantie al un et ses heires , donee et cestuy a que le garrantie est fait morust , et assets descend al issue , l'issue tient un moitie del ' seignior , survivor le feoffee tient le auter moitie , mes a tient nul terre deins l'estatute . 4 : mesne tient per 6 d. et seignior ouster per 12 d. mesne en consideration de 20 l. destre paye bargaine et sale le mesnaltie , son feme est attaint de felony et procure sa pardon , mesne devie et sa feme marrie bargainee , que assigna le tierce part del ' mesnaltie pur sa dower , et morust sans heire , feme serra attendant pur 12 , mes ne tient ascun terre ou hereditament deins l'estatute . 5. le mesne en consideration de natural amour , que il port a sa soer del ' demy sanke , et in consideration que un a. marria sa dit soer , covenant destoire seisie al use del a. et sa dit soer in tayle , le remainder al ayel a. en fee , mesne morust , le marriage est solemnize , pier a. est attaint de treason et execute , ayel morust , a tient tenements et hereditaments de seignior deins cest estatute . 6. copyholder en feé surrender , et per fait declare que l'use apres son mort serra al son puisne fits en tayle rendant rent , et pur defalt de payment un re-entrie , copyholder morust , rent est arrere , le heire morust , et son heire enter , le heire tient de seignior , mes ne tient ascun terre deins l'estatute . 7. copyholder en feé surrender al use del ' a. pur vie remainder al b. en fee , seignior grant le terres per copy al c , et apres admit a. en fee , a. fait lease a comencer al michaelmas , et morust , copyholder morust , b. tient de seignior , mes ne tient terres deins cest statute . 8. seignior de terres ancient demesne per 12 d. rent , il et estranger disseise le tenant , seignior confirme le terres al estranger , a tener per comen ley per 8 d. le disseisor tient del ' seignior per 12 d , mes tient nul terre deins l'estatute . 9. baron seisei de terres en droit sa feme , il et sa feme lessont al a. et b. pur lour vies , lessees ceo lessont al c. pur vie de a. baron ad issue , feme devie , baron enter , seignior release al issue , baron tient de seignior paromount , deins cest statute . 10. pere enfeoffe son puisne fits , sur condic'on que il enfeffera auter absolutement , leigne fits enter , puisne fits re-enter , leigne fits tient le terre , mes ne tient ascun terre deins cest statute . 11. roy ayant terre per recusancie , ceo grant ouster , quam diu in manibus nostris fore contigerit , le recusant esteant donee in tayle , est attaint en praemunire , le donee tient del ' seignior , mes ne tient ascun terres deins cest statute . 12. a. b. et c. iointenants de terre devisable , a. release al b , b. devise la terre al hospital de saint bartholomew , c. et b. devie , mayor et comminaltie de londres , tient le tierce part de terre deins cest statute . 13. mesne levie fine , le heire de conusor est forejudge en breif de mesne , tenant enfant fait feoffment rendant rent durant son nonage , que al pleine age accept le arrearages , feffee tient del ' seignior paramount , deins cest statute . 14. terre est done al alien et al heires son corps , sur condic'on d'aver fee , office est trove , alien performe le condition , l'alien tient le terre deins cest statute . ☞ issint sur les parolls de cest division , quant al primer part de cco , sc . what lands , tenements or hereditaments may be holden , il ad estre tenus que si seignior mesne et tenant sont , que le mesne tient deins cest statute , car coment que le mesne n'ad riens en le terre del seignior , et le seignior poit distreine pur les services , et si le mesne devie sans heire , ou son heire deins age , seignior avera breif d'escheate , ou breif de gard supposant que il tient le terre , nemy le mesnaltie ; mes si seignior mesne et tenant sont , et le mesne dona le mesnaltie en tayle rendant rent , le donee tient del donor , mes ne tient ascun terre deins l'estatute , car la il ne tient le terre mes le mesnaltie . copyhold terre n'est ascun terre tenement ou hereditament tenus deins cest statute , ancient demesne terre est hors del statute . terre en possession le roy coment que soit pas temporarie estate durant ceo temps , nest tenus deins cest statute . touts choses queux sont parcell d'un mannor poient estre tenus deins cest estatute , contrarie de choses regardant appendant appurtenant al mannor come villein commons , chimin , courts leets , estraies , waifes , &c. advowson in grosse que commence rac̄one structure poit estre tenus deins cest estatute , contra d'advowson que commence ratione fundationis vel donationis . quant al second part de cest statute ☜ quel person poiet tener , il ad estre tenus , que coment , les parolls del ' statute sont , where any lands are holden , that the lord of whom the lands are so holden , may avow upon the lands so holden , as upon lands within his fee and seigniory , touts queux parols seeme d'extender enter le veray seignior et le veray tenant , uncore donee in tayle , lessee pur vie , ou ans , ou tenant per le curtesie teignont deins cel statute , mes tenant en dower ou el est attendant al heire per le tierce part des services , tenant a volunt ou sufferance , tenant per statute ou elegit , ne teignont deins cest statute , mes si donee in tayle morust sans issue et sa feme est endowe el est tiel tenant en dower que tient deins cest statute . tenant en frankalmoigne ne tient deins cel statute , contrariè de son alienee , mes tenant per divine service et auxy son alienee tient deins cel statute . moigne est un person que poiet tener deins cel statute , et ceo est solement in case de disseisin . tiels persons queux ne poient purchaser , mes al use d'auters , uncore poient tener deins cest statute , car ils sont tenants in facto , coment nemy en droit . tenants per tort , come disseisors abators intrudors et tiels , teignont deins cest statute , car ils sont tenants in facto , coment nemy en droit . corporation tient deins eel statute , uncore n'est parson , mes corps politique . doneé in tayle ou frankmarriage discontinue et devie , lour issues teignont deins cest statute , car ils sont tenants en droit . mesme le ley de feoffor devant notice coment que il nest tenant neque en droit neque en fait , mes vouchee apres entre en garranty , ou tenant qui alien pendant precipe vers lui , coment que ils sont tenants al ascun purposes , uncore ne teignont deins cel statute . cestuy que use al comen ley ne tient deins cest statute , car il ne fuit tenant en droit neque in fait , mes feoffor devant notice , coment que il nest tenant neque en fait neque en droit tient deins cest statute , come devant est expresse . tenant per estoppell ne tient deins cest statute . quant al tierce part de cest division , ☜ de quel person terre poiet estre renus diens cest statute , il ad estre tenus que cestuy que n'ad que particular estate en le seigniorie come tenant in tayle , pur vie , ou ans , est person de quel terre poiet estre tenus deins cel statute , auxy tenant per statute ou elegit de seigniorie ou reversion sont seigniors deins cest statute . auxi tenant en socage coment que il n'ad riens mes al use le heire , et est accomptable , uncore est seignior deins cest statute et uncore nul de eux poiet tener deins cest statute come ad estredit devant . si executors ou administrators distreine pur arrerages due al temps del ' mort le testator , ou intestate , ils ne sont seigniors ne avoweront deins cest statute . corporac̄on est person de quel terre poiet estre tenus deins cest statute . roy n'est person de quel terre poiet estre tenus , deins cest statute , eo que replevin ne gist versus luy . lectio secunda septimo die augusti . pur ceo que les parolx del ' statute sont , wheresoever any mannors , lands , tenements , or hereditaments be holden by any person or persons , by rents , customes or services al cest jour , il monstre , what rents , customs and services are meant intended and provided for within the purview of this act , and what not . 1. tenant conust statute et morust . seignior seisa le gard , et continua possession del ' terre ouster son terme , conusee ad la terre deliver a luy en extent voyage royal est sait ; seignior grant le seigniorie , escuage est assesse , legrantee a vera sum̄ assesse mes ceo n'est rent service , ou custom deins l'estatute . 2. fits disseise son pere , et apres marrie , per fait testifiant le assent son pere , endowe sa feme de rent en fee , hors de terre , feme apres attaint procure son pardon , pere et fits devie , roy grant le rent a tener per fealtie , et rent , et apres grant le seigniorie , patentee avera le rent , mes ceo n'est rent ou service deins l'estatute . 3. seignior mesne et tenant le tenant tient per 5 s. et mesne per 1 s. seignior disseisa le tenant , et lessa pur vie , le mesne grant le surplusage , lessee pur vie devie , tenant re-enter , il tient del ' mesne , et rendra le rent al grantee , mes ne tient per ascun rent ou service deins cel statute . 4. ayel pere et fits , ayel devie , seignior encroach sur pere , pere devie , fits endowa sa mere , versus quel , ayeless recover en breif de dower , et morust , mere ne tient per ascun rent ou service deins cel statute . 5. doneé en frankmarriage de terres en borough english , enfeffa a , que enfeffe puisne fits le donee , pere devie , donor distreine pur faire fits chivaler , mes ceo n'est rent , ou service , ou custome deins l'estatute . 6. home ad issue 2 fits per divers venters , et morust leigne grant rent charge al b. et morust sans issue , l'auter enter et done le terre al a. en tayle b. disseisa a. et enfeoffe l'heire a , a. devie , b. n'avowa deins cest statute . 7. seignior mesne et tenant per harriot service , mesne est attaint de felony , seignior confirme al tenant a tener quite de touts manner de services , mesne reverse le attainder , tenant fait feoffment in fee ; et morust , mesne n'avowera pur le harriot deins cest statute . 8. gardein sur assignment de dower , reserve rent pur le surplusage les heires esteant parceners veignont al plein age , et agree l'assignment ; l'un parcener disturbe le tenant de sa comon , l'auter distreine , el avowera pur le moitie del ' rent , mes rie avowera deins l'estatute . 9. a. tenant per service a repaiter un pont , est disseisie per b , a. purchase le seigniore et apres release al b. tout son droit en le tenancie , savant le seigniorie pur anns , a. ad un inheritance en le seigniorie et avowera deins cest statute pur cest service , mes si il distreine , et rescusse soit fait , il n'avera assise . 10. tenant tient per 12 d. et mesne per 2 s , tenant fait done en frankmarriage , donees font homage , le mesnaltie descend ' al donor , donor avera 2 s. rent mes ceo n'est rent ou custome deins cest statute . 11. seignior et tenant per suit a son molin , pere le seignior purchase un acre del ' tenancie en taile , et morust , tenant eme blees , et eux mola aylors , seignior ne distreine ne avowera deins cest statute . 12. deux joint-mesnes per 5 s , seignior encroacha 10 s , l'un mesne prist le tenant al baron , seignior grant seigniory , l'auter mesne attorne , le grantee ferra deux avowries , mes ne avowera deins cest statute . ☞ issint sur les parols de cest division , primerment quant a cel paroll , ( rent ) il ad estre tenus que si soit seignior mesne et tenant , et mesne done le mesnaltie en tayle rendant rent , que ceo est bone reservation , et bone rent , mes durant le continuance del ' tenancie , ceo n'est ascun rent deins cel statute , car sont auter parols deins l'estatute , que s'il distreine , et replevin est port què it avowra , issint què l'estatute extende solement a tiel rent pur quel distress poiet estre prise , et icy durant le continuance del ' tenancie nul distress poiet estre , mes si le tenancie escheate , tunc il distreine pur touts arrerages , et avowe deins cest statute , auxi si sont seignior mesne ct tenant , le mesne tient per rent deins cest statute . car per ceo , le seignior poiet distreine sur le tenancie . rents charges sont hors de cest statute , car nul avowrie pur eux fuit sur le terre , come sur terre charge ove lour distresse . rents distreinable de common droit , come pur surplusage de mesnaltie , rent sur egaltie de partic'on , sur assignment de dower , rent que tenant en dower paya al heire en respect de attendancie seigniories del ' mesne , siegniories save per l'estatute de chaunteries et tiels sont hors de cest statute . il ad estre tenus que si roy done rent charge a tener de luy per rent et services , que ceo en case de roy est bone tenure , et que si le roy grant cest rent et service ouster , que patentee avera le rent mes il n'avowera pur ceo deins cest statute . si home fait done en tayle rendant rent , et donee suffer comon recovery , le rent remaine , mes n'est rent deins cest statute . touts rents secks sont hors del ' statute , car ils ne sont distreinable , et avowry ne poiet estre , mes lou il est distresse . rents et tenures gaine per estoppell , ne sont rents deins cest statute , mesme le ley de rents gaine del ' tenant per encroachment . quant al parols ( services ) il ad estre tenus que touts casual et accidental services , come escuage , castle gard , aid a faire fits chivaler , ou a file marrier , releife cybien apres le mort del ' tenant per chivalrie , come per socage tenure sont hors de cest statute , mes homage et fealty coment sont casual et accidental services sont deins cest statute eo que sont corporal services . harriot service n'est deins cest statute , eo que nul avowry fuit destre fait al comon ley pur tiel service sur le person mesme . la ley ou tenant est a payer fine sur chescun alienac'on , ceo n'est service deins cest statute . tenure per divine service est service deins cest statute . tenure a repairer un pont ou un haut voy , ou un beacon , que sont tenures pro bono publico , tenure a marrier un poor virgin annualment que est worke de charitie , tenure a trover un preacher ou provider les ornaments de tiel esglise queux sont work de devotion ; en touts ceux cases , coment le seignior n'ad ascun particular benefit per le service uncore sont services deins cest statute . tenant a repairer un castle ou private meason del ' seignior sont tenures et services deins cest statute , et uncore ils gisont solement en feasance , mes fi seignior distreine pur negligent feasans de ceux services et rescous a luy soit fait il n'avera assize . tenure per suit al court , ou per suit al molin le seignior , ou pur arer ou reaper le corne del ' seignior ne sont services deins cest statute , eo que le chose destre fait esteant passe , ne poiet estre fait ou recover , mes solement in defect de ceo d ' aver un amercement que est auter chose que le tenure et service . harriot custome n'est custome deins cest estatute . home devant l'estatute de quia emptores terrarum dona terre al 2 a aver l'un moitie a l'un et ses heires , et l'auter moitie a lauter et ses heires rendant 20 s. rent ; ou a cest jour dona terre a 2 a aver et tener l'un moitie a l'un en tayle et l'auter moitie a l'auter en tayle rendant 2 s. rent feoffees et donees ne teigne per ascun rent deins cest statute , eo que al comon ley nul avowrie en cest case fuit destre fait sur le person , car joint avowrie ne poiet estre fait sur tenants en comon , et several avowries sur le person ne poient estre fait , eo que n'est que un rent , et nemy severall rents , et nul avowrie est deins cest statute , mes lou l'avowrie devant l'estatute fuit sur le person : mes si soit seignior et tenant , et tenant al ceo jour fait feoffment del ' moitie , coment le rent ne serra apportion , uncore feoffee tient per rent deins cest statute , eo que l'avowrie devant l'estatute fuit destre fait sur le feoffee pur tout le rent . si terre soit lesse a volunt rendant rent ceo n'est rent deins cest statute , eo que al comon ley en ceo case l'avowrie ne fuit destre sur le person . lectio tertia decimo die augusti , pur ceo que les parols del ' statute sont ouster , that if the lord distrein , and replevin thereof be sued , the lord of whom the said lands or tenements or hereditaments be so holdeu , may avow , or his bayliff or servant make conusance or justifie for taking the said distress upon the said lands , tenements or hereditaments ; as in lands and tenements within his fee and seigniory , al cest jour il est monstre in queux acc'ons suits et courts le seignior avowera , en queux cases ferra conusance , et en queux cases il justifiera deins cest statute et en queux nemy . 1. seignior et tenant , composition est fait que tenant paya al seignior 10 s. pur touts services , seignior devisa le seigniory en tayle , et devise ouster que ses executors vendont le reversion , et morust , tenant en breif d'entrie voucha donee , et comon recoverie est ew , l'executors vendont le reversion al 2 , donee morust sans issue , vendees en assise pur rent sont summon et sever , l'un vendee morust , l'auter distreine , tenant ad deliverance en countie coutt , que est remove per recordare , le vendee avowera deins cest statute . 2. pere seisei de 2 acres dona l'un a son fits et a sa feme en tayle rendant rent et morust , le baron esteant empleade voucha luy mesme pur saver l'estate tayle lieu est enter et recoverie ew , baron devie , feme enter en l'auter acre , le heire distreine , et le pleint est remove per tin accedas ad curiam , le heire ferra avowrie deins cest statute . 3. tenant en tayle rendant rent , donee suffer comon recoverie , al use a. pur vie , le remainder al b. pur vie , le remainder al h. en fee , a. purchase le rent en fee , et apres ceo grant a h. et ses heires et morust , b. appere al replevin sans ascun distresse prise ou replevin sue , h. n'avowera deins cest statute . 4. seignior et tenant per fealtie et rent , a. recover le rent vers seignior , a. distreine , et en avowrie ad judgment irrepleg ' a. distreine avers pur mesme l'arrerages , viscount fait deliverance , mes ne retorne le breif a. n'avowera deins cest statute . 5. home lessa put 10 anns et apres lessa mesme le terre pur 20 ans a comencer apres fine ou surrender del ' primer lease rendant rent , et pur defalt de paiement un re-entrie , le lussee grant le reversion al b. pur vie le remainder al c. en fee , lessee pur 10 anns surrender , rent est demand , est arrere , b. accept le rent et morust , c. enter , a. re-enter , rent encurre durant primer 10 anns , a. ad auter beastes en withernam c. n'avowera deins cest statute . 6. seignior et 4 iointenants per homage et rent , a. purchase part de b , b. et a. lease pur vie , remainder en tayle , lessee pur vie purchase part de b , et ceo grant al lessors , que distreine , et seignior nonsuit le plaintiff en replevin , lessors ount breif de retorno habendo , viscount retorne averia elongata , et sur ceo auter avers sont deliver in withernam , lessee port second deliverance , lessors avowera deins cest statute . 7. seignior et tenant per 20 s. rent , a. purchase le seigniorie , et grant le teirce part de ceo al b , et apres en consideration de natural amour que il port a c. evesque de exon ' esteant son frere covenant destoier seisie al use luy et ses successors del ' moitie del ' seigniorie què il purchase , evesque distreine , et mesme mitta ses avers in le pound en lieu des avers le tenant , evesque avowera pur 10 s. deins cest statute . 8. seignior et tenant per 20 s. rent , ove proviso que serra loyall al seignior et ses heires a distreine en black acre seignior grant le rent pur vie , ove condic'on que si grantee paya 10 l , que il avera le seigniorie a luy et ses heires , le 10 l. est paye , grantee distreine en black acre il n'avowera deins cest statute . 9. a. et b. parceners , a. prent feme et morust sans issue b. endowa feme del'teirce part del ' moitie , b. release al feme et ses heires , feme enter en tout le terre , et ceo lessa al fits b. pur vie , rendant rent , b. devie , rent est arrere , lessee surrender , feme avowera pur 2 parts del rent deins cest statute . 10. home per fine grant et render 10 acres pur 20 ans rendant rent de 20 s. sur condic'on , que si le conusee paya 10 l , que il avera fee , en l'un acre , condic'on est performe conusor distreine , conusee claime fee en cest acre conusee n'avowera , mes ferra justification deins cest statute . 11. home lesse 2 acres pur vie rendant rent sur condic'on que si le lessee ne paya 10 l , que il avera l'un des acres forsque pur 10 ans , rent est arrere , et le 10 l. unpaye , lessor distreine en un acre , et lessee claima a tener ceo pur ans , lessee devie , l'ans continue , lessor distreine arrere , il avowera pur le primer distresse , mes nemy pur le 2 deins cest statute . 12. deux iointenants font lease pur ans rendant rent , pere del un enter , et morust seisie , lessee fait feoffment de tout al feme covert , baron disagree pur un acre . lessors font special entrie en l'auter acre , bayliffe distreine , en replevin bayliff ferra conusance mes n'avowera deins cest statute . issint sur cest division primerment quant a ceux parolls ( actions suits ☜ et courts ) il ad estre tenus que si distress soit prise , et deliverance est fait en countie court et sur ceo un pleint est enter , que est remove per recordare que ceo est action suit et court deins cest statute et uncore l'estatute parla solement de replevin et second deliverance , de replevin est breif quel breif original issuant solement hors del ' chancery retornable en bank le roy , ou comon bank et nemy aylors , et second deliverance est original judicial , ground sur le primer breif , et doit issuer hors de cest court ou le primer breif est dependant . mesme le ley si deliverance soit fait pur deliverance hors del ' hundred court , et apres remove per pone , ou hors de court baron remove per accedas ad curiam , et touts ceux cases coment ils sont hors del ' parols et letter del ' statute , uncore sont deins l'entention et equitie de ceo car deliverance hors de ceux inferior courts insual e forme de replevin et agrea en substance . auxi il ad estre tenus què l'estatute extend al pleints et avowries en ceux inferior courts , uncore l'estatute parla solement de replevin et second deliverance , què ne poient estre suès mes hors de court de record , neque poient estre retornable mes en court de record , car le mischief est tout un , et si le partie que ad ses avers prise , attendera tanque il procure un breif de replevin hors del ' chancery , les avers en le mesne temps poient perish . si le seignior appere al replevin sans ascun distresse prise , ou replevin sue , il poiet avower deins cest statute et uncore l'estatute parla de distress prise et replevin sue mes consensus partium tollit errorem . mesme la ley si tenant declare de prisel de ses avers , ou nul avers fueront prises ne replevin sue . mes si distresse soit prise et replevin sue , et viscount ne retorne le breif ceo n'est deins cest statute , car sans retorne del ' breif le defendant n'ad jour en court de faire avowrie , ou de nonsuter le plaintiff . mesne la ley si breif de replevin foit defective pur defalt de forme , ou ad faux latin. plaint ou deliverance fait hors de copyhold mannor court , un hors del ' court de ancient demesne n'est deins cest statute . seignior distreine , tenant sue replevin , viscount retorne averia elongata , per que withernam est agard , et touts les avers del ' defendant sont prises en withernam semble què ceo est un acc'on et distresse deins cest statute , et uncore cest acc'on est un withernam , et les avers sont auters què fueront distreine al primes , le reason est eo què le withernam depend sur le primer breif , et l'auters prises en withernam veignont en lieu des avers primer prises , et si le defendant en replevin ad breif de retorno habendo , sur què viscount retorne averia elongata , et sur ceo auters avers del'defendant sont deliver in withernam sur que defendant port second deliverance , ceo est un acc'on deins cest estatute , car le second deliverance serra ' des avers primes prises , et nemy des avers prises sur withernam . seignior mesne et tenant , seignior distreine mesne sur notice mist eins ses avers , et apres port replevin , ceo est distress , et suits deins cest statute , et uncore ceux avers , ne cest partie ne fueront distreine . ☞ quant al differences de avowries , conusances , et iustifications , il ad estre tenus , lou le defendant est d'aver le chose pur què le distresse est prise la , coment què le estate , què dona le distresse , determine devant avowrie , uncore il avowera come si seigniorie determine per escheate ou rent cease per effluxion de temps , ou ascun auter determinations . mes si seignior distreine pur homage ou pur rent et devant avowrie en le primer case , le tenant devie , et en le second case le feffee fait notice , et tender l'arrerages , le seignior ferra justification . seignior ou lessor ne unque ferra conusance , ne bayliff ou servant ne unque ferra justification ; mes en ascun cases , bailie ou servant ferra avowrie , et ceo est lou il est collector del ' rents son seignior per custom , come destre cheif dozoner , ou destre reeve per election ou turne . baron distreine en droit sa feme , en replevin vers luy solement , il n'avowera , eo que le feme en que le droit est , est partie , mes il ferra conusance et uncore ceo est encounter le nature del ' conusance , què le partie mesme qui est d'aver le chose pur que le distresse fuit prise , ferra conusance . lectio quarta duodecimo die augusti . entant que les parols del statute sont ouster . that if the lord of whom the lands are so holden , do distrein upon the same land , that then he may make avowry , &c. alceo primer , ilest monstre quel chose poiet estre distreine , et sur quel terte tiel disttess poiet estre prise , et sur quel nemy , deins cest statute . si seisins et auter observances en avowries al comon ley sont requires en avowries sur cest statute . 1. a devise terre al b. pur vie , remainder al heires del ' corps a , remainder a son file en fee , et a. b. morust , leigne fits a. morust , l'issue al plein age devant son marriage satisfie , lessa al baron del ' file pur vie , reservant l'ancient rent ove garrantie , et apres grant le reversion al c , què ceo grant al lessee , l'issue morust , sans issue , baron devie , feme lessa pur ans , seignior enter , feme distreine avers del ' lessee alant sur le comon , c'est bone distresse , mes nient prise sur terre deins cest statute . 2. a. en considerac̄on d'un marriage ove b. covenant destoier seisie al use de luy mesme tanque marriage , et apres al use b , a. lessa pur ans ove proviso a distreine en black acre , le marriage prist effect , a. devie , lessee grant son terme sur condition , le condic'on est enfreint , grantee fait feoffment , b. enter , grantor re-enter , b. pur rent encurre durant son possession distreine en black acre , le distresse est bien prise , mes nemy sur terre deins cest statute . 3. seignior per chivalrie n'ad estre seisie per 60 ans , tenant recover en assise vers seignior , mesne devie , seignior seisa le gardship , tenant alien en mortmaine , seignior enter , mesna al pleine age enter sur luy , seignior distreine l'avers del ' tenant alant sur le common , ceo est bone distress , mes nient prise sur ascun terre deins cest statute . 4. tenant enfeoffe son seignior , esteant deane et chapter , roy deins l'an enter , e't per ses letters patents bargaine et vende le terre al a , al use b. a tener del ' cheif seignior le deane et chapiter distreine , mes pur defalt de seisin n'avowera deins cest statute . 5. lesseé pur vie lessa pur vie , remainder al lessor et seignior en fee , lessor enter , seignior ad retorne irreplevisable , seignior distreine l'avers le tenant , que veignont sur le terre per escape , c'est bone distresse et sufficient seisin de avower deins cest statute . 6. disseisor de tenant en tayle lessa al a. b. et c. successivè pur lour vies , remainder al b. en fee , uncle collateral del ' donee release al r. ove garranty et morust , a. morust , donee enter , et suffer comon recovery , donor avowera sans ascun seisin deins cest statute . 7. baron et feme lessont terre la feme pur vie , rendant rent , remainder al b. pur vie ; lessee est disseise , baron dtvie , feme release al disseisor touts acc'ons , disseisor morust seisie , et apres le terre descend al feme , feme receive le rent , lessee devie , feme enter , et lessa pur ans rendant rent , b. enter , feme ad sufficient seisin , mes n'avowera deins cest statute . 8. tenant voucha le heire al comen ley , et puisne fits en borough english , demandant ad judgment et execuc'on , et le tenant ouster , puisne fits enter en le terre & recover en value . l'heire re-enter , le rent serra apportion , mes le distresse ne fuit prise sur ascun terre deins cest statute . 9. pendant un precipe de terre en borough english estranger enter et morust seisie , puisne fits lessa ceo et auter terre rendant un esperver , demandant ad judgment et enter , lessor morust ayant 2 fits , puisne fits distreine sur l'auter terre , il avera un esperver , mes n'avowera sur cest distresse deins cest statute . 10. feoffeé ove garrantie a luy ses heires et assignes lessa pur vie lessee esteant implede vouch le lessor , et ad en value un acre tenus del ' feoffee , lessee fauxifie le recoverie , et enter , seoffee enter en le terre done en value , feoffee distreine avers le lessee , il poiet plede cest matter en barre del ' avowrie pur cest statute . 11. tenant en especial tayle ad issue 2 files per severall venters , disseisor lessa pur vie sur condic'on d'aver fee , donee release all lessee ove garrantie en forma predicta pere devie , condic'on est performe , assets descende , lessee lessa pur vie rendant rent , leigne file enter , lessor distreine en l'un , il avowera sur tout le terre deins cest estatute . 12. doneé en tayle lessa pur vie , et apres disseise lessee , et enseoffe b. son frere , lessee re-enter et morust , donee morust , b. suffer recoverie , donor release al cestuy que recover , b. morust sans issue , l'issue en tayle revers le recovery , donor distreine et avowera deins cest statute . ☞ issint sur le parols de cest division quant al chose que poiet estre distreine , il ad estre tenus , què fuit bone distress et puit droituralment estre prise per voy de distresse deyant l'estatute est bone distresse et poiet estre distress per cest statute . car cest statute ne differ del ' comen ley en le nature de distress , ne en le manner ou le usage de distress , mes touchant le lieu ou le distress serra prise , ad fait novel ley , er pur ceo quant al cest part , ou le distresse est destre prise , il ad estre tenus , si seignior et tenant sont , et le tenant ad comon en le wast del seignior ut appendant ou appurtenant a son tenement , le seignior al comen ley poit distreine l'avers le tenant usant le comon , mes cest distress nest prise fur ascun tenement deins cest statute , car les parols del ' statute sont , si'l distreine sur le terre tenus , et replevin de ceo soit sue , que il poit avow upon the same lands , as upon lands within his fee and seigniory , alledging in his said avowry the same lands to be holden of him , et uncore cest terre ne'st tenus de luy mes est le freehold , wast , et demesne del ' seignior , et le tenant ad solement en ceo , un comon pur ses avers que n'est tenus . mes si seignior et tenant sont de wast , et le tenants del ' tenant et auter inhabitants pur cause de vicinage ou auterment ount comon en le wast , seignior poit distreine avers del ' tenant alant sur le wast , et avow deins cest statute , mes les avers del ' comoners il ne poit distreine al comen ley , ne deins cest estatute . advowson que n'est que jus presentandi poit estre tenus deins cest statute , et si les avers de patron veignont sur le glebe terre , ou sur le cemiter ils poient estre distreine per le seignior deins cest statute , mes les avers del ' incumbent ou de ascun auter ne poient estre distreine deins cest statute , mes en ceo est un difference ou le parsonage , commence rac'one structure , ou rac'one fundac'onis , ou dotationis sil ' commence rac'one structure lavers l'incumbent ou de ascun auter poient estre distreine , mes nemy en le auter cases . seignior et tenant , donor et donee , lessor et lessee de acre de terre ove proviso a distreine en auter acre , le seignior , donor , ou lessor poient distreine en ceo auter acre , mes ne poient avower sur ceo distress de cest statute . home fait done en tayle , ou lease pur vie , de 2 acres rendant rent , le rent est arrere , et donor ou lessor di streine , et apres un acre est evict , lessee port replevin , donor ou lessor poient avower al eomon ley , et le rent serra apportion , mes il ne poit avower deins cest estatute eo què en l'avowrie il doit alleadger le terre destre deins son fee et seigniorie , què icy il ne poit faire , mes icy si le avers distreine sont prise , la il ne poit aver avowe sur cest distress al comon ley . home seisie de terre al comon ley et de terre en borough english ceo done en tayle ou lessa pur vie , rendant rent , donor ou lessor morust aiant issue 2 fits , leigne fits distreine en terre en borough english et le puisne en terre al comon ley ceux distresses ne sont prises ascun terre deins cest statute , car comental al temps del ' done ou lease tout le terre fuit ove le rent , et fuit tenus , uncore ore le ley ad fait division , et chescun est severalment tenus pro particula . seignior et tenant de terre en 2 counties , seignior poit distreine en un countie pur tout le rent , et faire avowrie deins cest statute , mes il avera several breifes de customes et services , et assise pur le rent , ou cessavit sur un cesser , ne gisont en cest case . quant al seisin il ad estre prise , que seisins sont necessariment requires deins cest statute , car coment que les parols del ' statute sont que il avowera sur le terre alleadging ceo destre deins son fee et seigniorie , uncore cest avowrie reteine les ancient incidents et qualities d'avowries al comon ley . ☞ il ad estre tenus , que si seignior n'ad estre seisie deins 60 ans , et apres il disseise , rent jour incurre , tenant recover en assise , tenant ad gaine sufficient seisin , et poit avower deins cest statute , mes si tenant recover devant ascun rent jour encurre ou re-entrie , coment que soit apres rent jour , uncore il n'avowera pur defalt de seisin deins cest estatute . si defendant en replevin , ad retorne irrepleg ' ceo est un recovery et gaining seisin deins cest statute , et si tenant soit amerce pur defalt de suit al court , et seignior soit seisie del ' amercement , ceo est un seisin del ' rent , mes purchaser del ' rent covient d'aver tiel chose que est del ' nature del ' rent , et nemy auter chose d'auter nature . seignior done en tayle , ou seignior lease pur vie , ne besoigne actual seisin , car le seisin del ' reversion que est le principal est le seisin del ' rent que est l'accessorie , issint seisin del ' rent , est seisin de touts rents parcel de ceo . mesme le ley , seisin del ' principal est seisin del ' accessorie . chescun plaintiff en replevin soit ☜ il termor ou auter poet aver chescun respons al avowrie , come de travers le seisin de tenure , ou de pleader release ou hujusmodi , coment que il soit estranger al avowrie , car avowrie sur cest statute , n'est fait sur ascun person , issint chescun est estranger al avowrie , et si estranger ne pleader tant il ferra nul plea omninoal avowrie sur cest statute , car chescun est estranger . lectio quinta , decimo quarto die augusti . entant que les parols del ' 2 branch en le statute sont , that every avowant , and every other person and persons that make any such avowry , conusance , or justification as bayliff or servant to any person or persons in any replevin , or second deliverance , for rents , customs , services , or for damage feasant , or other rent or rents , upon any distress taken upon any lands , if the same avowry , conusance or justification be found for the defendant , or plaintiff in the same be nonsuit , or otherwise barred , that then they shall recover their damages and costs against the said plaintiff , as the said plaintiff should have done , if he had recovered in the replevin or second deliverance found against the defendants : ore il est estre monstre si cest second branch extend al auter rents , que sont include in le primer branch , et a quel auters rents , et en queux cases le defendant recovera costs et damages per cest statute et en queux nemy . 1. a grant rent de 20 quarters de frument , ou 20 s. de rent pro eisdem al b. et ses heires , ove clause de distress . b. in consideration de natural amour , que il port a sa soer del ' demi-sanke , et en considerac'on que c. marrier sa dit soer , covenant destoier seisie del ' dit rent al use c. et sa dit soer , b. morust , le marriage est solemnise , le frument est arrere , c. distreine pur 20 s , tenant port replevin , ils sont al issue sur le lieu , et est trove pur l'avowant , il n'avera costs ne damages deins cest statute . 2. grantee de rent charge pur 20 l. destre paye ceo bargaine et vende al a. et devie , feme bargainor marria ove a. que assigne le teirce part de rent pur sa dower , et morust , feme distreine , tenant port replevin , et est nonsuit feme avera costs et damages deins cest statute . 3. pere enfeoffe son fits de mannor sur condic'on que enfeoffe auter , condic'on est enfreint , fits enter , et grant tierce part del ' mannor al a , et apres in considerac'on de natural amour , que il port al b. evesque de exon ' , esteant son frere , covenant destoier seisie al use de evesque et ses successors del ' moitie del ' marinor que il purchase de son pere , estraye vient sur le mannor , que est seisie per l'evesque ; en replevin pur le estraye , plaintiff est nonsuit , defendant avera costs et damages ayant respect del ' moitie del ' value del ' estraye . 4. mesne levie fine l'heire del ' mesne est forejudge en breif de mesne , tenant fait feffment rendant rent durant feffor , feffee al pleine age accept l'arrerages , feffee est amerce en defalt de son suit , et apres est nonsuit en replevin , le defendant avera costs et damages deins cest statute . 5. gardein sur assignment de dower reserve rent pur le surplusage , l'heire al pleine age agrea al assignment , il distreine , replevin abate pur saux latin , defendant recover costs et damages deins cest statute . 6. a lessa pur vse , rendant un robe , ou 20 s. pro eodem ove clause de distress pur luy et les assignes , grant per lessee sur condic'on que il assignera son estate al b. lessee lessa al estranger pur ans , que expire , a. grant le rent del ' robe , et apres re-enter , grantee distreine tenant port replevin , et est nonsuit , defendant avera costs et damages deins cest statute . 7. tenant en especial tayle ad issue 2 files per several venters , disseisor lessa pur vie sur condic'on d'aver fee , donor release al lessee ove garrantie in forma praedicta , pere devie , condic'on est performe , assets descende , lessee fait feoffment , leigne file distreine , feoffee port replevin , et suit al issue sur le propertie , et apres plaintiff est nonsuit , defendant avera costs & damages deins cest statute . 8. baron et feme lessa terre la feme , pur vie , rendant rent , remainder al b. pur vie , lessee est disseisie , baron devie , feme release al disseisor touts actions , disseisor morust seisie , et apres le terre descende al feme , feme receive le rent , lessee devie , b. distreine l'avers le feme , et sont al issue , sur ne prist pas , et trove pur l'avowant , il avera costs et damages deins cest statute . ☞ issint sur ceux parols del ' statute il ad estre tenus que devant l'estatute de 7 h. 8. cap. 4. nul damages ou costs serront recover per l'avowant , car il fuit forsque en nature d'un defendant , et pur ceo le dit statute de 7 h. 8. fuit què st avowrie soit fait pur rent , custome , ou service , and the recovery be found for him , or the plaintiff be otherwise barred , that the defendant shall recover his costs and damages , as the plaintiff should have done , if it had beén found for him , sur quel statute ut appiert 19 h. 8. cap. 12. si le plaintiff en un second deliverance fuit nonsuit , que le defendant recovera costs et damages et que sur le matter il est barre , car il n'ad remedie pur les avers sans satisfier del ' partie , mes si l'avowrie ust estre pur auter chose , que pur rent service ou custome , come pur rent charge , damage feasant , et hujusmodi , car ne suit provide pur cest statute de 7 h. fuit pur remedie , de que mesme l'estatute de 21 h. 8. fuit fait . le primet branch de cest statute come il ad estre tenus , en le former lecture quant al avowrie sur le terre extende solement al rent service ou customes ou services ; mes cest branch , quant al recoverie de costs et damages enlarge le primer branch , et sa extende non solement a touts rents come rent charges ou seckes , mes auxi al avowries pur damage feasant . cest branch coment il parla solement pur avowries pur rent et damage feasant uncore il ad estre tenus , que per equitie il sa extende al avowries , pur estraye , pur waife , pur suit al court , pur harriot pur amercement et hujusmodi . mes il ad estre prise què si en replevin , les parties sont al issue sur le lieu , et le plaintiffe est nonsute , ou auterment barre que le defendant recovera null damages ou costs , car le meaning et intendment de cest estatute sont ou le plt est barre en le point del avowrie , sc . ou il est barre en le chose que il demand per sa avowrie mes icy il n'est barre en le matter mes sur chose al brief et le point en question n'est trie . mesme la ley si les parties en le replevin sont al issue sur te property des avers et le plt soit non suit ou auterment barre le desendant recovera ses costs et damages . mes il eit estre tenus què si le breif abate pur faur latine , ou pur defect de forme què le defendant ne recovera costs et damages per cest estatute . finis . judge hale his opinion in some select cases . london , printed for norman nelson at grayes-inn gate in holbourn , 1680. l'opinion en ascun select cases del ' tresgrand & erudite sage de la ley mathew hale jadis cheif justice d' angleterre . case 1. moy semble què coment un original breif ou mesne process al' suit del ' comen person ordinariment ne gist del ' courts de westminister en gales uncore sur un judgment en dett ou damages en le comen bank icy un breif d'execution per testatum capias , fieri facias ou elegit gist in walliam . 2. moy semble què si la person vers que le judgment est done soit retorne non est inventus en le county en angleterre lou l'original suit fuit primes commence un testatum scire facias gist al' viscount de tiel county en gales lou les terres del ' defendant gisont vers les heirs & terre-tenants pur ceo què est tantsolement breif d'execution et en order al ceo . 3. moy semble què si sur le scire facias issue soit joine si la partie fuit seisie , ou tiel local issue poiet estre trie en le prochein anglois-countie pur ceo què auterment un failer de iustice ensuera . case 3. a. ove ses mains demesnes en decembr ' 1642. fist sa volunt en escript et ceo seale & publishe devant trois testmoignes et en ( e ) done several legacies al sa kindred et done un legacy de 20 s. al b. qui per ceo volunt fuit appoint executor in hee verba , if any thing remain undisposed of , i refer it to the discretion of my cosin b. whom i intreat to be rhe sole executor of this my last will and testament . a. puis en 1658. fuit possesse d'un pluis grand estate personal que a luy deveigne per mort et en mesme l'ann suddenment morust sans altring ou fesans ascun auter volunt al temps de sa mort mesme la volunt fuit trove en son study mes ses maine & seal fueront laceratès de ceo , mes per quel voy fuit ignote la volunt est bellement escrie per maine le testator et nient un foits obliteratè ou cancellè mes come devant . 1 quaere . an cest volunt ( il esteant nul auter ) soit un bon volunt ou nemy touts les testmoignes esteants vivants ? si sont ascuns failings en ceo coment poient eux estre fortifies ? 2 quaere . si la volunt n'est bon an l'addition apperteine al b. come executor , ou a les freres & soers esteant prochein en consanguinity al testator ? response del ' hale . si le cancelling , fuit voluntarie per le testator moy semble que est un evidence d'un revocation , mes esteant fait per estranger sans le direction del ' testator , ou fait puis sa mort , ou fait casualment ou involuntariment per le testator donque n'est ascun revocation ceo idcirco est questio facti et rests sur evidence & presumptions en que si le lieu lou ceo fuit tenus , fuit tantsolement en l'accesse del'testator , et ceo fuit cancellè al temps de son mort , ceo et la distance del'temps del ' fesans de ceo car . ia ascun presumption què ceo poiet estre fait per luy mesme mes en cest point jeo referra vous al civil ley et al proofs . 2. secondment si ceo ne fuit cancelle per luy mesme moy semble que ceo carria le personal estate apres accrue sans ascun novel publication al' executor si ceo fuit cancelle per luy animo revocandi moy semble què administration devoit estre committe al prochein del ' ( oukinn ) consanguinity del ' intestate . case 3. a. per sa volunt en escript devise al b. sa feme in hee verba sequentia , item , i give and devise unto b. my wife , all my freehold lands for and during the term of her life , and after her decease i do give and bequeath the same unto such of my own kindred as my said wife shall think most fit and best deserving the same . 1 quaere . due estate ad b. per cest devise ? 2 quaere . an le poiar per les darrein parols del ' devise , [ viz. such as b. shall think fit and most deserving the same ] soit tiel poiar et disposal come est deins le statute de volunts , ou ceo soit un void clause ? 3 quere . an si , tiel sit , que estate en les dits terres poiet estre dispose per b. per les parols del ' devise ? an pur vie , vies , pur anns ou en feé ? &c. respons ' del hale . moy semble què b. ad estate pur vie ove poiar a nominater ascun del'consanguinity del ' devisor a prender en remainder puis sa decesse . 2. moy semble què tiel poiar de nomination poiet estre done per devise sicome fuit poiar al un a vender ou disposer . 3. entant què soit pluis safe pur b. a nominater per act executè en sa vie , uncore moy semble el poiet nominater per sa volunt ove un special reference a sa poiar , pur ceo què l'estate que surge per tiel nomination prendera effect per voy de render instanter sur sa mort . 4. 1. moy semble què el poet nominater tiel number del ' kindred come a luy pleist . 2. que immediatement sur tiel nomination un remainder expectant sur sa mort voilt estre execute en les parties nominatès pur vie per virtue de ceo . 3. l'estate que surge per la volunt ne poet estre pluis grand que pur les vies del ' parties nominatès , et que el ne poet transferr un estate pur anns ou en fee , pur ceo que el n'ad ascun poiar done a luy a disposer al tiel del ' kindred quel bien a luy pleist car donque el fuit entrustè ove la poiar del ' estate sicome ove la person mes icy jeo conceive que el ad solement poiar a nominater la person , et la qualitie del ' estate del ' person sic nominatè est destre judgè per les parols del ' volunt que , come moy semble , carries neque expression neque sufficient implication d'un estate puis large que pur vie nisi il soit pluis en la volunt que appiert en le case . case 4. a. en consideration que b. voilt consent a marrier ove luy ust promise què , whatever b. should be worth in any estate whatsoever at the time of their marriage , if he should happen to die before her , he would double it . b. sur ceo consent et ils fueront marrie ensemble . b. al temps de lour marriage fuit verayment worth en deniers & chattels 320 l. a. puis morust ( et b. luy survesquist ) et per sa volunt ust devise al b. en deniers biens & annuities al value de 300 l ? 1 quaere . si b. ne poet refuse d'accepter del ' devise a luy per volunt et an donque el n'ad un bon action al ley pur 640 l. esteant , le duble value de son estate al temps de son marriage , du an l'acceptance ne relesse le promise ? respons ' hale . 1. moy semble le promise nient obstant ceo fuit fait al feme n'est extinguishè per l'intermarriage quia contingent et sur condition precedent que ne poiet prender effect durant le coverture . 2. que si le promise fuit fait al feme sur un consideration movant a luy l'action est destre port per luy vers l'executor . 3. que si le legacy soit in full de touts promises ou al tiel effect l'acceptance del ' legacy voilt estre un discharge del ' promise et donque si el intende a porter son action il covient a luy a waiver sa legacy . 4. mes si le legacy soit general donque moy semble si receivè ceo vaera al exoneration del ' damages pur tant et uncore sa action gist pur le recovery del ' residue nisi l'executor paiera ceo solement en satisfaction de touts demands si sic donque n'est safe pur luy a receiver ceo . case 5. la seignioress buckley seisie en fee del ' capital mesuage nosme hoysdonhead et del ' cloisters & yard deins le precinct del ' darrein dissolve monasterie de black-friers london et da'auters measons en le parish de st. andrew le garderobe london per indenture datè 4 junii 1621 , 19 jac. pur 200 l. en mains paiès et 5750 l. destre paies ust bargaine & vende les premisses al b. norton et j. bill et lour heirs , et levie un fine sur ceo en trinity terme 19 jacobi . norton per indenture datè 14 decembr ' 6 caroli ( mes nemy enrolle ) en consideration d'un certen sum d'argent a luy paie per r. norton son fits , et en part de performance de certen promises et agreements faits per b. norton sur le marriage de roger ove susan jennings sa feme ust grant bargaine & vende alien enfeoffe & confirme al roger & ses heirs tout ceo sa moiety ou demy part del ' dit capital mesuage &c. a tener al roger & ses heirs a touts jours . j. bill per indenture date 24 aprilis 6 caroli demise sa part al jane bill pur terme de sa vie ( mes ne disposesse l'inheritance de ceo apres sa mort ) & morust , bonham norton luysurvesquist . 1 quaere . an le bargaine & sale fait , per b. norton al r. sans enrolment passa un bon estate al r. de l'un moiety ? et an le joint estate que fuit en b. norton & j. bill soit per ceo destroie ? et an j. bill & b. norton ne deveignont donque tenants en comen ? 2 quaere . si le ioint estate ne soit distroie lou rests le title del ' part de j. bill , an en r. norton ou en le heire al ley de b. norton ? si un iointenant ou tenant en comen occupie se tout an il soit responsible a l'auter iointenant ou tenant en comen put un moiety del ' rents ou profits . respons ' de hale . 1. moy semble què si ne fuit ascun act fait per norton ou bill pur severer le jointenancy què tout survivera per la ley al norton per le mort de bill , et le devise de bill est void en ley mes si sur ou ●●is le purchase il fuit un agreement què nul advantage serra del ' survivorship ceo poiet create un droit en equity en la moiety al' devisee ou heire de bill neint obstant le survivorship . 2. jeo conceive què le fait per b. norton al son fits roger transferre la moiety al roger en fee , et per consequens sever le jointenancy . 1. pur ceo què appiert en le fait què le mease gist en londres , et donque ( come jeo conceive ) en londres meases passe per bargaine & sale sans enrolment , si expresse destre en consideration de deniers . 2. si ne fuit en londres moy semble què l'estate passe en cest case sans enrolment car entant generalment il covient que un bargaine & sale al fits pur deniers serra enrollè , uncore si appiert què cy est auter e●presse consideration preter argent que poiet raiser un use ceo passe sans enrolment et icy est un consideration expresse preter argent viz. un marriage agreement que poiet estre helpè ove un averment a completer un consideraon del ' sank & marriage . 3. moy semble consequentment què le devise per bill passe sa moiety al sa feme pur vie , et què le remainder de ceo discend al son heire en comen ove r. norton . case 6. a. un linen draper 30 anns passe ust purchase de b. son pere several closes esteants customarie-terres parcel del ' mannor de wenn in com' salop ' et paulo post va ouster en holland et icy intermarria ove un feme d'angleterre et vive jesque circa 2 anns darrein passe , et icy morust linquant un fits nee en holland . quaere . an la feme de a. ad ascun droit per la ley destre admitte tenant accordant al custome del ' terres pur sa vie , ou son fits puis luy , nisi ils fueront naturalizès ? respons ' de hale . moy semble que la feme est bien entitle al son frank bank et l'issue de a. nee d'un feme d' angleterre en holland est un denison et enheritable sans ascun naturalization , et le pluis pur ceo què icy appiert nul restraint per special inhibition desouth le grand seal ou per act de parliament a travailer ouster la mere . case 7. tho. pudding devise ses terres al barth . pudding et les heirs males de son corps loialment procreates ( excepte le primer procreate fits nee del corps de mary ore la feme de bartholomew ) et pur default de tiel issue de son corps loialment procreate al thomas pudding & les heirs males de son corps . quaere . si ceo soit un bon exception d'excluder le primer procreate fits de bartholomew et si son issue poet prender per force del ' dit devise ? respons ' de hale . ceo est un doubtful & unusual exception mes jeo conceive que l'exception poet bien excluder l'eigne fits , et que le devise est un especial entaile setled en bartholomew & discendible en un especial manner a le second fits & son issue ou ascun auter del ' issue male except l'eigne . 1. pur ceo què la nature del ' conveyance est multment guide per l'intention del ' partie per que ascun construction de ceo poet estre et per la volunt est un expresse exclusion de l'eigne fits . 2. pur ceo què la nature del ' estate est tiel que est multment directe per la volunt del ' donor per l'expresse parols del ' statute de westminster le second , ita que donoit liberty a creater un special heire destre inheritable al estate qui nient obstant ne poet estre heire al comen ley , come en limitation a les heirs males ou females del ' corps , &c. qui ne poient prove heires al comen ley. 3. mes an l'exclusion del'eigne fits soit solement personal al luy mesme , ou comprehend son issue , ou auterment , voilt rester sur le view del ' volunt ; et ideo jeo ne donera ascun opinion touchant l'issue del ' eigne fits jesque jeo veie la volunt . finis . certain select moot-cases , intituled , les cases de greys-inn , which have been formerly mooted by that society . london , printed for norman nelson at grayes-inn gate in holbourn , 168o . certain select moot-cases , intituled , les cases de greys inn , which have been formerly mooted by that society . case . 1. seignior & tenant le seignior prent feme ils ount issue le baron devie l'issue endowa sa mier de la tierce part des services le tenant cesse le issue port cessavit et recover la feme entre en le tierce part le issue luy ouste et lest parcel del ' terre al feme a terme des anns sur condition que si il enfeoffe un estranger que el eit fee puis il alien le remenant al pier la feme en fee le quel dona ouster a un ancestor en la tail le issue alien ( la terre lesse al feme ) a un estranger en fee le quel dona mesme la terre a un auter en le tail le remanent al primer donee in forma predicta le second tenant en le tail devie sans issue celuy en le remainder entra la feme port breif de entry sur disseisin et recover per default le pier le feme devie le issue le baron ouste la feme et luy refeffe ceux que droit ? &c. case 2. feme seisie d'un mannor prent baron seisie d'un carve que countervalt le mannor le baron et son frere alienont le mannor al un home & sa feme en fee ove garrantie le frere devie les deux alienees purchasont un carve de terre tenus del ' mannor en fee ove garrantie et alienont cel carve de terre al un home & un feme covert en fee ove garrantie et puis les primers alienees grantont et rendront le mannor a mesme ceux per fine a terme de lour deux vies , et obligont eux & les heirs la feme a garrantie le baron confirme l'estate del ' home en le tail et puis les primers alienees purchasont un darr ' de rent a eux en fee et ount issue deux fits & deviont l'eigne fits happa le rent et va oustre le mere le primer baron lest la carve de terre a un home a tener de sa vie rendrant la moiety de la veray value a luy & a ses heirs le baron & la feme ount issue & deviont l'issue est a sa recovery ; ceux que droit ? &c. case 3. terre est done a deux & a les heirs l'un en le tail celuy qui n'ad que terme de vie alien a un home et son fits bastard & a les heirs le bastard le tenant en le tail ad issue le pere le bastard enfeoffe l'issue en le tail en fee , en que possession un estranger relest ove garrantie le pere l'issue en le tail devie le pere le bastard devie le bastard port l'assise devers l'issue en le tail & son frere mulier l'issue en le tail vouch ' a garrantie & travers le disseisin pendant le breif il port breif de garrantie de chartre & recover et ad un mease en value puis le disseisin est trove per que il recover l'issue en le tail lest la mease al bastard deins age et prent rent en eschange et a son plein age port dum fuit infra etatem del ' rent et recover et sue execution et waive le mease l'issue en le tail lest le mease al bastard rendrant un certen rent et un entr ' puis default de paiement le rent est arrere l'issue en le tail entre le bastard luy ouste l'issue port l'assise ceux que droit ? &c. case 4. tenant en la tail ad issue deux filles et devie et les deux filles entront et lessont la terre a un home a terme de vie l'un grant la reversion devant l'attornment l'auter devie le tenant est disseisie de parcell de la terre devant l'attornment et puis attorne come tenant de l'entiretie et enter sur le disseisor le disseisor devie son issue port breif d'entry et recover per default de tenant a terme de vie devie celuy en le reversion entre & alien a un estranger celuy en la reversion prent a baron le villein le tenant en la tail le tenant en la tail purchase 10 acres de terre l'un moiety en fee l'auter moiety a terme d'auter vie et ad issue deux filles et devie . ceux que droit ? &c. case 5. un home enheritee de certen terre ad issue fits & deux filles et purchase un carve de terre a luy & celuy qu' serra son primer heire et fait recognizans a ses deux filles le feoffor le pere est emplede il vouch ' a garrant ' le pere d'un garranty d'eigne temps le pere entre en le garranty et pendant le breif le jour del ' recognizans est encurge les deux filles suont execution per elegit et ount en execution la terre luy discend ' le pere done l'auter terre a les deux filles per ceux parolls totum statum quem habeo & devie , resummons est sue vers le tenant il revouch ' le heir qui entre en la garranty et plede et perde issint què la terre que fuit liver per elegit est fait en value al tenant et puis le tenant les ouste de l'auter terre en que possession le heire relesse ove garranty & devie l'un fille deins age ceux que droit en ount ? &c. case 6. tenant en tail alien en fee le alience est disseisie per l'issue le tenant en la tail & un estranger l'alienee port l'assise pendant le breif l'issue enfeoffe son coagitor le tenant en le tail devie seisie de terre en feesimple que amount al moiety de terre-tail l'issue entre & port severance vers son coagitor & recover per action trie l'auter sue avant son breif . ceux que droit ? &c. case 7. un home seisie de 4 carves de terre dona l'un carve de terre a un home en la tail et ad issue deux filles et devie seisie de les 3 carves de terre les 2 filles entront & lessont 2 acres de la terre a un home pur terme de son vie et repreignont estate pur terme des anns et alien a un home en fee le tenant a terme de vie luy ouste & luy refeoffe les deux filles luy oustont il po●t l'assise pendant le breif eux fount purpartie issint que le carve de terre est allotte al purpartie l'un et l'auter carve de terre allotte est al purpartie l'auter et teign ' le tierce carve de terre que ne fuist my lesse en comen l'un fille alien sa purpartie a un home en fee le tenant en le tail est emplede il vouch ' a garrantie les deux filles ils entront pledont et perdront issint que le demandant recover et le tenant ouster al value vers les deux filles issint que cel purpartie que remaint nient alienè est fait en value le tenant en le tail devie sans issue la fille que alien ' enter l'auter fille luy ouste el port l'assise pendant l'auter assise . ceux que droit ? &c. case 8. un home seisie de certen terre done mesme la terre a un home en fee sur condition que s'il paie certeins deniers a certein jour que il poet entrer et si ne que l'auter teign ' en pees le feoffee est disseisie le feoffor relesse al disseisor tout de droit que il ad en mesme la terre a jour d'assise le feffor tendr ' les deniers le feoffee les resceive le feoffor ouste le disseisor il port l'assise et l'assise prise per default per que il recover pur ceo que il est trove pur luy le feoffor port l'attaint et recover et done mesme la terre a un home et sa feme en la tail vers queux le disseisor port breif de droit et apres la mise joine le baron & sa feme font default per que judgment est done final vers eux devant execution sue le baron & la feme ount issue deux filles & deviont la fille eignesse entr ' en l'entiertie vers que le demandant sue execution et ad execution la file eignesse ad issue et devie &c. case 9. un home seisie de terre en gavelkind & de terre al comen ley lessa mesme la terre a un home pur terme de sa vie sur condition que s'il purchase x l. de terre que il eit x. anns oustre apres sa mort et puis grant la reversion a deux et a les heirs l'un en le tail devant l'attornment le grantee en la tail ad issue deux fits et devie le lessor relesse al tenant a terme de vie tout le droit que il ad le tenant attorne al auter grantee per fait endente le tenant a terme de vie purchase x. l. de terre pur ouster le seignior de gard le lessor devie son heire deins age le seignior happa le gard du corps et port breif de garde de la terre vers le tenant a terme de vie la collusion est trove per que il recover et al plein age le tenant port breif de covenant vers le heire pendant le breif il fait felony pur la quel il est attaint et sue avant son breif et recover le seignior port breif de escheat et recover per default le tenant devise la terme a sa fille , et devie la fille prent baron le fits puisne le grantee en la tail l'auter grantee del ' reversion devie . ceux que droit ? &c. case 10. un home & un feme sole purchasont 3 carves de terre jointment a eux et a lour heirs le home sait felony pur la quel il est attaint la feme prent baron le baron et la feme alien ' un carve de terre a un feme sole vers que le seignior port breif d'escheat . el vouch ' a garrantie le baron & sa feme , eux fount default apres default , per que seignior recover & la feme ouste . la feme sue execution et ad en execution le 2 carve de terre , mes le seignior ne sue my la feme est emplede de l'auter terre el vouch a garrantie le baron sole , il entre en le garrantie , et plede et perde , issint que la tierce carve de terre est mise en value . le seignior prent mesme la feme a feme . le primer baron purchase 3 acres et ad issue 2 filles per divers venters , et devie , sa feme priviement enseint . les deux filles entront , breif de droit est port vers eux , els perdront per default apres la mise joine , per que le demandant recover la feme est deliver de la tierce fille , et devie : ceux que droit ? &c. case 11. seignior mesne & tenant . le tenant est disseisie le rent est arrere le seignior distreine le disseisor port breif de mesne vers le mesne pros taunt sue tanque que le mesne est forjuge le disseisee port l'assise & recover et enfeoffe le mesne in le tail a tener de luy mesme per service de chivaler le mesne devie son heire deins age le donor happe le gard de corps & des terres le seignior fait son executor et entre en religion et est professe le executor relesse al donor le seignior est deraigne per precontract : ceux que droit ? &c. case 12. terre discend a un feme de part sa mere le seignior luy ouste & luy refeoffe a tener a sa volunt puis el purchase auter terre , et est disseisie de l'un et de l'auter terre per un estranger le disseisor enfeoffe le pere la feme a tener de luy devant l'estatute rendrant a luy certen rent , et un entre pur default de' paiement le pere charge la terre a un estranger , le primer rent arrere le pere devie le disseisor enter la feme port l'assise et mette en plaint et en view la terre luy discendus & sue a vant son breif & recover , et ad execution de l'un terre et de l'auter le rent charge arrere celuy a qui le charge se fist distreint la feme fait rescous le chargee ad issue & devie . ceux que droit ? &c. case 13. home seisie de certein terre lessa mesme la terre a un home & un feme sole a tener des anns sur condition que sil paia certein deniers a certein jour què eux n'ount que terme , et si ne , què eux ount fee le jointenant al feme enter en religion & est professe la feme prent baron le lessor . al jour d'assise le lessor tendr ' les deniers al abbe & al commoign ' eux refusont . divorce est fait perenter le baron & sa feme . le baron soy teign ' eins . le commoign ' est dereigne per precontract la feme prent celuy a baron le lessor lessa mesme la terre al baron & sa feme a terme des anns , et puis confirme l'estate la feme a terme d'auter vie eux fount wast le lessor port breif de wast eux pledont nul wast fait trove est le wast , per que il recover . le baron & sa feme ount issue , et deviont ceux que droit ? &c. case 14. feme seisie de certein terre est disseisie et prent le disseisor al baron . le baron et sa feme ount issue . le baron devie , le issue entre et endowa sa mere de la tierce part per fait endente et lest les 2 parts a un home a tener de vie . la feme prent auter baron , le baron & sa feme portont breif de entre sur disseisin vers le tenant , il prie en aid d'un estranger . celuy en la reversion entre per cause de claimer de fee. le tenant luy ouste . le baron & sa feme sueont avant lour breif & recoveront per default . le tenant a terme de vie port quod ei deforceat , et recover per default . le baron devie , la feme port cui in vita : ceux que droit ? &c. case 15. seignior mesne & tenant le mesne grant les services de son tenant a 2 a terme d'auter vie le tenant attorne puis le villein le seignior purchase la terre en demesne , et attorne a les 2 per fealty , et alien parcel de la terre a un estranger en morgage sur paiement ou non paiement le fits le seignior enfeoffe le villein de certein terre per cest paroll dedi . le villein ad issue deins age , et devie , les 2 mesnes happont le gard du corps & des terres le seignior devie devant le jour de paiement l'un des mesnes tender les deniers , il les refuse l'issue le seignior celuy qui tendr'les deniers devie celuy a que vie les services furent grantès devie l'auter port breif d'engett ' de gard ; ceux que droit ? &c. case 16. home seisie de 3 carves de terre grant comon a un home a 10 boefs le quel grant a luy un rent charge sur condition què a quel heure què le rent soit adarere que bien list a luy a distorber luy de la comen le grantee prent feme et dowe sa feme al huse de monstr ' le rent arrere le grantor luy distorbe de la comon & del ' un carve de terre , et devie l'issue enter et dowe sa mere de l'auter carve de terre , et retient la tierce le grantee ad issue et devie ; ceux que droit ? &c. case 17. la reversion d'un tenant en le tail apres possibilitie d'issue extinct est grant a un feme sole sans atturnement del ' tenant le grantor purchase un carve de terre que est ancient demesne et grant un rent charge al feme tanque l'attornement del ' tenant soit vestu a luy le grantee prent baron le baron & sa feme sont seisies del ' charge le grantor prent feme et ils ount issue fille la feme devie il prent a feme la dame d'ancient demesne , et ount issue auter fille le pere et la feme devient un estranger abate , et enfeoffa la fille puisnesse , vers que la fille eignesse port nuper obiit , et recover la moiety l'auter baron ad issue , sa feme devie le rent est arrere le baron diftrein les 2 filles font rescous l'auter port l'assise . ceux que droit ? &c. case 18. terre discend a un home de part sa mere , et rent issuant de mesme la terre de part son pere il enter et devie sans issue l'uncle de part la mere enter en la terre , et l'uncle de part le pere happ ' le rent l'uncle de part le pere purchase certein terre et auter recover et lesse la terre & les 2 rents a un home a tener de sa vie les tenants attornont le lessor & le lessee enfeoffount un home et un feme sole en fee de la terre le lessee alien les rents a mesme ceux en fee les tenants attornont le baron prent la joint feoffee a feme , et purchase la terre d'ont le primer rent est issuant ; ceux que droit ? &c. case 19. terre et rent service sont dones a un home en le tail , issint què il poet aliener al profit de son issue le tenant en le tail est disseisie , et relest al disseisor , pur quel release faire il prent auters terres en eschange què much vaillent le tenant en le tail port l'assise , et recover ( la release nient plede , pur ceo què l'assise fuit prise per default ) et prent a feme la soer le donor et ad issue et devie l'issue entre et endowe sa mere de le rent en allowance de tout sa dower , le quel alien le rent al disseisor en fee ove garranty le tenant attorne la mere devie le tenant de la terre fait felony , pur la quel il est atteinte le disseisor enter come en son escheate l'issue en le tail devie sans issue le disseisor entre en la terre done en le tail l'uncle de part le pere entre en le terre prise en eschange le donor ad issue et devie ; ceux que droit ? &c. case 20. breif est port vers le fits eigne il conus estre le villein son pere per que le breif abate il port auter breif vers le pere et le fits. pendant le breif le fits relest al pere. puis le demandant est nonsue le pere lest mesme la terre al un feme sole a terme de sa vie , sur condition que si el soit emplede et el plede en cheif sans voucher a garranty ou prier en aid de luy ou de ses heirs ou de ses assignes , que bien list a luy ses heirs & ses assignes d'entrer et granter la reversion a ses 2 fits et a les leirs le puisne le tenant attorn le fits eigne prent mesme la feme a feme il port auterfoits breif vers eux ils traversont l'action le demandant le pere devie le fits eigne devie le fits puisne entre il sue avant son breif et recover et lest la moiety al feme a tener pro indiviso et prent mesme la feme ; ceux que droit ? &c. case 21. home seisie d'un carve de terre de feesimple et d'un auter en le tail ad issue 2 filles et devie les deux filles entront et fount purpartie enter eux issint que la terre-tail est allotte al fille puisne el prent baron et ils ount issue fits et fille le baron devie el prent auter baron et ount issue fits le baron et la feme deviont le fits eigne entre et lest le terre a un feme sole pur terme de sa vie sur condition que s'il grant la reversion que il eit fee en droit de la moiety la feme prent baron le lessor grant le reversion a un estranger le baron & la feme attornent le baron et sa feme sont empledes et perdont per default le baron devie la feme port cui in vita et fait son title de l'un moitie en fee et de l'auter moiety a terme de vie , et recover , en que possession le lessor relest ove garranty . celuy en la reversion entre pur cause de claimer de fee el port l'assise & recover le fits eigne purchase un carve de terre de fee-simple et devie seisie le fits puisne entre et port breif de formedon de l'auter terre el plede devers luy le fait son ancestor ove garranty , ovesque ceo que il ad assets per discent , per que il est barre la feme port assise de mort-d'ancestor et recover ; ceux que droit ? &c. case 22. tenant en le tail parcel ancient demesne parcel frank fee charge mesme la terre a un home en fee , le quel grant mesme le charge ouster a deux pur terme de lour deux vies , vers queux un estranger port breif . eux font default . apres default celuy en la reversion prie destre resceu a defender son droit , et est resceu , et travers l'action le demandant trove est sa action per faux verdict per que il recover l'auter porta l'attaint , pendant le breif l'un des tenants a terme de vie relest al pernour de le rent , l'auter al tenant de la terre . i l sue avant son breif et recover per que les tenants sont remise en lour primer estate per reprise d'un boef . le tenant en le tail ad issue , et devie . un estranger enter , et enfeoffe l'issue . ceux que droit ? &c. case 23. un home seisie de 3 carves de terre deux en feesimple la tierce en le tail , ad issue fits , et lest un carve de terre de feesimple a son fits et a un feme sole pur terme des anns , et confirme l'estate son fits en fee. le fits ad issue et devie . la lessor lest les deux carves de terre al feme a terme des anns . la feme prent l'issue le fits al baron le lessor confirme l'estate le baron pur terme de sa vie demesne , et puis divorce est fait perenter le baron & sa feme . la feme prent a baron le lessor ; la feme est villein a un estranger regardant a un mannor . breif est port vers l'issue le fits , il conust estre villein la feme , per que le breif est abate . l'issue le fits purchase le mannor a que la feme est villein regardant . le lessor devie , l' issue enter , le terme nient passe : ceux que droit ? &c. case 24. home seisie de certein terre , lest mesme la terre a un home et a sa feme pur terme des anns , sur condition , que s'il paie certein deniers a certein jour què eux n'ount què terme , et si ne , què eux ount fee. le baron & sa feme ount issue deux fits . le lessor grant la reversion a les deux fits . le fits eigne devie , le baron et sa feme attornant al fits puisne . le baron devie . la feme se tient eins ; le lessor luy ouste , el port breif de covenant et recover . al jour d'assise le lessor tender les deniers , la feme les refuse ; la feme devie ; le fits puisne entre ; le lessor ad issue et devie : ceux que droit ? &c. case 25. un home seisie d'un rent charge en le tail purchase la terre d'ont le rent est issuant , et done mesme le terre a son fits , et prent auter terres en eschange , et lest les terres prise en eschange a un home pur terme de sa vie ; savant la reversion a luy et a ses heirs . le fits lest sa terre a un auter pur terme de sa vie , le remainder a un auter en fee. le pere feint un action vers le lessee le fits , et recover per default , et devie seisie . celuy vers qui il recover enter , et devie . celuy en le remainder enter . breif est port vers le lessee le pere , il fait default apres default . celuy en le reversion prie destre resceu a defender son droit , la resceit est counterplede ; ceux que droit ? &c. case 26. home seisie de certein terre ad issue deux filles , et devie ; la fille puisnesse enter et alien mesme la terre a un estranger en fee , le quel lest mesme la terre a un auter a terme de sa vie , en qui possession l'eigne file relest . les deux soers portont mortd'ancestor , la puisnesse fait default , l'auter est sever et sue avant son breif , et recover la moiety , et charge mesme cel moiety a un home en fee. le tenant a terme de vie devie ; celuy en la reversion enter en la moiety et port breif ad terminum qui preteriit de l'auter moiety , et recover per default . la puisnesse port dum fuit infra etatem et recover l'entierty . le rent est arrere . celuy a qui la charge se fist distreint , la puisnesse fait la rescous : ceux que droit ? &c. case 27. feme enherite prent baron , ount issue ; le baron fait felony pur la quel il est utlage , et purchase charter de pardon , et ount issue auter fits . le baron enfeoffe le fits puisne de la terre que est de droit la feme , et purchase comen le pasture en un more en la moiety d'un parcener que tient la more en comen ovesque un auter parcener . puis il et sa feme deviont . le fits puisne happa la comen , vers qui le fits eigne port cui in vita , il plede devers luy le feoffment son auncestor ove garranty , ovesque ceo que il ad assets per discent . pendant l'issue il est nonsue . l'auter parcener grant comen de turbarie en l'auter moiety del ' more que el tient issint en comen a un home a terme de sa vie , le quel grant son estate al fits puisne , et enter en religion , et est professe . le fits eigne purchase l'estate la parcener , le quel graunta comen a son pere , et prent l'auter parcener a feme . le fits puisne use sa comen , l'auter luy distorbe ; ceux que droit ? &c. case 28. home seisie d'un mease et d'un carve de terre en le tail , et d'un auter carve de terre de feesimple as queux comen des estovers sont appendants en le bois d'un bastard , il est distorbe a prender les estovers per le bastard , et ad issue deux filles , et devie ; les deux filles entront et font purpartie enter eux per my et per tout , issint que la moiety del ' mease est allotte a l'un file , et l'auter moiety a l'auter file . l'un file relest al bastard tout le droit que el ad en les estovers ove garranty le bastard devie sans issue le seignior entre et ad issue deux filles et devie . les deux filles entront , l'un grant ceo que a luy affiert a un estranger . celuy que relessa ad issue , et devie : ceux que droit ? &c. case 29. deux femes , l'un deins age , l'auter de plein age purchasont jointement , et pernount barons . les barons alien a un home ( cest assavoir ) quamque attient a luy de plein age , a terme de vie , et quamque attient a celuy deins age , en fee tail . le baron celuy de plein age devie , la feme port cui in vita , et recover l'entiertie per default , et enfeoffe le baron & la feme deins age en fee. eux ount issue , le baron devie , le fits entre , la feme port breif de dower et recover la tierce partie , et enfeoffe le primer alien ' l'issue port breif de . entry sur l'estatute de gloucestre , et recover per default . la feme de plein age ad issue et devie , la feme deins age ore a son plein age est a son recovery &c. case 30. un home lest certen terre a un auter a terme de vie ove garranty en fee ; le lessee alien en fee. le lessor entre l'alien ' ad issue et devie l'issue port breif d'entrie en se quibus , et recover per action trie , et redona la terre al lessor rendrant a luy certein rent , et un entrie pur default de paiement le rent est arrere , le lessor devie , son issue entre , le feoffor son pier entre sur luy , et done la terre a un abbe et a un secular , al abbe et a ses successors , al secular et a ses heirs . l'abbe devie , un auter est eslie abbe , quel enter et tient en comen ovesque le seeular . le tenant a terme de vie est seisie de un carve de terre , et ad issue 2 fits , et devie , le fits eigne enter en religion n'est professe , le puisne enter en la terre , l'issue le lessor ad issue , et devie seisie d'un carve de terre : ceux que droit ? &c. case 31. un home et sa feme et le tierce purchasont jointement et lessont la terre a un home et sa feme a terme de lour deux vies , les queux alienont la moiety a un home et sa feme et un auter en fee , et repreignont estate del ' moiety de cel moiety , et alien l'auter moiety a un abbe & son commoigne le abbe est depose ' un auter est eslie , et devie , l'auter est re-eslie abbe , le primer baron devie , la feme entre en religion et est professe . le joint feoffee enter en religion et est professe et eslie abbe per nomen de iohn abbe , il relest a touts les terre-tenants . le tierce baron entre en religion et est professe , son joint feoffee fait felony , pur quel il est utlage . la feme soy tient eins . l'abbe qui relessa est deraigne per precontract : ceux que droit &c. case 32. feme seisie de certein terre , dona mesme la terre a un home en la tail , et prent mesme celuy a baron , et ount issue , le baron fait felony pur que il est pendu , le fits soy tient eins , vers qui la feme port breif de dower , il vouch a garranty la feme per estrange nosme el fait default apres default , per que la feme recover , et il enter , la feme sue execution , la feme prent baron , le sits sue scire facias vers le baron et la feme , et recover per default , et alien a un home en fee , le quel lest oustre a un auter a terme de vie , sur condition que s'il eit issue que adonques il eit a luy et a les heirs de son corps engendres , et s'il devie sans issue de son corps , le remainder a ses droit heirs et a les heirs le corps l'issue en le tail issuants . le baron devie , la feme port cui in vita vers le tenant , il vouch a garranty l'issue en le tail come assignee , il fait default , apres default per que la feme recover , le tenant a terme de vie devie , l'issue le tenant en la tail ad issue et enter en religion , et est professe : ceux que droit ? &c. case 33. un home seisie de terre en gavelkinde ad issue 3 fits , et purchase un carve de terre que est al comen ley de son fits puisne a tener de luy devant l'estatute per certein rent . le fits puisne distreint , le pere et un estranger font rescous . le pere et le estranger disseisont le fits puisne d'un carve de terre . le pere relest a l'estranger ove garranty . le pere devie , les 3 fits font purpartie enter eux , issint que la terre a la comen ley est allotte al fits eigne l'estranger est emplede , il vouch les 3 fits , eux entront , pledont et perdont , issint que la terre al comen ley est fait en value . le fits puisne ad issue et devie : ceux que droit ? &c. case 34. deux parceners seisie d'un mannor a que plusors villeins sont regardants , l'un parcener lest un carve de terre qu'est parcel de mesme le mannor a deux a terme de lour deux vies ove garranty a l'un , et port breif de trespass vers eux , ils allegent villenage en sa person , el ne poet dedire , per que le breif abate . puis un des villeins del ' mannor port breif de droit vers les parceners , et recover per default eux portont breif de disceit vers luy & le viscount , le disceit est trove , per que eux sont restitutes al mannor l'un parcener que lessa ad issue et devie . l'un des tenants conust les tenements estre le droit un auter , pur quel conusance l'auter granta et rendra mesmes les tenements a luy a terme de vie , le remainder a un feme sole , le tenant que conust devie , l'auter soy tient eins , la feme prent le villein qui porta breif de droit a baron : ceux que droit ? &c. breif d'entry , ou formedon en le remainder pur le baron et la feme gisont bien &c. case 35. un home seisie d'un carve de terre lest mesme la terre a un auter a terme de vie rendrant a luy un rose per annum ' ad issue deux fits per divers venters et devie , le fits eigne happa le rose , et granta la reversion ove le rose a un home en le tail , le tenant attorne ; le uncle de part le pere est seisie de 5 acres de terre , et dona 3 acres de terre al fits puisne 2 en fee-simple et le 3 a terme d'auter vie ove garranty , et puis confirme sa estate en fee sans garranty , et grant ouster que a quel heur que il soit emplede que il poet dereigner le garranty per le primer fait , et puis il dona un acre de terre de feesimple a un home en le tail , le quel est emplede , il vouch a garranty l'uncle come assignce , qui entre en le garranty et plede et perde , et chescun sue execution le fits puisne est emplede de la terre lesse a terme de auter vie , il vouch a garranty le uncle qui entre en la garranty et plede et perde , et chescun sue execution . le tenant en le tail de don'le fits puisne devie sans issue de son corps , le fits puisne enter , celuy a que vie la terre fuist lesse devie , le fits eigne devie , le tenant a terme de vie devie , le tenant en le tail de la reversion devie sans issue , le fits puisne enter , l'uncle luy ouste : ceux que droit ? &c. case 36. un home seisie de deux carves de terre l'un en feesimple , l'auter en fee tail , ad issue deux filles , et charge sa terre tail a ses deux filles a terme de lour deux vies , & la terre de feesimple a sa fille eignesse puis la fille eignesse confirme l'estate al fille puisnesse del ' rent issuant del ' terre , tail . le pere disseisa la fille eignesse de la terre tail , et devie seisie del ' terre de feesimple . la eignesse enter , la puisnesse port un nuper obiit , l'auter disclaime en le sank per que le breif abate . l'eignesse recitant la grant del ' rent issuant del ' terre de feesimple grant mesme le rent ove x. darr ' de rent ouster a un estranger . la puisnesse port mortd'ancestor vers l'eignesse del ' terre de feesimple , l'assise est prise per default per que el recover . la fille puisnesse recitant le grant et confirment del ' rent issuant del ' terre tail grant mesme le rent a celuy estranger . l'eignesse ad issue fits , et enfeoffe son fits del ' terre tail en feesimple , et devie : l'issue et l'aunt en nosme de l'aunt portount formedon , l'issue est summon et sever , el sue sole , l'issue vouch luy mesme come assigne sa mere , et luy & sa aunt come heirs al aiel . eux entront en la garranty et rendront en gree , le rent est arrere , celuy a qui le rent fuist grante distreint , l'issue et l'aunt fount rescous . ceux que droit ? &c. case 37. un home seisie d'un carve de terre ad issue 2 filles per divers venters , et devie ; un estranger abate et lest mesme , la terre al fille puisnesse a terme de sa vie , la quel lest ouster , a sa soer , sur condition , que el paie certein deniers a certein jour que el eit fee , et si non , que lauter puissoit entrer & tener en comen ovesque luy : a jour assis les deniers nient fuere paies , per que el enter et tient en comen ovesque luy . le rent est arrere , le seignior distreint , els font replevin , le seignior avowe , les disclaime , le seignior port breif de droit sur disclaimer , et recover per default , l'abator port breif d'entry in consimili casu , et recover per default , la fille eignesse port mortd'ancestor , l'assise est prise , per default , per que el recover et devie seisie , la fille puisnesse enter , le seignior port breit d'escheat : ceux que droit ? &c. case 38. trois soers , l'un seignioresse , l'auter mesne , la teirce n'ad rien . la mesne ad issue deux filles & devie , l'un alien ceo que a luy affiert a sa aunt , que n'ad rien . le tenant est distreine , il port breif de mesne devers les 2. mesnes , pendant le breif il attorne a l'aunt , et puis eux disseisont , et il sue avant son breif , issint que les mesnes sont forejuges . le seignior ad issue 2 filles , l'un deins age , et devie ; le seignior paramount luy happe le gard celuy deins age . le tenant en demesne ad issue et devie , l'aunt a que le grant soy fist happe le gard. le seignior paramount et les 2 soers , celuy deins age & l'auter , sont a lour recovery : ceux que droit ? &c. case 39. un home , et un feme sole , et deux infants deins age purchasont jointement . le home prent la feme a feme ; touts les 4 lessont la terre a un home pur terme de sa vie : le baron devie , l'un infant deins age prent feme ; le tenant a terme de vie dona mesme la terre al baron & la feme en le tail , vers queux la primer feme port cui in vita , et recover per default ; le baron & la feme portount quod ei deforceat et recoverount per default . le baron et la feme ount issue , le baron devie , la feme alien a l'auter infant deins age et un estranger en fee ; la feme devie , l'issue est a son recovery : ceux que droit ? &c. case 40. home seisie de certein terre & d'un villein en le tail lest mesme le villein a sa soer a terme des anns , et la terre a son fits pur terme de sa vie la feme prent baron le lessor confirme l'estate a le baron & sa feme a terme de lour deux vies , et grant a eux la reversion de la terre en fee ; le fits attorne , le tenant en le tail devie , le baron & la feme portont breif de wast , et recoverount per plee ; le fits port formedon , et recover per default , le villein purchase certein terre , le baron & la feme entront & lessont mesme la terre al fits pur terme de sa vie , et le fits lest mesme la terre al feme en mortgage a paier certein deniers a certein jour , a jour assis il tender les deniers , il les refuse ; puis divorce se prent perenter le baron & sa feme al suit de seint esglise la feme soy tient eins , le fits luy ousta ; la feme port l'assise &c. md què breif de cui ante divorcium gist bien . quaere s'il avera le view ? car l'estatute est que il serra ouste del ' view si tenens sustulit alind breve , et cest breif n'est done per l'estatute : mes quaere s'il serra prise per l'equitie de l'estatute . case 41. feme neif sole seisie de 2 carves de terre l'un en feesimple , l'auter a terme de vie ; le seignior la neif purchase la reversion del ' terre a terme de vie , la feme attorne , la feme prent a baron le seignior del ' terre en feesimple , le baron ouste le seignior la neif , et lest la terre a un home sur condition què s'il paie certeins deniers a certein jour que il poet enter , et si non , que l'auter eit fee ; le seignior la neif relest a baron tout le droit que il ad al jour de paiement , le baron tendr ' les deniers , et entre , le seignior luy ouste de tout le terre , le baron et la feme ount issue , la feme devie , l'issue devie sans heir , le baron ouste le seignior del ' terre , et alien , et reprent estate a luy et a second feme : ceux que droit ? &c. case 42. tenements sont lessès a un home pur terme de sa vie , le remainder ouster a un auter pur terme de sa vie , et apres son decease le remainder a les heirs de son corps engeneres . le primer tenant devie , le second entre et alien ; l'alienee alien a deux , a l'un en le tail , a l'auter a terme de vie . le second tenant a terme de vie ad issue , et devie ; l'issue port breif de formedon en remainder et recover per default , et alien , et reprent estate a luy et a un auter : ceux que droit ? &c. case 43. home enherite prent feme , ount issue fits , le baron devie , la feme entr ' et devie seisie , l'issue entr ' et alien la terre a un home en fee rendant a luy certein rent , et a quel heur , que le rent soit arrere , que bien list a luy et a les heirs de part sa mere d'entrer ; le rent est arrere , le lessor entr ' , le lessee luy ouste , en quel possession un estranger relesse ove garranty . le rent est arrere , le lessor devie , s'aunte de part sa mere enter et refeffe le lessee ; l'aunte de part son pere prent a baron celuy qui relest . lessee ad issue deux filles et devie , l'un alien ceo que a luy affiert a un estranger a tener en comen ovesque sa soer , et l'auter enfeffe un auter estranger a tener en comen ovesque l'alienee la soer : ceux que droit ? &c. case 44. breif est port vers le diffeisee , il conust estre le villein le disseisor , perque le breif abate . le disseisor fait un recouusans al disseisee a paier certeins deniers a certein jour , a quel jour il ne paia pas , per que la moietie de ses terres sont liverès en execution per elegit , et puis il dona l'auter moietie a mesme celuy pur terme des anns , sur condition , què s'il eit heir male deins le terme què il eit fee , et si non , què il eit que terme ; deins quel terme il confirme son estate pur terme d'auter vie : et puis le tenant ad issue male deins le terme , celuy a que vie le confirment fuist fait devie , le lessor entr ' en l'un moietie , et un estranger abate en l'auter moietie , en que possession l'uncle relest ove garrantie , et devie ; le second disseisor enfeffe le primer disseisor de ceo qu'il ad : ceux que droit ? &c. case 45. deux barons & lour femes purchasont jointment , sont disseisies , l'un baron relest al disseisor , le disseisor enfeoffe l'auter baron en le tail , et puis divorce se prent perenter le baron ( qui relest ) & sa feme , la feme port cui ante divorcium pendant le breif , el entra ; le tenant en le tail port l'assise et recover ; la feme sue avant son breif , et apres appearance el est nonsue ; le tenant en le tail devie sans issue . le disseisor entr ' come en sa reversion , vers que la feme le tenant en le tail port breif de dower et recover , et enfeffe l'auter feme , et devie ; le disseisor entr ' : ceux que droit ? &c. case 46. un home seisie de 3 carves de terre ad issue 2 filles per un venter , et un fille per auter venter , et enfeoffe un home d'un carve de terre , devant l'estatute , a tener de luy per les services d'un denier , et puis acroch ' xx s , et puis enfeoffe mesme celuy de les deux auters carves de terre a tener de le cheif seignior per les services dues & customes , et devie ; les deux filles happ ' le rent , la feme port breif de dower & reeover , issint què le carve de terre , que fuist primes done , est liver en execution en allowance de sa dower , et puis paie les xx s. et happe un release de celuy en la reversion ove le primer fait de feoffment et devie : la puisne file entre et prent baron ; le rent est arrere , les deux filles distreignont , et avowant sur le baron et la feme , eux pledont rien arrere , et puis les plaintiffs sont nonsues ; per que retorne est agard ( la puisnesse file ore a son plein age ) le rent auterfoits adarere , les deux soers distrein le baron &c. sa feme et le tierce fount le rescous , l'un file relest a l'estranger touts manners , d'actions personals & reals , l'auter ad issue & devie : ceux que droit ? &c. case 47. un home seisie de certein terre en fee , lest mesme la terre a deux a terme de lour deux vies , l'un deins age , l'auter de plein age ; puis il grant la reversion a un estranger en fee ; per virtue de quel grant celuy deins age attorne , celuy de plein age ( nomine celuy de plein age ) grant son estate al grantor , celuy deins age surrender son estate a celuy en reversion ; puis celuy en la reversion fait un reconusans a celuy deins age , le jour encourge , celuy deins age fuist execution , et ad execution de mesme la terre ensemblement ove la moietie de tout sa terres celuy de plein age devie sans issue , celuy deins age ad issue , et devie , l'issue enter , le grantee ad issue deux filles et devie , les filles oustont l'issue celuy deins age que suist execution , l'un soer alien ceo que a luy affiert a un home a tener en comen ovesque sa soer , l'auter alien en mesme le manner : ceux que droit ? &c. case 48. tenants sont lessees a un infant deins age a terme d'auter vie , la quel alien ouster en fee , l'alienee ad issue et devie , celuy deins age enter , l'issue l'alienee port breif de mortd'ancestor , pendant le breif celuy a que vie la terre fuit lesse devie ; le lessor entr ' come en sa reversion , et ad issue et devie seisie , celuy deins age entre , l'issue sue avaunt son breif et recover et alien a un a terme de vie , le remainder a un infant deins age ; le tenant a terme de vie devie , le deins age entr ' come en son remainder , l'issue le lessor ad issue et devie : ceux que droit ? &c. case 49. heritage discent a 2 soers come a un heir , eux firent homage al seignior , et puis firent parpartie enter eux , la puisnesse fait felonie , l'auter fuist emplede , el pria en aid de sa parcener , el se joint en aid prier , eux perdount , per que est agard que el recovera pro rata portione ; cestuy qu' fist le felonie est attaint , le seignior port breif d'escheat vers l'auter soer ; ceux que droit en ount a lour recovery sont ? &c. case 50. home seisie d'un carve de terre de feesimple et d'un auter en le tail ad issue fits & deux filles per un venter et fits per auter venter . happe un reles de la terre tail d'un estranger et alien mesme le carve de terre a un estranger in fee et devie , l'eigne fits entr ' en le carve de terre de feesimple et purchase la moiety del ' terre tail , et port breif de formedon de l'auter moiety et recover ( mes il ne sue my execution ) et enfeoffe sa soer de cel moiety quel il purchase , et reprent estate a terme de sa yie ; et puis luy et sa soer enfeoffount celuy qui relessa in fee : le fits devie , les deux soers entront in la moiety del ' terre de feesimple , et le frere del ' demy sank in l'auter moiety ; les deux soers sueont scire facias vers celuy vers que lour frere recover , et ount execution , etenfeoffount mesme celuy arrere a terme de sa vie , le frere de demy sank ad issue et devie seisie de cel moiety de terre de fee-simple : ceux que droit en ount vouchant ? &c. case 51. home seisie de certeins tenements grant un rent charge a deux , a l'un in la tail , a l'auter a terme de sa vie celuy a term de sa vie grant son rent a un home a terme d'ans . le grantor recitant le grant a luy in la tail & a l'auter a terme de vie grant que a quel heur que le rent soit adarere que il poet distrein ' et si rescous a luy soit fait que il eit a term de vie . le tenant del ' terre alien ' parcel del'terre a un home , et ad issue et devie ; le seignior happe le gard del ' corps l'issue deins age et des terres que sont a luy discendus , et port breif de gard devers l'alienee , il plede le feoffment le tenant del'terre , trove est al collusion issint que il recover le rent arere ; le termor distreint , le seignior fait rescous , l'infant deins age ore a son plein age entr ' in la terre que a luy est discendus , l'alienee in l'auter terre . le tenant in le tail del ' rent enfeoffe son issue deins age et entr ' in religion , et est professe , breif est port vers l'issue , vient un et prie conusans de plee et ad jour done ouster , l'infant fait default issint que le demandant recover , le pere est dereigne per precontract , et devie : ceux que droit ? case 52. tenant in la tail enfeoffe la file son fits et un estrange feme ove grrranty et entr ' in religion et est professe , le fits port breif de formadon , quia habitum &c. eux pledont le feoffment de son auncestor ove garranty , il plede que il n'ad riens per discent , per que il recover , avant execution sue le pere est dereigne per precontract , et devie ; il sue avaunt execution per que le viscount et un estranger luy mertont in seisin , puis le fits conust les tenements estre le droit l'estranger come ceux que il ad de son done ; puis quel conusans l'estranger grant et rendec mesmes les tenements al fits pur term de sa vie , la reversion regardant a luy , puis il grant la reversion al viscount in fee per force de quel grant le tenant attorne , les fits alien a ses deux femes in fee ; le viscount perseyvant l'alienation estre a sa disheritance entr ' in l'un moiety et de l'auter moiety il port breif d'entry in consimili casu et recover per default ; les femes sont a lour recovery : ceux que droit ? case 53. tenements sont lesses a un home a term de sa vie , le remainder a un auter a term de sa vie , et apres son decesse le remainder as droit heirs de son corps engendres , le primer tenant a term de vie devie , le second entr ' et alien ' a un home en fee , le quel done l'un moiety in tail , l'auter moiety a term de vie , et puis per auter fait grant la reversion a un auter ; le tenant a term de vie attorne , cestuy qu' avoit estate in le second remainder enfeffa un homa de la moiety d'un carve de terre et devie , son fits entr ' et port breif de formedon in remainder devers le tenant a term de vie et le tenant in le tail et recover per default , et enfeffe un home in fee a luy et ses heirs et a ses assignes , et reprent estate a luy & a un auter vers queux &c. ceux que droit ? &c. case 54. home seisie de 2 carves de terre [ l'un in le tail l'auter in feesimple ] ad issue deux fits per deux venters , et done la carve de terre de see simple a son fits eigne in le tail , le quel charge a deux , a l'un tanque il soit advance a benefice de seint esglise , a l'auter tanque il eit purchase 10 l. de terre . celuy qui duist estre advance prent sa cosin a feme , puis divorce se prent perenter le baron & sa feme al suit la feme ; le pere devie , le fits eigne entr ' in l'auter carve de terre et ad issue deux filler et devie , et estranger abate et enfeffe les deux chargees a eux et a les heirs celuy qui duist estre advance ; celuy qui duist estre avaunce relest tout le droit que il ad in la terre al joint feffee , l'auter confirme son estate in le rent , les deux soers portount breif de mortd'ancestor , l'un est summon & sever , l'auter sue avaunt et recover et ad execution del ' carve de terre tailè per le pere ; puis el prent a baron le tenant del ' auter carve de terre ; le rent est arrere ; celuy qui duist estre avaunce distrein ; rescous luy est fait : ceux que droit ? &c. case 55. home seisie de certein terre ad issue bastard & mulier , est disseisie et devie ; le mulier deins age ouste le disseisor et lest la terre al aunt de part le pere a term des anns , et puis confirme sa estate in fee ; la feme prent le disseisor a baron , l'infant a son plein age port dum fuit infra etatem , pendant le breif composition se prent perenter les parties , issint què si le baron & sa feme paiont certeins deniers a certein jour que la terre demourge al baron & sa feme & a les heirs del ' corps la feme engendres , et si el devie sans heir de son corps què la terre demourge as droits heirs le baron . al jour assis ils paient les deniers per que le brief abate . le bastard port breif de entry in le quibus devers le baron & sa feme , et recover per default , et alien a un estranger en fee ; le baron devie ; la feme port cui in vita vers l'estranger , il vouch a garranty le bastard , il enter in le garranty , et plede , et perde . le demandant sue execution , mes le tenant nemy . le bastard devie , l'estranger sue execution envers la feme come heir al bastard et ad execution per default . le mulier ad issue et devie : ceux que droit ? &c. case 56. home seisie de terre al comen ley et de terre departible enter males [ d'ont dames sont de la moiety dowables ] tient l'un moiety per service de chivaler , l'auter moiety in socage , alien ' la terre al comen ley ove tout le remenant a un home a tener ( devant le statute ) de luy per service de chivaler rendrant a luy certein rent , et ad issue bastard & mulier . le mulier prent feme et dowe sa feme per assent de son pere de quanque el est dowable al comen ley et per usage . le pere devie . le bastard happe le rent & entr ' in le terre . le mulier distreine le tenant , il fait replevin , devant avowrie il est nonsue , per que retorn ' est agard . breif est port vers le bastard , il allege non-tenure general per que le breif abate . le bastard ad issue et devie : le mulier entr ' et devie sans issue . l'issue le bastard entr ' et alien ' et reprent estate a luy et a sa feme . ceux que droit ? &c. case 57. la reversion d'un feme tenant a term de vie est grant a un home , mes le tenant n'attorne my . le grantee ad issue deux filles , l'un fait felonie in la vie son pier , puis quel el est wayve . le pere devie . le seignior de que la terre est tenus prent l'auter file a feme et ount issue fits et deux filles . le tenant rendr ' son estate al grantee . le grantee devie , un estranger abate et lest la terre al feme le seignior et al fits , a terme de vie le seignior ; et puis il port breif de wast envers le seignior & sa feme et le fits . le seignior plede feint plee per que la feme & son fits sont resceu a defendre lour droit , et plede nul wast ; trove est nul wast , per que il ne prent riens per son breif . le seignior devie ; l'abator entr ; la feme que fuist waive devie ; la feme le seignior & le fits deviount . breif est port vers l'abator , il vouch a garranty les deux filles per un faux fait de lour frere , l'un conust , l'auter dedit . puis le parol est mise sans jour per demise le roy. les deux filles deviount sans heirs de lour corps , mes cestuy que dedit le fait survesquist . l'abator enfeffe son frere & le primer tenant a terme de vie , in fee , et reprent estate a luy in fee ove garranty , et prent la feme a feme . son frere devie sans heir de son corps . le frere le seignior prent a feme la soer la grantor , et ount issue , et deviount . ceux que droit ? &c. case 58. un infant deins age est disseisie per un feme sole d'un molin quel charge mesme le molin a un auter infant deins age , le quel grant mesme la charge a un home & a un feme sole , les queux s'entermariount . le second infant a son plein age port dum fuit infra etatem advers le baron & sa feme , eux fount default , grand cape issuist ; puis divorce se prent perenter le baron & sa feme ; il sue avaunt son breif et recover per default . le primer infant prent la disseisess a feme deins age , en qu' possession celuy qu' recover relest , en que temps le molin eschuste . la feme devie , le baron soy tient eins , et grant la moiety del'scite a celuy qui recoverist . ceux que droit ? case 59. le disseisor prent sa neice a feme et enfeoffe le fits le disseisee & sa feme in frankmarriage et reprent estate a luy & a sa feme a term d'auter vie . le disseisee port l'assise , pendant le breif il relest ( le release nient plede ) issint que il recover . le disseisor devie , celuy a que vie la terre fuist lesse devie , le fits & sa feme entront , vers queux l'auter feme port breif de dower . ceux que droit ? case 60. aiel pere & fits , le fits purchase un carve de terre , et devie seisie , un estranger abate et alien l'un moiety in fee , l'auter moiety a luy & a les heirs de corps son pere engendres . l'alienee lest la terre a sa soer demesne , et devie . l'aunt le fits port breif de cosinage , pendant quel breif el ad un soer que se lest a nestr ' . le pere devie , sa feme priviment enseint . l'aunt sue avaunt son breif & recover per default , et soffre sa soer a tener en comen ovesque luy . puis el confirme l'estate sa soer que recover . puis l'enfant se lest a nestre la feme que perde est a son recovery &c. case 61. un infant deins age , et un auter de plein age fount eschange des terres . celuy deins age entr ' en sa terre que il ad per eschange . celuy de plein age entr ' en sa terre , et done mesme la terre a un home in la tail. l'infant deins age port assise vers celuy de plein age , et le tenant en la tail , et recover ; et alien a un home en fee. l'alienee lest les terres a terme des anns , en que possession l'infant deins age ore a son plein age ensemble ove celuy qui avoit estate de fee relessont ove clause de garranty per un mesme fait . celuy a qu' le release le fist lest ouster a un estranger fc . l'un moiety a term de vie , l'auter woiety a term des anns , et grant la reversion a un estranger per fine , mes le tenant n'attorne my . le tenant en la tail ad issue fill ' puis breif est port vers tenant en la tail , il conust estre le villein celuy qui fuist deins age en court , per que le breif abate . le tenant in la tail ad issue auter file , et devie . ceux que droit ? case 62. home seisie d'un carve de terre lest mesme la terre a deux a term des anns , et fait un release a eux quel est bailè en owel main sur condition , que s'ils soient oustès deins le term de parcel ou de tout per luy que le release soit bon . puis le lessor fait un estatute marchant a un estranger et ouste les lessees d'un acre de terre , et fait felony ; puis la quel il est utlage , issint que cel acre de terre est prise in la maine le roy. les lessees sueont breif de detinue d'escript et recover , et sueont per petition au roy pur l'acre de terre ; pendant quel suit le jour de l'estatute est encourge , per que il sue execution devers les lessees et ad execution . eux sueont ouster petition au roy et ount un acre de terre en lieu de cel acre . le utlagè reverse l'utlagarie et sue per petition au roy pur cel acre , et ad execution . l'un des lessees est clerk convict & liverè al ordinary , et puis fait sa purgation , en que possession l'auter lessee release : ceux &c. en ount &c. case 63. feme sole disseisist deux joint-tenants . eux portount assise , l'un est summon et sever , l'auter sue avaunt sole et recover la moiety . celuy qui fuist summon et sever purchase un carve de terre et alien ' ceo al feme en mortgage et prent mesme la feme a feme durant le coverture le jour est encourge puis divorce se prent perenter le baron & sa feme al suit la feme la feme soy tient eins en la terre que el ad per disseisin & le baron en la terre lesse in mortgage la feme ouste le baron de la terre que il ad in mortgage et dona mesme la terre al un estranger en fee quel ad terre al comen ley & terre departible il ad issue 3 fits et alien & devie le disseisiee ad issue et devie . ceux que droit ? &c. finis . notes, typically marginal, from the original text notes for div a66452-e2230 venire facias . freehold xls. hundredors . forfeiture . appeal . praemunire . warantia chartae . ex gravi quaerela . attaint . bre ' de droit . audita querela sur stat. merchant . rationabili parte . assise . customs & services . customs & services . juris utrum . droit sur disclaimer . customs & services . ne injuste vexes . decies tantum . champerty . quo minus . quod ei deforciat . parco fracto . mordancestor . certificate d' assise . appeal de mayhem . quale jus puis cessavit . prohibition . bre ' d'estrepement puis scire facias . bre ' de disceit . stat. de labourers . forger de faux faits . curia claudenda . nuper obiit . faux jugement . bre ' d'error . diem clausit extremum . quare incumbravit . contra formam feoffamenti . precipe en capite . disceit . action sur le case . statute forester . nota. sci ' fa ' d'executer un fine . nota. clerks del ' chancery . persons ayant privilege en l'excheker . nota. droit en londres . ou pr ' qd ' reddat en county palatine . nota. conclusio primae lectionis . nota. roy. popular action . roy , royne consort & trespassor . entrusion sur possessessions la royne . detinue de chartres . detinue de chartres . precipe quod reddat . coparceners . detinue de chartres . detinue . detinue . fait de feoffment . replevin . office. tenants en comon . quare impedit . quare impedit . quod ci deforceat . quod ei deforceat . precipe quod reddat . precipe quod reddat . certificate d'assise . dett &c. perenter alien & denison . dett per alien vers alien . dett per alien ( fait denison pend ' le bre ' ) vers denison . covenant per denison vers alien & denison . dett per alien puis fait denison , vers denison . nota. dett vers executors . grant per roy al major & communaltie . parson enhable per bulles del ' pape . moigne enhable destre fermour le roy. feme d'un attaint & qui ad abjure le realme . prior datise & successor . moigne & j.s. grantees le roy de deux markets destre tenus ambideux sur mesme les jours . nusance . moigne vicar perpetual . abbe & commoigne . trespass per moign , & auters . battery per abbe & commoigne . stat ' 8 h. 6. qui tam. conspiracy ▪ accompt . replevin . quod ei deforceat . precipe in capite . precipe quod reddat . precipe quod reddat . dett lou plaintiff est utlage . precipe qd ' reddat per clerk convict , ou attaint . nota. trespass . ne injuste vexes . dett . non est factum . trespass . non cul . trespass . justification . ravishment de garde . dett sur obl ' . release . dett sur obl ' . release . quare impedit . refusal d'evesque , quare non admisit . plaintiff ouste de trial. droit d' advowson . ne admittas . quare incumbravit . demandant ouste de trial. abbe parson impersonee & successor . l'evesque alien sine assensu capituli , ie successor serra ouste de sop triall . wast per 2 soers , un de plein l'auter deins age , ils serront oustès de lour trial. grand cape . dower . breif de disceit d'avoider un recovery . disceit . pr ' quod reddat vers major & communalty . attaint . release . neint son fait . mordancestor . breif de droit . release de collateral ancestor . breif d'ayel . testymoynes . br ' d'entre sur disseisin . testymoyne utlage , ou mort . juris utrum . release . assise de mordancestor . breif de droit . grand cape en precipe quod reddat . deins age . faux judgment . clerk d'exchequer sue per bill en b.r. plede custom destre sue solment en l'exchequer , bill vers gardien del ' fleet en dett pur escape qui plede custom destre sue touts foits per breif . breif de dett . quare impedit . advowson appendant . advowson en gross . precipe quod reddat . dower . cui in vita . customs & services . nota. replevin . property . action sur private statute & nul tiel estat . plede . precipe quod reddat . feoffment plede d'un moigne professe . dett port vers un come chivaler , qui dit quil est counte , nest triable &c. contra vers un com evesque qui est abbe . entr ' sur disseisin . recovery en wast . nest mesm terr recov ' . dett sur obligation . sci ' fa ' d' aver execution sur recognizance faux retorne del ' vic' . sci ' fa ' d'executer fine . nient comprise . trespass . recovery plede . attachment sur prohibition . excommengement . pr ' quod reddat . nota. lease sur condition de re-entry . lessee pur vie . feoffe sur condition . seignior & tenant per service de chivaler . gardein en chivalrie . lessor & lessee pur anns . seignior & tenant . l'heire le seignior . l'alienee del ' terres tenus del ' roy en cheif alienès sans licene . lessor pur anns reserve 5 l. annualment a luy & ses heires . grantee de 40 loads de fein d'estre prise annualment del ' pree le grantor . tenant pur anns . heire . lessee pur vie . heire del ' lessor . clause de distress . lease pur anns . heire . grantee de rent . tenant en remainder per devise . grantee de jointenants . lessee pur vie rend ' 1 d. rent . grantee d'un rent-charge . grantee de trois jointenants . grantee d'un rent-charge de 2 jointenants . grantee d'un rent-charge sur condition . grantee de rent-charge . grantee d'un rent-charge per disseisor . feme et son baron . continual claime . grantee d'un advowson . seignior et tenant . lease d'● mannor & stock d'aves . lessor . deux jointenants . grantee d'un d'eux . 4. jointenants . grantee de rent de 2 d'eux . grantee de rent-charge . bargainor et son heire . grantee del ' rent . grantee del ' rent . grantee d'un rent charge . grantee de rent charge . grantee de rent-charge . grantee de rent-charge . grantee de rent-charge . cestuy que use . grantee d'un rent-charge . baron de feme sole graantee d'un rent charge . estate conditional . seignior 〈◊〉 ad franktenement . grantee d' un ' tn retn hors de terre deins 2 counties . done en tail al baron & feme . morgagor franktenement alienè . franktenement purchase . franktenement recoverè . franktenement extendè . grantee del ' reversion . vic' empanel 26. seignior uncapable destre jurour . nota. terre seisie pur fine d'alienation . grantee d'un rent charge . nota. villen retorne juror . xii retorne de gildeable xii de franchise . persons attaint empanel . pere & fits empanel . un empanel qu'est en malady &c. lessee pur vie del ' parentee le roy empanel . disseisor & disseisee empanel . estranger abator empanel . done empanel . recover or per errou ' judgement rerule . male retorne del ' vic' vic' retorne ●n qui recover vers luy . bon retorne . vic' empanell person sufficient qui devie , et bon retorne . grantee d'un rent charge al vic' retorne . viscount retorne son tenant pur vie apres il luy emplede . viscount empanel son tenant pur vie . lessee pur vie empanel . nota. lessee pur vie empanel . grantor retorne sur nquest . disseisor empanel . franchise . dett . aliens retorne . covenant . aliens retorne . xii jurours forsque retorne . estranger empanel . nota. viscount discharge . novel viscount . seigniors de parliament & barons sufficient hundredors . hundredor alien son terre , ou . grant rent charge al value de ceo , et bon . si le terre gist en auter hundred n'est sufficient . nota. hundredor poet demurre en auter 〈◊〉 . nota. un demurr ' en hundred ' qu'est deins lete . ou deins un franchise ou ville corporate . ou recover per erronious judgment est sufficient hundredor . nota. home qui demurt deins un mannor n'est snff ' hundredor ' . home qui ad office de bailywick . ou advowson al value de 20 l. ou rent ou comen d'estovers &c. ou market ou faire pur vie . ou free piscary ou frankfold . ou toll ou passage . ou lete , est sufficient hundredor . lou visc ' . perdra penalty del ' stat ' . nota. vic' retorne nul hundredors . vic' retorne forsq ' 3. hundredors . viscount . baily del ' franchise . vic' retorne 6 del ' hundred ' prochein adjacent et nul ou le venue est . nota. nota. proche in hundred ' . forsque 4 retorne de mesme hundred ' . nota. nota. si nul hundredor est retorne vic' perdra penalty . si le venue surge d'un rape & vic' retorne desouth 6. perdra penalty . lou vic' perdra penalty sil ne retorne 6 hundredors . nul hundredors retorne . deux viscounts . ve ' fa ' direct al hundred proch ' adjoinant sur surmise del ' plaintiff . ve ' fa ' sue per def ' sur default del ' pl't . ve ' fa ' sue tam per pl't quam per def. 4 hundredors tant retorne . touts hundredors retorne lou sont forsque 4 , et bon . nota. venue en ville en le confine de deux hundreds . lou vic' perdra penalty quant il retorne 6 hundredors . retorre de 4 hundredors nest bon nient obstant ne soit ascun challenge . lou les justices poient agard● tales . lou le plaintiff n'avera tales . tales ne poient estre agard . les justices poient agard tales . justices poient agarder tales . plaintiff poet aver tales . semble . nota. justic ' ne poent agard tales . justices poient agarder tales . justices ne poient agarder tales . semble . lou les justices poient oust le plaintiff de son tales . poient agard al prier del ' plaintiff . ne poient agard . protection jette pur def . plaintiff ne poet aver auter tales puis panell quash . challenge de l'array . bailiff de franchise . plaintiff ne prendra benefit de circumstantibus . plaintiff ne prendra benefit de son triall . plaintiff ne proceedera en son triall . wast . default . justices ne poient agarder tales . demandant ne proceedera a son triall . plaintiff navera tales . challenge de l'array . defendant ne proceedera al enquest sur tales . plaintiff ouste de tales . villein ne poet aver tales . nota. plaintiff n'avera tales . nisi prius returne per coroners . nisi prius per proviso . si denison sue alien poet aver tales . plaintiff poet aver tales del ' prochein hundred si le primer enquest sont deins son distress . nota. ☞ tales poient estre prie per attorney . vouchee en pr ' qd ' redd ' poet prier tales coment il n'est plaintiff ne defendant . sont 3 plaintiffs en repl ' & un fist def . l'auters ▪ ne poient prier tales . deux coparceners eu formedon l'un fist def . l'auter poet prier tales . deux coprrceners plaintiffs , l'un release l'auter poet prier tales . major & communalty en lour proper persons ne poient prier tales . evesque ou abbe poient . plaintiff ne poet prier tales en dett si le distr ' n'est deliver de record ; ou si vic' retorne forsque 12 ou nul issues . prior datiff port wast & est remove , le novel prior poet prier tales . deux coparceners l'un prist baron , l'auter poet prier tales . deux coparceners et nul d'eux avera tales . deux pl'ts en tns ' l'un est utlage , nul d'eux poet prier tales . deux coheirs pl'ts en cui en vita , l'un est moyne professe , l'auter ne poet prier tales . major tenant in comen ove luy mesme de terre en que j. s. fait tns ' j. s. ne poet prier tales . snr ' vers ten't enne injuste vexes , ten't poet prier tales , snr ' nemy . deux pl'ts en quare impedit un fist default l'auter ne poet prier tales . deux exec ' en dett l'un fist default , l'auter ne poet prier tales . deux pl'ts l'un deven ' surdc & mute l'auter ne poet prier tales . defendant fist 2 attornies l'un prie joua en bank l'auter tales , & ceo avera . deux gardeins d'un infant l'un ne poet prier-tales sans l'auter . deux attorn ' en pr ' qd ' redd ' l'un n'appiert l'auter ne poet prier tales . dean ( ove chapiter ) port dett & morust , novel dean poet prier tales per lour primer attorn ' major & cominalty port ' tn's il morust novel major &c. poet prier tales . s'un abbe per attorn ' port tns ' & est fait evesque poet prier tales . si adm'or port dett & adc'on est comitt al auter ne poet prier tales . vic' poet empannel preist on deacon sur tales ayant sufficient lay fee ; mes nemy infant ou d'age de 80 anns . mes poet emapanel coroners , ou capital ministers d'un corporation , ou foresters &c. le roy. et coroners poient empanel le viscount . ou home qui est mute mes . poet oyer ou est caece & mutes mes ei perfect intelligence ( mes nemy un qui est surde . ) ou home excomenge poet estre empanel , mes nemy un utlage , ou attaint . ou de non sane memory , ou alien , ou clerk attaint , ou un attaint de faüx verdit . mes fits d'un alien enemy nee deins le terre , clerk , & un ayant lucida intervalla poient estre empane nota. nota. principal challenge . villein . compere . compere al bastard . challenge pur favour . principal challenge . principal challenge . principal challenge . challenge pur favour principal challenge . principal challenge . principal challenges . nul principal challenge . nul principal challengene pur favour . nul challenge pur treiter jurour . principal challenge . semble . nul principal challenge pur cause . principal challenge . semble . nul bon challenge . notes for div a66452-e21120 nota. nota. note . nota. reports of special cases touching several customes and liberties of the city of london collected by sir h. calthrop ... ; whereunto is annexed divers ancient customes and usages of the said city of london. calthrop, henry, sir, 1586-1637. 1670 approx. 302 kb of xml-encoded text transcribed from 132 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2007-10 (eebo-tcp phase 1). a32296 wing c311 estc r4851 12247759 ocm 12247759 57005 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a32296) transcribed from: (early english books online ; image set 57005) images scanned from microfilm: (early english books, 1641-1700 ; 623:2) reports of special cases touching several customes and liberties of the city of london collected by sir h. calthrop ... ; whereunto is annexed divers ancient customes and usages of the said city of london. calthrop, henry, sir, 1586-1637. [8], 32, [48], 33-206 p. printed for abel roper ..., london : 1670. includes bibliographical references. added t.p. on p. [77]: whereunto is annexed divers ancient customs, and usages of the said city of london. newly re-printed. london : printed for abel roper ..., 1670. reproduction of original in bodleian library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng customary law -england -london. law reports, digests, etc. -england -london. london (england) -charters, grants, privileges. 2006-06 tcp assigned for keying and markup 2006-07 apex covantage keyed and coded from proquest page images 2006-10 mona logarbo sampled and proofread 2006-10 mona logarbo text and markup reviewed and edited 2007-02 pfs batch review (qc) and xml conversion reports of special cases touching several customes and liberties of the city of london . collected by sir h. calthrop knight , sometimes recorder of london . whereunto is annexed divers ancient customes and usages of the said city of london . london : printed for abel roper , at the sun st. dunstans church in fleetstreet , 1670. to the right worshipful sir thomas loe , k. alderman of the city of london . worthy sir , being put in mind of that saying of seneca , ingratum sidixeris omnia dixeris . and having a desire to avoid that rock whereupon so many have suffered shipwrack , have had often conflicts within my self , wherein i might express my thankfulness unto you , of whom i a stranger have received so many undeserved favours , and at last bethought my self , that ( you being one of the noble governours of this famous city of london , and being likewise a president over several companies of merchants in it ) a treatise concerning the customs of the city of london , or otherwise concerning the priviledges and immunities granted unto the merchants of london , would not altogether be an unfitting subject to be presented unto your view ; whereupon i have selected som few cases collected by my self , of the resolution of the iudges , concerning some customes of your city , and some charters granted unto the citizens of it , and offered them unto your consideration , the which i desire you to accept as a pledge and token of a thankful mind , howsoever they in themselves are unworthy your pains to be taken in the reading of them : and so with my truest wishes of the continuance of all happiness unto your self , your thrice noble lady , and the branches of your flourishing family , i take my leave , ever resting , from my chamber in the middle temple , 2 januarii anno dom. 1661. the affectionate and hearty well-wisher of all good unto you and yours henry calthrop . the contents of several cases . the case of the city of london , concerning neusances in stopping up the lights of their neighbours houses by new buildings page 1 touching the custome of citizens learning that trade , whereunto they have been apprentices seven years , and betaking themselves to other trades . 9 the custome of london touching forreign attachment . 27 the case concerning the prisage of citizens wines .   the case concerning repairing of wharfes and docks .   the cuctome of london , to fine one chosen by the commons to be sheriff , and refusing , to hold . 33 the case of merchant-adventurers . 36 certifying indictments upon certioraries . 42 concerning orphans portions . 46 the custome in not removing body and cause upon habeas corpus . 50 the case concerning payment of tythes in london . 54 divers ancient cuctomes and usages of the of city london . 79 hust of pleas of land. 80 hustings of common pleas. page 85 assizes of mort d' ancest in london . 94 assizes of novel dissezen , called freshforce in london . 97 de curia majoris london & custumis civitatis ejusdem & diversis cesibus terminalibus in eadem curis . 100 the commission and article of the wardmote inquest , by the mayor . 129 an act for the reformation of divers abuses used in the ward-mote inquests . 146 the articles of the charge of the ward-mote inquest . 151 an act parliament for the preservation of the river of thames . 169 an act of common councel concernidg the conservation and cleansing of the river of thames . 174 the oath of the constables within the city of london . 180 the oath of the scavengers . 182 the oath of every freeman of this city of london . 183 an act of common council concerning making freemen of the city , againct colouring of forreign goods . 185 the statutes of the streets of this city against annoyances . 187 old laws and customes of this city . 196 by act of parliament in 14. car. 2. 198 reports of special cases , touching several customes and liberties of the city of london , &c. the case of the city of london concerning neusans in stopping up the lights of their neighbours houses by new-buildings . reginold hughs an attorney of the kings bench being seized in his demesne as of fee , of an ancient house in the parish of saint olaves in the ward of queen hithe london in the south-part of which house have been three ancient lights ( time our of mind . ) anthony keeme having taken a lease for 31. years from the rector and guardians of the parish church of saint michael at queen hithe by indenture of a rumous house , and yard next adjoyning unto the said house , with a covenant to bestow a 100 marks at the least upon the repairing or new building of the said house ; doth within two years pull down the said house , and doth build a new house in the place where the old house stood , and likewise upon the yard whereby the three ancient lights on the south-side of ●●●● house are stopt up , whereupon reynold lewes doth bring his action upon the case against anthony keem , for the stopping up the lights ; unto which the said anthony doth plead a special plea in bar , shewing the ruinousness of the house , and likewise the lease made by the rector and guardians , and the covenant comprised within the lease , and doth also shew that there is a custom in london , that if one have an ancient house , wherein there are ancient lights , and one other hath a house adjoyning upon that house ; he that hath the adjoyning house may well enough enhance his house , or build a new house upon his ground , and to stop those ancient lights of the house next adjoyning , unless there be some writing to the contrary . and he doth aver in facto , that there was no writing to the contrary , and that he according to the custome did take down the old house and build a new one upon the same foundation and upon the yard opposite unto the said lights , whereby they were stopped up ; and upon this plea in bar ; the plaintiff demurreth in law. the questions of this case are . first , whether it be lawful for a man to build a house upon his own ground , whereby the lights of an ancient house are stopped , there being no custome to enable him ? secondly , whether the custome of london will enable a man to build a new house from the ground ; where no house formerly was , whereby he may stop the ancient lights of his neighbours house ? thirdly , whether upon an ancient foundation a house may lawfully be enhansed , so as it shall stop up the light of the neighbours house adjoyning ? as to the first , it is clear by the opinion of sir thomas flemming , chief justice of the kings bench , sir cristopher yelverton , sir david williams , and sir iohn crook , justices of the kings bench , that there being no custome , it is not lawful to erect a new house upon a void piece of ground , whereby the old lights of an ancient house may be stopped up ; for the rule of equity , and law saith , utere tuo , ut alienum non laedas ; and the light which cometh in by the windowes , being an essential part of the house , by which he hath three great commodities , that is to say , air for his health , light for his profit , prospect for his pleasure , may not be taken away no more , then a part of his house may be pulled down , whereby to erect the next house adjoyning . and with this resolution agreeth the case of eldred reported by sir edw. cook , in his ninth report , fol. 58. where he sheweth the ancient form of the action upon the case to be quod messuagium horrida tenebritate obscuratum fuit ; but if there be hinderance only of the prospect by the new erected house , and not of the air , not of the light , then an action of the case will not lye , insomuch that the prospect is only a matter of delight , and not of necessity . as to the second , it was resolved by the opinion of the aforesaid judges , that the custome of london will not enable a man to erect a new house upon a void space of ground , whereby the ancients lights of an old house are stopt up ; for first the owner of the old house having possession of a lawful easment and profit which hath been belonging unto the house by prescription , time out of mind of man , may not be prescribed out of it by another thwarting custome which hath been used time out of mind of man , but the latter custome shall rather be adjudged to be void , and prescription against a prescription will never be allowed by the law. 2. it may well be that before time of memory the owner of the said void piece of ground granted unto the owner of the house , to have his windows that way without any stopping of them , the which being done , and continued accordingly , hath begotten a prescription , the which may not be defeated by the allegation of a general custome ; and with this resolution doth agree a case adjudged , trin. 29. eliz. rot. 253. in the kings bench ; whereupon an action upon the case brought by thomas bloond against thomas mosley , for erecting of a house in the county of the city of york , whereby the ancient lights of his house were stopped up : the desendant did plead a custome for the city of york , as there is here for the city of london , and adjudged that the custome was naught , whereupon the plaintiff had his judgement : but if the houses had been new erected houses , or otherwise windowes had been newly made windows in that ancient house , the erection of that new house upon that void space of ground would have been lawful notwithstanding that the windows and lights be stopped up ; for it shall not lie in the power of the owner of the ancient house by setting out his new windows to prevent him , that hath the void peice of ground from making the best benefit of it . as to the third point , it was conceived that if the new house be only erected upon the ancient foundation , without any inlargement either in longitude or latitude , howsoever it be made so high that it ●oppeth up the lights of the old house yet he is not subject unto any action , because the law authorizeth a man to build as high as he may upon an ancient foundation , and it is no reason to foreclose a man from making his house convenient unto his estate and degree by building up higher , when there is no other impediment , but only some windowes which are built out over his house ; and agreeing to this , seemeth the old book of 4. e. 3. 150. to be where an assize of nusans was brought for erecting his house so high , that the light of the plaintiff in the next adjoyning house was disturbed by it , and the plaintiff upon the opinion of herl , chief justice , did not proceed in the assize , but let it fall to the ground ; but if the new builded house exceeded the ancient foundation , whereby that excess is the cause of stopping up of lights , then is he subject unto the action of him whose light is stopped up , as it may appear by 22. h. 6. 25. and in the case at the bar , judgement was given for the plaintiff , because he had brought his action for building of a new house upon a void piece of ground , by which his windows were stopt up . and keeme the defendant only justifieth by the custome , the erection of the house upon an old foundation , and upon the void piece of ground , the which is not any answer at all unto that which the plaintiff layeth unto the charge of the defendant . touching the custome of citizens leaving that trade whereunto they have been apprentices seven years , and betaking themselves to other trades . iohn tolley having been an apprentice in london by the space of seven years unto a wool-packer , after the seven years expired , is made a freeman of london ; afterwards he leaveth the trade of a wool-packer , and betaketh himself to the trade of an vpholster , and doth exercise that trade by many years , whereupon one thomas allen an informer , doth exhibit an information in the court of the mayor of london , as well for the king as for himself , upon the branch of the statute made in the fifth year of the late queen elizabeth cap. 4. whereby it is enacted , that after the first day of may next ensuing it shall not be lawful unto any person or persons , other than such as now do lawfully use , or exercise any art , mystery , or manual occupation , to set up , &c. any such occupation now used or occupied within the realm of england , or wales , except he shall have been brought up seven years at the least as an apprentice in manner and form aforesaid , nor to set any person on work in such mystery , art , or occupation , being not a workman at this day , except he shall have been an apprentice as aforesaid , or else having served as an apprentice as is aforesaid , shall or will become a iourney-man or hired by the year upon pain that every person willingly offending or doing the contrary , shall forfeit and lose for every default fourty shillings for every moneth . and he sheweth , that iohn tolly the now defendant hath exercised the trade of an upholster by the space of fourty moneths , whereas he was never an apprentice to that trade by the space of seven years ; contrary unto the aforesaid statute , whereby the said thomas allen doth demand the forfeiture of eighty pound unto the king and himself , whereof he the said allen doth require the one moyety , according to the form of the said statute . and this information being removed out of the court of the mayor of london by certiorari into the kings bench , the said iohn tolley doth plead a special plea in bar , shewing , that there is a custome of london which hath been used time out of mind of man , that every citizen and freeman of london , which hath been an appretice in london unto any trade by the space of seven years , may lawfully and well relinquish that trade , and exercise any other trade at his will and pleasure . and sheweth further , that all the customes of london were confirmed by k. r. 2. in the parliament holden in the seventh year of his raign . and averteth , that he had served one in the trade of a wool-packer , as an apprentice , by the space of seven years , and that he was a citizen and a freeman of london , and that he did relinquish the trade of a wool-packer , and betook himself to the trade of an upholster , as lawful it was for him to do ; and so he demandeth the judgment of the court if this information against him will lie ; and upon this plea in bar , the said thomas allen doth demur in law. the questions in the case were these . 1. whether the custome of relinquishing one trade , after that he hath been an apprentice by the space of seven-years , and betaking himself to another trade , wherein he hath not been an apprentice , be good or no ? 2. whether it may be taken as a custome or no , or whether it shall be said to be the common law of the realm , and so the allegation of it , as a custome , nought ? 3. whether the statute of the confirmation of the customes of london , made in the seventh of r. 2. as it is pleaded , shall be taken to be an act of parliament , or only a confirmation made by the letters pattents of the king in parliament ? 4. whether the branch of the statute of 5. eliz. cap. 4. being in the negative , inhibit all men to exercise the trade when they have not been apprentice seven years thereunto , is a controlment of the custome of london , which can receive no support by the statute of confirmations ? and whether that custom shall stand good in opposition of that branch ? 5. whether the trade of an vpholstor be a trade restrained by the statute of 5. eliz. so as iohn tolley may exercise it , notwithstanding that he hath not been an apprentice to it by the space of seven years , according to the course of the common law ? 6. whether the court of the mayor of london be such a court of record , as that an information may be exhibited there ? 7. whether a moyety may be demanded of this forfeiture by the informer , when as a proviso in the stat. of 5. eliz. 4. doth appoint the levying , gathering , and receiving of such forfeiture as falls in a city or town corporate to the mayor , or other head officers , to the use and maintenance of the same city or town corporate ? as to the first question , which is the lawfulness of the custome , it was agreed to be good ; for it might have a reasonable construction , beginning , and just cause , for the putting of it in execution , insomuch that london being a famous city for traffique and commerce , cannot but sometimes have merchants and tradesmen in it , who by misadventure of pyrates or shipwrack in the seas , or by conffiscation of their goods in forraign countries abroad , o● by casu●lties of fire , &c. at home , have their estates sunk , whereby they are not able for want of stock and meane● to continue that course of merchandizing and trade wherein they have been brought up there being great stocks and sums of money requisite for the continning of it , whereupon they are forc'd to leave that course , and betake themselves to some other trade proportionable to that means which they have left . and it were lamentable , that wher● inevitable casualties have disabled a man to proceed in that course wherin he was brought up , he now should not be permitted to acquire his living by any other trade . also it may be , that the trade whereunto he was an apprentice , requireth great labour and strength of body , as the trade of a smith , carpenter , and such like , and that through sickness or other disasters befaln him , he is become infirm in body , and weak in strength , whereby he is not able to use that trade . now to deba● him of all other trades , which are more be fitting his crazy body , were somwhat unreasonable . wherefore to meet with these inconveniencies , and to give incouragement unto the citizens and freemen of london this custome of relinquishing the trade whereunto they have been apprentices by the space of seven years , and betaking themselves unto another trade , hath had a perpetual allowance , and being grounded upon so good reason still hath its continuance , and may not any wayes be called in question for the unreasonableness of it . as to the second question scil . whether the allegation of it as custome in london that every citizen and freeman of london may relinquish his trade wherein he hath been an apprentice by the space of seven years , and exercise another trade or no , be warrantable by the rules of law or no , insomuch that before the stat. of 5. eliz. 4. which restraineth it , it was lawful for every man to use what trade he would , although he had not been an apprentice by the space of seven years : and then it being the common law of the realm that a man might use any trade , although he had not been an apprentice for seven years , it may not be alledged by way of custome in london , but it ought to have been shewed , as the custome of the realm , for that which is the common law of the realm , is the custome of the realm ? it was answered and agreed , that as this custom was alledged in this information , the allegation of it was warrantable in the law , and it may well be said to be a custome before the stat. of 5. eliz. for first . the custome is restrained to a citizen and freeman of london , so as he that is not a citizen and freeman may not enjoy the benefit of this custome , and it being restrictive of the common law which giveth power unto all , as well freemen as citizens , to exercise what trade they will , standeth well in custome , and may well be alledged by way of custome . this is alledged to be the custome of london , and so is tyed to a particular place ; and howsoever it may be the common law of the realm in other places , yet in london , which is for the most part governed by their particular customes , it may well be said a custom , and so the plea in bar good enough , as to this exception . as to the fourth question , soil . whether the branch of the statute of 5. eliz. 4. be a repeal and controul of the custome of london concerning the exercise of a trade where he hath not been an apprentice by the space of seven years ? it was resolved that the custome of london was of force , and was not any wayes controuled by that branch . first , in regard that this being a particular custome used in london , the general words of the branch of that stat● shall not be taken to extend to the repeal of it : for so much regard is to be given unto that city , being camera regis , and as dear to him as the apple of his eye , that the customes of that place shall not be overthrown by the extent of general words , where there is no particular provision for it , might tend to a great derogation of the city , and likewise might be very prejudicial to the commonwealth , when as the ill-affectedness of this city being the chief member of this politique body , cannot but make all the other members to be partakers of thei ll disposition of it . and upon this reason it is , that before such time as the stat. of r. 2. was thought of , it was holden that the stat. de religiosis , otherwise called the statute of mortmain , made in the seventh of the reign of e. 1. which did make a general restraint from disposing of lands in mortmain , did never extend unto the repeal of the custome of london , which did enable those that were citizens and freemen of london to devise their lands in mortmain , as before . secondly , the city of london , and the custome therein used , being the example and patern which the statute of 5. eliz. in some parts of it doth require should be followed , as in that branch , wherein provision is made , that every person being an housholder , and twenty four years old at the least , dwelling or inhabiting , or which shall dwell or inhabit in a city or town corporate , and use or exercise any art , mystery , or manual occupation , shall and may yet have and retain the son of any freeman not occupying husbandry , &c. to serve . and be bound as an apprentice , after the custome and order of the city of london for seven years at the least . it seemeth that the intent of the makers of that statute , was rather to confirm ; than repeal the customes of london , for it would never make the custome of london to be the example which ought to be persued , if it had had an intention to repeal it . and by the same reason , that the custome of london shall not be comprehended within the general words of one branch of the statute , the general words of another branch shall not be extended unto them . thirdly , it is to be observed , that the statute of 5. eliz. hath a proviso , that this act , nor any thing therein contained or mentioned shall not be prejudicial or hurtful unto the cities of london and norwich or to the lawful liberties , usages , customes , or priviledges of the same cities . and howsoever it speaketh , only concerning the having or taking of apprentices , yet by the whole scope of the statute , which maketh the customes of london to be their directions in many things enacted by that statute , it appeareth , that the intent was to preserve the customes of london , and not any ways to abolish them . for it should be very mischievous to the city , and would endanger the subversion and decay of it ; if all acts of parliament by their general words should stretch to repeal the customs of london , in case where they are somewhat opposite unto the statute . fourthly , upon the matter , there must be a repeal of the statute of magna charta , cap. 9. which confirmes all the customes of london , the which shall not be done by general words in a statute , because it hath been so often-times confirmed . as to the fifth question , scil . whether the trade of an upholster be a trade restrained within the statute of 5. eliz. cap. 4. so that none can exercise it , but he that hath been an apprentice by the space of seven years ? it was agreed and resolved , that an upholster is not a trade within that stat. for first it is not a trade that is mentioned in any of the branches of the statute , howsoever in all parts of the statute there is mention made of sixty one several trades and mysteries . and if the arti●ans which at that time were assistants unto the commitees for the expressing of all manner of trades , and thought that the trade of an vpholster had been such a trade that required art and skill for the exercising of it , they would not have failed to make mention of it . secondly , there having been two former acts of parliament , that is to say , the statute of 7. h. 7. cap. 17. and 5. ed. 6. cap. 23. made concerning vpholsters , it was not necessary that mention should be made of it in this statute , and so it shall be intended that there was purposely an omission made of an vpholster , because there was sufficient provision made for him formerly . thirdly , the trade of an vpholster doth not require any art or skill for the exercising of it , inasmuch as he hath all things made to his hand , and it is only to dispose them in order after such time as they are brought to him , as the ticks of his beds he borroweth from a weaver , the frames of his beds and stooles from the joyners and turners , his iron-rods and nailes from the smith , his guilding , and setting forth and adorning of his beds and stools from the guilder and painter ; and so he is like to aesops bird , which borroweth of every bird a feather , his art resting meerly in the overseeing and disposition of such things which other men work , and in the putting of feathers into a tick , and sowing them up when he hath done , the which one that hath been an apprentice unto it but seven days is able to perform . and the intent of this statute was not to extend unto any other trades , but such as required art and skill for the managing of them : and therefore it was adjudged in the exchequer upon an information against one in the 42 , year of the reign of the late queen eliz. that a coster-monger was not a trade intended by the statute of 5. eliz. because his art was in the selling of apples , the which required no skill or experience for the exercise of it . so an husbandman , tankard-bearer , brick-maker , porter , miller , and such like trades , are not within the statute of 5. eliz. cap. 4. so as none may exercise them , but such a one that hath been an apprentice by the space of seven years ; for they are arts which require rather abillity of body than skill : but a brewer and baker are within the statute , because it concerneth the health of mens bodies to have good bread baked , and beer b●ewed , and so it is fit that they should have skil for the exercise of them . fourthly , an upholster being no such trade within the stat. of 5. eliz. as may compel one to be an apprentice unto him for the space of seven years ; for it is not mentioned within that branch that concerneth the compelling of men to be apprentices . it is not any such trade as is within that branch , which compelleth men to be apprentices for the space of seven years , before such time as they can exercise it ; for none shall be within the branch that restraineth men to exercise their trades , where they have not bin apprentices by the space of seven years ; but such as are within that other branch , to compel men to be apprentices unto them by the space of 7. years . as to the sixth question , which is ; whether the court of the mayor of london be such a court of record , as an information may be exhibited in it upon this statute of the 5. of eliz. cap 4 ? it was answered and resolved , that it was . for it is expressed by precise terms , in one of the last branches of the said statute , that the said mayor , or other head-officers of the cities or towns corporate , shall have full power and authority to hear and determine all and every offence and offences , that shall be committed or done against this statute , or against any branch thereof , as well upon indictment to be taken before them in the sessions of the peace , as upon informatio●● action of debt , or bill or complaint to be sued or exhibited by any person , and shall and may by vertue thereof make process against the defendant , and award execution , as in any other case they lawfully may by any the laws and statutes of this realm , and the presidents have been alwayes accordingly . for in the 44. year of the late queen eliz. an information was exhibited by one robinson against toby , in the mayors court of london , because he exercised the trade of a cutler ▪ where he had not been an apprentice by the space of seven years , and allowed to be well exhibited . so in the case \l = o ▪ \f one banister , and information exhibited in that court , because he had exercised the trade of a weaver , where he had not been apprentice by the space of seven years , was admitted good . as to the seventh question , which is , whether the informer may demand the moyety of the forfeitures upon this statute , because in a branch in the latter end of the statute , it is enacted , that all manner of amerciaments , fines , issues , and forfeitures , which shall arise , grow , or come by reason of any offences , or defaults mentioned in this act or any branch thereof , within any city or town corporate , shall be levied , gathered , and received by any person or persons of the same city , or town corporate , as shall be appointed by the mayor , or other head officers mentioned in this act , to the use and maintenance of the same city or town , in such case and condition as any other amerciaments , fines , issues , or forfeitures , have been used to belevied , or imployed within the same city or town corporate , by reason of any grant or charter from the queens majesty that now is , or any her graces noble progenitours , made or granted to the same city , burrough , or town corporate , any thing , or clause before mentioned or expressed to the contrary notwithstanding ? it was answered and resolved , that the informer might well demand a moyety ; for there being a former branch , that enacted , that the one half of all forfeitures and penalties expested and mentioned in this act other than such as are expresly otherways appointed , shall be to our soveraign lady the queens majesty , her heirs , and successors , and the other moyety to him or them that shall sue for the same in any of the queens majesties courts of record or before any of the jus●i●es of oyer and terminer , or before any other justices or presidents and councel before remembred , by action of debt , information , bill of complaint or otherwise : the informer may demand his moyety , by vertue of this branch ; and the subsequent branch which gives the forfeitures unto the mayor , shall be taken only of the forfeitures which are given to the queen , and not of that which is given to the informer , who is the means whereby the other moyety is brought to the mayor , and other officers . the custome of london touching forreign attachment . iohn tenant a citizen of london , is indebted fourty pound by specialty unto one other citizen of london , the which said citizen is likewise indebted unto one robert haydon , another citizen of london in fourty pounds upon a simple contract . the citizen so indebted unto haydon died intestate . thomas spink taketh letters of administration of the goods and chattels of the said intestate . tenant after the day of payment of his fourty pounds promiseth spink in consideration that he will forbear him the payment of the said fourty pounds , by the space of two months to pay to spink the said fourty pounds . spink forbeareth tenant accordingly , but the fourty pounds is not paid according to promise . afterwards the debt due by tenant , is attached in his hands according to the custome of london of forreign attachments for the debt due by the intestate unto haydon , spink bringeth his action upon the case against tenant , for not paying the 40. pounds according to his word who sheweth in his plea in bar , that the debt due by him unto the intestate was attached according to the custome of forreign attachments . and upon this plea in bar , spink demurreth in law. the questions in this case are , 1. whether this debt of the intestate being only a debt due upon a simple contract , be such a debt of which a forreign attachment may be made according to the custome of london ? 2. whether the custome of forreign attachments may hold in this case , inasmuch as by the statute made in an 31. ed. cap. the name of administrators was created , and before that statute lettars of administration were never granted ? 3. whether there being a forreign attachment of the debt due unto the intestate , after the not performing of the promise , and title of action given unto spink the plaintiff , be a dispensation with the promise , so as now the action faileth upon the promise for not paying the money . as to the first question , which is , whether for the debt , being a debt due only upon a simple contract , a forreign attachment may be used or no ? it was agreed and resolved , that a forreign attachment might well be sued for it : for by the custome of london , the executor or administrator being chargeable for a debt due by the testator , or intestate upon a simple contract , as well as upon a specialty , a forreign attachment may be sued as well for that debt , as for a debt due upon specialty . and howsoever the kings bench , or any other court of westminster , be not bound to take notice of this particular custome of london in charging the executors , or administrators upon the simple contract , nor to give judgement according to the custome yet when judgment hath been given according to that custome , and that judgement appeareth judicially unto the judges by the record : now they ought to allow the custome , and give their judgement according to that custome in affirmance of the judgment given in london . but it was agreed , that if there had not been any debt due by the intestate unto haydon ; now howsoever there had been an attachment made in london of the debt due by spink unto the intestate , and a judgement given upon it , yet might the administrator have relieved himself by way of denial , and traverse that there had been any debt due by the intestate unto haydon . as to the second question , which is , whether the custome of forreign attachments in london may hold as this case is ? it was agreed and resolved , that it may and doth well enough hold . for howsoever that none was charge able at the common law by the name of an administrator , inasmuch as by the statute of 31. ed. 3. cap. no accusation lay against an administrator by that name ; and that a custome may not commence since the making of that statute ; yet inasmuch as he was chargable at the common law as an executor for his administration so that the name of the charge is only changed , and yet in substance is all one ( for every executor is an administrator and the pleading is upon an action brought against an executor , that he never was executor , nor ever administred as an executor . and an administrator hath the quality and office of an executor . ) therefore the custom of forreign attachments will hold against an administrator , as well as against an executor . as to the third question which is , whether the forreign attachment for the debt due unto the intestate after the promise broken be such a dispensation with the promise , that no action now lieth for the administrator upon the breach of the promise ? it was agreed and resolved , that the promise was dispensed with , and no action lay upon the breach of it ; for the debt due by tenant unto the intestate ; which was the ground , and cause of the promise made unto spink : the plaintiff is taken away by the judgement had in london upon the custome of forreign attachments , et sublato fundamento fallit opus . and therefore if after the promise broken there had been a recovery had of the principal debt by the plaintiff as administrator , or otherwise , there had been a release made unto the defendant . now the action upon the case upon the promise would have failed , inasmuch as the debt , which was the consideration , and ground of the promise is gone , and so the dampnification which he should have had by not performance of the promise faileth . and agreeing to this resolution was the case of one bardeston , and humfry cited to be adjudged , whereupon an accompt , he that was found in arrearges upon a consideration of forbearance by one moneth , promiseth payment of them . and those arrerages thus due being attached in the hands of the accomptant after the promise broken ; it was held that no action might afterwards be maintained upon the breach of promise . the case concerning the prisage of wine . king edward the third in the first year of his reign doth by his letters patents bearing date the same time , grant unto the mayor and commonalty of london , that no prisage shall be of any of the wines of the citizens of london . but they shall be free , and discharged from the payment of all manner of prisage . george hanger being a citizen , and freeman of london ; and resient within the city , fraughteth four several ships with merchandize to be transported beyond the seas , the which four ships being disburdened of the said merchandize are laden with wines . two of the ships came up the thames at london , and before any unbulking of them , george hanger maketh frances hanger being his wife his executrix , and dieth . afterwards the other two ships came up to london . sir thomas waller being cheif butler of the king by virtue of letters patents made unto him , demandeth the payment of prisage of the said frances hanger for the wines in the said four ships , that is to say : to have of every of the ships one tun before the mast , and one other tun behind the mast . she denieth the payment of it ; whereupon the said sir thomas waller as chief butler exhibiteth his information into the kings bench against the said frances hanger . whereunto the said frances pleadeth a special plea in barre , shewing the whole matter as abovesaid opon which sir thomas waller demurreth in law. the questions of this case are two . the first is , whether for the wines which came up the thames in the two ships before the death of george hanger , any prisage ought to be paid unto the king or not ? the second is , whether any prisage ought to be paid for the wines , which were upon the sea in the ships before the death of the said george hanger but came not up the thames until after the death of george hanger ? the case was argued at several times by sir henry mountague knight , then recorder of london , now lord chief justice of the kings bench , thomas coventry then utter barister now solicitor general unto his majesty , and francis mingay an utter barister of the inner temple on the behalf of frances hanger and by henry yelverton then an apprentice of the law of graies-inn , and now attorney general unto his majesty , and thomas crew of the same inn likewise an apprentice of the law on the part of sir thomas waller . likewise it was argued at several times by the judges of the kings bench , that is to say , first by sir thomas fleming chief justice of the kings bench , sir christopher yelverton , sir david williams , and sir iohn crook , and afterwards by sir edward cook chief justice of the kings bench , sir iohn crook , sir iohn dodridge and sir robert houghton . and sir edward crook , sir christopher yelverton , sir david williams , and sir iohn dodridge were of opinion , that judgement ought to be given for frances hanger , against sir thomas waller ; for they conceived upon the reasons following , that no prisage ought to be paid , neither for the ships that came in after the death of george hanger , nor for the ships that came in before the death of george hanger , but they all were to be discharged of the payment of prisage by vertue of the said charter made by edward the third unto the mayor and commonalty of london . first in regard thath these wines thus in each of the four ships aforesaid , remained ( notwithstanding the death of george hanger ) to be still the wines of george hanger ; for if frances hanger the executrix were to bring an action for the recovery of them , she should bring an action as for the wines of george hanger , if frances hanger should be wained or attainted of felony or treason , those wines should not be forfeited , insomuch as they are not the wines of frances hanger , but of george hanger . if a judgement in debt or other action should be had against frances hanger as executrix of george hanger , these wines should be taken in execution as the wines of george hanger , and so these wines thus brought in before , and after the death of george hanger , continuing as yet the wines of george hanger , to be recovered as his wines , to be taken in execution as his wines , and to prevent a forfeiture , because these wines shall be said to be the wines of george hanger , whereby they may be protected , and priviledged from the payment of prisage within the words , intent , meaning of the before recited charter made by king edward the third , which pointeth rather at the wines then at the person of george hanger . secondly , in regard that frances hanger being the executrix of george hanger , is the representative person of george hanger as to these wines , so that such priviledges and immunities as george hanger was to enjoy if he had been living , the same shall frances hanger have benefit of after his death . and therefore notwithstanding frances hanger had been a nun , and so a dead person in law to all intents and purposes , yet she being made an executrix and so the representative person of the said george hanger , shall be enabled to sue , and be sued , as concerning the personal estate of the testator , so far as george hanger himself might sue , or be sued . and if frances hanger , being a neif had been made executrix now she being the representative person of george hanger , may well enough sue her lord unto whom she is a neif reguardant , or any other person whatsoever , and the being of a neif shall not be any disability unto her , as to her office of executrix-ship . the same law would have been if frances hanger had been wained and afterwards had been made executrix ; for she putting on the person of george hanger , and representing him , shall be clothed with the same priviledges and abilities as he was , and so frances hanger being enabled by the common laws of this realm , to sue , and to be sued , although she had been a nun , a neif , or a wained person , because she represented the person of george hanger whose executrix she was , shall be likewise capable of this priviledge of the payment of prisage for the wines of george hanger , as george hanger was . thirdly this charter made by king edward the third , being a charter only to discharge the citizens of london of the payment of prisage , and not a charter whereby the prisage of the citizens of london is granted unto others , shall have a liberal construction , and not be streined unto a special intent as a patent of charge shall be ; for it is evident by divers cases in our books , that frances hanger being an executrix , shall be taken to be within the remedy of an act of parliament , to discharge her self of a burden imposed upon her in respect of george hanger her testator , notwithstanding there was never so much as any mention made of her as executrix , in the act of parliament . and therefore frances hanger being an executrix , shall have an attaint upon the statute of 23. h. 8. chap. 3. to discharge her self of a false verdict given against george hanger , whereby his goods are to be charged , and yet she is not named in the act of parliament . so frances hanger being an executrix , shall have a writ of errour upon the statute of 27. el. chap. 8. in the exchequer chamber , to discharge her self of an erroneous judgement given into the kings bench against george hanger , whereby his goods are subject to an execution . likewise if george hanger be out-lawed upon a writ of cap. ad satisfaciend , awarded upon a judgement given in debt , or other personal action against him , frances hanger as executrix of george hanger , shall take advantage of a general pardon made by act of parliament in the life of george hanger , and shall be suffered to plead it , and to give satisfaction of the judgement given against george hanger , whereby she may be enabled to take benefit of the pardon ; the which being so , that frances hanger is a person capable to discharge her self of a false verdict of an erroneous judgement , of an out-lawry pronounced against george hanger her husband where the statute by precise words doth not relieve her , à fortiori shall frances hanger in the case at the bar , be enabled to discharge her self of the prisage of these wines , within the charter of edward the third . fourthly , by the same reason , that the butlarage shall be paid by the executors or administrators of an alien , for the wines brought into england , in case where the alien owner of the wines do die before such time as the ships are unladen , and way shall not be given to make an evasion to the payment of butlarge , upon an averment that the owner of the wines is dead before the unbulcking of the ships , so by the same reason prisage shall not be paid for the wines of george hanger , who dyed before such time as the ships came in ; for those wines shall continue the wines of the alien , to make his executors subject unto the payment of butlarage : so these wines shall remain the wines of george hanger , to free frances hanger his executrix from the payment of prisage . fifthly , there being nothing done in the case at the bar , to prevent george hanger whereby his wines should be made uncapable of the discharge of the payment of prisage within the charter granted by king edward the third but only the death of george hanger before the disburdening , and unlading of his ships ; and this being only the act of god , which by no power of man can be resisted , nor wit prevented , shall never turn him to that prejudice that a charge now shall be imposed upon his wines , the which ought not to have been , if george hanger had over-lived the time of breaking the bulk ; for it is a maxim , held , and a principle of the common lawes of the realm , that the act of god shall never prejudice in case where there is not any latches in the party ; and upon this reason is it that if one that is impleaded hath cause of priviledge , because he is the menial servant of the lord chancellour , he shall not be prevented of priviledge by the death of the lord chancellour , but he shall enjoy it , that death notwithstanding ; likewise it would be a great discouragement to the merchants , to hazard their own lives in fighting against the pyrates , and in being upon the seas when their deaths shall subject them to the payment of prisage . sixthly , in the case at the bar , there are four times to be observed ; the first of which is the time of the fraughting of the ships , and the sending them out of england beyond the seas ; the second is the time of the arrival of the ships , and the unlading , and disburdening of them beyond the seas , the third is the time of the lading of the ships with wines , and the returning of them for england ; the fourth is the time of the arrival at the port in england , and the unlading of them here ; and three of these times were passed in the life of george hadger when he was a member of the city , and a citizen as others are , for all the four ships , and part of the fourth time also for two of the ships ; for at the time that the ships were fraughted and sent out of england to the intent to bring in these commodities , george hanger was a citizen ; so when the ships arrived in the port beyond the seas , and unladed themselves to receive ●n the wines for which they went , he continued a citizen . likewise when the ships were laden with wines , and returning to the coasts of england , the hand of heaven had not as yet disfranchised him from being a citizen , and member of the city of london . and as to two of the ships , the said george hanger had his abode here until such time as they were in the port at london safe from being swallowed by the surging waves of the sea , secure from the surprizing of the desparate pyrates ; the which being so that three of the four times as to all the four ships were past during the time that he was a member of the city , and also part of the fourth time as to two of the ships , it is reasonable to think that these ships shall participate of immunity and priviledge , it be discharged of the payment of prisage which is granted by the charter made b● king edward the third notwithstanding that the last time was not com● before his death ; and the more especially also , because the law hath such regard unto the commencement , and beginning of a thing , and will have respect unto it , notwithstanding that there belong distance of time between the in choation , and consummation of it . an● therefore where a servant having an intention to kill his master , doth depart ou● of his service and long time after his departure out of his masters service doth kill him , that is petty treason in the servant , in regard of the retrospect which the law hath to the first intention of the servant , when he was in his masters service ; and yet if you respect the time of the murder committed , without regard had unto the first time , it cannot be petty treason , because the servant was out of his service at that time . seventhly , it is to be observed , that this charter to be discharged of the payment of prisage granted by king edward the third , was granted unto the mayor and commonalty of london , which is a body that alwayes continueth , and never dieth ; and so howsoever that george hanger , unto whom ( as unto a member of that body ) the priviledge of that charter is distributed , be dead , and cut off from that body , yet in so much that the body politique of the mayor and commonalty unto whom the charter was made liveth , the priviledge and immunity of george hanger to have his wines discharged of the payment of prisage will live , and continue in that body notwithstanding that george hanger be dead . eightly this charter being a charter made for the advancement and good of merchandize and trading ( which are as it were the blood which giveth nourishment unto the politique body of the kingdome ) is to have a favourable and benigne construction , whereby trading may be the better supported and maintained ; and the life of the state longer continued ; and therefore where king edward the third in the third year of his reign , granted unto the merchants of almagne , france and spain that they should come safely , and securely with their merchandize into england , and should be free from pontage , murag● and such other tolles , this grant was allowed to be good , and received an exposition according unto the law o● merchants , which is the law of nations ; and howsoever it would not b● good by the strict rules of the common law , because the merchant-strange● were not a corporation able to take yet it was admitted sufficient by that a●gem marcatoriam , according to whic● in some cases of merchants the judg● of the common law ought to give the judgement , wherefore in the case at the bar , this charter concerning the city of london , which is the university of merchants , and this case concerning george hanger which was a scholar trained ●● this in school , and had been matriculated in this place , the judge are to fram and give their judgement so , as the unversity and scholars of it , may receive the better encouragement to proceed and may not be disheartened to dive● their courses intended , from merchandi●ing and trading , by reason of the stri● construction of charters which giv● unto them immunities , and privledges . ninthly and lastly , this very case received formerly the resolution of three barons in the exchequer , upon an information exhibited there by sir thomas waller , that frances hanger should be discharged of prisage for the wines in all the four ships ; whereupon sir thomas discontinued his information , and exhibited it denove in the kings bench , whereby he would take the opinion of this court likewise ; and there having been former opinion conceived for the discharge of them , it is more agreeable with reason to have this opinion confirmed than opposed . but sir thomas fleming ; sir iohn crook , and sir robert haughton seemed upon the reasons hereafter ensuing , that judgement ought to be given for sir thomas waller , and that prisage ought to be paid by frances hanger , both for the wines wich were in the ships that were arrived before the death of george hanger , as likewise for the wines which were in the two ships which were upon the sea at the time of the death of george hanger ; howsoever by way of advice they wished that for the wines in the ships which were come home during his life , the payment of prisage ought not to be pressed by sir thomas waller . first , in regard the charter extendeth only to discharge the wines of such a person as is a citizen of london of the payment of prisage , and george hanger being dead , and so a citizen of the heavedly ierusalem , may not be longer said to be a citizen of london , and so not within the compass of the immunity granred by the charter . secondly this priviledge to be discharged of the payment of prisage , is in respect of the person who is the owner of the wines , and not in respect of the wines themselves and then there being a remotion of the person unto whom the exemption is tyed , there is a remotion of the exemption it self ; and therefore notwithstanding a tenant in ancient demesne , be by the common lawes of this realm to be discharged of the payment of toll in all faires , and markets , yet if the tenant in ancient demesne make his executors , and die the executors for the goods of the testator are to pay a toll , in so much , that it was only a personal priviledge which dieth together with the person . thirdly , this charter bereaving the king of the payment of prisage which is a flower of his crown , ought to have a strict construction , so as none may take benefit of it , but only such as are within the precise words of the charter ; wherefore george hanger being dead , and so no more a citizen of london , howsoever the wines in the ship may be said to be the wines of george hanger to a special intent , that is to say , for the payment of his debts , and the performance of his legacies according to his true intendment expressed in his will , yet may they not be said to be the goods of george hanger to every intent , in so much that frances hanger the executrix hath the disposition of them according to her will , and pleasure , and the poet saith , da tua dum tua sunt , nam post mortem tua non sunt ; and they not being the wines of a citizen to every intent , but only to a special intent , may not be said to be capable of the discharge of payment of prisage according to the case that hath been adjudged , that where the king by his letters patents doth grant the goods , and chattels of all felons and fugitives unto a common person , now the patentee , by vertue of this grant , may not claim the goods , and chattels of one that is a felon of himself , in so much that he is a felon only to a special intent ; and this being a flower of the kings crown , shall not pass by general words , fourthly , prisage being a thing which is not due until such time as the bulk be broken ; now forasmuch as george hanger was dead , and so was disfranchised before such time as the duty accrued , the charter shall not extend to discharge the wines in the hands of the executrix of the payment of prisage . and so having given you a taste of the opinion of the judges upon the main case : i will descend to the other matters considerable in this case , upon this charter ; and for better order and methods sake , i will divide it into the parts hereafter following , that is to say . first , what prisage is , and to whom due , the nature of it , and the diversity between butlerage , and prisage . secondly , what is the cause , and ground why the king hath prisage . thirdly at what time prisage shall be said to be due . fourthly , whether a grant , or discharge may be made by the king of prisage . fifthly , whether the charter of discharge unto the mayor and commonalty of the payment of prisage be good , when the grant is made to the mayor and commonalty , and the benefit distributed unto the natural persons and the ground of the making of this charter . sixthly , what persons shall be discharged of the payment of prisage within the words of the charter which saith , quod de vinis civium nulla prisa fiat . seventhly , what wines shall be said to be discharged of the payment of prisage within the words of the charter . as to the first , prisage is a certain duty which the king and his predecessours by themselves , or their officers by a custom ( time out of mind of man ) hath used to take for the provision of his houshold of all english merchants of all wines whatsoever , which the said english merchants bring from beyond the seas into the coasts of england . in which said description it is first observed , that it is a duty due from the subject unto his majesty , and not a voluntary gift of the subject unto the king. hereupon it is that in h. 4. 3. in the patent-roll in the tower you shall find prisage termed by the name of regia , & recta prisa ; for that it apperreineth and is due unto the king of common right ; and being a flower of his crown , may not belong unto any man else but by especial grant. secondly , it appeareth that it is called a certain duty , because it is manifestly certain , what the king shall have out of every ship , both in respect of the time when he shall take it , in respect of the place where he shall have it , and in respect of the quantity which he shall have . for as to the time when he shall take it , it is upon the breaking of the bulk of the ship , and not before ; for if a ship come into the port laden with wines , and the bulk of her is not broken , now may not prisage be demanded of her . and as to the place where the king shall take this prisage , it is ascertained by a book-case , where it is said , that the king shall take one tun behind the mast , and the other before . and as to the certain quantity which the king is to take , it is manifest by divers ancient records ; for if a ship have ten tun in her , and under the number of twenty tuns , then the king is to have one tun only ; but if the ship containeth twenty tuns and more , then the king is to have two tuns , the one to be taken behind the mad , and the other before the mast , the king paying for the portage twenty●sh , and by reason of these certainties you shall find in the patent-rolls in the tower 28. e. 1. that it is called , certa prisa . thirdly , it is to be observed that is not a duty newly encroached , for it hath by custom ( time out of mind of man ) been taken ; for the ancientest records now remaining with us do make mention of the payment of it ; for in the pat. rol. aforementioned being in the 40th year of henry the third it is spoken of ; and fleta who wrote in the beginning of e. 1. his time , hath not been silent in declaring the nature of prisage ; and in the 15. e. 2. rast all estreats sect. 22. an ordinance is made amongst other things that the butler of the king for the time being , either by himself or his deputy shall enroll the wines of prisage , how many times he hath taken them , the testimony of persons of whom the price was had , where , and when , and the customers of england shall be charged according as they are assigned for the gathering of customes within i certain bounds , that they twice yearly shall certifie the treasurer and barons how many ships have arrived within their bounds , &c. and how many ships arrived of whom the king did take prisage of wine , and how many tunnes , and in what ships the king did take twosh . for the tun. and for the other price . and in the pat. rol. extant in 20. r. 2. you may see the record speak in this manner . memorandum quod rex habet ex antiqua consuetudine de qualibet navi mercatoria applicante infra aliquem portum regni angliae duo dolia vini , &c. all which shew the antiquity of it . fourthly , it is said of all english merchants to make a difference between those that are merchants , and those that buy wines beyond the seas for their own private provision . secondly to make a distinction between the english merchants and the merchant-strangers , for merchant-strangers by a charter made unto them ( called by the name of charta mercatoria ) in the one and thirtieth year of e. 1 , his reign are discharged of the payment of prisage , in recompence , and lien of which immunity granted unto them , the merchant-strangers by way of thankful restitution granted unto the king and his successours , that he should have two sh . of every tun of wine brought in by them within fourty dayes after it is brought into the port , the which two sh . is called by the name of butlerage , because the kings chief butler by reason of his office is to receive it . and those subject of the kings who do buy wines beyond the seas for their own spending , without any intention to merchandize , ought not to pay prisage for those wines . sixthly , it is expressed of all wines brought from beyond the seas ; for that if wines should be made in england . as in times past they have been ( as it appeareth by an ancient record in windsor-castle , where it is said that the parson had ten pound for the tythe of claret-wine mad there ) and they should be transported from one port to another to be sold , no prisage shall be paid for them . lastly , it is described which hath used to be taken , and not which hath used to be paid by the owners , and merchants of the wines , and the etymology of the word importeth as much . for prisae being the latine word for prisage , hath it's name of prendere , and is no more than prizel , which is taking , and is a participle of the word prendere , which may be applied to all manner of takings ; howsoever here it is only limited to the taking of wines . as to the second part , which is what is the cause , and ground of the payment of prisage , there is not any record to be seen which manifesteth the original cause of the payment of it ; but it is probably conjectured that for as much as the king of england is king of the narrow seas , and hath been alwayes at a perpetual charge in the maintaining of ships for the defence of his merchants , and protecting of them from the cruel spoile of the pyrates , and in scouring the seas to make their passage the more secure ; therefore in recompence and satisfaction of this care , and charge , the merchants have always used ( time out of mind ) to give an allowance unto the king , and his officers for the taking of this prisage of wines for the better provision of his houshold , the which allowance , and usage being continued time out of mind , hath made it to be a duty unto the king , and likewise because the king hath used to take one tun out of ten tuns , and two tuns out of twenty tuns ( for in ancient time , the ships that went for these wines being no great voyage , were not of much greater burden ) some have conceived that this was in nature of a tythe , paid unto the king , and as the particular pastor , which ministreth spiritual things for the food of the soul , hath of right the tenth part of his clear gains due unto him : so the king in that proportion being parens patriae , and the general pastor of all his subjects , protecting their lives and goods from violent oppression upon the seas hath received , and taken the tenth part of the wines brought in . but this only conjectured , and therefore i cannot warrant it to be a sure foundation to build on . as to the third , which is , at what time prisage is said to be due . i do likewise find some doubt to be made of it ; for some judges ( unto whose learning , and judgement because of their eminent parts , and singular industry , much reverence is to be ascribed ) have been of opinion that before such time as the bulk of the ship be broken up , or that it be arrived at the english port , prisage is due , and therefore if a ship after such time as it is come up into the haven , finding that wines will not bear any price , doth before the bulk of the ship be broken , depart out of the harbour , and go back beyond the seas , and there vent those wines . the king , this notwithstanding , may require his prisage at the merchants hands ; for the narrow seas being within the alleageance of the king of england , as it appeareth by divers of our year-books , so soon as the ships come upon them , there is the duty of prisage accrued unto the king , whereof it doth not lie in the power of the merchant to defeat him ; and also the very nature of prisage being to have one tun before the mast , and one other tun behind the mast , sheweth that the king hath an election to take his tuns of wine where he will , the which may not be , if the duty of prisage should arise out of the breaking of the bulk for when the bulk is broken , how doth it appear which is the tun before the mast , and which is the tun behind the mast ? so as the king may have the election to take his prisage , as the law giveth it unto him ; and they are of opinion , that if a ship come into the port laden with wines , that the king is not to expect his prisage where the merchant will unlade his wines ; for it being a certain duty accrued unto the king upon the coming into the port , he may take it at the port , and is not bound to wait upon the merchant from one port unto another , untill he will or can unlade his ship : but the residue of the justices which argued in this case , were of opinion , that prisage is not due , until the bulk of the ship be broken ; so as that if the merchant after his arrival at the port , will go unto another port , the king may not take his prisage before such time as they come unto that port where they unlade ; and their opinion was grounded upon the reasons following , that is to say ; first , because the reason and ground of the payment of prisage , being the security which the merchants enjoy by , and through the care and charge of the king upon the narrow seas , they ought to be secured of that benefit , before such time as they shall be forced to pay the duty ; and before the breaking of the bulk of the ship , they are not ascertained of their safe conduct , insomuch that howsoever they be in the port or harbour , yet they may have cause to put out into the main again , as if they were driven in there through danger of pyrates , or violence of tempests , their cocquet shewing their course to be bent unto another place , and it is no reason that the k. should take his duty before such time as the merchant be assured of his protection . secondly , incertainties are always odious in law ; for they are the mother of confusion , whereas the law expecteth and requireth order : and if the time expressed be alwayes ambiguous , or doubtful , it is careful in the determining and setting of it down certainly ; and for the most part where it is left to her construction , she giveth the longest time for the doing of it , whereby best advantage may be given unto the party which is to do it , the which may be manifest by divers instances of cases set down in our books which i do purposely omit to avoid too much prolixity ; wherefore it being the most certain , and the most equal time both for the king and merchant to have the prisage taken when the bulk of the ship is broken ; the law , to whose construction it is left , shall rather ordain the taking of it to be then , than at any other time ; for if the law should say , that it is a duty presently upon the coming upon the narrow seas , it should say , it is a duty before such time as the merchant can assure himself they are his wines to dispose , insomuch that before the coming into harbour , they may be swallowed up by the seas , or he may be dispoiled of them by enemies unto the king , or rebels unto the state. and if the law should determine the duty to the king when the ships are safely in the harbour , there might a great inconvenience ensue upon this judgement , because it may very well be , that their course was intended to another place , and they were driven in there only by misadventure , and it would be mischievous to have the ship rifled , and their wines disordered , before they had attained unto the intended haven . thirdly , this opinion is consonant unto the judgements in former times ; for it was ruled in the case of one kenniston , and boggius , in the fifth year of his majesties reign that now is , that prisage shall not be said to be due until such time as the bulk be broken , and the ship unladen . and likewise there is a record , by which it appeareth , that the king is to have prisage of every ship bringing vvine into england and unladen thereof , so as if it be not unladen then the king by that record is not to have prisage . besides , it appeareth by the record concerning the payment of butlerage by the merchant aliens , that the king is to have there two shillings of them for every tun within fourty dayes after the unlading ; so as the law pointeth at the unlading ; wheresore this prisage differing only because the vvines are paid in specie , it shall be an argument thus far to perswade , that the law will not appoint the time of taking the wines in specie before the unlading , when it giveth for the payment of the two shillings until sourty dayes after the unlading . fourthly , it was resolved that howsoever prisage of wines is a flower of the crown , yet is it not such an inseparable flower of the crown , but that it may well enough be granted over , for it is a matter of profit and benefit which is to redound unto the king , and it is not of the nature of a purachans meerly , for that it is inseperably annexed in privity unto the person of the king , that it may not be granted over . and accordingly it was resolved in the case of sir thomas vavasor , who married one of the daughters of alderman houghton , who had a grant of the prisage made unto him . and in the 15. of e. 4. in the patent-rolls it appeareth , that one fitzherbert had a grant made unto him , and by the same reason that a grant may be made of prisage , à fortiori may there be a grant made unto certain persons to discharge them of the payment of it ; for it is easier to make one capable in point of discharge , than by way of grant , and the charter made to the merchants strangers for the discharge of the payment of prisage . and the statute of 1. h 8. cap. 5. sheweth that a charter made for the discharge of prisage , is well , and allowable , fifthly , this grant made unto the mayor and commonalty , and their successors , quod de vinis civium nulla prisa fiat , is good enough , and the grant may well enough be made unto a body politique , and the benefit of the patent distributed unto a body natural ; for patents of that nature are usual in the year-book of the common laws of this our realm , and never any exception taken unto them when there hath been less warrant in reason to make them good , then there is for this our patent which we have here in hand : for the city of london being the metropolitan city of this land , the which may well be called the heart and epitome of the whole realm , and the chamber of the king , the merchants whereof do fill the coffers of the prince by their customes , and do supply the subjects of his majesty with all manner of necessaries , do encrease the honour of their nation by their commerce , and traffique abroad , and do strengthen the whole body of it by shipping , which are termed the wooden walls . it is reason that all charters made in their favour , and giving them immunities and priviledges , should receive a benigne interpretation , and the more especially also , because at this time all merchants strangers had a charter of discharge for the payment of prisage , but only that they were to pay two shillings in the tun ; and so if the merchants of london should not have had a charter of discharge , they would have been discouraged from trading for wines , because the merchants strangers would have been able to have afforded their wines at easier rates , because they were freed of some part of that charge , which the english merchants were burthened with . sixthly , as to the declaration , what persons shall be discharged of the payment of prisage within the words of this charter , it will be the better manifested by shewing the destinctions and degrees of citizens which are to be found , for there is mention made of five manner of citizens . the first of which is , he that is a citizen of london , for the bearing of offices in the city , and such special intents , because he is a freeman of the city , but he is not a citizen in residency and continuance in the city ; for he inhabiteth and dwelleth out of the city , and such a citizen as this , is not such a citizen as shall enjoy the benefit and priviledge to be discharged of the payment of prisage , according to the resolution given in the exchequer in the case of one knolls . trin. 4. h. 6. rot. 14. where it was ruled , that one that was a citizen and freeman of london but dwelt in bristol , might not partake of the benefit of this charter , insomuch , that he by reason of his dwelling out of the city , was only a citizen to a special intent . the second sort of citizens are those which are citizens in respect of their freedome , and likewise in regard of residence within the city , but are not such citizens as do keep a family and houshold within the city , but are inmates and sojourners , and they do harbour themselves under the roof of another , and a citizen of this nature , is not a citizen which is capable of the immunity granted by this charter ; for the discharge of payment of prisage , according to the resolution given in the exchequer , in the case of one snead and sacheneril . hill. 43. eliz. rot. 22. for such a citizen is not subject to scot and lot , as he that is a housholder , et qui non sentit onus , sentire non debet commodum . the third sort of citizens are those which do inhabit , reside , and keep a family in the city , but they are not freemen of the city , so as they may be chosen in any office , and undergo the charge of the city ; and as well as the common law doth exclude such citizens for devising lands in mortmaigne unto the guild of the city , according to the custome of the city of london , as appeareth by divers book-cases , as well shall the common law exclude them from enjoyning the benefit of the charter to be discharged of the payment of prisage . the fourth sort of citizens , are those which are both citizens , and freemen , and do reside , and keep family in the city of london , and they are not continuing citizens at such time as the bulk is broken , and the ship unladen ; for they were disfranchised before . these citizens likewise shall not enjoy the exemption granted for the discharge of the payment of prisage : insomuch that they were not continuing citizens at that time as the prisage ought to be taken . the fifth sort of citizens , are those which are both citizens , and freemen , and have their families and dwelling in london , and do continue citizens at such time as prisage , ought to be taken : now citizens of this kind are the real , proper , and natural citizens intended by this charter , which are to be discharged of prisage ; and therefore a woman which is a citizen of this kind , howsoever she cannot bear offices in the city as a citize● , is yet intended by the charter : and yet also in some cases , citizens of this kind shall not be intended within the words of this charter ; and therefore if the mayor and commonalty have a joynt stock of wines come into the port of london , now prisage shall be taken of these wine , not withstanding that every of them in their proper persons citizens , both residentiâ , familiâ , and continuatione ; for respect is not to be had to their natural bodies , but to their politique body , in which capacity the charter will not extend to them . so if one at the time , that he fraughteth a ship , be not a citizen in all the degrees , now howsoever afterwards before the return of the ship he be enabled in every respect , yet he shall not enjoy the benefit of the charter , insomuch that he was not so at that time that the ship was sent abroad . seventhly and lastly , what wines shall be discharged of the payment of prisage , it will better appear by the consideration had of the several kinds of properties ; and therefore he that shall have his wines discharged of prisage ought to have a property in them , quarto modo , that is , sibi solùm & semper ; and also he ought to have jus possessionis and jus proprietatis , and the one without the other will not serve the turn ; and therefore if a citizen and forreigner be joynt merchants for wines , now the wines of these joynt merchants shall not be discharged of the payment of prisage , insomuch that the citizen hath not a sole property in them , and it may not be distingnished which of the wines belong unto the citizen , and which to the forreigner , because of their joynt interest . but if two citizens be joynt merchants or tenants in common of wines , now these wines shall be within the compass of the charter to be discharged of prisage , because they are the wines of the citizens of london , according to the words and intent of the charter ; howsoever neither of them have a sole interest and property in them . and if a citizen and freeman of london hath wines pledged unto him by another citizen and freeman . now these wines upon their coming home shall not be discharged of the payment of prisage , insomuch that the citizen hath only a special property in them , and not any absolute property . so if a forreigner that hath fraughted ships beyond the seas for the bringing of wines into england , doth make a citizen of london his executor , and die , and the ship cometh into the port ; now these wines thus in the custody of the citizen shall not be discharged of the payment of prisage , for as much as the citizen hath only a property in the wines to the use , and behoof of the forreigner , and hath not any absolute property in the wines . and if one citizen of london that hath wines abroad coming into england , do make a forreigner his executor , and dieth , and this forreign executor doth imploy the stock that cometh of these wines so returned home after the death of him that set them forth , and wines are returned home , now howsoever these last wines so returned into england are assets in the hands of the executor , and in appellation are the goods of the first citizen , yet they are such wines as are capable of the discharge of prisage within the words of , the charter , because these wines came in as it were upon a new contract . and if a citizen do buy wines with an intent that a forreigner upon their coming home shall have these wines , now these wines shall not be discharged of prisage , and this deceit of buying them by a citizen , shall not any wayes avail him , no more then if a citizen buy cloth , in london for a forreigner he shall defeat the custome of forreign bought , and forreign sold , to avoid the forfeiture of them . so the wines which a forreigner buyeth of a citizen ; or that a citizen buyeth of a forreigner , shall not be discharged of prisage within the words of the charter , because they were not the wines of a citizen alwayes , from the time of the lading of them , until the time of the unlading of them , as they ought to be . the case concerning repairing of wharfes and docks . termino sancti mich. anno regni jac. regis 7. in the kings bench. cornelius fish chamberlain of london , distreined the goods of one walter keate , for a pain assessed by the common councel of london , and all the matter appeared upon the return of the sheriffs of london , which was very long ; but to this effect : they returned the usage , and power , and custome of the city of london , to make by laws by their common councel ; and that puddle-dock neer pauls-wharfe was an ancient place for lading and unlading of ships , boats , and lighters , and that it was in decay , and that for reparation of it , it was ordained , that every ship that should be loaden and unloaden there , should pay a peny for every load ; and that every carman for every load which he should carry from thence , shoul pay a penny ; and that the said walter keate had carried divers load , w●ich according to the rate of one penny for every load , did amount to the value of ten shilling ; and that the city did grant this assessment to the chamberlain , in recompence of the charges which ●e should expend about the said reparations and upon this certificate a procedendo was wayed , and it was alledged , that ●his by law being for the benefit of the city , was good by law , and ought to be obeyed , and so it came to be debated . ( yelverton henry ) prayed , that no procedendo might be granted , because the return and the matter of it , is against the common law , the weal ●ublique , and against the liberty of the city it self . by the councel sexto iacobi it was ordained , that as well citizens , as strangers , should pay , and the king could not grant●it to the city ; son it is an imposition not allowed by the law , first against citizens ; because although the ta● may be made for the genera● good of the city , yet it cannot b● imposed or taxed upon particula● persons , but upon every house o● the city , &c. but here it is particular and personal to this part of the city . also this dock was never repaired at the general charge of the city , but by the particular war● of baynards-castle . also the citizens of london shall not pay to● in any place of england ; and her the dock stands upon the passage o● the city , and every wharfe is as ● gate of the city , and therefore they may as well impose a tax upon every one which goeth out of any of the gates of the city ( which is unreasonable , and against law as out of this wharfe . and also here is no certain profit to the city , but this taxation is farmed for one and twenty years , for ten shillings a year to the city , which if it were a general charge , there ought to come some general benefit by it to the city . it is not like to the case of cloth , co. part . 5. fol. 62. because that was for the general good of the realm , and in the furtherance of the execution of divers statutes ; but this is neither in furtherance of either statute , or common law , but rather to the prejudice of both , because every citizen , in respect of his freedome , is equal to the lord mayor . and 29. eliz. in the common pleas , it was ordained by the common councel , that none should use any sand in the city , except it were taken out of the thames , and it was adjudged to be against law , and the officer of the mayor was committed to prison . and this dock did heretofore belong to the arch-bishop of canterbury , and hath ever been free , also here the assessment is unreasonable , viz. to pay for every load a penny , especially for inhabitans about , and neer the dock ; and so he prayed that there might be no procedendo . ( crook george ) was of the same side ; and he said , that by the act of common councel it is enacted , that none shall carry , &c. so that by that ordinance none shall carry a paile of water , but he shall pay a penny for it . also the assessment is to be levied , and to continue for twenty one years together , which is unreasonable ; and it hath been adjudged here , that an assessment levied for twenty one years , for reparations of a church , was not lawful . ( mosley of grays-inne ) prayed for a procedendo , and said , that it did not appear by the return , that k●ate was a citizen , and the judges are not to meddle with any thing which is not within the return , and he said it was a good by-law , founded both upon custome and prescription ; and he put taverner and cromwells case , pasch . 16. eliz. 322. 323. dyer , where the lord of a mannor made a by-law , that no tenant should put his beast into the common , before the ringing of a bell , upon pain to forfeit twelve pence , and adjudged a good ordinance , and he cited smith and shepherds cafe , 49. eliz. where there was a prescription for through toll , adjudged to be good , because it was for maintenance of high-wayes , so here it is for the weal publique , of that part of the city , and for all the city ; and it should be a great inconvenience , that this wharfe should not pay , add that all other wharfes should pay toll , and that was one wisemans case , 42. eliz. that wharfaye by prescription is good ; and 44. elizab. in hankshead and wooas case , where toll was paid for maintenance of the walls of salisbury ; for every pack of wooll which passed by , one penny , and holden to be a good imposition ; and the case of gravesend , where there was an imposition , that every one which landed at gravesend , should pay a penny toward reparation of the bridge , and good by the better opinion of 11. h. 6. of fair and market ( walter ) was of the same side , this by law is good : first , it is not against the rules of law , nor the prerogative of the king , nor the benefit of the subfect ; for by the statute of 4. h. 7. cap. 15. 16. that the city of london is conservator of the river of thames , from stanes to yealand , in the county of kent : also by the statute of 28. h. 8. cap. it is ordained , that the river shall not be stopped , ergo this by law is for the better execution of those two acts of parliament secondly , it is a benefit to the subject , because before , none could any thing there without danger ; but now by this means the rubbish is cleansed , and a stranger shall have a quicker and safer return , and the penalty upon the cloth , in the case before cited , co. part . 5. is a stronger case then this is , because dock hath continue all need to be cleansed ; and if such a tax should be for reparations of the walls of a city , it would be good : as to the objection , he answered , that as the said case of hallage cited before , co. part . 5. so this is a general in particular , and the tax upon the cloth was to be paid to a particular person , viz. the chamberlain , as here it is , who is a general officer for the city . the case of digging of sand was not good , because thereby a man was prohibited to use his his own inheritance : commoners may make a by law , that none shall put in his beasts before such a day ; but if the by law be , that one particular man shall not put in his beasts before such a day , that would not be good ; but our case is more general , and so prayed for a procedendo . ( mountague recorder . ) if this be overthrown , all the orders and ordinance of the city should be made void , and stand for nothing ; and he said that the very objection , that a tax could not be imposed upon strangers , was made in the case of hallage before ( yelverton henry . ) the case that walter hath put for the cleansing of rubbish , &c. may be good , but there is no such thing here , but tax only for landing , & adjurnatur . the custome of london , to fine one chosen by the commons to be sheriff , and refusing to hold . richard chamberlain a citizen , and freeman of london being chosen by the commons according to the custome of london to be one of the sheriffs of the city of london , is convented before the major , and commonalty to take the office upon him , or otherwise to take his oath that he is not worth ten thousand pounds ; upon his appearance he refuseth to take the oath , and likewise to execute the office : whereupon according to the custome of london he is fined four hundred marks , and committed to prison until such time as he enter into bond unto the major and commonalty for the payment of it . he becometh bound accordingly unto the major and commonalty for payment of the said sum at a certain day , and thereupon is enlarged . the four hundred marks are not paid at the day , whereupon the mayor and commonalty affirm a plaint against him in london for the said debt . the defendant obtaineth a habeas corpus to remove the body and the cause into the kings bench , upon a supposition that he was to have the priviledge by reason of a priority of suit in the kings bench , and upon returne of the habeas corpus , all this matter appeared unto the court , and it was moved by sir henry mountague , now lord chief justice of the kings bench , then one of the serjeants of the king and recorder of london , that a procedendo might be granted , whereby the major , and commonalty might proceed against him in the court at london . it being a customary suit meerly grounded upon the custome of london . but that was denied by sir edward cook chief justice , and the whole court , because by the law , chamberlain having cause of priviledge by reason of the priority of suit against him in the kings bench , might not be re-manded ; but he was to answer in that court. whereupon the major and commonalty did declare against him upon the said obligation in the kings bench. secondly , it was moved that the action upon this obligation might be laid in some indifferent county , and not in london ; forasmuch as the trial there must be had by those that were parties unto the action , it being brought by the mayor and commonalty . but sir edward cook , and the court would not upon this surmise take away the benefit which the law giveth to every plaintiff upon a transitory action , wich is to lay it in whatsoever county he will. and if there be any such cause as is surmised , then after plea pleaded , he may make an allegation , that the city of london is a county in it self , and that all the citizens there are parties to the action which is brought , whereby there may not be an indifferent trial. and upon this surmise , the court shall order the trial to be in a forreign county . the which was done accordingly : and so the matter proceeded . the case of the merchant-adventurers . king edward the third , in the year of his reign by letters patents doth incorporate certain persons by the name of the merchants-adventurers of england , and doth give power unto them to transport white clothes into divers parts beyond the seas , restrayning them from carrying over woolls . the merchants-adventurers do trade beyond the seas and continue the transposing of clothes white until the 29. of august , in the tenth year of his majesties reign that now is . at which time the king by his letters pattents doth encorporate the earl of sussex late lord treasurer of england , sir thomas vavasour , sir stephen soam , william cockayn , and others by the name of the merchants adventerers of the new trade of london with full power & authority to transport dyed , and dressed cloths into divers parts beyond the seas , with a restraint prohibiting all the old merchants-adventurers , which did not joyn themselves unto this new company to tranport any under the forfeiture of them , and also inhibiting the new merchants from transporting any clothes but such as are died and dressed . and after three years passed , they having power during that time to transport 36000 , white clothes : and there being a refusal of the old merchants adventurers to surrender up their patent ; the king bringeth a quo warranto against divers of the merchants of the old company by particular names , to know by what warrant they do without licence of the king transport clothes white , undied , and undressed beyond the seas . the merchants upon the return of the quo warranto do make their appearance ; and an information being exhibited gainst them by sir fr. bacon knight , now lord chancellour of england and then attorney general unto his majesty , cometh into the kings bench , and moveth the court that the old merchants adventurers might have a short day the next ensuing term , to answer unto the information exhibited against them . insomuch , that the new company of merchants adventurers standing at a gaze , as being uncertain of what validity the old patent would be , did slack to transplant the diers , and other tradesmen out of the low-countries into england , being necessary instruments for the puting in execution of this design , because there were not here in england those that were able to die and dress , in that manner that the low-country men did . and so there was in the interim a stop of the current of merchandizing with our cloth , the which being the principal commodity that we had here in england ; the fleece that causeth it , may well and aptly have the term of , the golden fleece ; and there being a stop made of the traffiquing and trading with these clothes , it is as dangerous unto the politique body of the commonwealth , as the stop of a vein could be to the natural body ; for as by the stop of a vein the blood is debarred of his free passage , and so of necessity there must be a consumption by the continuance of it follow unto the body natural : so traffique being the blood which runneth in the veins of the commonwealth , it cannot be but that the hinderance of it by any long continuance , must breed a consumption unto the state of the commonwealth ; wherefore , to open this vein , which was as yet somewhat stopped , and to give a more free passage unto the blood , he was a suitor unto the court , on the behalf of the company of the new merchant-adventurers , that the court would give expedition in this case ; for they conceived , that if this new design might take its full effect , as it was intended , it could not be , but of necessity there must a great benefit redound to the commonwealth . for first , whereas our state groweth sick , by reason of the many idle persons which have not means to be set on work , this dying and dressing of cloths within our kingdome , would give sufficient imployment unto them all , whereby there should be a cure to the lazy leprosie , which now overspreadeth our commonwealth . secondly , whereas now we send out clothes white , and the low-country-men receive them of us , and dye them and dress them , and afterwards transport them unto forreign parts , making a wonderful benefit to themselves , both in point of profit , and likewise in respect of maintaining their navy ; whereas , if the clothes were died and dressed by our selves , we might reap that matter of gain , and also be masters of the sea , by strengthening our selves in our shipping . thirdly , whereas there happeneth often a confiscation of all our clothes , and much disgrace and discredit lighteth upon our nation , and our clothes , by the abuse of the low-country-men , in stretching them a greater length than they will well bear , when they dye and dress them ; now it should be prevented , when they should never have the fingering of them , to put that abuse in practice : wherefore this patent made by king edw. the 3. bereaving the king and commonwealth of these great benefits and commodities , is against the law and so ought to be repealed . and day was given accordingly to put in their plea. at which time , many of the old merchants-adventurers being willing that trial should be made , whether the benefit intended unto the commonwealth might be compassed , did shew ( to their obedience unto the king , and desire of the good of their country ) surrender up their patent into the hands of his majesty ; since which time , it being found by experience that the project had not that success which they expected , and likewise cloth and wooll lay dead , because there was no vent for them abroad : the king according to his power reserved unto him in his patent , by which he erected , and created the new company of merchants adventurers of london , did make repeal and revocation of the said new patent and new company , and did redeliver unto the old merchants their patent , confirming it , and likewise by another charter did enlarge the liberties and priviledges of the old merchants , by reason of which grace of the king , the old company of merchants-adventurers of england are reestablished in that estate wherein they formerly were , and they do now trade again , as formerly they did , to the great content of the subject , and benefit of the king and country . certifying indictments upon certioraries . iohn forner , iohn evans , and divers others , being indicted before sir thomas hayes , lord mayor of london , sir henry mountague , serjeant unto the king , and recorder of london , sir thomas lowe , and divers others by vertue of a commission granted unto them ; a certiorari was directed unto them , as justices of peace out of the kings bench , for the certifying the said indictment , upon which certiorari , no return was made ; whereupon a second certiorari was awarded unto the said commissioners , commanding them to certifie the said indictment upon a pain , upon which certiorari , a return was made in this manner : that is to say , that king h. 6. in the 23. year of his reign by his letters patents , bearing the same date , did grant unto the mayor , aldermen , and sheriffs of london , that they should not be compelled upon any writ directed unto them , to certifie the indictments themselves , taken before them , but only the tenors of them , the which they have done accordingly ; and exception being taken unto this return for the insufficiency of it ; it was resolved by sir edward cook chief justice of the kings bench , sir iohn crook , sir iohn doddridg , and sir robert haughton , that the return , upon the reasons hereafter following , was insufficient . for first , the letters patents being granted unto them by the name of the mayor , aldermen , and sheriffs of the city of london , warranteth only the not certifying of indictments taken before them , as mayor , aldermen , and sheriffs of london ; and where the writ is directed unto them by that name , and they do not excuse them , in case where the writ is directed unto them as justices of peace , and where the indictments are taken before them as justices of peace , by virtue of the kings commission . and howsoever the mayor and aldermen are justices of peace by charter , yet insomuch that they are distinct powers , return made by them by the name of mayor and aldermen , where the writ is directed unto them ( as justices of peace ) will not be good . secondly , there being a resumption made by act of parliament in 28. h. 6. whereby all lands , tenements , grants , rent , and fees granted since the first day of his reign were resumed ; the letters patents made in 23. h. 6. unto the mayor and commonalty , are annihilated and made void , and so no hold may be taken of them ; and the statute made in 1. edw. 4. cap. 1. only confirmes those priviledges not heretofore revoked and repealed by act of parliament , or otherwise ; and howsoever there be a charter made by h. 7. in the first year of his reign , whereby restitution was granted of this priviledge , yet no advantage may be taken of it , because it was not spoken of upon the return , and the court may not intend it . thirdly , the letters patents of the king being the sole ground and foundation to make the return good , are not sufficiently returned unto the court , insomuch that it was said upon the return only , that the king by his letters patents did grant unto the mayor . commonalty , and sheriffs of london , that they should not be compelled to certifie the indictments themselves ; but it doth not appear , that they were sealed with the grand seal , and if they were not sealed with that seal , the letters patents may not be of any validity in law , howsoever they were sealed with the exchequer seal , or dutchy seal , in respect of which , they may well be called the letters pattents of the king. fourthly , the use hath alwayes been to remove indictments , and the record of them upon a certiorari awarded out of the kings bench , and there was never any denial made of it before this time ; and in 5. ed. 6. where a certiorari was directed unto them for the removing of an indictment of a woman which was indicted for being a common whore , the indictment was certified in obedience unto the writ , although in the end of the return , they shewed their charter , and prayed that it might be remanded , because it was an indictment only warrantable by the custome of the city , and not by the common law : and the court was of opinion in the return at the bar , to have imposed a fine , and to have awarded a third certiorari , but it was stayed , and the second return was amended . concerning orphans portions . the custome of london is , that if any freeman deviseth and , or other legacies of goods unto an orphan , that then the mayor and aldermen have used to take the profits of the land , and to have the disposition of the legacies , until such time as the legatees shall attain unto the age of twenty one years , or otherwise , being a woman , should be married ; and if the disposition of the profits of the lands , or of the personal legacies , were declared by the testator in his will , that then the mayor and aldermen have used , time out of mind of man , to convent the person trusted by the will of the testator before them , and to compel him to find sureties for the true performance of the legacies , according to the law of the realm , and the will of the testator ; and if they refuse to find sureties , then it is lawful to imprison them until they find sureties . the widow of a freeman of london dwelling in middlesex , bequeathed a legacy of a thousand pound unto her daughter after all debts and legacies paid , and upon condition that she should not marry without the assent of her executor , and maketh a freeman her executor , and dieth . the executor is convented before the court of mayor and aldermen , and required to put in sureties unto the chamberlain of london , according to the custome for the payment of a thousand pound , according unto the time limited by the will , and according to the will aforesaid . the executor denieth to find sureties ; whereupon he was committed to prison , and a habeas corpus being awarded out of the court of kings bench , to have the body of the executor , together with the cause ; all this matter appeareth upon the return . and now it was moved by richard martin late recorder of london , then an apprentice of the law , that the return was insufficient , and so the executor ought to be enlarged . first , in regard that the ground of the imprisonment was the custome of london , and the custome is against the law , and void , insomuch that it enforceth an executor to find sureties for the payment of a legacy , according unto the will , where the law requireth , that debts be paid , before such time as legacies be performed ; and the law giveth an election unto the executor , to pay which of the legacies he will , in case there be not sufficient to pay all the debts and legacies of the testator ; but this exception was disallowed by the said court , insomuch that the custome of london appeareth by the return to be , that he shall find sureties for the performance of the legacies according unto the law of the realm , and the will of the testator : so as if the executor had not sufficient to pay debts , and legacies , he hath the same power and liberty after such time as he hath found sureties , as he had before . secondly , except on was taken , because it appeared by the return , that the devisor was a woman , and also only the wife of a freeman , and not a free-woman , and she is not within the custom of london , which only speaketh of a freeman . but this exception was over-ruled ; for a woman being a free-woman within the statute of magna charta cap. 29. which enacteth , that no freeman shall be taken or imprisoned , &c. but by the lawful judgement of his peers : so that she being a barroness or countess shall be tried by her peers upon an indictment preferred against her , she shall also be reputed a freeman within this custome . secondly , the wife of a freeman having the liberty and priviledge to trade in the city , and so able to take benefit by it , she shall also be bound by the customes of it . thirdly , howsoever she was dwelling out of london at the time of the will made , she is a freeman within the compass of the custome . fourthly , it was objected , that this custome of london concerning orphans , was an antiquated custome , and had not been put in use by many years , and therefore ought not now to be put in ure to take away the liberty of a man , and especially also , because the life of a custome is the usage ; but this exception was over-ruled , for this custome is dayly put in ure . the custome in not removing body and cause upon habeas corpus . a petition being affirmed in london , by one hill , a citizen and freeman of london , against another citizen and freeman of london , upon a bond of a hundred pound , a summons is awarded against the said obliged , and the pretext being returned , that he hath nothing whereby he may be summoned within the city , upon a surmize made by hill the obligee , that one harrington , a citizen and freeman of london , is indebted in a hundred pound unto the first obligor , a summons is awarded , according to the custome of london of forreign attachments , for the warning of harrington , who is warned accordingly ; whereupon harrington procureth a habeas corpus for the removing of his body , together with the cause into the kings bench , upon which writ , a return is made in this manner ; that is to say . that london is an ancient city , and , that time out of mind of man , the mayor , aldermen , and citizens of london have had conusans of all manner of pleas , both real and personal , to be holden before the mayor , altermen , and sheriffs of london in london , and that in no action whatsoever they ought to remove the cause out of london into any other court , and do moreover shew a confirmation made by r. 2. in the seventh year of his reign of all their customes ; and so for this cause they had not the body here , nor the cause . and exception being taken to the insufficiency of this return , it was agreed and resolved by the whole court of kings bench , that this return made , was ill ; for common experience teacheth , that the usual course is , and alwayes hath been , that upon habeas corpus , the body , together with the cause , have been removed out of london , into the kings bench ; and likewise upon certioraries awarded out of the kings bench. records have been certified out of london into that court : for justice being to be done unto the citizens of london , as well in that court , as in the 〈…〉 proper court , the court of london being an inferiour court unto the court of kings bench , where the king is supposed to sit in person , ought to yeild bedience unto the writs awarded out of that court , as the supetiour court ; but if the cause should be such , that there should be a failer of justice in the kings bench upon the removing of the cause , because it is only an action grounded meerly upon the custome of london , then a return made of the special matter will be warrantable ; or otherwise if the return be made , that the custome of london is , that no cause , which is a meer customary cause , wherein no remedy can be had but only in london , according unto the custome of london , may well be allowed , so as the cause specially be returned into the court , whereby it may appear unto the court , that it is such a cause , which will not bear action at the common law ; for it is usual in the kings bench , that if the cause returned unto the court upon the habeas corpus , appear to be such a cause as will bear an action only by the custome , and not at the common law , the court will grant a procedendo , and send it back again to london , as if the cause returned , appear to be an action of debt brought upon concesit se solvere , or to be an aaction of covenant brought upon a covenant by word , without any specialty , for these be meer customary actions , which cannot be maintained , but by the custome of london ; and therefore that shall be remanded ; for if the kings bench should retain these causes after such time as they are removed , and should not remand them , there would be failing of justice , and the judges of the kings bench in the person of the king , do say , nulli negabimus , nulli vendemus , nulli differemus justitiam : and the reteining of these causes would be a denying of justice ; wherefore they do grant a procedendo , and remand it . the case concerning payment of tythes in london . richard burrel being seized in his demesne , as of fee , of a house , called green acre , a shop , and ware-house in the parish of grace-church street london , for which house , a rent of five pound yearly hath been reserved , time out of mind , in the third year of the king that now is , by indenture doth make a lease for five years unto one withers , of part of the house , and of the shop , rendring the rent of five pound by the year , at the four usual feasts , that is to say at the feast of the annuciation , &c. by even and equal portions . and in the same indenture it is further covenanted and agreed , that withers the leassee shall pay unto burrel the leassor , a hundred & fifty pound in name of a fine and income , the which said hundred and fifty pound is to be paid in manner and form following ; that is to say , thirty pound yearly , and every year during the said term at the four usual feasts , by even and equal portions , the term of five years expired , the said burrel in the tenth year of the said king , by indenture maketh a new lease for the term of seven years , of the said part of the house , and the ware-house , unto one goff , rendring the rent of five pound by the year , at the feast of s. michael the archangel , and the annunciation of the blessed virgin mary , by even and equal portions . and in the same indenture it is further covenanted and agreed , that goff shall pay unto the said burrell 175. l. in the name of a fine and income , in manner and form following ; that is to say , twenty five pound yearly , during the said te●m , at the said two usual feasts , by even and equal portions . dunn parson of grace-church , exhibiteth his petition unto the then lord mayor of london , against the said burrel and goff , wherein he supposeth , that tythes are paid unto him only , according to the rate of five pound by the year , where in truth he ought to have an allowance according unto the rate of thirty pound by the year . the lord mayor , by the advice of his councel , doth call the said burrell and goff before him , and upon full hearing of the said cause , doth order the p●yment unto dunn , according unto the rates of five pound by the year , and not according to the rate of thirty pound by the year ; whereupon the said dunn doth exhibit his bill of appeal unto the lord chancellour of england in the chancery , wherein he doth make a recital of the decree made , and established by act of parliament , in 37. h. cap. 12. and also of the case special , as it standeth , charging the said goff and burrell with a practice of fraud and covin , in the reservation of this twenty five pound by year , by way of fine and income , and defrauding him of that which belonged unto him : the said goff and burrell do make their answer , and shew that the rent of five pound by the year is the ancient rent reserved , and that they are ready , and have often tendred the payment of their tythes , according to that proportion , but it hath been denied to be accepted , and they do take a traverse unto the fraud and covin wherewith they stand charged . and upon this answer , dunn the parson demurreth in law. and this case was first argued in the chancery by sir francis moor serjeant , and thomas crew , on the behalf of dunn ; and by sir anthony benn , late recorder of london , and iohn walter on the part of the defendants . the lord chancellour having called sir henry mountague , cheif justice of the kings bench sir henry hobart , chief justice of the common pleas ; sir iohn doddridg one of the justices of the kings bench ; and sir richard hutton , one of the justices of the common pleas , to be his assistants ; and after two arguments heard on each side in the chancery : upon suit made to the king : by sir francis bacon , then lord chancellour of england ; a special commission was granted unto thomas lord archbishop of canterbury , sir francis bacon lord chancellour of england , thomas earl of suffolk late lord preasurer of england , edward earl of warwick keeper of the privy seal , william earl of pembrook lord chamberlain of the kings houshold , iohn bishop of london , bishop of eli , sir henry mountague , sir iulius caesar , master of the rolls , sir iohn doddridg , and sir richard hutton , wherein there was a special recital of the question , and cause depending between dunn on the one part , and burrell and goff on the other part ; and power given unto them for the hearing and determining of this cause , and likewise for the mediating between the citizens of london , and the parsons of the several parishes and churches in london , and making an arbitrary end betwixt them , whereby a competent provision may be made for the ministers of the churches of london , and too heavy a burthen may not beimposed upon the citizens of london , with a command further , that they shall certifie the king what was done in the premises . and this commission was sat upon at york-house where the case was argued at several times by sir randal crew , and sir henry finch serjeants of the king , on the part and behalf of the ministers of london and by sir henry yelverton attorney of the king , and sir thomas coventry solicitor of the king , on the behalf of the citizens of london ; and because the main question remained as yet undetermined and no resolution is given either in point of law , nor arbitrary end by way of mediation : i shall only open the parts of the case , and make a summary report of them without further debate of them . the case divideth it self into six parts ( that is to say . ) first , whether any thing can be demanded by the person for houses in london , according to the course of the common law ? secondly , whether custome can establish a right of payment of any thing unto the parson for houses , and of what nature the payment established shall be ? thirdly , what was anciently payable by the citizens of london for their houses unto the ministers of london and how grew the payment ? fourthly , whether this twenty five pounds reserved upon a covenant by way of fine and income , be a rent within the words of the decree made , 37. h. 8. cap. 12 ? fifthly , whether this reservation of twenty five pounds by the year , by way of fine and income , shall be adjudged to be a rent within the intent and meaning of the statute an decree , or no ? sixthly , who shal● be judge of the tithes for houses in london ? and the remedy for the parson , in case that payment be not made unto him , according to the decree . as to the first part , which is , whether by the common law , any thing can be demanded for the houses in london ? it is to be agreed , and clear that nothing can be demanded . for that which the parson ought to demand of houses , is tythes ; and it is improper , and cannot be , that tythes can be paid of houses . first , in regard that houses do not increase , and renew , but rather decrease for want of reparations , and tythes are not to be paid of any thing , but such things as do increase , and renew ; as it appeareth by the levitical law , and the common law of the land. secondly , houses are matters of inheritance , whereof a praecipe lieth at the common law. and the rent reserved upon a lease made of them , is likewise knit unto the inheritance , and parcel of it ; so that it shall go along unto him that hath the inheriritance ; and therefore shall descend un●he heir : and it is a rule in law that tythes are not to be paid of part of the inheritance , but they ought to be paid of such things as renew ; upon which reason it is that tythes by the common law of the land are not to be paid of slate , stone , and cole digged out of the pit. thirdly , houses being built only for the receiving , habitation , and dweling of men , and for conveniency of protection against the scorching heats in summer , and tempestuous storms in winter , without any profit at all redounding unto the owner . and the parson being to have a benefit otherwise , in the payment of personal tythes arising through his industry in the house , no tythes can be demanded for the houses themselves , or for the rent reserved upon them . fourthly , the decree made 38. h. 8. which exempteth the houses of noblemen from the payment of any rate-tythes , sheweth the common law to be , so that houses of themselves are to be discharged of the payment of tythes , and accordingly it hath been adjudged in divers cases hapning at the common law : that tythes by the course of the common laws may not be demanded for houses , but they are to be discharged . as to the second point , which is , whether custom can establish a right of payment of any thing unto the pason for houses ? it is clear that it may well enough : for it may well be , that before such time as any house was built upon the ground where the house stood , there had been a summe of money paid for the profits of the ground in the name of a modus decimandi , and so howsoever the house is built upon the ground , yet the modus continues , and is not taken away by it ; and so there being a continuance of payment of the modus after the building of the house , time hath made it to be a payment for the house . but this payment is to be termed a modus decimandi , and cannot be well called a tithe paid for houses , because as it is formerly said , tithes may not be paid for houses ; and all this appeareth by doctor grants case in the eleventh report . as to the third point , which is , what was anciently paid by the citizens of london , unto the ministers of london and how the payment grew ? it appeareth by the records of london , that niger bishop of london , 13. h. 3. made a constitution in confirmation of an ancient custome formerly used time out of mind , that provision should be made for the ministers of london in this manner , that is to say , that he which payeth the rent of twenty shillings for his house wherein he dwelt , should offer every sunday , and every apostles day , whereof the evening was fasted one half-penny : and he that paid but ten shillings rent yearly , should offer but one farthing ; and all this amounted unto but according to the proportion of 2. sh . 6. d. per pound : for there were fifty two sundayes , and but eight apostles dayes , the vigils of which were fasied . and if it chanced that one of the apostles dayes fell upon a sunday , then there was but one half-penny , or farthing paid ; so that sometime it fell out to be less by some little then 2. sh . 6. d. per pound : and it appeareth by our book-cases in edward the third his reign , that the provision made for the ministers of london was by offerings and obventions , howsoever the particulars are not designed there , but must be understood according to the former ordinance made by niger , and the payment of 2. sh . 6. d. in the pound , continuing until 13. k. ric. 2. thomas arundel . arch-bishop of canterbury made an explanation of the constitution made by niger , and thrust upon the citizens of london two and twenty other saints days then were meant by the constitution made by niger , whereby the offerings now amounted unto the summe of 3. sh . 5. d. per pound ; against which explanation there being some reluctation by the citizens of london , pope innocent in 5. h. 4. granted his bull , whereby the former explanation was confirmed ; which confirmation , notwithstanding the difference between the ministers and citizens of london about those two and twenty saints dayes which were added unto their number , pope nicholas by his bull in 31. h. 6. made a second confirmation of the explanation made by the said arch-bishop : against which the citizens of london did contend with so high a hand that they caused a record to be made , whereby it might appear in future ages , that the order of explanation made by the arch-bishop of canterbury was done without calling the citizens of london unto it , or any consent given by them . and it was branded by the name of an order surrepritiously , and abruptiously gotten and therefore more fit to have the name of a destructory then a declaratory order : the which contending notwithstanding , as it seemeth the pain was most usually made according unto the rate of 3. sh . 5. d. in the pound ; for linwood , who writ in the time of k. h. 6. in his provincial constitutions debating the question , whether the merchants and artificers of the city of london ought to pay any tythes ? sheweth , that the citizens of london by an ancient ordinance observed in the said city are bound every lords day , and every principal feast-day , either of the apostles , or others whose vigils are fasted to pay one farthing for every ten shillings rent , that they paid for their houses wherein they dwelt ; and in 36. h. 6. there was a composition made between the citizens of london and the ministers of london , that a payment should be made by the citizens according unto the rate of 3. sh . 5. d. in the pound , and if any house were kept in the proper hand of the owner , or were demised withoutreservation of any rent ; then the churchwardens of the parish , where the houses were , should set down a rate of the houses , and according unto that rate and payment should be made . after which composition so made , there was an act of common councel made 14. e. 4. in london , for the confirmation of the bull granted by pope nicholas . but the citizens of london finding that by the common lawes of the realm , no bull of the pope , nor arbitrary composition , nor act of common councel could bind them in such things as concerned their inheritance ; they still wresiled with the clergy , and would not condes●end unto the payment of the said elevenpence by the year , obtruded upon them by the addition of the two and twenty saints days , whereupon there was a submision unto the lord chancellour , and divers others of the privy councel , and they made an order for the payment of tythes according unto the rate of 2. sh . 9. d. in the pound : the which order was first promulgated by a proclamation made , and afterwards established by an act of parliament made 17. h. 8. cap. 21. in confirmation of which said order there was a decree made 37. h. 8. with some further additions , the which said decree was confirmed by an act of parliament made 37. h. 8. cap. 12. so as it appeareth by that which hath been formerly said , that the first payment was only according unto the rate of 2. sh . 6. d. per pound ; afterward , the payment was increased to the rate of 3. sh . 5. d. per pound : and lastly , there was an abatement and payment made only according to the rate of 2. sh . 9. in the pound . the first payment grewby custome , the second by constitutions , and bulls of the pope ; the last by decree in the chancery . as to the fourth part , which is , whether this twenty five pounds per annum , reserved by way of sine and income , be a rent within the words of the decree , or statute , or not ? it was clearly agreed , and resolved , that it was not a rent . for it may not be said either a rent-service , rent-charge , or rent-seck ; and there are only three manner of rents , et argumentum à divisione fortissimum . secondly , it hath not the properties and qualities of a rent ; for it shall not be incident to the reversion of the house to pass , or descend with it , it shall not be extinguished by the purchase of the house not suspended by an entry in the house , nor apportioned by an eviction of part of the house . thirdly , the party himself in his indenture of lease hath called it a fine , and income , and hath expressed the days of payment for it , as a fine and income ; and therefore now it may not well be said to be a rent either in the judgement of the common laws , or ecclesiastial laws , or in common accepration . as to the fifth part which is , whether this twenty five pounds by the year , thus reserved upon a covenant by way of fine and income , be a rent within the intent and meaning of the decree made 37. k , h 8. cap. 12 ? it was conceived by those that argued on the behalf of the ministers of london , upon the reasons hereafter following that the reservation of twenty five pounds by the year , by way of income , was a rent within the meaning of the decree , and that the plaintiff ought to have the rate-tythes paid unto him , according to the proportion of thirty pounds by the year , and not according unto the rate of five pounds by the year only ; first , in regard that this fine being profit which ariseth by reason of the house , and being payable at the same times , that the first five pounds ( which without question is a rent ) is payable , and upon the same conditions may well be said a rent ; both out of the etymology of the word , by common acceptation of the thing , by the judgement both of common laws , and of the laws of the church and so is a rent within the intent of the decree ; and the nameing of it a fine , or income shall not cause an evasion out of the law. secondly , this decree , and act of parliament being made for the avail of the church , and setling of the revenue thereof ; shall have as liberal construction to give life unto the true intent and meaning of it , as may be , and the slight of payment of it , as a gross sum by way of fine and income upon a covenant made by goff the leassee , shall not defeat the good provision made by the decree . thirdly , this 2. sh 9 d. in the pound being the labourers hire , and given him in satisfaction and recompence of all manner of tythes , either personal , predial , or mixt , the decree made concerning it , ought to be extended and enlarged so far , as by reasonable exposition it may , and is not any wayes to be restrained , whereby to give way to any cautelous provision made by the party . fourthly , the common law , and statutes having all with one voice , condemned fraud , covin , and deceit used in any manner of kind or way , and bandying themselves against it , whereby to extirpate and root it out of the hearts of all ; and to prevent it from being put in ure in the actions of any man ; it is great reason in this case , which concerneth god , the church , religion , and learning , to suppress all manner of acts which may any way have a taste , or touch of fraud . wherefore this fine , or income thus reserved by way of covenant , having the appearance of fraud , shall be taken to be a rent , within the intent , and meaning of the decree ; and way shall not be given to this device , whereby to defeat the church and ministers of it of their due . but those that argued on the behalf of the citizens of london , were of opinion that this fine , and income was not within the intent and meaning of the decree ; for the decree being that the citizens and inhabitants of the city of london , and liberties of the same for the time being shall yearly for ever without fraud , or covin , pay their tythes to the parsons , vicars , curates of the said city and their successors for the time being , after the rate hereafter following ; that is , to wit , of every ten shillings rent by the year , of all , and every house , and houses , shops , warehouses , cellars , and stables within the said city , and liberty of the same , sixteen pence half-penny , and of every 20. sh . rent of all and every such house , and houses , shops , wa●houses , cellars , and stables within the said city , and liberties , 2. sh . 6. d. and so above the rate of twenty shillings by the year , ascending from ten shillings to ten shillings according to the rate aforesaid . and where any lease is , or shall be made of any dwelling house or houses , shops , warehouses , cellars , or stables or any of them , by fraud , or covin , reserving less rent then hath been accustomed , or is , or that any such lease shall be made without any rent reserved upon the same by reason of any fine , or income paid before hand or by ay fraud , or covin , that then , and in every such case the tenant or farmer ; tenants or farmers thereof shall pay his or their tythes of the same , according to the quantity of such rent , or rents , as the same house , or houses , shops , warehouses , cellars , stables , or any of them were last letten , without fraud or covin , before the making of such a lease . it appeareth that the decree aimeth at a rent , and not at a fine , or income , for within the words above mentioned , it appeareth that there is a difference , and distinction made between a fine , and an income , and the intent of the maker of the decree , is best drawn and understood by the words of the decree , wherefore the party leassee having expressed himself that this twenty five pounds by the year , shall be paid in name of a fine , and income . and the decree it self shewing that by reason of a fine , or income , less rent is reserved , it may not be said that this twenty five pounds by the year , shall be a rent within the meaning of the decree , when there is a rent of five pounds also reseserved , beside this income . secondly , this decree made in 37. h. 8. being penal unto the citizens of london , because it inflicteth imprisonment upon him , upon his non-payment of his tythe according to the rent reserved , and being also in advantage of the ministers of london because , by vertue of this decree , the minister is to have according to the rate of 2. sh . 9. d. in every twenty shillings , where anciently he had but 2. s. 6. d. it is no reason to extend it by equity , and to construe that to be a rent within the intent and meaning of the decree , which of it self is a fne , or income . thirdly , there never hauing been above the rent of five pounds by the year , reserved upon any lease made , it cannot be taken to be any covin , or collusion . when the ancient rent is reserved , insomuch , that now so much as the law requireth , is done and besides where the common law or statute law shall take notice of a fraud , it ought to be in case where the thing in which the fraud , or deceit was supposed , is formerly in being ; for a fraud may not be committed to a person , or thing not in being . fourthly , it is to be reserved , so that if no rent at all had been reserved , there might not any more have been demanded , but only according to the rate of the rent , which was last reserved for the houses ; wherefore the ancient rent of 5. l. being here reserved , it cannot be , that within the intent and meaning of the decree there can be more rate-tythes demanded , then according to that rent . and besides the very words of the decree , intimates that there is no fraud within the meaning of the decree , but only where by reason of the fine , or income , there is not rent at all reserved , or a less rent then was anciently reserved ; wheresore in the case at the barre , the old rent being reserved , there may be no fraud at all . as to the sixth , and last part , which is , who shall be judge of the payment of tythes for houses in london , and the remedy for the recovery of them ? it is apparent out of the words of the decree , that the mayor of the city of london is judge , and is to give order concerning them ; and suit is not to be made in the ecclesiastical court for them ; and if it be , a prohibition is to be granted , insomuch , that the party grieved resorteth unto another judge then the statute hath appointed . but if the mayor do not give aid within two moneths after complaint made , or do not give such aid as is fitting ; then resort is to be made unto the lord chancellour of england , who hath three moneths given him for ending of the said cause . whereunto is annexed divers ancient customs , and usages of the said city of london . newly re-printed . london , printed for abel roper at the sun against st. dunstans church in fleet-street . 1670. divers ancient customs and usages of the city of london . in plato ferre in hustings london , viz. that all the lands , tenements , and hereditaments , rents , and services within the city of london , and the suburbs of the same , are pleadable in the guild-hall within the said city , in two hust . of which , one hust . is called , hust . of a plea of land ; and the other hust . is called , hust . of common pleas , and the said hustings are kept in the guild-hall , before the mayor , sheriffs , and other of the said city , every week upon munday and tuesday , that is to say , munday to enter demands , and to award non-suits , and allow essovnes , and on tuesday to award defaults , and to plead , saving at certain times , and festival dayes , and other reasonable causes , on which times no hust . may be kept by custome of the said city . nota quod hust . of pleas of land , must be kept one week apart by it self , and the hustings of common pleas one week by it self , at the said days , yet the inrolements of the said hust . make mention only of munday . hust . of pleas of land. in hust . of a plea of land , are pleaded writs of right patent , directed to the sheriffs of london , in which writs there are such process by custome of the said city , viz. the tenant , or tenants at the first , shall have three summons to the tenants , delivered at three hust . of plea of land next following , after the livery of the writ , not demanding the tenants at any the hust , aforesaid : and after the three summons ended , three essoynes , and other three hust . of plea of land , then next following ; and at the next hust . after that three essoyns ; if the tenants make default , process shall be made against them by grand cape , or petit cape after appearance , and other process , as at the common law. and if the tenants appear , the demandants shall declare against the tenants in nature of what writ they will , except certain writs which are pleadable in the hust . of common pleas , as shall hereafter be shewed , without making protestation to sue in nature of any writ , and the tenants shall have the view , and shall be essoyned after the view , at the common law : and shall also have the tenants essoyned after any appearance by the custome of the city . and although one such writ be abated after view by exception of joyntenants or other exception dilatory , and although the same writ be restored , the tenants by the custome of the said city shall have the view in the second writ , notwithstanding the first view had ; and if the parties plead to judgement the judgement shall be given by the mouth of the recorde● , and six aldermen had wont to be present at the least , at every such judgement given ; and every beadle by advise of his ald●●man , against every hust . of pleas of land shall cause to be summoned twelve men , being freeholders of the best and most sufficient of his wa●d , to come to the guild hall , to pass an enquest if need be , if there be so many men of heritage within the same ward ; and if the parties pleading come to an enquest , then shall the enquest be taken of landed men , being freeholders of the same ward where the tenements are , and of other three wards nearest adjoyning to the place where the terants are ; so that four men of the same ward where the tenants are , shall be swo●n in the same enquest , if there be to mary . and no damages by the custome of the city are recoverable in any such writ of ●ight patent : and the ●●ques● may pass the same day by such common summons of the beadle if the parties be at issue , and the juiors do come ; otherwise process shall be 〈…〉 the jury to come at the next hust . o● pleas of ●ard by precept directed from the major to the sheriffs , and the sheriffs shall be ministers by commandement of the major to serve the writs , and do the execution of the same , albeit the original be directed to the major and sheriffs in common ; and you shall understand that as well the tenants as demandants may appoint their attorneys in such pleas. and if the demandants plead against the tenants in the nature of a writ of right , and he parties come to a jury upon the meer right , then shall the jury be taken of twenty four , in the nature of a grand assize , as alwayes the custome requireth , that six of the ward be of the jury of twenty four . and the tenants in all such writs may vouch to warrant within the said city , and also in forreign county , if the vouchers be not tenants within the same city . and if the tenants in such writs vouch to warrant in forreign county ; in this case process cannot be made against the voucher by the law of the city ; then shall the record be brought before the justices of the common pleas at the suit of the demandant , and then process shall be made against the vouchee ; and when the voucher shall be ended in the same court , then all the parol shall be sent back again into the hust . to proceed further in the plea according to the custome of the city , and certain statutes . and also if the tenants in such writ plead in bar by release , bearing date in forreign county , or forreign matter be pleaded that it cannot be tryed within the city , then the defendant shall cause the process to come into the kings court , to try the matter there where it is alleadged , as the matter is there found , the proceeding shall be sent back again into the hustings to proceed further therein , as the case requireth ; and all that time the suit shall cease in the hust . as hath been heretofore : and also it hath been heretofore accustomed that a man may say in hastings of pleas of land to have execution of judgement given in hust . in nature of scirefacias without writ . and you must note that any such summons made to the tenants in a writ of right patent is made two or three days before such hust . or the sunday next before the same hust . if erroneous judgement be given in the hustings of london before the major and sheriffs , it shall be reserved by commission out of the chancery directed to certain persons to examine the record and process . if erroneous judgement be given before the sheriffs in london , the defendant may sue a writ of error before the mayor and sheriffs in the hustings . hustings of common pleas in hust . of common pleas are pleadable writs called ex gravi querala , to have execution of the tenants out of testaments , which are enrolled of record in the hust . writs of dower , unde nihil habet , writs of gavelets of customes and services instead of cessavit , writs of error of judgment given before the sheriffs , writs of waste , writs of participatione faciend . among partners , writs of quid juris clamat & per quae servitia , and other the writs which are closed & directed to the mayor and sheriffs , and also replegiaries of for goods and distresses wrongfully taken . these are pleadable before the mayor and sheriffs , in these hust . of common pleas by plaint without writ ; and not as before , that the sheriffs are ministers to do the office of ferving these writs and replegiaries by the majors preceps directed to the same sheriffs . and the process is thus . first , in the writ of ex gravi querela , warning before hand shall be given to the tenants two or three dayes before the hust . or the sunday be o●e , as in plea of land ; and so shall be done of all other summons touching the same hust . and if warning be given and testified by the sheriffs or his ministers , the tenants may not be essoyned ; and if the tenants make default at the same warning testified ; then the grand cape shall be awarded ; and if they appear , they may be essoyned at the view . and hereupon all other process are made plainly , as is said in a writ of droit patent in the hust . in a plea of land. in a writ of dower , unde nihil habet , the tenants shall have at the beginning three summons and one essoyn after the three summons , and after these shall have the view , one essoyn and the tenant in such writ of dower shall have the view , although they enter by the husband himself demanding the same , albeit he died seized ; and also the tenants may vouch to warranty , and after be essoyn●d after every appearance ; and all other process shall be made as in a writ of right in the hust . of pleas of land aforesaid : and it the demandant recover dower against the tenant by default ●o by judgement in law in such writ or dower ; and the same wife of the demand●nt alledgeth in court of record that her husband died seized ; then the major shall command ●he sheriffs by precept , that they cause a jury of the vi●inity where the tenants l●e against the next hust . of common pleas to enquire if the husband died seized , and of the value of the ●enements and of the damages ; and 〈◊〉 recover by verdict the damages shall be enqui●ed by the same j●y . in a writ of gavi●et , the ten●nts shall have three 〈◊〉 and three essoynes , and they also shall have tha● view , they may vouch to 〈…〉 and forreign . and they shall be essoyned and shall have other exceptions , and all other process shall be made as in a writ of right , &c. but if the tenant make default after default , then the defendant shall have judgement to recover and hold for a year and a day , upon this condition , that the tenant may come within the same year and a day , then next following , and make agreement for the arrearages , and find surety , as the court shall award , to pay the rent , or the services faithfully from thenceforth , and shall have again his tenements ; and within the same year and day , the tenant may come in court by scire fac . and shall have again his tenements , doing as aforesaid ; and if the tenant come not within the year and the day , as is aforesaid , then after the year and the day , the defendant shall have a scire fac . against the tenant to come and answer , whether he can say any thing why the defendant ought not to recover the tenements quite and clearly to him and his heirs for ever ; and if the tenant come not to shew what he can say , then judgement shall be given , that the defendant shall quite recover the land for ever , according to the judgement , called shartford by custome of the same city . in a writ of waste , process shall be made against the tenants by summons , attachment , and distress , according to the statute in that behalf made ; and if the tenant come and plead , then he shall have an essoyn , and so after every appearance ; and if he make default at the grand distress , then shall commandment go to the sheriff by the mayors precept , that the sheriff shall come to the place wasted , and shall enquire of the waste and damages according to the statute , and that they return the same at the next hust . of common pleas , and the plaintiff shall recover the place wasted , and the treble damages by the statute . in a writ of error of judgement , given in court before the sheriffs in actions personal , and in assizes of novel desseizen or mortdanc . taken before the sheriffs and the mayor , shall make a warrant to the sheriffs , to cause the record and process to come at the next hust . of the pleas , and that they cause the parties to be wa●ned to hear the record , and after the record and process be in the hust . although the defendant come by warning , or make default , the errors shall be assigned , and there the judgement shall be affirmed or reserved , as the law requireth : and it is to be noted , that by custome of the same city , that when a man is condemned in debt , or attaint of damages , in any action personal before the sheriffs , and bringeth such a writ of error he which b●ingeth the writ , must before he be delivered out of prison , find sufficient sureties of men resident within the city to be bo●nd before the mayor and sheriffs to pay the money or to being in the body taken in case the judgment be affirmed ; and in like sort is to be done where damages are recovered in assize before the sheriffs and coroners . in a writ of replegiari , the process is such , that if any one take a distress or other sole thing within the said city , he which oweth the goods , may come to one of the sheriffs , and shall have a minister at the commandment of the court to go to the party that took the goods , and if he may have the view to praise them by two honest men , and then shall a plaint be made in the sheriffs paper-office in this wise . t. s. queritur versus i. l. de averus suis injuste capt. in dominio suo vel in libero tenemento suo in ●arochia sancti &c. and the same party shall then find two sufficient sureties , to sue and make return of the goods , or the p●ice thereof , in case the return be awarded , and so shall have deliverance ; and the parties shall have a day prefixed at the next hust . of common pleas , and then at the next hust . of common pleas , the sheriff shall make a bill containing all the matter and the plaint , and shall carry the bill to the same hust . and there it shall be put upon the file , and the parties shall be demonded at what day the one or the other may be essoyned of the common essoyn ; and if that day the plaintiff maketh default , return shall be awarded to the avowant , and return in such case is awardable three times by the custome of the city , and the third time not reprisable ; and at that time the avowant maketh default , then it shall be awarded , that the goods remain to the plaintiff ; viz. that the goods remain without any recovering ; and if it be that the sheriff cannot have view of the distress taken , then he shall certifie it into the said hust . and there shall be awarded the wetherum , and upon that , process shall be made ; and if the parties come , and avowry be made , and pleaded to the judgement , or to the issue of the inquest , then shall judgement be given , or process , to cause the jury to come , as the case requireth , and the parties may be essoyned after appearance ; and if the party claim property in the distress , and then certifie the same in the hust . and the process shall be made by precept made to the sheriff to try the property , &c. and although the party be essoyned of the kings service in a replegiare , and at the day that he hath by essoyn , make default ; or bringeth not his warrant , he shall not be cleared of damage . in a writ of particepat faciend to make partition between parceners of the tenants in london ; the writ closed , shall be directed to the mayor and sheriffs , containing the matter according to the form of such writ , and the parties shall be warned by precept from the mayor directed to the sheriff , and the tenants may be essoyned and if they come , they may plead their matter ; and if they make default , the writ of partition shall be awarded by default ; and every beadle of the said city , by the advise of his alderman against every hust . of common pleas , shall cause to be summoned twelve men , being free-holders , of the best and most sufficient of his ward , to come to the guild-hall aforesaid , and to pass in juries , if need be , if there be so many men landed in the said ward ; and the juries shall be taken , as before is said in the hust . of plea of land. and note , that writs of exigent are taken out of the hust . as well in hust . of common pleas , as of pleas of land , but those exigents that are taken in the one hust . are not to be sued in the other hust . and at the fifth hust . the utlaries and weyneries shall be given in full hust . before the mayor and aldermen by the mouth of their recorder ; and also all judgements which are given in the hust . shall be given in the same manner and the exigent after every hust . shall be enrolled , and sent into the chamber of the guild-hall aforesaid . and you must note , that all amerciaments incident to the said hust . pertain to the sheriffs of the said city ; and that the aldermen of london shall be su●moned to come to the hust . and oug●● by custome of the city to be summon by one of the sheriffs officers , sitti●● upon a horse of a c. s. price at least . assize of mort d'ancest . in london . the assizes of mort d' ancest . a● holden and determinable before the sheriffs and coroners of london , o● the saturdayes , from fourteen days t● fourteen days at the guild hall , for which the process is this viz. he that wil● have such assizen , shall come in the hust . or into the assembly of the mayo● and aldermen in the chamber of the guild hall , any munday , as is said in the assize of fresh force , and shall make a bil● containing the form of the assize o● mort d'ancest according to the case , an● that bill shall be enrolled , and after the common clerk shall make another b●● containing all the matters of the fin● bill , making mention of the title of the hust . or of the day of the assembly of the mayor and aldermen , and this bill shall be sent unto the sheriffs , or either o● them to serve , according to the custom ; and whi●● bill shall be served by any serjeant or other minister of the sheriffs viz. the land serjeant the wednesday next after the delivery of the bill , shall make summons to the tenants demand , by witness of two free holders , men of the city , that they be at the guild hall the saturday next following to see the recogni●ance , if they will ; against which saturday , the defendant may sue the next friday before together , and summon the jury ; and so afterwards against the saturdayes , from fourteen dayes to fourteen dayes at his will , and so may the tenants sue if they will , for their celiverance ; and the gathering of the pannels of such juries shall be done by the sheriffs and their ministers , or by the mayor and aldermen , if any of the parties will require it upon any reasonable cause , in such sort as is used in assize of fresh-force , and in such assizes of mort d'ancest . the parties may be assigned as at the common law , and the tenant may vouch to warrant within the city and also in forreign county , if the vouchee have no lands within the city , and if the tenants plead release , bearing date in forreign county , or other forreign matter that cannot be tryed within the city , or that the vouch to warrant in forreign counties , he that hath nothing within the city , then at the suit of the party , shall cause the record to come into the kings county , by writ directed to the sheriff and coroner and there shall such forreign pleas , and forreign vouchers , be tryed and determined , and sent back again to the said sheriffs and coroners , to go forward and proceed , according to the custome of the city ; and continuance shall be made in such assizes upon the causes proceeding , and upon other causes reasonable ; and when the assizes shall be determined and judgement given , then the same assizes shall be ingrossed , and entred upon record , by the said sheriffs and coroners , and afterward sent to the guild-hall to remain there of record , according to the order of assize of fresh-force , hereafter following . assizes of novel disseizen , called fresh-force in london . the assizes of novel desseizen , called fresh force of london , and tenements and rents within the city of london , of disseizins made within 40. weeks , are holden and determinable before the two sheriffs , and the coroner of the said city in common , every saturday in the guild-hall ; except certain times wherein the assize cannot be holden for reasonable cause , and the process thereof is such , viz. when any man is grieved , and that he be disseized of his free-hold within the said city , or the suburbs of the same ; he shall come to any hust . holden at the guild-hall , or for default of hust . in the chamber of the guild-hall , in the assembly of the mayor and aldermen any munday , and shall make there a bill , and the bill shall be such , viz. a de b. queritur versus ss . c. de d. de libero tenemento suo in parochia de e. in suburb . london . and the same bill shall be inrolled , and upon that shall be made another bill , containing all the matter of the first bill , by the common clark of the city , making mention of the title of hust . or of the day of the assembly of the mayor and aldermen , and then the bill shall be sent to the sheriffs , or to either of them to do process and right unto the parties , and then although the bill be served the wednesday then next following , that is to say , the minister of the sheriffs to whom the bill is delivered , shall summon the tenant or tenants named in the said bill of assize , by the view of two freemen of the city , and that of the tenants from whom the rent is supposed to be issuing , and then it shall be said to the tenants , that they keep their day at the guild-hall the saturday then following at their peril , and the names of those which are summoned , shall be endorsed upon the backside of the bill , and then may the plaintiff sue to have the assize gathered , and the jury summoned against such saturday , or against other saturday after at his pleasure , and so may the tenants sue for their deliverance , if they will , and such summons shall be made the friday before the said saturday , and the array of the pannels of the juries shall be made by the sheriffs or their ministers , or by the mayor and aldermen , if any of the parties upon reasonable cause shall require it . also the same assizes shall be pleaded and recorded for the greater party , also as elsewhere at the common law ; and if release bearing date in forreign county , bastardy , or other forreign matters which cannot be tryed within the said city , be alledged in such assizes , then the plaintiff may sue , and cause to come the record in the kings court , that the matter may be tryed , as the cause requireth ; and when the matter is there determined , the process shall be sent back to the said sheriffs and coroners , or to their successors to proceed forward before them , according to the custome , &c. and you must note , that there is no discontinuance in such assizes , neither is any mention made in the record of the dayes betwen the assizes taken , and the day that the assize shall be taken , or judgement given , if it be not by necessary cause , or that such assizes be adjourned for special causes : and when the assizes are taken before the sheriffs , and coroners , as before is said and judgement be given , then shall such assizes determined be entred of record ; and afterwards shall be carried into the chamber of the guild-hall , to remain there in the treasury upon record . and note , that no man may enter into any tenements within the said city by force , nor any tenants hold by sorce and armes in disturbance of the peace . de curia majoris london & custumis civitatis ejusdem & diversis casibus terminalibus in eadem curia . curia majoris of the said city of london , is holden by the custome of the same city before the mayor and aldermen for the time being in the chamber of the guild-hall or in hust . and that from day to day , and there are treated , determined and discussed the pleas , and matters touching orphans , apprentices , and other businesses of the same city . and there are redressed and corrected the faults and contempts of those which do against the custome and ordinance of the city , as well at the suit of the parties , as by enquest of office , and in other sort by suggestion according as the causes require ; and there they use to justifie bakers , victuallers , and , trades-men , and and to treat and ordain for the government of the city , and for keeping the kings peace and other necessary points of the city , and according as the time requireth . item the officers and ministers of the said city being found faulty , are to be cleared before the mayor and aldermen , as well at the suit of the parties by process made , as otherwise , according to the discretion of the said mayor and aldermen . item , the said mayor and aldermen use there to hold , and determine pleas of debt and other actions personal whatsoever , by bill as well among merchants , and merchants for merchandize , as also between others that will plead by process made against the parties item . the mayor and aldermen , or the mayor and chamberlain of the said city take before them in the said chamber recognizances of debt of those that will , of what summes soever . and if the day of payment be missed , then he to whom the recognizance is made out of this record , shall have execution of all the debtors goods , and of the moyety of his lands within the said city , and it is taken as at the common lawes . item , pleas of debt according to the ordinance called the suit of smithfield , are determinable only before the mayor and aldermen according as is more plainly set down in the ordinance thereupon made . item , the assizes of nusance are determinable by plaint before the mayor and aldermen , and that plaint shall be served by the sheriff the wednesday against the friday ; and then the mayor and aldermen ought to proceed in plea according to that which is set down in the act of assize and nusance in the said city . item , the mayor and aldermen have alwayes used to set down penal acts upon victuals , and for other governance of the city and of the peace , according to their discretion and advice , and proclaim the same ordinance within the said city open●y to be kept in the kings name , and of the city upon that penalty set down , and shall levie all those penalties of those which do contrary to the ordinance aforesaid . item , the mayor and aldermen have alwayes used , and may by custome of the same city cause to come before them the offenders which are taken within the said city for lies and false nuses noised abroad in disturbance of the peace makers , and counterfeiters of false seales , and false evidences , and for other notorious deceits known to them , which they shall find faulty of such malefactours by confession of the parties or by enquest , and then take them and punish them by the pillory or other chastisement by imprisonment , according to their discretion . item , the mayor and aldermen have alwayes accustomed , and may by custome of the said city , change process , abbridge delayes in actions personal as well before themselves , as in the sheriffs courts , and to make new ordinances touching personal pleas which ordinances they understand to be reasonable and profitable for the people . item , you must note that all the city of london is held of our soveraign lord the king in free burgage , & without the same city , and of all the lands and tenements , rents , and services within the same city , and the suburbs of the same , are well in reversion , as in demesne , are devisable by usage of the said city , so that men and women by usage of the same city , may devise their tenements , rents , and reversions within the said city and suburbs of the same , to those whom they will , and of what estate they will ; and they may also devise new rent to be taken of the same their tenants , in such sort as best shall seem unto them by their testament , and by their last will ; and those which are freemen of the same city , may devise their tenements to mortmain , as appeareth by the kings charter to that effect made . item , he which holdeth tenements joyntly with others , may devise that which belongeth to him , without any other separation ; but infants within age can make no devise , nor woman under covert barn , cannnot devise their tenements by leave of their husbands , nor in any other sort during the coverture , 49. 7. 325. per. cur. also the husband cannot devise tenements to his wife for any higher estate , then for term of life of his wife , neither can the wife claim any further estate , upon pain of losing the whole , neither can the husband devise the tenements in the right of his wife nor the tenements which the wife and the husband have joyntly purchased ; but if the husband and wife have tenements joyntly to them and the heirs of the husband , the same husband may devise the reversion , and all the testaments by which any tenements are divised , may be inrolled in the hust . of record , at the suit of any , which may take advantage by the same testaments , and the testaments which are so to be inrolled , shall be brought , or caused to be shewn before the mayor and aldermen in full hust . and there the said will shall be proclaimed by the serjeant , and then proved by two honest men well known , which shall be sworn and examined severally of all the circumstances of the said will , and of the estate of the testator , and of his seal ; and if the proofs be found good and true , and agreeing , then shall the same will be inrolled upon record in the same hust . and the fee shall be paid for the inrolment , and no testament nuncupative , nor other testament may be inrolled of recod , unless the seal of the party be at the same will ; but wills that may be found good and true are effectual , albeit they are not inrolled of record . item , testaments within the said city ought by custome of the same city to be adjudged effectual ; and executors have respect to the wills of the testators ; albeit the words of such wills be defective , or not accordidg to the common law. item , where reversions or rents be devised by will inrolled in the hust . of record , the same reversions and rents after the death of the testator , are so executed that those to whom such rents are devised , may distrain for the rent , and make avowry , and those in reversion may sue a writ of waste at their will , without any attornment of the tenants , and may plead by the same inrolment , if need be , although they have not the same testament , and the same custome taketh place for deeds of land inrolled in the hust . of record and such inrolments have been alwayes used so , that the wills are proclaimed and proved in full hust . as is aforesaid ; and deeds indented , and other writings sealed may be accepted , and the knowledging and confession of women may be received before the mayor and one alderman , or before the recorder and one alderman , or before two aldermen for need , as well out of the court as in , so that the same charters , indentures , and other writings so acknowledged , be afterwards entred and inrolled in any hust . and the fees paid as the order is . item , where a man hath devised by his will enrolled certain rent to be taken of his tenants within the said city without a cause of distress , yet by custome of the said city he to whom the devise is made , may distrein and avow the taking for the rent behind , and in the same sort it shall be done for amerciaments , rents called quit-rents within the said city . item , the mayor and aldermen which are for the time being , by custome of the same city shall have the wards and marrying of all the orphans of the said city after the death of their ancestours ; although the same ancestors held elsewhere out of the city , of any other lordship by what service soever ; and the same mayor and aldermen ought to enquire of all the lands , tenements , goods and chattels within the same city pertaining to such orphans , and the lands , tenements , goods and chartells within the same city , pertaining to such orphans , to seize , and safely keep to the use and profit of such orphans , or otherwise to commit the same orphans , together with their lands , tenements , goods and chatels , to other their friends , upon sufficient surety of record in the chamber of the guild-hall , in convenient sort to maintain the same orphans , during their minority , and to repair their lands and tenements , and safely to keep their goods and chattels , and to give good and true accompt before the said mayor and aldermen of all the profits of the same infants wen they come to age , or be put to a trade , or married at the advice of the said mayor and aldermen ; and that in all cases , if it be not otherwise ordained and disposed for the same orphans , and their lands , tenements , goods and chattels , by express words contained in the same wills of their ancestors ; and no such orphans may be married , without consent of the said mayor and aldermen : and in like sort , where lands , tenements , goods or chattles within the same city , are devised to a child within age , of a citizen of the same city , his father living , and the same child be no orphan , yet by custome of the same city , the said lands , tenements , goods and chattels shall be in the custody of the mayor and aldermen , as well as of an orphan , to maintain and keep the said lands , tenements , &c. to the use and profit of the said infant , and shall give good and true accompt for the same , as is aforesaid . and note , that where a citizen of the same city hath a wife and children , and dieth ( all debts paid ) this goods shall be divided into three parts , whereof the one part shall come to the dead , to be distributed for his almes , the other part shall come to his wife and the third part to his children , to be equally parted amongst them , notwithstanding any device made to the contrary ; and for the same , the wife or children , or any of them , may have their recovery and suit , to demand such goods and chartels against the executors or occupiers of the same goods and chattels , before the same mayor and aldermen by plaint . item , by ancient custome of the said city it was not lawful to any stranger or forreigner to sell victuals or other merchandizes to any other stranger , or forreigner within the same city to self again , nor to any such forreigner or stranger to sell victuals or any other merchandize within the said city by retail . item , by ancient custome of the said city of london the citizens and ministers of the same city are not to obey any commandment or seals except the commandment and seal of our sovereign lord the king immediate , neither can any of the kings officers make any seisure or execution within the said city , nor within the franchises of the same by land nor by water ( except only the officers of the city aforesaid . ) item , touching the judgements given in the sheriffs court in actions personal , or in assizes taken before the sheriffs and coroners by custome of the said city the parties against whom such judgements are given , may sue a writ of errour directed to the may or , aldermen and sheriffs to reverse the said judgements in the hust . and if the judgements be found good , yea , though the same judgements be affirmed in the hust . yet the same party may sue another writ of error directed to the mayor and sheriffs to cause the record to come before the justices assigned at saint martins le grand as hath been heretofore done . but if any party by such judgemenn given before the said sheriffs , be convict in debt or damages ; and is therefore committed to prison until he hath made agreement with the party , and afterwards pursueth a writ of error to reverse the judgement in the hust . where although the judgement be affirmed , and the same party will sue a-another writ of error to reverse the same judgement before the justices assigned at saint martins as is aforesaid , yet nevertheless the same which is so in person must not be delivered out of prison , by ancient custom of the same city by means of any such writ of error , , until he have found sufficient sureties within the said city , or laid in the money into the court to pay him that recovered the same , if in case that the judgement be afterwards affirmed . and in case that such writ of errour be sued to reverse any judgement given in the hust . before the justices assigned at saint martins le grand , and it be commanded by writ to safe keep the parties , and to cause the record , and process to come before the same justices , then shall the parties be kept as the law requireth . but no record may be sent before the same justices , but that the mayor and aldermen shall have fourty dayes , respite by appointment of the same justices after first sessions then to advise them of the said record , and of the process of the same , and at the first sessions of the justices after fourty dayes , shall the said process and record be recorded before the same justices by mouth of the recorder of the said city . and of judgements given before the mayor and aldermen in the chamber of the guild-hall , according to the law merchant no writ of error is wont to be sued . item , by ancient custome of the said city all the liberties and priviledges , and other customes belonging to the said city , are usually recorded by mouth , and not to be sent or put elsewhere in writing . item , the citizens of london by custome of the city ought not by any writ to go out of the city in any sort to pass upon an enquest . item , the wife after the death of her husband by custome of the city shall have her frank bank ; viz. a woman after the death of her husband shall have of the rents within the same city , whereof her husband died seized in fee. and in that tenement wherein the husband and she did dwell together at the time of the death of the husband , the woman shall have to her self wholly the hall , the principal chamber , and the cellar wholly ; and shall have the use of the oven , the stable , privy and yard in common , with other necessaries thereunto belonging for her life ; and at that hour that she is married , she loseth her frank bank , and her dower of the same , saving her dower of other tenements as the law requireth . item , every freeman of the said city using trade , may by custome of the same city take an apprentice to serve him , and learn him his art , and mystery , and that by indenture to be made between him and his said apprentice , which indenture shall be examined and enrolled of record before the chamberlain of the guild-hall , and such apprentice may bind himself , or his friends may put him to a trade by their indenture , if he be of convenient age , at the discretion of the chamberlain , or mayor and aldermen , if need be . and no apprentice by custome of the said city may be bound for less term then seven years , and the indenture must be enrolled within a year after the making thereof upon a certain penalty set down . and after that such apprentice hath well and sufficiently served his term , he shall be made a freeman of the said city without other redemption , whereas no other may come by the freedome without redemption , except those which are born within the said city of what country soever they be under the obeysance of out sovereign lord the king , by custome of the said city are also free by their birth , having respect to the priviledges of the freedome ; as those which have been apprentices or otherwise been made free by redemption ; and women under covert bath using certain crafts within the city by themselves , without their husbands may take maides to be their apprentices to serve them , and teach them their trade , which apprentices shall be bound by their indenture of apprentiship to the husband and the wife , to learn the wives trade as is aforesaid . and such indenture shall be enrolled as well as the other . and note , that any one having such apprentice , may sell and devise his said apprentice to whom he will being of the same trade , as well as his chattel . item , the thames-water so far as the bounds of the freedom of the city doth stretch , is parcel of the city . and the same water and every appurtenances within the said franchize , hath alwayes been governed by the same city as parcel of the same city , as well the one part of the water as the other . and the sheriffs of london for the time being , have alwayes used to do arrests and executions at the suit of the parties in the said water of thames , viz. from the east-side of the bridge of london to recolv . and from the west part of london . bridge to stanes bridge . item , the sheriffs of london ought by custome of the city to have the forseiture of all fugitives and felons goods whatsoever , as well within the said city , as the water of thames , in and of their farm which they pay yearly to the king. item , by custome of the city no attaint is maintainable nor lieth within the city . item , by ancient custome of the same city , no man dwelling within the same city , can be taken nor led out of the city by colour or claim of villenage , before the matter be discussed by order of law. item , if a freeman of the said city coming or going with merchandize elsewhere , out of the same city , be constrained to pay toll or other custome , or that his goods be arrested or carried away wrongfully without reasonable cause and not delivered again by the governour of the town when complaint in made , and it be sufficiently testified by credible men , then if afterwards the goods or merchandizes of him that did the wrong , or the goods or merchandizes of any other of the same town where the wrong was done , be found within the city of london , it is the custome at the suggestion of the property to arrest such goods and merchandizes by the officers of the city , and to detain them in the name of a withermam until agreement be made with the said freeman for his damages sustained in that behalf , except always reasonable answer be alledged by one other party . item , the citizens of london in ancient time ordained a house called the tonne in corn-hill , whereunto the constables , beadles , and other officers , and men of the city did accustome to bring trespassours of the peace , married men and women found in adultery , and chaplains , and other religious men found openly , with common women , or married women in suspicious places , and after to bring them before their ordinaries . item , the city of london hath co●usance of pleas by the kings chartes , and the use is , that no freeman of the said city shall implead another freeman of the same city , elsewhere then in the same city , where he may recover within the said city , upon pain of losing his freedome . inem , he which is mayor of london for the time shall have an hanap , o' or a golden tanker at the coronation of every king , with other priviledges belonging to the said mayor and city , at such coronation of the king by ancient custome of the same city . item , the customes is that the kings chief butler shall be chief coroner of the city of london , which coroner useth by writ to substitute another in his place , who is called coroner before whom the indictments , and appeales within the said city are taken , and in whose name the records are made ; and all the indictments , and appeals within the said city are taken before the two sheriffs and coroners joyntly ; and the juries taken for the death of any man upon view of the corps , are gathered out of the four wards neerest , and summoned by the beadles of the same wards ; and all other juries to be taken , before the sheriffs and coroners in common , ought to be taken and summoned by the sheriffs and their officers . item , heretofore where any thief in new-gate did appeal another thief being in another goale , that thief in the other goal is to be sent by writ unto new-gate to answer to the same appeal , and to be at his delivery there . and in the same sort if a thief being in another goal do appeal another being in new-gate , or any other within the said city , the same apeallated must be brought by writ to the same goale of new-gate , to maintain his said appeal . and no thief being in new-gate taken with the manner , ought to be sent elsewhere with the manner for his deliverance but only to have his deliverance , before the mayor of london , and other justices assigned for the said goal of new-gate . item , because the burrough of southwork , and place of common stewes on the other side of the water of thames , are so hurtful to the city of london , and theeves , and other malefactours are often coming thither , and many times after their thefts , and fellonies done within the said city , they fly and retire out of the same city unto the stewes , and into southwark , out of the liberties and power of the city , and remain there doing mischief , watching their time to come back and do mischief , there the officers of the said city have used always to pursue , and search such theeves and ill doers in the same stewes and town of south-wark , as well within the liberty as without , and bring them to new gate , to stay there for their deliverances , before the justices as well for open suspition , as at the suit of the party . item , the prisoners which are condemned or arrested within the said city , and are committed to prison at the suit or the party ; and afterwards are sent by writ to the exchequer or any other the kings places with their causes , the same prisoners after they are delivered in the kings court , ought to be sent to the said city to answer to the parties , and stay there for their deliverance . item , those which have tenements within the said city , shall not be sufferd to strip or waste their tenements demeasne , nor to pull them down in deforming or defacing of the city , unless it be to amend them , or build them up again , and any that doth it , or beginneth to do it , shall be punished by the mayor and aldermen for the offence , according to the custome of the city . item , if walls , penthouses , or other houses whatsoever within the said city stretching to the high street , be so weak or feeble , that the people passing by mistrust the peril of some suddaih ruine , then after it is certified to the mayor and alderman by mason , and carpenter of the city sworn , or that it be found in the wardmore that the danger is such , then the same mayor and aldermen shall cause the parties to be warned to whom the same tenements belong , to amend them , and repair them so soon as conveniently he may ; and if after such warning they be not amended , nor begun to be amended within fourty dayes then next following , then shall the said tenements be repaired and amended at the cost and charges of the said city , untill the costs be fully levied of his goods and chattels or other his tenements if ●eed be . item , if any house be found within the said city , or the suburbs of the same , covered with straw , reed , or thatch , he to whom the house belongeth , shall pay to the sheriffs for the time being fourty shillings , and shall be compelled to take away the same covering . item , if any house within the said city be burning , so that the flame of the fire be seen out of the house , he which dwelleth in the said house shall pay to the sheriffs forty shillings in a red purse . item , the mayor , aldermen and sheriffs , and all other officers and ministers of the said city are to be chosen by the same city ; viz. at the time , when the mayor should be chosen the commons of the same city shall by custome be assembled in the guild hall , and the same commons shall make election of two honest men of the said city , of whom the one shall be mayor , and the names of the said two honest men shall be carried before the mayor and aldermen which are for the time within the chamber of the guild-hall ; and then the one of them shall be chosen to be mayor by the said mayor and aldermen by way of screame , and the said mayor so newly chosen the morrow after the feast of simon and iude , shall be presented before the bacons of the exchequer at westminster , or in their absence to the constable of the tower , and afterwards shall be presented to our sovereign lord the king himself , according to the content of the charter of the said city , and the said mayor shall have the government of the said city under the king for the year following , and the said mayor shall take fifty marks a year for the of co●n and fifty marks in time of peace of the merthants of anzens , corby , and neele , according to the ancient orders thereupon made ; and every mayor shall hold his general court at the guild hall the munday after the feast of the epiphany , and then shall be assembled , all the aldermen of the same city , and all the constables , scavengers , and beadles shall be sworn anew , well and faithfully to do their office , during the time they shall be officers , and the wardmotes held by the aldermen , and the default found , shall be then delivered up by the said aldermen in writing , and the default found in the wards shall be enquired and examined , and the mayor for the time being , by custome of the same city , for maintainance of the peace , and for the quiet of the city , hath authority to arrest and imprison the disturbers of the peace , and other malefactors , for rebellions , or lewd expences , and other defaults , according to their discretion , without being appeached , or afterwards impleaded for the same . item , no mayor shall be chosen within the said city , before that he hath been sheriff of the same city a year before , item , the mayors of london which have been for the time , are accustomed to have their sword born upright before them within the said city , and without the putting the same down in the presence of any , except the king , and that sword is called the kings sword. also the sheriffs of london are chosen by custome of the said city , on st. matthews day in the guild-hall , viz , the one shall be chosen by the mayor , and the other by the commons , and the said sheriffs shall afterwards be sworn within the said guild-hall , and the morrow after st. michal , presented into the exchequer by the constable of the tower , according to the form of the charter of the city , as is aforesaid ; and the same sheriffs shall have free election of all their officers , and of their farmours and bayliffs , as well within the city as the county of middlesex , and of the goalers of the prisons within the said city at their will , and the same sheriffs pay , and are accomptants yearly to the kings exchequer , for the farm of the said city and county of middlesex , according to the form of the said city and charter ; and by reason of that farm , the said sheriffs ought to have the ancient tolls and customes of merchandizes coming into the city , and going out of the same ; and forfeitures , fines , and amerciaments , and all other commodities of ancient time belonging to their office : and no merchandizes shall pass out of the city by land nor by water , by cart , horse , nor portage by men , without a warrant sealed by the said sheriffs ; and forreigners must pay for their issue , according to the ancient custome . item , the aldermen every year are elected at the feast of st. gregory , and sworn , and presented to the mayor , and the said aldermen are chosen by men of the same ward , which aldermen ought to keep their wardmotes . item , upon the death of the alderman of any ward , the inhabitants in the ward are to chuse a new alderman for their ward , whom they think good , and are to certifie the lord mayor of their choice , who is to declare the same to the court of aldermen at their next meeting , and then to give the ward notice of their liking of the choice ; but if it be an easie and quiet ward , then by order , either the lord mayor , or eldest knight on the bench , is to have the same ward , as alderman thereof ; yet the election is in the ward absolute of themselves , whom they will chuse . the commission and articles of the ward-mote inquest , by the mayor . to the alderman of the ward . 1. vve charge and command you , that upon st. thomas the apostle next coming , you do hold your ward-mote , and that you have afore us at our general court of aldermen to be holden in the guild-hall , the monday next after the feast or the epiphany next coming , all the defaults that shall be presented afore you by inquest in the said ward-more , and the said inquest shall have full power and authority by one whole year to inquire and present all such defaults as shall be sound within your said ward , as oftentimes as shall be thought to you expedient and needful , which we will shall be once every moneth at the least . 2. and if it happen any of your said inquest to die , or depart out of your said ward within the said year , that then in place of him or them so dying or departing out of your said ward , you cause to be chosen one able person to inquire and present with the other in man and form aforesaid . 3. and that at the said general court , you give afore us the names and surnames of all them of your said ward , that come not to your said ward-more , if they be duely warned , so that due redress and punishment of them may be had , as the case shall require according to the law. 4. and that yea do provide , that at all times convenient , covenable watch be kept : and that the lanthornes with light by nightertaile in old manner accustomed , be hanged forth , and that no man go by nightertaile without light , nor with visard , on the peril that belongeth thereto . 5. and also that you do cause to be chosen , men of the most sufficient , honest , and discreet men of your said ward , to be for your said ward of the common councel of this city for the year ensuing , according to the custome in that behalf yearly used . and also that you do cause the said men so to be chosen to be of the common councel , to be sworn before you and in your presence , according to the oath for them used , and of old time accustomed , the tenor of which oath hereafter ensueth . the oath . ye shall swear , that you shall be true to our soveraign lord the king that now is , and to his heirs and successours kings of england , and readily ye shall come when ye be summmed to the common councel of this city , but if ye be reasonably excused , and good and true councel , ye shall give in all things touching the commonwealth of this city , after your wit and cunning : and that for favour of any person ye shall maintain no singular profit against the common profit of this city , and after that you be come to the common councel , you shall not from thence depart until the common councel be ended without reasonable cause , or else by the lord mayors license . and also , any secret things that be spoken or said in the common councel which ought to be kept secret , in no wise you shall disclose as god you help . and that together with the said oath of their office , you administer to the said persons that shall be chosen of the common councel , the oaths of supremacy and allegiance , and the other oath hereafter following . i a b do utterly testifie and declare in my conscience that the kings highness is the onely supream governour of this realm ; and of all other his highnesses dominions and countries , as well in all spiritual or ecclesiastical things or causes as temporal ; and that no forreign prince , person , prelate , state or potentate , hath or ought to have any iurisdiction , power , superiority , preheminence , or authority , ecclesiastical or spiritual within this realm : and therefore i do utterly renounce and forsake all forreign iurisdictions , powers , superiorities and authorities , and do promise that from henceforth , i shall bear faith and true allegiance to the kings highness , his heirs and lawful successours , and to my power shall assist and defend all iurisdictions , priviledges , preheminences and authorities , granted or belonging to the kings highness , his heirs and successours , or united and annexed to the imperial crown of this realm . so help me god , and the contents of this book . i ab do truely and sincerely acknowledge , profess , testifie and declare in my conscience before god and the world , that our soveraign lord king charles is lawful and rightful king in this realm , and of all other his majesties dominions and countries : and that the pope , neither of himself , nor by any authority of the church or see of rome , or by any other means with any other , hath any power , or authority to depose the king , or to dispose any of his majesties kingdomes , or dominions , or to authorizo any forreign prince to invade or annoy him or his countries , or to discharge any of his subjects of their allegiance and obedience to his majesty , or to give license or leave to any of them to bear arms , raise tumults , or to offer any violence or hurt to his majesties royal person , state or government , or to any of his majesties subjects within his majesties dominions . also i do swear from my heart , that notwithstanding any declaration or sentence of excommunication or deprivation made or granted , or to be made or granted by the pope , or his successours ; or by any authority derived , or pretended to be derived from him or his see , against the said king , his heirs or successours , or any absolution of the said subjects from their obedience ; i will bear faith and true allegiance to his majesty his heirs and successours , and him and them will defend to the uttermost of my power , against all conspiracies and attemps whatsoever , which shall be made against his and their persons , their crown and dignity , by reason or colour of any such sentence or declaration , or otherwise ; and will do my best endeavour to disclose , and make known unto his majesty , his heirs and successours , all treasons and traiterous conspiracies , which i shall know , or hear of to be against him or any of them . and i do further swear , that i do from my heart abhor , detest and abjure , as impious , and heretical , this damnable doctrine and position , that princes which be excommunicated or deprived by the pope , may be deposed or murthered by their subjects or any other whatsoever , and i do beleive , and in conscience am resolved , that neither the pope , nor any person whatsoever hath power to absolve me of this oath , or any part thereof , which i acknowledge by good and full authority to be lawfully administred unto me , and do renounce all pardons and dispensations to the contrary . and all these things i do plainly and sincerely acknowledge and swear , according to these express words , by me spoken , and according to the plain and common sense and understanding of the same words without any equivocation or mental evasion , or secret reservation whatsoever ; and i do make this recognition , and acknowledgement heartily , willingly and truely , upon the true faith of a christian . so help me god , &c. i. a. b. do declare and believe that it is not lawful , upon any pretense whatsoever to take arms against the king ; and that i do abhor that traiterous position , of taking arms by his authority against his person , or against those that are commissioned by him . so help me god. and farther , that you likewise administer to the same persons that shall be so elected of the common council , to be by them subscribed , the ensuing declaration . i. a. b. do declare , that i hold there is no obligation upon me or any other person from the oath commonly called the solemn league and covenant . and that the same was in it self an unlawful oath , and imposed upon the subjects of this realm against the known laws and liberties of the kingdome . for that otherwise , if the said persons , or any of them , that shall be elected as aforesaid of the common council shall not take the said oaths , and subscribe the said declaration , their election and choice is by the late act of parliament , for the governing and regulating of corporations , enacted and declared to be void . 6. and that also in the said wardmote , you cause to be chosen certain other honest persons to be constables , and scavengers , and a common beadle , and a raker to make clean the streets and lanes of all your said ward , according to the custome yearly used in that behalf , which constables have , and shall have ful power and authority to distrein for the sallery and quarterage of the said beadle and raker , as oftentimes as it shall be behind unpaid . 7. also , that you keep a roll of the names , sur-names , dweling-places , professions and trades of all persons dwelling within your ward , and within what constables precinct they dwell , wherein the place is to be specially noted by the street , lane , alley , or sign . 8. also that you cause every constable from time to time to certifie unto you , the name , sur-name , dwelling-place , profession , and trade of every person who shall newly come to dwell within his precinct , whereby you may make and keep your roll perfect : and that you cause every constable for his precinct to that purpose to make and keep a perfect roll in like manner . 9. also , that you give special charge , that every inholder , and other person within your ward , who shall receive any person to lodge or sojourn in his house above two dayes , shall before the third day after his coming thither , give knowledge to the constable of the precinct where he shall be so received , of the name , sur-name , dwelling-place , profession , and trade of life , or place of service of such person , and for what cause he shall come to reside there : and that the said constable give present notice thereof to you : and that the said inholder lodge no suspected person , or men or women of evil name . 10. also that you cause every constable within his precinct , once every month at the farthest , and oftner if need require , to make diligent search and inquiry , what persons be newly come into his precinct to dwell , sojourn , or lodge : and that you give special charge that no inholder or other person , shall resist or deny any constable , in making such search or inquiry , but shall do his best endeavour to aid and assist him therein . 11. and for that of late there is more resort to the city , of persons evil affected in religion , and otherwise than in former times have been : you shall diligently inquire if any man be received to dwell or abide within your ward by the space of one year , being above the age of twelve years , and not sworn to be faithfull and loyal to the kings majesty , in such sort as by the law and custom of the city he ought to be . 12. to all these purposes the beadle of every ward shall imploy his diligence , and give his best furtherance . 13. also that you have special regard that from time to time , there be convenient provision for hooks , ladders , and buckets , in meet places within the several parishes of your ward , for avoiding the peril of fire . 14. also that the streets and lanes of this city be from time to time kept clean before every church , house , shop , ware-house , door , dead wall , and in all other common passages and streets of the said ward . 15. and where by divers acts of common-councel , aforetime made and established for the common-weal of this city , amongst other things it is ordained and enacted , as hereafter ensueth . also it is ordained and enacted , that from henceforth no huckster of ale or beer , be within any ward of the city of london , but honest persons , and of good name and fame , and so taken and admitted by the alderman of the ward for the time being , & that the same hucksters do find sufficient surety afore the maior and alderm . for the time being , to be of good guiding and rule : and that the same hucksters shall keep no bawdry , nor suffer no lechery , dice-playing , carding , or any other unlawfull games , to be done , exercised , or used within their houses : and to shut in their doors at nine of the clock in the night from michaelmass to easter , and from easter to michaelmass at ten of the clock in the night , and after that hour sell none ale or beer . and if any huckster of beer or ale after this act published and proclaimed , sell any ale or beer within any ward of the city of london , and be not admitted by the alderman of the same vvard so to do , or find not sufficient surety as it is above rehearsed , the same huckster to have imprisonment , and make fine and ransome for his contempt , after the discretion of the mayor and aldermen : and also that the said hucksters suffer no manner of common eating and drinking within their cellers or vaults contrary to the ordinance thereof ordained and provided , as in the said act more plainly appeareth at large : we charge you that you do put the same in due execution accordingly . 16. and also that ye see all tiplers and other cellars of ale or beer , as well of privy osteries , as brewers and inholders within your ward , not selling by lawful measures sealed and marked with the city arms or dagger be presented , and their names in your said indentures be expressed , with defaults , so that the chamberlain may be lawfully answered of their amerciaments . 17. and also that you suffer no alien or son of any born an alien to be of the common councel , nor to exercise or use any other office within this city , nor receive or accept any person into your watch , privy or open , but englishmen born : and if any stranger born out of this realm , made denizen by the kings letters patents , or any other after his course and lot be appointed to any watch , that then ye command and compel him or them to find in his stead and place one englishman to supply the same . 18. and also , that you cause an abstract of the assize appointed by act of parliament , for billets and other fire-wood to be fair written in parchment , and to be fixed or hanged up in a table in some fit and convenient place in every parish within your ward , where the common people may best see the same . 19. and furthermore we charge & command you , that you cause such provision to be had in your said ward , that all the streets and lanes without the same ward , be from time to time cleansed and cleerly voided of ordure , dung , mire , rubbish and other filthy things whatsoever they be , to the annoyance of the kings majesties subjects . 20. and also that at all times as you shall think necessary , you do cause search to be made within your said ward , for all vagarant beggars , suspitious and idle people , and such as cannot shew how to live , and such as shall be sound within your said ward , that you cause to be punished and dealt with according to the laws and the statute in such case ordained and provided . 21. and also we will and charge you the said alderman , that your self certifie and present before us , at the same general court to be holden the aforesaid monday next after the feast of epiphany , all the names and surnames truely written of such persons within your said ward , as be able to pass in a grand jury by themselves : and also all the names and sur-names truly writen of such persons , being and dwelling within your said ward , as be able to pass in a petty jury , and not able to pass in a grand jury by themselves , that is to say every grand jury man to be worth in goods an hundred marks , and every petty jury man forty marks , according to an act in that case made and provided : and the same you shall indorce on the backside of your indenture . 22. item , for divers reasonable and urgent considerations , us especially moving , we straightly charge and command you on the king our soveraign lords behalf , that you diligently provide and foresee , that no manner of person or persons within your said ward , of what condition or degree soever he or they be of , keeping any tave●n or alehouse , ale cellat , or any other victualing house or place of common resort to eat and drink in , within the same ward permit , or suffer at any time hereafter any common women of their bodies , or harlots to resort and come into their said house , or other the places aforesaid , to eat or drink , or otherwise to be conversant or abide , or thither to haunt or frequent , upon pain of imprisonment , as well of the occupier and keeper of every such house or houses , and all other the places afore remembred , as of the said common women , or harlots . 23. also , that you do give in charge to the ward-more inquest of your ward , all the articles delivered to you herewith . and that you have a special care of keeping the peace and good order during your ward-mote , and if any offend herein , you fine or punish him and them according to law. not failing hereof , as you tender the common weal of this city , and advancement of good justice , and as you will answer for the contrary at your uttermost peril . an act for the reformation of divers abuses , used in the ward-mote inquests . vvhereas the ward-more inquests , within the several wards of this city , for the maintenance of honesty , vertue , and good living and for the abolishment , exciling , and suppressing of all kind of vice , evil rule and iniquity , according to the ancient , lawdable lawes and customes of the said city , are yearly severaly charged and sworn , upon the day of st. thomas the apostle , before the aldermen of the said wards chiefly and principally to the end and incent , that they with all diligence should truly and duely inquire and present all such enormities , nusances , misorder and offences , as are , or at any time within the space of one whole year , then next ensuing , shall be severally used , committed , or done within the said wards , and have day yearly to make their said presentments , until the monday next after the feast of the epiphany . the said inquests heretofore , little or nothing at all regarding ( as it is very manifest & not unknown , the more is the pitty ) their said oaths , or yet the great commodities , utility , quietness , honour , and worship , that might or should grow and insue to the said city and inhabitants of the same , through their good , industrious , and indifferent proceedings , for the advancement of vertue , and repressing of vices , have drawn it in a manner into a very ordinary course and common custome , to consume and spend a great part of their said time , that they have yearly given unto them , when they receive their said charge partly in setting up among themselves , a certain commons ; and making and keeping many costly and sumptuous dinners suppers , and banquets , inviting and calling to the same at sundry times , in a manner all the inhabitants of the said several wards , to the no little charges of the same inhabitants , and partly in passing and occupying much part of the same time in playing at dice , tables , cards , and such other unlawful games both to the great costs , charges , and expences , of the said inquests ( whereof the greater part most commonly are but poor men ) and also to the very lewd , pernitious , and evil example of all such as have any access or recourse unto the same inquests . and where also the said inquests have of late usurped to dispense with such persons as they by their search , and otherwise , have founden to offend and transgress the laws , in using and occupying of unlawful weights and measures taking of the said offendors certain fines ( as it is said ) the said inquests have commonly used to imploy toward the maintenance of their said feasting and banqueting , directly against the due order of our soveraign lord the kings laws , and the publick wealth of all his highness subjects within the said city and much to the reproach and dishonour of the same city . for remedy and reformation thereof , be inordained , enacted , and established by the lord mayor , aldermen , and commons , in this present common councel assembled , and by authority of the same , that all and every the wardmore inquests of the said city , from henceforth to be yearly charged and sworn within the several wards at the time afore rehearsed , shall at all times and places meet and convenient for the due execution of their said charge , meet and assemble themselves together , and that they and every of them after their said meetings , inquisition , and treating of their said necessary matters , shall go home to their own several houses to breakfast , dinner , and supper , duting all the said accustomed time of their charge and session abovesaid . and that none of the said inquests shall from henceforward set up any manner of commons , or keep or maintain any manner of dinners , suppers , or banquets among themselves , or use at their said assemblies and sessions , any of the games above mentioned , or any other whatsoever unlawful games or playes at any time , before the giving up of the said presentments , at the time above remembred . or shall take or receive any manner of fine or fines , for the concealment and discharging of any of the offences afore recited : but truly present the same offences , and every of them , according to their oaths , upon pain of imprisonment by the discretion of the lord mayor and aldermen of the said city for the time being . provided always and be it enacted by the authority aforesaid , that it shall be lawful for all and every of the said inquests , to take and receive towards the charges of their fire and candles , and other necessaries during the time of their said session , all and every such sums of money , as any honest person or persons of their free will and benevolent mind , will give and offer unto them : and when they have made their said presentments , to go and assemble themselves together , for their recreation and solace , where they shall think it good : and there not only to bestow and spend the twenty shillings , which every alderman within his ward according to a certain order lately taken , shall yearly give unto them at the time of the delivery of their said presentments , towards their said charges in this behalf , but also the residue of the said money received and gathered , as it is aforesaid , of the benevolence of their said loving friends , if any such residue shall fortune to remain . any clause or article in this present act contained to the contrary notwithstanding . not failing hereof , as ye tender the common weal of this city , and advancement of good justice , and as ye will answer for the contrary at your uttermost peril . the articles of the charge of the ward-mote inquest . 1. ye shall swear , that ye shall truly inquire if the peace of the king our soveraign lord be not kept as it ought to be , and in whose default , and by whom it is broken or disturbed . 2. also , if there dwell any man within the ward , that is outlawed or indited of treason , or fellony , or be any receiver of traitors or fellons . 3. also , ye shall inquire and truly present all the offences and defaults done by any person or persons within the river of thames , according to the intent and purport of an act made by our late soveraign lord king edward the sixth , in his high court of parliament , and also of divers other things ordained by act of common councel of this city , for the redress and amendment of the said river which as now is in great decay and ruine , and will be in short time past all remedy if high and substantial provision and great help be not had with all speed and diligence possible : as more plainly appeareth in the said act of parliament , and the said act of common councel of this city . 4. also , if any manner of person make congregation , or be receiver or garherer of evil companies . 5. also if any man be a common riotor , or a barrator walking by nightertale without light , against the rule and custome of this city . 6. also , if there be any man within this ward that will not help , aid , ne succour the constables , beadle , and other ministers of this city in keeping of the peace , and arrest the evil dooers with rearing of hue and cry. 7. also , if there be any huckster of ale and beer , that commonly useth to receive any apprentices , servants , artificers or labourers , that commonly use to play at the dice , cards , or tables , contrary to the form of the statute in that case ordained and provided . 8. also , if there be any inholder , taverner , brewer , huckster , or other victualer , that hold open their houses after the hour limited by the mayor . 9. also , if any parish clark do ring the bell called the curfue bell , after curfue rungen at the churches of bow , barking church , saint brides , and saint gile's without cripplegate . 10. also , ye shall inquire if any putour , that is to say , man-baud , or woman-baud , common hazerdours , contectour , maintainer of quarrels , champartours , or embracers of inquests , or other common misdoers be dwelling within this ward , and present their names . 11. also , if any baud , common strumpet common adulterer , witch , or common scold be dwelling within this ward . 12. also , if there be any house , wherein is kept and holden any hot-house , or sweating-house , for ease and health of men to the which be resorting or conversant any strumpers , or women of evil name , or fame , or if there be any hothouse or sweating ordained for women , to the which is any common recourse of young men , or other persons of evil fame and suspect conditions . 13. also , if there be any such persons that keep or hold any such hot-houses , either for men or women , and have found no surety to the chamberlain for their good and honest behaviour according to the laws of this city , and lodge any manner of person by night contrary to the ordinance thereof made by the which he or they shall forfeit o● twenty pounds to the chamber if they do the contrary . 14. also , if any manner of person cast or lay dung , ordure , rubbish , seacole-dust , rushes , or any other thing noiant , in the river of thames , walbrook , flett , or other ditches of this city , or in the open streets , ways or lanes , within this city . 15. also , if any person in or after a great rain falleth , or at any other time sweep any dung , ordure , rubbish , rushes , seacole-dust , or any other thing noyant , down into the channel of any street or lane , whereby the common course there is let , and the same things noyant driven down into the said water of thames . 16. also , if any manner of person nourish or keep hogges , oxen , kine , ducks or any beasts within this ward , to the greivance and disease of their neighbours . 17. also , where afore this time it is ordained and enacted as hereafter followeth . item , for to eschew the evils of misgoverned persons that dayly when they be indebted in one ward , fly into another : it is ordained by the mayor and aldermen that as soon as a man or woman suspect , first do come to dwell within any house , in any ward within the city , the constables , beadles , or oother officers of the same , shall be charged by their oaths , at the general court , to inquire and espie from whence they come . and if they find by their own confession , or by the record of any of the books of any alderman of the city , that they be indited or cast of evil & noyous life , and will not find surely for their good abeating and honest governance to the alderman for the time being , that then they shall not dwell there from thenceforth , but shall be warned to aviod within three or four dayes , or more , or less after , as it shall be seen to the alderman of the wa● for the time being , and that the land lo● that letteth the house or his attorney shall be also warned to make them ●● avoid out of his house aforesaid , with the said time limited by the alderman and if they be sou● there after the tim● that then not only the said dishone●● persons shall have imprisonment of the bodies after the discretion of the mayo● and aldermen , but also the said land lords , letters of the said houses , shal● forfeit to the guild hall , as much as they should have had for letting of the said house , or should be paid by the year , if the said persons or others had dwelled in the said house : you shall duly enquire of offences against this act , and present them . 18. also , if any freeman against his oath made , conceal , cover , or colour the goods of forraigners , by the which the king may in any wise lose , or the franchises of this city be imblemished . 19. also , if any forreigner buy and sell with any other forreigner within this city or the subburbs thereof , any goods or merchandizes , be forthwith forfeit , to the use of the commonalty of this city . 20. also , if every freeman , which receiveth or taketh the benefit , and enjoyeth the franchises of this city , be continually dwelling out of the city , and hath not , ●e will not ( after his oath made ) be at scot and lot , nor partner in the charges of this city , for the worship of the same city , when he is duly required . 21. also , if any man conceal the goods of orphans of this city , of whom the ward and marriage of right belongeth to the mayor and aldermen of this city . 22. and if any officer by colour of his office , do extortion unto any man , or be maintainer of quarrels against right , or take carriage , or arrest victual unduly . 23. also , if any boteman or feriour be dwelling in the ward , that taketh more for botemanage or feriage , then is ordained . 24. also , if any man make purprest●res , that is to say , incroach , or take of the common ground of this city , by land or by water , as in walls , pales , stoops , grieces or dores of cellars , o● in any other like within the ward , o● if any porch , penthouse or jetty be to● low , in letting of men that ride beside or carts that go thede forth . 25. also , that penthouses and je●ties be at the least the height of nine foot and that the stalles be not but of two foot and a half in breadth , and to be flexible or moveable , that is to say , to hang by icmewes or garnets , so that they may be taken up and let down . 26. also , if any common way or common course of water be foreclosed or letted , that it may not have his course as it was wont , to the noyance of the ward , and by whom it is done . 27. also , if any pavement be defective , or too high in one place , and too low in another , to the disturbance of riders and goers thereby , and carte that go thereupon . 28. also , if any regrator or forestaller of victual , or of any other merchandizes which should come to this city to be sold , be dwelling in this ward : a regrator is as much to say , as he that buy-up all the victual , or merchandizes , or the most part thereof when it is come to the city or the suburbs of the same at a low price , and then afterwards selleth it at his own pleasure , at a high and excessive price : a forestaller is he that goeth out of the city , and meeteth with the victual and merchandize by the way , coming unto the city to be sold , and there buyeth it , both these be called in the law inimici publici patriae , which is to say , open enemies to a country . 29. also , if any butcher , fishmonger , poulter , vintner , hostler , cook or sellar of victual , do sell victual at unreasonable prizes . 30. also , if any hostler sell hay oats or provender at excessive prizes , taking greater gain thereby then is reasonable and lawful . 31. also , if any victualler sell any victuals not covenable , or unwholesome for mans body , or else dearer then is proclaimed by the mayor , when any such proclamation is or shall be . 32. ye shall diligently make search and inquity , whether there be any vintner , inholder , alehouse-keeper , or any other person or persons whatsoever within your ward , that do use or keep in his or their house , or houses , any cans , stone pots , or other measures which be unsealed , and by law not allowed to sell beer or ale thereby , and whether they do sell any of their best beer or ale , above a penny the quart , or any small ale or beer above a half-penny the quart , and whether any of them do sell by any measure not sealed . if there be any such you shall seize them , and send them to the guild hall to the chamberlains office , and present their names and faults by indenture , so oft as there shall be any occasion so to do . 33. ye shall also make search in the shops and houses of all the chandlers , and of all others , which sell by weight or measure , dwelling within your ward , and see that their scales be not one heavier then another , and that their weights and measures aswel bushels as lesser measures , aswel those that they sell sea-coales by , ( which ought to be heaped ) that they be in breadth according to the new standard , sealed as all others , and that all yards and ells that they be their just lengths and sealed that the poor and other his majesties subiects be not deceived , and further , if any do buy by one weight or measure , and sell by others : and if in your search you find any false weights , measures , or scales , ye shall seize them and send them unto the guild-hall to the chamberlain : and you shall also do the like if you shall find any that do sell any thing by venice weights , contrary to the law and his majesties proclamations , present their names and faults . 34. also , if any inholder bake any bread to sell within his house : and if any baker of sower bread , bake white bread to sell , or mark not his bread , or else take more for the baking then six pence for a bushel . 35. also ye shall inquire , if any house be covered otherwise then with tile , stone , lead , for peril of fire . 36. also , if any leaper , faitour , or mighty begger be dwelling with in this ward . 37. also , if any baker or brewer , bake or brew with straw , or any other thing which is perillous for fire . 38. also , if any mango with painted visage . 39. also , if there be any man that hangeth nor out a lantern with a candle therein burning after the usage , according to the commandement thereupon given . 40. also , if any person bring or cause to be brought to this city or the liberties thereof , to be sold or sell , offer or put to saile any tallwood , billets , faggots , or other firewood , not being of the full assize which the same ought to hold . 41. also , if any freeman of this city , use to resort into the countries near to this city , and there to ingross and buy up much billet , talwood , faggot , tosard , or other firewood , and convey the same by water unto this city , and there lay it upon their wharfs and other places , and so keep it till they may sell it at high and excessive prizes , at their own wills . 42. also , if any woodmonger , or any other ; sell any billets or other fire-wood above the price set by the lord mayor . 43. also , if any citizen of this city by himself , or any other person for him , or to his use , use to resort into the country , and there buy and ingross greav quantity of cheese and butter at wellbarrelled as otherwise , and after conveigh it by water or otherwise to this city to be sold at deer and excessive prizes . 44. also , forasmuch as it is thought that divers and many persons dwelling within the liberties of this city , dayly occupy as freemen , whereas indeed they be none , nor never were admitted into the liberties of this city , ye shall therefore require every such person dwelling within this ward , whom ye shall suspect of the same , to shew you the copy of his freedome under the seal of office of the chamberlain of the said city , and such as ye shall find without their copies , or deny to shew their copies , ye shall write and present their names in your indentures . 45. also , you shall inquire and truly present all such persons as use melting of tallow , contrary to an act of common councel in that case made and provided . 46. also , you shall inquire of all armorers and other artificers using to work in mettal , which have or use any reardorses , or any other places dangerous or perillous for fire . 47. also , if any have appraised any goods of any freeman deceased , leaving behind him any orphan or orphans , and the appraisers not sworn before the lord mayor or the alderman of the ward . 48. also , if any freeman buy any wares or merchandizes unweighed , which ought to be weighed at the kings beam , of any stranger or forreign free of the liberties of this city , contrary to the act of common councel in that case made and provided . 49. also , if any buy and sell any cloth or clothes in the house , shop , ware-house , or other place of any clothworker or other person against any ordinance or custome of this city , or if any clothworker or other do receive or harbour any clothes before the same be brought to blackwell-hall , contrary to the ordinance made in that behalf . 50. also , if any carman take any money for carriage of any goods , wares , or merchandizes , above the rates ordained . 51. also , if any make or cause to be made any new building or buildings or divided or cause to be divided any house or houses , or receive any inmate or inmates , contrary to law , or any statute of this realm . 52. also , if any be dwelling within this ward , which do offer or put to sale any wares or merchandizes in the open streets or lanes of this city , or go from house to house to sell the same , commonly called hawkers contrary to an act made in that behalf . 53. also , if any have covenously , fraudulently , or unduely obtained the freedome of this city . 54. also , if any collector of fifteens or other duties for the publike service of the king or of this city , do retain in his hands any part of the money collected to his own use . 55. ye shall also enquire if there be dwelling within your ward any woman broker , such as resort unto mens houses , demanding of their maid servants if they do like of their services : if not , then they will tell them that they will help them to a better service , and so allure them to come from their masters to their houses , where they abide as boorders until they be provided for . in which time it falleth out that by lewd young men that resort to those houses they be oftentimes made harlots to their utter undoing and the great hurt of the common wealth : wherefore if any such be , you shall present them , that order may be taken for reformation . 56. also , if any have or use any common privy , having lssne into any common sewer of the city . 57. also , if any constable , beadle , or other officer , be negligent or remiss in discharging his duty , touching the execution of the statute made for punishment of rogues , vagabons , and study beggars , or otherwise , and wherein the default is , and the statute of 1. 4. and 21. iae. concerning the restraint of inordinate haunting and tipling in innes and alehouses , and repressing of drunkeness and other offences in the same statute , and wherein the default is . 58. also , if any to whom the execution of the statute made for relief of the poor doth appertain . he remiss in discharging his duty touching the execution of the same statute , and wherein default is . 59. also , if any executor or other person retain in his hands any legacy , sum of money , or other thing given to any charitable use . 60. ye shall inquire whether there be within your ward any common drunkard , whoremonger , blasphemer of gods holy name , prophaner of the sabbath , jesuite , seminary or secular priest or any receiver , releiver or maintainer of any of them , or any popish recusant , cozener , or swaggering idle companion , such as cannot give account how they live ; if there be any such you shall present them and the names of those that lodge them , or aid them . 61. ye shall also enquire , whether any person or persons do or shall say or sing mass within your ward , or be present at any mass . 62. also , if any person or persons within your ward being evil affected , do or shall extol the roman catholick religion above the religion professed and established by the kings majesties authority in england , or do or shall deprave the religion now professed in this realm by authority , as above , which may breed discord in the city , and dissention in the common wealth , ye shall carefully present the same persons and their offences . 63. also , if any person or persons that keepeth horses in their houses , do lay his or their stable dung , or such kind of stinking filth in any streets or lanes of this city , to the great annoyance of the people passing that way and do not lead his dung cart at his stable door as he ought to do . 64. you shall assemble your selves once every moneth or oftner if need require , so long as you shall continue of this inquest , and present the defaults which you shall find to be committed concerning any of the articles of your charge , to the end due remedy may be speedily supplied , and the offenders punished as occasion shall require . 65. and in making your presentments , your clerk is carefully to write the christian name , sur-name and addition , or calling of every offender , and the name of the parish wherein the offence was committed and some certain , time , how long the offence hath been continued and in presenting any persons , for dividing houses or inmates , to write the names and addition to the present landlord receiving the rent , and the names of the tenants in possession , and of the inmate in any house , and also to write in the margent on the side of every presentment the name or names , upon whose evidence you make such presentment . an act of parliament for the preservation of the river of thames , made in the 27. year of king henry the 8. vvhere before this time the river of thames , among all rivers within this realm , hath been accepted and taken , and as it is indeed most commodious and profitable unto all the kings liege people : and chiefly of all other frequented and used , and as well by the kings highness , his estates , and nobles , merchants , and other repairing to the city of london , and other places , shires and counties adjoyning to the same : which river of thames is and hath been most meet and convenient of all other , for the safegard and ordering of the kings navy , conveighance o● merchandizes , and other necessaries to , and for the kings most honourable houshold , and otherwise , to the great relief and comfort of all persons within this realm , till now of late divers evil-disposed persons , partly by miso●dering of the said river , by casting in of dung and other filth , laid nigh to the banks of the said river , digging and undermining of the banks and walls next adjoyning to the same river , carrying and converghing away of way-shides , shore-piles , boards , timber-work , ballast for ships , and other things from the said banks and walls in sundry places : by reason whereof , great shelfes and risings have of late been made and grown in the farway of the said river , and such grounds as lye within the level of the said water-mark , by occasion thereof have been surrounded and overflown by rage of the said water , and many great breaches have ensued and followed thereupon , and dayly are like to do , and the said river of thames to be utterly destroyed for ever , if convenient and speedy remedy be not sooner provided in that behalf . for reformation whereof , be it enacted , established , and ordained by the king , our soveraign lord , and by the assent of the lords spiritual and temporal , and the commons in this present parliament assembled , and by the authority of the same ; that if any person or persons hereafter , do or procure any thing to be done in the annoying of the stream of the said river of thames , making of shelves by any manner of means , by mining , digging , casting of dung , or rubbish or other thing in the same river , or take , pluck , or conveigh away any boards , stakes , piles , timberwork , or other thing from the said banks or walls , except it be to amend , and the same to repair again , or dig or undermine any banks or walls on the water side of thames aforesaid , to the hurt , impairing or damage of any the said walls & banks , then the same person or persons , and every of them , shall forfeit and pay for every time so offending , one hundred shillings : the one moyety thereof to be to the king our soveraign lord , and the other moyety thereof to the mayor and commonalty of london for the time being , the same to be recovered & obtained by the mayor & commonalty of london , by bill or plaint , writ of debt or information severally against every offender in any of the kings courts , in which actions and suits , or any of them , the party defendant , shall not be essoyned or wage his law , or any protection to be allowed in the same . and it is further enacted by the authority aforesaid , that if complaint shall happen to be made to the lord chancellour of england , lord treasurer , lord president of the kings councel , lord privy seal , or to any of them by any person or persons or body politick , that sir thomas spert knight , now having the office and ordering , of , & for ballasting of ships or any other that hereafter shall have the office and order of ballasting of ships do take any ballast for ships near the said river of thames , and do not take for parcel of the said ballasting the gravel and sand of the shelfes between greenhith and richmond within the said river of thames , or in any place or places , that is or shall be unto the damage or annoyance of the said river of thames , or in any part thereof , that then upon every such complaint the said lord chancellour , lord treasurer , lord president of the kings most honourable councel , lord privy seal , and every of them , calling both the cheif justices of either bench , or one of them , shall have power and authority from time to time , to hear and finally determine every such complaint , by their discretion , and to put such order therein , for the taking of ballast for ships upon every such complaint as by their discretions shall seem most convenient for the preservation of the said river of thames : and the parties offending such order , shall suffer imprisonment , and make no less fine then five pound to the kings use for every time offending or breaking the same . provided alwayes , and be it enacted , that it shall be lawful to every person and persons , to digge carry , and take away , sand , gravel , or other rubbish earth , or thing lying or being in , or upon any shelfe or shelfes within the said river of thames , with out let or interruption of any person or persons , or paying any thing for the same , any thing contained in this present act , to the contrary notwithstanding . an act of common councel concerning the conservation and cleansing of the river of thames , made the 28. of september , in the 30. year of king henry the 8. vvhere by the statute made in the 27. year of the raign of our soveraign lord king henry the eight among other for reformation of the misordering of the river of thames by casting in dung and other filth , many great shelves and other risings have been of late grown and made within the same river : by reason whereof , many great breaches have ensued by occasion thereof , which of like shall be the occasion of the utter destruction of the said river , unless that the same law be put in due execution according to the true intent and meaning thereof . wherefore for a further reformation of the same and to the intent that the said good and wholesome statute may be put in more execution , and better knowledge of the people : it is enacted by the authority of this common councel , that proclamation may be made within this said city : and the same to be put in writing and tables thereof made and and set up in divers places of this city , that it shall be lawfully to every person or persons , to dig , carry away , and take away sand , gravel , or any rubbish , earth , or any thing lying or being in any shelve or shelves within the said river of thames , without let or interruption of any person or persons , and without any thing paying for the same , and after that to sell the same away , or otherwise occupy or dispose the said gravel , sand , or other thing , at their freeliberty and pleasure . and that all paviers , bricklayers , tilers , masons , and all other that shall occupy sand , or gravel , shall endeavour themselves , with all their diligence , to occupy the said sand or gravel , and none other , paying for the same reasonably , as they should and ought to pay for other sand or gravel , digged out of other mens grounds , about the said city , which after is filled again with much filthy things , to the great infection of the inhabitants of the said city , and all other repairing unto the same . and that further , humble suit may be made to the kings highness , that all persons having lands or tenements along the said river side , upon certain pain by his highness , and the lords of his most honourable councel to be limited , shall well and sufficiently repair and maintain all the walls and banks adjoyning unto their said lands , that so the water may not , nor shall break in upon the same : and the same to be continued till the time that the said noble river be brought again to his old course and former estate . and that strong grates of iron along the said water-side , and also by the street-side , where any watercourse is had into the said thames be made by the inhabitants of every ward , so along the said water as of old time hath been accustomed . and that every grate be in height four and twenty inches at the least : or more , as the place shall need , and in breadth one from another , one inch : and the same to be done with all expedition and speed . and if the occupiers of the said lands and tenements make default contrary to the ordinance asoresaid : or else if any person or persons in great rains and other times , sweep their soylage or filth of their houses into the channel , and the same after is conveighed into the thames ; every person so offending , shall forfeit for every such default twenty pence , and that upon complaint to be made to any constable , next adjoyning to the said place where any such default shall be found , it shall be lawful for the said constable , or his sufficient deputy for the time being , from time to time distrain for the same offence . and to retain the same irreplegiable , and like law to be observed and kept . and like penalty to be paid for every person that burn rushes and straw in their houses , or wash in the common streets or lanes , and to be recovered as aforesaid , and the one moyety thereof to be to the mayor and commonalty , and the other moyety to be divided between the said constable that taketh pain and the party finder of the said default . and if the constable or his deputy refuse to do his duty according to the true meaning of this act , that then the constable or his deputy , which shall so refuse to his duty as aforesaid , shall forfeit and pay for every time so offending , three shillings four pence . and the same penalty of the said constable to be recovered and obtained by distress irreplegiable , to be taken by any of the officers of the chamber of london to the use of the mayor and commonalty of london . and further , that no person or persons having any wharfe or house by the said water-side , make not their laystalles nigh to the river aforesaid , except only the common laystalles , where the common rakets of this city use to repose , and lay all their soylage , to be carried away by them with their dung-boats . and that the said rakets shall lay their said dung , carried in their dung-boats , to such convenient place or places , as shall be appointed by the lord mayor of london for the time being , with the advice of his brethren the aldermen of the same , and to no other place or places , upon pain to forfeit for every such default five pound , to be recovered in any of the kings courts within the city of london , by bill , plaint , moyety of debt , or information by any person that will or shall pursue for the same : the one moyety thereof to be unto the mayor and commonalty of london , and the other moyety to him or them that will or shall pursue for the same , in which actions or suits , no wager of law nor essoygn shall be allowed . the oath of the constables within the city of london . ye shall swear , , that ye shall keep the peace of our soveraign lord the king , well and lawfully after your power . and ye shall arrest all them that make contect , riot , debate , or afray , in breaking of the said peace , and lead them to the house or the compter of one of the sheriffs . and if ye be withstood by strength of misdooers , ye shall rear on them an out-cry , and pursue them from street to street , and from ward to ward till they be . arrested : and ye shall search at all times , when ye be required by the scavengers or beadles , the common noysance of your ward . and the beadle and raker you shall help to reare and gather their sallery and quarterage if ye be thereunto by them required . and if any thing be done within your ward against the ordinance of this city , such defaults as ye shall find there done , ye shall them present to the mayor and ministers of the city : and if ye be letted by any person or persons , that ye may not duly do your office , ye shall certifie the mayor and councel of the city , of the name or names of him or them that so let you . ye shall also swear , that during the time that ye shall stand in the office , and occupy the room of a constable , ye shall once at the least every moneth , certifie and shew to one of the clarks of the mayors court , and in the same court , as well the names as sur-names of all free men ; which ye shall know to be deceased within the moneth in the parish wherein ye be inhabited , as also the names and sur-names of all the children of the said free-men so deceased , being orphans of this city . and thus you shall not leave to do , as god you help . &c. god save the king. the oath of the scavengers . ye shall swear , that ye shall diligently over-see that the pavements within your ward be well and sufficiently repaired and not made too high in noysance of your neighbours : and that the wayes , streets , & lanes be cleansed of dung & all manner of filth for the honesty of this city . and that all the chimnies , furnaces , and reredoes be of stone sufficiently and defensively made against peril of fire . and if ye find any the contrary , ye shall shew it to the alderman of the ward , so that the alderman may ordain for the amendment thereof . and thus ye shall do , as god you help . god save the king. the oath of every freeman of this city of london . ye shall swear that ye shall be good and true to our soveraign lord king charls , and to the heirs of our said soveraign lord the king. obeysant and obedient ye shall be to the mayor and ministers of this city , the franchises and customes thereof ye shall maintain , and this city keep harmless in that which in you is . ye shall be contributory to all manner of charges within this city , as summons , watches , contibutrions , taxes , tallages , lot and scot , and to all other charges bearing your part as a freeman ought to do . ye shall colour no forraign goods , under , or in your name , whereby the king or this city might or may lose their customes or advantages . ye shall know no forraigner to buy and sell any merchandize with any other forraigner within this city or franchise thereof , but ye shall warn the chamberlain thereof , or some minister of the chamber , ye shall implead or sue no freeman out of this city , whiles ye may have right and law within the same city . ye shall take none apprentice , but if he be free born ( that is to say ) no bond-mans son , nor the son of any alien , and for no less term then for seven years , without fraud or deceit : and within the first year ye shall cause him to be enrolled , or else pay such a fine as shall be reasonably imposed upon you for omitting the same : and after his terms end , within convenient times ( being required ) ye shall make him free of this city , if he have well and truly served you . ye shall keep the kings peace in your own person . ye shall know no gatherings , conventicles , or conspiracies made against the kings peace , but ye shall warn the mayor thereof , or let it to your power . all these points and articles ye shall well and truely keep , according to the laws and customes of this city to your power . so god you help . god save the king. an act of common councel 1. of june , 18. k. h. 8. concerning making freemen of the city , against colouring forreign goods . at this common councel , it is agreed , granted , ordained and enacted , that if hereafter any freeman or free-woman of this city , take any apprentice , and within the term of seven years suffer the same apprentice to go at his large liberty and pleasure : and within , or after the said term , agree with his said apprentice for a certain sum of money , or otherwise for his said service , and within or after the end of the said term , the said freeman present the said apprentice to the chamberlain of the city , and by good deliberation , and upon his oath made to the same city , the same freeman or freewoman assureth and affirmeth to the said chamberlain , that the said apprentice hath fully served his said term as apprentice . or if any freeman or freewoman of this city , take any apprentice , which at the time of the said taking hath any wife . or if any freeman or freewoman of this city , give any wages to his or her apprentice , or suffer the said apprentices to take any part of their own getting or gains . or if any freeman or freewoman of this city hereafter , colour any forreign goods , or from henceforth buy or sell for any person or persons , or with or to any person or persons , being forreign , or forreigners , cloths , silks , wine , oyles , or any other goods or merchandize whatsoever they be ; whether he take any thing or things for his or their wages or labor , or not . or if any person or persons being free of this city , by any colour or deceitful means from henceforth , do buy , sell , or receive of any apprentice within this city , any mony , goods , merchandize , or wares , without the assent or license of his master or masters : and upon examination duly proved before the chamberlain of the said city for the time being . and the same reported by the mouth of the said chamberlain at a court to be holden by the mayor and the aldermen of the same city in their councel chamber : that aswel the said master as the said apprentice , shall for evermore be dis●anchised . god save the king. the statutes of the streets of this city , against annoyances . 1. first , no man shall sweep the filth of the street into the channel of the city , in the time of any rain , or at any other time , under pain of six shillings eight pence . 2. no man shall cast , or lay in the streets , dogs , cats , or other carren , or any noysome thing contagious of air. nor no inholder shall lay out dung out of his house , but if the cart be ready to carry the same away incontinently , under pain of forty shillings . 3. no brewer shall cast willfully dregs or dross of ale or beer into the channel , under pain of two shillings . 4. no man shall encumber the streets with timber , stones , carts , or such like , under pain of forfeiture of the same thing that so encumbreth the streets , which is twenty shillings fine , if he remove it not at the warning of the serjeant of the market . 5. every builder of houses ought to come to the mayor , aldermen and chamberlain , for a special license for hourd of by him to be made in the high street , and no builder to encumber the streets with any manner of thing , taking down for the preparing of his new building under pain of forty shillings , except he make a hourd of sorty shillings . 6. no man shall set any carts in the streets by night time , under the pain of twelve pence , and recompence to such persons as shall be hurt thereby , if any such be , twelve pence . 7. no budge-man shall lead but two horses , and he shall not let them go unled , under pain of two shillings . 8. no man shall ride , or drive his car , or cart atrot in the street , but patiently , under pain of two shillings . 9. no man shall gallop his horse in the street , for wager or otherwise , under like pain of two shillings . 10. no man shall shoot in the street , for wager or otherwise , under like pain of two shillings . 11. no man shall bowl , or cast any stone in the street , for wager , or gain , or such like , under pain of two shillings . 12. no man shall dig any hole in the street , for any matter , except he stop it up again , under pain of two shillings and recompence to any person hurt thereby , two shillings . 13. no man bury any dung , or goung , within the liberties of this city , under pain of forty shillings . 14. goung-fermour shall carry any ordure till after nine of the clock in the night , under pain of thirteen shillings four pence . 15. no goung-fermour shall spill any ordure in the street , under pain of thirteen shillings four pence . 16. no man shall bait bull , bear , or horse in the open street , under pain of twenty shillings . 17. no man shall have any kine , goats , hogs , pigs , hens , cocks , capons , or ducks in the open street , under pain of forfeiture of the same . 18. no man shall maintain any biting curs , or mad dogs , in the streets , under pain of two shillings , and recompence unto every party hurt therewith , two shillings . 19. no carts that shall be shod with spig-nails that shall come upon the streets of this city , under pain of three shillings four pence . 20. no carts using dayly cartiage within this city , nor car shall have wheels shod with iron , but bare , under pain of six shillings . 21. no man shall burn any straw rusnes , or other thing , linnen or woollen , in the streets , by night or by day , under pain of three shillings four pence . 22. no man shall blow any horn in the night within this city , or whistle after the hour of nine of the clock in the night , under pain of imprisonment . 23. no man shall use to go with vizards , or disguised by night , under like pain of imprisonment . 24. that night-walkers , and eve● droppers , indure like punishment . 25. no hammer-man , as a smith , pewterer , a founder , and all artifice making great sound , shall not work a●ter the hour of nine in the night , not ●●fore the hour of four in the morning under pain of three shillings four pence . 26. no man shall cast into the ditches of this city , or the sewers of this city , without the walls , or into the walls , grates , or gullets , of this city , any manner of carren , stinking flesh , rotten fish , or any rubbish , dung , sand , gravel , weeds , stones , or any other thing to stop the course of the same , under pain of cleansing them at his own cost and charge , under pain of imprisonment . 27. no man shall make any widrawces in any of the town-ditches , or the town-gullets , under the pain of twenty shillings . 28. no man shall build nigh the walls of this city , without license of the lord mayor , aldermen , and chamberlain , under pain of throwing down the same , and no licence may be granted except that the chamberlain freely at all times have convenient and needful ingross , and entry , going out , and clear recourse . 29. no man shall go in the streets , by night or by day , with bow bent ; or arrows under his girdle , nor with sword unscabberd , under pain of imprisonment ; or with hand-gun having therewith powder and match except it be in an usual may-game , or sight . 30. no man shall after the hour of nine at the night , keep any rule whereby any such sudden out-cry be made in the still of the night , as making any affray , or beating his wife , or servant , or singing , or revelling in his house , to the disturbance of his neighbours , under pain of three shillings four pence . 31. no man shall make an affray upon any officer , which with good demeanour doth his message by commandment from my lord mayor , or any alderman , or mr. sheriffs , or mr. chamberlain , or misbehave himself in any rayling upon any judge of this city , or their officers , which by commandement are sent to bring any breaker of this law and custome to ward , or to distress , or such like , upon pain of imprisonment of forty dayes , and forfeiture of the double penalty : for the offences assessing , railing upon any alderman , or mayor in his office is judgement of the pillory : railing upon mr. chamberlain in his office , forty dayes imprisonment : beating , threatning , and railing of an officer , is imprisonment after the trespass is . 32. memorandum , that every offence found in this city , it is accustomed that the officer , a freeman , finding it , which is called primus inventor , hath half the penalty by the grace of the court. 33. also every freeman may find any offence , but he hath no power to bring the party before any judge of this city , without an officer , except the party will come to his answer by free will. 34. no man hath power to arrest , attach , or make distress of any goods sorfeitable , or offences , except the constable or serjeant of the mace. 35. no butcher or his servant shall not use to drive any oxe or oxen atrot in the streets , but peaceably : and if an oxe happen to be let go when he is prepared to slaughter , the butcher shall forfeit two shillings besides recompence if any person be hurt thereby . 36. no butcher shall scald hogs , but in the common scalding-house , upon pain of six shillings eight pence . 37. no butcher shall sell any measel hog , or unwholesome flesh under pain of ten pounds . 38. no butcher shall sell any old stale victual ; that is to say , above the slaughter of three dayes in the winter , and two in the summer , under pain of ten pounds . 39. none unreasonable victual for all manner of victuals . 40. no victualler of this city shall shall give any rude or unsetting language , or make any clamour upon any man or woman in the open market , for cheapning of victual , under pain of three shillings four pence . 41. no butcher shall cast the inwards of beasts into the streets cleaves of beasts feet , bones , horns of sheep , or other such like , under pain of two shillings . 42. the pudding-cart of the shambles shall not go afore the hour of nine in the night , or after the hour of five in the morning , under pain of six shillings eight pence . 43. no man shall cast any urine-boles , or ordure-boles , into the streets by day or night , afore the hour of nine in the night : and also he shall hot cast it out , but bring it down , and lay it in the channel , under the pain of three shillings four pence . and if he do cast it upon any persons head , the party to have a lawful recompence , if he have hurt thereby . 44. no man shall hurt , cut , or destroy any pipes , sesperals , or windvents pertaining to the conduit , under pain of imprisonment , and making satisfaction , though he doth it out of the city , if he may be taken within the city . 45. no man within this city may make any quill and break any pipe of the conduit coming through his house , or nigh his ground , under pain of the pillory or take any water privily unto his house . 46. casting any corrupt thing , appoysoning the water , lourgulary and fellony . 47. whosoever destroy or perish any cocks of the conduit , must have imprisonment and make satisfaction . old laws and customes of this city . 48. no man shall set up shop or occupy as a freeman afore he be sworn in the chamber of london , and admitted by the chamberlain , under pain of . 49. no man shall set over his apprentice to any other person , but by license of master chamberlain , and there to be set over , under pain of . 50. no man which is a forreign , shall not buy nor sell within the liberties of this city with any other forreign , under pain of forfeiture of the goods so forreign bought and sold . 51. no freeman shall be disobedient for to come at master chamberlains commandement , to any summons to him given by any officer of the chamber , under pain of imprisonment . 52. master chamberlain hath power to send a freeman to ward , that he incontinently after send to the lord mayor , the cause why that he is punished , so that the lord mayor release him not , but by the chamberlains assent : and if he be a great commoner and disobeying to the chamberlain , master chamberlain may refer it to a court of aldermen . master chamberlain hath authority to send or command any apprentice to the counter for their offences : and if their offences be great , as in defyling their masters houses by vicious living , or offending his master by theft , or dislander , or such like , then to command him to newgate . apprentice enrolled , his master payeth two shillings six pence . apprentice set over , he that receiveth , two shillings . apprentice made free he payeth four shillings . apprentice never enrolled , and made free , his master payeth thirteen shillings two pence . a man made free by his fathers copy , payeth eighteen pence . a proclamation made in the time of the mayoralty of sir michael dormer knight . an act of common councel , made in the even of st. michael , anno regis henrici octavi 21. that no person should lay any wares in the street , or beyond the edge of their stall , upon pain of forseirure the first time six shillings eight pence : the second time thirteen shillings four pence : and the third time , the ware so laid . by an act of parliament in the 14. car. 2. it is enacted , that all and every person that inhabiting within the cities of london and westminster , suburbs and liberties thereof , and burrough of southwark , or in any the new built streets , lanes ' , alleys and publick places , before their respective houses , buildings and walls twice every week viz. wednesday and saturday , and all the soile , dirt and other filth , shall cause to be caken up into baskets , tubs , or other vessels , ready for the scavenger or other officer , to carry away upon pain of three shillings four pence for every offence or neglect respectively . that no person whatsoever , shall throw , cast or lay , or cause to be cast , thrown or laid , any seacole-ashes , dust , dirt or other filth , with the said cities and places aforesaid , in any place , street , lane or alley , before his , her , or their own dwelling houses , buildings or walls on the penalty of five shillings ; and it before the houses , building , &c. of any of their neighbours or other inhabitants of the said cities or places , or before or against any church , churchyard , or any of his majesties houses , buildings or walls or any other publick houses , buildings , &c. or cast , lay or throw , &c. into any common or publick sink , vault , water-course , common-sewer , or highway within the cities or places , &c. or any other private vault or sink of any of his neighbours , or other inany dust , ashes , filth , ordure , or other noisome thing whatsoever , but shall keep , or cause the same to be kept in their respective houses , &c. until such time as the raker , scavenger , &c. or other officer do come by or near their houses or doors , with his cart , barrow , or other thing used for the cleansing of the streets , and carrying away thereof ; and then shall carry the said ashes , dust , &c. out of their houses and deliver it to the raker , scavenger or officer or otherwise put the same into his cart , &c. upon pain to forfeit twenty shillings for every offence . the respective churehwardens , house-keepers of whitehall , or other his masties houses ; housekeepers or porters of noblemens houses , ushers or keepers of the courts of justice , and all other publick houses and places respectively shall be liable to suffer the like penalties , forfeitures and punishments for every like forementioned offences done or suffered to be done before any church , churchyard , or before any of his majesties houses , noblemens houses , buildings , or before any other publick houses , or places whatsoever respectively . no person shall hoop , wash or cleanse any pipe , barrel or other cask or vessel , in any the streets , lanes , or other passages aforesaid , nor set out any empty coaches to make or mend , or rough timber or stones to be sawn or wrought in the street upon pain of twenty shillings for every offence . the rakers , scavengers and officers hereunto appointed , every day in the week ( except sundays and other holylayes ) shall bring carts , dung-pots or other fitting carriages into all the streets within their respective wards , parishes and divisions , where such carts &c. can pass , and at or before their approach , by bell , clapper or otherwise , shall make loud noise and give notice to the inhabitants of their coming , and so into every court , alley or place where carts can pass ; and abide or stay there a convenient time , that all persons concerned may bring forth their respective ashes , dust , &c. to the respective carts , &c. all which the said raker , scavengers or officers shall carry away upon pain of forty shillings for every offence , or neglect respectively . all the open streets , lanes and alleys within the cities and places aforesaid , are to be sufficiently repaired and paved , and kept paved , and sufficiently repaired , at the cost of the housholders in the said streets , lanes , &c. respectively viz. every housholder to repair and pave , and keep repaired and paved the streets and lanes , &c. before his house unto the channel or midle of the same street or lane , &c. upon pain of forfeit twenty shillings for every rod , and after that proportion , for a less quantity , for every default , and twenty shillings a week for every week after , till it be sufficiently paved and amended . provided such ancient streets , lanes , &c. within the said cities , or either of them , the suburbs or liberties thereof , as by custome and usage have been repaired in other manner , shall be hereafter repaired , paved and amended in such sort , by such persons as have used to repair , pave and maintain the same under the penalties aforesaid . every housholder within the said cities and places aforesaid , whose houses adjoyns unto , or is next the street from michaelmas till our lady-day yearly , shall set or hang out candles or lights in lanthorns , or otherwise in some part of his house next the street , to enlighten the same for passengers , from such time as it shall grow dark until nine of the clock in the evening upon pain of 1. sh . for every default . every justice of either bench , ba●on of the exchequer , and justices of ●he peace of london and wistminster , ●ave power on their own view , or proof by one witness upon oath to convict persons offending against this act , and to dispose the penalties towards mending and cleansing the strees , if upon proof , half to the party informing , if uqon conviction by view , then the whole to the repairing and cleansing the streets or wayes , to be levied by warrant from any justice under his hand and seal directed to the constable or other officer of the same parish by distress and sale of his goods , and for default ( if no peer ) imprisonment until payment . within london and the liberties thereof the scavengers , rakers and such like officers shall be elected , and the rates and assesments for them for the cleansing of the streets shall be rated , raised and paid by the parishioners and inhabitants of every parish and precinct according to the ancient custome and usage of the city , and all new messuages , tenements and houses shall be rated and assessed , and pay proportionable with the other in westminster , the said officers shall be chosen according to the custome of that city , and the rates paid according to the custome of that city , in all other parishes or places upon every tuesday or wednesday in easter week : the constables , church wardens and overseers for the poor , surveyors of the highwayes of every parish aforesaid , giving notice and calling together such inhabitants of their parishes , as have born the like offices , they or the greater number of them shall appoint two , that are tradesmen in their parishes , to be scavenger , for the streets , &c. of each ward to continue for a year , who shall perform the office upon pain of twenty pound , but upon refusal others shall be chosen , the same penalties to be levied and imployed for mending the streets and wayes of the same parish , by distress and sale of the offenders goods , and imprisonment by default by warrant as aforesaid . within twenty days after election of such officers , a tax or pound rate shall be made by the inhabitants of every parish , which being confirmed by two justices of the peace , shall be quarterly paid upon demand by the officers appointed , and upon refusal levied by distress and sale of the goods , by warrant from two justices of the peace , and for lack of distress by imprisonment of the offender ( not being a peer ) until payment . provided all actions against persons for executing this act , shall be laid in their proper county , and the defendant may plead the general issue and recover double cost if wrongfully vexed . by the same statute no hackney coachman licensed , shall take for his hire in or about the city of london and westminster , above 10. sh . for a day reckoning 12. hours to the day , and not above 18. d. for the first hour , and 12. d. for every hour after , and no gentleman or other person shall pay from any of the inns of court or thereabouts to any part of st. iames or westminster above 12. d. and the same rates to the same places or thereabouts back again , and from any of the said inns of court , or thereabouts , to the royal exchange 12. d. to the tower of london , bishopsgatestreet , algate or t●ereabouts 18. d. and so from the said places to the inns of court , and the like rates from and to any place of like distance and if any coachman shall refuse to do , act , or exact more for his hire then thereby limited he shall for every offence forfeit 10. sh . finis notes, typically marginal, from the original text notes for div a32296-e1420 trinterm . 7. jac. rex rot. 1490. kings-bench . the pleading of this case see in the new-book of entries fol. 20 & 21. quest . 1. three commodities of lights by a window , air by health , light by profit , pleasure by prospect . cook 9. rep. eldred case . vide , hobarts reports , robins of b●ns . 131. quest . 2. 3. quest . a new house built upon an old foundation , without enlargement either in longitude or latitude , though never so high built , shall not be taken to prejudice the neighbour . hill. 12. jac. in banco rep. information upon the stat. of 5. eliz. 4. concerning manualoccu● pations , &c. the custome of l pleaded in bar quest . 1. quest . 2. sel. rat. 1. 2. quest . 4. rat , 1. rat. 2. rat. 3. rat. 4. 9. h. 3. cap. 9. quest . 5. rat. 1. 2. 3. rat. 4. quest . 6. sol. ● : quest . 7. sol. mich. 12 jac. rs. in banco rs. quest . 1. mich. 39 40. eliz paramoreversus pain . quest . 2. quest . mich. 37 38. eliz. rot. 414. ea. term. 9. iac. rex roll. 163. kings be. you should read frances all the way . counsel● 5. in the case judges 8 , four of the judges for the defendant . rat. 1. 22. h. 6. 4. rat. 2. 21 h. 6. 30 ● . 1 e. 4. 50. rat , 3. 3 eliz dy 100. 26. eliz. the lord mordants case . rat 4. rat. 5. 35. h. 6. 3. rat. 6. 33. ass . parl. 7. rat. 7. rat. 8. rat. 9. three judges of contrary opinion . ●t . 1. 2. 8. h. 42. 4. sir h. calthrops report and opinion . 1. what prisage is . 6. e. 3. 5. 20. ric. 2. rot. pat. 28. e , 1. rot. pat. fleta . lib. 2. cap. 22. 20. r. 2. rot. pat. 2. the ground of paying the k. prisage . 3. when prisage is due . sir ed. crook , sir john doddridge . 6. r. 2. 46. kenniston . 4. whether the king may grant , or discharge prisage . 41. elix . 15 e 4. rot. pat. 5. grant to a body politique for the benefit of bodies natural . 39 e. 3. 21. 21 e. 4. 55. 6. whatpersons are discharged by the words of the charter . 1. sort. citizens of five sorts . 2. sort. 3. sort. 28. ass . par. 25. 28. ass . pat. 18. 4. sort. 5. sort. 7. what wines are discharged of prisage . 1. h. 8. cap. 5. 1. benefits of having woollen cloth died and dressed in england . 2. 3. hill. 12. jac. rex k. bench. rat. 1. 2. past all resumption . 3. 4. hill. 13. k. bench. rat. 1. pasc . 14. jac. chan customary actions to be tried only in the place where the custome lieth . pasc . 15. jac. k. bench. upon rent of a mess . let at an ancient rent of 5. l. per. an . and a fine to be paid by 3● . l. per. ann . quest . 1. 2. 3. 4. 5. quest . 1. what the parson may by law demand for houses in london ? fitz. herb. nat . brev . fol. 53. 34. eliz. dawsons case k. bench. 2. 11. report . sol . 16. 3. what was anciently paid for houses in london to the parson . and how these payments grew niger bishop of london's constitution . 13. h. 3. 30. e. 3 i. 30. l. 3. 3. tho arun arch-bish . of cant. 13. r. 2. pope innocent . 5. h. 4. pope nich. 31. h. 6. linwood , fol. 146. submission to the lord chancellour and privy-councel . 27. h. 8. 21. cap. 37. h. 8. decree , cap. 12. which decree by the act ought to have been enrolled in chancery in six moneths ; but search hathbeen , and it is not found . 4. whether the fine paid , by 25. per. an. b● a rent within the words of the decree ? 5. whether the 25 perann . thus covenanted to be paid for fine , be lent within the intent of the decree ? 1. arguments on ministers part . argument on the citizens part . 3. notes for div a32296-e13570 error fitzz . 23. s. fitzz . 24. s. this is now altered by the stat. of 32. h. 8. ca. i. of wills. notes for div a32296-e17550 ward-mote , inquest for a year . inquest dying . non appearance . watch , light , visard . common councel . constables , scavengers , beadle , raker . roll of names . constable roll. inholder , lodger , sojourner search . new-comers . frank-pledge . beadle . fire . streets . hucksters of ale and beer . measures scaled . strange born . streets . vagarants . jury-men . harlots . articles commons , dinners , banquetting . fire and candle , &c. recreation . peace . outlaws , traitots , fellons , &c. thames . congregations . riotör . barrator . peace , hue and cry. hucksters , receivers of apprentices , artificers , &c. inholder , taverner , victualer . curfue . bauds , maintainers , of quarrels . strumpet , adulterer , witch , scold . hot-house . thames , ditches , streets , &c. channel . hogges . kine , oxen , ducks , persons indited in one ward , flying into another . colouring forraign goods . forreign buying and seling . freemen not resident . orphans , wards , marringes . officers . boteman , feriour . purprestures . pent-houses , jetties , stalles , &c. way , water course . pavements . regrators , forestallers . price of victual . hay . victuals unwholesome price . measures unsealed . weights and measures . inholder , brown baker . house , tile leaper , beggar . bakers , brewers . painted visage . candle light . wood. country . cheese , butter . freemen to shew their copies . melting tallow . appraisers . beam. clothes . carmen . buildings , divided houses , inmates hawkers . freedome . collectors . women receivers of servants . privies . vagabons poor . legacies . drunkard , whoremonger , sabbath , jesuite , seminary priest , secular priest , popish recusant , cozenes , &c. mass . roman catholick religion . assembly monthly . making of presentments . the institutions of the law of scotland by sir george mackenzie ... mackenzie, george, sir, 1636-1691. 1684 approx. 363 kb of xml-encoded text transcribed from 202 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2004-08 (eebo-tcp phase 1). a50514 wing m158 estc r17260 12346494 ocm 12346494 59894 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, 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(eebo-tcp ; phase 1, no. a50514) transcribed from: (early english books online ; image set 59894) images scanned from microfilm: (early english books, 1641-1700 ; 640:16) the institutions of the law of scotland by sir george mackenzie ... mackenzie, george, sir, 1636-1691. [14], 385 p. printed by john reid, edinburgh : 1684. first edition. includes legal citations. reproduction of original in cambridge university library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -scotland. 2004-03 tcp assigned for keying and markup 2004-03 apex covantage keyed and coded from proquest page images 2004-05 olivia bottum sampled and proofread 2004-05 olivia bottum text and markup reviewed and edited 2004-07 pfs batch review (qc) and xml conversion edinburgh , march 18. 1684. it is ordered by the lords of his majesties most honourable privie council , that none shall re-print , or import into this kingdom , the book intitutled , the institutions of the laws of scotland ; by sir george mackenzie of rosehaugh , his majesties advocat , for the space of nineteen years , after the date hereof , without the consent of the author ; under the pain of confiscation of the whole copies to john reid printer of the said book . extracted by me pat. menzies , cls. sti. cli. the institutions of the law of scotland by sir george mackenzie , of rosehaugh , his majesties advocat . edinburgh , printed by iohn reid , anno dom. m dc lxxxiv . to the earl of middleton , my lord , the natural way of learning all arts and sciences , is to know , first , the terms used in them , and the principles upon which they are founded , with the origins of the one , and the reasons of the other . a collection of these terms and principles is in law called , institutions ; and the natural and easie way of writing these , is by going from the first principle to a second , and from that to a third : the admir'd method of euclid in his elements , though much neglected by all , who have written institutions of law ; in which , not onely many things unnecessary are insert , as almost all the third book of justinians institutions ; the differences betwixt the sabiniani and proculiani , &c. many fundamental titles are ommitted , as all the matter of restitutions : and many things are taught in the first book , which cannot be understood till the fourth be read . i have therefore in these my institutions treated nothing save terms , and principles , leaving out nothing that is necessary , and inserting nothing that is contraverted ; in all which i have proceeded , building alwayes one principle upon another ; and expressing every thing in the terms of the civil law , or in the stile of ours respectively ; so that if any man understand fully this little book ; natural reason , and thinking , will easily supply much of what is diffused , through our many volums of treatises , and decisions ; whereas the studying those , would not in many years give a true idea of our law ; and does rather distract than instruct . and i have often observed , that moe lawyers are ignorant for not understanding the first principles , than for not having read many books ; as it is not the having travelled long , but the having known the way , which brings a man to his lodging soon , and securely . my lord , you observ'd very justly to me , that institutions are a grammar ; and therefore , ( which is a great encouragement to all readers of institutions , ) they who understand the institutions of any one nation , will soon learn the law of any other : for though terms , forms , and customs differ ; yet the great principles of iustice and equity are the same in all nations . i send mine therefore to your lordship , not because you need them , but that you may judge , if my institutions , will be able to justifie your parallel . nec phoebo gratior ulla est , quam sibi quae vari praescripsit pagina nomen . the index of the titles . part i. title i. of laws in general page 1 title ii. of iurisdictions , and iudges in general page 9 title iii. of the supream iudges , and courts of scotland page 17 title iv. of inferiour iurisdictions and courts page 27 title v. of ecclesiastick persons page 33 title vi. of marriage page 46 title vii . of minors , and their tutors and curators page 47 part ii. title i. of the division of rights , and the several wayes of acquiring property and dominion page 74 title ii. of the difference betwixt heritable , and moveable rights page 83 title iii. of the constitution of heritable rights , by charter and seasin page 92 title iv. of the several kinds of holding title v. of the casualities due to the superiour page 108 title vi. of the right which the vassal acquires by getting the feu page 13● title vii of transmission of rights by confirmation , and of the difference betwixt base and publick infeftments page 14● title viii . of redeemable rights page 15● title ix . of ser●itudes page 16● title x. of ●eynds page 18● title xi . of inhibitions page 19● title xii . of comprysings and adjudications page 20● part iii. title i. of obligations and contracts in general page 217 title ii. of obligations by write , or word page 228 title iii. of obligations and contracts , arising from consent , and of accessory obligations page 232 title iv. of the dissolution or extension of obligations page 255 title v. of assignations page 261 title v. of arr●stments and poi●●ings page 265 title vi. of prescriptions page 275 title vii . of succession in heritable rights page 282 title viii . of succession in movea●●es page 323 title ix . of ●●st heir and bastards page 330 part iv. title i. of actions page 334 title ii. of probation page 362 title iii. of sentences and their execution page 368 title iv. of crimes page 375 the institutions of the law of scotland . first part . tit. i. of laws in general . justice , is a constant and perpetual will , and inclination to give every man what is due to him . law , is the science which teacheth us to do justice . this law , in a large acceptation , is divided , in the law of nature , law of nations , and the civil , and municipal law of each particular countrie . the law of nature comprehends those dictats , which nature hath taught all living creatures , instances whereof are self defence , education of children : and generally , all those common principles , which are common to man , and beasts , and this is rather innate instinct , than positive law. the law of nations , is peculiar to man-kind onely , dictated by right reason , and is divided into the original and primarie law of nature , that flows from the first and purest principles of right reason ; such as reverence to god , respect to our country , and parents . and the secundarie , and consequential law of nature , consisting of these general conclusions , in which ordinarly all nations agree , and which they draw by way of necessary consequence , from those first principles . and under this part of the law of nations , are comprehended , the obligations arising from promises , or contracts , the liberties of commerce , the ransoming of prisoners , securitie of ambassadours , and the like . civil , or municipal law , are the particular laws , and customes of every nation , or people , who are under one soveraign power . the romans , having studied with great exactness , the principles of equity , and iustice. their emperour iustinian , did cause digest all their laws into one body , which is nowcalled by most polit nations , ( for its excellency ) the civil law ; and as this civil law is much respected generally , so it has great influence in scotland , except where our own express laws , or customes , have receded from * it . and by the common law in our acts of parliament is meant the * civil law. the popes of rome , in imitation of the civil law , made a body of law , of their own ; which , because it was compiled by church men , it was called , the cannon law ; and though it has here no positive authoritie , as being compiled by private persons , at the desire of the popes , especially since the reformation ; yet our ecclesiastick rights , were settled thereby before the reformation : and because many things in that law , were founded upon material justice , and exactlie calculated for all church men ; therefore , that law is yet much respected among us , especially in what relates to conscience , and ecclesiastick rights . our municipal law of scotland , is made up partly of our written , and partly of our unwritten law : our written law comprehends , first , our statutory law , which consists of our statutes , or acts of parliament . secundo , the acts of sederunt , which are statutes , made by the lords of session , by vertue of a particular act of parliament , * impowering them , to make such constitutions as they shall think fit , for ordering the ●rocedur , and forms of admini●trating justice , and these are called acts of sederunt ; because they are made by the lords sitting in judgement ; but are not properly laws , the legislative power being the kings prerogative . tertio , the books of regiam majestatem , which are generally looked upon as a part of our law , and they , and the leges burgorum , and the other tractates , joyned by skeen to them , are called the old books of our law , by many express acts of parliament * . tho the books of regiam majestatem , were originally but the works of one private lawyer , writing by way of institution , and are now very much abrogated by custome . our unwritten law , comprehends the constant tract of decisions , past by the lords of session , which is considered as law ; the lords respecting very much their own decisions ; and though they may , yet they use not to reced from them , except upon grave considerations . secundo , our ancient customes , make up a part of our unwritten law , which have been universally received among us . the tacite consent of the people , operating as much in these , as their express consent does , in making laws ; and such is the force of custome , or consuetude , that if a statute , after long standing has never been in observance , or having been , has run in desuetu●e ; consuetude prevails over the st●●●●e , till it be renewed either by a succeeding parliament , or by a proclamation from the council : for though the council cannot make laws , yet they may revive them . generally , all laws should look foreward † though declaratory laws regulat what is past , since their design is , to declare what was law prior to the statute , and to direct iudges , how to decide in cases that needed the decision of a parliament . laws should command , not perswade ; and though the rubrick ( or title ) and narrative of the statute , may direct a doubting iudge , yet if the statutory words be clear , they should be followed in all cases . all laws should be so interpreted as to evite absurdities ; and as may best agree with the mind of the legislator , and analogie , or general design of the common law. correctory laws ( so we call these which abrogate , or restrict former laws ) are to be strictly interpreted , for we should reced as little as can be from received laws . honourable laws are to be extended , and the paritie of reason , often prevails with our judges , to extend laws to cases , that are founded on the same reason , with what is expresly determined by the statute . tit. ii. of iurisdiction , and iudges in general . having resolved to follow iustinians method , ( to the end , there may be as little difference found , betwixt the civil law , and ours , as is possible : and that the reader may not be distracted , by different methods ) i do resolve , first , to lay down what concerns the persons of whom the law treats : ●at ●do , what concerns the things themselves treated of , such as rights , obligations , &c. tertio , the actions whereby these rights are pursued , which answers to the civilians , objecta juris , viz. personae , res , & actiones . the persons treated of in law , are either civil or ecclesiastick , the chief of both which are iudges , with whom we shall begin . and for the better understanding of their office , it is fit to know , that iurisdiction , is a power granted to a magistrate , to cognosce upon , and determine in causes , and to put the sentence or decreet to execution , in such maner as either his commission , law , or practice does allow . all iurisdiction flows originally from the king * so that none have power to make deputs , except it be containd in their commission ; and if a depute , appoint any under him , that sub-depute is called properly a substitute ; and every iudge is answerable for the malversation of his depute . iurisdiction is either cumulative , or privative ; cumulative jurisdiction , is when two judges , have power to judge the same thing ; and generally , it is to be remembred , that the king is never so denuded , but that he retains an inherent power , to make other judges , with the same power that he gave in former * commissions ; and thus he may erect lands , in a regality , within the bounds of an heritable sheriff-ship , and burghs royal , within the bounds of a regality ; and these bounds , within which , a judge may exerce his commission , is called his territory ; so that if any judge exercise iurisdiction , without his territory , his sentence is null : and among those who have a cumulative iurisdiction , he who first cites , can only judge ; and this is called , jus praeventionis . privative iurisdiction , is when one judge has the sole power of judging , exclusive of all others ; such power have the lords of session , in judging of all competitions , amongst heritable rights , and here there can be no prevention . iurisdiction , is founded to any judge , either , because the defender dwels within his territory , which is called , sortiri forum ratione domicilij : or secund● because , the crime was committed within his territory , which is called ratione delicti ; or tertio , if the person pursued , have any immovable estate , within his territory , though he live not within the same , he may be pursued by any action to affect that estate , which is called , sortiri forum ratione rei sitae . a iurisdiction , is said to be prorogate , when a person not other wayes subject , submits himself to it , as when he compears before an incompetent judge , and propons defences . all judges with us , must take the oath of allegiance , * and the test ; ‡ whereby they swear , to maintain the government of church and state , as it is now established ; and an oath de fideli administratione , before they exerce their office , and no excommunicate person , nor rebell against the government , can judge by our law. if a person be pursued before a judge , who is not competent , he may complain to the lords of session , and they will grant letters of advocation , whereby they advocat , that is to say , call that cause from the incompetent judge , to themselves ; and if after the letters of advocation are intimat to that judge , he yet proceed , his decreet will be null , as given spreto mandato . iurisdiction is either supream , inferior , or mixt : these courts are properly called supream , from whom there is no appeal to any higher iudicatory , such as the parliament , privy council , lords of session , the criminal court , and exchequer : inferior judges are such ? whose decreets , and sentences are lyable to the reviewes of the supream courts , as sherriffs , stewards , lords of regality , inferior admirals , and commissars , magistrates of burghs royal , barrons , and iustices of peace . mixt iurisdiction , participats of the nature , both of the supream , and inferior courts ; such a jurisdiction have the high admiral , and commissars , of edinburgh . both which are in so far supream ; that maritim affairs , and confirmations of testaments , must come in and be tabled , before the high admiral , and commissars of edinburgh , in the first instance . as also , they both , can reduce the decreets of inferior admirals , and commissars ; but seeing their decreets are subject to the review , of the lords of session , they are in so far inferior courts . no inferior iudge , can judge in the causes of such as are cusin-germans to him , or of a nearer degree , either of affinity , or consanguinity ; but there is so much trust reposed in the lords of session , that by a special * statute , they can only be declined incases relating to their fathers , brothers , sons , nephews , or uncles ; which by a late statute * , is likewise extended to the degrees of affinity , and to the lords of privy council , and exchequer , and the commissioners of iusticiary , and to all other iudges within the kingdom . the members of the colledge of iustice , have this priviledge , that they cannot be pursued before any inferior iudge ; and if they be , the lords will advocate the cause to themselves . tit. iii. of the supream iudges , and courts of scotland . the king , is the author , and fountain , of all power , and is an absolute prince , having as much power , as any king , or potentate , whatsoever , * deryving his power from god almighty alone * , and so not from the people . the special priviledges that he has , are called , his prerogative royal ; such as , that he only can make peace , or warr , call parliaments , conventions , convocations of the clergy , make laws * ; and generally all meetings called without his speciall command are punishable * , he only can remit crimes , legittimate bastards , name iudges , and councilors , give tutors dative , and naturalize strangers ; and is supream over all persons , and in all causes , as well ecclesiastick as civil * . the parliament of old , was only the kings barron court , in which all free-holders were oblidged to give sute , and presence in the same manner , that men appear , yet at other head courts . and therefore , since we had kings before we had parliaments , it is rediculous to think , that the kings power flowed from them . the parliament is called by proclamation , now upon fourty dayes , tho it may be adjourned upon twenty , but of old , it was called by brieves , out of the chancellary . it consists of three estates , viz. the arch-bishops and bishops ; and before the reformation , all abbots , and mitred-priors , sat as church men . secundo , the barrons , in which estate are comprehended , all dukes , marquesses , earles , viscounts , lords , and the commissioners , for the shires ; for of old , all barrons , who held of the king , did come ; but the estates of lesser barrons not being able to defray this charge , they were allowed to send commissioners for every shire . * and generally , every shyre sends two , who have their charges born by the shyre . tertio , the commissioners for burghs royal , each whereof , is allowed one and the town of edinburgh two ; though all the three estates must be cited , yet the parliament may proceed , albeit any one estate were absent , or being present would disassent . the legislative power is only in the king , and the estates of parliament only consent , and in parliament , the king has a negative voice , whereby he may not only hinder any act to pass , but even any overture to be debated . the acts of parliament must be proclaimed upon fourty days , that the lieges may know them * . to secure the crown against factions , and impertinent overturs in open parliament : our parliaments choose before they proceed to any bussiness , four out of each state , who with the officers of state determine what laws , or overturs , are to be brought in to the parliament ; and they are therefore called , the lords of articles . we have another meeting of the three estates , called the convention of estates , which is now called upon twenty days , and proceeds in the same way that the parliament does , diffreing only from it , in that the parliament , can both impose taxations , and make laws ; whereas the convention of estates , can only impose , or rather offer taxations , and make statutes for uplifting those particular taxations . but can make no laws . and of old , i find by the registers of the conventions , ( the eldest whereof now extent , is in anno 1583. ) that the conventions of estates consisted , of any number of the three estates , called off the streets , summarly by the king ; and yet they cryed down , or up money , and judged processes , which now they do not . the privy council is constituted by a special commission from the king , and regularly their power extends to matters of publick government ; in order to which , they punish all ryots , for so we call breach of the peace . they sequestrate pupills , gives aliments to them , and to wives , who are severely used by their husbands , and many such things , which require such summar procedour , as cannot admit of the delays necessary before other courts ; and yet if any of these , dipp upon matter of law , ( for they are only iudges in facto , ) they remit the cognition of it to the session , and stop till they hear their report . the council delay criminal executions , and sometime change one punishment into another , but they cannot remit capital punishments ; they may also adjourn the session , or any other court : it has its own president , who preceeds in the chancellours absence , and it has its own signet and seal : all who are cited to compeat there , must be personally present , because , ordinarly the pursuer concluds , that they ought to be personally punished . all dyets there are peremptor , all debat is in writ , no advocat being allowed to plead , because the council only iudges in matters of fact . the lords of council and session , are iudges in all matters of civil rights ; of old , they were chosen by the parliament , and were a committy of parliament : but the present modell was fixt and established by king iames the fifth , after the modell of the parliament of paris * . of old it consisted of seven ecclesiasticks , and seven laicks and the president was a church ▪ man ; but now all the fifteen are laicks . and there sits with them four noble — men , who are called extraordinarie lords and were allowed to sit to learn , rather then decide ▪ but now they vote after the ordinary lords . all the lords are admitted by the king ▪ and by statute cannot be admitted , till they be twenty ▪ five years of * age , and excep● they have a 1000 lib. or 20 chalders of victual in yearlie rent . nine are a quorum . crimes of old , were judged by the iustice general , iustice clerk , and two iustice deputes ; but now five lords of session , are joyned to the iustice general , and iustice clerk , and they are called the commissioners of justiciary ; because , they sit by a special commission only : four of which number make a quorum in time of session , three in time of vacance , and two at circuit courts * . the exchequer , is the kings chamberlain , court * wherein he judges what concerns his own revenues ; it consists of the theasurer , ( in whose place are sometimes named commissioners of the theasury , ) the theasurer depute , and as many of the lords of exchequer , as his majestie pleases . the high admiral , has a commission from the king , to judge in all maritime affairs , not only in civil , but also in criminal cases , where the crime is committed at sea , or within flood-mark ; nor can the lords of session advocat causes from him * ; tho they can reduce his decreets , as he does the decreets of all inferior admirals , or admiral deputes , for many heritors are constitute admirals , within themselves , by a right from the high admiral , since his gift , or from the king before it . tit. iv. of inferior iurisdictions , and courts . the sherriff , is the kings chief and ancient officer , for preserving the peace , and putting the laws in execution * , he has both a civil and criminal iurisdiction , and his commission is under the great seal ; he is obliged to raise the huy and cry after all rebels , and to apprehend them when required : to assist such as are violently dispos●est : to apprehend such as say mass , or trouble the peace , and take caution for their appearance * : he nor no inferior iudge , can hold courts in time of vacance , in civil cases , without a dispensation from the lords of session ; but in criminal cases , he needs no dispensation , because crimes should be instantly punished . he is iudge in all crimes , except the four pleas of the crown , to wit , murder , fir● rasing , robery , and ravishing of women * ; but murder he can judge , if the murderer was taken with red-hand , that is to say , immediately committing the murder ; in which case , he must proceed against him within three suns ; and in theft , he may judge , if the thief was taken with the fang . the shireff , is also judge competent , to punish bloodwits , for which he may syne in 50 pounds scots ; but no higher , and for contumacy , he can fine no higher than 10. pounds . a lord of regality , is he who has the land whereof he is proprietar or superior , erected with a iurisdiction , equal to the justices , in criminal cases , and to the shirreff , in civil causes ; he has also right to all the moveables of delinquents , and rebels , who dwell within his own iurisdiction , whether these moveables be within the regality , or without the same ; and because he has so great power , therefore no regality can legally be granted except in parliament † . the lord of regality , has also by his erection , power to repledge from the sherriff , and even from the iustices in all * cases except treason , and the pleas of the crown , that is to say , to appear , and crave ; that any dwelling within his iurisdiction , may be sent back to be iudged by him , and he is obliged to find caution , that he shall do justice , upon the malefactor whom he repledges ▪ within year and day , and , the caution is called cul ▪ reach * . the stewart , is the kings sherriff , within the kings own proper lands , and these were erected , where the lands had been erected , before in earledoms , or lordships ; for else the king appointed only a baillie in them , and these iurisdictions are called bailliaries , the baillies of the kings proper lands having the same power with the sherriff . and all these , viz. the sherriff , the stewart , and the lord of regalitie , proceed in their courts after the same way , and each of them , has a head burgh , where they hold their courts , and where all letters must be executed and registrate . the prince of scotland has also an appange , or patrimony , which is erected in a iurisdiction , called the principality . the revenues comes in to the exchequer , when there is no prince ; but ▪ when there is one , he has his own chamberlain . iustices of peace , are these who are appointed by the king , or privy council , to advert to the keeping of the peace , and they are judges to petty ryots , servants fies , and many such like , relateing to good neighbour-hood , exprest in the instructions , given them by the parliament * and are named by the council ; allbeit , be the foresaid statute , the nomination is to be by his majestie , and his royal successors , which the king has now remitted to the privy council . the iustices of peace do name constables , within their own bounds , from six months to six months ; their office is , to wait upon the iustices , and receive injunctions from them , delate such ryots and crimes to the iustices , as fall under their cognisance , apprehend all suspect persons , vagabounds , and night walkers , as is at length contained in their injunctions , given them be the foresaid act. every heritor may hold courts for causing his tennents pay his rent ; and if he be infeft , cum curijs , he may decide betwixt tennent and tennent in small debts , and may judge such as commit blood on his own ground ; tho his land be not erected in a barronie ; but if his land be erected in a barronie , ( which the king can only do : ) he may ( like the sherriff ) unlaw for blood-wits , in 50 lib. and for absence in 10. and if he have power of pit and gallows , he may hang and drown in the same manner as the sherriff can . tit. v. of ecclesiastick persons . since the reformation , the king is come by our law in place of the pope * , and all rights to kirk-lands , must be confirmed by him , else they are null ; * . his majestie only can call convocations of the clergie ; ( for so we call our national assemblies * ) and his commissioners sits in them , and has a negative . we have two archbishops , and twelve bishops , and they are thus elected , the king sends to the chapter a conge de eslire ; ( which is a french word , ) signifying a power to elect , and with it a letter recommending a person therein named , and the chapter returns their electing : whereupon the kings grants a patent to the persons , and a mandate to the archbishop , or bishops , to consecrate him : both which pass the great seal * . the archbishops and bishops , have the sole power , of calling synods within their own diocies * , and in these , they name the brethren of the conferance : who are like the lords of articles in the parliament , and by their advice the bishops , depose , suspend , and manage . bishops have their chapters , without whose consent or the major part , the bishop cannot alienate * , which major part , must sign the deeds done be the bishops ; and it is sufficient if those of the chaper , sign at any time even after the bishop ; but it must be in his lifetime : nor are minors , or absents , counted ; and one having two benefices , has two votes ; but the appending of the seal , is by special statute , declared to be sufficient in deeds done be the archbishop of st. andrews , without the subscriptions of the chapters * . a person or rector ecclesi●e , is he who is presented to the teiths , jure proprio ; but because of old , parsonages were bestowed on monastries , therefore they sent vicars , who served the cure for them ; and who got a share of the stipend , for their pains , either ad placitum ; and they were called simple vicars , or for life , and they were called perpetual vicars . and after the reformation , the churches , which so belonged to them continued vicarages still , the titular , who came in place of the convent , retaining the right to the parsonages duties . there were in time of poperie , collegiat kirks built , and doted by kings , and great men , for singing of mass , which were governed by a provost , and some for singing , who were called prebends ; and because , some parishes were wide , some were allowed , to build a chapel for their private devotion ; and since the reformation , these chaplanaries , and prebendaries , are allowed to be bestowed by the patrons , upon bursers in colledges , notwithstanding of the foundations * . for understanding all these , it is fit to know ; that the primitive church , either to invite men to build , or dote , or to reward such , as had , did allow such as either had built , or had bestowed the ground whereon to build , or had doted a church , already built , to present alone if , they were the only benefactors , or by turns , if there were moe , and they were called patrons , or advocati , ecclesiarum according to that , patronum faciunt , dos , aedificatio , fundus . when a church vaikes , the patron must present within six months , a fit person to the bishop ; else the right of presentation falls to the bishop , jure devoluto ; * but if the bishop refuse to admit and collate the person presented , the patron must complain to the archbishop , and if he also refuse , or delay , the privy council will grant letters of horning against the bishop , to receive the person presented * , and during the vacancy upon that refusal , the patron may retain the vacant stipends . upon this presentation the bishop causes serve an edict , on nine dayes ; wherein all persons are after divine service , advertised , to object , why , such a man should not be admitted to the benefice ; and if none object , the bishop confers the church and benefice upon the person presented ; and this is called a collation , after which , the bishop causes enter him , who is so collated , by causing give him the bible , and the keyes of the church , and this is called institution , presentation , gives only jus ad rem , and institution , jus in re , and is as a seasme . if the bishop be patron himself , he confers pleno jure ; and the presentation , and collation , are the same : bishops also have mensal churches , so called ; because , they are de mensa episcopi , being a part of his patrimony , in which he serves by his viccars , and plants as diocessian bishop ; and if a town , or paroch , resolve to make a second minister , when they are not patrons , he is called , a stipendiary minister , and he is collated , and instituted also ; but the patrons presentation is sufficient in prebendaries , and other benefices , which has not curam animarum ; and that without the necessitie of collation , or institution , the bishop having no other interest in the benefices , but in so far as they concern the cure of souls . by act of parliament , all ministers must have a competent stipend , not below eight chalder of victual , or 800. merks or above 1000. merks or 10. chalders of victual : ( except there be just reason to give less ) * together with a manse and gleib . the manse , a manendo , is the place where the minister is to dwell , the gleib , from gleba terra , is a peece of land for corn and fother to his beasts : if there was a manse of old belonging to the parson , or viccar , the minister has right to it ; if there was none , the parochiners must build one , not exceeding 1000 lib. and not beneath 500 merks * , at the sight of the bishop of the diocie , or such ministers as he shal appoint , with two or three of the most discreet men in the paroch : as also the heritors are lyable to repair the manse ; but the present incumbent is obliged to leave it , in as good condition as they gave it to him * . the ministers glieb , is to comprehend 4 acres of arrable land , or sixteen sowms-grass , where there is no arrable land , which is to be designed out of the lands , which belonged of old to abbots , priors , bishops , friers , or any other kirk ▪ lands within the parish * with freedom of foggage , pasturage for a horse , and two cows , fewel feal , and divot , which gleibs are to be designed be ministers , named by the bishop , with the advyce of two of the most honest and godly of the parishoners , and the designation is to be signed be the designers * . if a bishop or minister , be consecrated , translated , or entered , to his benefice , before whitsonday ; he has right to the whole years fruits , because they are then presumed to be fully sown , and if he be deposed or transported before whitsonday , for that same reason he hath no part of that year ; but if he serve the cure a while after whitsonday , and be transported or deposed before michalmas , he hath the half of that years stipend ; and if he serve till after michalmas , he hath the whole years . so that the legal terms of benefices are whitsonday , at which time the sowing is ended ; and michalmas , at which time the fruits are reaped . they have likewise right to the annat after their death , which was introduced by the cannon law , and by a special statute with us , is declared to be half a years rent of the benef●ce , or stipend , over and above what is due to the defunct , for his incumb●ncie ; so that if he survive whitsonday , he has the half of that year for his incumbencie , and the other half a annat , and if he survive michalmas , he has the half of the next year for his annat . there is a committie of parliament , alwayes sitting , called the commission for plantation of kirks , or valuation of teinds , ( consisting of so many of every estate of parliament ; ) who have power to modifie , and augment ministers stipends , and to unite and disjoyn churchs , &c. whose decreets ; because they are a commitie of parliament cannot be reduced by the session , or any other inferior iudicature . the primitive christians remitted the cognition of all cases that related to religion , as the matters of divorce , bastardi● , the protection of dying mens estates , to their bishops ; or such as they imployed , under them , who were called officialls , and with us are called commissars ; and are called therefore iudices christianitatis : and they are therefore the only judges in divorce ; because , it is the breach of a vow : and to scandale , because , it is an offence against christianity , and of teinds and benefices ; because , these are the patrimony of the church : and of all matters referred to oath , ( if the same exceed not 40 lib. scots ) because , an oath is a religious tye . every bishop has his commissar , who has his commission from the bishop only ; and this extends no further , than the constituents diocy . but the archbishop of st. andrews , has power to name four commissars , who are called the commissars of edmburgh ; because , they sit there , and they only are iudges to divorce upon adultery , and can only declare marriages null , for impotencie and to bastardy , when it has any connexion with adultery , or marriage : and they only may reduce the sentences of all inferrior comm●ssars * , though the lords of session may reduce even their decreets and sentences ; they have instructions from the king , which are their rule . and these are likewise recorded in the books of sederunt of session ; tit. vi. of marriage . having spoken fully of persons , at they are considered in a legal sense ; we shall now treat of marriage , which is the chief thing that concerns persons , and their state in law. maarriage is def●ned to be , the co●●uncto●n of man and wife , vowing to live inseparably together , till death . by conjunction ▪ ●ere , consent is understood , n●m cons●nsus , non ●oactus , facit matrimonium . consent , is either de futuro or de presenti , consent de futuro , is a promise , to solemnize the marriage , which in law , is called spousalia ; and this is not marriage ; for either party , may resile , rebus integris , notwithstanding of the interveening promise , or espousals , consent , de presenti , is that in which marriage does consist ; and therefore , it necessarly follows , that none can marry , except these who are capable to consent , and so idiots , and furious persons , durante furore , cannot marry , nor infants , who have not attained the use of reason : that is , when they are within the years of pupillarity ; which is defined in law , to be 14 years , in males , and 12 in foemales , nisi malitia suppleat aetatem . the law , in decencie , requires the consent of parents , though a marriage without it , is valid , if the persons married be capable of consenting . by our law , none can marry who are nearer relations than cousin germans ; which is suitable to the iudicial law , of moses * , and the same degrees porhibited in consanguinity are also forbidden in affinity . marriage , is either regular , and solemne , or ●landestine ; the regular way of marrying , is , by having their names proclaim'd in the church , three several times , which we call proclamation of banns , without which , or , a dispensation from the bishop , the marriage is called a clandestine marriage ; and the parties are finable for it ; but the marriage is still valid * ; cohabitation also , or dwelling together , is presum'd to be marriage † , if the parties were repute , man and wife , dureing their lifetime , and so the children are not bastards ; though they cannot prove that their parents were marryed ; unless it be clearly prov'd that they were not married . from the coniugal society , arises , the communion of moveable goods betwixt man and wife ; but the administration thereof during the marriage is solly in the husband ; which reaches even to alienation , and disposing upon the moveables , at his pleasure though they be not dispon'● to him by her ( marriage , being a legal assignation , as to thi● effect ) but he has no further right to her heritage , save that he has right to the rents of it , and to administra●● and manage it , during th● marriage , and this is called ius mariti , and is so inseparable from the qualitie of ● husband ; that he cannot b● our law , renounce his pon●● of administration , so that the● are both domini , by this communion ; but the husband h●● a dominium actu , and th● wife only habitu . the husband is lyable dureing ●he marriage to pay her moveable ●ebts ; but how soon the mar●iage is disolv'd , he is no ●urther lyable to pay her debts ; than in as far as he was a gainer by her estate . if the wife contract any debt , or doe any other deed , after the proclamation of banns , the husband will not be thereby prejudg'd . the husband is also oblig'd ●o aliement his wife , and if he ●efuse , the privy council , or lords of session , will modific ●n aliement to her out of her husbands means , suitable to ●is qualitie , which they will ●lso grant , ob saevitiam , if he ●reat her inhumanely . the husband is tutor , and ●urator to his wife , and there●ore , if she had tutors , or curators , formerly , their powe● is devolved over by the law upon the husband ; and whatever deeds she does withou● his consent are null , & when s●● is cited , he must be cited fo● his interest ; or if she marri● during the dependence of a● process , the samen must upon supplication be continued against him . because , the sole administration , during the marriage belongs to the husband ; law hath secured the wife , th●● she cannot oblige her self when she is cloathed with ● husband , albeit with his consent , and therefore all bands and obligations , granted by ● wife stante matrimonio , are 〈◊〉 jure , null ; but if she oblige h●● self , ad factum prestandum , s●● will be lyable , as if she shoul● oblige her self to infest any man in lands properly belong●ng to her self . during the marriage , all donations made betwixt husband and wife are revokable , at any time in their life , ( except in so far as they are suitable provisions ) least otherwayes , they might ruine themselves , thorow love , fear , or importunity ; and that either expresly , by revocking what is done ( though they obliged themselves not to revoke ) or tacitly , by disponing to others , what was so gifted . all rights made by a wife to her husband , or any third partie with his consent and to his behoof , are valid rights ; if they be ratified by her before a iudge , before whom she is to declare without the presence of her husband , that she was not compelled to do that deed , and swear , that she shall nev●● quarrel the same : whereas ▪ if they be not ratified , they may be quarelled , as extorted vi & metu , or may be revokes as donatio inter virum , & uxorem , which the ratification before a iudge does absolutely exclude , propter religionem sacramenti , the ratification , being extra presentiam mariti . marriage is disolved either by death , or divorce , and 〈◊〉 the disolution of the marriage be by death there is a difference , if the samen be within year and day of the marriage , or thereafter ; for if either the husband or the wife die within the year , all things done in tuitu matrimonij , become void ▪ and return to the same condition they were in before the marriage ; except there be a living child , procreat of the marriage , who was heard cry . if the marriage be disolved by death , after the year expyres , then the wife surviving , has right to a third of the moveable estate ; if there be children ; and to the half , if there be none , and this is called jus relictae ; and tho this right does not hinder the husband , to give or dispose upon his moveables in his life , yet he cannot do any deed to defraud his wife of this right , the fraud being palpable ; she has also a right to the liferent of the third of the lands , wherein he dyed infest , and this is called a widows terce ; and to any other provisions contained in her contract of marriage , which provision if it exceeds the terce , it excludes * it ; and the husband surviving has right to the tocher : and if he marry an heritrix , he has right to all her lands , after her death , during his own life , if there be a child of the marriage who was heard cry , and this is called , the courtisie of scotland * . marriage is disolved by divorce , which is granted either for wilful disertion , and non adherence , to be procured by a process before the commissars of edinburgh for non adherence ; when either partie refuse to cohabite together , and remains in their malicious obstinacie four years , and are thereupon excommunicate * , or for adultery , in both which cases the persuer must give his oath , that the process is not carryed on by collusion , and after a decreet of divorce is obtained , in either case the partie innocent may marry ; but the partie that is guilty cannot , and besides looses all the benefite that they could expect by the marriage . tit. vii . of minors , and their tutors , and curators . whilst persons are within twenty one years , the law presumes them to want that firmeness of iudgement , which is requisite , for the exact manadgement of their affairs ; and during that time , they are called minors , by a general terme ; though properly , such onely are to be called minors , who are past pupillarity , which lasts in males till fourteen , and in females till twelve . tutory may be defined , a power and faculty , to govern the estate and person of pupils ; and the law gives tutors , and curators , for the manadgement of their affairs . there are three kinds of tutors , viz. tutor nominate , tutor of law , and tutor dative , tutor nominate , ( who is likewise called tutor testamentar , ) is he who is left tutor by the father in his testaments , or any other write , and he is not obliged to find caution , or give his oath , de fideli administratione ; because it is presumed , the parent hath chosen a sufficient person . the father onely can name tutors ; but if the mother , or even a stranger , give or dispone any thing to a child , he may name a tutor to manadge what he gives ; but if there be no tutor nominate , or if he accepts not , then there is place for a tutor of law , who is so called , because he succeeds by law , and generally , the nearest agnate ( for so we call such as are related by the father ) who is to succeed to the minor , being past twenty five years , and would be heir to him , is his tutor in * law : he takes a brieff out of the chanc●llary , and serves himself before a iudge , to whom it is directed , and the tutor of law must find caution before he administrate . if he do not s●rve within a year after the time he might have served , then any person may give in a signator to the exchequer , and he gets a gift under the privie seal , of being tutor dative , and finds caution , acted in the books of exchequer : but of old , they found caution in the commissars books : this tutor and he onely is oblidged to make faith , de fideli administratione . if there be more tutors than one , the major part must all consent ; but the pupil needs not subscrive : but if there be a tutor , sine quo non , he must alwayes be one of the consenters . after the years of pupillarity there must be a summons raise● at the pupils instance , summonding some of the fathers-side , and some of the mothers-side , upon nine days warning ▪ to appear before any iudge and at the day , the minor gives in a list of those he intends to choise to be his curators , and those who accept must subscrive the acceptation , and they must find caution de fideli * , upon all which the clerk extracts an act , which is called , an act of curatory : there uses to be sometimes , curators , sine quo non , and the major part with him is still a quorum ; except the minor in his particular election hath appointed otherwise ; for the quorum is arbitrarie , and the act bears how many shall be a quorum . there are these differences betwixt tutors and curators , that tutor datur personae , curator rei , a tutor acts , and subscrives for his pupill , a curator with him ; but both must make inventarie of all the pupills estate before they administrate , with consent of the nearest of kinne on both sides , and if they neglect to make inventary , they will get no expenses allowed them during their administration , and may be removed from their offices as suspect * ; neither have sallaries : and both are lyable to compt , but not till their office expyre , as both have action against their minors , for what they profitably expended during their administration , which is called , actio tutelae contraria . if the minor have curators , and do any thing without their consent to his prejudice ; ( for he may make his condition better without them , but not worse , the advantage being evident and without hazard ) then that act is , ipso jure null , that is to say , he needs not revoke ; but if he have no curators , then any act he does to his own prejudice is valid ; but he must reduce the same thus , viz. he must writ a revocation and subscrive it before two witnesses , and registrate it , and thereupon he must raise and execute a summonds of reduction of that act , ex capite minoritatis , & laesionis , before he be 25 years of age , wherein he must make appear , he was both minor , and was laes'd ; otherwayes , the lords will not repone him : though this revocation be not absolutely necessarie , yet the executing of a summonds before 25 is absolutely necessary : and though a minor swear not to revoke , yet this oath is declared null by law , and the eliciter of it punishable , and infamous * ; but if he fraudulently circumveen● another , by saying he was major , he will not be restored against his own fraud . a tutor or curator , cannot persue his pupill , ▪ till he has compted for his intermissions ; for it s presum'd he has his pupills estate in his own hands , and whatever right he buyes of what belong'd to his pupill is presum'd to be bought with his pupills means ; and so the advantage must accress to the pupill . so carefull has our law been to protect minors , and to secure old estates , that minor non tenetur placitare super haereditate paterna * , that is to say , a minor is not obliged to answer any process concerning his fathers heritage ; but , yet if his fathers right be quarrelled for his fathers crimes , or delicts , as in the cases of falshood , forfeiture , or recognition , these cases are excepted , and he is obliged to answer . secundo , this priviledge extends not to actions concerning marches , or division of lands . tertio , it defends not against the superiour perseuing for his casualities . quarto , where the minors right is only quarrell'd consequentiallie , the chief right quarrolled belonging to a major , there is no place for this priviledge . quinto , it defends not in cases where the heritage was deryv'd from collaterals , such as brothers , or uncles . sexto , it defends only where the heritage descended even from the father , or grand-father , if they dyed in peaceable possession , and if no process was intented against them in their own life time , septimo , it takes only place , where the father was actually infeft ; but then it is accounted heritage , tho it was conquest by the father . the priviledge of minoritie , is in some cases allowed to the minors heir : which are comprised in these following rules 1. if a minor succeds to a minor , the time of restitution is regulated by his own minority , and not by his predecessors . 2. if the predecessor be major , and intra quadriennium utile restitutione , is competent during the heirs minority ; but he has no further of the anni utiles , than remained to the defunct , the time of his deceass . 3. if a major succeed to a minor , he has only quadriennium utile , after the minors deceass , or so much thereof as was unexpyred at that time . minoritie ends both in men and women , when they are 21. years of age compleat ; but after that there is 4. years granted , wherein they may reduce what they did revoke before they were 21. years compleat , and these years are called , quadrienneum utile . if a man be an idiot , or furious he must be found to be so by an inqueist , and thereafter his nearest of kinne may serve themselves tutors ; or the exchequer may grant a tutor dative , if they serve not , but the tutor in law , will be preferred to that tutor dative offering to serve quandocunque , and it must be proven to the inquiest at the time of the service , that he is furious , and when he began to be so , and all deeds done by him after that are null , not only from the date of the service , but from the time that he was found to be idiot , or * fuirous . if a person be prodigal , or spend-thrift , he interdicts himself , either voluntarly , which is done by a band , whereby he obliges himself to do nothing without the consent of such friends as he therein condescends upon ; and these are therefore called the interdicters , and if this narrative be false , so that the person is not improvident , as he relates in the band , this voluntar interdiction will be reduc'd . secundo , interdiction proceeds upon a persute , at the instance of the nearest of kin , against the prodigal whom the lords will interdict if they see cause ; or 3. though there be no persute ; yet if in another process they find he has been often , or is obnoxious to be cheated , they will interdict him , ex proprio motu , and these are called iudicial interdictions ; and no interdiction lasts longer than the levitie and prodigality which occasioned it , but this requires also the sentence of a iudge . upon this voluntar band , the lords of the session grants letters of publication , and after these letters are published , at the mercat cross of the head burgh of the shire , where the person interdicted dwells , and are registrat ; the person interdicted can do nothing to the prejudice of his heritable estate , otherwayes the interdicters may reduce these deeds as done after the publication of the interdiction ; ( for interdictions extend only to heritage ; but yet the person himself is stil lyable to personal execution , even upon these deeds done after interdiction . a father , is likewise in law administrator to his own children , that is to say , is both tutor , and curator , to them , if they fall to any estate during their minoritie , and if either pupill or minor have any legal action to prosecute , and want tutors or curators , the lords will upon a bill authorize curators , who are therefore called curators , ad lites . all tutors and curators can act and do whatever the pupill might do if he were major ; except in selling of land , which they cannot sell without a sentence of a iudge● ; finding the vendition necessar for payment of debt , or setting tacks to last beyond their own office. all these tutors , curators , and administrators , or any who behave as such , and who are called in our law pro-tutors , are lyable to do exact dilligence , and therefore ; if any of their pupills debitors becomes bank-rupt , or their tennents break , they are lyable and the pupill may pursue any one of the tutors for the negligence of all the rest , but he has his relief against the rest : they are likewayes lyable to put the minors rents , out upon annuallrent , within half a year , or a term after they receive them , and to put out his money ▪ upon annuallrent within a year , both which times are allowed to get good debitors but if his bands bear annuallrent , they are only obliged to take in these annuall-rents once during their office , and to turn them in a principal summ , bearing annuall-rent . after tutors and curators have once accepted they cannot renounce ; but if they miscarie in their administration , they may be removed , by an action , as suspect tutors . if there be moe tutors or curators , the office upon the death of any of them accresses to the survivers ; except they be named joyntly ; for then the first nomination is disolved by the death of any one of them , the defunct not having trusted any one , and for the same reason , if a certain number be declared a quorum , the nomination fails , if so many dye as that this number survives not , nor does the office accresse to such as survive . we have little use in scotland , of what the institutions of the roman law teach , concerning slaverie , or patria potestas , for we as christians allow no men to be made slaves , that being contrare to the christian liberty ; and the fatherly power or patria potestas , has little effect with us ; for a child in familie with his father , acquires to himself and not to his father as in the civil law. part second . tit. i. of the division of rights , and the several wayes by which a right may be acquired . being to treate in the second book of things themselves , to which we have right , and how we come to have right to them , it is fit to know . that some things fall not under commerce , and so we cannot acquire any propertie in them , such as are things common , as the ocean , ( though our king has right to our narrow seas , and to all the shoars . ) secundo , things publick , which are common only to a nation or people , as rivers , harbours , and the right of fishing , in the saids rivers . tertio , res universitatis , which are common only to a corporation or citie , as a theater , or the mercat place , and the like : quarto , things that are said to be no mans , but are iuris divini , which are either sacred , such as the bells of churches , for though we have no consecration of things since the reformation , yet some things have a relative holiness and sanctity , and so fall not under commerce , that is to say , cannot be bought and sold by private persons . quinto , things that are called sanctae , so called because they are guarded from the injuries of men , by speciall sanctions , as the walls of cities , persons of ambassadours , and laws , sexto , things religious , such as church-yeards . as to those things which fall within commerce , we may acquire right to them , either by the law of nature , and nations , or by our civil and municipal law , dominion or propertie is acquired by the law of nations either by our own fact and deed . or secundo , by a connexion with , or dependence upon things belonging to us , the first by a general term is called occupation , and the last accession . occupation , is the apropriating and apprehending of those things , which formerly belonged to none . and thus we acquire propertie in wild beasts , of which we acquire a right how soon we apprehend them , or are in the prosecution of them with probabilitie to apprehend them , as also we retain a right to them whilst they remain in our possession , and evenafter they have escapt , if they be yet recoverable by us . secundo , propertie comes by accession , as for instance , a house built upon , or trees taking root in our ground , and the product also of our beasts belong to us , and ground that grows to our ground becomes insensibly ours , and is called , alluvio by the civilians . and it is a general rule in law , that accessorium sequitur naturam sui principalis ; and yet a picture drawn by a great master upon another mans sheet or table , belongs to the painter , and not to the master of that whereon it is drawn , the meanness of the one ceding to the nobleness of the other . there are many other wayes of acquiring right and property , which may be referred either to occupation , or accession ; as if a man should make a ship of my wood , it would become the makers , and would not belong to me , to whom the wood belonged , and this is called specification , in which this is a general rule , that , if the species can be reduced to the rude masse of matter , then the owner of the matter is also owner of the species , or thing made ; as , if a cup be made of another mans silver , the cup belongs not to the maker , but to the owner of the mettle ; because it can be reduced to the first mass of silver , but if it cannot be reduced , then the species will undoubtedly belong to him that made it , and not to the owner of the matter , as wine , and oyl , made of anothers grapes , and olives , which belongs to the maker , seing wine , cannot be reduced to the grapes of which it was made . propertie is likewise acquired when two or moe persons mixe together in one , what formerly belonged to them severally , and if the matterials mixed be liquid , it is called by a special name , confusion , as when several persons wines are mixed and confounded together ; but if the particulars mixed , be dry and solid , so as to retain their different shapes and forms , it is called commixtion , and in both cases , if the confusion , or commixtion be by consent of the owners , the body or thing resulting from it , is common to them all ; but if the commixtion be by chance , then if the matterials cannot be separated , the thing is yet common ; as when the graine or corns of two persons are mixed together by chance , here there must necessarly be a community ; because , the separation is impossible ; but if two flocks of sheep belonging to different persons should by accident mix together , there would be no community ; but every man would retain right to his own flock , seing they can be distinctly known and separated , and these two ways of acquisition are by accerssion . the last , and most ordinarie way of acquiring of property , is by tradition , which is defyned a delivery of possession by the true owner , with a design to transfer the property to the receiver , and this translation , is made either by the real delivery of the thing it self , as of a horse , a cup , &c. or by a symbolick delivery . as , is the delivery of a little earth and stone in place of the land it self ; for , where the thing cannot be truely delivered , the law allows some symbols , or marks of tradition , and so far is tradition necessary to the acquiring of the prorerty in such cases , that he who gets the last right , but the first tradition is still preferr'd by our law. if he who was once proprietar does willingly quite his right , and throw it away , ( which the civil law calls , pro derelicto habere , ) the first finder acquirs a new right , per inventionem , or by finding it , by which way also men acquire right to treasures , and to iewels lying on the shoare ; and generally to all things that belonged formerly to no man , or were thrown away by them ; but it is a general rule in our law , that what belongs to no man is understood to belong to the king. prescription , is a chief way of acquiring rights by the civil law ; but because , that title comprehends many things , which cannot be here understood , i have treated that title amongst the ways of loosing rights , it being upon diverse considerations , modus acquirendi & amittendi . we also acquire right to the fruits of those things which we possess , bona fide , if these fruits were gathered in or uplifted , and consumed by us , whilst we thought we had a good right to the thing it self , for though thereafter our right was found not to be good ; yet the law , judged it unreasonable to make us restore what we lookt upon as our own ; when we spent it , and therefore , whenever this bona fides ceaseth , which may be several wayes , especially by intenting an action at the true owners instance , we become answerable for these fruits ; though thereafter they be percepti & consumpti , by us . tit. ii. of the difference , betwixt heritable , and moveable rights . having in the former title cleared , how we acquire rights , we come now to the division of them . the most comprehensive division of rights amongst us , is , that whereby they are divided into heritable , and moveable rights . heritable rights in a strict sense , are only lands , and all summs of money , and other things which can be moved from one place to another are moveable but that is only counted heritable in a legal sense , which belongs to the heir , as all other things which fall to the executor are moveable , and so sums of money , albeit of their own nature they are moveable ; yet if they were lent for annualrent they were of old repute heritable . for understanding whereof it is necessar to know that albeit by the cannon law all annualrents were forbidden , as being contrare to the nature of the thing , money being barren of its own nature : yet the reformed churches do generally allow it ; nor were the iews prohibited to take annualrent from strangers . before the year 1641 all bands , and sums , bearing annualrent , were heritable , as to all effects so that the executor , who is haeres in mobilibus , had no interest in , nor share of such bands , but they belonged intirelie to the heir ; but that parliament finding that the rest of the children , beside the heir had no provision by our law , except an equall share in the moveables , they therefore ordained that all bands for summs of money should be moveable , and so belong to the executors ; except either the executors , were secluded , or the debitor were expresly obliged to infest the creditor , which is likewise renewed since the kings resturation * : for in these cases , it was clear that by the distination of the defunct , ( which is the great test in this case ) these sums were to be heritable ; and yet all sums bearing annualrent , are still heritable in so far as concerns the fisk , or the relict ; so that if a band bear annualrent , to this day the fisk cannot claime any right to it , as falling under the rebells single escheate , ( whereby when he becomes rebel all his moveables fall to the king ; ) nor has the relict any right to a third of it , as she has to a third of all moveables , the law ▪ having presumed that relicts will be still sufficiently secured by their contracts ; but whether the sum be heritable , or moveable , all the bygone annualrents , and generally all bygones are moveable , as to all intents and purposes , and so fall to executors , and to the fisk , and to the relict ; because bygone rests are lookt on as money lying by the debitor , they being already payable , as all obligations bearing a tract of future time belong to the heir . so far does the law defer to the will of the proprietar , in regulating whither a sum should be heritable , or moveable ; ( the law thinking that every man is best iudge how his estate shal be bestowed ; ) that if a man destinate a sum to be imployed upon land or annualrent , this destination will make it heritable , and to belong to his heir ; or though the sum was originally secured by a moveable band , yet it may become heritable by the creditors taking a superveening heritable security for it , or by comprising for his security ; but yet the creditors design is more to be considered , than the supervenient right ; as for instance , a sum may be moveable ex sua natura , and yet may be secured by an heritable surty ; as in the case of bygone annualrents , due upon infeftment of annualrent , which are unquestionably moveable of their own nature , and yet they are heritably secured ; and even executors may recover them by a real action of poynding of the ground : and , if a wedset bear a provision , that notwithstanding of requisition , the wedset shall still subsist , the requisition will make the sum moveable , though it continue secured by the infeftment ; as also , sumes ab initio heritable , may be secured by an accessory moveable security , without altering their nature ; as for instance , if one take a gift of escheat for securing himself in heritable sums ; this does not alter the nature of the former heritable right . though a sum be heritable , yet if the creditor to whom it is due require his money , either by a charge or requisition it becomes moveable , for the law concludes in that case , that the creditor designs rather to have his money , than lying in the debitors hands upon the former security ; and if it were lying in money beside him it would be moveable : and a requisition to one of the cautioners will make it moveable , as to the principal and all the other cautioners ; but a charge on a band wherein executors are secluded , will not make the sum moveable , for the design of the creditor is presumed to continue in favours of the heir , till the sum be payed , or the band innovated ; but it has been otherways decided of late ; and for the same reason a requisition used by a wife , who has a heritable sum , that falls not under the ius mariti , will not make it moveable , since it is presumed she designed only to get payment , but not to give it to her husband . but if the creditor who required his money take annualrent after that requisition , it is presum'd that he again altered his inclination and resolved to have it heritable , & to continue due by vertue of the first security though a band be heritable , as bearing annualrent , yet before the terme of payment it is moveable , as to all persons . from all which it is clear , that some sums are moveable as to the executor , but not as to the fisk or relict , and some may be moveable , as to the debitor and his executors , and yet may be heritable as to the creditor and those representing him , as for instance , an obligation , to imploy a sum due by a moveable band , upon land or annualrent for the heirs of a marriage , that sum as to the creditor would be heretable , yet quo ad the debitor it would remain moveable . title iii. of the constitution of heritable rights , by charters and seasins . having treated in the former chapter of the difference betwixt heritable and moveable rights , it is now fit to begin with heritable rights as the more noble . our heritable rights are regulate by the feudal law , by which feudum , which we call a few was defined to be a free and gratuitous right to lands made to one for service to be performed by him : he who grants this few , is in our law called the superiour , and he to whom it was granted is called the vassal ; the superiours right to the fie is called dominum directum , and the vassals right is called dominum utile , and if that vassal dispone the land to be holden of himself , then that other person who receives that few , is called the sub-vassal ; whereas the vassal who granted the few becomes the immediate superiour to this sub-vassal , and the vassals superiour , becomes the sub-vassals mediate superior , and is so called because there is another superiour interjected betwixt him and the sub-vassal . the superiour dispons ordinarly this few to be holden of him by a charter and seas●n : the charter is in effect the disposition of the few made by the superiour to the vassal , and when it is first granted , it is called an original charter or right , and when it is renewed it is called a right be progress , and proceeds either upon resignation when the lands are resigned in the superiours hands for new infeftment , either in favours of the vassal himself , or of some third partie , or by confirmation , when the superiours confirms the right formerly granted , and if it is to be holden from the disponer of the superiour that is called a me , and is a publict right , and is still drawn back to the date of the right confirmed ; but if the confirmation be onely of rights to be holden of the vassal , it is called , de me , and is a base right , the effect of this charter being to secure against forfaulture or recognition of the superiour , all which are voluntar rights ; but if they be granted in obedience to a charge upon apprising or adjudication , they are necessar . if the charter contains a clause de novo damus , then it has the effect of an original right , and secures against all casualities due to the superiour ; in which the first thing expressed is for what cause it was granted , and if it was granted for love and favour , our law calls that a lucrative cause , or for a price , and good deeds , this we call an onerous cause . the second thing considerable in a charter , is the dispositive clause , which contains the lands that are disponed ; and regulariter with us , the charter will give right to no lands , but what are contained in this clause , though they be enumerated in other places of the charter . the third clause is that wherein is exprest the way how the lands are to be holden of the superiour , and this is called the tenendas , from the first word of the clause . the fourth clause , is that which expresses what the vassal is to pay to the superiour , and this duty is called the reddendo , because the clause whereby it is payable begins , reddendo inde annuatim . the fifth clause , is the clause of warrandice , which is either personal , or real , personal warrandice is when the author or disponer is bound personally , and is either simple warrandice , which is only from subsequent and future deeds of the granter ; and this warrandice is implyed in pure donationes ; or secundo , warrandice from fact and deed , which is , that the granter hath not done , or shall not doe any deed prejudicial to the right warranded . or tertio , warrandicè is absolute , and that is , to warrand against all mortals : and in absolute warrandice , this is a rule that an adaequate onerouse cause presums still absolute warrandice ; but absolute warrandice in assignations imports only that the debt is truly due , and not that the debitor is solvent . all rights granted by the king are presumed to be donations , and import no warrandice . real warrandice , is when infeftment of one tenement is given in security of one another . the effect of warrandice is , that if the thing warranded be taken away , there is competent to the partie , to whom the warrandice is granted , an action of eviction , for relief . because tradition is requisite to the compleating of all rights ; therefore the charter contains a command by the superiour to his bailly ; to give actual state and seasin , to the vassal , or to his atturney by tradition of earth and stone , and this is called the precept of seasin , and upon it the vassal , or some other person having a procuratory from him , gets from the bailly earth and stone delivered , in presence of a notar and two witnesses , which notar writes out an instrument upon all this , which instrument is called the seasin . and if the superiour gives seasin himself , it is called a seasin , ( propriis manibus ; ) so that a formal seasin is the instrument of a notar , bearing the delivery of earth and stone , or some other symbols by the superiour , or his bailie to the vassal , or his atturney , the tenor whereof is known and fixt , and now by a late statute the witnesses must subscrive the instrument * ; and thus the vassal stands infest in the land by charter and seasin . this seasin being but the assertion of the notar , proves not ▪ except the warrand of it , that is to say , the precept or disposition whereon it proceeded be produced ; but a seasin given by a husband to his wife , or by a superiour to his vassal , propriis manibus , ( that is to say , by the granters own hands without a precept ) is sufficient , when the competition is with the granters own heirs ; or with no more solenin rights , and is not exorbitant : and after fourty years , there is no necessity to produce either precept of seasin , or procuratorie of resignation by a special statute * . this seasin must be registrated within 60. dayes , either in the general register at edinburgh or in the particular registers of the shire ; stewartry or regality where the land lyes , els the right will not be valid , against a singular successor ; that is to say , if any other person buy the land , he will not be obliged to take notice of that seasin ; but the right will still be good against the granter and his heirs . if lands lye discontigue , every tenement must have a special seasin ; except they be unite in one tenement ; and then one seasin serves for all ; if there be a special place exprest , where seasin should be taken ; but if there be no place exprest ; then a seasin upon any part will be sufficient , for the while , contiguous tenements , ( these being naturally unite ; ) but will not be sufficient for lands , lying discontigue ; and one seasin will serve for all tenements , of one kind ; but where they are of several kinds ; as lands , milnes , &c. they will require several seasins ; the symbols of possession being different ; for lands pass by the tradition of earth and stone , and milnes by the clap and happour . sometimes lands are erected into a barronie , ( the nature of which is explained before ▪ tit. inferiour iudges , ) and whensoever this is granted , union is imployed as the lesser degree . erection in a barrony can only be by the king , and is not ▪ communicable by any subaltern rights , albeit the whole barrony be disponed ; tho the union may be thereby communicate . this union can only be granted by the king , which he may grant either originally , or by confirmation ; and being so granted it may be transmitted by the receiver to a sub-vassal ; but if a part of the lands united be disponed , the whole union is not dissolved , but the part disponed onely ; and this union , and all other priviledges , and provisions , can onely be granted in the charter ; but not in the seasin . tit. iv. of the several kinds of holding . the first division of feus from the several kinds of holding , is that some lands , hold ward , some feu , some blench , and some burgage . for understanding ward-holdings , it is fit to know , that at first , all feus were rights granted by the longo-bards , and the other northern nations , ( when they conquest italy ) to their own souldiers for service to be done in the warrs ; and therefore ward-holding which is the properest holding , is called servitium militare , and all lands are therefore presumed to hold ward ▪ except another holding be exprest ; and servitium debitum & consuetum , is interpret to be ward-holding . the advantages arising to the superiour , by the speciality of this holding , are that the superiour has thereby the full meals , and duties of the ward-lands , during the years that his male-vassal is minor * ; for the feu being given originally to the vassal , for military service , it returns to the superiour , during minority ; because the law presumes , that the minor is not able to serve his superiour in the warrs , but in female-vassals , this casualitie lasts only till 14. years compleat ; because , they may then marry husbands , who may be able to serve the superiour , and this properly is called the casuality of ward ; for marriage , is due in other holdings , as shall be cleared in the next title . feu holdings , is that whereby the vassal is obliged to pay to the superiour a sum of money yearly , in name of feu-dutie nomine feudi firmae . this holding has some resemblance to the ( emphyteosis ) in the roman law ; but is not the same with it ; for emphyteosis was a perpetual location , containing a pension , as the hyre which was granted , for improving and cultivating barren ground ; but our feu-holding , comes from the feudal law , ( whereof there was no vestige in the civil law , ) and passes by infeftment to heirs . blench-holding , is that whereby the vassal is to pay an elusory duty , meerly for acknowledgement , as a penny , or a pair of gloves , nomine albae firmae , and ordinarly it bears , si petatur tantum . these blench duties are not due , whether they be of a yearly growth , or not ; except they be required yearly by the superiour * , as for instance , if the blench dutie be yearly attendance at such a place ▪ or a rose yearly , the superiour can seek nothing for his blench dutie , except he required the same within the year . burgage-holding , is that duty which burghs royal are obliged to pay the king , by their charters , erecting them in a burgh royal , and in this the burgh is the vassal , and not the particular burgesses , and the bailiffs of the burgh are the kings bailiffs ; nor can seasin in burgage lands , be given by any other than the bailly , and town clerk ‡ , if the town have any and they must be registrated in the town clerks books * . before the reformation there was another kind of holding in scotland , which was of mortified lands , granted to the church , and the only reddendo , was prayers , and supplications , in behalf of the mortifiers . title v. of the casualities , due to the superiour . the feu being thus stated by the superiour , in the person of his vassal , it will be fit in the next place , to consider , what right the superior retains , and what right the vassal acquires by this constitution of the fie . the superiour retains still dominium directum in the feu , and the vassal has only dominum utile ; and therefore the superiour is still infeft aswell as the vassal ; but the king needs not be infeft ; for he is infeft jure coronae , that is to say , his being king , is equivalent to an infeftment . the superiour has different advantages , and rights , according to the different maner of holdings , and there are some rights and casualities common to all holdings . ward-holdings , gives the superiour a right , to the meals , and duties of his vassal lands , during all the years that his vassal is minor ; and this is properly called the casualitie of ward ; but the superiour , or his donatar , are obliged to entertain the heir ; if he have no other feu , or blench , lands , and to uphold the house , parks , &c. in as good condition as they found them ; and must find caution for that effect * . if the vassal sells , or dispones the half of his ward-lands , to any except his appearand heir , who is alioque successionae , without the consent of his superiour , the whole ward-lands fall to the superiour , for ever ; and this we call * recognition , which is introduced to punish the ingratitude of the vassal , who should not have disponed the superiours lands , without his own consent ; and to shun this , the vassal in ward-lands gets the superiours confirmation , before he takes infeftment ; for if he takes infeftment before he be confirmed , the lands recognosce , as said is ; except the seasin be null in it self ; since the vassal showes sufficiently his ingratitude by the very taking of the infeftment : and though the vassal at first did not sell the half without the superiours consent ; yet , if he thereafter sells as much as will extend to more than the half of the feu , the first huyer will likewise loose his right , if it was not confirmed before he took infeftment . not onely a confirmation , or novodamus , ( if it express recognition ) but the superiours accepting service , or pursuing for the casualities , are a passing from the recognition ; because , they infer the superiours acknowledgement of the vassals right . recognition takes place in taxt-ward , as well as simpleward , but in no other manner of holding ; except the same be expresly provided in the vassals charter , for ward-holding , is presumed to be the only proper feudal right . if the vassal denyeth the superiour , he losses his feu , and this is called , disclamation * ; but any probable ground of ignorance will take off this forfeiture . if the vassal who holds ward-lands dyes , having an heir unmarried , whether minor , or major , the superiour gets the value of his tocher ; though he offer him not a woman to be his wife ; but if the superiour offer him his equal , for a wise , and he refuses to accept , ( tho he never marry any other person ; ) the superiour gets the double of his tocher , and one of these casualities is called the single avail of the marriage , and the other , the double avail of the marriage ; but the modification of this is referred to the lords of session , who consider still what was the vassals free rent , all debts deduced , and the ordinarie modification is about two years rent , of the vassals free estate ; even though the heir was an heretrix , and though there were moe heirs portioners , there will only one avail be due for them all . though this casualitie of marriage ; be still due in all ward-holdings ; yet they may be due by express paction in other holdings , and there are many in scotland , who hold their lands feu , cum maritagio ; and in both cases , the marriage is debitum fundi . though as to the casuality of ward , every superiour has right to the ward lands holding of himself where the vassal holds ward-lands , of moe superiours ; yet the casualitie of marriage falls only to the eldest superiour ; because there cannot be more tochers than one ; and he is the eldest superiour from whom the vassal had the first feu ; but the king is still presumed to be the eldest superiour ; because , all feus originally flowed from him . it is thought that the reason why this casualitie is due , was , because it was not just , that the vassal should bring in a stranger to be mistress of the feu , without the superiours consent ; for els he might choice a wife out of a family that were an enemy to the superiour ; but i rather think , that both ward , and marriage , proceeded from an express paction , betwixt king malcome kenmore and his subjects , when he first feued out the whole lands of scotland , amongst them ; as is to be seen in the first of his statutes * . the special dutie arising to the superiour in a feu holding , is , that the superiour gets a yearly feu dutie payed to him , and if no part of this feu duty be payed for two years , even though the whole was offered ; or though the vassal was minor , then the vassal looses his feu , ob non solutum canonem ; for the feu duty , is called canon ; and if this provision be exprest in his charter , he will not be allowed to purge this irritancy , by offering the bygones at the barr ; but though this provision be not exprest in the charter , yet the feu will be annulled for not payment of the feu-dutie , by an express act of parliament * ; but the vassal in that case will be allowed to purge at the bar , and the reason of this difference is ; because the express paction is thought a stronger tye than the meer statute . a clause irritant in our law , signifies any provision , which makes a penalty to be incurred , and the obligation to be null for the future ; as here , where the superiour gives out his feu upon express condition , that if the feu-dutie be not payed , the feu shall be null , and reduceable , and a clause resolutive , is a provision , whereby the contract to which it is assixt , is for not performance , declared to have been null from the beginning . the casualities that are due , by all manner of holdings , and which arise from the very nature of the feu , without any express paction , are none-entry , relief , and liferent escheate . none-entry , is a casuality whereby the superiour has right to the meals and duties of the lands , when there is not a vassal actually entered to him , and the reason why this is due to him , is , because , he having given out his feu to his vassal or service , when there is no actual vassal entered , the law allowes him to have recourse to his own feu , that he may therewith provide himself with a vassal , who may serve him ; but though the full rents of the lands be due to the superiour , from the very time that he cites his vassal , to hear , and see , it found and declared , that the land is in none-entrie ; yet before that citation , the superiour gets onely the retoured duties ; and the reason of the difference is ; because after citation , there is a greater contempt than before , and so is to be more severely punished . for understanding which retour dutie , it is fit to know , that there was of old , a general valuation of all the lands of scotland , but thereafter ▪ there was a new valuation , the first whereof is called the old , and the second , the new extent , and both are called the retour duty , because they are exprest in the retour , ( or return ) that is made to the chancellary , when an heir is served ; but both are very far below the value , to which lands are now improved , though in our law , the new extent be constructed to be the value . but in an infeftment of annualrent , the whole annualrent is due , as well before declarator , as after ; because the annualrent is the retoure dutie , it being retoured , valere seipsum ; and that is called an infeftment of annualrent , when the vassal is not infeft in particular lands ; but is infeft in an yearly annuity of money , to be payed out of the lands , as for instance , if a man should be infeft in the sum of five hundred merks yearly , to be payable out of any particular lands , being worth 5000. merks yearly , how soon the vassal who had right to the 500. merks dyed , the superiour would have right to the whole 500 merks yearly , until the heir of the vassal be entered . vide infra tit. servituds , § annualrents . there is no nonentry due in burgage lands ; because the burgh it self is vassal , and never dyes , and so therefore , neither does the burgh nor any private burgess pay nonentrie , the duty payable by a burgh , being onely by watching and warding . when the vassal enters , he pays an acknowledgment to the superiour , which is called , relief , because it s payed for reliving his land out of the superiors hands . it is debitum fundi , and affects not only the ground really , but the vassal personally , who takes out the precept for infefting himself ; though he never takes infeftment thereupon . the value of this casuality varies , according to the nature of the holding , for in blench and feu holdings , it is only the double of the feu or blench duties ; but in ward-holdings , it is the full duty of the land ; if the superiour be in possession , the time of the vassals entrie ; but if the superiour was not in possession ; though the vassall was minor , or if the vassall be major , before his predecessor dye , then the superiour gets only the retour dutie ; and it is so far from being presumed to be remmitted by the superiours entering his vassal ; that it is still exacted ; though it be gifted with the other casualities . for understanding life-rent escheates , it is fit to know ; that when any man does not pay a debt , or perform a deed conform to his obligation , his obligation is registrated ; if it carry a consent to the registration in the body of it ; or if it do not , there must be a sentence recovered , and upon that registrated writ , or decreet , ( for a registrated writ is a decreet in the construction of law ) there will be letters of horning raised , and the partie will be charged , and if he pay not within the dayes allowed by the charge , he will be denounced rebel , and put to the horn , and from the very day of the denounciation , all his moveables falls to the king by a casualitie , which is called , single escheate ; but now single escheates fall likewise to lords of regalities , if the persons denounced live within a regality , because the king has gifted all single escheates when he erected those regalities . if the vassal continue year and day rebel , without relaxing himself , ( which relaxation is expede by letters under the kings signet , expresly ordaining him to be relaxed from the rebellion ; ) then he is esteemed as civilly dead ; and consequently not being able to serve the superiour , the law gives the superiour the meals and duties of his feu , during all the dayes of the vassals life ; and this casuality is called liferent escheat ; so that every superiour aswell as the king , has right to the meals , and duties of the lands holden of himself * if his vassal was once infeft ; and even though he was not infeft ; if he was appearand heir , and might have been infeft ; for his lying out should not prejudge his superiour ; but if a man have right by disposition , whereupon no infeftment followed , the king only will have right to his life-rent escheate , as he has for the same reason to the manses and gleebs of ministers , when they are rebells ; since they are not infeft in these ; but all heritable and life-rent rights , requiring no infeftment of their own nature , such as a terce , and liferent-tacks fall not to the king , and the life-rent tacks fall to the master of the ground , and the life-rent by terce pertains to the superiour during the life-renters lifetime * . this life-rent escheate comprehends only rights , to which the vassal himself had right for his lifetime ; for else it will fall under single escheate ; ( single escheates comprehending every thing that is not a life-rent escheate ; ) and therefore , if the superiour having right to the vassals liferent escheate , become rebel himself , the vassals liferent escheate will fall under the superiours single escheate , for the superiour had not right to those meals and duties during all the dayes of his own lifetime ; and so it could not fall under his liferent , and the like , does for the same reason hold in all such as have assignations to liferents , or to liferent escheats , or to tacks for any definit number of years , few or many . the superiour has also right to the sub-vassals liferent escheate , which falls after the vassals denounciation , for by the denounciation of the immediate vassal , the superiour comes in his place ; and so has right to the sub-vassals liferent . the liferent escheate falls by the rebellion , that is to say , by the denounciation ; and the year and day , is given only to the rebell to relax himself , so that if he relax not within that time , his liferent will fall from the denounciation . in competition betwixt the superiour of the rebell , and the rebells creditors , these rules are observed in our decisions . primo , no legal diligence , nor voluntar right for payment of any debt contracted , after rebellion , will prejudge the superiour ; for else after a vassal were at the horn , he might fraudulently contract debt to prejudge the superiour . secundo , if the debt was prior to the denounciation , no voluntar infeftment will prejudge the superiour ; except the rebel was obliged prior to the rebellion , to grant that infeftment , and that the infeftment it self was expede within year and day of the denounciation . tertio , though legal diligence be more favourable then voluntar rights ; because there is less collusion , yet no legal dilligence will be preferred to the superiour ; except it was led for a debt prior to the denounciation , and was compleated by infeftment , or charge , within year and day , thereof ; albeit the said legal diligence was deduced after the denounciation . though this be the course in competitions , quo ad liferent escheates ; yet actual payment made , or diligences done to , or by creditors for payment of debts , prior to the rebellion , or the commission of crimes , will be preferred , to the donator ; if these rights or diligences be compleated before declarator , which we owe rather to the benignity of our kings , than to the nature of these rights , since there is jus questitum fisco , by the denounciation . liferent escheates is proper to all kinds of holding ; except burgage , and mortification ; for the vassal being a societie or incorporation dyes not , and so can have no liferent escheate ; and albeit the administrators were denounced for debts due by the incorporation ; yet that is still presumed to be their negligence , which ought not to prejudge the societie : for compleating this casualitie a general declarator must be raised at the superiour or donators instance , to hear and see it found and declared , that the vassal was orderly denounced rebel , and has continued at the horn year and day . and in a competition betwixt donators , the last gift if first declared , will be preferred . if the gift be taken to the behoove of the rebell , it is null , and is presumed to be to his behoove , if he or his family be suffered to stay in possession . the last priviledge of the superiour is , that he may force his vassal to exhite his evidents , to the end he may know what is the nature of the holding , and in what he is lyable to his superiour , which proceeds ordinarly by an action of improbation . title vi. of the right which the vassal acquires by getting the feu . the vassal by getting the feu settled in his person , by charter and seasin , as said is , has right to all houses , castles , towers , ( but not fortalices ; ) woods , and other things that are above ground of the lands expresly disponed ; and to coals , lime-stone , and other things within ground , and to whatever has been possessed , as part and pertinent of the land past memorie of man : but there are some things which passe not under the general dispositive words , and require a special disposition , which belong to the king , in an eminent way , and are called therefore regalia , and are not presumed to have been disponed by his majestie , or any other superiour ; except they were specially mentioned , such as are all iurisdictions , forrests , salmond-fishings , treasures hid within the ground , and gold , silver , and fine-lead ; for other mines , such as iron , copper , &c. belong to the vassal . if lands be erected in a barrony by the king , then though the lands lye discontiguously , one seasin will serve for them all , because , barrony implyes an union . this erecting them in a barrony , will likewise carry a right to iurisdictions , and courts , fortalices , forrests , hunting of deer , and ports , with their small customes , granted by the king , for upholding these ports , milnes , salmond-fishings , &c. because ; barronia est nomen universitatis , and possession of any part of a barrony is repute possession of the whole ; but mynes of gold , and silver , * treasures , and goods confiscate , are not carried with the barrony . the heritor has also power to set tacks , remove , and in-put tennents , as a consequence of his property . a tack is a location , or contract , whereby the use of any thing is set to the tacksman , for a certain hyre , and in our law it requires necessarly , that the terms of the entry , and the ish , must be exprest , that is to say , when it should begine and end , and it must bear a particular dutie , else it is null ; and if it be a valid tack , that is to say , if write be adhibit , ( verbal tacks being onely valid for one year ) to the thing set , the contracters names , tack-duty , ish , and entry , clearly therein exprest , and cloathed with possession , it will defend the poor tacksman , against any buyer * ; and even against the king and his donators , when they succeed by forfeiture , which was introduced in favours of poor tennents , for encouraging them to improve the land ; but it will not defend against a superiour of ward lands , for the ward , &c. though by act of parliament , the superiour be obliged , to continue them in their possession till the next term of whitsonday * . albeit tacks have not all the solemnities foresaid ; yet they are valid against the granter and his heirs . tennents cannot assign their tacks ; except they be liferent tacks ; or that the tack bear a power to assign ; but they may be comprysed , or adjudged ; and if the master suffer the tacksman to continue after the tack is expyred , he will be obliged to pay no more than he payed formerly during the tack ; and this is called in our law , the benefite of a tacite relocation , that is to say , both the setter and the tacks-man , are presumed to design to continue the tack upon the former terms , till the tennent be warned . if the tack be granted to sub-tennents ; then the tacks-man may set a sub-tack , which will be as valid as the principal tack , if cled with possession . rentals are also a kind of tacks ; but more favourable and easie ; because the rentaller and his predecessors have been ancient possessors , and kindly tennents , and he payes a grassume , or acknowledgement at his entrie , and yet they last no longer than for a year ; if there be no time exprest ; and if they be granted to a man and his heirs , they last only to the first heir ; for else they behoved for ever to belong to the heirs ; and so would want an ish ; but no tack is accounted a rental ; except it be in write , and the write bear the same . rentals cannot be assigned , except that power be granted in the rental ; and if the rentaler assign , he looses his rental ; though a tacksman forfeits not his right , by assigning it , the assignation being only null . when the years of the tack expyre ; or though there be no tack ; yet the master cannot summarly remove his tennent , or possessor except from liferented lands , and houses , or towers , and fortalices , and vitious possessors whom he can remove by a summonds on six days ; but in all other cases he must warn him , 40 dayes , before the term of whitsonday ; tho the term at which he were to remove , by paction , were martinmass , or candlemass ; which warning must be executed , that is to say , intimated personally to the tennent , and upon the ground of the lands ; and at the parish kirk , immediately after sermon , and if he then refuses , he must be persued to remove upon six dayes , and after this citation , the master will get against him violent profits ; that is to say , the double of the avail of the tenement within burgh , and the highest advantages that the heritor could have got , if the tennent possessed lands , in the countrey ; nor will the tennent be allowed to defend against this removing ; till he find caution to pay the violent profits * . the master has likewise a tacit hypotheque in the fruits of the ground , which he sets to his tennent , in so far as concerns a years dutie , that is to say , they are impignorat by the law , for that years dutie , and he will be preferred either to a creditor , who has done diligence , or to a stranger who has bought them ; though in a publick mercat : and a lands-lord within burgh , has a tacit hypotheque in all the goods brought in to his house , by his tennent , which he may retain , a● , and while he be payed of his years rent . title vii . of transmission of rights , by confirmation , and of the difference betwixt base , and publick infeftments . the fie being thus established in the vassals person , the same may be transmitted , either to universal , or singular successors , the first is properly called succession , which shall be handled in the third-book . transmission of rights , to singular successors , is voluntar by disposition , and assignation , or necessar by apprysing , and adjudication , and consiscation , when they are forefaulted for crimes , &c. if the vassal sells the land , the superiour is not obliged to receive the sub-vassal except he pleases , though the charter bear , to him and his assignies ; and if he receive him , there is in law , a years rent due to the superiour , as an acknowledgement for changing his vassal . lands are disponed , either to be holden of the disponers superiour , and that is called a publick infeftment ; because , it is presumed it will be publickly known , being holden of the superiour ; and it is likewise called an infeftment , a me ; because , the disponer gives it to be holden a me , de superiore meo , and this infeftment is null untill it be confirmed * by the superiour , which is done by a charter of confirmation , wherein the superiour narrates the vassals charter , and subjoyns thereto his own confirmation or ratification of it , and the last right being first confirmed is still preferred . sometimes also the vassal dispones lands to be holden of himself , and this is called , a base infeftment , and has been allowed by our law , contrare to the principles of the feudal law , in favours of creditors , who getting right for payment of their debts , were unwilling to be at the expences to get a confirmation from the superiour , and this is called , an infeftment , de me ; because , the disponer gives them tenendas de me , & successoribus meis . these base infeftments being cloathed with possession , are as perfite , and valid , as a publick infeftment ; for possession , is to an infeftment to be holden of the disponer , the same thing that confirmation is to an infeftment to be holden of the superiour ; and therefore , as in a competition betwixt two infeftments of the same land , to be holden of the superiour , the first confirmation would be preferred , it being a general rule in law , that amongst rights of equal perfection , prior in tempore est potior in jure ; so if a base infeftment be cloathed with possession before the publick infeftment be confirmed , the base infeftment will be preferred ; though it was granted after the publick infeftment . for the better understanding of the nature of base infeftments , it is fit to know , that possession is in law natural , or civil , that is natural possession , by which a man is naturally , and corporally in possession , as by labouring of the ground ; but because sometimes men could not attain to the natural possession , for cloathing their right , therefore the law was forced to allow another possession by the mind , as that was by the body , and this is called , civil possession ; because it is allowed , and introduced by the civil law , of which there are many kinds in scotland ; as , primo , the obtaining decreets for meals and duties , and even citation upon an heritable right . secundo , payment of annualrent , by the debitor to the creditor who has infeftment of annual-rent . tertio , if a man be infeft in lands , and for warrandice of these lands be infeft in other lands , possession of the principal lands , is reputed in the construction of law , possession of the warrandice lands . quarto , if a woman be infeft by her husband in a life-rent , the husbands possession is accounted the wifes possession . quinto , if a man dispone lands , reserving his own liferent , the liferenters possession is accounted the fiars possession ; and a base infeftment is said to be cloathed with possession ; if he who is infeft hath attained either to natural or civil possession ; for the law cannot punish a man for not apprehending possession , who could not apprehend it ; and for the same reason , if the time of entrie was not come , he who is infeft by a base infeftment , will be preferred in that case , as if he were in possession ; and the reason of all this is , because our law considering , that base infeftments were clandestinely made , betwixt confident , and conjunct persons , to the ruine of lawful creditors , who could not know the same ; there being then no register of seasins ; it therefore declared all base infeftments to be simulat , which were not cloathed with possession ; and therefore before the terme , at which he who got the base infeftment could enter to the possession , there could be no simulation , nor fraude , in no partie ; and in this the law considers much the interest of lawful creditors , by sustaining that kind of possession in their favours , which would not be sustained in favours of near relations ; or where there is no onerous cause ; and thus a base infeftment given be the father , to his own son , will not be cloathed with possession , by the reservation of the fathers liferent , though the reservation of the fathers liferent would cloath a base infeftment granted by him to a lawful creditor ; and the husbands possession is accounted the wifes possession , in so farr as concerns her principal ioynture ; but not in so far as concerns her additional ioynture , in a competition betwixt her and her husbands lawful creditors . sometimes likewise , for the more security a base infeftment , which is given to be holden of the disponer , will be confirmed by the superiour ; but that confirmation does not make it a publick infeftment ; for no infeftment can be called a publick infeftment ; but that which is to be holden of the superiour ; but the use of that confirmation is , that after the superiour has confirmed voluntarly the sub-vassals right , he thereby acknowledges his right ; and consequently , can seek no casuality , which aryses upon want of the superiours consent , such as forfeiture , or recognition ; but because the disponer is still vassal , therefore his superiour will still have right to the rents of the lands , by his life-rent escheate , and to wards , and none-entries by his death ; but if the superiour enter the sub-vassal onely upon a charge , ( this being no voluntar act of his , ) that does not cut him off from those casualities . sometimes likewise , the seller resigns the lands in favours of the superiour , if the lands be sold to the superiour himself , which is called resignatio ad remanentiam ; because the lands are resigned to remain with the superiour , and in that case , the property is said to be consolidate with the superiority , that is to say , the superiour returns to have all the right both of property , and superiority ; nor needs he be infeft of new ; because , as we formerly observed the superiour stands still infeft aswell as the vassal ; but the instrument of resignation must be registrated in this case , as seasins are in other cases , to put men in mala side to buy * the other resignation , is called resignatio in favorem , which is when the seller having sold his feu to a third party , resigns the feu in the superiours hands , for new infeftment to be given by the superiour to that third partie . the warrand of both these resignations is a procuratorie granted by the seller , to a blank person , ( and this warrand is ordinarly inserted in the disposition ) impowering him to resign the feu in the superiours hands ; and this is called a procuratory of resignation ; and the symbols of the resignation are , that it is to be made by staff and baston ; and accordingly , the procurator compears before the superiour , and upon his knee , holding a staff or pen at the one end , which the superiour or any having power from him , holds by the other , he there resigns the feu , either ad remanentiam , or in favorem , as said is ; whereupon an instrument is taken by the person in whose favours the resignation is made , which is called the instrument of resignation ; and thereafter the person in whose favours the resignation is made , ( if he be not the superiour ) is infeft , and his seasin must be registrated within 60. dayes , as said is . the resignation does not perfectly denude the seller , untill infeftment be taken upon it ; and therefore the first infeftment , upon a second resignation will be preferred to him , who has but the second infeftment upon the first resignation ; but yet the lands will be in non-entrie in the superiours hand , after the resignation is made , untill the person in whose favours it was made be infeft , for otherwayes the superiour would want a vassal , since he could not call him vassal who did resign his to be vassal ; and he had accepted of a resignation from him ; nor is the person in whose favours the resignation is made his vassal ; since he is not yet infeft ; but yet the buyer has a personal action , against the superiour , to force him to denude himself in his favours ; since he has accepted the resignation ; and he will likewise have an action of damnage and interest against the superiour ; if he accept a second resignation , whereby a prior infeftment may be taken to his prejudice , and the superiour gets all his casualities , as ward , marriage , liferent escheat , &c. not by him in whose favours resignation is made ; but by him who resigns , since he remains still vassal till the other be infeft quoad the superiors casualities . title viii . of redeemable rights . another considerable division of heritable rights with us , is that some are redeemable , and some irredeemable . redeemable rights , are these which return to the disponer , upon payment of the sum , for which these rights are granted ; and are so called ; because they may be redeemed by the disponer ; and they are either wadsets , infeftments of annualrents , or infeftments for relief . a wadset , is a right whereby lands are impignorated or pledged for security of a special sum , which passes by infeftment , ( like other real rights ) in the terms of alienation or disposition ; and the disponer does secure himself by getting a reversion from the buyer , wherein he grants and declares the lands redeemable from him , upon payment of the sum then delivered , and of the annualrent thereof , which is pactum de retrovendendo ; and expresses the place and time when it is to be delivered , and in whose hands it is to be consigned ; in case the receiver of the wadset , ( who is called the wadsetter ) refuse to accept his money . these reversions , being against the nature of property , and depending upon the meer agreement of parties , are to be most strictly observed ; and are strictissimi juris ; so that they are not extended to heirs or assigneys ; except they be exprest , and must be fulfilled in the very terms ; and it is not enough that they be fulfilled in equipollent terms : but after an order of redemption is used ; that is , after the granter of the wadset has duely premonished the wadsetter , and consigned the sums due by the wadsetter , it may be assigned ; and though the reversion bears that premonition be made at the parish church , it will be sustained if it be made personally to the wadsetter , for that is a surer certioration . reversions , albeit of their own nature they are personall binding , onely the granter and his heirs , yet they are real rights by our statutes , and affect singular * successours . they and all bands to make reversions , or ●ikes to reversions , must be registrated within 60. dayes in the same register with seasins ; for else a singular successour is not obliged to regard them * ; so that if any buy the land irredeemably , and compleat his right , he will be preferred ; but they are still valid against the disponer without registration . when the granter of the wadset , is to use an order of redemption , he must premonish the wadsetter to compear , ( and take instruments thereupon , called , an instrument of premonition ) to receive payment of the sumes due to him ; and at the time and place appointed by the reversion , offer being made of the money ; if the wadsetter refuses voluntarly to renounce , and to accept his money , it is consigned in the hands of the person designed in the reversion , or if no person be designed , it may be consigned in any responsal mans hand ; but there must be a paper taken under the consignatars hand , acknowledging that it was consigned in his hand ; for though an instrument under a notars hand , proves that all this order of redemption was used ; yet it will not prove the receipt of a sum against the consignatar . if the wadsetter receive his money , and renounce voluntarly , this is called , a voluntar redemption ; but , because though renounciations be sufficient to extinguish , they are not sufficient to transmit a right ; therefore , if the wadset was given to be holden of the disponer , the wadsetter must resign ad remantiam , in the disponers hands as his superiour ; and thereafter the disponer needs not to be infeft of new ; as no superiour needs ; but if the wadset be given to be holden of the superiour ; then the disponer uses to take a letter of regress , whereby the superiour obliges him to receive him back to be his vassal , when he shall redeem his own lands ; for otherwayes after the wadsetter is seased , the superiour is not obliged to receive him back . if the wadsetter refuses to renounce after the order is used , the lords will force him to renounce , and declare the lands redeemed , by a process , called a declarator of redemption ; after which decreet is obtained , the lands are redeemed , and belong to the redeemer ; and the wadsetter will upon a simple charge of horning force the consignatar to deliver him up the money . the user of the order of redemption , may pass from it at any time before declarator ; and therefore the sumes for which the wadset was granted , are still heritable before declarator ; but after that they are moveable , and fall to executors ; except the declarator be obtained after the wadsetters death , in which case they remain heritable ; and though the wadsetter require his money , he may pass from his requisition , either directly by a clear declaration that he passes from it , or indirectly by intrometting with the duties of the wadset lands , or by taking annual-rent for termes subsequent to the requisition . wadsets are either proper , or improper . proper wadsets , are these , wherein the wadsetter takes his hazard of the rents of the land for the satisfaction of his annualrent ; and payes himself all publick burdens . improper wadsets , are these , wherein the granter of the wadset payes the publick burdens , and the receiver is at no hazard , but has his annualrent secure . and if a wadset be taken , so , that the wadsetter is to have more than his annual-rent ; and yet the granter is to pay the publick burdens , this is accounted usury by our law ; the punishment whereof is confiscation of moveables loosing of the principal sum and anulling the usury , contract , or paction * ; and by a late statute , if the debitor offers security for the money , and craves possession , the wadsetter must either quit his possession , or restrict himself to his annualrent * . and if a man impignorat his lands , or bands , with expresse condition , that if the money be not payed at a precise day , they shall not be thereafter redeemable : the law reprobates this unjust advantage , called , pactum legis commissoriae in pignoribus ; and will allow the money to be offered at the barr ; or they will allow a short time before extracting of the decreet for payment of it . taking of annualrent having been discharged by the cannon law , men did buy annualrents out of other mens lands , which was the origin of our present infeftments of annualrent , and continues still frequent ; by which if men resolve not to rest on the personal security of the borrower , they take him also obliged to infeft them in a yearly annualrent , payable out of his lands correspondent to the sum lent ; but if they exceed the ordinarly annualrent allowed by law , it will infer usury ; and so they have a double security , one personal against the borrower for payment , and another real against the ground , it being debitum fundi ; for which they may poynd any part of the ground ; as also they have good action against the intrometters with the duties of the lands , out of which there annualrents are payable ; though they cannot poynd or exact from the tennents any more then they owe to their master * . these annualrents require a special seasin , like wadsets , and other real rights ; the symbols whereof , if the annualrent be payable in money , is a penney of money ; but if it be payable in victual , it is a parcel of victual . this is singular in infeftment of annualrent , that apprysing , thereupon will be preferred to all prior apprysing , quoad the bygones , of the annualrent , if the infeftment of annualrent was prior to those apprysings to which the apprysing will be drawn back , and preferred to any interveening right , which priviledge is continued in the late act of parliament , concerning debitor and creditor * . these infeftments of annualrent , being properly granted for security of sums are extinguished not only by resignations , but by renounciations ; and even by intromission with as much as might pay the principal sum , which intromission is probable by witness , whether the rent be victual or money , and therefore singular successors buying infeftments of annualrent , are not secure by any register but must rest on the warrandice of the seller , infeftments of relief , are these , which are granted by a debitor to his creditor , for security of sums owing to him , upon which the creditor cannot enter to possession , till he be distressed , and when the sum is payed , the right becomes absolutely null , as being but a temporarie right , and so the debitor who granted the right , needs not be of new infeft , but his former right revives . title ix . of servitudes . the nature and constitution of propertie , and real rights , being explained in the foregoing titles . we shall now treat briefly of servitudes ; which are burdens , affecting property and rights . servitudes are either real , personal , or mixt. personal servitude , is in desuetude amongst christians ; and therefore is not proper to be considered here . real servitude is whereby one mans property , or ground is affected with some burden , for the use and behoove of another man ; which are devided in rural servitudes , and citie servitudes . rural servitudes , are iter , which is , a power of going through our neighbours land ; actus , which is a power of driving carts , or waines ; via , being the priviledge of having high wayes in our neighbours ground ; and aquae-ductus , which is a power and priviledge to draw water alongst their ground for watering of our own . thus via , includes iter , and actus , as the lesser servitudes ; so he that has a via , has also power to drive carts and waines , and to walk himself through the ground burdened with the servitude . the city servitudes , called , servitutes urb●nae , are chiefly five . the first , is oneris ferendi , which is a priviledge , whereby one who has a house in the city , can force the proprietar who has a house below his , to bear the burden of his house ; and he may force the owner of the servient tenement to repair it , and make it fit for supporting the dominant tenement , contrare to the common nature of servitudes . secundo , tigni immittendi , which is the priviledge of forceing our neighbour to receive into his house the jests of ours . tertio , stillicidii , vel fluminis , which , is whereby our neighbor is obliged to receive the drops which falls from our house , under which , is likewise comprehended the priviledge of carrying away our water by sinks and channels . quarto , non officiendi luminibus , whereby he can do nothing that can prejudge our lights , or prospect . quinto , altius non tollendi , whereby our neighbour cannot raise his house higher , to prejudge the lights of the dominant tenement . by our law , servitudes may be constitute by write , without any seasin ; because they are incorporeal rights ; but though a servitude meerly established by write , be sufficient against the granter ; yet they are not valid against singular successors ; except that right be cloathed with possession , which compleats the servitude and makes it a real right ; and they may be likewise established by prescription without any write , from him who has the servient tenement ; though he who is to acquire the servitude by prescription , must have some right in his person , either of a special concession , or else must prescrive it , as part and pertinent of his land . the ordinary servitudes superadded by us , to these of the civil law , are the servitudes of casting fail and divot , common pasturage , and multures . common pasturage , is a right of pasturing the goods and cattel of the dominant tenement , upon the ground of the servient , which is constituted frequently by a charter , containing the clause of common pasturage ; and sometimes by a personal obligement , cloathed with possession ; but albeit it be indefinite , yet it can reach no further than to the proportion of goods of the dominant tenement , which they keep and fodder in winter ; which is done by sowming and rowming , that is to say , the determining the proportion of goods belonging to each dominant tenement , according to the several rowms and rent thereof . common pasturage in our law , does ordinarly comprehend all the lesser servitudes ; such as the casting of faill and divots , presumptively onely ; for the one may be possest without the other ; nor will common pasturage inferr a servitude of casting of fail and divots if he who possessed the common pasturage was interrupted as to the casting of fail and divot . mills , are inter regalia , and require therefore a special seasin ; the symbols whereof are clap and happer ; but if the mill be in a barrony transit cum universitate . mills , are ordinarly dispond with multers and sequels ; the multurs are a quantitie of corn , payable to the heritor of the mill for grinding . the knaveship , lok , and bannock , are a small quantitie payable to the servants for their paines . these quantities , that are payed by those that are thirled , are called , insucken multurs , and those quantities , that are payed by such as come voluntarly , are called outsucken multurs . thirlages , are constitute by write , or by prescription . the wayes of constituting thirlage by write , are these ; first , when a master thirles his own tennents , to his own mill ; in which case ordinarly he deminishes the rent of his land , in contemplation of what they are to pay to the mill , for grinding their corns , which he does by an act of his own court. secundo , when an heritor sells his lands , to be holden of himself , and thirles his vassal to his mill ; in which case he sells so much the cheaper , and so the multures are just . tertio , when the heritor of a mill , dispons his mill , with the multure of his own lands ; in which case the multures are also just ; because he gets so much the more for his mill ; and so this servitude is not so odious as it is believed to be . quarto , if a man dispones the mill of a barrony , cum multuris , or cum astrictis multuris ; in either of these cases , he thereby astricts his whole barrony ; though not formerly astricted ; but if he dispone the mill of the barrony , cum multuris solitis & consuetis ; he i● thereby understood to hav● thirled onely what was formerl● thirled . if the thirlage bears omnigrana crescentia , all the corn growing upon the land wil● be thirled , with deduction onely of seed , and horse corn , and th● ferme ; except it be carryed to another mill , for it is presumed ferms must be sold. quinto , when invecta & illata are thirled , all corns which thole fire and water withi● the astriction , must pay multur● though they come not to th● mill ; but being made in malt are thereafter carryed abroa● out of the thirle . the way of constituting thirlage by prescription , is immemoral , or 40. years possession , by vertue of some title ; such as a decreet , though in absence ; and even when the master is not called ; and any act of a barron court , though made onely by a bailie , without a special warrand from the heritor ; and though the coming to a mill , past all memorie , does not astrict the comers for the future ; it being a general rule in all servitudes , that , ea quae sunt merae facultatis non prescribuntur ; yet in mills of the kings property , immemorial possession , constitutes a thirlage ; and if men likewise pay dry multures , that is to say , such a quantity , whether they come to grind or not , for 40. years ; they will be thereby astricted ; for it is not presumable they would have payed dry multure , for so long a time except they had been thirled . if the quantity to be payed , be not determined in write , it is regulated by the use of payment for 40. years . those who are thirled , are also obliged to maintain the mill in its dammes , water-gangs , and to bring home its mill-stones . if such as are thirled , bring not their corns , they are persued by an action called , abstracted multures . there are two rules to be observed in all servitudes . primo , res sua nemina servit , no man can have a servitude on what is his own ; and therefore if the land on which we have a servitude become ours , the servitude is extinguished . secundo , when we have a servitude on any other land , this servitude affects every foot of that land , unaquaeque gleba servit ; but this is to be taken civiliter , & non judaice ; so that it must be reasonably used ; and thus , if we fen out some acres , with priviledge to the feuer to cast faill and divot upon our moor , for maintaining his houses ; though in strict law , every part of the moor is affected with the servitude ; yet the lords will allow any man to tile and sow his own moor , leaving such a proportion , as may maintain these houses . mixt servitudes are partly real , and partly personal ; and by the civil law are divided in usu fruct , use , and habitation . usus-fructus is called liferent in our law ; which is a right to use and dispose upon any thing during life , the substance thereof being preserved . use and habitation were restricted to the naked use of the liferenter ; whereby his power of disposing and making profit of the thing liferented was restrained ; and are not in use with us . liferents are either constitute by paction ; or by law ; liferents by paction , are either by reservation ; as when a fiar denuds himself of the fie in favours of another , reserving his own liferent ; or by a new constitution ; as when the fiar dispons his lands to another , during all the dayes of his life ; the first needs no infeftment ; but the second does ; else it is not valid against singular successors ; but the liferenter being infeft , transmits his right to any by assignation without infeftment ; for being a servitude and personal right , it neither needs , nor can admit of a subaltern infeftment . a liferenter also by reservation , may enter the heirs of vassals ( though he cannot receive singular successors ) if he was himself infeft ; but another liferenter cannot ; and even a liferenter by reservation cannot enter those vassals , if he was not once infeft ; because he cannot transmit a right which he has not . when moe persons are joyntly infeft , they are called conjunct fiars ; but though a wife be a conjunct fiar ; yet her fie lasts but during her life ; and during her life , she may enter vassals , and has right also to all the casualities , as other fiars . liferents by law , are the terce , and the courtisie . the terce is a liferent of the third of all the tenements , wherein the husband dyed infeft , provided be law to a wife , who is not excluded by express paction ; or is not provided to as much as will be eqvivalent to the terce * ; which terce is constituted by an inquest , who upon a brief out the cbancellary , directed to the sberriff , or other judge ordinary , doe serve her to a terce ; upon which service , the judge to whom the brief was directed without retouring it , divids the land betwixt the heir ; and relict , and expresses the marches in an instrument , and this is called to kenne her to her terce ; the marches being kenned by the instrument ; and though the service gives her right to the meals and duties ; yet she cannot remove tennents , till she be kenned , as said is , the kenning being equivalent here to the seasin in lifrents . this brive contains two points ; first , that the bearer , was lawful wife , to the defunct and secundo ; that he dyed infeft in such tenements , but if the relict was holden and reput lawful wife , in her husbands life ; no exception in the contrary will stop the service † . there is no terce in burgage lands , feu duties , or other casualities , nor in reversions , tacks , nor patronages . the courtisie , is a liferent , granted by law , to him who married an heritrix , of all her heritage , and of that only ; it needs neither seasin , nor other solemnity to its constitution ; but is ipso jure , continued to him ; if there were children procreated of the marriage , who were heard to cry ; though the marriage disolve within year and day . all these liferenters are obliged to find caution to preserve the thing liferented , and to leave it in as good condition as they found it , which is called cautio usu-fructuaria ; and they are also bound to aliment the appearand heir if he have not aliundi , to aliement himself * . if liferenters survive martinmess ; or if they die upon martinmess day , in the afternoon ; their executors will have right to the whole years rent , whether it be land rent , or the rent of a mill ; albeit the conventional termes were after martinmess ; but if liferenters labour the lands themselves , their executors will have right to the whole rent thereof , albeit they die before martinmess . title x. of teynds . teynds * , being a burden affecting lands , fall in to be considered in this place . teynds are designed to be that special and liquid proportion , or quota of our goods , and rents lawfully acquired that is due to god , for maintaining his service . it seems our law has followed the opinion of those divines , who think , that some proportion of our goods is due by divine right ; for we say , that teynds are the spirituality of the churches revenue ; but that the proportion is not iuris divini ; for we alter the proportion by special laws and customs ; though for distinctions sake we call this proportion the tenth . by the canon law , they are divided into personal teynds , which arise out of the personal gaine and profites , that a man has by his trade ; predial teynds which aryse from the natural product of the land that men possess . and mixt teynds which arise from the profites , that men by their personal industrie make out of their lands . they are likewise divided into parsonage teynds , which are due to the parson ; and viccarage teynds , which are due to the viccars ; and regularly all teynds are due to the incumbent , who serves the cure ; so that if the incumbent be a parson , he has a right to the parsonage teynds ; and if he be a viccar , he has right to the viccarage teynds . the teynds of corn , are called parsonage teynds , or decimae garbales ; and the fifth boll of the free rent is still teynd with us ; and all land must pay teynd ; except they be such as have been feued out of old by church men , before the lateran council , by which they were prohibited to alienat the teynds , and who had right both to stock and teynd ; and where the teynds were never known to have been separated from the stock . some monks likewise got particular exemptions from paying teynds , for these lands which they themselves did bring in , and cultivate ; and with us the priviledges granted to temple lands , which belonged of old to the knights of st. iohn , a religious order ; and to the monks of the cisterian order , are continued to those who have right to their lands , with that exemption : manses , and gleibs , are likewise free from payment of teynds . viccarage teynds , are called the small teynds with us ; because they are payable out of inconsiderable things , such as lambs , wool , cheese , eggs , &c. and they are said to be local ; because they are payed according to the custome of the place ; so that in the same parishes , some heritors , will be lyable for viccarage teynds of different kinds ; for though no man can prescrive a liberty from payment of parsonage ●eynds , since the lateran council ; yet , as 40. years possession is a sufficient right to a minister , for viccarage teynds ; and as it does determine the quota , as well as the species of viccarage teynds ; so by 40. years freedom , the heritour is secure in all time coming , from payment of viccarage teynds . when popery was supprest , all the lands belonging to monks , and others , were annexed to the crown , in anno 1587 * but the teynds belonging to them were not annexed ; these being acknowledged by our law , to be the patrimony of the church ; and they are therefore called , the spirituality of the benefices . the monastries of old , having gotten several parish churches mortified to them ; whereby they had right to their parsonages teynds ; such as got those monastries disponed to them , erected in their favours , became thereby to have right to other mens teynds ; and great emulation as well as prejudice arising from mens not having right to lead their own teynds . king charles the first , did therefore prevaile with all the the saids titulars of erection , to submit what should be payed them , as the price of the saids teynds ; and his majestie did determine , that the rate of all teynds , should be the fifth part of the constant rent ; where the stock and teynd were accustomed to be set joyntly ; but the fourth part onely where the teynds were usually set separate from the stock ; a fifth part being deduced by the king in that case ; because ordinarly church-men used to draw too great a proportion ; and this deduction is therefore called the kings ease ; as also , that the saids teynds being valued , should be bought at nine years purchase * . for effectuating this determination , the parliament 1633. appointed some of their own number , to value the saids teynds , and after a process for valuation is raised , before these commissioners , in which the titular his tacksman , and the minister ; are to be cited , the heritor in the mean time gets the leading of his own teynds . the probation is ofttimes allowed to both parties in this court ; and where one party is preferred , it is called ; the prerogative of probation ; and is much contended for ; and is thus regulated , viz. either the teynds are drawn ipsa corpora , by the titular , or tacksman ; and then they have the sole probation allowed them , to prove what the teynds were worth . ( they proving that they led seven years of 15. before 1628 ; ) or else they have rental bolls payed them ; & eo casu , they have the sole probation likewayes , they proving 20. years possession of uplifting rental bolls , condescending upon quantitie and qualitie ; or tertio , the heritors have tacks of their own teynds , for payment of silver dutie ; and then there is joynt prabation allowed both to heritor , and titular . ecclesiastick persons , such as bishops , parsons , &c. submitted only what they were not in possession of ; and therefore , there can be no valuation led of any teynds , parsonage , or viccarage which they were actually in possession of ; but by a letter from his majestie thereafter in anno 1634 ; it is declared , that ; if there teynds be set to tacksman , they may be valued during the tack ; whereas the teynds they were in possession of cannot ; though teynds holden of collegiat kirks may be valued ; and so may be bought and sold. the burrows are onely decerned to sell the superplus , of the teynds they had right to , over and above what was due for the intertainment of their ministers , colledges , schools , and hospitals . after the teynds are valued , and the titular decerned to sell ; or if the titular be willing to sell without a decreet ; the heritor is infeft ; and seased by the titular , who in the disposition , or charter reserves to himself relief of the kings annuitie , and of all imposition ▪ laid or to be laid upon teynds ; and warrands only from his own , and his predecessors facts and deeds ; and on the other hand the heritor who has got a decreet of valuation and not of vendition ; is obliged to infeft the titular ; for securitie of the valued bolls . by the foresaid decreet arbitral , the several parish kirks were to be provided ; and therefore the titular might allocat any one heritors teynds , for provision of the minister ; and so he was excluded from the priviledge of buying , whereas , it had been much better , that the stipend had been proportionably laid upon all the heritors . teynds are not debita fundi ; and so singular successors are not lyable in them ; but yet the minister has so far a taci● hypothique , that he may exact his modified stipend from any of the heritors ; as far as hi● teynds will extend , reserving relief to that distressed heritor ▪ and if the heritor sell his crop , the merchant , who buyes the same will be lyable ; but tennents will not be lyable , if they pay a joynt dutie payable to thei● master for stock and teynd . when the tack of teynd ▪ expire ; the titular needs no● use a warning against the tacks-man as in lands ; but he raise● and executes an inhibition against the tacksman , whic● interrupts tacit relocation , fo● that and all the subseque●● years , after which the introme●●tors , are lyable to a spuilie . the parliament 1633. did after the said submissions and decreet arbitral , grant to his majestie an annuitie out of all teynds ; except those payed to bishops , and other pious uses ; viz. ●en shilling out of every boll of teynd-wheat ; out of the boll of the best teynd-bear , eight shilling ; out of oats , peas , and rye , six shilling , where the boll of these grains did yield a boll of meal ; and where the rent consists of money , six merks out of every hundered ; and this annuity is debitum fundi ; but not being annext to the crown , it may be , and is ordinarly bought by the heritors , from his majesties theasurer , or others having right from the king. title xi . of inhibitions . property , and real rights , with the burdens affecting the same , being explained : it is fit now to treate of legal diligences , by which these rights may be ●victed , or the free use and disposal thereof restrained ; which diligences are chiefly three , inhibition , comprysing , and adjudication . inhibition , is a personal prohition , by letters under the signet , discharging the partie inhibit to sell , dilapidate , or put away any of his lands , in prejudice of the debt due to the raiser of the inhibition ; the ground and warrand thereof is an obligation , or bond for doing and performing any thing ; or a depending process ; and if these inhibitions be not raised upon legal and relevant grounds , they may be reduced . inhibitions reach onely heritage , but not moveables ▪ though the stile thereof runes equally against both ; but moveable bands may be reduced , in so far as they may be the foundation of real diligences to affect heritage ; and they extend only to posterior voluntary rights granted after inhibition ; but not to apprysings , or adjudications , though led posterior to the inhibition , if the ground thereof was anterior ; neither do they extend to posterior dispositions , and infeftments depending upon prior obligements ; either general or particular , for granting of these rights ; nor to renounciations of temporary rights ; albeit posterior to the inhibition , these being necessar upon payment . but by a late act of sederunt * , if the creditor intimat by way of instrument , to the person having the right of reversion , that the wadsetter , or annualrenter , stands inhibit at his instance ; and does produce in presence of the parties , and notar , the inhibition duly registrated ; the lords will not sustaine renounciations , o● grants of redemption ; although upon true payment ; unless there be a declarator of redemption obtained , to which the inhibiter must be cited . the way of executing inhibitions is , that the same must be by a messenger against the person inhibit , personally , or at his dwelling place , and at the mer●at cross of the head burgh of the shire , stwartry , or regalitys where the person inhibit dwells * , and after crying of three several oyeses , and publick reading of the letters , the whole leiges are discharged to purchase any lands or heritages , from the person inhibit ; and the messenger leaves or assixes a coppy of the letters at the mercat cross ; all which most be written in a paper , and subscrived by the messenger and by two witnesses * ; which write , is called the execution of inhibition ; and there ▪ after the letters and executions thereof must be registrated within 40 dayes , after the execution thereof ; either in the general register at edinburgh , or in the particular register of the iurisdiction , where the person inhibit dwells ; or the major part of the lands lye * ; and if any of these acts be omitted the inhibition is null , these being de solenitatibus instrumenti . title xii . of comprisings and adjudications . the fie being thus settled in the vassal it may be either taken from him , and evicted for his debt , or his crimes ; the first , is , by apprysing , and adjudication , and the last , by confiscation and forefaulture . apprising proceeds by letters charging the debitor to compear before a messenger , ( who is by the letters made iudge ; and sherriff in that part in place of the sherriff of the shire , whose office properly it is * ) and to hear the lands specified in the letters , apprised by an inquest of 15. sworn men , and declared to belong to the creditor for payment of his debt ; but because our law thought it not just that a mans land should be taken from him whilst his moveables could pay his debt ; therefore , in the first place , the messenger who executes the letters must declare , that he searched for moveables ; and because he could not find as many as would pay the debt ; therefore he denounced the lands to be apprised on the ground of the lands , and at the mercat cross of the shire , stewar●ry , or regality where the lands lye , and left coppies both on the ground , and at the cross. at the day appointed by the letters , the messenger who is made sherriff in that part , fences a court , and the debitor being called , his lands is offered to him for the money ; and if the money be not ready : the inquest finds that the debiors lands should belong to the creditor for his payment , and this is called a decreet of comprising ; and the most part of the inquest affixes their seals thereto ; upon which the compryser gets a charter past in exchequer , and is infeft by precepts out of the chancellary ; if the lands hold of the king ; and though of old , land apprysed , was proportioned to the money ; yet thereafter whatever land was ●ought to be apprysed was accordingly apprysed ; though farr exceeding the sum in value , because seven years was given ( which was thereafter prorogate to ten * ) for redeeming the land by payment of the true sum , and this is called a legal reversion ; because the law gives it to the debitor ; and if it be not redeemed within that time , the land belongs to himself for ever ; but that legal runs not against minors ; because they want iudgement to know their hazard ; so that they may redeem at any time before they be 25. years compleat ; but if the comprysing expyre during their minority ; the compryser will thereafter have right to the whole mails and duties , albeit exceeding his annualrent ; but that part of the act is altered by a posterior statute , and the appryser is restricted to his annualrent during the minority of the debitor * . if a minor succeed to a minor , whose lands are apprysed , he has right to redeem , as if the comprysing had been led against himself ; but if a major succeed to a minor , after the legall is expired , he hath onely year and day to redeem ; and if the seven years be unexpired in the minors time , the major may redeem within these years that are not run : and if the rent of the lands be not correspondent to the annualrent of the money ; whoever has right to the reversion , whether major or minor , must satisfie the whole sums and annualrents resting before he can * redeem ; but the compriser during the legal is restricted to the annualrent of the sums due to him ; and the superplus of his intromission will be imputed in payment of his principal sum ; and if he be payed by intromission , within the legal of his whole principal sum , bygone annualrents , and expenses , with the composition payed to the superior , the comprising expires , ipso facto * . though the supiriour be not regularly obliged to receive a singular successour ; yet least by collusion betwixt the debitor and his superiour , the true creditor should be unpayed ; therefore by a special act of parliament , the superiour is forced to receive a compryser upon payment of a full years duty of the land * , and he gets no more from all ; though many comprisers charge him to receive them ; but if the superiour pleases he may retain the land to himself , he paying the debt . the first comprising , without seasin , carryes right to all tacks , reversions , and other rights , which require no infeftment ; and all posterior comprisings need not seasin ; because they carry onely the right of reversion ; but yet ordinarly second apprisers do infeft themselves , because the first may be null , or become payed ; or the first compriser may lye out from seeking meals and duties ; or the second compriser would remove tennents , which none can pursue without being infeft , but the superiour comprising needs no infeftment . after denounciation of the lands to be apprised , the debitor can do no voluntar deed by disponing , or resigning ; ( because else he might frustrate the diligence ) except he was before denounciation specially obligedto dispone or resigne . in a competition amongst apprisers , the first infeftment , or charge against the superiour is alwayes preferred ; and if the first compriser did diligence to be infeft , but was stopt by collusion , as if the superiour to gratifie the second compriser , should unjustly suspend the first ; albeit the second appriser be first infeft , yet the first appriser having done diligence by charging , the superiour will be preferred to the second appriser first infeft . the compriser during the years of the legal is not obliged to enter to the possession , but if he once enter he must be comptable for the meals and duties though he leave off to possess ; but if the meanest part of the sum be unpayed after the expyring of the legal , the whole land comprised belongs to the compriser without consideration of what he has intrometted with ; to prevent which the debitor , or a second , or any posteriour compriser , who has comprised the right of reversion , does before the legal expire , require the compriser to compear at any day , or place , to receive his money , in so far as he is not payed by his intromission ; and having consigned the same accordingly at that day , he raises an action of compt and reckoning before the lords of session ; and if it be found that he is payed by intromission , and the money consigned ▪ the lords decern the comprising to be payed , and extinct ; nor needs the debitor get new seasin ; for the former right revives ; since the fie was still in his person , upon condition , that he would pay the sum within the legal . in this compt and reckoning , the compryser will get allowance of the sherriff fie ; which is the twenty penny of the sum that was comprysed for , and of the entrie payable to the superiour , though the appryser truely payed neither ; but he will not get payment of a chamberlane fie for taking up the rent ; except he really payed it . all apprisings led since the first of ianuary , 1652. within year and day of the first effectual comprising by infeftment , or charge against the superiour , come in pari pasu , as if they were all contained in one apprising . but the posterior apprisings within year and day ; must pay their proportion of the expenses of the infeftment , and composition given to the superiour by the first appriser ; because appearand heirs did frequently acquire rights to expired apprisings against their predecessours , by which they bruicked their ●state , without paying his debt , to the ruine of lawful creditors ; therefore , our law did very justly ordain , all such apprisings to be redeemed for the sums truely payed out by the appearand heir ; which proceeds , albeit the appearand heir acquire these rights in his predecessours lifetime . but if the expired apprising was acquired gratis , by the appearand heir , the same is onely redeemable by the creditors , for the sums contained in the apprising * . because the parliament thought it exhorbitant to take the greatest estates for the smalest sums , and to make a messenger iudge in affairs of so great importance . therefore in anno 1672. this way of comprising was altered , and in place thereof the creditor now gets land adjudged to him by the lords of the session , proportionally to th● sum● due to him for obtaining in●eftment , with a fifth part more ; because the creditor is obliged to take land for his money ; which adjudication coming in place of comprisings is perfected by charter and seasin , as comprisings ; and the superiour is obliged to receive the adjudger * ; but it is redeemable onely within five years by majors . if the debitor compear not to concur for compleating the adjudgers right , by giving him a progress , & transumpts of the evidents , and ratifying the decreet of adjudication ; then the whole lands may be adjudged , as they were formerly apprised ; it being unreasonable ●o s●rce a man to take proportional land for his money , and yet to be unsecured even for that proportion ; and they are redeemable within ten years ; ( these adjudi●ations being now come in the place of apprisings ) , and have the same priviledges and restrictions which comprisings had by the act of parliament , made concerning debitor and creditor , in * anno 1661. but if the creditor attain possession upon his comprising , or adjudication ; he can use no further execution against the debitor , except the lands be evicted . there are other two kinds of adjudications , allowed by our law ; the first is , when the appearand heir of the debitor is charged to enter heir ; and renounces to be heir ; the creditor having obtained a decreet , cognitionis causa , fo● constituting the debt , wherein the appearand heir is onely pursued for formality ; but the decreet can have no effect personally against him ; the hereditas j●cens will be adjudged to the creditor , for payment of the debt due by the defunct ; which if it be liquid , and instantly instructed ; the pursuer in the same process protesting for adjudication , the same will be allowed to him , summarly without necessity of any other decreet , cognitionis causa . these adjudications are redeemable within seven years , at the instance of con-creditors , one after another , who have likewise obtained decreets of adjudication ; and a minor renouncing to be heir , may be reponed , and allowed to redeem upon payment * . and if the superiour be charged to infeft the adjudger , he will get a years rent for composition , as in comprising * . adjudications , carry right to all which would have fallen to the heir ; as all heritable rights , and the whole bygone rents and duties , since the defuncts death may be adjudged ; because these belonged to the heir . there is another kind of adjudication competent by our law ; that is for performing any obligement which consists in facto , and relates to particular dispositions ; or obligements to infeft and after diligence used by decreet , and registrated horning against the disponer , and his heir , for making the same effectual : the lords will adjudge the lands disponed to the pursuer as a remedium extraordinarum there being no other remedy competent . this adjudication extends no farther than to the thing disponed ; and hath no reversion ; nor does it require charges to enter heir , or renounciation ; but the authours right must be instructed . confiscation will be handled in the title of cryms , and criminal processes . the institutions of the laws of scotland . part third . title i. of obligations , and contracts in general . having thus cleared real rights ; we will now proceed to treate of obligations , and personal rights . an obligation , is de●ined to be that legal ●ye ; whereby we are bound to pay , or perform any thing . the chief division of obligations by the civil law , and ours , is , that some are natural ; because they arise from the principles of right reason , or laws of nature . some civil , because they arise from positive laws , or municipal customs . another considerable division of obligations is , that some arise from contracts ; some from deeds , resembling contracts ; some from malefices , and some from deeds which resemble male●ices , ex contractu , aut quasi contractu ; ex male●icio , aut quasi male●icio ; for we become equally tyed and obliged to men ; either by contracting expresly with them ; or by doing some deed which induces an obligation without an expresse paction ; or by committing malefices against them . a * contract is an agreement entered into by several persons , inducing an obligation by its own nature ; * and the obligations arysing from contracts , are divided and distinguished , according as they are perfected , either by the sole consent of the contracters ; or by the intervention or tradition of things ; or lastly , by word or write ; hence is that remarkable division of contracts in the civil law , qui re , verbis , literis , aut concensu perficiuntur . the contracts which depend upon things , are these which arise either from borrowing ; ( which comprehends indebite solutum , ) or from loan ; or from depositation ; or from impignoration ; and are called mutuum commodatum , depositum & pignus . * borrowing , or mutuum , is that contract , whereby a man getting any thing from another , is obliged to restore him not the same thing that was borrowed , but the equivalent ; or as much of the same quality in measure , number , or weight ; as when one borrowes a thousand pounds , the receiver obliges himself to restore not the same ; but another thousand pounds ; and therefore the propertie of the thing borrowed , being transferred from the giver to the receiver ; the receiver runs the hazard of all the losse that the thing borrowed can sustain , after it is delivered : this contract is most strictly interpreted , so that nothing is understood but what is clearly exprest . * loan , or commodatum , is that contract whereby a man gets the loan of any p●rticular thing gratis , for some special use , and obliges him to restore the same thing in specie ; and not the equivalent ; as when a man gets the loan of a horse , or coach ; and because in this case , the propertie remains with the lender , therefore if the thing lent be lost , or perish by chance , the losse redounds to the lender ; for the thing is still his ; but if the thing be lent meerly for the advantage of the borrower , he is lyable to do most exact diligence ; and therefore , if the thing perish , or sustain any prejudice for want of exact diligence the borrower must make up the same ; but if the thing was lent for both the borrower and the lenders advantage , then from the same principal of natural equity , the borrower is only obliged to do such diligence , and to be so carefull of the thing borrowed as he would have been of his own . in this contract , the receiver is obliged to restore the same species in as good condition as he got it ; and the lender is obliged to pay the receiver any considerable expense , that he necessarly bestowed upon the thing borrowed , the law not allowing inconsiderable expenses ; because , the borrower has the use of the thing , which should compense these . precarium , is , when any thing is lent to be called back at the lenders pleasures , wherein it differs from commodatum ; which imports alwayes a determinate time for making use of the thing lent depositation , is that contract which is entered into by one mans delivering any thing , into the custodie of another to ●e k●pt gratis for his use ; and therefore , because in this contract , the propertie remains with him , who did depositate the thing , if it be lost , it is lost to him ; and since depositations are made for the behoove of him who does depositate ; therefore , the depositar ( for so we call him , in whose hand the thing is depositated ) is only lyable if the thing depositate , was lost by the depositars dole , or gross fault ; nam d●●ositarius tantum prest●t dolum , & latam ●ulpam ; yet inns-keepers , s●ablers , and masters of ships , are lyable to most exact diligence , in preserving the goods of travellers and passengers , which they bring into their houses , and ships , and to repair and make up all the loss they may sustain , while they are in the inns , or ships , whether the prejudice come by the servants , or mariners , or by strangers , which special kind of depositation , is introduced by equity , contrare to the common rules of depositation , and which we have immediately from the civil law , and edictum praetoris , intituled , na●tae caupones stabularii , &c. as in this contract , the depositar is lyable to restore the same thing that is depositate , and not the equivalent ; so the depositor is obliged to pay the depositar what he bestowed upon it , whilst it did lye beside him , for generally a gratuitous office , ought to prejudge no man. but he cannot crave compensation upon any debt due to him by the despositar , which is singular in this contract . pledge , is the contract , whereby one man gives to another any thing , for the receivers security for what he owes him , to be redelivered upon payment ; and therefore , because the thing it self in specie , is to be redelivered ; if it perish during the impignoration , by the gross fault or fraud of him who receives the pledge , it perishes to the impignorator ; and because impignorations are made for the advantage both of the giver and receiver , ( the one being concerned to get money , or some such thing upon the pledge , and the other to get a pledge for security of his money ; ) therefore he who receives the pledge , is lyable to do such diligence for preserving thereof as prudent men use to do in their own affairs ; but he is not lyable for culpa levissima ; the contract being for the behoove of both parties ; and he will have repetition from him ; for what he profitably bestowed upon it during the impignoration . sometimes what is impignorated is not delivered , and then the pledge is called an hypotheque , and the law sometimes makes such ●acit hypotheques without express paction , as where it makes the ●orn growing upon land , or the goods brought in to the house , that was set in tack , to be lyable to the heritor for payment of his rent . if one man payes to another more than is due to him ; or what is not due at all , the law allowes to him repetition of what was unjustly payed ; and this is called ( condictio indebiti ; ) because by paying to you , i oblige you really and in effect , to repay what shall be found not to be due ; or to have been payed more than was really due ; but since this obligation arises from the payers ignorance , therefore if he knew that what he payed was not due , he will not get repetition ; but what he payed will be lookt upon , as a donation , but it must be ignorantia facti , for ignorantia juris availeth no man ; and since this repayment is only allowed by the principles of natural equity ; therefore if what was payed was due in equity , though it was not due by positive law , the payer will not get repetition . title ii. of obligations by write , or word . some obligations , require write , to make them binding ; whereas others require write only by way of probation , that is to say , cannot be proven without write , though they be valid , and binding without it . all obligations for transmitting the reall right of lands , do so far require write of their own nature ; that though the bargan be solemnly and clearly ended , by verbal transaction ; yet there is still place to resile , or locus penetentiae , till the write be signed . though verbal promises do● by our law , bind the promiser ; yet because the position and import of words may be easily mistaken by the hearers ; therefore verbal obligations or promises can only be proven by oath of partie , and not by witnesses , though the sum be never so smal . because , mens subscriptions may be easily counterfitted ; therefore by an express statute with us , no obligation though in write for more than 100 lib. is valid ; except it be signed in presence of two subscriving witnesses , if the partie can write ; or by two notars , and four witnesses ; if the partie cannot write * ; except the write be holograph ; and that the writter and witnesses be specially designed * ; and though the subscriving by two initial letters be sustained , where it is proved that the subscriver was in use so to subscrive ; yet the granters mark is not sufficient , except the verity of the affixing that mark be referred to the granters oath . such is the favour of commerce , and such expedition it requires , that upon its account , bills of exchange are sustained ; though they be not signed before witnesses ; and delivery of goods , upon bargans are sustained to be prov'd by witnesses ; though there be no write ; and such is the favour of contracts of marriage ; especially where they are become nottour by the subsequent marriage , that they are sustained though there be no witnesses . by our law , an obligation in write is not binding ; except it either be delivered , or dispense with the not delivery ; by a special clause therein ; nam traditione transferuntur rerum dominia ; but tradition is not requisite in mutual contracts ; and if the write be in his hand , in whose favours it is made , it is presumed to have been delivered ; and cannot be taken from him upon the pretence of not delivery ; except it be referred to his oath that it was never a delivered evident by the granter . title iii of obligations , and contracts arising from consent , and accessory obligations . though all contracts require the consent of the contracters ; yet there are four , viz. emption , location , society , and mandat ; which are said in a more special way to arise from consent ; because these contracts are perfected by meer consent of parties , without any further solemnity , or tradition ; and thus how soon two parties agree , concerning the price of any thing that is to be sold , that contract is by meer consent so far perfected , that he hath the seller precisly obliged to deliver the thing bought and perfect the sale ; albeit the dominium or property be not transferred , but remains with the seller untill delivery ; and if the thing bought perish without the sellers fault , even before delivery , the losse is the buyers , in respect of the personal obligement upon the seller , to deliver it , and the buyers right is established even before tradition ; and though earnest , or arles be given as a symbole or mark of agreement ; yet the consent without the earnest or arles ( as we call it ) compleats the bargan ; and if the earnest be in current money , it is to be imputed as a part of the price . in this contract of emption and vendition , their must be a price , consisting in numerate , and down told money ; for if one thing be given for another the law calls that contract , permutation , or excambion , and not emption , and vendition ; and this price must be certain and definite ; but if the price be referred to another , the bargan will subsist ; except that third partie , to whom it was referred , either will not , or cannot determine the price . location and conduction , is a contract , whereby a hyre is given , for the use and profite of any thing , or for the work of persons ; it differeth from emption and vendition , chiefly in this , that the designe of that contract is , to transferr the property ; but in location the property remains with the setter . this contract , being entred into by the mutual consent , and for the advantage of both parties ; the conductor is only lyable , to use and adhibite a moderate diligence , for preserving the thing set ; that is such diligence as prudent men , adhibite in their own affairs ; so that if the same perish without his gross and supine negligence ; or fraud , he is not lyable to make it up to the locator . location or setting of lands for a certain hyre , ( called the tack-dutie , ) is frequent in scotland ; and it is to be observed that if the ground yield no increase , but is absolutely barren , without the fault of the conductor ; the hyre will not be due , since that was given for the profite and use of the ground ; but if there be not an absolute sterility ; and that the land yield some profite , though never so little ; the hyre will be due , if the profite but exceed the expence of the labouring . from this contract there arise two actions , the one whereby the conductor is obliged to pay the hyre agreed unto ; and to restore the thing set after the end of the location , in as good condition as he got it . the other is an action whereby the locator is bound to refound to the conductor , the necessary expenses imployed upon the thing hyred , during the location . vide supra , part 2. title 6. society , is a contract , whereby several persons obliege themselves to communicate losse and gain arising from the things common in the society . all the partners in the society , do by the nature of this contract share equally ; except it be otherwise provided ; and if either the share of the gaine or losse be expressed , the one regulates still the other ; but because some mens pains are of as great value , as other mens money , therefore it is lawful and consistent with the nature of society to contract so , as that one may have the half of the gain , and no losse ; but the contract would be null , if it were provided , that one should have all the gain and no losse , for there could be no compensation , though the other were never so skilful . by this contract , all the partners are obliged to advance for the affairs of the society , according to the shares they have in it . the society is extinguished , and the persons who entered therein loosed therefrom by the death of any of the partners ; or by their becoming insolvent ; except it be otherwayes provided ; for this is a personal contract , wherein men respect the humour and industrie of one another ; and so this contract is disolved , by the simple renounciation of any of th● partners ; so that every one has a negative vote , and if the society be entered into , with this condition , that it should not be dissolved at the option of any of the partners ; the law did reprobate such pactions ; and from the same principle likewise it is , that partners in a society , are not lyable for further diligence , then they used to adhibite in their own affairs ; for having voluntarly choosed one another for partners ; it is presumed they are satisfied with one anothers diligence , the contract being entered into for the behoove and profite of all the partners . * mandate , is that contract whereby one employes another to do , or manage any business ▪ gratuitously ; for if he who is employed get a reward , it is not properly a mandate , but locatio operarum , or a seeing of the person so employed ; but yet if the receiver of the mandate has been at any expense upon the account of the mandate , the employer must pay it . he who receives the mandate is obliged to execute the same , according to the rules prescrived by the employer , and not to exceed the bounds of his mandate ; and therefore if titius imployed seius , to buy him , such a particular piece of land for 10000 lib. titius is obliged to ratifie his bargan ; though he buy it for 9000 lib. because ten comprehends nine ; but if he pay 12000 lib. for it ; he is not obliged to ratifie the bargan ; because he exceeds the bounds of his commission . mandates , expire either by the revocation of the employer , if the thing or business in which he was employed be intire ; or by the death either of the person employed , or of the employer , or by the renounciation of the person employed ; but in all those ●ases ; if the thing undertaken be not intire ; the person employed may and must proceed to execute the mandate , ●otwithstanding of the revocation , death , or renounciation . mandatars are lyable for exact diligence , & culpa levissima ; because albeit the mandate be only gratia mandantis , yet the very nature of it implies diligence . mandates , are either express arising , from express consent ; or tacit , which are inferred by signs and ta●iturnity ; as for instance , if a person present suffers another to act in his affairs ; he is understood to give him thereby a tacit mandate . secundo , mandates are either general for managing all affairs ; or special , for doing some particular business , conform to the precise tenor of the commission ; & albeit general mandates contain a most ample power of administration ; yet they are not extended to committing of crimes : or , secundo , to donations ; albeit where there is any probable cause , gratifications may be allowed ; which will be regulate secundum arbitrium boni viri ; this being contractus bonae fidei , which implyes exuberant trust . tertio , no general mandate will imply a power to alienate immoveables ; or to submit or transact any litigious business . quarto , if in the general mandate some speciall cases are exprest , it will not be extended to cases of greater importance , than those exprest . the great favour of commerce , has introduced another kind of tacit mandate ; by which exercitors of ships , and prepositors are obliged by the contracts of the masters of the ships , and of the institors , in relation to the ships and voyage ; or to the particular negotiation wherein they are intrusted . exercitor , is he to whom the profit of a ship doth belong ; whether he be the owner , or hath onely freighted the ship : the master is the person intrusted with the charge of the ship , who has power to oblige the exercitor , by contracting for the reparation , and out●igging of the ship ; and in matters relating to the voyage . institors , are intrusted with particular negotiations at land , such as keeping of shops , &c. and they oblige their prepositors , in relation to the affair wherein they are intrusted , as exercitors are in maritim affairs . neither the masters of ships , nor institors , need show their commission , but their being in the office is sufficient to oblige the exercitors , and constituents . and if there be many exercitors the masters contract obliges them all in solidum ; albeit what was borrowed be not employed for the use of the ship ; only it must be known to the lender , that the ship stood in need of such reparations ; and the facts of the institors , will oblige their constituents of whatsoever sex or age they be ; and even though they be pupils , minors , or wives , who cannot validly oblige themselves ; for they have themselves to blame who intrusted such persons . as all those obligations and contracts arise from express consent , so others arise from tacit consent ; such as homologation ; as for instance , though a man be not obliged by a bond granted in minority ; yet if he pay a part of it , or annualrent for it , after he is major ; the obligation is thereby homologated or own'd , and becomes valid ; not from the time of the homologation , but from the date of the write ; and therefore it is fit that such as design not to own , null , or invalid deeds , should abstain from doing any thing , that may inferr an approbation of them ; but because homologa●●on , is actus animi , therefore it should not be proven by witnesses . because all obligations , cannot be bound up under general and regular names of contracts ; therefore the law allows some obligations , to pass under the name of quasi contractus ; because they have the resemblance , and are of the nature of contracts ; and these are negotiorum gestio , whereby if any person manage your business advantagiously for you ; you are lyable to him for his expense ; though you gave him no mandate ; least such as are absent should be prejudged by the negligence of their friends ; as the manager is lyable to refound to the person whose affairs he managed , any prejudice done to him since , else any man might be invited officiously , to middle in another mans affairs to his disadvantage , but this is to be understood , si in utiliter gesserit ; otherewise if he acted profitably ; albeit the event do not succeed , he will get his expenses . the other quasi contractus , are tutorie , communion of goods , entering to be heir , the obligation of repayment that arises upon payment of what is not due ; for if one be tutor to you , he enters in a kind of contract with you , whereby he is bound to administrate your affairs , and you are bound to pay him his expense ; but of all these i have treated elsewhere in their proper places , as i shall do of malesices , and and what resembles them , when i come to treat of crims ; of which these may be properly said to be branches . having thus treated of principal obligations ; the only accessory obligation that i need mention is cautionary ; whereby one man becomes surtie for another ; either to pay a sum , or perform a deed ; betwixt which two , there is this difference , that these that are cautioners for a sum , if they be bound conjunctually and severally , with the principal debitor ; may be pursued without pursuing the principal : & quoad the creditor they are principals ; but these who are cautioners for performing of deeds ; as cautioners for executors , and for curators , or factors , or for messengers , cannot be prusued till the principal be discussed , for they being only obliged , that their principals shall compt , or be honest ; therefore they cannot be lyable untill the principals first be cited to compt in the one case ; or to answer for their delinquencies in the other ; and they are onely lyable to make up what is wanting from their principals after they are discust . because cautioners for sums are lyable as principals ; therefore their obligation may subsist ; though the obligation of the principal partie be found null , or reduced by any priviledge given to the principal by law ; as if a man become caution for a minor ; or for a woman who is married , nam sibi imputet , who became a cautioner for such ; but if the obligation was absolutely null in it self ; as if the principal did not sign , then this obligation because it is but accessory , retains so much of its own nature as to free the cautioner . cautioners , are to get relief from their principals , not onely of the principal sums , and annualrents ; but of all dammage , and interest ; and whether the same be provided by the bond or not ; and where there are many co-cautioners ; they are lyable in solidum , quoad the creditor ; but if any of them pay the whole sum to the creditor ; though he get assignation from him to the whole ; yet he must onely seek his relief from the other cautioners , with deduction of his own part ; which proceeds ; albeit there be no clause of mutual relief in the bond ; and they must communicate to their co-cautioners , what ease they get by way of transaction from the creditor ; but if they get the said ease by a meer ratification , as by donation , &c. then they are not bound to communicate what ease they get ; for a creditor may justly gratifie one of his cautioners as his friend , or relation , without being obliged to gratifie the rest . to make obligations effectual , it is necessar that the subject matter thereof be such as will admit of an obligation ; for , no man c●● oblige himself , to do what is either impossible , unlawful , or dishonest ; nor to transmit the property of things sacred ; ( these not being in comercio , ) and albeit when the performance of obligations becomes imprestable , the party is lyable for the value , as dammage and interest ; yet in these the value is not due , nor will he be lyable in a penalty , in case of not performance . but yet a man may oblige himself , to do something not in his own power , as to cause another dispone lands ; and if he fail , he will be lyable pro damno & inter esse ; or for the penalty . amongst obligations , donation is also reckoned , which is an obligation proceeding from a lucrative cause or title ; for he who voluntarly , and gratuitously promises to give any thing , is thereby obliged to deliver the same ; and this voluntar giving , is called , a donation , which is in law defined to be a meer liberality proceeding from no previous eompulsion . it may be perfected either by write , or without it ; but if without write , it must be proven by oath . donations , are either simple , remuneratory , or mortis causae , that is to say , donations made in contemplation of death . a remuneratory donation , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is when a man bestowes any thing not gratuitously , but to requite and repay some good deed done , or to be done to him ; and so is not purely a donation . a donation in contemplation of death , is , when the giver designs rather the person to whom he gifts to have what is gifted , than any other ; but wishes himself to have it , rather than him to whom he gifts it : and therefore , though pure donations are not revocable , yet a donatio mortio causa is ; being of the nature of a legacy ; and no donation is presumed to be donatio mortis causa , except it appear to be so , either expresly , or by strong presumptions , that the thing gifted , was onely gifted in contemplation of death . gifts , being a meer liberality , are not presumed ; and therefore by our law , debitor non praesumitur donare quam diu est debitor : but this being onely a praesumptio iuris , may be taken off by stronger arguments , justly inferring , that donation rather than payment was designed . title iv. of the dissolution , or extinction of obligations . having cleared how obligations are constitute ; it remains now to consider how they are taken off , and extinguished ; which is either by a contrary consent , or by implement and satisfaction . since consent is necessary to the constitution of obligations , so a contrary eonsent , whether by a discharge , or pactum de non petendo ; does dissolve and extinguish obligations ; nam nihil est tam naturale , quam eo genere quidque dissolvere quo colligatum est ; and therefore , if the obligation be constitute by write , it requireth write to the dissolution thereof , which is called a discharge ; and discharges require the same solemnities that obligations do ; but yet , if the obligation was satisfied , via facti , as by intromission with rents of lands , &c. it is probable by witnesses , as all facts are . discharges , are either general of all that parties can ask , or claim ; or particular , of one particular thing or subject : and in general discharges , if any particular thing be expresly discharged therein , the general clause will be extended to particulars of no greater importance , than what is expresly discharged . discharges do ordinarly bear a clause , discharging all preceedings till their date ; and albeit they do not , yet three consecutive discharges , do presume , that all bygones are satisfied , if they be immediately subsequent to one another , and granted by parties , having power to discharge as discharges by heritors , or chamberlains , to their tenants ; and therefore discharges of 3. subsequent years granted by merchants , who bought the ferm of these years , will not inferr the presumption ; but it will be inferred by discharges for a part of the three years granted by the father , and the rest by his eldest son , as heir ; the discharges being in write , containing a discharge of the whole years rent ; so that partial receipts , albeit they extend to more than the years rent , will not presume , that all preceedings are payed ; neither one discharge for three subsequent terms , or years , the presumption being inferred from renewing of the discharges each year , without reservation . obligations , are extinguished , and dissolved by payment , which is , the performing of the obligation in the precise terms thereof , and is so favourable , that if it be made bona fide , it dissolveth the obligation ; albeit he to whom it was made , had no right ; so payment made to a procurator after the procuratorie was revocked without the payers knowledge , will be sustained ; and payment made to ministers serving the cure , though they have no title to the benefice , will liberat the payers . obligations are likewise fulfilled by acceptilations , which is an imaginary satisfaction , as if it were truely performed , and has the effects and all the priviledges of payment . secundo , by compensation , whereby if the creditor of a liquid sum , become debitor to his debitor , in another liquid sum , the two obligations extinguish each other ipso jure ; and is equivalent to payment in all cases , but if the sums be not liquid , or if a species or body be craved to compense a liquid sum it will not be allowed . tertio , obligations are taken away by innovation , which is , the changing one obligation for another , and if the person of the debitor be changed , it is called delegation . innovation is never presumed except it be expresly mentioned , or that the obligation bears expresly to be in satisfaction of the former . quarto , obligations are extinguished by confusion ; that is to say , when the debt and credit meet in the same person ; as when the debitor succeeds to the creditor , or the creditor to the debitor ; or a stranger to both ; and the reason of the extinction in these cases , is , because the same person cannot be both debitor and creditor . title v. of assignations . all rights , whether heritable or moveable , are transmissiable by assignation ; but if a seasin once be taken , the right is not transmissable by an assignation , but by a disposition ; except liferents , which are transmissable by assignation even after seasin ; because they can admit of no subaltern infef●ments . he who grants the assignations is called the cedent , and he who receives it , is called the assignay . assignation to a right is compleated by intimation ; and therefore in competition betwixt diverse assignays , the first intimation is alwayes preferred ; this intimation is made by a procurator , who takes instruments in the hands of a notar , that such an assignation was intimat , ( so that one man cannot be both notar and procurator ; ) and if after this the debitor pay the cedent , he must repay it to the assignay ; because the cedent was denuded by the assignation ; and for the same reason , the cedents oath will not prove against the assignay if the assignation be for an onerous cause . but if the assignation be gratuitous ; or for the cedents behoof ; or if the matter be litigious , and after a depending process ; in any of these cases the cedents oath , will prove against the assignay . a pursute or charge of horning upon the action assigned , has likewayes the force and effect of an intimation ; but an inhibition against the cedent upon the assignation , will not supply intimation . the debitors private knowledge of the assignation , is not equivalent to an intimation ; but his paying a part of the sum ? or annualrent for it , is equivalent to an intimation ; and much more the writting a letter promissing to pay ; since that is in effect a renewing the obligation . bills of exchange , and orders by merchants to pay , need not be intimated ; because in commerce we are governed by the law of nations ; nor need assignations to reversions be intimated ; because the registration is a publication of them , nor legal● & judicial assignations , such as apprisings , adjudications , and marriage ; and that because they are past , and expede publictly . a blank band is equivalent to an assignation ; and so must be intimated ; and in competition with other rights , it is only preferred according to the date of its intimation , that the receivers name was filled up in it . it is a general principle in our law , that in the competition of moe creditors , the first compleat diligence is still preferred ; and therefore , an assignation is preferred to an arrestment , if it be intimate before the arrestment ; but if the imtimation and arrestment be in one day , they come in pari passu ; except the arrester be in mora , and do no diligence upon his arrestment . title v. of arrestments and poyndings . the ordinary diligences , in our law , affecting moveable rights , are arrestment , which answers to inhibition in heritage , and poynding which answers to comprising in heritage . arrestment is the cammand of a iudge , discharging any person in whose hands the debitors moveables are to , pay or deliver up the same , till the creditor who has procured the arrestment to be laid on , he satisfied . arrestments may be laid on , by any iudge in whose territories the goods are ; or by the lords of the session wherever they lye , and that by special letters of arrestment ; or by a warrand exprest in the ordinarie letters of horning : these letters are execute by a messenger , and if after it is laid on the partie in whose hands it is made , pay ; he may be forced to pay the same over again , or may be pursued criminally for breaking arrestment , the punishment being consiscation of moveables and their persons to be in the kings will * . arrestment can only affect moveable sums , and the ground thereof must be for payment of moveable debts , or sums due on heritable security , if no infeftment has followed * , and it reaches only to the sums already due , or for which the year or term is current . how soon on action is raised against a person , his goods may thereupon be arrested ; and this is called an arrestment upon a dependence ; but this arrestment may be loosed by letters for loosing of arrestment , which passes upon a common bill , and a band of cautionry is given to the clerk of the bills * , wherein the granter of the band obliges himself to pay the sum , if the arrestment be found lawful , and the sums or goods decerned , to belong to the arrester ; but arrestments upon a decreet or ( which is equivalent ) on a registrat band , cannot be loosed at all ; except the decreet be turned unto a libel , that is to say , the lords do only sustain the decreet as a libell or summonds against the defender , or that the arrestment was laid on after the decreet was suspended ; for in either of theses cases arrestments may be loosed even upon decreets . arrestment being but a personal prohibition against the defender to pay , it lasts no longer than the lifetime of him in whose hands the arrestment is made ; except it be renewed against his successors ; but it dyes not with him in whose favours it was raised , nor with him for whose debt it was laid on ; and if the debt be not liquid , the debitors representative must be called to the liquidation . in the competition amongst moe arresters , preference is granted according to the priority even of hou●s ; and the first arrestment is not preferred if the posteriour arrester get the first decreet , to make the arrested goods forthcoming ; for arrestment ; being only an inchoat diligence , it is compleated by the sentence to make forth-coming ; and yet if the arrester did exact dligence to obtain a decreet ; his raising the first pursute , will prefer him . he also who arrests on a decreet , will be preferred to him who arrests on a dependence ; and he who arrests after the term of payment will be preferred to him who arrests before the term . the kings pensions and gratuities aliments cannot be arrested ; because they are given for a particular and favourable use ; and not applicable to the arrester . poynding may be likewise used against moveables , by vertue of letters of horning against the debitors ; containing poinding or any other inferiour iudge , his decreet or precept * which is done by a messenger after the dayes of the charge are expired * , the form thereof is ; the messenger after poynding the goods , apprises them upon the ground where he apprehends them ; and offers them to the debitor , for the sum for which they were apprised , and if he compear not , he carries them to the mercat cross of the head burgh of the shire , or other iurisdiction where they are poinded , and there he apprises them , and delivers them to the party , who is called the poynder : but if any compear , and offer to make faith that the goods belong to them , and not to the debitor ; then the messenger must deliver them to that party , else he is lyable in a spulzie . poynding , is a judicial sentence , and the messenger is iudge constitute by the letters ; the messenger writes likewise an execution of poynding and that execution is better believed than any who offers to prove the contrare ; for that execution is onely quarrelable by improbation . arrestment , being but an inchoat diligence , discharging the partie in whose hand the arrestment is made , to pay , the right to the goods arrested , remain still in the debitor , and may be poynded for his debt ; for poynding is a compleat diligence ▪ giving an absolute right to the goods poynded . labouring oxen , or other plough goods cannot be poynded in time of labouring ( least labouring should be otherwayes discouraged ; ) except there be no other moveables upon the ground to be poinded * . title vi. of prescriptions prescription being a way of evacuating and annulling both heritable , and moveable rights comes in here , after both these are explained . prescription is defined , an acquisition of propertie by the poss●ssors continuing his possession for such time as the law determines ; which was introduced not onely for punishing the negligence of the 〈◊〉 , who owned not his right for so many years ; but likewayes , for securing possessors , and such as derived right from them ; and least by a constant uncertainty , the possessors being unsecure , might neglect the improvement of what they possessed . heritable rights , ( under which i comprehend wadsets , heritable offices , servitudes , patronages , &c. ) and all actions depending upon them , or relating to them , prescrive with us in 40. years ; if the possessor being a singular successor , have a chartor , disposition , or precept , and seasin in his person ; or being an heir , have a constant tract of seasins , continuing and standing together , for the space of 40. years , flowing upon retoures , or precepts of clare constat ; for , the law did not trust a seasin alone , it being onely the assertion of a notar. but reversions which are in the body of the poss●ssors right ; or reversions duely registrated , prescrive not . all personal rights , and actions relating to them , prescrive likewayes in 40. years ; if a document be not taken upon that right , that is to say , if nothing be done , whereby the true proprietor declares his intention to follow and own his right * . in both these prescriptions , the extraordinary length of time , supplies the want of bona fides in the possessor ; but , no length of time can make the possessor prescrive things sacred , religious , or publick ; nor yet things stol●e , or robbed , ob vitium reale , which affects such things . actions of spulzie , and ej●cti on , prescrive in three years , after committing thereof ; as to the specialities of these actions , viz. the violent profits , and oath in litem ; but minors have three years after their majority * . as do also actions for servants fies , house meals , and marchant compts ; except they can be proven after these three years , by the debitors oath * : and removings , if action be not intended within three years after the warning * . if assysers err in serving a man wrongously heir to his predecessor , the retour may be quarrelled within 20 years ; but the assysers themselves can only be pursued for error , within three years * , but the right of blood it self never prescrives ; and therefore a man may be served h●ir to his father or grand-father , after a 100 years , being debarred by no time ; nam jura sanguinis nullo jure ●ivili adimi possunt . if a person who is forefaulted possessed lands 5 years before the forefaultur , without interruption , the king is obliged to show no right , in the person of him who was forefaulted to the lands , or others that he possessed ; because it s presumed that the person forefaulted would abstract the writs , which quinquenrial possession is to be tryed by an inquest of the shire , where the land lyes * . arrestments on decreets and depending actions prescrive within five years after sentence . meals and duties due by tennents prescrive , if not persued within five years , after the tennents removing ; ministers stipends , and multurs pres●rive so that they cannot be pursued after five years , except they be proven by the debitors oath . holograph bands ; and subscriptions in compt books , prescrive in twenty years ; except they be proven by the debitors oath . and lastly , all bargans probable by witnesses , all actions on warnings , spulzies , ejections , arrestments , ministers stipends , &c. prescrive within ten years ; unless wakned every five years ; but this alters not any shorter prescriptions of these actions * . all these prescriptions run de momento in momentum ; so that the prescription runs till the last moment of the time allowed ; but they run only from the time wherein the debt could have been pursued , since till then the proprietar could not be called negligent , which negligence is the foundation of prescriptions ; and therefore prescription runs not against a band from the date of a band ; but only from the term of paymennt ; and prescription of an action of warrandice , runs only from the eviction * ; because no man is lyable in warrandice , till the lands be evicted ; and from the same principle it is , that contra valentem agere non currit , prescriptio ; and that prescription runs not against minors , in whom negligence is not punishable , since it proceeds from no design ; but from the unripness of their age. vassals cannot prescrive against their superiours ; because the vassals right acknowledges the superiours ; nor can laicks prescrive a right to ●●ynds being incapable of such rights after the lateran council ; but though the right it self prescrives , in neither of these cases , yet the bygons due by vertue of these rights before fourty years , may prescrive . prescription runs against the kirk , and mortifications ; but on the other hand , because church men are negligent , and rights may be lost in the change of intrants ; therefore , 13. years possession , is sufficient to maintain a church man in possession ; which is called , decennalis & ●riennalis possessio ; and is a presumptive title , and sufficient till a better be showen , by which it may be excluded ; for praesumptio caedit veritati . prescriptions run likewayes against the king ; except as to his majesties annext propertie ; or to his unannext propertie whereof the ferms , duties or feu ferms , have been compted for in exchequer , since august 1455. years . any deed , whereby the true proprietar owns his right , during the course of the prescription , is called interruption ; and prescription is interrupted in our law , either by a process , or a charge raised within the years of the prescription ; though the citation was only on the first summonds ; and though the summonds was past from , pro loco & tempore ; but interruption by citation , is not sufficient unless it be made by messengers personaly or at the parties dwelling house , and that it be renewed every seven years * ; and that the execution be signed by the messenger and witnesses * . interruptions made against the principal party , interrupt as to caution●rs ; and interruption as to a part interrupts the prescription of the whole ; so that if a man arrest the meals and duties of any part of a barrony , he interrupts prescription , as to the whole barrony . title vii . of succession in heritable rights . having formerly shewed how rights whether heritable , or moveable , real , or personal , are constitute , and how they are transmitted to singular successours : it remains now to consider how these rights are transmitted by succession , beginning first with succession in heritage . an heir , is he that succeeds universally to all that belonged to the defunct ; and is therefore in the construction of law , one and the same person with the defunct . though the executor , be in effect the heir in moveable rights ; yet we call those only properly heirs , who succeed in heritage ; and with us there are several kinds of heirs distinguished by their several denominations . the first , and chief kind of heirs , are the heirs of lyne , who are so called , because they succeed lineally , according to the right of blood ; and they succeed thus , first , descendants , according to the proximity of their degree , in which the eldest son is preferred to all his brothers , and all the brothers to the sisters ; and if there be onely sisters , they succeed all equally . the next degree , is grand children , and their great grand children , &c. who succeed all in the same way . if there be no descendants , then collaterals succeed , in which , the first degree is brothers , and sisters german , for the whole blood excludes the half blood ; and brothers the sisters ; and brothers by the fathers side exclude brothers by the mothers side ; there being no succession with us by the mothers side . failing descendants , and brothers and sisters , the succession ascends ; and all the ascendants succeed upward , according to their degrees of proximity , as the descendants did downward ; and thus the father succeeds to his own son ; and failing him , the grand father , great-grand father , &c. and failing of ascendants in the right ●ine , the collateral ascendants succeed in the same way , and thus the fathers brother ; or if there be no brothers , the fathers sister secludes the grand fathers brothers , or sisters , &c. it is to be observed that in heritage , there is a right of representation , whereby the descendants exclude still the collaterals ; though nearer by many degrees to the stock , or comunis stipes ; and thus the great grand-child of the eldest son secludes the second brother ; because , he comes in place of , and so represents the elder brother , his great grand-father . the heir of line , has right to the heirship moveables , and excludes all other heirs therein ; heirship moveables are the best of each kind of moveables , which is given to the heir ; because he is excluded from all other moveables ; if there be pairs , or dozens , he gets the best pair or dozen ; but in others he gets onely one single thing ; none have right to heirship moveables , but the heirs of prelates , under which are comprehended all benefice● persons , the heirs of barrons , under which are comprehended all who are infeft in lands or annual rents , though not erected in a barrny ; and the heirs of burg●sses , by which are meaned , actual trading , but not honorarie burgesses . if the defunct had any lands , or heritable rights , to which he could not succeed as heir of line , then he who succeeds in these , is called , the heir of conquest ; and the rule is , that heritage descends and conquest ascends ; so that if the midle of three brothers dyes , his immediate elder brother would be his heir of conquest ; and if a son of a second marriage dyes , leaving three brothers of a former marriage , the youngest would succeed in his conquest lands ; and this i conceive was introduced , for enriching the elder brothers , whom our law still favours ; whereas heritage must descend according to the law of nature . these heirs of conquest , have right to all lands , annualrents , heritable bands , and others ; whereupon infeftment did or might follow , but they have no right to tacks , pensions , moveable heir-ship ; and all other rights , having tractum futuri temporis , and requiring no infeftment , and so not competent to executors ; all which belong to the heir of line . the heir male , is the nearest male who can succeed ; and all heirs of line , are also called general heirs ; because they succeed by a general service and represent the defunct universally . the heir of tailzie is he to whom an estate is tailzed , so called , because the legal succession is cut off in his favours from the french word , tailer , to cut , and the matter of tailzies may be summond up in these few conclusions . primo , in tailzies , the person first named , needs not be served heir ; as for instance , if i take my land to my self , which failing to seius ; seius needs not be served ; because there is no cognition requisite to clear that he is to succeed ; but if i take may lands to my self , and my heirs ; or to me , and the heirs of such a marriage ; which failing to caius ; then either caius in the one case ; or the heirs of such a marriage in the other , must be served ; because , it is requisite to inquire , whether there were heirs , or who is heir of that marriage ? secundo , in all tailzies , he on whom the last termination falls is fiar ; as for instance , if i take my lands to seius , and failing him to caius , and his heirs ; caius is fiar , and seius is onely liferenter . tertio , though the last termination fall on the wifes heirs , the husband remains fiar ; because of the prerogative of the sex ; as for instance , if i take my land to my self , and my wife , which failing to her heirs , my heirs would be preferred ; except the estate belonged to my wife as fiar ; for then her heirs would be preferred . quarto , though in conjunct-fie rights , if i take my lands to my self , and my wife in conjunct-fie , which failing to our heirs , my heirs would be preferred , as to heritable rights ; but in substitutions to moveables , the right would divide betwixt her heirs and mine . quinto , the heir of tailzie , has but a hope of succession , and so the fiar may dispone ; nor can the substitutes , or remoter members of the tailzie , hinder him by action , inhibition , or otherwayes ; except there be a clause irritant , and resolutive , declaring , that if the first member dispone , his disposition shall be null ; in which case , though generally the remoter member must be served heir , to the immediate prior who was infeft ; yet in that case , the remoter member may be served heir to the first disponer . sexto , if one oblige himself to make such a man his heir of tailzie , that obligation tyes him onely once to tailzie his estate ; but not that he shall not break that tailzie ; except the obligation be for an equivalent onerous cause : or if a person oblige himself to do nothing contrare to his tailzie , he cannot thereafter make any voluntar gratuitous right to the prejudice of that tailzie ; but yet the lands tailzied may be comprised , or adjudged for sums truely due , and not dolose contracted , to disappoint the tailzie . heirs of provision , are these who succeed by vertue of a particular provision in the infeftment ; such as are heirs of a second marriage , and as to these heirs of marriages , we may observe two things ; first , that if a father by his contract of marriage , be obliged to employ a sum to himself , and wife in conjunct-●ie ; and the heirs of the marriage , he cannot in prejudice thereof do any fraudulent gratuitous deed ; tho he may provide a ioynter for a second wife ; or provisions for his children of a second marriage . secundo , though a father may assign or dispone sums to children , when extant , whereby they will be preferred to posterior creditors becoming fiars by the said rights ; yet if the father dispone to children to be procreat , this will be considered only as a destination and so will not hinder the father to make posterior rights ; or even posterior creditors to affect by diligen●es what is so disponed . tertio , process will be sustained at the instance even of the appearand heir of the marriage , against the father , to fulfill the special obligations therein , or to purge any deeds already done by him in prejudice thereof . albeit , where heirs are not designed in any right , the heirs of line , exclude all other heirs ; yet if a man take lands to himself , and his heirs male tailzie , or provision ; and thereafter acquire reversions , or tacks of the same lands to himself and his heirs ; these rights will accress to that special heir , to whom the land was provided ; for it is not presumable , that a man would give the lands to one , and the rights of them to another heir . when women succeed , all these of one degree succeed equally , and because the estate is divided amongst them , they are called heirs portioners ; the eldest not secluding the rest , and having no advantage over him ; but where the rights are indivisible , such as titles , iurisdictions , superiorities , and all the casualities of these superiorities : such as ward ▪ marriage , nonentrie , feu duties , &c. these fall to the eldest heir female , without division ; together with the principle messuage , it being a tower , or fortalice ; for other houses are divided equally . all these heirs are lyable in solidum , if they once enter heir ; except heirs portioners , who are onely lyable pro rata , and heirs substitute in a sum , who are onely lyable to creditors , in the value of the sum , to which they are substitute ; but they have in scotland a priviledge which they call , the benefit of discussion , whereby the heirs of line must be first pursued , to fulfill the defuncts de●ds , or pay his debts ; and next to these the heir of conquest , the heirs male , the heir of tailzie , and heirs of provision ; but for fulfilling a deed relating to particular lands , the heir who succeeds in these particular lands , must be first pursued , without discussing ; and that which is meant by discussing , is that the creditor must proceed by horning , caption and apprising , against the heir , who is to be discussed ; before he can reach the other heirs . an heir is said with us , to be heir active , who is served heir , and may pursue , whereas he whom the law makes lyable to be heir , is said to be heir passive ; as when the appearand heir is infeft upon a precept of clare constat by the superiour , or otherwise medles with his fathers estate . when the predecessor dyes , he who should be heir , ( and therefore is called , appearand heir , ) has year and day allowed him to deliberate whether he will be heir , which is called , annus deliberandi * ; and which is indulged by the law ; because if a man enter once heir , he is lyable to all the debts though far exceeding the estate ; and within that year , he cannot be pursued , nor obliged to enter ; but after the year is expyred , the creditor may charge him to enter heir , and if he resolve not to enter , he must renounce any right he has by a writ under his hand . this year is compted from the defuncts death ; except in a posthum child , who has a year allowed him , after his birth , and not only during this year ; but after it expires , the appearand heir without instructing any title , may pursue for exhibition of all rights made to his predecessors ; and of all rights made by his predecssors , to any in his own family ; but not to sirangers ; to the end he may deliberate , whither he will enter heir ; and the liferenter is bound to aliment the appearand heir , not being able to entertain himself , though he renounce . vid. supra part 2. title 9. § liferents . if the appearand heir resolves to enter heir to his predecessor , he must raise briefs from the chancellarie ; which brief is a command from the king. to the iudge ordinary , where the lands ly , to cause cite 15 sworn men , to try whether the raiser of the brief be nearest heir ; and this is executed or proclaimed at the mercat cross where the lands lye ; and if at the day appointed , these 15. sworn men find him to be the next person who should succeed , they serve him heir by a paper which is called a service , and which being returned be them to the chancellarie ; there is a write given to the heir , whereby he is declared heir ; and which is called , the retour , because it is their answer , and return to the chancellarie of the points contained in the brief ; and thereafter , the person who is served heir is infeft by a precepts out of the chancellarie ; and if the service was to any particular lands , it is called a special service ; but if there was no land designed , it is only called , a general service ; and this general service is sufficient to establish a right to heritable bands , dispositions , reversions , iurisdictions , and all other rights , whereupon the defunct was not infeft , nor needed to be infeft ; and a special service includes a general service but not e contra . the general brief hath only two points or heads , viz. if the defunct dyed at the kings peace ; and if the raiser of the brief be the next heir ; but the special brief , has seven , viz. when the defunct dyed . secundo , if he dyed last vest , and seased , at the kings peace . tertio , that the raiser is next heir . quaerto , of whom the lands are holden in capite . quinto , by what manner of holding . sexto , what is their old and new extent . septimo , whether the raiser be of lawful age ; and in whose hands the lands are at present . sometimes likewise , the vassal without serving himself heir , gets a precept of seasin from the superiour ; wherein , because the superiour declares , that it is known to him , that such a man is heir to his father ; it is therefore called , a precept of clare constat ; which therefore makes the obtainer lyable passive , to all his predecessors debts ; but gives him only active right , to the particular lands contained in the precept ; nor will it give him a right even as to these lands , except against those who derive right from the superiour who gave it . bailiffs also of burghs royal , do infeft their burgesses as heirs in burgage lands , giving them seasin : as heirs , by delivering them for a symbole , the hesp and staple of the doors ; and the seasin in that case , is in place of a service ; as to these lands ; but is not in other cases a sufficient active title . the heir who is retoured , holds either his lands of the king , and then he gets precepts out of the chancellary , to the iudge ordinary , to infeft him ; which if he refuse , the lords upon a supplication , will direct precepts to any other person , who is thereby made a sherriff in that part ; but if the lands hold of another superiour , then either that superiour is himself entered or not ; if he be entered , he will be charged by four consequutive precepts , to enter the heir ; and if at last he disobey , his immediate superiour will be charged , and so till the heir arrive at the king who never refuses to enter any ; and if the superiour be not entered , he must be charged upon 40. days to enter , that being himself entered , he may enter his vassal ; and if he refuse , or delay he losses all the nonentries of his vassal ; but no other casualities ; because quoad these he was not culpable . though the person who should be heir , do not enter to his predecessors heritage ; yet he may be made lyable to his predecessors debt , by two passive titles , relating to heritable rights ; viz. gestionem pro haerede , and as successor titulo lucrativo post contractum debitum , and there is a third passive title relating to moveables , which is called ▪ vitious intromission . behaving as heir , or gestio pro haerede , is when the person , who might have been heir , immixes himself , and intromets with either the moveable heirship , or any heritable estate , belonging to the defunct ; in which case , he is lyable to the creditors , not only according to the value of what he intrometted with ; but as far , and in the same manner as if he had been entered heir ; and yet the lords will not fasten this passive title upon a man ; because of its extraordinary hazard ; where the intromission is very small ; or where he has a colourable title to which he might ascrive his intromission , as a factorie from the compryser ; or the donator to the escheat , or recognition ; gestio pro haerede , being magis animi quam facti ; which factories will defend ; though there was no declarator ; but if the appearand heir had no factorie ; it is not sufficient to alleadge the defunct dyed rebell , and so could have no heir ; except his escheate was declared before intenting the pursuers action ; nor will this passive title , nor vitious intromission be sustained ; except they be pursued in the intrometters own lifetime , they being kinds of delicts . but he will not be lyable , if the defuncts right was reduced , though after his intromission ; and since this passive title was introduced by the lords of session , in favours of the creditors , to deter appearand heirs from fraudulent intromission ; therefore an appearand heirs , paying his predecessors debt will not infer this passive title ▪ since that is for the advantage of creditors ; nor will the getting of money for ratifying a comprising that is expired , infer this passive title , since the creditors would have got no advantage by that right ; but if the appearand heir had consented before the comprising was expired , it would be a passive title ; because as heir , he might have redeemed the comprising . successor titulor lucrativo , is , where the appearand heir , to preclude the necessity of entring heir ; and so being lyable to the creditors , gets a disposition from him to whom he would have been heir , without any onerous cause ; the receiving whereof , though it be a small part of the estate , makes him lyable to the payment of all the creditors debt ; if the right made , as well as the infeftment , was posterior to the creditors lawfull debt . but if there be an onerous cause ; then either it is not near equivalent to the value of the lands disponed ; and in that case , it will not defend against this passive title ; or , if it be near to the value , it will defend against it , but not against restitution of that value . and since this passive title , overtakes such as might have been heirs ; therefore , a disposition granted to a grand child , will make him successor titulo lucrativo , though the father be alive ; since by the course of succession , he might in time have been heir , though he was not immediate heir ; but since this can onely reach appearand heirs ; therefore , a disposition made by one brother to another , though the maker had no children , will not make him successor titulo lucrativo , since the brother might have had heirs himself ; and so his brother was not his appearand heir . the passive title holds onely in heritage ; and therefore , the getting a right to moveable heirship , and tacks , will not infer the same . gestio pro haerede , and successor titulo lucrativo , being passive titles , whereby in odium of the irregularity of the intromission , they are made lyable as heirs ; therefore , these passive titles , can extend no further , than if they intromet with , or take a disposition to these things to which they might have succeeded ; and so not inferred against an heir of tailzie , intromitting with , or getting a deposition of what would have fallen to the heir of line ; nor can they be extended further , than if they had been served heirs ; and thus an heir portioner will be no further lyable in these , than pro rata , if she had entered ; for the coppie should go no further than the original . to conclude , the succession in heritage , it is ●it to know , that by an old statute * and our constant practique , a man cannot dispon his heritage upon death bed , in prejudice of his heirs ; ( that is to say , neither lands , nor heritable bands , nor any band , though moveable , in so far as his heritage may be thereupon apprised or adjudged ; ) so jealous was our law of the importunity of churchmen , and friends , and of the weakness of mankind , under such distempers ; and therefore , if a man has made any right in prejudice of his heir , after contracting sickness , though he was sound enough in his iudgement for the time , and continued sound , for a very long time ; yet this right will be reduced , as done in lecto , or upon death bed ; either at the instance of the appearand heirs , or at the instance of the apprearand heirs creditors ; and it is sufficient to prove sickness , though it be not proved mortal , and that he was sick , without proving that he dyed of that sickness , or was sick the very time of the disposition . if thereafter , the maker of such a right come to kirk or mercat unsupported , the law presumes that the maker was reconvalasced , but since the law has fixt upon kirk and mercat , as open places , where the disponer may be seen by all men , and by unsuspect witnesses ; equivalent acts , as going to make visits , though at a greater distance will not be sustained ; and so the deeds reconvalasce with him ; but though a man cannot grant a new right upon death-bed ; yet he may perfect an old right ; or do a deed to which he might have been otherwayes compelled ; as fo● payment of his debt , or may grant a rational ioynter to his wife ; though he cannot grant provisions to his children in that condition . title viii . of succession in moveables . the same rules are observed , in the succession of moveables , that were formerly specified in the succession of heritage ; except as to these particulars , viz. all of one degree succeed equally ; and so amongst brothers and sisters , the elder seclude not the younger ; nor males the females , as in heritage ; and in moveables , there is no right of representation as in heritage ; and therefore if there be a brother and two sisters alive ; and a third sisters children , the brothers and sisters , who are living will succeed equally , excluding the children of the sister who is dead . the executor , is also onely lyable , according to the value of the defuncts estate ; because , he gives up an inventary of his goods ; but an heir is lyable for all the defuncts debts . a testament , or latter will , does require to be in write , for nuncupative testaments , which were so called , in the civil law ; ( because , the defunct named his heirs without write ) are not allowed by our law , by which a testament must either be holograph , all written with the defuncts own hand ; or at least , subscrived by him before two witnesses , if he can write ; or if he cannot write , by a notar , or minister and two witnesses . no heritable right can be left in testaments , though the testator was in leidge poustie , and perfect health ; and though the testaments be made in other nations , where heritage may be disponed by testament ; vet it will not transmit a right to heritage lying in scotland ; and yet a testament made according to the solemnities of these nations , will be valid in scotland ; for though they may regulate us as to solemnities ; yet they cannot alter the nature , and so not the transmission of our rights . a legacy , is a donation left by the defunct in any write to be payed by his executor ; but if the legator die before the testator ; or before the condition is fulfilled , on which the legacy was left , then the legacy evanisheth ; and though neither other mens moveables , nor a mans own heritable rights , can be left in legacy ; yet such legacies are valid , if the testator knew that the sum left was heritable , or belonged to others ; and the executor in those cases must pay the value . a minor being above 14. years , may make a testament , without the consent of his curators ; but under 14. years he can make none . a wife may make a testament without the consent of her husband . and a person interdicted without the consent of the interdictors ; but idiots , nor furious persons ; can make none ; except in their lucid intervals ; nor bastards , except they be legittimated , or have children of their own . if a man be married , the wife has without paction , a share in his moveables , of which he cannot defraud her by his testament ; and this is called , jus relictae ; and if there be children , the law has provided a portion of the moveables , for them ; which is therefore called their legittim ; and of which their father cannot prejudge them by his testament ; but there is no legittim due by the mothers death ; nor have children who are foris famili●● ; that is to say , who are married , and have renounced their portion natural ; any legittim due to them . this legittim is also due only to the immediat children , but not to grand children . the remander of the defuncts moveables , beside what is due to the relict , and children , is called the deads part ; and upon that onely he can dispone . if a man have no wife , nor bairns , all is the deads part and may be disponed by him ; if there be either wife , or bairns , and not both ; then the defuncts testament receives a bipartite division ; but if there be both wife and bairns , then it receives a tri●artite division . by the civil law , a testament was null , if the heir was not named ; but with us a testament is valid , though the executor be not named , who is the heir in mobilibus , and is called executor ; because he executes and performs the defuncts will , and for executing thereof the law allows him the third of the deads part , if he be a stranger ; but if the nearest of kin confirm , he has right to the whole deads part ; except the whole be exhausted by legacies , and the superplus over what is left in legacy , and the third due to the executor for his office , belongs also to the children , and they may call the executor also to an account for it * ; but the heir has no share in the moveables ; except he collate , that is to say , ( be content that the rest of the children share equally with him , in all that he can succeed to as heir ; ) or in case there be but one child ; for then that child is both heir and executor without collation . an executor nominate , is he who is named by the defunct in his testament ; and is therefore likewise called an executor testamentar ; but if there be none named by the defunct , then the commissar will make an executor dative ; and ordinarly they prefer the nearest of kin ; but if the nearest of kin being charged , will not confirme , then they name their own procurator fiscal executor ; and if thereafter , the nearest of kin compear , they use to surrogat him , and this is called , an executor surrogat ; but no executor dative has a third of the defuncts third , as others have . a creditor may confirm himself executor creditor ; and so may pursue the defuncts debitors , and least that creditors should wrong one another by nimious diligence , our law has appointed , that all who shall confirm themselves executors creditors , or shal do diligence against executors , or intromitters * within 6. moneths one of another shall come in pari passie . executors creditors are onely obliged to confirm as much as may pay themselves ; and are for the same reason , only liable to do diligence for what they did confirm . because moveables may be easily concealed from creditors or dissipated , therefore the law appoints , that the executor shall upon oath give up inventar , and find caution to make these moveables forthcoming ; and then the commissar confirms him ; nor can he pursue , or dispone as executor , till he be confirmed : he is onely lyable for the defuncts debt , in as far as the goods confirmed will extend . executory being a meer office , it accresses to the survivers ; if there be moe executors , and in so far as the executors have not execute the testament in their own lifetime ; that is to say , have not obtained decreets for the goods belonging to the defunct ; there will be place for a new executor , for executing these ; and they are called , executors quoad non executa ; or if the executor ommit to give up any thing in the inventar ; or do not give up the saids moveables at the full rates ; there will be another executor dative made by the commissar , who is called , an executor dative ad ommissa , vel male appretiata . the executor onely has power of administration ; and the creditors and legators can onely pursue him ; except where there is a special legacy left of such a particular thing , or a sum owing to such a particular person ; for then the special legator has the dominium transmitted to him , and so he may himself pursue for his special legacy ; but the executor must be still called in the pursute , to the end it may be known , whether the debts exhaust the special legacies ; for , no legacy can be payed , till the debts be payed ; and therefore , if all the legacies cannot be payed , the legators suffers a proportional defalcation for payment thereof ; but if there be as much free goods , as will pay the special legacy , it will be preferred , without defalcation . an executor cannot dispone , till he obtain a sentence , but even the sentence states him not in the absolute right of the moveables ; otherwayes than that he may discharge and assign to the respective persons having interest ; for , if he were denounced rebel , the executory ▪ goods , even after sentence , would not fall under his escheate , nor would his executors , or his creditors have right thereto , in prejudice of the nearest of kin of the defunct , to whom he was executor . if there be moe executors , whom we call co-executors ; one cannot pursue without the rest , for all of them represent the defunct only as one person ; but if any of the rest will not concurr , they may be excluded from their office , by a process before the commissars ; nor can an executor for the same reason discharge a debt wholly , since the rest have an equal share in each debt : but if the other executors have got as much as their share will extend to , the discharge even from one of the executors will be sufficient ; nor are ( for the same reason ) co-executors lyable for the whole debt , and so cannot be singlely pursued , unless they have intromitted with as much ; as may pay the debt pursued for . an executor is lyable to do diligence for recovering the debts due to the defunct ; and the diligence required upon his part , is a sentence , and registrated horning against the defuncts debitors ; but if there be an universal , or special legatar , whereby an executor confirmed has no advantage ; then the executor is not lyable in diligence ; but only to assign the creditors that they themselves may pursue . the executor likewise cannot pay any debt without sentence , least otherwayes he might prefer one creditor to another ; but yet the executor may pay those debts , that are acknowledged in testament without process , providing the same be payed before the creditors intent a persute ; or these which we call priviledged debts ; because they are preferred to all others , viz. servants fies , medicaments on death-bed , house-meal , and funeral-expenses . after the executors have executed the whole testament , they may get a decreet of exoneration before the commissars , against the creditors , and all having interest ; wherein they may prove that all they got is exhausted by lawful sentences ; but it is not necessar to have such a decreet when they are pursued before the lords , for it is sufficient when they are pursued there to alledge , that they are exhausted by way of exception . if any person intromit with the defuncts moveables , without being confirmed , they are lyable to the defuncts whole debts ; whether they were related to himor no ; and though their intromission was very small ; and this was introduced to prevent the fraudulent , and clandestine abstracting of the defuncts moveables , without inventary in prejudice of creditors ; and therefore this passive title is only introduced , in favours of creditors ; but of none others , such as legatars bairns , &c. but if the intromitter confirme , before any action be intented , this purges the vitious intromission ; and the intromitter is only lyable for the value of the thing intromitted with ; or if there be an executor confirmed , no person can be pursued as vitious intromitter ; for the intromitter then is only lyable to the executor ; but the relict , or the defuncts children , confirming within year and day after the defuncts death , does thereby purge the vitiosity ; though they confirm not till after citation ; nor will necessar intromission infer vitiositie , and that is called , necessar intromission , when either the husband or the wife , continue their possession of one anothers goods , after one anothers decease , for preservation ; and that because there is no other person to look after them ; and this is for the advantage of the creditors ; since it hinders the goods from perishing . if there be moe vitious intromitters , they are each lyable in solidum , if they be pursued in several actions ; and pro virili , if they be pursued together , but none of them get relief , for wrong in our law has no warrant . the heir is obliged to relieve the executor , of all heritable debts ; and the executor is bound to relieve the heir , of all moveable debts , as far as the inventar will reach . title ix . of last heirs , and bastards . whilst there is any alive , who can prove even the remotest contingencie of blood to the defunct , they succeed to him ; but if there be none , the king succeeds as last heir ; for quod nullius est , est domini regis ; and so the king succeeds to the defunct , as last heir ; both in heritage and moveables ; and is preferred to all superiours , and others whatsoever ; for which end he makes a donatar , who must obtain a declarator before the lords of session , against all who are supposed to have any relation , whereupon a decreet being obtianed before the lords , declaring that the king has right as last heir , , the defunct having dyed , without any relation . this decreet is equivalent to a service ; but if lands be taken by a man to himself , and his heirs male simply ; the king will succeed as last heir ; if there be no heirs male ; though there be heirs female ; since the land was not provided to them ; and therefore men ordinarly in their tailzies adject the clause whilks failzing to their heirs whatsomeever . because the king succeeds here as heir ; therefore he is lyable to pay the defuncts debts ; but he is only lyable as farr as the estate will extend ; and therefore the creditors may adjudge the real estate , and serve themselves executors creditors in the moveables . a bastard by our law has neither heirs nor executors ; but yet he may dispone upon either his heritage or moveables inter vivos ; though he cannot make a testament ; except he be legittimated by a letter under the great seal , ( which extends not to heritage ) or have children surviving him ; for the bastards children will allwayes seclude the king. the king in the case of bastardy , makes a donatar , who pursues declarator ; and is lyable to the debt ; for in effect the king succeeds here , quasi ultimus haeres , and creditors use the same execution in this case , as in the other ; and in both ultimus haeres ; and bastardy , the relict has still her share of the moveables , as in other cases . children procreate betwixt persons divorced ; and these with whom they have committed adultery can not succeed to them * . the institutions of the laws of scotland . part fourth . title i. of actions . having finished these two first parts of the law , which treat of persons and rights ; we come now to treat of the third part , viz. actions , whereby these persons , pursue those rights . an action is defined to be a right of prosecuting in iudgement what is due to us ; and it suffers very many divisions ; the first whereof is , that some are real , and some personal ; a personal action , is , that whereby we only can pursue the person that is obliged to us ; as where i pursue a man for payment of a sum due by his bond. a real action is , that whereby a man pursues his right against all singular successors , as well as the person who was first obliged ; as for instance , if one have an infeftment of annualrent , he can not onely pursue the granter for payment of the money , by a personal action , but he can by a real action , called , an action for poinding of the ground , pursue all singular successors , and poind the tennents , and intromitters with the rent , for recovering of his annualrent out of the land , that stood affected with his infeftment of annualrent . actions are also divided i● ordinary actions , and actions rescissory ; for with us all actions , are called , ordinary actions ; except improbations , whereby we pursue papers to be declared false and forged ; or reductions , whereby we pu●sue rights to be declared null , and to be reduced . in improbations , there are two terms given to produce the write ; because the danger is great ; and if the writer and witnesses of , and in that write be alive , their testimonies are onely allowed as probation ; which is called , the direct manner of improbation ; but , if these be dead , the lords try the verity of the write by strong presumptions and conjectures ; which is called the indirect manner of im●robation : but because in re●uctions , the write called for , 〈◊〉 onely to be declared null , till 〈◊〉 be produced ; therefore , there ●s onely one terme granted for pro●ucing . no certification will be gran●●d against any writes , made ●y the pursuer and his predeces●●rs and authors ; except he be ●●rved heir to these predecessors , and produce a right made by these authors : but certification will ●e granted against any rights made to the defenders , or their predecessors , to whom they may succeed jure sangui●is , or to their authors , or any to whom these authors may succeed jure sanguinis ; if any person be called to represent these authors . the ordinary reductions are ex capite inhibitionis , whereb● we pursue rights to be declar●● null as granted after inhibition is raised by us ; or ex capite interdic●ionis if granted after interdictio● is raised by us ; or ex capite vis 〈◊〉 metus , if the rights were extort●● from us by force ; or ex capit● fraudis , if the rights were eli●● from us by circumvention , in bot● which last the pursuer mu● lybell the qualifications , or circumstances from which th● force or fraud are inferred or ex capite lecti , if the deed were done upon death-bed , i● prejudice of an appearand heir● or upon the act of parliament ▪ 1621 * , if the deeds were don● in prejudice of prior lawfull creditors , in favours of conjunct or confident person ; that is to say ▪ relations , or trusties , without an onerous cause , or to a creditor● , though for an onerous cause , in prejudice of another who had done prior diligenc● , that was habile to affect the subject disponed ; all whi●h , and many others of that nature are opposed to ordinary actions ; because , they are extraordinary remedies invented by law , for the preservation of mens rights , and are called extraordinary ; because they are never competent , till other ordinary remedies fail . actions of reprobatour , and errour are in effect reductions ; and must have the concourse of the kings advocate ; in the first whereof , a party against whom witnesses have deponed unjustly ; craves , the decreet pronounced upon these depositions to be reduced ; because the witnesses have deponed fasly , circa initialia testimoniorum ; and condescend in his reasons of reduction , up on the particulars wherei● they have deponed fasly ; and also concludes , that the testimonies should be reprobated . in the summonds of error ; the pursuer craves , that a service ( whereby the defender is served hei● to such a man ) ought to be reduced ; because the pursuer is a ne●rer relation to the defunct ▪ than the person wrongously served ; upon which he condescends ; and therefore concludes , that the service , and all following thereupon may be reduced ; and that it may be found , that the inquest who served him heir have erred ; and this is the only summonds that is drawn in l●tine with us . some actions , are called preparal●r● , or prejudiciall actions ; because , they must be discussed before other actions are competent ; as for instance , if i pursue for a sum , and the defender raises an improbation , alledging the write to be false ; the tryal of the falshood , must be first discussed ; and so is prejudicial to the action of payment . exhibitions conclude , either meerly to exhibit the write , or the thing called for ; and then it is only a preparatory action ; such as exhibitions ad deliberandum ; or else they conclude delivery ; and in all exhibitions , the ordinar terms lybelled , are that the defender had , has , or has fraudfully put away the papers or things craved to be exhibite ; and therefore , he is not obliged to exhibite , except he had them since the citation , or fraudfully put them away , to elude a future citation . some actions are called , actiones , bonae fidei ; in which equitie is followed , as actions upon mandates , depositations , emption , location , &c. in which the iudge considers what in equity is to be done by one party to another . and some actions are stricti juris ; in which the iudge is to follow the strict prescript of the contract upon which the action is raised , as in a declarator of redemption , wherein the pursuer craves , that it may be declared that he has lawfully redeemed the lands , that were wadseted ; in which case the judge must consider the very precise terms of the reversion , and that the lands were redeemed conform to these terms ; nor is equipollency relevant in these cases . some actions , are called rei persecutoriae , by which we pursue that quod patrimonio nostro abest ; which is commonly called , dammage and interest . some are called , penal actions ; because we pursue not only for repetition , and real dammage , but for extraordinarie dammages , and reparation by way of penalty ; such as are spulzies , actions for violen● profits , &c. some actions , are called arbitrary actions , wherein the iudge is tyed to no particular law ; but proceeds ex nobili officio , that is to say , according to what he sees just and fit ; as an action for proving of the tenor of an evident , wherein the complainer lybels , that he had such a paper , ( of which he must lybel the full tenor verbatim , ) and that he lost it by such an accident ; and therefore concludes ▪ that the tenor may be proven by witnesses , and adminicles in write , which he must libel ; for , no tenor can be proven , without some adminicles in write : and generally , there being many things , with which the law behooved to trust the discretion and honesty of the iudge , since all cases could not be comprehended under known laws ; it therefore invested the iudge with this eminent power , which is called , nobile officium , in opposition to that officium ordinarium , & mercenarium , wherein he is obliged to follow the will of the contracters precisely , & hoc officium mercenarium iudex nunquam impertit nisi rogatus . some actions , are called , declarators ; because the pursuer concludes in them , that some special thing should be declared in his favours ; and ordinarly , whereever the king , or any other superiour grants a gift , he to whom it is granted pursues a declarator , craving , it may be found and declared , that the casuality gifted to him , has faln in the superiours hands ; and that he has right thereto , by vertue of the gift : and thus declarators must be raised upon escheats , wards , marriages , nonentries , &c. onely there needs no declarator upon a gift of forefaulture ; and upon gifts of escheat , they raise actions , both of general and special declarator in one summonds . in the general , the pursuer concludes , that it should be found and declared , that the rebel was lawfully denounced to the horn ; and that thereby his escheat fell in the superiours hands : and in the special , he concludes , that the tennents of the rebels lands , whose escheat is faln , may pay him the meals and duties , by vertue of his gift , and decreet of general declarator . but though this last action be called , an action of special declarator ; it is in effect but an action of meals and duties : in other cases also , where any thing is craved to be found and declared , as a right arising upon a special matter of fact , for which no other action can be found , that has a special name : lawiers doe now cause raise actions of declarator ; or at least , cause adject conclusions of declarator to other actions , such as reductions , &c. and these are the same with the actions in factum , mentioned in the civil law. some actions are called civil , wherein men prosecute their civil rights ; and some criminal , wherein men prosecute crimes , ad vindictam publicam . for further clearing of actions , and how they ought to be lybelled ; i shall shortly explain the nature of a summonds ; and shall set done some of those actions which have special names and conclusions . the chief parts of a summonds , are the pursuers interest , that is to say , the right standing in his person , whereby he has good interest to pursue the action he has intented . secundo , that all the persons who should be called as defenders , be called in the summonds , and since it is a relevant exception against a summonds , that all persons having interest are not called ; therefore it follows clearly , that for the more securitie it is fit to call all persons , who may be concerned in the debate . tertio , the medium concludendi ; that is to say , the ground whereupon the persons called , are lyable to pay and perform what is craved . quarto , after all this is narrated , the king in the summonds , says , our will is , &c. that ye cite such and such persons , &c. which is called , the will of the summonds , and which will of the summonds does comprehend , a command to the messenger , to cite the defenders ; and expresses the number of dayes , upon which they are to be cited ; and the places to which they are to be cited ; and before whom they should compear : as also , the conclusion craved by the pursuer , each of which summonds , almost has it own special stile and terms ; and by act of parliament , writters are commanded not to alter the ancient stile * it is observable , that though the matter of fact be ordinarly narrated before the will of the summonds ; yet summonses of reduction , improbation , transferrance , spulzie , and declarators of nonentrie ; begin , at , our will is , &c. and then goes on to the interest of the pursuer , &c. in a summonds of transumpt , the pursuer ( who in the summonds is alwayes called the complainer ) lybells , that he has right to the lands whereof he craves the papers to be transumed ; and that therefore it is necessar to him to have doubles , and transumpts of the rights ; and this is the pursuers interest ; and that the defender has these rights , or is obliged to procure him transumpts ; and therefore concludes , that the defender should be obliged to exhibite , and produce them , to be judicially transumed ; and the authentick transumpts to be declared as sufficient for the security of the pursuer in the saids lands as the original writes themselves . in a summonds of multiple poinding , the complainer having narrated , that he is troubled by such and such persons , who do each of them pretend right to a sum , in which he is lyable ; he therefore concludes against all of them , to compear to hear and see the same tryed ; and the party who shall be found to have best right to be preferred ; and the other party to be discharged from troubling and molesting him in all time coming . in a summonds of transferrence , the complainer lybells that the defender is heir to his debitor : and concludes , that the debt should be transferred in him passive as heir ; and upon the other passive titles ; and therefore , that letters and executorials may be directed against him , in the same manner as they might have been directed , used , and executed against his predecessors , before his deceass . these transferrences are used when there is an decreet obtained , or bond registrated against the defunct in his life-time ; but if the bond was not registrated , then there is a summonds of registration raised in which the pursuer concludes , that the said bond should be insert and registrated in the books of council and session , to have the strength of a decreet ; and executorials to be direct thereupon in manner therein mentioned . in a summonds of prevento ; the complainer narrates , that he having raised letters of horning , the same were suspended upon must frivolous reasons , to a very long day ; and therefore concludes , that the defender should bring with him the said suspension , the blank day of blank , prevento termino : to hear and see , the same called , reasoned and discussed , with certification , that if he sail , the lords will cause call the suspension , upon a coppie , and admit protestation therein , and ordain the letters to be put to furder execution . if an advocation be raised to too long a day of compearance , there may be likewise a summonds of prevento raised thereof . in a summonds of contravention of laborrows ; the pursuer lybells , that a. b. became surty , and laborrows for c. d. that the complainers , wife , ba●rns , men , tennents , and servants , should be harmelesse , and skaithlesse in their bodies , and lands , &c. and then subsumes upon the prejudice done , notwithstanding of the said caution : and therefore concludes , that both the principal and cautioner , should be decerned to have contraveened the said act of caution , in manner foresaid ; and therethrow , that they conjunctly and severally have incurred the foresaid pain , the one half to the king , and his thesaurer , and the other half to the complainer , as party grieved . in a declarator of property , the complainer narrates his right to the lands , and how long and after what manner , he and his authors have been by themselves , their tennents , and others having right from them , in the peaceable possession of the saids lands ; untill of late that he is molested , and troubled by the defender ; and therefore concludes that it should be found and declared , that he has the sole , good , and undoubted right , and interest in and to the saids lands ; and that therefore the said defender , and his tennents , and servants and others , of their causing , and commanding , should be decerned , not to trouble , nor molest them for the future , in their peaceable possessioon , bruiking , and joysing thereof . if the complainer designs only to maintain his possession ; without bringing his propertie in contraversie he raises a summonds of molestation ; in which he only concludes , that they should desist , and cease from troubling and molesting him in the peaceable possession of his lands . in a summonds for poinding the ground , the pursuer narrates , that he stands infest , and seased in an annualrent of to be uplifted , out of the lands of and therefore concludes against the tennents of these lands ; and the heritor for his interest , to hear and see letters directed to messengers at armes , sherriff in that part , to fence , arrest , apprise , compel , poind , aud distrinzie the readiest goods and geer , that are presently upon the lands ; and yearly and termly in time coming , during the not redemption of the annualrent . in a summons of spulzie , the king commands messengers , &c. ( which is the stile of all summonses , which begin with , our will is , ) to summond , warne , and charge the defender , to compear and answer at the instance of the pursuer against whom the spulzie after specified was committed ; that is to say , the defenders for their wrongous , violent , and masterful coming by themselves ; and their servants , complices , and others in their name ; of their causing , sending , bounding out , command , reset , assistance , and ratiabition , to the lands of upon the day of and for their wrongous , violent , and masterful spoilziation of the goods ( to be condescended on ) and then concludes , that they should pay the prices extending to and the profits , that the complainer might have made of the said ▪ goods daily since the said spulzi●tion , extending to &c ▪ in a summons of wakning ▪ the complainer after narrating that he had raised such ● summonds , which he had suffered to lye over and sleep ▪ for a year ; ( for there need● no wakning if there was any iudicial act , or minute upon the summonds within th● year ) and therefore concludes against all the person● cited in the first summonds , to hear and see the foresai● action called , wakned , and begun , where it last left insisted into , and iustice administrate therein , till the final decision of the cause . a furthcoming is that action , wherein the arrester lybels , that he having raised ●etters of arrestment , he caused , messenger lawfully fence , and arrest all debts owing by ●he defender to the debitor , ●o remain under arrestment ; and to be made furthcoming to him ; and therefore concludes , ●hat the defender should be decerned to make furthcoming payment , and delivery to the said complainer , of the sum of adebted , restand , ow●nd be him to the said debi●or . if notwithstanding of the arrestment , the debitor pay his own creditor ; there is an summons for breaking of arrestment , wherein after the arrestment , and payment is narrated , the pursurer concludes , that the defender should be decerned to have broken the arrestment then standing ; an● not lawfully and duely loosed ; an● therefore to be punished in his person , and goods , conform to th● laws of the realm , in example ●● others . though the accumulati●● of several actions into one lybell was not allowed by the ci●●● law ; yet it is allowed by ours , in which we may no● only pursue several persons ▪ for several debts in one lybel● which we call by a general name , an actions against debitors but we may likewise accumulate several conclusions , agains● one and the same person though they be of different n●tures ; as reductions , improbations , and a declarator of propertie , and actions of general , and special declarator ; in all which it is a general rule , quot articul●● tot libelli . but when many actions are ●ompetent , for one and the same thing , as if a messenger be deforced , we may pursue ●he deforcer criminally ; ( which will infer confiscation of moveables , or civilly for payment of our debt ; and the pursuing of ●he one does not extinguish , or consume the other ; and either the criminal or civil action may be first pursued ; and ●n the concourse of all actions , ●f the actions which concurr ●ave different conclusions , as ●n the foresaid instance , where the criminal action of deforcement concludes confiscation , and the civil action only payment ; though the defender be assolzied in the criminal pro●●ss , yet he may be pursued civillie , and the deforcement referred to his oath . title ii. of probation . for understanding the matter of probation , it i● fit to know , that al● probation is either by write , by oath , or by witnesses . probation by write , has been formerly explained in the title concerning obligations by write . probation by oath , is when either the partie or judge ; referres any thing to the oath of the contrare partie ; but regularly , no mans right can be taken away by oath ; except he who has the right , referr the same to the adversaries oath ; but when there is a former probation already adduced , the iudge sometimes gives an oath of supplement , which is so called , because it is given to supplie the probation already ●ed . an oath of calumnie , is that whereby either the pursuer , or defender is obliged to swear that the pursute , defence , reply , &c. are not groundless , and unjust , and this may be craved by either party , at any time during the dependence ; and if it be refused , the pursuer will have no further action ; nor the defender will not be allowed to insist any furder in that defence , duply , &c. whereon his oath of calumny is craved . an oath in litem , is that which law allows the iudge to deferr to him who is injured ; for proving the quantities of the thing wherein he is injured ; v. g. if i pursue titius , for having brok up my trunk ; and i have proved that he did break it up : the iudge will refer to my oath , what i had in the trunk ; and this is allowed both in odium of him who commits the injurie ; and least the person unjustly injured should loss his right for want of probation . a qualified oath , is , that whereby he to whose oath any thing is referred , depones , not simply ; but circumstantially ; which we call to depone with a quality ; v. g. if i pursue titius for payment of 100. lib. which he promised to pay , who compears , and depones , that he did indeed promise ; but it is as true , that he allowed the pursuer to intromit with goods belonging to the deponent , equivalent to the sums due by the promise : with which accordingly he has intromitted : and those qualified oaths generally are admitted ; if the quality be intrinsick , that is to say , necessarly imployed in the nature of the thing ; as in the foresaid instance . but if the quality be extrinsick , it in effect resolves in a defence , and so must be proven otherwayes , than by the qualified oath ; as if a debt be referred to a parties oath , who depones , that he acknowledges the debt , but that it is payed ; this will not be admitted as a qualitie , but is in effect a defence which must be proven , otherwise than by his oath . probations by witnesses , having been allowed in all cases of old , untill the falseness of men forced our law-givers , to allow nothing above 100. lib. to be proven without write , or oath , and promises , to be only proven by oath ; this probation by witnesses is therefore called , probatio pro ut de jure ; and it is fit to know , that none within degrees defendant , that is to say , who are cousin germans , or of neare● relations , can be witnesses ; no● women , nor tennents , who have no tacks , nor persons declared infamous , nor domestick servants ▪ nor such as may gain , or loss by the cause ; nor such as have given partial counsel ; that is to say , advice to raise or carry on the pursute ; or such as have told what they will depone ; which we call prodere testimonium ; nor such as compear to depone without being cited ; whom the law calls , testes ultronios , and rejects them , because of their suspected forewardness ; all others except these may depone , and are called habile witnesses : and if habile witnesses refuse to come when they are cited , there will be first horning , and then caption directed against them ; which are called first and second diligences , but their escheates will not fall upon that horning . presumptions , are a kind of probation , and a presumption is defyned to be a strong ground or argument , whereby a iudge has reason to think , or be convinced , that such a thing is true ; and they are divided into presumptiones juris , which though they be strong , yet may be taken off by a contrary probation ; as if a man threaten to poyson another , if the person was thereafter poysoned , it is presumable that he was poysoned by the threatner ; and presumptiones juris & de jure ; ubi lex constituit super presumpto ; and thus the law presumes , that an ultronius witness , who offers him . self , is partial ; and therefore statutes upon that presumption , that he shall not be received ; and against these presumptions , no probation can be admitted . title iii. of sentences and their execution . after a decrect is extracted , the obtainer thereof raises letters of horning thereon ; whereby the party decerned is charged to pay or fulfill the will of the decreet ; under the pain of rebellion ; and this decreet can only be quarrelled by reduction , or suspension , in both which the reasons whereupon it is quarrelled are set down ; nor can a decreet of the lords , be taken away without reduction ; and if there has been a debate in the first instance , ( for so we call the action before the decreet ; as we call reduction and suspension the second instance ; ) then nothing that was competent to have been proponed before the decreet , will be admitted but will be repelled , as competent and omitted ; for else there should be no end of debate ; but yet if any thing have newly emerged ; or has newly come to the parties knowledge , these are and must be received , if he depone , that he knew not the same formerly . the ordinar effect of a suspension is to stop the execution of sentences for a time ; and it is a summons , wherein the party alledged injured by a decreet , does cite the partie who has obtained the decreet before the lords , ( for no inferiour court can suspend , ) to answer to the reasons offered by him , for suspending execution upon that decreet : which summons proceeds upon a bill , wherein the reasons are represented to the lords ; for though sometimes , the lords ordains the reasons to be debated upon the bill ; yet ordinarly they ordain letters of suspension to be raised : if the decreets be in foro , then the suspension must pass by the whole lords in time of session , and by three lords in time of vaccance ; but other decreets may be suspended by any one lord. there are other reasons allowed to be insisted on beside these in the bill , and these are called eiked reasons , and a man may suspend upon new reasons , as oft as he pleases for competent and omitted is not received against suspensions . if the suspension be called , discust , and the letters found orderly proceeded , that is ordained to be put to furder execution : then letters of caption may be raised ; whereby all the inferiour iudges and magistrates , are ordained to concurr with the messenger , in apprehending the rebel , and putting him in prison ; which if they refuse : or if the prisoner thereafter escape out of their prison , they are lyable to pay the debt ; by a subsidiarie action . decreets are executed likewise by poinding , and arrestment upon the warrand in the letters of horning , which are fully treated in their proper places , vide supra , tit. poinding , and arrestments . tit. 5. part 3. as to execution of immoveable goods , which is by comprising and adjudication , the same is formerly treated , part 2 tit . 12. if the decreet be , to remove from lands , then the party decerned to remove , being denounced rebel , for not removing ; the sherriff , or iudge ordinar , is charged to eject , who comes to the land , and puts out the fire , or casts out some of the plenishing ; but if a man continue to possess in spight of all law , after he is legally ejected , the privy council will give letters of fire and sword , to the party injured ; commissionating the sherriff , and others whom he will name , to dispossess him by the sword , to raise fire , and use all other severities , for which the commission does indemnifie them . if such as have debatable rights , choose rather an amicable , than a iudicial decision ; they subscrive a submission to arbiters , and if they please , to an oversman , and another blank on the back of the submission ; wherein they may fill in their decreet arbitral : and though it be free to these arbiters to accept ; yet if they once accept , the lords will grant letters of horning to force them to decide . though these arbiters are not tyed to the strict solemnities of law , yet they must observe material iustice ; and therefore , they must advertise parties , that they may give in claimes ( for a claime to arbiters is in place of lybels to iudges ; ) and must allow terms to prove ; and though equity is to them a rule , as law is to other iudges ; yet if either party be enormly lesed , the lords will suspend and reduce their decreets . if the submission bear no special day , betwixt and which they are tyed to decide , they must decide within a year of the submission ; and if witnesses will not voluntarly appear before them , the lords will upon a bill , grant letters of horning to force them to appear . title iv. of crimes . crimes are either private , where the injury is committed against private persons ; or publick , where it is committed immediately against the common-wealth . private crimes , called also delicta , in the civil law , oblige the committers to repair the dammage , and interest of the private partie . crimes are in scotland either punished capitally , by death ; or pecunially , by a certain fine ; or arbitrarly at the discretion of the iudge . capitale crimes are treason , which is punished by forefaulture of life , lands , & goods . it is treason in any man , to plot , contrive , or intend death , or destruction to the kings majesty ; or to lay any restraint upon his royal person ; or to deprive , depose , or suspend him * , or to endeavour the alteration or diversion of the succession * ; to levy warr against the king , or any commissionated by him ; or to intyse others to invade him * , to make treaties , or leagues with forraign princes ; or amongst themselves without his consent * . to rise in fear of warr against the king ; to raise a frey in his hoast † , to assaile castles where he resides * ; to impugne the authority of the three estates ; to decline the kings authority ; not to come out to the kings hoast ; or to desert it * ; to maintain or reset treatours ‡ ; to conceale treason ; to countersite the kings coyne ; and to raise wilful fire * ; all which are species of high treason . we have a kind of treason in scotland , which we call statutory treason ; because it is meerly introduced by statute , and not by common law : viz. theft in landed men ‡ ; because of the danger of that kind of theft ; murder under trust * ; as if one man should kill another , when he invites him to his house ; or a tutor should kill his pupill ; which because of the easiness and attrociousness of the crime is made treason ; the fireing of coals heughs * , assassination * ; & the pursueing another for treason without being able to prove it ‡ . all iesuits , seminary priests , and traffecking papists * ; and all thieves , who take bonds from lealand honest men , for re-entering when they please : all who purchase benefices at rome ; are guilty of treason ‡ . no crime can be pursued against a man or his heirs , after his death ; except that treason which is committed against the kings person , or common-wealth . the other capital crimes are blasphemie , mans slaughter , or homicide ; for all homicide is capital with us : except it be casual * , or homicide in self defence . * theft is punishable by death ; but we call small theft pickery , and it is only punishable arbitrarly * . notour adulterey , that is to say , where there are children of the marriage : or where the adulterers converse openly at bed and board ; or being discharged by the church to converse , do continue to converse is punishable by * death ; but simple adultery is only punishable arbitrarly . incest * , buggery , duells † , the invading of any of his majesties officers , for doing his majesties service * ; forgery † , witchcraft , and the consulters of witches * , sorners ; that is to say , such as masterfully take meat and drink from the kings people without payment † : all wilfull hearers of mass * , and conceallers of the same ; mutilation † , which is the disabling of a member , ( though de praxi ; this be ordinarly punished with an arbitrary punishment : or the authours of infamous lybells , seditious speeches , tending to sedition ; the strickers of any iudge in judgement ; mixers of wine * , and committers of hame-sucken , by which we understand the assaulting or beating any man in his house . the crimes to be pecunially punished are the slayers of red-fish * ▪ killers of daes , deer , roes † ; destroyers of bee-hyves , fruit-trees , greenwood ; kindlers of mure-burn ; except in the moneth of march ; steeping of green-lint in runing waters . or loches ; such as are guiltie of abominable oaths ; and furnication . crimes to be arbitrarly punished at the discretion of the iudge , are negligence in the kings iudges and officers * , and such as unjustly murmure against them † ; breakers of the kings protection * : the bringing home of erroneous books † ; and the troublers of church-men ; crafts-men * who wrongously refuse to fulfil the work which they have taken in hand ; verbal injuries , and scandals , against private parties . it is fit to know , that no punishment left arbitrary by the law , to the discretion of the iudge , can be by him extended to death ; and that where-ever the law appoints death to be inflicted , the offenders moveables fall to the king ; though the law does not express the same ; and though the sentence express not the confiscation . there are other crimes , whereof the punishment is not reduceable to any of these kinds ; and thus perjury , and bigamie , ( which is a kind of perjury ; because , a man who marries two wives breaks his matrimonial oath , ) are punishable by confiscation * of all the offenders moveable goods , imprisonment , and infamy . deforcers of messengers , and breakers of arrestment , are punishable by confiscation of all their moveables † ; forestallers of mercats * , by buying things before they be pr●sented to the mercat ; or before the mercat be proclaimed , are punishable by imprisonment , and confiscation of what is bought . ocker , or usury * , which is the taking more than the annualrent allowed ; or the taking annualrent before the term of payment ; is punished by loss of the principal sum ; for the debitor is to be free from the obligation , and the write being reduced , the sum belongs to his maiestie . stellionat or the making of double rights ; is punished by infamy * ; and their persons are at the kings will. the keepers of victual to a dearth , are punishable as * ockerers ; and by the civil law , per leg : iul : de annona . bribing of iudges is punishable by infamy and deprivation ; plagium or the stealling of men , is a particular crime by the civil law ; but is a species of theft with us . and theft-boot which is the saving a thief by fyning with him , is punishable as theft * . baratrie , or the obtaining benefices from rome , is punishable by † banishment and infamy . ambitus , or the obtaining offices by unjust means , is not punishable under monarchie . the punishment of crimes is taken off , either by remissions , which must pass the great seal ; and must express the greatest crime † , for which the remission is granted : or by indemnities , which is a general remission granted by the king or parliament ; betwixt which two there is this difference , that the obtaining a remission does not free the obtainer , from * assything the party , that is to say , from repairing his losses ; since it s presumed the king does only discharge what belonged to him , which is , vindicta publica ; but not what is the interest of private parties , or vindicta privata ; but because all the people are represented in parliament : the king and parliament may by their indemnity ; discharge both the one and the other . he who founds on a remission , acknowledges the crime ; but he who founds on an indemnity does not . the king likewise restores men sometime against forefaultures ; which restitution is either by way of iustice , finding that the person was unjustly condemned ; and then the person condemned is restored to all that ever he had ; and he recovers not only his fame , but his estate ; though transmitted to third parties . † or secundo , the restitution is by way of grace and meer favour ; and then the partie condemned cannot recover , what was bestowed by the king upon third parties ; for the king cannot recall what was once legally and warrantably granted by him . finis . notes, typically marginal, from the original text notes for div a50514-e1550 * k. j. 6 par. 8. act ●31 * k. ja. 4. par. 4. act 51. k. jam. 5. par. 6 act 80. ● . mary par. 5. act 22. k , ja. 6 par. 1. act 31. * k. ja. 5. par 7 act 93. * k. ja. 1 par . 3. act 54. k. ja. 3. par. 14. act 115 † k. ja. 6 par . 3. act 18. * k. ch. 2. par. 1 act. 2. par. 3. act 18. * k. c. 2 par . 3. * k. c. ● par. 1. sess. 1 , act 11. ‡ par . 3 act 18. * k. j. 6. par . 14. act 212 * k. c. 2 par . 3. act 13. * k. j. 6. par. 15. act 251 * k. c. ● par. 1. sess. 1. act 5. and 15 ▪ par. 3. act 2. * act foresaid * king ch. 2. par. 1. ses. 1. act. 2. * k. ja. 6. par . 18. act 1 k. ch. 1. par . 1. act 3. k. ch. 2 par . 2. ses. 1. act 1. * k. j. 1. par. 7. act 101 k. ja. 6. par. 11. act 113 * k. ja. ● . par. 7. act. ●28 . * k. ja. 5. par . 5. act 36 , 37 , 38 , 39 , 40. * k. ja. 6. par. 12. act 132. * k. c. 2 par. 2. sess. 3. act 18. * k. c. 1 par . 1. act 18. * k. c. 2 par . 3. act 16. * k. j. 6. par. 12. act 124 * k. c. 2 par. 1. sess. 3. act 15. * leg. mak. 2. act 11. quoniam attach . cap. 79 † k. ja. 2. par. 1● . act 43. * k. ja. 6. par. 11. act. 29. * quoniam attach , cap. 89. * k. c. 2 par. 1. act 38. * k. ja. 6. par . 1. act 2 , * k. ja. 6. par. 9. act 7 * k. ja : 6. parl . ● . act 131. k. char 2. par . 1. sess : 1. act 4. sess . 3. act 5. * k : j : 6 : par : 22 : act 1. * k. j. 6. par . 21. act 1. * k. ja. 6. par . 18. act 3. * k. ja. 6. par . 19. act 8. * k. ja. 6. par. 1 act 12 ▪ * k. ja. 6. par. 2 act 1. * act foresaid . * k. ja. 6. par. 22. act 3. * k. ja. 6 par. 13 act 161 * k. ja. 6 par. 21 act 8. * king james 6 par. 3. act 48. * king james 6 par : 11 : act 161 * king charles 2 : par . ● sess : 3 : act 13. * king james 6 par 29. act 6. * levit. chap. 18 k. ja. 6 , par. 1. act 1. * king charles 2. parl . 1. sess. 1 act 34. † king james 4 par . 6. act 77. k char par. 2. act 9. sess. 3. * k. c. 2 par. 3. act 10. * reg. ma. lib. 2. cap. 58. leg. burg. cap. 44. * k. ja. 6. par. 4 act 55 * k. ja. 3 par. 7. act 32. * q. m. par. 6. act 35. * k. c. 2 par. 2. sess. ● . act 2. * k. c. 2 par. 3. act 19. * statu● : a will : cap. 39. * k. j. 6. par. 10. cap. 18. * k. c. 2 par. 1. act 32. * k. c. 2 par. 3. act 5. * k. j. 6. par. 14. act 214. k. j. 6. par. 22. act 16. * q. ma par. 3. act 5. k. ja. 6. par : 2. act ●2 . * k. j. 6. par. 18. act 14. ‡ k. j. 6. par. 1. act 27. * k. c. 2 par. 3. act. 11. * k. j. 4. par. 3. act 25. k. ja. 5. par. 4. act 15. * stat : rob. 3. cap. 19. * stat : rob. 3. cap. 18. reg : majest . lib. 2. cap. 63. par. 6. & 9. * leg. mal. cap. 1 ▪ * k. j. 6. par. 15. act 226. * k. j. 5. par. 4. act 32. * k. j. 6. par. 22. act 15. * k. j. ● . par. 1. act 12. ‡ k. j. 2. par. 6. act 17 * k. j. 4. par. 3. act 26. * q. ma par. 6. act 39. * k. j. 6. par. 5. act 66. * k. c. 2 par. 2. sess. 1. act 3. * k. j. 3. par. 5. act ▪ 28. * k. j. 6. par. 22. act 16. * k. j. 6. par. 14. act 222. par. 15. act 247. * king char. 2. par . 1. act 62. * k. j. 3 ▪ par. 5. act 37. * k. c. 2 par. 1. act ▪ 62. * k. c. 2 par. 3. act 10. † k. j. 4. par. 6. act 77. * k. j. 4 par . 3. act 25. * tyths or tenths : * k. j. 6. par. 11. act 29. * k. c. 1 par. 1. act 17. and 19. k. ch. ● par. 1. sess. 1. act 61. * act of sed. 19. feb ▪ 16. 1680. * k. j. 6. par ▪ 1● . act 264 ▪ & 265. par . 1● . act 1● . * k. c. 2 ▪ par. 3. act 26. * k. j. 6. par. 7. act ▪ 119 ▪ * k. j. 6. par. 5. act 37. * k. c. 2. par. 1. sess. 1. act 62 * k. c. 2 par . 1. sess. 3. act 19. * k. j. 6. par. 23. act 6. * k. j. 6 par . 21. act 6. * k. j. 3. par. 5. act 37. k. j. 6. par. 23. act 6. * k. c. 2 par. 1. act 62. * act foresaid . * k. c. 2 par. 2. sess. 1. act 18. * k. c. ● par. 2. sess. 3. act 19. * k. c. 2 par. 1 sess. 1. act 62. * k. c. 2 par. 2 sess. 1. act. 18. o●l●gat●on . * contracts . * contracts . * mutuum . * commodatum . precariu● . depositation . pledge . condictio indebiti . obligation by write . promises . * k. j. 6. par. 15. act 175 * k. c. 2 pa● . 3. act 5. bills of exchange . emo & vend . emption . * location . society * mándate . gen. & par. mand. exercitor . institor homologation . quasi contractus . negotiorum gestio . tutory . cautioners . relief of cau : donations . remuneratory donations . donations in contemplation of death . gifts . consent . discharge . dis charges general and particular . apocha trium annorum . payment . acceptilation compensation . innovation ▪ consusion . assignation . cedent & assig . intimation . blank band. of arrestments . and poyndings . * k. j. 6. par. 7. act 118. * k. c. 2 par. 1. sess. 1. act 51. * k. j. 6. par. 22. act 17. * 〈…〉 par. act 118 poinding : * k. j. 6. par. 12. act 10. k. ch. 2. par. 1. sess. 1. act 29. * k : c : 2 par : 2 : sess : 1 : act ● : labour ing oxen * k. j. 4 par . 6. act 98. pes●r . pres : of herit . rights . pres : of personal rights . * k. j. 3. par. 5. act 29. par. ● . act ●● : * k. j. 6. par. 7. act 119. * k. j. 6. par. 6. act 83. * k. j. 6. par. 6. act 82. assyers . * k. j. 6. par. 22. act 13. forfeiture : * k. j. 6. par. 9. act 2. * k. c. 2 par. 2. sess. 1. act 9. * k. j. 6. par. 22. act 12. prescription interruption● * k. c. 2 ▪ par. 2. sess. 1 : act 9. * k : c : 2 par : 3. act 5. heir : heir of line : grand children . collaterals . representation . heirs of line . heir of conquest . conquest . heirs male. heirs of provision . heirs portioners . discussion ▪ heir active . appearand heir . * annus delib . k. ●a . 6. par. 2● . act. 27. posthum child . general brief . behaving as heir . succes . tit . lucr . rights on death-bed . * stat. will. reg. cap. 13. inventary testaments . legacy jus relicta . legittim . deads part executor . * k. j. 6. par. 22. act 14. colation . exec. nominate . execut. dative . executor creditor . * act of sed. 18. feb. 1662. special legacy co-execut . diligence of exe : prvil . debts . decreet of exoneration . vitious intromission . relief , &c. ultimus ●aeres . bastardy . * k. j. ● par . 16 ▪ act 20. actions real & personall actions improbation . reduction . terms of imp. direst manner of imp. indirect manner of imp. certif . in imp. * k. j. 6. par. 23. act 18. reprobatour . summonds ●● error act prejudicial . exhibitions . actiones bonae fidei . actiones stricti juris . rei persecutoriae penal . arbitrary . declarators . civil actions nature of a summonds . medium concludendi . will of the summonds . conclusion . * k. j. 6. par . 10. act. 13 ▪ transsumpts . multiple poyndings . transferrence summonds of regi ▪ stration prevento . advoca ▪ tion . contra : of laborrows . declar : of property . summonds of mole ▪ station . poynding of the ground . spulzie wakning . furthcoming breach of arrestment . accumulation of actions concu●sus actionum . defor●ment . probation . by write . by oath . oath of calumnie . k : j : 1● par : 9 : act 12● oa●h in litem . a qualified oath . presumption . suspension . caption subsid : action . ejectino . letters of fire and sword. decreets arbitral . crimes . delicta treason . * k. j. 2. par . 6. act 24. k. c. 2 par . 1. sess. 3. act 112. * k. c. 2 par . 3. act 2. * par. 1. act 2. * k. c. 2 par . 1. ses . 1. act 4. † k. j. 2 par . 1● . act . 54. k. j. 2. par . 6. act 24. * k. j. 6. par. 8. act 129. & 150. * k. j. 1. par. 1. act 4. ‡ act 97 par. 7. * k. j. 5. par. 3. act 8. stat : treason . ‡ k. j. 6. par. 11. act 50. * ibid. act 51. * k. j. 6. par. 12. ast 146. * k. c. 2 par. 3. act 13. ‡ k. j. 6. par. 11. act 49. * k. j. 6. par. 12. act 120. ‡ k. j. 5. par. 7. act 125 k. ja. 6 , par. 6. act 69. * k. c. 2 par. 1. sess. 1. act 22. * k. j. 1. par. 13. act 137 and 14. * k. j : 3 : par : 7 : act 60. * q : m : par : 9 : act 74 : k : ja : 6 : par : 6. act 105 † k : j : 6 : par : 1 : act 14 : * k : j : 6 p : 16 : act 12 : † k : j : 6 par : 16 : act 4 : * j : 5 : p : 6 : act 8 : † q : m : act 22 : par : 7 : * k : j : 3 : p : 10 : act 71 : † q : m : p : 9 : act 73 : † k : j : 1 : par : 1 : act 5 : & 7 : * k : j : 6 : p : 14 : act 193 : † k : j : 6 : p : 6 : a : 76 : * k. j. 3. par , 12. act 89. * * k. j. 1. par : 1 : act 1 : & act 16 : par : 14 : ●act : 10 † k. j 1. par. 1. act 19. * k. j. 2. par. 14. act 76. † k. j. 5. par. 7. act 104. * k. j. 1. par. 11. act 134. † k. j. 6. par. 7. act 106. * k : j : 1 : par : 5 : act 80 : k : ja : 5 : par : 7 : act 111 : * q. ma par. 5. act 19. † k. j. 6. par. 7. act 118 par. 12. act 150 * ibib. act 148 * k. j. 6 : par. 11. act 52. par. 14. act 222 par. 15. act 257 * k. j. 5. par. 7. act 15. k : ja. 6. par. 12. act 141 * k. j. 2. par. 6. act 22. k. ja. 6. par. 6. act 93. * k. j. 6. par . 13. act 137. † k. j. 6. par. 1. act 2. par. 6. act 72 † k. j. 4 par. 6. act 62. * k. j. 2. par. 14. act 74. k. ja. 5. par. 3. act 7. † k. j. 6. par. 18. act 4. plowden's quaeries, or, a moot-book of choice cases useful for the young students of the common law / englished, methodized, and enlarged by h.b. plowden, edmund, 1518-1585. 1662 approx. 396 kb of xml-encoded text transcribed from 161 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2009-03 (eebo-tcp phase 1). a55177 wing p2611 estc r25587 09025306 ocm 09025306 42263 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early 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(eebo-tcp ; phase 1, no. a55177) transcribed from: (early english books online ; image set 42263) images scanned from microfilm: (early english books, 1641-1700 ; 1292:9) plowden's quaeries, or, a moot-book of choice cases useful for the young students of the common law / englished, methodized, and enlarged by h.b. plowden, edmund, 1518-1585. h. b., esquire of lincolns-inne. [14], 304 p. printed for ch. adams, j. starkey, and tho. basset, london : 1662. reproduction of original in the british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -great britain. common law -great britain. 2007-12 tcp assigned for keying and markup 2008-02 spi global keyed and coded from proquest page images 2008-07 olivia bottum sampled and proofread 2008-07 olivia bottum text and markup reviewed and edited 2008-09 pfs batch review (qc) and xml conversion plovvdens quaeries : or , a moot-book of choice cases , useful for the young students of the common law : englished , methodized , and enlarged , by h. b. esquire of lincolns-inne . london , printed for ch. adams , j. starkey , and tho. basset , at their shops in fleet street . 1662. to the reader . this piece which now entertains your eie , was originally ( if i may so term it ) a rhapsody of cases , wherein the author did not so much consult his method , as the choice of his matter : for as they proceeded from his hand they had no coherence amongst themselves , except such as were voucht to warrant the reasons of others : and most of them too more naturally referring to their own proper heads and divisions , under which it was necessary to reduce them , according to that form i had propounded to my self . so that it was not difficult to presage how great a trouble must be encountred in the attempt to contrive so great a confusion into any considerable order . but imagining the effects of my labour might reward my pains , i was easily prompted to undertake it for my own private accomodation , and not out of any vain glorious design to obtrude it upon the world ; for it is very well known i opposed a three years importunity to render it publick ; yet in fine considering that my own reputation stood responsible no further , than for giving it this shape into which you now see it form'd , i thought i might with the greater freedom comply with the desires of those who so long , and so earnestly , had invited it to the press . for the work it self , it hath gained a very fair reputation ; for i know no book that depends meerly upon the strength of its own reason as this doth , that ever was entertained with so great an esteem as this hath been by all persons that pretend to the knowledge of the law. but the most signal mark of its worth was set upon it by that person who in the fabrick of those everlasting monuments of his fame , his reports and institutes hath vouchsafed to honour this treatise so far as to make himself indebted to it for many of his materials , as will be obvious and visible to any mans observation that hath the least acquaintance with them . you will find upon a serious perusall , that few of the cases herein contained are any where else to be found , unlesse they were borrowed from hence . that the author was a person of a most refined theory : and that the work it self is a systeme of the sublimest speculations in the law ; wherein there is nothing vulgar , trite , or usuall , and yet every thing usefull . you will perceive that in the cases that are controverted , as some of them be , the arguments on both sides are derived from such apt and natural topicks , and the contest managed with so even and equall a strength of reason , that it is often left a measuring cast . besides the generall benefit , this piece will oblige the students of the law with a more particular advantage ; for out of it they may furnish themselves , not onely with quaeres and moot points for their exercises in their respective societies , the want whoreof is so generally lamented ; but they will also find many of these problemes debated upon either side . so that they are not onely accommodated with subjects for their quarrels ; but are also arm'd with weapons both offensive and defensive . it would too much resemble flattery for any man to assert the infallibility of his treatise in every particular . it is a prerogative to which few books in the law , i had almost said none , ever arrived ; for littleton who no doubt , as he writ in the quality of a father , was most accurate in his composition , lest the judgement of his son might derive a blot from his own pen. and notwithstanding the work is considered as the most accomplished piece of that nature that was ever yet extant , and his honourable interpreter makes his name and the law equivocall ; yet he himself shuts up that discourse with so modest an epiphonema , that it plainly implies his own esteem of it was very different from that which the world hath since bestowed upon it : and the same learned commentator , although he was sufficiently positive and peremptory in vindicating the authority of his author : yet when he comes to reflect upon his own labours , he is found to make use of the same epilogue for those truths which depend meerly upon fancie and opinion , without the assistance of any known principle to support them , as many cases in the law do ; have a certain fatal period beyond which they seldom survive : and from hence it is , that what was reason an age since ceaseth to be so now : and some decisions have a shorter date ; for the judgements that are given in one court , and that too upon the most solemn debates , are often times reverst in another before the breath is cold that pronounced them : for when the determination of a case must be fetcht out of its self , there is nothing so uncertain and mutable as the conclusions that are made thereupon . and thus it fares with many of these cases , being govern'd by some particular circumstance which leads them out of the common road , and distinguisheth them from others . so that when i consider the niceties that are contained in it , and how critically they are decided , i cannot but admire so many of them are reputed for law. i confesse you will meet with some passages that are not agreeable to the received opinions of this age , but most that are , which puts me in mind of a character that was given it by an ingenuous and intelligent person in the law , that there are in it multa falsa , plura vera , plurima ingeniosa . to conclude , although my particular interest in this piece be so inconsiderable , that i cannot rationally affect any reputation by it : yet if there be any thing that relates to my own endeavours that may accidentally purchase a generous reception from any ingenuous spirit , it shall be an ample compensation for the labour and pains that have been bestowed upon it . farewell . errata . pag. 2. l. 23. after life add the remainder for life . p. 25. i. 12. r. parol . l. 32. add for . p. 70. l. 14. dele not . p. 75. l. 10. r. pur auter vye . l. 16. r. pur . p. 77. l. 26. for confirmation r. freehold , p. 85. l. 12. r. did . p. 99. l. 5. r. his p. 122. l. 21. r. estovers . 141. l. 6. r. acre . p. 160. l. 12. r. by . p. 171. l. 9. r. some think . p. 185. 23. dele if. l. 24. for heard r. hard . p. 23. l. 7. for deluge r. delayd . p. 230. l. 18. for suing r. saving . p. 232. l. 7. r. vested . p. 89. for disablement r. disability . an alphabeticall table of all the principal heads contained in this book . a   pag. absence . 1 acceptance ib. administrator . 4 advantage . 5 agreement . 6 aid . 7 alien . ibid. annuity . 9 appendant . 10 apporcionment . 11 arrerages . 16 assent . ibid. assetts . 17 assignee . 18 attainder . 19 atturnment . 24 avoid . 29 avowry . 31 authority . 33 b barr . 34 bargain and sale. ibid. baron & fem. 35 bastard . 44 bonafelonnm , &c. 51 borough english . ibid. c charge . 52 claim . 57 capacity . 59 cessavit . ibid. cessante causa , &c. 60 common , vide apporcionment .   condition 61 confirmation 72 continuall claim . 78 covenant , videvse .   d damages 80 daughter ib. deed 82 debt . 84 devastavit , vide executor .   devise 86 disablement . 89 disagreement 90 discharge 91 dissent 94 discontinuance 97 disceisor 100 divorce 102 dower . 104 e election 112 emblements . 116 entry 117 escheat 119 estate 120 estoppple 121 estovers 122 exchange 123 execution 124 executors . 126 extinguishment 131 f feoffment 132 fem covert 134 fem sole 135 fine ibid. forfeiture 136 frankmarriage . 138 g grant 139 gavel kind . 141 h habendum 142 harriot ibid. heir 144 i incertainty 148 infant 149 joinder in action 152 jointenants 156 judgement 161 l leease 161 limitation 166 livexyy & seisin 169 m market overt 171 n nusance 172 o obligation 172 occupant 173 outlawry 174 p parceners & partition 175 particeps criminis 182 payment 184 place ibid. pleas ibid. possession 185 possessio fratris . 186 q quaere impedit 188 r recognizance , vide statute .   record 189 relation ibid. release 190 remainder 217 remitter 220 rent 227 reservation 25 reversion 253 reviver 257 s seisin 260 severance of the jointure ibid. statutes ibid. surrender 263 t tail 264 tenants in common 269 tenant by the curtesie 272 tenures 274 testament 281 v villain 281 voucher 285 w wast . 292 warranty . 295 absence . if one in the absence of i. s. disseiseth another to his use , or in his absence surrenders to his steward , or gives goods to him in his absence ; his subsequent agreement will make all good . but a disagreement cannot be in his absence . acceptance . tenant in tail grants a rent-charge in fee , and then makes a lease for forty years rendring a rent , and dies . the issue , after his death , accepts the rent ; the grantee shall have the rent during the lease , and also during the life of the issue ; though the lessee surrenders q. for the reversion is discharged . a. makes a lease for life , rendring a rent , with a clause of re-entry ; after he has title of entry he accepts the rent : now he cannot enter for the condition broken ; for , when he accepted the rent , he did not receive it as a debt ; ( for an action of debt would not lie in that case ) but as a rent . and it cannot be a rent unless the lease continues . so if a woman , issue in tail , or an infant accept a rent reserved by the husbund , &c. but in the principal case , if the lease had been for years , there the rent is said to be a debt during the lease as well as after . a fem sole , being lessee for life , takes husband , then they make a lease to i. for his life , rendring a rent ; the husband dies , the wife accepts the rent in pais ; the lessor may enter , and she is barr'd of her cui in vita ; for , by her acceptance she hath agreed to the forfeiture . if the issue in tail accepts the rent , with a proviso , that it shall not be prejudicial to his entry to avoid the lease , yet he shall never defeat the lease . the husband and wife make a lease for life , reserving a rent ; the husband dies , the wife accepts the rent from the lessee : she shall not avoid the remainder ; for they are both but one estate , and an agreement cannot be to parcel of an estate . so if a lease be made to two by husband and wife for their lives , rendering a rent during the life of one of them : if the wife , after the death of her husband accepts the rent , she shall not oust the survivor . the husband and wife , being tenants in tail , the husband makes a lease for years , reserving a rent , and dies , the wife dies also . quaere , if the acceptance of the rent by the issue will make the lease good ? a man makes a feofment upon condition ; the feoffee makes a lease for life , and grants the reversion to the feoffor . if he hath cause to have a writ of right , or other real action , he cannot have it against the lessee for life ; for the reversion is in him by his own acceptance . a gift in tail is made to the donee , and the heirs males of his body : and for want of such issue , the remainder to him and the heirs females of his body ; the donee makes a lease for years , reserving a rent , and dies without issue male . if the heir female accepts the rent , she shall be bound ; for the lease issued out of both the estates . but if the heir male had made the lease , the heir female cannot make it good by acceptance . if tenant in tail dies , his heir within age , and the guardian avoids it during the minority ; yet the heir at his full age , by his acceptance , may affirm it . so if the wife of tenant in tail avoids a lease by a recovery in dower ; yet , after her death , if the issue accepts the rent , he hath made good the lease . administrator . after the death of the intestate , a : gets the goods , and gives them to b : and after letters of administration are granted to a : he shall not take the goods out of the possession of b : for the law saies , by the first taking the goods , he had them to the use of the intestate ; for he shall be charged as executor de son tort . and he is to have the goods in the same capacity . but it is otherwise if a : takes the goods of b : tortiously and gives them to c : and then b : makes a : his executor . but in the principal case , if a : releaseth to a debtor of the intestate after administration committed to him , he may have an action ; for of a chose in action a man cannot gain a possession . if a lease is made to begin at easter , and before easter a : grants it over , and before easter the lessee dies , and a : takes administration to the lessee , and grants it over to another , the second grantee shall enjoy it . if a rent charge is granted for years , and a : compels the tenant to pay it to him , and then he grants it over , and takes letters of administration to the first grantee , he shall avoid his own grant : for the possession which he had usurped shall not be esteemed the possession of the same term ; but it shall be said a voluntary payment of the tenant : for none can be said to have the rent but he that had right to it . advantage . three joint-tenants , one gives his part to his daughter in frank-marriage to one of his companions , and makes livery . this is a good frank-marriage ; for , though one joynt-tenant cannot enfeoffe another , yet his companion , and a stranger he may ; because 't is for the advantage of a third person ; and the livery being made to the third person shall vest the estate in both , 7 h. 6. 3. 21 h. 7. 41. but others think the contrary : for , the husband cannot take it immediately from his companion : therefore , for him it is void , and good for the wife . as if a feofment be made to a stranger , and the wife of the feoffor . the husband is bound in a statute , and after he and his wife levy a fine of the wife's land to a : the husband dies . the statute shall not be extended during the wife's life ; for nothing passed from the husband , but the estate which he had in right of his wife : and a : shall have the same advantage which the heir of the wife should have had . tenant in tail enfeoffs one daughter within age , and dies : she is remitted ; but the other daughter shall not take advantage of it . agreement . if i disseise one to the use of my self and a : who after agrees to the disseisin , we are joint-tenants , 21 ass . 49. if one sister in tail enters upon the discontinuee of her father , claiming to her and her sister ; and the discontinuee ousts her , and she recovers in an assise , the other sister shall have the moyty by her agreement . but if i disseise one to the use of a. after twenty pounds received by me of the profits ; or to the use of my self for life , and after to his use in fee ; there he shall have nothing by his agreement : for i cannot apportion the wrong . if i disseise my tenant for life to the use of a : he shall have but a free-hold by his agreement . if the issue in tail within age , by covin commands a : to disseise the discontinuee of his father . a : disseises him to the use of b : for life ; and after to the use of his own right heirs . b : agrees , a : dies , b : dies , the heir of a : enters , and enfeoffs the issue , he is remitted because of his minority . an agreement cannot be to parcel of an estate . aid . if coparceners make partition , and one has the seignority , and a tenancy escheats , and she is impleaded of that ; she shall not have aid of the other coparcener ; for aid cannot be granted but of land descended . if one acre is given to the eldest daughter in frank-marriage , and another in fee descends to the youngest ; if she shall have aid is the question ? alien . if a reversion be granted to an alien , and after he is made a denizen , and then the tenant atturns , he shall not take to his own use . a lease for years is made to an alien upon condition to have fee ; he is indenized , and hath license to purchase , and then performs the condition . the king shall not have the fee , for it hath not a relation as to the devesting of the fee , further than the performance ; although that for charges and incumbrances it hath a larger relation . if an alien disseisor be made a denizen , the king shall not have the land , if the disseisee doth after release unto him ; but if an alien had been the feoffee of a disseisor , it had altered the case , for it is a new purchase in one case , and but an extinguishment of a right in the other : and it seems that the issue of such an alien born within the realm shall be in ward for land descended to him on the part of the mother , during the life of the alien , if he be not heir apparent . and a man born in england cannot make himself heir in special tail to a baron & fem , whereof one is an alien , neither shall he have an appeal for the death of such a father or mother alien . if land be devised to an alien , and he is made a denizen , and after the devisor dies , there he shall take by the will ; for all takes effect by the death of the divisor . but in the case above , if when the office is found the lease should be adjudged in the king from the beginning , then it takes away the condition , and then he could not acquire a fee by his performance . if a man seised in fee marries an alien , and makes a feofment , and she is made a denizen , and the husband dies , she shall not recover her dower . annuity . if an annuity be granted for the life of i : and the grantee releaseth all actions of annuity to the grantor ; it seems he shall not have an action of debt for the arrerages after the release , and after the death of i. for when they were due he had no remedy . if a rent charge is granted out of land in fee , the heir of the grantee shall have his election to bring his . writ of annuity , and so shall the executor of the grantee , if the grant were for years . and if the wife brings dower , the heir shall not say , that he will take it as an annuity ; for it must be determined by the bringing of his action : and if she be once endowed , the heir shall not have an annuity of the other two parts ; for his writ ought to be grounded upon the deed , and that for all , or for none : for there can be no apporcionment of an annuity , or personal thing . appendant . if an advowson be appendant to a mannor , and the advowson is granted to one for life , and then the grantee is enfeoffed of the mannor cum pertinentiis ; yet the free-hold of the advowson is not appendant . but if the grantee had regranted it to the grantor , it had been appendant . but if a. makes a lease of his mannor for life , saving the advowson , and after grants the reversion of the mannor una cum advocatione , the advowson shall never be appendant to the mannor again . husband and wife make a feoffment of the mannor of the wife , to which an advowson is appendant ; the feoffee makes a feofment of one acre with the advowson ; the husband dies , the wife recontinues the mannor ; she shall present without any recontinuance of the acre : for it was not appendant to the acre ; for if a man makes a feofment of an acre , parcel of a mannor , cum pentinentiis , nothing of the advowson , which is appendant to the mannor , passes . if one hath a mannor , and makes a lease for life of all the mannor , except one acre ; now the fee of the acre is divided from the mannor during the lease for life , but after the determination of the lease it shall be appendant again . apporcionment . two joint-tenants by twelve-pence , the one grants what belongs to him upon condition ; the lord grants the services of one , and atturnment is had : the condition is broken , the grantor enters ; he shall hold by twelve-pence also , for by the grant no apporcionment is made , and then by the grant twelve-pence passed , and twelve-pence remain . if tenant for years enfeoffs the lord of one acre , the seignory shall be apporcioned . a rent is granted in fee out of land in borough-english , and at common law ; the grantee dies , leaving two sons , the eldest shall have all , for the rent being entire cannot be apporcioned , and the eldest , being heir , shall have all . if a rent charge be granted in fee , and the grantee dies , and his wife recovers her dower of the third part of the rent , the heir cannot have an annuity of the two parts ; for it must be for all , or none , for it cannot be apporcioned . if the obligor for twenty pound makes the obligee his executor , and leaves but ten pound , he may retain that ten pound , and sue the heir for the rest . so that a duty may be apporcioned by act in law. if a lease be made of two acres for years rendring a rent , and the reversion of one of them is granted over , the rent shall be apporcioned : for as the contract is made in respect of the reversion , so it shall be severed in respect of the reversion . if a lease be made of two acres , rendring a rent , with a clause of re-entry into one for not payment of the rent , it seems reason that the rent shall be apporcioned : and so if the condition had been that he should have fee in one acre . and if a man makes a lease of a flock of sheep , and land , rendring a rent , if either of them be evicted , the rent shall be apporcioned . but if i have a term of twenty years , and i grant it over with a stock of cattle , rendring a rent by indenture , and if the rent be arrear that i shall distrein ; there , if the stock be recovered , the rent shall be apporcioned ; for before my recovery my remedy was by distress , and not by action of debt , and so no apporcionment for a chattle devested . if one enters lawfully upon tenant for life , by title paramount , into one acre , for a condition broken , though he has the same title to all the land ; or enters into one acre by a title upon an alienation in mortmain , or consent to a ravisher , &c. or if the lessor himself enters into one acre , by reason of a condition broken , or because he was within age at the time of the making the lease , and peradventure part is good by custome which enables an infant to make a lease ; or if the lessor takes a surrender of parcel , or recovers parcel in wast . 21 h. 6. 48. or if one joint-tenant enters , for a condition broken , into his moity : in all these cases the rent shall be apporcioned . but if the land at the time of the lease was discharged of a rent , which after revived , so that the value of the land is impaired to the lessee , there the rent shall not be apporcioned ; for the land out of which the rent issues , remains intire to the lessee . but if one hath title to enter upon his tenant for life into twenty acres in two several counties , and he enters but into one acre only , quaere if the rent shall be apporcioned ? there is no apporcionment upon the grant of a seignory , but only by the feofment of the tenancy . if i disseise one to the use of a. after twenty pounds advanced by me out of the profits , or to the use of my selfe for life , and after to his use in fee ; he shall have nothing by his agreement , for the wrong cannot be apporcioned . if a man has common sans number granted to him in tail out of two acres , and he purchaseth one acre and dies , which descends to his issue in tail , there can be no apporcionment ; for either it is gone in all , or revived in the residue for all ; for common sans number is a thing intire which cannot be severed . but if it were common certain it were otherwise . but being the common was intailed , the act of the tenant in tail shall not prejudice the issue , where a rent is suspended in part there can be no apporcionment during the suspention , but afterwards there may . if the tenant holds of the lord by fealty , and twenty shillings of the mannor of dale , and the lord makes a lease of the mannor , reserving forty shillings with atturnment , and after releaseth to his tenant all his right . if the rent of forty shillings shall be apportioned ? first it seems by the release the tenant is discharged of twenty shillings , as well against the lessee as against the lessor , because now the tenant holds it of the lord paramount , and so not of the lessee . also the rent of forty shillings was as well payable for the services as for the demesns , although a distress cannot be taken in the demesns . but yet being the twenty shillings is lost , not by a title paramount , but by the lessor , if now it shall be apportioned or not ? 21 h. 7. 6. there be three daughters , two by one venter , and the third by another . the youngest being seised of three acres of equal value , grants a rent of three shillings to the father in fee , and makes a feofment to the second daughter of one acre , who dies without issue , so that it descends to the eldest , the father dies : by this descent the rent shal be apporcioned . if a man hath a rent of twenty shillings out of twenty acres of equal value , and one acre descends to his wife , the whole rent is suspended ; for it cannot be apporcioned when he is seised of part of the land in auter droit . but if she dies , and he is tenant by the curtesie , it shall be apporcioned ; for the land continues in him by act in law , which is equal to a descent : and if the rent be in tail , and part of the land descend in fee ; or if the rent be in fee , and part of the land descend in tail , there shall be no apporcionment . arrerages . if a seignory be granted for years , upon condition to have fee , and after the fee is vested by the performance of the condition ; the arrerages due before are extinguished , for the term is extinct . assent . if the patron and ordinary give leave to the parson to grant a rent in fee , it will bind the successor , 7 h. 4. 18. for an assent may be before the act is done . if the patron assent to the charge of the parson upon condition , it is good : but if he had the patronage but for life , &c. after his estate ended , the assent will not bind the second patron . if a parson be patron of a church , and the parson , with the assent of the ordinary , grants a rent charge , or makes a lease for yeares ; the assent will not make it to endure , no more than the assent of a bishop who is patron , without the assent of his chapter . nor the assent of tenant in tail , or for life , who is patron cannot make it endure for ever . if the bishop grants in fee to the king by deed , confirm'd by the dean and chapter , and the deed of the bishop is inrolled , and the other not , it seemes it shall bind the successor ; for the assent is to the deed of the bishop , not as a confirmation . as the abbot may make livery where it is the deed of him and his covent , so in this case the bishop may deliver the deed of him , and of the dean and chapter . assets . land is given to two women quam diu simul vixerint , the remainder to the heirs of her that first dies : one hath issue , and dies ; it seems this remainder shall not be assets in the heir in a formedon , or debt ; for the remainder was never in the mother ; for it commenced after her death . but if a rent charge be granted to i. to commence after his death , 't is otherwise , for the heir takes it by descent . if executors have a villains in right of their testator , and enter into land purchased by him , it shall be assetts although they have a fee , as land descended to the heir shall be assetts to a chattle , viz. to a debt of a stranger . the grantor of a rent charge in taile einfeoffes the grantee of the land , who makes a gift in tail of the land , rendring so much of the services as he pay● over to the lord paramount : it seems that these services shall be assetts in the heir ; for they are particularly reserved for the land. assignee . if a feoffment be made with warranty to the feoffee , his heirs and assigns , if he makes a feoffment over , and the second feoffee re-enfeoffes the first feoffee , he shall vouch ; for he may be assignee of his father , being he does not claim as heir . and the lord by escheat , or mortmain , or of a villaine , or who enters for a consent to a ravisher , shall not be said assignees , and yet they shall rebutt . if tenant in tail be with warranty to him , his heirs and assignes , his feoffee in fee shall not be said assignee ; for he hath no part of the estate tail . if land be given to one and his assignes for ever , and it is ganted to him and his assignes , that they shall have twenty load of wood yearly for ever , tenant for life grants over his estate , and dies ; the assignee shall not have the wood , because his estate is now determined . attainder . a. dyes , leaving two daughters , the one is attainted of fellony , a lease is made the remainder to the right heirs of a. the other shall not take the daughter ( that was attainted ) being living , for one is not heir alone ; but if the father dies seised of land , a moity shall escheat . if the mesne grants the mesnalty upon condition , that if the grantee pays a certain sum of money to the grantor , that he shall have fee ; and before the day the grantor is attainted of felony and executed ; yet the grantee shall have fee , for the condition is become impossible to be performed by the act of the grantor . but if a jointenant makes a lease for five yeares , upon condition , that if the lessee does such an act , he shall have it for twenty years ; and before the day the lessor dies : now the condition is void by the surviver . if a man grants a rent charge to begin at a day to come , and before the day the grantor is attainted of felony , yet the charge is good . if a remainder be limited to the right heirs of a. who hath a daughter , and dies , who enters , and after a son is born , and attainted ; yet the remainder shall not be devested out of the daughter . the son endowes his wife ex assensu patris , the son is attainted of felony , it seems that the wife should not retain her dower , for 't is the dower of the son , for she claimes it from the son , and if she brings a writ of dower of it , ne unques accouple in loyall matrimony is a good plea , and if there had been a disseisin of it , a collateral warranty shall be no bar to the wife , for she pretends no title to it but by the death of her husband , and then the warranty descends before her title , for if it descends after her title it shall be a good bar . and if she , after her dower so assigned , be attainted of felony , and after hath her charter of pardon for her life , and after the husband dies , she shall retain her dower ; for her interest in it commenced after her pardon . and yet by her attainder she forfeited all her inheritance , free hold and chattles real . if an attainted person be enfeoffed to the use of another , the possession cannot vest in the other , but must escheat ; but he which is attainted may be an atturny . grandfather , father , and son , the father is attainted of treason and dies , and after the grandfather dies seised of land , the lord of whom the land is holden shall have it by escheat , and not the king : for the father had it not at the time of attainder ; and being that the grandfather dyed without heir the land shall escheat . so it is if the father be attainted of treason , and the grandfather dies leaving the father . the issue in tail is attainted of felony , and is pardoned , and his father , dies , and a stranger having cause of action ; against whom he shall bring his action , is the question ? some say that the donor hath the free-hold in law ; as if tenant in tail dies leaving his wife enseint . others say there is none against whom the action may be brought ; as if tenant for life grants over his estate to b. who dies , now before entry there is none against whom the action may be brought . tenant in tail makes a feoffment within age , and is attainted of felony , his issue shall not enter , for he is disabled in blood to take advantage of the infancy , because the infant had no heir . a. covenants upon a marriage to stand seised to the vse of another , and before the marriage the covenantee is attainted of felony , yet upon the marriage the vse will rise ; as a lease for life with a condition of accruer , if the lessor be attainted , yet the estate shall enlarge . tenant is tail is disseised , and releaseth to the disseisor with warranty , and then is attainted of felony , and hath a pardon and dies : this is a discontinuance ; for if he had purchased land after his pardon , it should descend to his heir ; then the warranty being in esse at the time of his death , there is no impediment but that it should descend . but if tenant in tail , who hath a warranty annexed to his estate , be attainted of felony and executed , his issue shall not inherit the voucher by reason of the warranty , although he hath the land ; for the warranty is our of the statute de donis , &c. which speaks of lands and tenements . but some think that by the equity of the statute it is preserved as well as charters , 21 h. 6. 2. p. markham & 9 h. 6. 60. cott. p. charters . tenant in tail makes a lease not warranted by the statute , and dies : the issue accepts the rent , and is attainted of treason ; if the king shall avoid it , quaere ? if the grandfather be tenant in tail , and the father is attainted of treason , and executed , yet the son shall inherit as heir to the grandfather . if a. commits felony , and the lord grants his seignory , and after a. makes a feoffment upon condition , and is attainted , and hath a charter of pardon , and after re-enters for breach of the condition , and dies . if an occupant shall have the land , the issue , or the lord , is the question ? atturnment . tenant in tail holds by rent , the donor grants the services , the donee atturns ; nothing passes , for the rent cannot passe , but as a rent service ; and the atturnment shall not prejudice him , for the law will not have land to be holden of two several persons . tenant for life grants a rent in fee , and then he and the reversioner join in a feoffment ; by the delivery of the deed the tenant did atturn if the lord grants his seignory by fine , and before atturnment the tenant makes a feoffment of the tenancy ; if the feoffee atturnes it is well enough , and yet he is not compellable : so if tenant in tail atturns 't is good , and yet he was not compellable . if a lease be made for years , and the lessor makes a lease to another for life to commence after the term : atturnment will not make the second lease good ; for the freehold cannot passe out of any one who hath a greater estate , reserving to himself a mesne estate . if a man makes a lease of a mannor which is ten pound in demesnes , and ten pounds in service , rendring twenty pound rent , if the tenants do not atturn he shall pay but ten pounds in rent , being he hath no remedy to compell them to atturn . tenant for life of three acres , and the reversion of them is granted , and tenant for life surrenders one acre to the grantee that countervails an atturnment for that acre only ; for it is but an atturnment in law , but an atturnment for one acre by parcell is good for all ; so if he had atturned to one grantee it had been good to both . if one brings a quid juris clamat , and pending his writ he enters into one acre , he hath not abated his writ for the remnant . if a fem sole makes a lease for life , and then grants the reversion to two , one dies , and she marries the other . tenant for life pays a penny to the bayliffe , of the grantee in the name of atturnment , and dies , the husband enters and makes a feoffment and dies , she brings her cui in vita . if a seignory be assigned in dower ex assensu patris , there needs no atturnment . a reversion is granted by deed to a man and a fem sole , they marry , the tenant atturns , the particular estate life determines : the husband and wife shall take it by moities ; for the atturnment is grounded upon the deed , and reduces the inheritance according to the course of deed. if a reversion be granted to on infant , and atturnment is had at his full age , yet when he is in possession he may disagree to the estate , being the grant was during his infancy , which is the principal . a reversion is granted to one for life , and before atturnment it is granted to him in fee ; the tenant atturns , the grantee may choose which estate he will take . but if a reversion be granted to one , and after to another , and the tenant comes to both , and says i atturn unto you , neither of them shall take for the incertainty . if a reversion be granted to one and his heirs , and after it is granted to him and his successors , and the tenant atturnes , quaere in what capacity he shall take ? if the reversion of black acre or white acre be granted , quaere if atturnment will make it good ? some think it is void for the incertainty . a. makes a lease for life and grants a rent out of the reversion , if the grantee grants it over , the grantor ought to atturn , and not the tenant for life ; for it hath no relation to him : for a release made to him by the grantee will not extinguish the rent . the reversion of tenant for life with the rent is granted ; tenant for life grants his estate to another , to hold of the grantee : this is an atturnment ; for when he granted it to hold it of him , the tenant for life took notice of the grant. if an atturnment be upon condition , which is broken , yet the reversion is not devested , for he doth not claim the reversion from him that atturned , and an atturnment cannot be upon condition . if the reversion be granted to tenant for life and another , or a signory be granted to the tenant and another , this acceptance shall be a sufficient atturnment . but if there be two tenants for years , and the reversion is granted to one of them , quaere if he takes but a moity without atturnment of his companion , for the jointure is severed by the grant. if a fem tenant for life takes husband , who atturns to the grantee of the reversion , and after is devorced , yet the atturnment shall bind the wife , and if a feoffee upon condition atturns to the grant of a seignory , and the feoffor enters for the condition broken , yet the atturnment stands good . if a mulier atturn to the grant of a signory , though the bastard dies seised , so that the mulier can never be heir , yet the atturnment remaines good . if the reversion of tenant in tail , or for life , the remainder for life is granted , and the issue in tail , or he in remainder atturn , ( having nothing but the possession in law ) it is void . but he that hath but a possession in law may atturn to the grant of a seignory , for none can atturne but he that was tenant at the time of the grant. the lord grants the seignory , the tenant is disseised , and after atturns , that is good ; but if the lord grants the rent saving the seignory , and she is after disseised and atturns , that is void ; for it is now a rent seck , in which there is no attendency , but a charge of the land. if a man grants a rent reserved upon a lease for life , saving the reversion , that is a good rent seck , if the tenant atturns . grandfather , father and son jointenants , the grandfather grants a rent charge in fee to the father , upon condition , who grants it to his son and his wife ; the grandfather releases to the father and son , the son dies , the condition is broke , the grandfather claims the rent ; the wife shal hold it discharg'd of the condition , if the possession of her husband shall be an atturnment in law ; but it seems it is not , for his atturnment alone without the atturnment of the father ( who was a jointenant ) is not sufficient , for both ought to atturn . but if the grandfather should have the rent by the condition , then he shall be in of his own grant , and be both grantor , and grantee . but if the father had died in the life of the son , then that had been a good atturnment in law. avoid . tenant in tail makes a lease for forty years , and dies ; the issue in tail marries and dies , if she shall avoid the lease by her recovery in dower quaere ? if tenant in tail makes a lease for years to commence at easter , rendring a rent , and dies ; the issue in tail enters and makes a feoffment before easter , the feoffee shall not avoid the lease , for the lease was not avoided by the entry of the issue . so if baron & fem make a lease to begin , &c. and before the time the baron dies , and the fem makes a feoffment , the feoffee shall not avoid it . so if an infant makes a lease ut supra , and before the time ( he being within age , or at full age ) makes a feoffment , the feoffee shall never avoid the lease , &c. but many are of a contrary opinion ; for they say that an infant , or issue in tail , by their own , or the acts of their ancestors , shall never be prejudiced by any thing that is executory ; for if he shall not avoid it by his possession before the commencement of the term , he hath no means to avoid it , &c. before , &c. but it is cleer enough , that if tenant in tail dies after he hath discontinued , and the discontinue makes a lease for yeares to begin ut supra , and dies ; the heir in tail , being his heir who enters , and he enters and makes a feoffment , there the lease is avoided , because the issue is remitted , and hath another estate than the discontinuee had , and not any privity of that estate which is avoided . if an infant delivers a writing , as an esorowle , to be delivered as his deed when he arrives at his full age , and receives the money of the party to whose use the deed was to be delivered , yet he shall avoid the deed. if husband and wife make a lease , or grant a rent charge in fee out of the wives land , and then they joyn in a fine to a. he shall not avoid the lease or charge , because they are executed , but otherwise of things executory as a statute , &c. before execution . avowry . land is given to one habendum , a moity to him and his heirs , and the other moity to him and the heirs of his body , the remainder to his right heirs ; the land is holden by two pence , the donee dies without issue , and his brother enters , severall avowries must be made upon him , one for one penny , and another for the other . but if land be given the one moity in tail , the other in fee , there shall be but one avowry , for that inures as a joint gift , but in the first case it did inure severally at the beginning . if there be three jointenants , and one releases to one of his companions , and he to whom the release was made hath the part of the other by survivor , yet for a third part one avowry shall be made upon him ; in the principal case the fee simple was never severed , if it had , the donee should hold each moity by two pence a peice , and the avowry shall be made upon the collateral heir for two pence in one moity . a. makes a gift in tail of one acre which he holds in socage , and of another which he holds in chivalry , saying nothing , the donor shall make severall avowries , although he hath but one reversion ; for the law makes the avowry in respect of the tenure over , and the severall acres must severally escheat . if a disseisor makes a lease for life and dies , it seems the lord is compellable to avow upon the heir of the disseisor . but if he had made a gift in tail , and the donee dies and his issue enters , there he shall not avow upon the donor . if one parcener makes a lease for life , yet the lord shall avow upon them both , but if one jointenant makes a lease for life , the lord must make severall avowries upon them , for the jointure is severed . if there be two fem parceners mesnes , and one marries the tenant , yet the avowry of the lord is not severed . but if there had been two jointenants , it had been otherwise , for by the marriage the moity of the mesnalty is suspended , and cannot be in jointure with the other moity which is not in esse . and if one holds a mannor of another , and makes a feoffment of all , except one acre , now the fee of the acre is disappendant from the mannor , and the lord ought to make two severall avowries . authority . if i devisethat my executors shall sel my land , and one sells one moity , and another the other ; this is not warranted by the authority , for it was to be jointly executed ; as a letter of atturny to two to make livery , it ought to be performed jointly . but if the land had been devised to them , then such a sale had been good , for they had an interest , and the intent was performed . if one makes two atturnies conjunctim , or the king makes two commissioners of oyer & terminer , if one dies , the authority of the other is determined , 35 ass . p. 1. two jointenants make a feoffment with a letter of atturny to deliver seisin , and the one delivers seisin in person , this is a countermand of the whole livery , for the authority was not severall for either of them , but joint for both , and therefore being countermanded for one it shall be void against the other . barr. if the plaintiffe be barr'd in an entry sur disseisin , yet he shall have a cessavit , if he had cause to have it at that time , for it is another title . if the heir brings a formedon in descender and is nonsuite , quaere if he shall enter , because he had title of entry for a condition broke . if a woman hath cause of dower of one and the same acre , as wife to a. and b. if she be barred of it , as wife to a. yet she shall have it as wife to b. if baron & fem make a feoffment upon condition , if the wife be barr'd in her cui in vita , yet she may enter for the condition broken . 27 e. 3.55 , 56. p. 72 . bargaine & saile . a bargains and sells land to b. and after they both grant a rent charge to c. and then the deed is inrolled , the rent is gone ; for it is the grant of a. and the inrolment hath relation to the delivery , which avoids the grant , though it was the confirmation of b. for he had nothing at that time . the issue in tail within age takes from the discontinuee a bargaine and sale. he shall not be remitted ; for he is in , by reason of the possession conveyed to the vse , and so he must have it in the same degree as he had the vse . and so if he were within age at the time of the bargain & sale , and the other dies , and after the deed is inrolled , he shall not be remitted . if the bishop makes a grant to the k. in fee , confirm'd by the dean and chapter , and the deed of the bishop is inrolled , and the other not , it shall bind the successor ; for it is but as an assent , and not a confirmation . baron & fem. if a fem lessee for life marries , and she and her husband make a lease for life , rendring a rent , and the fem avowes , for the rent after the death of her husband , the lessor may enter ; for by her avowry she hath agreed by matter of record , and so it had been if she had entred for a condition made by her and her husband . if a. infeoffes his wife and a stranger , it is void as to the wife , and good to the stranger , though the livery were made to the stranger in the name of both . three jointenants , and one gives his part with his daughter to his companion in franckmarriage , and by the same deed releases to them in frankmarriage , and makes livery , this is a good gift in franckmarriage by some , for notwithstanding one jointenant cannot enfeoffe his companion , yet he may enfeoffe his companion and another , and the livery made to the other shall vest the land in both , and that is for the advantage of a third person . as in gascoignes case , 7 h. 6.3 . it was not a surrender for the advantage of the third ; neither in 21 h. 7. 41. for the advantage of the husband ; so it shall not be void here for the advantage of the third person . but others are of a contrary opinion , and they say the husband cannot take it immediately from his companion , and therefore it is void as to him , and good as to the wife , & the other part of the deed , viz. the release , will inure to the husband . and here both the things make the frankmarriage good , for the livery and the deed may be delivered both at one time . if the husband be tenant for life , and the reversion be granted to him and his wife , the fee remaines in them in jointure ; for there be no moities between them . land is let to baron & fem habendum , the one moity to the husband , the other to the wife , the land is confirmed to them in speciall tail , rendring a hawk , the lessor shall have two ; for the baron shall have one moity of the inheritance ; for his possession was severed from the possession of the wife , viz. in the one moity ; so that of that moity the husband is seised in speciall tail , and the wife hath nothing . of the other , whereof the wife was tenant in common with the husband , the baron was thereof seised , in right of his wife , then he had a sufficient estate , whereupon a confirmation might inure jointly to them . if land be given to the baron for life , the remainder to the wife for life ; and their estates are confirmed in tail . the baron shall have one moity in tail only , he and his wife the other moity , and yet the tail is not executed for any part . quaere , for this is a good case . if husband and wife make a lease of the wives land , rendring a rent , the husband distreins , and avowes , and dies , the cattle are discharged ; for they do not belong to the executor , being they are but a pledge , and the wife is to have the duty , and therefore the executor cannot detain the pledge , and it is not like the case where the husband recovers upon an obligation made to him and his wife , 33 h. 6. 48. although the husband can give nothing to his wife immediately , yet if a disseisoress makes a lease for life , the remainder to her self in tail , the remainder to a. in fee , and after marries the disseisee , who releases to the tenant for life , this shall inure to the wife . a reversion is granted to baron & fem and to a single man and woman in fee , the single persons marry , and the tenant atturns , then the single man and woman are divorced , the baron & fem shall have but a third part . if a man makes a feoffment to a. and a fem sole , with a letter of atturny to deliver seisin , and before livery they entermarry , they shall take by moities . land is given to a. and b. his wife , and to another baron & fem in fee , they are disseised , and a. releases to the disseisor , and then a. and b. are divorced for cause which hath relation . b. and the baron & fem bring an assise , leaving out a. and some think it is maintainable ; for when a. and b. are divorced , yet the other baron & fem shall hold the moity to them ; for being the purchase took effect , and vested by the livery , and at that time the baron & fem not being divorced , took a moity , that remaines still ; for to all strangers a. and b. shall be said to continue husband and wife ; for if a stranger had bought the goods of the wife , and then they had been divorced , yet he shall retain the goods , as it is held in 26 h. 8. and if the husband had made a feoffment , the wife could not have an assise against the feoffee , but must bring her cui ante divortium . a reversion is granted to a man and a fem sole , and they marry , and the tenant atturns , they take by moities , for the atturnment does operate upon the deed ; so if they marry before livery is made . if baron & fem make a lease for life , and pray to be received , and the husband makes default , and upon his default the wife is received , now she admits the discontinuance , yet if she be barred she shall have her cui in vita , for she had not title then to have a cui in vita ; for that accrues by the death of her husband . if a feoffment with warranty be made to a man and a fem sole , and they marry , and are impleaded , and recover in value , the husband dies , they did not take by moities . if land be bargained and sold to a man and a fem sole , and they marry , and the deed is inrolled , there they take by moities , for it hath relation . but if baron & fem , tenants for life , before the coverture , recover in value , by reason of the reversion with the rent , they shall take the value by moities . but if a lease be made to a man and a woman for life , upon condition to have fee , they marry , and after performe the condition , they shall not have moities in the fee , if a man be seised of land in right of his wife , and warranty is made to them , and the heirs of the husband , and they recover in value , there shall be no moities ; for the recovery in value must be according to the nature of the estate . if a fem , being tenant for life marries , and the husband atturns to the grant of the reversion , and then he is divorced , yet it will binde the wife . if a woman hath a lease for twenty years , and the lessor confirmes to the husband for forty yeares , who dies , she shall have the residue of the twenty years . the husband hath a term in right of his wife , and grants so many years as shall be behind at the death of him and his wife , quaere if this be a good grant ? the husband is bound in a statute , and after he and his wife levy a fine of the land of the wife to a. the husband dies , the land shall not be extended in the hands of a. for nothing passed from the husband , but the estate which he had during the coverture , and a. shall have the same benefit the heir of the wife should have had . but if the husband had made a lease for yeares , or granted a rent charge , before the fine levied , there the conisee should never have avoided it , because they had been executed at the time of the levying the fine . if husband and wife accept of a fine sur conusans de dvoit come ceo , &c. from b. of the wives land , and they render it to him in tail , yet the reversion is in the wife onely , and the husband hath nothing but by reason of the coverture , 40 ass . p. 4. a fem covert is infeoffed , the husband being beyond sea , who , upon his return , disagrees ; yet the freehold shall not be devested without an entry ; and if the husband dies before his entry , the wife is remitted , and the title of entry which the feoffor had is taken away . if a fem tenant for life marries , the husband makes a feoffment , the lessor enters , the husband dies , she cannot avoid the forfeiture . if a fem covert be infeoffed , and disseised by a stranger , the husband disagrees to the first estate , and dies , the wife may enter , and retain against the first feoffor , for the disagreement was frivolous , the wife having only a right quod not a. if a fem jointenant for years marries , the survivor shall have all the term. so if an obligation be made to a fem sole and another , and she takes husband and dies , the survivor shall have all ; for 't is a chose in action . if a fem hath a term , and marries , and dies , the ordinary may commit administration of it to a stranger . but the law seems to contradict this ; for the marriage is a gift in law , the wife dying first . if a fem hath a lease for years , and marries the villaine of the lessor , he may enter into the land as a perquisite . the husband is tenant for life , the remainder to the wife for life , the remainder to the husband in tail , how the husband might discontinue the estate in tail , without barring of it , was the question ? the intention was this , that the husband and wife should make a lease to a. for the life of the husband and wife , and the survivor of them , and that a. should grant his estate to the husband , and then he should make a feoffment , and that would prove a discontinuance . land is given to a. and a fem sole , and to the heirs of the body of the woman begotten by a. they marry , and have issue , the husband aliens a moity , and dies , the issue dies without issue . if the woman may enter into the moity for the forfeiture ? being she could not enter at the time of the alienation . and also she is tenant in tail after possibility , &c. in which case she hath but a freehold in remainder , as she had before ; but otherwise , if it had been an estate in tail , in remainder after the estate vide 45 ass . 6. the husband makes his will and devises out of his mannor of dale a certain rent to his wife , for her life , in consideration , that she should not have her dower , and dies . the wife recovers by default in dower the third part of the land , she shall have the whole rent out of the two parts ; for the recovery is upon a good title . and a devise cannot be averr'd to be a jointure within the statute ; for at that time , neither land , nor rent were devisable , and therefore she was discovert when the devise took effect : and so both out of the words of the act , and also out of the equity ; and then from that time the title of the land relates paramount , the title to the whole rent shall remain . vide leases , atturnment remitter . bastard . if the bastard enters into the mannor , and recovers in a cessavit , being the mulier dis-approves the estate of the bastard , he shall not take benefit of the recovery . if the bastard dies seis'd , the mulier within age , some think the right is gone , no more than if the mulier had been born after the descent . so if the bastard enters , and the mulier dies , his wife enseint , and before the birth the bastard dies , and his issue enters , the mulier is not bound by that , and others think the contrary . if a bastard dies , seised of land , his wife enseint , and before the birth the mulier enters , the issue of the bastard ; when he is born shall be bound ; for by a dying seised onely without a discent to the issue , his right of entry was not taken away : for if a disseisor dies without heir , the disseisee may enter upon the lord by escheat , because there was no heir to make it a descent : so in this case . if a bastard puisne enters into land in borough english , and dies seised , and his issue enters , the mulier is bound . but such a bastard puisne , is intended , where the first wife , by whom he had the mulier , dies , and then he hath a bastard , and marries the same woman ; for if a man marries the woman by whom he hath a bastard , and she dies , and after he hath a mulier by another wife , though they be not by the same mother , yet such a bastard gaines the inheritance to his issue , if he dies without interruption : by the same reason the bastard puisne . if the mulier ou ts the bastard , who recovers against him in an assise , where the mulier pleads ne unques seise , &c. and after dies , that descent shall take away the right of the mulier ; for the possession which he had is defeated by the recovery : for he shall have an assise of mortdancester , or scire fa●ias , where such a possession is removed . but otherwise it had been if he had entered . if a bastard dies , living the father , and leaves issue , his issue shall be in the same case against the mulier , as the father should have been , if he dies seised without interruption . if the heir of the bastard be in by descent , he shall gain the land from the collaterall heir , or against the lord by escheat , as well as against the mulier puisne . if the issue of the bastard be the first that enters , and dies seised , his issue shall retain against the mulier . if the bastard dies , and his issue endowes the wife of the bastard , quaere , if the right of the mulier be bound ? but if the wife of a common ancestor be endow'd , the dissent of the reversion shall be to the mulier . quaere . if a remainder be directed to the right heirs of a. and he dies , and the remainder vests , and after the right heir is proved a bastard , or is made so by act of parliament , yet he shall hold the land for ever , because he takes by purchase . if there be bastard eigne & mulier puisne , the father makes a lease for yeares , and dies , the yeares expire , the bastard enters , and dies seised , his issue enters , the right of the mulier is not bound ; for the possession of the lessee for years , was the possession of the mulier ; and being that he was once seised , so that he may have an assise , or mortdancester , his right shall not be taken away . if there be bastard eigne & mulier puisne , and the father dies seised of a mannor , the bastard enters , and gets the services of all the tenants , and after one of the tenants makes a lease for life to the bastard , who dies seised , and the issue enters into the mannor ; the mulier may distrain the tenant who made the lease for life , for all the services due after the death of the father , for his entry was not taken away , as to the services of that tenancy , the seignory of that tenancy being suspended in the estate for life , and so no descent ; but if there had been a lease for yeares it had been otherwise . grandfather , father , and son , the father a bastard , the grandfather seised in tail . quaere if the son shall inherit ? if there be bastard eigne & mulier puisne , and the father is disseised and dies , the bastard enters upon the disseisor , and dies seised : being there was no possession in law descended from the father , but onely a naked right which vests in the mulier , therefore the descent of the bastard shall not take away the right of the mulier . but if the father had died seised , and a stranger had abated , upon whom the bastard had entred , and died seised , there the mulier shall be barr'd , because the possession in law descends : tamen quaere , for the entry of the abater vests a right of action in the mulier , which cannot be devested by the entry of the bastard . if there be a son bastard eigne , and daughter mulier puisne , the father dies seised of a rent , the daughter having a husband the bastard gets the rent , and thereof dies seised , and that descends unto his issue , yet the husband shall be tenant by the curtesy , and the mulier shall not be bound by it , for the rent was vested in the daughter at the time of the descent , and being the daughter may choose whether she wil admit her self out of possession , or no ; therefore it is at her election whether she will suffer any wrong to be done to her self , or no. if a man dies seised , having a son a bastard eigne , and a daughter a mulier puisne being married at that time , the bastard enters and diesseised , his issue enters , and the husband dies , perhaps the wife shall not be bound no more than an infant in that case . but if the bastard had entered , and after she had taken husband , &c. it had been otherwise . if a man hath a daughter a bastard eign , and a son a mulier puisne , perhaps the maxime does not hold , for she had no colour by the law. if there be two daughters , mulier and bastard , and they make partition , and the bastard dies seised without issue , the land shall not escheat , for if the lord will say she was a bastard , and so it ought to escheat , the mulier shall say that she her self is a mulier , and therefore it belongs intirely to her , and if the lord will say , they made partition , by which the mulier had admitted her inheritable , then the mulier shall say , by that i did admit her to be my sister , and so i am her heir , thus the lord is estopped every way . lord mesne and tenant by equall services , the tenant fore-judges the mesne , the lord dies , having a bastard eigne & mulier puisne , the bastard hath issue and dies seised , after he had married with the tenant , the wife dies , the mesne reverses the fore-judger by error ; the question is , if the mulier shall have the rent of the seignory ? it seems the maxime holds place as well of a rent , as of land , as it is holden in 14 e. 2. bastard 26. and though the rent was suspended by the marriage , yet the maxime holds place , as to the dying seised of a rent without interruption ; for if a man hath a rent in fee , and becomes tenant by the curtesie of the land , and dies , his heir shall have a mortdancester of the rent , which he could not have , if his ancestor did not die seised . vide release . bona felonum , &c. the goods of those who are attainted by verdict , or outlawry , or confession , are said cattalla felonum , and if a man flies for felony , the goods which he hath at that time are bona waiviata , and though he be attainted after , yet they are so still . but if a man flies for felony , and after he is taken , and acquitted , there his goods are forfeited , as catalla fugitivorum : but in all the cases the property must be in him that flees . but by some bona waiviata are those which are stollen by a felon , and left . v. 29. e. 3. 12 e. 4.6 . borough english . a man dies without issue , seised of an acre in borough english , having two uncles , the youngest who enters into the acre , by reason of the possession is voucht with the eldest , by reason of a warranty entred into by the nephew , they lose , the tenant who voucht them having recovered , dies , leaving two sons , the eldest sues execution , and the youngest ou ts him , vide 11 h. 7. 12. a. charge . grandfather , father , and son , the father disseises the grandfather and dies , the son grants a rent charge , the grandfather dies , the son shall not avoid his own charge by the accession of this new right . if the son disseises the father , and grants a rent charge , and the father grants a rent charge , the land shall be charged in perpetuum ; but if the son had been dead first it had been otherwise , and his son should have holden it discharged . if a stranger disseises the father , and grants a rent charge , and infeoffs the son , and the father dies , the son shall hold it discharged . if the father disseises the grandfather , and dies , the son enters , and grants a rent charge , the grandfather dies , he shall hold it discharged , although he was of full age at the time of the charge ; [ vide sect. preced . cont . ] as if tenant in tail infeoffs the issue within age , who grants a rent charge at full age , after the death of tenant in tail the son shall hold it discharged , for in both cases he is in of another estate . if a disseisor grants a rent charge , and is disseised , a release is made to the second disseisor , the charge remains . if two jointenants grant a rent charge , provided that it shall not charge the person of one of them , some think he shall not charge the other . tenant in tail grants a rent charge in fee , and makes a lease for forty yeares , rendring a rent , and dies , the issue accepts the rent : some think the grantee shall have the rent during the lease , and the life of the issue , though the lessee surrenders ; quaere , for the reversion is discharged . the father disseises the son , and grants a rent charge , the son endowes his wife , ex assensu patris in the same land , the father and son die , the wife enters as tenant in dower , she shall hold it charged ; for she doth not claim from the possession in law , but from the possession charged . if tenant in tail grants a rent charge , and dies , the abator shall not hold it charged . but by many the rent in the first case is avoided , for the freehold was discharged . the father disseises the son , and grantes a rent charge in fee , and then makes a lease for years , the son confirms the lease , the father dies , the rent is extinct . so if a man grants a rent charge in fee , and makes a lease for years , and grants a reversion to the king , or to the grantee , the rent is gone . if there be two disseisors , and the one grants a rent charge , the disseisee releaseth to the other and his heirs , he shall hold it discharged , for he claims meerly from the disseisee . but if one hath two sons by divers venters , and dies , and before entry the eldest grants a rent charge , and dies without issue , the youngest hath the land from his father , yet he shall hold it charged , for the eldest hath such an estate as he might charge ; for if the eldest had died without issue , and the land had gone to the unkle , and from the unkle to the father , though the father cannot be heir to the son , yet being the land was charged he shall hold it charged ; so in the other case , quaere , for there is a mesne descent . tenant for life , the remainder in fee makes a gift in tail with a remainder in fee , he in the first remainder releases all his right to the donee in tail , not saying to his heirs , and after he grants a rent charge to a stranger out of the remainder in fee , and dies , the donee dies without issue , the heir of him in remainder enters , if he shall hold it charged ? for if he be remitted to his ancient right , then the land is discharged against him . and some think the release could not give the right in fee , which the releasor had to the releasee himself , for then in a manner he might release to himself , and if the release inures but as a confirmation , then without question the heir shall be remitted , and shall hold it discharged ; but if the remainder had been appointed in tail to him who had it before in fee , the remainder over in fee , then the release ought to inure to the first estate in tail , and also to the fee , and then if the last fee be fortified , the mesne remainder is established , and so the release inures to himself . the son makes a lease to the father for life , who makes a lease for life to a. the remainder in fee simple to the son , the son grants a rent charge out of the remainder , and after releases to a. and his heirs all his right in the land , the father and a. die , if his issue shall hold it charged ? first , it is cleer , that the right fee is divested , and a tortious fee setled in the son all at one instant , as if tenant in tail makes a lease for life , the inheritance of the estate in tail is devested , and a fee simple vested all at one moment . so if the husband makes a lease for life of the wives land , the fee which the husband had in right of his wife is devested , and a new foe in himself in his own right vested at the same time . so in the first case ; then when it is granted out of the reversion , it is all one as if it had been granted out of the remainder , because a reversion and remainder agree in substance , viz. terra revertens ; then when the son released unto a. and his heirs all his right , that shall not inure as an entry and feoffment , for a. was in by title without disseisin ; then it does not give to him the remainder ; as if he had released to him all his estate in the land , or as if he had released all his right , habendum the land in fee ; for there the fee passes , but here he hath both the right and the estate , and then a release of the right does not reach the estate . others are of opinion that the right in fee cannot drown in the estate for life , and in the remainder it cannot merge ; for then in truth he releases to himself . but if a fem disseisoress make a lease for life , and after marries with the disseisee , who releases to the tenant for life in fee , the fee will merge in auter droit for the benefit of the estate in fee in reversion , then if the release do not perfect the remainder , if the grant of the rent which is an assent to the remainder does so inseperably unite the remainder , the rent and the right , so that the right shall be drowned in the estate for the preservation of the rent ? and some think it shall not ; for if a disseisee takes an estate in fee from him who hath the land by descent , he agrees unto it ; and yet if he dies seised , his heir shall be remitted , and so the rent charge avoided . but others think , that in as much as by the grant of the rent charge he hath agreed to the remainder , and so to the livery , he cannot now enter upon the tenant for life , and then the release gives the remainder , and so the land continues charged . claim . if a reversion be granted upon condition which is broke , the reversion shall be adjudged in the lessor without claim , for the grantee was privy to the condition : as if a condition be annext to the feofment , that if the feoffee doth not perform such an act , that then he shall have it but for life ; if he does not perform it , the estate in fee is presently vested in the feoffor without claim , for he was privy to the condition . but the lord shall not have a reversion granted to his villein , or aliened in mortmain , or to his mother , who consents to a ravisher without claim , for there is no privity . but , in these cases , if the particulartenant hath an action of wast brought against him by the lord , or his son , perhaps the using of the action will countervail a claim : and note that he ought to come upon the land and make a claim , and he shall not be punish'd for it , no more than the lessor , who comes upon the land to see if waste be committed ; for it is a condition in law annex'd to all the cases . the heir makes a feofment upon condition , the mother recovers dower , the condition is broke , quaere what course he must take to recover the reversion ? for , if the mother recovers her dower against an abator , the heir shall not gain the reversion by claim . and if tenant for years be outed , and the disseisor dies seised , and the terinor enters ; many are of opinion , that the disseisee shall not have the fee by claim . if there be a disseisor of twenty acres , and the disseisee enters into one , saying nothing , he may have an assise for the rest ; for the possession shall not be devested by the construction of the law without a particular claim of the party . capacity . land is given by deed to a. and a dean & his successors , and livery is made to a. in the name of both , the dean takes nothing , for they take in several capacities , and in common , and not jointly . but if the discontinuee enfeoffs the issue in tail within age , and another , and makes livery to the infant in the name of both ; though the infant be remitted for a moity , yet the other moity vests in the other , and they are tenants in common , for their capacities are not several , but they take severally by the operation of the law. cessavit . if the tenant ceases for twenty years , a cessavit cannot be maintained but for the two last years before the writ . and therefore if the tenant ceases for two years , and marries , and the lord recovers in a cessavit , and the tenant dies , the wife shall be endowed against the lord ; for the cessavit cannot be maintained for the cesser before the coverture , and so the title of action shall not have relation , &c. but is grounded upon the cesser two yeares before the writ purchased , and part of it was during the coverture , and then the cesser of the husband , during the coverture shall not prejudice the wife of her dower . but quaere if the case be not ●alsly put ? for it should rather have been , that the baron ceases one year before the coverture , and another year after , and then the cessavit is brought . cessante causa , &c. the seignoress seises the body and land of the tenant , and after marries the villain ingross of the heir , and they commit wast , the heir brings an action of wast , 't is cleer that his body is out of ward , and being that the land is in ward , because an infant cannot perform knight service , and so the cause is executory , and in consideration that the signory remains and now the signory during the coverture by the intermarriage with the villain is determined in the tenancy , and so the freehold and inheritance of the seignory is merged in the tenancy by act in law , notwithstanding , that the possession of the seignory is suspended by reason of the chattle in the tenancy , viz. the wardship of the land , because that the husband shall be tenant by the curtesy , and may be granted over notwithstanding the suspension , by reason of the chattle in the tenancy , & by the same reason it shall be a release in law to the lord of the villein by act in law , and therefore the land shal be out of ward for cessante , &c. if the lord of a villain gives land in ancient demesne to the villain and afterward the lord reverses the fine by disceit , the manumission is gone , for the conveyance by the fine , which was the cause of the manumission being vacated , the effect falls to the ground . common , v. apporcionment . condition . a having two sons , makes a gift in tail to the eldest , the remainder in see to the youngest , on condition , that the eldest shall not make a feoffment with warranty , to the intent to bar him in remainder ; and if he does , that then the yongest and his heirs shall enter , the eldest makes a feoffment with warranty the father dies , and the eldest dies without issue , the yongest may enter , for the entry given to the youngest is void , and then the heirs of the feoffor are to enter ; then the father having cause to enter , and he being dead , the condition is in suspence in the eldest , and revived by his death ( v. 41. e. 3. 21. ) and given to the youngest ; for the condition was not extinguished by the feoffment ; and the warranty does not bind titles of entry . but if the feofment had been after the death of the father , then the condition had been extinct . if i am lessee for the life of c. and grant my estate to d. upon condition that if d. dies living c. that it shall be lawful for me to re-enter , quaere if this condition be sufficient for me to enter upon an occupant ? the mesne grants the mesnalty upon condition , that if the grantee pays , &c , by such a day , that then he shall have fee , before the day the grantor to whom the money was to be paid is attainted , yet the grantee may perform the condition , and enjoy the fee. a lease for life is made upon condition , that if the lessor grants the reversion , the lessee shall have it in fee. the lessor grants the reversion by fine to one for life , the grantee shall have it for life , and the lessee shall have it after the death of the grantee , and not before ; but if the condition had been , that if the lessee pays twenty pounds , &c. there he shall devest the possession out of the grantee . note the diversity . if the husband having a lease for twenty yeares in right of his wife , grants two years upon condition , that the grantee shall not grant over his term , and if he does , that he , his executors and assigns may re-enter ; the husband dies , the lessee grants over his term ; the executors of the husband cannot enter , for it is a condition annext to the reversion , and if they do enter they defeat the wives reversion . the eldest son cannot enter where the reversion descends to the youngest son by borough english , or speciall tail . nor the heir on the part of the father , where the land goes to the heir on the part of the mother , nor the executor of one jointenant where the testator made a lease upon such a condition , and died , for then he should devest the reversion out of the other , which cannot be . and in the principall case the wife cannot enter ; for she is not privy to the condition , neither doth she claim under the estate of the husband . as if one jointenant grants his part for yeares upon such a condition , the survivor cannot take advantage of it . but if the husband had granted over all the years upon such a condition , or the father had made feofment of the land in borough english , he should enter , for he claims by the father . some think the condition is extinct , as if a man makes a lease for years , upon condition , ut supra , and dies , having a son and a daughter by one venter , and a son by another , the eldest takes the rent and dies ; now the sister shall have the reversion , and the condition is gone ; for she is not heir . and a rent is incident to a reversion , and passes by the grant of it , but so doth not a condition . a feoffment is made upon condition , to re-infeoffe , the feoffee charges the land , the grantee brings a writ of annuity , and recovers , the feoffor enters . 44 e. 3. 9. if a. be bound to pay ten pound to b. and he releases ten pound which he ought him ; yet this is no performance , for there ought to be a payment in fact. and therefore if one be bound to release a rent charge which he hath out of the mannor of d. and he purchases an acre , now the rent is extinct , and yet the condition is not performed ; but if i am bound to enfranchise my villaine , and i bring an action against him , the condition is performed . so if i am bound to discharge an obligation in which i am bound to a. if i purchase the mannor to which a. is a villein regardant , the condition is discharged ; for the word discharge refers to all manner of discharges . if i am infeoffed , upon condition that i shall not alien to a. and i suffer him to recover it feintly , or if i cease , so that he being my lord recovers in a cessavit , or if i acknowledge my self to be his villein , or if i make a feoffment with warranty , so that that acre is recovered by him in value , yet the condition is not broke ; for it extends only to alienations in fact. if i make a gift in tail , upon condition that the donee shall not suffer a feint recovery , if it be not to the benefit of his issue , and after in a feint writ he vouches , and a recovery is had against him , and he recovers in value , and hath execution , and that is to the just value onely , the condition is not broke . but if the donor had been voucht , it is cleer be should not have entred , for he shall not say that the recovery was feint when he was voucht , and made a party to the breach of the condition : and he cannot enter into warranty , saving the condition which is not broke , for it is but a possibility . land is given in tail to the heires males of the body of the donee , upon condition , if he dies without heirs females of his body , that the donor shall re-enter , the condition is void , for he cannot have heirs females so long as he hath issue male. a lease for years is made upon condition , that the lessee shall not alien without the consent of the lessor , he gives him leave to grant over his estate upon condition , and so he does , and enters for the condition broke , he may after grant it over without his consent ; for the condition is performed 32 h. 6. 10. a. a rent charge is granted upon condition , the grantor makes a feofment of the land , the condition is broke , the rent is arrear , if the condition be extinguisht by the feofment , being the feoffor cannot have it in the same manner as he might when the grant was made ? but if the grant had been upon condition , which if not performed to cease , the feoffee shall have benefit of it . if a feoffment be made upon condition , that the feoffee shall make a gift in frankmarriage with the cosen of the feoffor , this seems to be a void condition , quaere if he must not make an estate for life ? so if it had been to make such a gift to a religious person . if a feoffment be made upon condition , the feoffee makes a lease for life , and dies , and the reversion dessends to the feoffor . quaere if the condition be extinct ? the mortgagee enfeoffs the heir of the mortgagor in mortgage also to be first paid , after the first day the first mortgager dies , the heir tenders the money to the first mortgagee at the day , and he refuses , and he tenders the money to the heir , &c. and he refuses . some think the son may perform the condition , for it is not suspended , being a collateral condition ( vide 21 e. 4. the case of a corody ) and the payment ought to be made to the mortgagee ( though he hath made a feoffment of the land to the executors , and not to the heir , as it shall be and 17 e. 3. 2. is not law. and upon the first refusall the heir is not remitted , for he shall not be remitted upon a title . if the tenant atturns upon condition , which is broke by the grantee , yet the reversion is not devested ; for the assent cannot be conditional , for he doth not claim the reversion from him that atturns , neither can it be made conditionall by the act of a stranger to the grant : for if tenant in tail makes a lease for years , rendring a rent , and dies , and the issue accepts the rent upon condition that it shall not prejudice his entry to avoid the lease , yet he shall avoid the lease ; for the assent is a thing executed , which wil not suffer any condition performable . but if the condition be precedent to the assent , the condition is good . but a release of right may be upon condition , as a release of the seignory to the tenant upon condition , so of a release upon condition from one jointenant to his companion , for there the thing vested in his person is devested , unto which a condition may be annext . but otherwise of an assent . and if the patron assent to the charge of the person upon condition , that is good , because the assent is an interest in law. if a gift in tail be made upon condition , the donee shall make a feofment , which is done accordingly , yet the issue shall have a formedon ; for if the condition be not performed the donor could not have entered , and when it is not performed , yet the estate of the issue shall not be defeated . if a lease for life be made with such a condition , yet the lessor may enter for the forfeiture , if the feofment be made . so if the lease had been made upon condition that he make a feoffment , all is one . if an infant be infeoffed , upon condition to enfeoffe another , which is done accordingly , yet the infant may enter , for he hath performed the condition . if two are infeoffed , upon condition to infeoffe a. if one does infeoffe him of the one moity , and the other of the other moity , the condition is performed , for the intent is fulfilled . if a lease for life be made , with a condition of accruer , if before the day the lessor be attainted , yet upon the performance of the condition the estate enlargeth . if a man hath land , by descent on the part of his mother , and makes a feoffment upon condition , to be performed on his part , or the heirs , on the part of his father , and the father dies , so that the land descends to him , the condition is extinct , although he dies without issue ; for notwithstanding he had the land from his mother , yet the condition goes to the heirs on the part of his father , being a new thing . as if a feoffment be made upon condition of land in borough english , the eldest son shall not enter for the condition broken , as the heir male must do where a condition is descended upon the heir female . but on the other side , if the son makes a feoffment to his mother , of land descended to him from his father , and after the mother dies , and the son dies without issue , the heir on the part of his father must perform the condition , and the heir on the part of his mother shall have the land in the mean time , and if the condition had been broke in the life of the mother it had been all one , and the heir on the part of the father should have entred ; for the son is not remitted by the descent . the case was ; after the entry the son granted a rent charge , and died without issue , if the heir on the part of the father shall hold it discharged ? and some think he shall . if a. makes a lease for years upon a collaterall condition , and the lessee makes a lease for 20 years , and then surrenders to the lessor , it seemes to some that the condition for the rest is extinct ; for he hath part of the estate by his own act , so that if he should re-enter , he could not be in , in the same manner as he was before ; for he cannot avoid all the estate . if a feoffee upon condition make a lease for life , and after the feoffor releaseth the condition to him in reversion , the estate for life is discharged of the condition , and it seems to them all one , viz. a release in deed , and in law. and note if feoffee upon condition makes a lease for life , a release of the condition to tenant for life shall extend to all the condition against the feoffee . and it is cleer if there he feoffee upon condition of two acres , and the feoffor releases the condition in one , it remains in the other , as it shall be of a warranty annexed to two acres , for the condition is several as the right is , and shall remain in part of the land , as the right shall do . but if the condition had been by two , or to two , there a release by one , or to one , dischargeth all the condition , as it shall do a warranty : but if a man hath two acres , one to him and his heirs males , and the other to him and his heirs females ; and makes a lease for years of both of them , rendring a rent upon condition , and dies , having a son and a daughter ; the condition remains for the son in one acre , and is extinguished for the other . and if lessee upon condition surrenders one acre , it remains for the other . tenant for life makes a lease for years , upon condition to have it for the life of tenant for life , the lessee dies , and his executors perform the condition , yet the freehold shall not accrue to them . for when the lessee for years died , the condition was gone ; for the executors are not capable to perform the condition to increase a freehold , although they may to encrease a term ; for the one is testamentary , and the other not . vide infant , fem covert , entry , rent . confirmation . lessee for life makes a lease for years , rendring a rent , the lessor confirms the estate of the second lessee , tenant for life dies within the term , and the lessor distrains and avowes for the rent , some think he cannot . tenant for life grants a rent charge in fee , the lessor joins in a feofment of the land , the rent shall indure for ever ; for it is the feoffment of the tenant for life , and the confirmation of the lessor . if a disseisor takes a confirmation of the lord to hold by lesser services , and the disseisee releases to him , yet he shall take advantage of the confirmation . if there be two tenants in common for life , and a confirmation is made to them and their heirs , they are tenants in common of the fee , as they were of the freehold ; for a confirmation inures according to the nature of the estate upon which it inures , and a confirmation does not alter the estate . if land be given to two men , and the heirs of their two bodies , and the donor confirms the land to them in fee , they are not jointenants of the fee. if a disseisor grants a rent charge to the disseisee , and he grants it over , and after re-enters , he shall hold it discharged , for it cannot inure as a grant , and as a confirmation . if there be lord , mesne , and tenant , each by fealty and twelve pence , the lord confirms the estate of the tenant to hold by one penny , that confirmation is void , for want of privity ; for there ought to be an immediate tenure where it is to be abridged . as if tenant for life makes a lease for years , and the first lessor confirms the estate of the lessee for years , that is void for want of privity . so if tenant in tail makes a lease for his own life , and the donor confirms , that will not enlarge his estate . lord , mesne and tenant , each of them holds by twelve pence , the mesne is outlawed in felony , the lord confirms the estate of the tenant to hold by one penny , the heir of the mesne reverses the outlawry by error , and distrains and avows for twelve pence . there is diversity , viz. if the tenant dies without heir , the law cast the possession of the tenancy upon the lord , so that he hath the possession in law before entry . but if the tenant be attainted of felony , there the lord hath not the possession either in fact or in law before entry ; for if the tenant continue twenty years in possession after the attainder , he shall be said to be tenant , then here the law doth not cast the possession of mesnalty upon the lord , and so there wants that privity between the lord and the tenant which is requisite to the deminishing of the services . then here the confirmation inures to prove his agreement to the escheat , or otherwise , it shall be void , which the law will not suffer . if the mesne grants the mesnalty to the lord par auter uge , and after the lord had confirmed , ut supra , and after cesty que vye dies , there the mesne shall hold according to the confirmation ; for the fee of the seignory was not in suspence , because he had it but par auter vye . if a fem hath a lease for twenty years , and the lessor confirms to the baron for forty years , who dies , the fem shall have the residue of the twenty years , quod nota . if a disseisor makes a gift in tail , or lease for life to a. to whom the disseisee confirms , yet after the estate determined he shall enter upon him in reversion ; for the estate is only fortisied , but if the confirmation had been to the disseisor , he cannot enter upon the particular tenant . but if the disseisor had given , &c. to a. and b. and to the heirs of a. and the disseisee confirms the estate of b. quaere . but it is cleer , if he had confirmed the estate of a. he should never enter upon his heirs ; for if a disseisor gives land to c. in tail , the remainder to the right heirs of c. and the donor confirms the estate , that shall go to the fee. and if a disseisor gives land to a. for life , the remainder to b. for life , and the estate for life to a. is only confirmed , quaere . if a disseisee , where his entry is taken away , and a stranger enters upon the heir in by discent , confirms the estate of the stranger , though his confirmation gives no possession of the freehold , yet his ancient right is gone for ever . but if the heir who is in by discent were disseised by a. who makes a lease for life to b. and the first disseisee confirms his estate , and the heir enters , the disseisee hath no remedy during the life of b. for the confirmation continues so long , and no longer . and the heir hath the right of b and so the disseisee cannot have an action against b. and by the same reason he cannot have an action against him that hath his estate , in respect of the first disseisee . so if the heir in by descent , had made a lease for life to the disseisee and a stranger , and the disseisee confirms the estate of the stranger , there the disseisee hath no remedy , during his own life , though the heir re-enters , causa qua supra , but his heir shall have remedy ; for it was but a conclusion . and some say that the confirmation in the first case shall not extend to the right that was suspended , as a release will do , no more than if a man hath a rent charge , and he and another disseise the tenant of the land , and he which hath the land confirms the estate of his companion , the disseisee re-enters , the rent is revived ; for as the rent was not grantable , being suspended in the inheritance , no more may the confirmation extend to it , or touch it . two jointenants for life of two acres , the land is confirmed to them in fee of one acre to the use of one , and of the other acre to the use of the other in fee , they are severall tenants of the freehold of the severall acres , for the confirmation is drownd by the confirmation in fee to the vse , and the freehold made according to the vse , as if it had been before the statute of 27 h. 8. the parson makes a lease for twenty years , the ordinary confirms for ten , being it is an intire thing , it cannot be confirmed in part , as a confirmation to the disseisor , tamen quere ; for the assent of the patron cannot be like to that . the husband is tenant for life , the remainder to the wife for life , a confirmation is made to them in tail , how it shall inure ? some think that they shall take the estate by intireties , and not by moities . it may be said that the estate for life to the husband , the remainder to the wife continues , but if not , then to the wife for one moity , and a moity in the freehold shall be extinct , &c. vide baron & fem , & wast . continuall claim . land is given to baron & fem and a third person , and to the heirs of the bodies of the baron & fem , they have issue , the baron dies ; tenant for life aliens a moity in fee , the wife makes continuall claim , the issue dies without issue , the wife may enter upon the heir of the feoffee , who dies within the year after the continuall claime . quere . it seemes though at the time of the continuall claim she had a right of entry , yet now the estate is changed , and she shall not enter . quaere how continuall claim may be made by tenant in common for the possession pro indiviso . if the disseisee dies after he hath made continuall claim , and within the year a descent is cast , the heir of the disseisee cannot enter , for it gives only a title for the advantage of the person who durst not enter . but if the descent had been in the life of the disseisee , then the heir of the disseisee may take advantage of it . for a title of entry discended . if tenant for life , with a remainder over , be disseised , and makes continual claim , & dies , he in remainder shall avoid a descent happening within a year after the claim , for his interest was reduced . otherwise of a son , in the life of his father he hath no interest . if two jointenants are disseised , and one makes continual claim , and then dies , and after a descent is cast , quere . if the grandfather be a disseisor , and dies seised within a year after continual claim made , and after the year , and before entry , the father dies , and the son enters , the disseisee may enter upon him , quaere , for some think the contrary . covenant , videvse . damages . land is given to baron & fem in fee , the husband dies , the wife waives the possession , and recovers dower against the heir , she shall have damages ; for when she refused , the husband shall be said to die seised , and so within the compass of the statute . if the husband makes a feofment , and takes an estate to himself and another in fee , the husband dies , the wife shall not recover damages ; for she recovers her dower of the estate which he had before , and not of the estate whereof he died seised : so if he had retaken in fee upon condition , &c. for the law says she is endowable of the first estate , and not under the condition . daughter . a man makes a lease for years , and dies , having a daughter , his wife enseint with a son , the daughter confirms the estate of the lessee to hold to him for life with warranty . the son is born , and dies without issue , the daughter enters upon the lessee , and upon a re-entry she brings an assize , some think it maintainable . but if the son had entred upon him an ejectione firmae lies . a. hath two daughters , the eldest disseises the father , the father dies , she hath issue and dies ; the other enters , claiming her part of the moity , and she brings her assize , that was a moot case . if tenant in tail discontinues , and dies , having a daughter , his wife enseint with a son. the daughter recovers in a formedon , and dies before execution without issue , the son born after shall not enter , nor sue execution . if the daughter recovers in value , by reason of a warranty of the ancestor before the birth of the son , the son when he is born shall enter upon her , for he recovers as heir , and it comes in lieu , and so shall be in the same degree as the first land was . a man makes a lease for years , rendring a rent upon condition , and dies , leaving a son and a daughter by one venter , and a son by another , the eldest son gets the rent , and dies , the daughter shall have the reversion , but the condition is gone , for she is not heir . if a daughter enters by purchase , or for alienation in mortmain , she shall retaine against a son born after . a man hath a park by prescription in land in borough english , and dies , having two daughters , the question is , which of them shall have it ? some think the youngest ; for a park is nothing but land inclosed , and a liberty in land shall ensue the nature of the land , also a park may be by prescription , 18 h. 6. 21. a. 1. h. 4. 4. one may have the liberty of a park without allowance . then if prescription can make a park , there is no doubt but that it may be of the nature of borough english ; for the comencement of it is not known , 10 h. 7. 6. per keble . vide parceners . deed. a. makes a feoffment of the mannor of d. to which an advowson is appendant , by deed , and makes a letter of atturny to make livery , the advowson shall not passe by the delivery of the deed before livery be made . if the mannor of d. be given by deed , with all the woods , and within the deep there is a letter of atturny , to make livery , if livery be not made , yet his executors shall have the wood. but if livery be made , then the wood shall go along with the land. if a. requires another , orgives him authority without deed , to write , seal , and deliver a grant of a rent charge out of the land of the grantor , in the name of the grantor , which is done , the grant is good ; for if i make a grant , and command one to deliver it , it will be good without deed. so if i by paroll deliver it him as an escrowle , to be delivered as my deed , upon condition to be performed , that is good , but an authority to make livery must be by deed. neither shall a woman aver the assent of the father for dower , ex assensu patris , without deed. neither can the lessor authorize the lessee to commit wast without deed. if an infant delivers a deed which bares date two years after , and at the end of the two years he is of full age , he shall not be estopped to shew the delivery before the date , no more than a fem covert , otherwise every infant may be deluded . debt . lessee for forty years makes a lease for ten years , rendring a rent , the first lessee surrenders , the lessor brings debt against the second lessee , quaere . a man shall not have debt for releif or escuage granted unto him ; for it is mixt in the realty , but his executors shall , but he must distrein . so the lord shall not have an action of debt for ayd pur file marier , or pur fair fits chivalier . but if he dies before it be levied , the tenant shall be discharged of it . an action of debt shall not be brought against the heir , and his brother in borough english , where the eldest hath nothing by descent , as it shall be against the heirs in gavel kind ; for there he may have a joint judgement against all , and not against the eldest in the other case , for he hath nothing upon which it may be levied , quod nota . an action of debt brought by executors shall be in the detinet only , although it be for arrears of rent incurred after the death of the testator . so it shall be against a man acccomptable to the testator . a seignory is granted for years , the rent is arrear , and the tenant dies , the years expire , if the grantee shall have an an action of debt against the heir , because it was due in the time of his father , and also some was due in his own time , or if he shall have an action of debt against the executors , for that which was due in the testators life time , or is without remedy ? some say that the heir , shall not be charged in debt , if the father die , not oblige himself and his heirs expressely , and the executors shall not be charged , for they were not chargeable by the death of the testator , for at that time the grantee could not have an action of debt , but his remedy was by distresse ; for then the years were not expired , and so no remedy . 9 h. 7. 17. a. co. 4. 49. an annuity is granted for the life of a. the grantee releases all actions of annuity , he shall not have an action of debt for the arrerages , although that a. dies afterwards . devastavit , vide executor . devise . a woman hath issue a son , and by another husband hath issue another son , the second husband devises land to the wife for life , the remainder to the next of the blood of the wife . the youngest son shall take in remainder , although it be true that one is not nearer of blood to the mother than the other , and the eldest is of the most worthy blood , yet he is not neerest , and so it is uncertain who should take , according to the letter of the will , yet the intent ( which is always to be considered in wills ) shall be construed in favour of the youngest , because he was issue of the devisor , pasc . 5. eliz. a great case was argued in the exchequer . there were three brothers , the second brother purchased land , and devised it to his son in tail , and if he died without issue , that then it should remain to the next of the kindred of the lineage of the father , the eldest son was then dead , having a son , it was adjudged that the son of the eldest should have the land , for he is next of the lineage . for lineage shall be taken in a lineall descent , which is the most worthy line , dy. 333. pl. 29. a devise to the next of blood , the son of the eldest brother shall have it before the younger brother . if land be devised upon condition , or rendring a rent , that is void ; for it cannot be good in either case , except the reservor might take advantage of it , and the heir cannot have that which his ancestor could not . and if a man devise land with warranty , that is void , because the father was not bound . but to some there seems a diversity ; for in the last case there is a charge to the heir , and in the first it is for his advantage . if the lord devises land to his villein , this is an infranchisment against the heir , and yet he was the villein of the heir when the devise took effect . a man having three daughters , devises to them● hundred pound a piece for their marriage portions , and if any of them die before their marriage , then the other should have her portion by survivor , one dies in the life of the father , the other shall have three hundred pound after the death of the father , and yet nothing survived , for she had nothing in possession , yet they shall take it by the , intent of the devisor ; for when he says , that if any of them die before their marriage , that the other shall have her portion , this makes it in nature of a remainder , and then though the first devisee does die in the life of the testator , yet he in remainder shall take the estate per manwood , dy. 127. p. 59. as a devise to a monk , the remainder to another , the remainder is good . a. devises land upon condition , and if the condition be broke , that his executors shall sell the land , the devise as to the executors is void ; for the heir must enter for the condition broken , and then he shall hold it discharged of all conditions . a. devises twenty pound to b. when he arrives at the age of six and twenty years , and if he dies before , he devises it to c. b. releases to the executors of a. before he attain● 〈◊〉 age of six and twenty years , if it shall be a bar ? quaere . if a. devises twenty pound yearly for twenty years , the devisee hath no remedy for his not is●uing out of any land ; for he can not take it as a legacy , and an an●●●●y does not lie against executors , for the testator was never charged . a jointure cannot be made by devise , for land was not then devisable , and the wife was discovert when the devise took effect . if land be devised to an alien , and he is made a denizen before the devisor dies , he shall take by the devise ; for all takes effect after the death of the devisor . disablement . if i grant an annuity upon condition that the grantee shall promote me to a benefice within seven years , within which time i marry , and my wife dies within the term , yet the grantee is discharged ; for i had once disabled my self to accept of the benefice , and he had the liberty to have tendered it at that time , and i being then disabled to receive it , it countervails a t●●●●●r and refusall . so if i am bound to marry a woman by such a day , and she marries another , and the husband dies before the day , yet i am discharged of my obligation . but if he who was to be promoted , or married had been a stranger to the obligations , it had been otherwise . if i am bound to enfeoffe the obligee before a day , and before the day he takes a lease for yeares of the same land , which expire before the day , yet i am discharged ; but it had bin otherwise if there had been no day limited ; for there it is not to be done before request . a feoffment is made to re-infeoffe , the feoffee grants a rent charge , the grantee brings a writ of annuity , and recovers , if this be a disablement to re-infeoffe , quaere ? disagreement . a lease is made to baron & fem for the life of the baron , the remainder to the right heirs of the husband , the husband dies , the wife cannot disagree , for the estate is determined . but if the estare had been made to them by a disseisor , she might disagree to save herself from damages . if land be given to baron & fem in fee , and the baron makes a feoffment , and an ancestor collaterall of the wife releases with warranty , and dies , the husband dies , the wife cannot disagree and claim her dower , for her estate was bound , and her right determined by the warranty . if the husband be remitted to an estate , the wife may disagree , and claim her dower . an atturnment is good , although he that atturned doth after disagree . vide dower , & baron & fem. discharge . if the disseisee enters upon the heir of the disseisor , end grants a rent charge and dies , the issue shall hold it discharged , for he is remitted to his ancient right . so if the heir of the disseisee enters upon the disseisor , and grants a rent charge , and the disseisee dies . but if the son disseises the father , and a. and the father dies , he shall hold it charged , for he is not remitted . if the father disseiseth the grandfather , and grants a rent charge , and dies , the son shall hold it discharged , for he claims from the grandfather . lord , mesne , and tenant , the tenant aliens in mortmain , the lord enters , and grants a rent charge ; and after his title is come , viz. the year is past , and the mesne hath not entred , the lord shall hold it discharged , and his issue also ; for he shall not be remitted for a title , as he shall be for a right accrued . if the father disseises the grandfather , and dies , and the son enters , and grants a rent charge , and the grandfather dies , he shall hold it discharged , although he was of full age at the time of the grant. as if tenant in tail infeoffes his issue within age , who grants a rent charge at full age , and then the tenant in tail dies , the issue shall hold it discharged . if the disseisor grants a rent charge to the disseisee , who grants it over , and after enters , he shall hold it discharged . so if tenant pur auter vye grants a rent charge , and the reversion descends upon him , and cesty que vye dies , he shall hold it discharged . if a stranger disseises the father , and grants a rent charge , and infeoffes the son , and the father dies , he shall hold it discharged . land is given to a. and b. for their lives , the remainder to the right heirs of him who survives . b. grants a rent charge in fee , a. dies , if the heir of b. shall hold it discharged , quaere . if it had been given to them , quam diu simul vixerint , and to the heirs of him who first dies , the heir shall not take the land by descent , but by purchase . a. having a wife , makes a feoffment upon condition , and dies , the wife is endowed by the feoffee , and then grants her estate to the feoffee , reserving a rent by indenture , the heir enters for the condition broken , he shall hold it discharged of the rent , note her title to the land was paramount to the condition , but puisne to the rent . if a dean hath a rent charge in fee , and the tenant aliens the land to the dean in fee , the lord enters for the alienation in mortmaine , he shall hold it discharged of the rent , for when he entred for the alienation in mortmain , he did not avoid the livery , but affirm'd it by his entry . so if the dean before the entry had entred into a statute , the lord should have holden it discharged of the execution . but if tenant for life aliens in fee to him that hath a rent charge issuing out of the land , and the lessor enters , for the forfeiture , he shall not hold it discharged : for the lessor hath the same feesimple he had before the making the lease , and has his own estate , and not the estate which the lessee gave to the feoffee . many think the contrary in the first case ; for his estate in the land was always defeasable . vide charge , rent , execution . discent . a disseisor infeoffes his wives father who dies , so that the land descends upon the wife , if the disseisee may enter , quaere ? the husband surrenders the freehold of his wife to him in reversion , who dies seised , if the wife may enter after the death of her husband ? for there seems to be a discent . if a gift in tail , or lcase for life be made , rendring a rent with a re-entry , for default of payment ; the lessor hath cause of entry , and the estate in tail expire , or lessee for life dies , after a disseisin , or descent , yet the lessor , &c. may enter , for the land was recontinuable at all times . and if tenant for years , with a condition be outed : after the term and a discent cast , the lessor shall enter for the condition broken . lessee for years , the remainder in tail , he in remainder grants in fee , the lessee at turns , the years expire , the grantee enters , and dies seised , tenant in tail dies , the issue may enter , for the grant was but for the life of tenant in tail , and then he died not seised in fee , and if the dying seised had been after the death of tenant in tail . if it will take away the entry , quaere : but if the issue of the issue of the grantee had entred and died seised , the entry had been taken away . if tenant in tail infeoffs his donor , who dies seised , the discent will take away the entry of the issue , quaere ? if there be two sons , and the youngest hath two daughters , the grandfather seised of two acres at common law , and twenty in borough english , gives the two acres with the youngest in frankmarriage , the youngest son dies , the grandfather dies siesed , the twenty . acres shall descend equally to the two daughters , and the two acres shall not be put in hotch potch ; for the custom as well as the descent makes the title . the disseisor dies without heir , his wife enseint , the lord enters , a son is born , the disseisee enters upon the lord. if the entry had been before the birth it had been lawfull , and he remitted . if a stranger abates , the disseisor having issue , or if after abatement a son had been born , the disseisee could not have entred ; for the abator may say that the land descended to the issue whose estate he has . if the tenant makes a feoffment , pending the praecipe against him , the plaintiffe recovers , then the feoffee dies seised , the plaintiffe cannot enter upon the heir ; for the dying seised was after the judgement , & tanta mount , as if the feofment and discent had been both after judgement , and then it had been cleer that the entry had been taken away ; for the discent is the title , and not the feoffment . but if the discent had been hanging the writ , that would not have taken away the entry . but if a recovery be had against tenant for life , and he dies , and he in remainder enters , and dies seised , that shall not take away the entry of the recoveror ; for all the estate is recovered , and he in remainder is as privy as if the action had been brought against him immediately , so of him in reversion . br. ent. cong . 116. the king being seised , a. intrudes , the king grants it away , a. continues in possession , and dies seised , this discent will not take away the entry of the grantee , for then he were without remedy , as if land be devised , and a stranger abates , and dies , that shall not toll the entry of the devisee . discontinuance if land be given to two , and to the heirs of the body of one , and he which hath the estate in tail makes a feoffment , and both die , this is no discontinuance , for any part ; for he was not seised of the estate in tail at the time of the feoffment . if tenant in tail makes a lease for life , the remainder for life , and after releases to him in the remainder , and his heirs , this is a discontinuance . if the first tenant for life dies in the life of tenant in tail . if tenant in tail makes a gift in tail to a. and after releaseth to him in fee , and dies , and a. dies without issue , the issue in tail may enter upon the collaterall heir of a. for the fee was not executed in the life of tenant in tail , though it passed out of him . quaere of all these cases . if the grandfather be tenant in tail , and makes a gift to baron & fem in tail , the husband dies without issue , the grandfather dies , the father releases to the wife , being tenant after possibility , and to her heirs , and dies , the wife dies , the issue cannot enter upon the heir of the wife ; for though it be no discontinuance , yet when the wife came to the fee simple , the fee was executed , and then she died seised in fee , and the discent takes away the entry . but if the wife had been tenant in tail , and then she had died without issue , it had been otherwise ; for then she had not died seised , but of an estate tail in possession , and a fee in reversion , and that will not take away an entry . if tenant in tail infeoffes the wife of the donor , that is a discontinuance . if tenant in tail infeoffes the donor and a stranger , that is a discontinuance of all for the benefit of the stranger . if tenant in tail of a rent grant that in fee , that is no discontinuance , for the grant endures no longer than for his own life . if tenant in tail makes a lease for the life of the lessee , and then disseises him , and makes a feofment in fee , the lessee dies , and tenant in tail dies , that is no discontinuance ; for the fee was not executed by lawfull means . so if tenant in tail makes a lease for life , and grants the reversion , the grantee disseises tenant for life , tenant for life , and tenant in tail die , this is no discontinuance , for the fee was not executed according to the grant. but if tenant in tail makes a lease for her own life , and disseises tenant for life , and makes a feofment , that is no discontinuance ; for by the disseisin he was seised in fee , and the fee was devested out of the donor , and then he was not tenant in tail . the first case seems cleerer , if tenant in tail dies , living tenant for life . if tenant in tail makes a lease for the life of the lessee , who is disseised , and tenant in tail releases to the disseisor without warranty , tenant for life , and tenant in tail die , this is a discontinuance in fee ; for the disseisor had the same fee executed in the life of tenant in tail which was first made , as if he had after released to tenant for life , which would have countervailed an entry and feofment . a. makes a gift in tail to b. who makes a gift in tail to c. who makes a feoffment , and dies without issue . nothing made a discontinuance to the issue of b. but the livery of b. for by that the reversion of the donor was discontinued . but when c. died without issue , that livery is determined , and the discontinuance purged ; and the feofment of c. being a stranger to the first in tail , cannot be a discontinuance , especially when there was but a right of the intall discontinued by the feofment of b. and a right cannot be discontinued . if tenant in tail be disseised , and releases to the disseisor with warranty , and is attainted of felony , and hath his pardon , and dies , that is a discontinuance ; for if he had purchased the land after his pardon , it should have gone to his issue , which proves that the blood between him and his issue is not corrupt , as it is between him and his ancestor ; then seeing the warranty was in being at the time of his death , there is no impediment but that it should descend . disseisor . lord and tenant of twelve acres by twelve pence , the tenant makes a lease of one acre for years , the lessee enfeoffs the lord , he may avow for eleven pence , for though he is a disseisor by the statute , yet to another intent he is in by feoffment ; for if lessee for years infeoffs two , a release to one will inure to both . if there be two disseisors of a house , to which estovers are appendant , and a release is made to one , the estovers remain for part , for the release doth not countervail an entry and feofment . if the lord procures one to disseise the tenant , and then the disseisor ceaseth , and the lord recovers , he shall retain against the disseisee ; for the procurement does not make him a disseisor , 50 e. 3. 2. v. lit. in remit . cont . if the issue in tail procure one to disseise the disseisor of his fa●ther , whose heir is in by descent , against whom the heir recovers , the issue shall retain it . if the disseisor makes a feoffment , and marries with the disseisee , he may enter in his wives right . after a dissent , if the possession comes to the disseiso● , the disseisee may enter , for the action remains to him after the descent . if one disseises tenant for life to the use of him in reversion , and he agrees , if he shall have the new fee , or the ancient ; for now he is a disseisor ab initio . if he had been a disseisor immediately he had gained but a freehold by tort , but now he agrees to that which another hath , and that is a fee. if one jointenant makes a lease for years of his part , a stranger enters , claiming the moity of the other , who waives the possession , that is a disseisin to him , though the termer continues in possession ; for they were tenants in common . otherwise , if the termor had waived the possession , and the other had continued in ; for the reversioner cannot be out of possession when his joint companion held in . divorce . a reversion is granted to baron & fem , and to a single man and woman in fee , the single persons marry and the tenant atturns , then the single man and woman are divorced , the baron & fem shall have but a third part . land is given to i. and a. his wife , and to another baron & fem in fee , they are disseised , and i. releases to the disseisor , and then i. and a. are divorced , for cause which hath relation . a. and the baron & fem bring an assise , leaving out i. some think it is maintainable ; for when i. and a. are divorced , yet the other baron & fem shall hold the moity to them ; for being the purchase took effect , and vested by the livery , and at that time the baron & fem not being divorced took a moity , which remains still . a lease for life is made to a fem sole , she marries , the lessor grants the reversion , the husband atturns , and after they are divorced , yet the wife cannot avoid the atturnment . a woman is divorced , upon a surmise made by the husband , of a precontract upon her part : the wife being seised of land makes her will , and devises it away , an appeal then depending by the husband to defeat the divorce . quaere , if the appeal be not void , being sued by the baron ; for he is not the party grieved ; for he was the first agent in the divorce , and therefore it ought to have ben sued by the wife , and so the devise stands good . 2 r. 2. quare impedit . 143. dy. 140. p. 46.4 h. 7. peckams case , 10 h. 7. 12. 24 h. 8. ravishment . 11. 39. e. 3. 33. a man marries an insidel , the wife commits adultery , and then becomes a proselite to the christian religion . quaere , if this adultery , committed before her conversion , be a sufficient cause whereupon the husband may sue a divorce ? dower . land is given to husband and wife in speciall tail , reserving a rent , the wife of the donor brings dower against the heir of the husband , for the third part of the rent . a. having a daughter dies , his wife enseint , with a son , the daughter disclaims , the lord recovers , in right of the disclaimer , a son is born , the lord dies , and the land descends to his son , the wife of the lord brings dower against him . a. grants a rent charge in fee , to commence after the death of the grantee , who dies , the wife of the grantee shall not be endowed , and yet the son takes as heir . but it was not in the father , and it shall not be assetts in the heir . but if the rent had been granted upon condition , that if the grantee , or his heirs die , their issue within age , that the rent should cease until the issue comes of full age , if the grantee dies , his issue within age , his wife shall be endowed . but the execution shall cease until the heir be of full age . as if the tenant be in ward to the lord , and the lord marries , and dies possest of the ward , his wife shall be endowed of the seignory , which was in suspence ; for the freehold was in the husband , so in the last case before , 24 e. 3. the wife of the father brought a writ of dower against the heir within age , and recovered , but cessat executio until , &c. if the heir doth improve the land , the wife shall recover her dower of it as it is . but if it be by building , or other collaterall improvement , 't is otherwise . quaere , if the heir suffers the houses to decay upon the land , if the wife shall be endowed according to the value it was in the possession of her husband , or as it is now , and shall be allow'd in damages ? the son of the disseisor endows his wife ex assensu patris , the disseisee releaseth to the disseisor , if the dower shall be avoided ? the tenant ceases for two years , and after marries , the lord recovers in a cessavit , the tenant dies , his wife shall be endowed against the lord. if a rent be reserved upon a lease for life the wife shall not have dower ; for he hath not a fee , neither shall the heir have an assize of mortdancestor . if a disseisor grants a rent charge , and is disseised , and a release is made to the second disseisor , the wife shall not be endowed , for her dower is executory . if a woman hath cause to have dower of one and the same acre , as wife to a. and b. if she be barr'd as wife to a. yet she shall have it as wife tp b. if a lease be made to baron & fem for the life of the husband the remainder to the heirs of the husband , who dies , the wife shall not have dower ; for she cannot disagree to an estate determined . if land be given to baron & fem in fee , the husband makes a feoffment , an ancestor collateral of the wife , releases with warranty , and dies , the husband dies , the wife cannot disagree , and claim her dower where the estate was bound , and her right determined by the warranty . if a villaine purchase ●an estate in tail , the lord enters , and dies , his wife shall not have dower ; for being the law gave unto him his entry , the law will not give more to him than the villein might lawfully give , which was an estate for his own life . if tenant in tail , the reversion in the king be disseised , the disseisor dies , his wife shall not recover her dower , no more than if a discontinuance takes away an entry . if there be two tenants in common , and one hath a wife , and the reversion is granted to both of them , and he which hath the wife dies , the wife shall be endowed of a third part of a fourth part , if the reversion passed severally ; for then the reversion and the fee are executed for the fourth part . a gift in tail is made rendring , during the life of the donor , socage tenure , and after his death knight service , the wife shall be endowed of the knights service . if a rent be granted for life , and after by another deed the grantor releases all his right in the rent , and if it be behind , that the grantee and his heirs shall distrain , the wife shall not be endowed ; for it is still but a rent seck , and the distress a penalty , 8 h. 4.18 . a disseisor having a wife makes a lease for life , the lessee makes a lease to the wife for her life , the husband accepts the deed , and agrees to it , the husband dies , the wife disagrees to the lease , the lessor enters against whom she brings dower . it is cleer , if a disseisor , having a wife , makes a lease to a. for life , who makes a lease to b. for life , and the disseisee releaseth to b. the wife of the disseisor shall be endowed ; for the release does not countervail an entry and feofment . if a disseisor be disseised , and the disseisee releaseth to the second disseisor , that takes away the dower of the first disseisors wife . but in the first casethe husband is remitted , and no possession in the wife whereupon a release may operate , and so she may disagree and claim her dower . if an estate be confirmed in a rent seek , and if it be behind , that it shall be lawfull for him and his heirs to distrain , the wife shall not have dower ; for it is stil but a rent seck , and the distresse but a penalty . tenant in tail of a rent discontinues it with warranty , the issue having a wife , is barr'd in a formedon by the warranty and assetts , yet his wife shall be endowed ; for the grant was void by the death of tenant in tail , and the issue had possession in law , and might have distrained , and though he determined his election , yet it shall not prejudice his wife . if the husband disagrees to a remainder , the wife shall not be endowed , otherwise to a dissent . if a rent charge is granted , the grantee dies , the heir cannot prevent the wife of her dower by bringing his writ of annuity . the son endows his wise ex assensu patris , the son is attainted . if she shall retain her dower ? some think she shall not ; for she claims from the son , and ne unques accouple in loyall matrimony is a good plea. if tenant for life surrrenders upon condition , and the lessor marries and dies , the wife is endowed against the heir , the lessee enters for the condition broken , the wife shall not have the reversion ; for the freehold which was the wives title is taken away by the entry . if the grandmother recovers dower against the mother , she hath taken away all the estate of the mother ; for she comes in upon an eigne title . but otherwise if the father had been infeoffed . so if the lessor disseiseth his tenant for life , and marries , and dies , and the wife is endowed by the heir , the lessee enters &c. and if lessee for life had died before the wife had been endowed , she shall not be , endowed ; for the heir was remitted , or if she had been endowed , and the lessee had died , the heir shall out her . if the mother recovers dower against the son , & the grandmother recovers dower against the mother , and dies , the son shal enter and not the mother . but if the dower of the mother had been by assignment of the heir , it had been otherwise . for he shal be concluded by his own assignment , quaere ? for some think the reversion is not taken away from the mother in casu penultimo . if a feoffment be made to a. to the use of b. the wife of a. shall be endowed . a. marries and fells his land , his wife arrives at her age of nine years , the husband dies , she shall be endowed ; though the husband had no possession when she was nine years old : for if the husband aliens his land , and after the wife is attainted and pardoned , the husband dies , she shall recover her dower . if a woman elopes , the husband aliens his land , and after they are reconciled , she shall have her dower ; for in these cases the title of dower is not consummate until the death of the husband . but if a man marries an alien , and then sells his land , and she is endenized , and the husband dies , she shall not have her dower . if a tenancy escheats , the wife of the lord shall not be endowed of the seignory . a woman intitled to have dower , disseiseth the tenant , and she is disseised by another , to whom the disseisee releaseth , she shall not have her dower ; for her dower was suspended in the possession of the disseisor as well as if it had been in her own possession ; for the disseisor is in as the woman was , and though her dower should have been revived if the disseisee had entred ; yet this release doth not amount to an entry and feoffment . if land be given to a. and his heirs males as long as he hath issue female of his body , a. dyes having a daughter , the wife is endowed , and the daughter dies without issue , the wife loseth her dower ; for there is a difference between a condition in deed , and in law ; for if the issue of tenant in tail dies without issue ; yet his wife shall keep her dower ; for it is a condition in law. and yet if an estate tail be made upon condition , that if the donee dies without issue , that it shall be lawful for the donor to re-enter , the wife of the donee shall not lose her dower ; for the condition does not take effect untill the estate be determined by the condition in law , upon which determination she is endowable . a. seised in fee grants a rent charge , and aliens , and takes an estate in fee-simple , or in tail , and dies seised , the wife recovers in dower , and then she surmises that her husband died seised , and prays a writ of enquiry of damages , 14. h. 8. 6. she shall hold it charged ; for she hath admitted her self dowable of the second estate . a. has a wife , and is seised of four acres , and makes a feofment of three of the acres with warranty , and dies , the wife brings her writ of dower against the feoffee , and he vouches the heir . now if the wife may stop the judgement , viz. that she shall not recover immediately against the heir is the question ; for then she hath lost her dower of the fourth acre , as some think she hath , because it was her own folly that she did first recover her dower of that . election . if a rent be granted in fee , and the grantee grants it over for yeares , the grantee for years hath no remedy , if it be denied him ; for he shall not have a writ of annuity ; for the election is given only to the first grantee and his heirs , and the election runs only in privity . if two acres are given to a. habendum , the one in fee , and the other for life , and a. grants both over , viz. the one in fee , and the other for his own life . if the second feoffee shall have election ? if a. had committed wast in both , or had made a feoffment of both , the lessor might have entred into which he had pleased . if i give two acres , the one in fee , the other for life , and the donee dies without heir , quaere , if the lord shall have election ? if a lease be made of two acres , the remainder of one to a. and of the other to b. and makes no certain description of either . he who first enters after the death of tenant for life , shall have the election . if a lease be made of two acres , habendum the one in fee , and the other for life , reserving a rent , quaere how the lord shall avow ? but his executor hath no remedy by the statute of 31 h. 8. if a. grants to another one of his horses , the grantee dies before his election , his executor shall choose ; but yet there was no property in the grantee before election . if two acres are granted , the one in tail , and the other in fee , the heir of the donee shall make his election . if twenty shillings , or a robe is yearly granted at the feast of easter , at the day , or before the day , the grantee hath election . if it had been by obligation , the obligor shall have the election after the day . but if one grants to another twenty loads of wood , or twenty oaks yearly at the day or after , the election is in the grantee , for it lies in prender , so that there is a a difference betwixt a thing in payment and in prender . 13 e. 4. 4. if a lease for life be made , reserving a rent , or a robe at the day , it is in election of the lessee , but after in the lessors . a reversion is granted to one for life , and before atturnment it is granted to him in fee , the grantee may choose his estate . if an acre is given habendum in fee , or in tail , the donee shall choose . if one be bound , or covenants to infeoffe b. of the mannor of d. or s. the obligor , &c. hath the election ; for he is the first agent . but if i give my black horse , or white horse , there the donee hath the election ; for there he is the first agent . but otherwise if the words had been that i should deliver also . if i infeoffe a. and b. and warrant the land to the one or the other , there is no election given to either , and therefore void . but if one be bound to me to pay to a. or b. there the obligor hath the election ; for he is the first agent , but in the other case it ought first to be demanded . a. gives two acres , habend . the one for life , the other in fee , reserving a rent or a robe , and does not distinguish which he shall have for life , and which in fee. b. makes a feoffment of both , the rent is behind . a. distrains in one only , and makes an avowry for the robe in that acre . quere bien . if a rent be issuing out of two acres , the tenant grants one to another , the grantee may choose in which he will distrain for all . a. disseises b. of twenty acres in . c. b. brings a writ of entry sur disseisin in ten acres , and recovers , and comes upon the land , and enters into one acre in the name of all he recovered , and thereof presently infeoffs d. who enters into the other nine acres , a. brings an assize for those nine acres , and it is maintainable ; for by the entry of b. into one acre in the name of all he recovered , nothing vested in him but that acre ; for it was a determination of his election which nine acres he would have , for it was incertain , and then nothing passed by the feoffment but that one acre , for the feoffee being a stranger shall not make election , which runs in privity . emblements . a woman hath title to have dower of three acres , and after the heir sows one of the acres , and she hath that acre assigned to her in dower . quaere if she shal have the emblements ; for , no folly can be imputed to the heir ; for the possession was cast upon him by the law , and when he did sow the land it was uncertain to him whether ever the wife would recover her dower , neither could he guesse which acre would be assigned her in dower . and the heir shall take advantage of this incertainty . as if the condition be performed by the mortgagor , yet the mortgagee shall have the emblements . if a man devise that his executors shall sell his land , and before the sale the heir sows the land , and then the executors sell it , yet the heir shall have the emblements , 36 h. 6. 36. if the heir sows the land , and is disseised before severance , and the disseisor endows the wife of the father . some think the heir shall not have the emblements ; for she is supposed to be in , in the post by the disseisor , quaere . entry . grandfather , father , and son. the father disseiseth the grandfather and dies , the son endows the mother , the grandfather dies , the son may enter upon the mother ; for he hath a new right descended to him from the grandfather , for the grandfather might have entred upon the mother , so shall his heir . but if there be great grandfather , grandfather , father , and son , and the grandfather disseises the great grandfather , and the father dies , and the son endows the wife of the father , and the great grandfather dies , the son shall not out the tenant in dower ; for the great grandfather could not enter by reason of the descent , no more can his heir . if a disseisor makes a lease for life , the remainder in fee , and the disseisee purchaseth the remainder , and grants it over , he cannot enter upon the lessee for life , for then he should defear his own grant. a feoffment is made , upon condition to re-infeoffe , the feoffee makes a feoffment to his use . if the feoffor may enter without request ? if a. makes a feoffment , reserving a rent , and if it be behind a re-entry , after he releaseth the rent when he hath title or entry , he cannot enter after , or if he granted the rent over after his title of entry . the eldest son cannot enter where the reversion is descended to the youngest by the custom . a seignory is granted in tail , the tenant aliens in mortmain , the grantee dies within the year without issue , the donor shall enter , as well as he in remainder ; for there is a privity of estate . if two acres descend to a. and a stranger abates into one , and a. enters into the other in the name of both , that shall not gain the possession of the other . but otherwise if he had entred into that acre wherein the abatement was in the name of both . tenant for life of a seignory , a tenancy escheats , a stranger intrudes , tenant for life dies before entry , he in reversion may enter , as upon the disseisor of his tenant , but if he dye and his heir in by descent , he cannot enter . after a discent the disseisee abates , the wife of the disseisor recovers dower by confession , if the disseisee may enter ? a lease for life is made , rendring a rent , with a re-entry , for default of payment , the lessor hath cause of entry , the lessee is disseised , and a discent cast , the lessee dies , the lessor may enter ; for the land was alwayes recontinuable by entry . if lessee for years upon condition be outed after the term , and a dissent cast , the lessor shall enter for breach of the condition . escheat . if lessee for yeares makes a feoffment , and the lessor dies without heir , the lord shall not enter for the escheat ; for it is a good feoffment against him . a. infeoffs b. so long as paul's steeple shall stand . b. dies without heir , if the land shall escheat ? vide attainder & bastard . estate . if a lease be made so long as a. and b. shall be justices , if one of them be removed , the estate is determined ; for the time was in the copulative , and a collaterall determination . but if it had been during their lives , and one of them had died , the estate had continued . a. hath issue a son and a daughter , land is given to the daughter , and to her heirs females of the body of the father begotten , she hath not estate tail but for life only . inst . if a lease be made to a dean and chapter for their lives , they shall have a fee ; for they never die . if a rent of twenty shillings a year be granted until the grantee shall receive twenty pound , the grantee hath an estate but for twenty years ; for it is certain . so if it had been granted untill a. shall arive at his full age , he takes but for years . if land of twenty shillings a year value be granted until he shall receive twenty pounds out of the issue and profits , and livery be made , he takes an estate for life , by reason of the uncertainty of the profits . if a. makes a lease for life , reserving a rent , and if it be behind , that he shall enter and retain , til he hath received the rent out of the profits of the land , all the estate of the lessee is defeated . 30 e. 3. 7. if a. hath two daughters , and the eldest gives land to the youngest , and to the heirs of the body of the father begotten , there passeth but an estate for life ; for the donor is one of the heirs , and it cannot be an estate tail in her self of her own making , and it cannot inure to the other ; for she is not heir . but if it had been given to the youngest , the eldest being born out of the realm , it shall go to him . estopple . if a praecipe be brought against the father of the sons land , and he loseth , and the son after the decease of the father brings a writ of error to reverse the recovery , and judgement is affirmed , the recoveror may enter upon the son ; for by bringing his writ of error , he is estopped to say , that his father was not seised . if an infant delivers a deed which bears date two years after , and at the end of the two years he is of full age , he shall not be estopped to shew the delivery before the date , neither shall a fem covert . husband and wife seised , and to the heirs of the husband , the husband makes a gift in tail , the wife recovers against the donee in a cui in vita , supposing that she hath a fee , and dies , and the donee dies , and the issue of the husband and wife brings a forme●on in reverter and though he was heir to the wife , he shall be estopped to say , that he had a lesser estate than in fee , yet the issue , who claims by the husband shall not be estopped . vide dower . estover . a. seised of an house on the part of his mother , and estovers are granted to him in fee , and he dies without issue , the estovers are extinct . if there be two disseisors of a house , and they have estovers granted to them to be imploied in the same house , and the disseisee releaseth to one , the estovers remain for part . if one hath estovers in certain in ten acres of wood , and five of them descend to him , he shall not take the whole out of the residue . exchange . if a. exchanges twenty acres with b. for ten of equall value b. is impleaded , and loseth ten acres , vouching a. and recovering in value , she shall have all the ten acres again which he gave to a. and retain the ten acres residue without warranty for the folly of a. if a. exchangeth land with b. in fee , who infeoffe a stranger , one enters into the land of a. by title paramount , he cannot enter upon the feoffee of b ; for the privity of the exchange is determined by the feofment . if a. and b. exchange land , and a. makes a lease for life , b. is impleaded , and recovers in a warrantia chartae , and hath execution of other land , the tenant for life dies , a. enters , upon whom a stranger enters by title paramount , he hath no remedy for the land rendred in value ; for that doth not go in privity as the exchange doth . if a. and b. exchange land , and a. dies in a praecipe against b. he vouches the heir of a. who enters into warranty , and cannot bar the demandant , by which he recovers ; and b. over in value , the demandant enters , if b. may enter upon the heir , or is chased to his habere facias ad valentiam ? some think he may enter ; for a descent is not material against a condition , as this is ; for if there had been an express condition , he might have entred , and so he may now . but if part of the land exchanged had been recovered against b. he could not have entred , for he shall not be his own judge of the portion . but where all is recovered , the whole exchange is avoided , and therefore he may enter . if one exchangee makes a feofment of his part , the other shall not enter upon the feoffee , for the condition is determined and dissolved . but quaere , if after the feofment the other may vouch ? if two acres are exchanged for a mannor , and a stranger enters by title paramount into one acre , he shall enter into all the mannor , for it is an entire thing . and quaere if he shall retain the other acre ? execution . if tenant in tail with a remainder over with vvarranty recovers in value , and dies before execution , he in remainder shall sue execution ; because he is privy . if tenant in tail dies without issue . if a man recovers in value land in burrough english . quaere , if the youngest son shall sue execution ? but if the issue in tail recovers in a formedon , and dies without issue before execution , the donor cannot enter , or have execution . if tenant in tail discontinues , and dies leaving a daughter , his wife privement enseint with a son , the daughter recovers in a formedon and dies , the son born cannot enter , or have execution . but if the issue in tail recovers against the discontinuee , and after is attainted of felony , his issue shall enter , or sue execution , for he is privy in estate . tenant in tail recovers in value by voucher of the donor , and is attainted of felony , his issue shall not have execution . if the son hath the land of the father , and of another in execution upon a statute , and the land descend from the father to the son , the whole execution is discharged . in judgement for debt the party shall not have execution , but of that land only which he had at the time of the judgement , and not at the time of the purchase of the writ . but in debt against the heir , if he aliens hanging the writ , it shall be liable to the execution , although the alienation was before the judgement ; for the action was conceived against him in consideration of the land ; but in the first case it was in respect of the person . the conisor of a statute is in execution , and his land also , the conisee releases to him all debts , the execution is discharged by this release ; for the debt was in being , until it was levied of the profits , but though the execution be discharged by the party , yet until it be discharged in fact , if the goaler had suffered him to go at large , he could not have said but that he was in execution . executors . if a lease for years be made , reserving a rent upon condition of re-entry for not payment . if the executor breaks the condition , so that the lessor re-enters , it is a devastavit in them , otherwise if the condition were performable on the part of the lessor , br. extinguishment 54. for every voluntary act of the executor , by which , the goods of the testator are consumed without any benefit to the testator , is a devastavit . but if an executor having such a term as executor purchaseth the reversion , that is not a devastavit ; for the term , as to assetts is in being still . if a man mortgages his term and dies , and his executors do not redeem it ; some think it is a devastavit . if they have assetts in their hands wherewith to redeem it , and the term be better than the price of the redemption , so if an executor sells a term under the value , by which the creditors lose their debts , this , some think , is a devastavit . but if a man be possest of a term , and devises it to his executors to be sold meliori modo quo possunt for payment of his debts , they sell it under the value , that is no devastavit ; for it may be it was the best price they could get . if husband and wife make a lease of the wives land , reserving a rent , the husband distreins and avows , and has a return and dies , the cattle are discharged ; for the executors cannot have them ; for they are but as a pledge , and being the executors cannot pretend any right to the duty , they cannot detain the pledge ; for the wife is to have the duty . vide 33 h. 6. 48. if a rent charge be granted in fee , the grantee dies without heir , the executors shall not have an action of debt for the arrerages . but if the grantee had brought a writ of annuity , and recovered , then the executors should have an action of debt for the arrerages ; for if the inheritance of a rent determins , the arrerages are extinct , otherwise of an annuity . if a grant be made of a robe , or twenty shillings , and the grantee dies before election , his executors cannot demand the arrears . the executors of a grantee for years of a rent charge shall have election , either to have an action of debt , or annuity . if a man be bound in twenty pound , and his executors have but ten pound , an action of debt lies against the heir for all ; 〈◊〉 if he chooseth the executor he cannot sue the heir for the remnant . if an obligor in twenty pound hath goods to the value of ten pounds only , and makes the obligee his executor , he shall retain that as parcell of the duty , and for the rest bring his action against the heir ; for it is by the act of the law that the duty is apporcioned . if a. by deed gives the mannor of d. with all the woods to b. if livery be not made , the executors shall have the woods . if there be two wills , and the executor of the last refuseth before the ordinary , yet the first is revoked by the intent of the testator . if the executor releases a duty of the testator , this is so much an administration , so that he cannot after refuse , but yet if he doth after avoid the release , he may refuse . a lease for life is made , rendring a rent at mich : and the annunc : the land is sowen at mich : and the lessee dies , if the executors shall have the land untill the corn be ripe , if they ought to pay the rent ? some think the lessor may have an action upon the case ; for the executors have the profits of the land , &c. and no fault in the lessor : as if a gift in tail be made , reserving thirty shillings , and the donee dies without issue and the wife is endowed , she shall pay ten shilshillings , and yet the estate is determined , but she claims under the estate of the husband . a man makes a lease for life reserving a rent , upon condition that if the rent be behind , that the lessor shall enter , and retain untill he be satisfied of the arrears , he enters and dies , his executors shall not retain ; for the arrears were not chattles at the beginning , and therefore they shall not ●etain the land as a gage , as they shall do for the double value ; for that was a chattle at the beginning . but in the first case the arrears are given to the executors by the statute of 32 h. 8. yet being the arrears were no chattles at the first , and so not due to them by their own nature , therefore they shall not retain . as in 15 e. 4. 10. in rescous there it is said , if the defendant in a replevin avows for a rent due to him and his wife , and upon that he hath a return and dies , the tenant shall have his cattle back again without any agreement , because the executors could not have the distresse , being they could not have the rent , but the wife was to have it . if an executor delivers a legacy upon condition , it is no good delivery . the debtee and another are executors to the debtor : the debtee recovers against the other , and after administers with the other , and then sues execution by scire facias : if the other shall have an audita querela ? and in whose name it shall be sued , or if the property shall be altered in the recoveror ? or if execution be discharged ? but some think that execution cannot be stopt , but the recoveror shall have it to the use of the testator . vide condition & debt . extinguishment . the tenant holds ten acres by ten pence , and makes a feofment of one , the lord grants the rent , reserving the fealty , the tenant atturns , the grantee releaseth all his right in the land to the tenant , yet he shall have one penny . if the tenant deviseth , that the lord shall make a feoffment of the tenancy , which is done , yet the seignory is not extinct , no more than the rent charge shall be where the grantee makes livery as atturny to the tenant of the land , because he doth it in auter droit . a rent charge is granted upon condition , the grantor makes a feofment , the condition is broke , the rent is arrear , if the condition be extinct by the feoffment ; for the grantor cannot have it in the same manner , &c. but if the condition had been that the rent shall cease upon the non performance , there the feoffee shall take advantage of it ; for the rent doth ipso facto extinguish , as a lease for years upon condition to be void . the lord having the ward of the mesne enters into the tenancy for mortmain , the seignory and mesnalty are extinct . if the tenant infeoffes the lord to the use of a. or if the lord infeoffs the tenant of the mannor to the use of a. if the seignory be extinct ? note the case . vide condition , release , estovers , arrerages . feoffment . tenant for life , and he in the reversion join in a feoffment of all their land and tenements lying in the town where the land lies that is in lease , and make a letter of atturny to make livery , this is a grant of the estate for life , and also of the reversion . but if they had made a feoffment of the land of the lessee only , then it will be the feofment of tenant for life , and the confirmation of him in remainder . if a man makes a feoffment to a stranger and to his own wife , and makes livery to the stranger in the name of both , it will be good to the stranger , and void as to the wife . tenant for life infeoffs the wife of him in reversion , with a letter of atturny to the lessor to deliver seisin , who does it . quaere if he be seised in his own or his wives right ? for he is remitted by the forfeiture . if tenant in tail infeoffs the wife of the donor , that is a discontinuance . a feoffment is made by one deed in fee , and by another in tail to the same person , and livery made according to both deeds , it shall inure by moities ; for otherwise the livery cannot inure upon each deed : for if he should have all the land in tail , the remainder in fee , then the livery shall have only operation upon the estate tail , and the other shall be but a confirmation , and then it shall not inure upon both the deeds , but upon one . and if livery had been made only upon the deed in tail after the delivery of both deeds there should be tenant in tail , the remainder in fee. if one jointenant enfeoffs his companion and a stranger , the stranger takes all . if tenant in tail enfeoffs the donor , he doth not give him the fee. vide extinguishment . fem covert . a man conveyes land to a fem sole upon condition , that she payes a sum or money by a day , she marries , and the money is not paid , whereby her estate is defeated , this will binde her after her husbands death . but if the fem be tenant for life , and the husband makes a feofment , and the lessor enters , yet the wife shall have the land after the death of her husband ; for it is but a condition in law : but if the condition be by statute , as in a cessavit or wast , where there is a recovery , there it will bind her after the death of her husband . but if the condition be given by statute and no recovery , as in mortmain , then the wife shall not be bound . some conditions in law shall bind the wife if the husband breaks them , as a condition annext to the grant of a parke , an office , or a liberty . if a fem covert delivers an obligation bearing date two years after , and at the end of the two years her husband is dead , she shall not be estopt to shew that the delivery was before the date . fem sole . if a fem sole tenant in a praecipe marries , pending the writ , all the rest of the pleadings and process shall be against the wife only . if a fem sole at mich : makes a writing dated at christmas , and before christmas she marries and the husband dies , she may say that at the time of the date she was a fem covert , and he shall not aver the delivery before . fine . tenant in tail levies a fine , and takes back an estate in fee upon condition , and dies , the heir enters , and is remitted , the proclamations passe ; if that shall take away the remitter , and if the condition remain ? if the wife levy a fine as a fem sole , and the husband enters , all the inheritance is revoked . forfeiture . lessee for years is received by the statute of glocester , a stranger recovers against him in a praecipe , and confirms the estate of the lessee for life , the lessor avoids the recovery by error , and enters upon the lessee , some think he cannot . a. makes a lease for life and dies , leaving his wife enseint with a son , the tenant makes a feoffment , the son is born , if he shall enter for the forfeiture . quaere ? a lease is made upon condition , that if the lessee commits wast , that his estate shall cease , if a stranger commits wast it is no forfeiture of his lease . if tenant for life infeoffs the wife of the lessor with a letter of atturney to the lessor to deliver seisin , which is done accordingly . quaere , if this be a forfeiture ? some think it is . a lease is made to e. and f. for their lives , f. grants to a stranger for the life of e. that is a forfeiture of his estate ; for he had not an estate for the life of e. but in respect of the jointure , and an estate for the life of e. doth not passe from the lessor in the moity , but upon condition in law , that the jointure remains , and now he hath given it for the life of e. absolutely : but if both of them had made a lease for the life of e. that had not been a forfeiture , causa patet . if a lease for life be made upon condition , that the lessee shall infeoffe a. which is done , the lessor may enter for breach of the condition in law , scilicet the forfeiture . tenant for life grants over his estate upon condition after title of entry , the grantee makes a feoffment , the lessor enters for the forfeiture , some think the lessor may enter upon him for the title of entry ; for the forfeiture is by the common law , which shall not destroy another title comming in respect of the estate . land is given to a man and a fem sole , and to the woman in speciall tail , they marry and have issue , the husband aliens a moity and dies , the issue dies without issue , if the wife may enter into the moity for the forfeiture ? for now she is tenant in tayl after possibility , in which case she hath but a freehold in the remainder , otherwise if her estate had been in tail . land is devised to a. for life , the remainder to him that shall be his first son , the remainder in fee , a. aliens in fee , if he in the remainder may enter for the forfeiture . quaere ? frankmarriage . three jointenants , one of them gives his part with his daughter in frankmarriage to one of his companions , and by the same deed releaseth to them in frankmarriage , and makes livery , some think that is a good gift in frankmarriage for this reason , that although one jointenant cannot infeoffe his companion , yet his companion and another he may , and the livery made to the other shall vest the land in both , and that is for the advantage of the third , as in gascoigues case , 7 h. 6. 3. it was not a surrender for the advantage of the third . nor in 27 h 7. 41. for the advantage of the husband , so it shall not be void here for the advantage of the third person . but others think the contrary , because the husband cannot take it immediately from his companion , and for him it is void , and good for his wife . as if a man makes a feoffment to a stranger & his own wife , if livery be made to the stranger it will operate but to the benefit of the stranger , and will be void for the wife . so here it is good for the wife , & the release is good for the husband . further , if one jointenant cannot infeoffe his companion , as it is holden in 10 e. 4. then it will inure severally , viz. to his companion as a release , and to his wife for life ; for if it be no good frankmarriage , then , 't is the estate for life , and so it was resolved between webb & porter in 24 eliz. and then they take in common , and severally and no frankmarriage . grant. tenant in tail holds by a rent , the donor grants the services , nothing passeth ; for the rent cannot passe but as a rent service . lord and tenant by rent and fealty , the lord grants the services of the tenant saving the fealty . nothing passes by that grant ; for the rent cannot pass but as a rent service ; for a rent charge ; or rent seck will not pass by those words . the same words cannot be a grant and a confirmation too . if a disseisor grants a rent charge to the disseisee and he grants it over , and after re-enters , he shall hold it discharged , causa qua supra . if the lord marries the tenant , or by any means hath as high an estate in the tenancy as he hath in the seignory , he cannot grant the seignory over . if the tenant be in ward , or disclaims , the lord may grant over the seignory . but if the tenant be tenant for life of the seignory , and the seignory is granted to him in fee , he cannot grant it over ; for he never had possession of it . but if he had possession , and it is suspended by taking an estate for life , yet he may grant it over . if the parson and ordinary grant a rent charge to the patron , the successor shall avoid it ; for the assent of the patron ought to be expresse , where the successor shall be bound . but if they had all granted it to a. who had granted it to the patron , that had been good . if a rent be granted for life , and by another deed it is granted , that it shall be lawfull for the grantee and his heirs to distrain for the same rent , it must be a rent of the same value ; for the rent determins by his death . so if the king grants to the mayor and commonalty of d. the same liberties which the mayor , &c. of l. hath . it shall be intended such liberties . a. makes a lease for life , reserving the first four years a rose , and after a yearly rent of twenty shillings , the lessor grants the twenty shillings to commence after the end of the four years , the grant is void ; for it is all but one rent , and then if the grant should be good the grantor should have a term in the rose for four years , whereas before it was a freehold ; and then it is no more but that a man hath a rent in fee , and grants it after four years , that grant is void , otherwise of a rent created de novo . 8 h. 7. 3. a. seised of a rent in fee grants it to one for twenty years from the time of the atturnment of the tenant , and dies , the tenant atturns , if this be a good grant. quaere ? gavel kind . a lord in gavel kind hath two sons , the tenant aliens in mortmain , the lord dies , the eldest son enters into both parts , the seignory shall descend as the tenancy . but now the land ( admitting a licence had been obtained ) being aliened in mortmain , the custom is extinct . a. seised of gavel kind land is impleaded , and vouches , the vouchee enters into warranty , the tenant dies , having two sons , if the eldest alone shall sue execution . quaere ? habendum . a rent is granted to two habendum , to the one until he be married , and to the other until he is advanced to ten pounds per annum . quaere , if they be tenants in common or jointenants , and when one performs the condition , if the other shall have all ? so if a rent is granted to two habendum , to the one for his life , and to the other for his life , if they be tenants in common ? vide baron & fem. harriot . a fem lessee for life by the custome of a mannor marries by license ; the husband dies , the lord shall not have a harriot , for there is no change of his tenant . so if land be let to husband and wife for their lives , and the husband dies , the lord shall not have harriot for the same reason . if a fem lessee for life marries , and she dies , the lord shall not have a harriot , for she had no chattles : and the custome may be reasonable , if in such case the husband dies where the wife is seised , that he shall pay a harriot , for if the wife dies , there is none due . if the tenant devises all his goods , yet the lord shall have his harriot , for the devise takes effect after the death . if a man hath two horses at the time of his death , one is a young one , and the other worth forty shillings , and the lord doth not seise until two years after the death of the tenant , and the youngest becomes worth five pounds , the lord shall not have him ; for he had a property presently by the death of the tenant in the other . a cow hath three calves before the seisure of the lord , the lord may seise them with the cow. quaere . husband and wife and the son purchase to them and to the heirs of the body of the son begotten , the husband dies , the lord shall not have a harriot . 24 e. 3. husband and wife purchase land , to them and to the heirs of the husband , who dies , the lord shall not have a harriot . heir . a rent is granted to commence after the death of the grantee the heir shall take it by descent . a. makes a feossment upon condition , and if it be broke , that it shall be lawfull for him to reenter during his life , he shall enter by expresse reservation , and after his death his heir shall enter by the provision of the law. if an encroachment of services be made upon the husband , if the wife be endowed she shall not be contributory , but the heir cannot avoid it . a seignory is granted for years , the rent being behind , the tenant dies , the years expire , if the grantee shall have debt against the heir of the tenant for the rent due before and after the death of the tenant ? some say the heir shall not be charged , unless the tenant had bound himself and his heirs by express words , and it shall not be esteemed the proper debt of the heir . if a. hath a daughter , who hath a son , a remainder is limited to the right heirs females of the body of a. the son shall take the remainder , for he is a purchaser ; but he shall not have the land by descent which was given to a. and the heirs females of his body , 20 h. 6. 43. p. newton . lessee for life the remainder to the right heirs of a. who hath a son , who dies without issue , the land shall descend to the heirs on the part of the father , for the son takes by purchase , and as heir to a. so that the heir of a. must take it . if land be given to a man and to his heirs on the part of his mother begotten , and his mother is dead , and he dies without issue , the heir on the part of his father shall take . quaere ? if a man makes a gift in tail of land on the part of his mother , reserving a rent , and dies without issue , the heir on the part of the mother shall have the rent as incident to the reversion . if a man binds himself and his heirs in twenty pounds and dies , and his executors have ten pounds onely , an action of debt lies against the heir for all ; for if the creditor makes choice of the executor he cannot have any remedy against the heir for the rest . if the obligor makes the obligee his executor , and leaves ten pound and the debt was twenty , he may detain that and bring an action of debt against the heir for the rest ; for it is a apporcioned by the act in law. if land be given to one and the heirs males of his body , the remainder to the heirs females of his body , the daughter of the son shall not have the land. if land be given to one , and the heirs males of his body , and to the heirs females of his body , if he hath issue male and female , they shall take by moities by descent severally . if a woman hath three sons by severall husbands , and land is given to her and to the heirs of her body by the first and second husband begotten , the two sons shall take severally by moities , and yet the mother had an estate . a. having two daughters , one is attainted of felony , a remainder is limited to the heirs of a. the other shall take nothing . if a remainder be limited to the heirs of b. who hath a son who is attainted , the remainder is void , and the fee rests in lessor . land is given to a. for life , the remainder to b. for life , the remainder to the heirs of a. who dies , b. enters and dies , a stranger abates , the heir of a. shall have a writ of right upon the possession of a. and if land be given to c. and d. and to the heirs of c. who dies , and a recovery is had against d. and he dies , the heir of c. shall have a writ of right of all the land. a. binds himself and his heirs in twenty pounds , and dies , the executors have assetts , the obligee releaseth to the heir all actions of debt , the executors pay the assetts to other creditors , the obligee may have an action of debt against the heir ; for at the time of the release he was not intitled to have an action against him , but if the executors or the heir had no assetts at the time of the release , and after the heir recovers assetts , the release will bar him . if a. makes a feoffment of land which he hath on the part of his mother , to the use of himself and his heirs , it shall be to the use of the heirs on the part of his father , if he dies without issue . a fem sole hath a rent seck , and marries , the tenant of the land grants to the husband and his heirs to distrain for the rent , the husband and wife die without issue , the distress is extinct ; for the heirs of the husband are onely privy to distrain . a condition does descend upon the heir at common law. incertainty . if one inseoffs another of twenty acres , viz. of one to the use of a. and does not shew of which acre , a. takes nothing by the feoffment ; for the possession cannot be executed ; for it was not certain which are passed to a. and a. cannot have election , for he is not privy . if a reversion be granted to one , and after to another , and the tenant atturns to both , neither of them shall take for the incertainty . if land be given to a man and a woman upon condition , that which of them first marries shall have in fee , and they intermarry , neither of them shall have fee. if the reversion be granted of black acre , or of white acre , if atturnment be good . quaere for the incertainty . a. gives two acres to b. habend . the one for life , the other in fee without deed , rendring a robe or a rent , and doth not shew which he shall have for life . a. lets two acres , rendring a rent on condition , to be performed by the lessee , that he shall have fee in one acre , not shewing which , and makes livery of both . quaere . infant . if an infant inseoffs two , and at his full age releaseth to one , it inures to both . if an infant be forejudged he is bound for ever , but if he makes a feoffment of a mannor , and the feoffee is forejudged , yet the infant may enter into the mannor , and distrain for the mesnalty , the reason is , because in the first case he was party to the record , and in the last case the forejudger was against the feoffee , who had a deseasible title . a recovery in wast against an infant will bind him , but so it will not against his grantee ; for he had a title to defeat his estate , so in a cessavit . conditions and forfeitures that will bind a fem covert will bind an infant . if an infant makes livery within view he shall not have an assize if the feoffee enters ; for it is more than a livery in law. if an infant disseisor makes a feoffment , and a dissent is cast , and the disseisee releaseth to the heir , yet the infant shall have a dum fuit infra aetatem ; for he demands the possession to which he had more right than the disseisee had . as if the heir , who is in by descent brings an assize against his disseisor , it is no plea for him to plead the release of the disseisee , causa qua supra . if a reversion be granted to an infant , and the tenant atturns at his full age , yet he may disagree ; for the grant which was the principal was in his minority . if an infant makes a lease to commence in futuro , and after makes a feoffment , being either at full age , or under age , the feoffee shall not avoid the lease . if an infant delivers a deed bearing date two years after , and at the end of the two years he is of full age , he shall not be estopped to shew the delivery before the date . if a fem tenant in tail marries an infant , who aliens and dies , the wife cannot enter upon the feoffee ; for she is not privy in blood to the infant , and privy in estate onely will not do . as if there be two jointenants , and one is a minor and they are disseised , and a dissent cast , the infant dies , the survivor cannot enter as the infant might . neither shall a lord by escheat or donor take advantage of infancy . if land be given to an infant and his heirs females , and he hath a son and a daughter , and aliens and dies , his daughter cannot enter ; for she is but a speciall heir , quoad hoc . in the principall case if the wife had been tenant in fee simple , the heir of the infant shall not enter upon his alienation , as litt. says ; for the wife had the right , and a title of entry which was in right cannot descend to the heir of the husband : but in this case , being the husband hath given a fee simple , and had but an estate in tail , in right of his wife , so that more is given than he had in right of his wife , makes this case more doubtfull than litts . but yet it seems the heir may not enter ; for he cannot have the same estate which his ancestor had , and the right of the estate tail survives to the wife ; for if land be given to an infant in tail , who aliens and dies without issue , his collateral heir cannot enter ; for the estate is determined which the infant had at the time of the gift ; for if an infant be tenant par auter vye , and aliens , and cesty que vye dies , the infant himself cannot enter , 5 e. 4. 5. but in the principall case , if the infant had made a gift in tail his issue might have entred by reason of the reversion , but otherwise where no estate descends to the heir . if tenant in tail to him and his heirs females aliens and dies , leaving issue a son and a daughter , the son shall not enter , no more shall the daughter , so of the youngest son in borough english . if tenant in tail infeoffs within age , and after is attainted of felony , his issue shall not enter , for he is disabled in blood . if an infant be disseised , and a descent cast during non-age , and after he comes of full age , the heir of the disseisor dies before his entry ; the infant may enter , for the heir was never possest ; for he had but a possession in law. joinder in action . if two parceners dye before partition , and a stranger abates , the issues shall not join in a mortdancester , for the stat. of gloucester ca. 17. is only when one right descends to divers , but every issue claims her right from and by her mother , so that severall rights descended to them , and so out of the stat. and is as it was at the common law , and therefore if parceners are disseised , their issues shall not join in a writ of entry , but shall have severall writs in respect of their severall rights , as they shall have severall formedons . if one hath cause to have a writ of ayel , another of besayel they shall not join ; for they have cause to have severall writts ; but where one is intitled to have a writ of mortdancester , and another ayel , or besayel , there they shall join . but if none of them may have an assize , then there is no remedy by the statute , 2 e. 3. 34. 48 e. 3. 14. 24 e. 3. 13. if i recover in an assize , and after i am disseised by the same person and another , i shall not have a redisseisin ; for it must be against the same person . if two parceners make partition upon record of an advowson , the eldest presents first , and after the youngest , and the eldest and a stranger present in the turn of the youngest , the youngest shall not have a scire facias against them ; for the stat. of westm . 2. does give it against those that were parties to the record , but she may have it against her sister : but in the first case a redisseisin doth not lie against the redisseisor ; for he may plead jointenancy , but in the last case it is no plea that another presented with her ; for she may have a quare impedit against both , or several actions , as a man may in trespasse made by two . so if the lord distrain his tenant , and he sues a replevin , and after the lord distrains the beast of a stranger and another beast of his tenant , the tenant shall have a recaption . but if the lord had distrained again the beasts which his tenant and the stranger had in common , there he could not , because for the last distress they ought to joyn , and the stranger cannot join in the recaption . if a stranger makes a rescous to the lord , the lord shall not have an assize against him alone without the tenant , because he cannot be said tenant of the rent , but against the pernor he may have an assize only . and if there be lord , mesne , and tenant , and the tenant makes rescous to the lord , ●an assize is not maintainable only against the tenant . and if there be lord , two jointenants , mesnes , and tenant , and one of the mesnes , and the tenant makes rescous the lord shall not have an assize against one only , but he ought to name both the mesnes . two fems jointenants in fee have husbands , who make severall feofments of their moities , and die , the wives shall not join in one writ of right ; for their right was discontinued at several times . so if one jointenant disseiseth the other and makes a feofment within age , and dies ; or if two infants jointenants make several feofments , and one dies , the other hath no remedy for the moity ; but otherwise if wrong had been made to them at one time , though severall wayes . if there be issue of two parceners , one dies , and the other endows the wife , one action shall be maintained against both , v. 9 e. 4. 14. against tenant by the curtesie , and the other parcener , 21 e. 3. a scire facias brought against tenant by the curtesie , and the other parcener , and good . land is given to four , habendum , one moity to the first two , the other moity to the other two , the first two are jointenants with themselves , and tenants in common with the last two , and so è converso , they are jointenants of a moity , and tenants in common of the whole , and two praecipes shall be sued against the four , and by the four , but for the two joint praecipes for and against them . jointenants . two jointenants in fee , one a minor makes a lease for life , he of full age dies , the other recovers a moity in a dum fuit infra , &c. tenant for life dies , the heir of the other jointenant enters , the infant outs him , he brings an assize , some think it is maintainable . for when he brought a dum fuit infra , &c. and recovered a moity , now he defeats the lease for his moity , and makes it , as if the other had made the lease for life only , which makes a severance of the jointure . two jointenants by twelve pence , one grants all that belongs to him upon condition , the lord grants the seignory of one with atturnment , the feoffor enters for breach of the condition , he shall hold by twelve pence , and the other by twelve pence also ; for there is no apporcionment . though one jointenant cannot infeoffe his companion , yet his companion and another he may , and the livery made to the other shall vest the estate in both . if a reversion be granted to tenant for life , and a stranger , the jointure of the fee is severed ; for tenant for life hath a fee in the moity executed . if the reversion be granted to tenant in tail and a stranger , the fee remaines in jointure , and if the husband be tenant for life , and the reversion is granted to him and his wife , the jointure remains ; for there is no moities between them . if a lease be made to two , habendum one moity to one , the other to the other for life , and after a confirmation is made to them and their heirs , the joynture of the fee is severed ; for the confirmation inures according to the nature of the estate . but if the reversion had been granted to them in fee they had been joyntenants ; for the particular estate had been drowned . if there be two tenants in common for life , and the reversion is granted to two jointly , and one purchaseth the estate of one tenant for life , and the other , of the other : the joynture is severed ; for the purchase being at severall times , presently upon each purchase the fee was executed . if a seignory be granted in fee to two , one takes an estate of the tenancy pur auter vye , cesty que vye dies . the jointure remains , because they were jointenants at the beginning . two jointenants for life , and one is bound in a statute , and then grants his estate , yet it is liable to execution , during his life , , but 't is otherwise of an estate for years , for in the one the land is bound by the statute , in the other not . if a recovery be had against one jointenant , his companion shall not avoid it , for the right was bound , but it is otherwise of charges , for the possession is only chargeable . if one jointenant in fee takes a lease by indenture of his moity from a stranger , the survivor shall avoid it . land is given to two and the heirs of their bodies , the remainder to their right heirs , they are not jointenants of the fee. if one jointenant makes a lease for five years , on condition that the lessee doth such an act by a day , he shall have for twenty years , and he dies before the day , the condition is void as to the survivor . if there be two jointenants for life , one makes a lease for years and dies , the survivor shall not avoid it ; for the same estate which he had continues now , and there is no difference if they had a feesimple , some think the contrary ; for the survivor hath not the freehold of his companion , as he hath the fee where they are jointenants in feesimple ; for his estate determins by his death . but all agree that if a. and b. be jointenants for the life of c. and a. makes a lease for life and dies , b. shall not avoid it ; for the estate which he had continues . two jointenants in fee are disseised by the father of one , who dies , and the son enters , he is remitted to all the land , & his companion shall enter with him . and it is not like the case where two are disseised , and a dissent cast during the nonage of one , and he enters , and is remitted for a moity , his companion shall not enter , because that this priviledge is given him in respect of his person more than in respect of the land. neither is it like the case where tenant in tail enfeoffs one daughter , and she dies , she being within age , she is remitted , and yet her companion shall not have advantage of it , because the right was not in them before . if a fem jointenant for years takes husband , and she dies , the survivor shall have all . two jointenants of two acres , the land is confirmed to them in fee , of one acre to the use of one , and of the other to the use of the other , they are severall tenants of the freehold of the acres ; for the freehold is drownd to the confirmation to the use . tenant for life makes a lease for life , the remainder to his lessor and a stranger , they are not jointenants , but the stranger shall take all ; for he could not give a fee to him that had it before . as if tenant in tail infeosfs the donor , or if one jointenant his companion and a stranger , the stranger takes all . if two jointenants makes a lease for life , and one grants his part of the reversion during the life of the lessee , some think this is a severance of the jointure . if one jointenant makes a lease for years , the remainder to the right heirs of a. if the lessor dies in the life of a. the survivor shall have the reversion ; for the lease for yeares was no severance of the jointure , neither could it support the contingent remainder . judgement . in debt upon a recovery in trespass , the plaintiff recovers there where the action was brought , a writ of error depending in b. r. upon trespass , and after the judgement given in debt the judgement in trespass is reversed . quaere what remedy he shall have for the debt recovered ? for it is a recovery in the c. b. which he cannot reverse in another court , and though he might , yet the execution of the debt being past ; he cannot be restored to that by the reversall in the first writ of error in the trespass . lease . if a lease be made for years , and after the lessor makes another lease for life to commence after the end of the term , the second lease is void although there be atturnment ; for a freehold cannot passe out of any person that hath a greater estate , reserving an estate until the freehold commences : but if the lease had been but for years it had been otherwise , and in the mean time the lessee shall have the rent reserved upon the first lease , for a lease for years is nothing but a contract . if a lease be made for ten years to commence at michaelmas , and after he makes a lease for twenty years to commence at easter , the second lease is good for ten yeares , though the first lessee surrenders before ; for it was void for ten years at the first : by the same reason if one makes a lease for life , and after makes a lease for years to commence presently , the second lease is void although the first lessee dies within a year after . if lessee pur auter vye makes a lease for twenty years by indenture , and after purchaseth the reversion in fee , and cesty que vye dies , the lessor may enter upon the lessee although the years continue ; for he hath a new estate and may confesse the conclusion , and avoid it . but if a. lets lands in which he hath nothing , and after purchaseth the land , the lessee may estop him although he had not any estate at the time of the lease , so he cannot confesse the lease and avoid it , as he may in the other case ; for in this case the lease took effect by way of estopple , but in the other case there was an interest conveyed at first . if the patron grants the next avoidance , and after he , the ordinary and incumbent make a lease of the rectory for twenty years , the incumbent of the first grantee shall avoid the lease , but if he dies during the lease , the lessee shall enjoy it during the rest of the years against the successor . and if land be given to husband and wife , and to the heirs of the husband , he makes a lease for years and dies , after the death of the wife the lessee shall enjoy the residue of the years against the heir of the husband ; for the lease did once take effect . but where a lease for life is made , and a lease for years to begin presently , that was void at the beginning against all persons , and therefore can never take effect . if the donor disseiseth the tenant in tail and makes a lease for years , and the tenant in tail dies without issue , the lessee shall have the residue of the term against the donor ; but if tenant in tail makes a lease for years , and the donor confirms , and the issue outs the termor and dies without issue , the lessee shall not enjoy his term ; for in the one case he claims from the donor , and in the other from the donee . if a lease be made to a. for life , and twenty years over , he shall have the years although livery be not made of the land. if a lease be made for the lives of a. and b. and a. dies , the lease shall continue for the life of b. but if two make a lease for sixty years , if they two shall so long live , if either of them die the estate is determined ; for that was not a limitation but a condition . but if a lease be made during the time that a. and b. shall inhabit within london , and one of them dwells in another place , the lease is determined , for it is a collaterall determination . if i licence one to occupy my land until the corn that is growing upon him is ripe , that is a good lease . lessee for twenty years makes a lease for ten years , and then makes a lease to the same lessee for ten years to commence after the determination of the first ten years , the last ten years are not out of the first lessee , and therefore the second lessee shall have the rent which was reserved by the first lessor during the first ten years . quaere . a. makes a lease for twenty years , and then makes another lease for forty years to c. to commence after the expiration of the first lease , and then he makes a lease to the first lessee for thirty years , the lease of c. shall not begin presently ; for nothing extinguishes and avoids the lease but the taking the second lease . and then the lease to c. is an impediment that the second lease cannot commence , and therefore the first lease is not determined . tenant in tail marries , and makes a lease for years , the wife endowed shall avoid the lease for her time , but after her decease the lease will stand good against the heir if the heir accepts the rent . if tenant in tail makes a lease for years , and marries , and dies without issue , the donor avoids the lease , and the wife recovers her dower , the lessee shall enjoy it against her . a. makes a lease for forty years , provided , that if b. dies within the term , that it shall be but for twenty ; a. dies at the end of four and twenty years , the lessor brings an action of waste , for waste done between the three and twenty and four and twenty years : some think it is maintainable in the tenuit , for the term continues until the death of b. if a rent had been granted for forty years with such a proviso , and he dies , ut supra , the tenant of the land may have an action of accompt for the rent received after the twenty years ; for now upon the matter the grant ended at twenty years . if a lease be made of land to me during my life , and the life of b. that is but an estate for my own life ; for the greater drowns the lesser . if a lease be made to two for forty years , if they shall so long live , and one dies , the lease determins ; for it is a condition and not a limitation . so if the lease had been so long as a. and b. shall be justices , &c. a. le ts during the life of baron & fem , the lessee grants during the coverture . limitation . if land be given to one and the heirs males of his body , the remainder to the heirs females of his body , the daughter of the son shall not take by this limitation . if land be given , habendum to him and the heirs males of his body , and to him and the heirs females of his body , if he shall take it as a remainder ? quaere . but litt. faith in the last case but one , that the warranty of the father shal be lineal to the daughter . if land be given to one and the heirs males of his body , and the heirs females of his body , if he hath issue male and female , they shall take by moities severally by descent . so if a woman hath three sons by severall husbands , and land is given to the woman and to the heirs of her first and second husband , some think the two sons shall take severally by moities , and yet it was but one estate in the woman . a feoffment is made to the use of i. and after to the use of the feoffor and his heirs , the feoffor doth not take it by remainder ; for the limitation to himself is void ; for the law saith as much , but it is in him as a reversion . but if the feoffment had been to the use of the feoffor for life , there the feoffee shall have the fee to his own use . if a man makes a lease for life to the use of a. and his heirs , there a. bath a fee determinable . land is given to a man and to two women cousins of the donor in frank-marriage , or to a man , and to two women , and to the heirs of their bodies begotten , or to two men & to two women , and to the heirs of their bodies begotten , in every of these cases each hath an estate tail in one part , and shall be jointenants of the freehold , and in none of these cases there shall be a speciall tail . so land given to three , one moity to baron & fem in frankmarriage , or in speciall tail , and another moity to the same man , and another woman in speciall tail , or when it is given to a man , and to two women , or two men and two women , and the heirs of their bodies , this is as much as to say , to the heirs of all their bodies , so that by the words , the heir that must inherit must be heir of all their bodies , which is impossible : and being the words cannot be performed litterally , the law will make the best construction , and make them severall estates tail in every of them , and joint freeholds , quod nota . if land be given to two , to the one for life , and to the other for years , they are tenants in common . but if a gift be made to baron & fem , and to a third person , that is , to the third person for life , to the husband in tail , and to the wife for years , if the third shall take the moity ? quaere how the husband and wife shall take jointly , or severally , or how much severally ? if tenant for life makes a lease for life , the remainder to the lessor and a stranger , some think the stranger shall take all ; for he cannot give a fee to him that had a fee before ; as if one jointenant infeoffs his companion and a stranger , and if he had made a lease pur auter vye , the remainder ut supra , there perhaps it would inure jointly , but the limitation of the fee here works by wrong , and it is better for the lessor that the stranger takes all ; for then he may have his action for all . livery & seisin . if a man makes livery of one acre in the name of that and another , which he hath for life in tail in right of his wife , or of his parsonage , or bishoprick , all pass . but if it be in the name of an acre , which he hath for years , or as guardian , or by reason of an execution , it is otherwise . if a man makes a feofment to a. and the mayor and commonalty of london , and makes livery to one in the name of both , none takes , but him that took the livery . if tenant for life enfeoffs the wife of the lessor , and the lessor makes the livery , yet it is a forfeiture . if a feofment be made of a mannor with an advowson appendant , if livery be not made the advowson will not passe in grosse by the delivery of the deed. a disseisee cannot make a letter of atturney to deliver seisin , for he hath not possession : but if he delivers the letter of atturney as an escrowl , to deliver seisin after his entry , it may be good . if a man makes a lease for life , and after makes a feofment with a letter of atturney , &c. and after tenant for life dies , if he may now make livery ? if a feofment be made to a. and a fem sole , with a letter of atturney to deliver seisin , and before seisin they intermarry , and then seisin is delivered , they shall take by moities . a. makes a feofment of three acres , and after purchaseth another acre , and delivers seisin in that acre in the name of the rest , if the other shall passe , quaere ? if two jointenants make a feofment with a letter of atturny to deliver seisin , and one makes a feoffment and livery in person , it is a countermand of the whole livery ; for he that took the livery hath no privity with the other as to that . livery made to the particular tenant within view is not good to him in remainder ; for it can benefit none but him that took it ; and if there be two particular tenants with a remainder over some , that livery made to one will not transfer the remainder . and if a lease be made to a. and b. upon condition , that if a. doth such an act , that he shall have fee , and livery is made to b. onely , that will not enlarge the estate of a. for he that took the livery hath no privity with the other as to that . livery cannot enlarge an estate if the determination of it be certain . market overt . if my goods are stollen , and i sell them in market overt for a certain sum , the vendor hath no remedy for his money ; for the contract was void ; for if one buyes goods in market overt knowing them to be stollen , the property is not changed , no more is it here ; for the vendor knew they were stollen from himself . if he which knows the goods were stollen , and another buys them in market overt , and the stranger dies , he shall have all the goods , and the property was not altered at the first , but for a moity . if goods be stolen and are sold in a market overt , and after he that sold them buys them again , yet the first owner cannot take them ; for the property was altered by the first sale . nusance . if one hath a mill or house which falls down , and in the mean time a nusance is levied , and then it is rebuilt , he shall not have an assiz● of nusance , nor abate it ; for it was not made to the nusance of his frank tenement ; for it was not then in being , but the nusance is elder than the freehold . some think all is one , if the nusance had been levied in the time of the old house . obligation . if a. hath two daughters , and binds himself and his heirs in an obligation to the eldest , and dies seised of lands , and leaves assetts to his executors , the obligation is discharged ; for it cannot be apporcioned . if two are bound jointly , and one delivers the deed at one time , and the other at another , yet it is a good joint obligation . if an obligation be made to a fem sole and another , and the fem marries and dies , the other shall have the whole duty ; for a chose in action does survive . occupant . a lease is made to one for the lives of a. and b. the lessee makes a lease for the life of a. only , if the second lessee dies , living a. the occupant shall have it . if land be given to two , to one for the life of a. and to the other for the life of b. if one dies , the other shall make himself a title against an occupant . if a lease be made upon condition , that if the rent be behind , the lessor shall enter and retain , and the lessor enters and dies , his heir shall have it against an occupant . if i am lessee for the life of c. and i grant my estate to d. upon condition , that if d. dies , living c. that it shall be lawfull for me to re-enter . quaere , if this condition be sufficient for me to enter upon an occupant ? if a man commits felony , and the lord grants his seignory , and after the man makes a feofment upon condition , and is attainted , and obtains his pardon , and after re-enters for ●reach of the condition and dies , if the occupant shall have the land , or the lord , or the issue , is the question ? a. makes a feoffment to b. habendum to him so long as pauls steeple shall stand , b. dies without heir . quaere if the lord may enter by escheat , or an occupant shall have it ? outlawrie . if a man grants to another one of his horses , until the grantee hath made election there is no property vested in him , neither shall he forfeit it by outlawry . parceners & partition . a. seised of two acres hath a son and a daughter by one venter , and a son by another , grants a rent out of one acre to the son , who dies , the father dies , the daughters make partition , the land charged is allotted to the youngest , she shall hold it charged with all to the eldest , 34 ass . p. 15. a. hath issue two daughters , and holds land of the eldest by suite and an hawke , and dies , the daughters assign a third part to the mother in dower , and then makes partition , tenant in dower shall not be contributory for any part of the services ; for the reversion remains in parcenary between them two : for they cannot make partition thereof , and then the whole seignory is in suspence , and also the youngest daughter shall be discharged of the tenure ; and yet if land holden by an hauke discend upon the seignoresse and her sister , and they make partition , the seignoresse shall have the hauk , but there no suite ; for by the stat. of marlbridge ca. 9. the eldest ought to do it , and the youngest is to be contributory , but she being seignoresse cannot do it to her self , ergo , &c. but the reason in the principall case why the youngest shall be discharged , is , because the seignory is in suspence for parcel , and it cannot be in esse for the rest : but if a tenant hath two daughters , and the lord seises the youngest within age , he shall distrain the other for the moity of the seignory and the act of law shall not prejudice him . quaere , for the seisure is his own act. if one sister be seignoress , to whom the tenancy is descended , she shall not have the rent nor other charge before partition , but if she had the tythes she should have had them after severance from the nine years before partition ; for they lye in prendre , and she takes them as parson . before partition one parcener makes a lease of an acre to i. s. for twenty years , and they after make partition , so that that acre is allotted to her , it seems she shall out the lessee ; for the partition hath relation from the death of theancestor , and yet at this time she had full power to make a lease of the moity of it . so it seems she shall avoid a rent charge granted by her sister . if the husband makes a lease of an aere which is after assigned to his wife by a recovery in dower upon a title which she had at that time , she shall avoid the lease , &c. forall . quaere in both cases . if one parcener recovers pro rata against her companion , she shall avoid the charge made by her in the land recovered as an exchanger shall do . land recovered in value after partition by one parcener shall be rateable . a. seised of two acres hath two daughters , and grants a rent charge out of one acre to the eldest and dies , they make partition , the eldest hath the land charged , and the other being impleaded recovers against the eldest pro rata , she shall hold the land recovered in value pro rata with the portion of the rent . if parceners make partition , and one aliens in fee , a stranger by a title paramount enters upon the other , she shall not occupy the land with the feoffee ; for the privity is dissolved ; for she cannot recover pro rata ; if a. be seised of one acre in tail , and of another in fee , hath two daughters , they make partition , the younger hath the acre in tail , the lord of whom the acre in fee is holden shall take notice of this partition , it seems otherwise for a donor of an acre in tail ; for he shall not be bound by that partition unduly made , no more than the issue in tail shall be , but the parties that made the partition , being of full age are concluded ; but if one acre in tail be allotted to one , and the other acre in tail to the other , the donor is concluded . if partition be of land in tail , and a rent is granted for equality of partition , that rent shall be in tail , 2 h. 7. 5. but if there be parceners of two acres , one in tail , and the other in fee , and she which hath the acre in fee grants the rent to the other for equality , that rent shall be but in tail , but if that rent had been granted to her which had the fee , it shall be in fee ; for if she dies without issue her heir shall have it so long as the other hath issue of her body ; for til that ceases thepartition stands : but if there be four acres , three in fee , and one in tail , and she which hath the third acre grants a rent for equality , thatshall be a fee quia sequitur magis principale . three parceners in tail make a feoffment with warranty , the eldest first , and the youngest after dies without issue , the second hath issue and dies , the issue brings a formedon , she shall recover a moity of the part of the eldest , and a moity of the part of the youngest , and no more ; for the warranty of the eldest was collateral to the second for the part of the second ; for the other part she could not make her self heir to her that made the warranty , but yet for the part of the eldest , the warranty is lineall to the second and youngest daughter ; for they might inherit as heir to her , and for the part of the youngest as to her self and her heirs , for their third part the warranty of the eldest is collateral ; for the youngest or her heirs could not make themselves heirs of that third part to the eldest who made the warranty , so that the warranty of the eldest shall enure , as aforesaid . then as to the youngest , who died last , her warranty as to the second sisters part is collaterall , and to her issue ; for they cannot make themselves heirs to her who made the warranty , &c. but as to a moity of the eldest , 't is lineall , and as to the other moity collateral ; for by possibility the youngest and the second might have had the part of the eldest by descent , if the eldest had died first , as she did , then if the youngest dies without issue , the moity of the third part which descends to her from the eldest , descends to the second as heir to the youngest . then as to the other third part of the eldest , the warranty of the youngest is collaterall to the second ; for the second as to the moity of that third part could not have been heir to the youngest , who made the warranty , but ought to have been as immediate heir to the eldest , and as to her own part her warranty as the second is lineall ; for by possibility she might have had that part as heir to the youngest , then being the youngest is dead without issue , the warranty of the eldest as to a moity of the part of the youngest is lineal , and as to the other part of that part 't is collateral1 to the second ; for by possibility the youngest might first have died , and then her part descends to the eldest and the second , and so a moity of that might descend from the eldest to the second , and therefore the warranty of the eldest shall be lineall for one moity of the part of the youngest , and for the other moity of the part of the youngest 't is collaterall , and so the warranty of the eldest which upon the descent was collaterall to the youngest ; for the part of the youngest , is now changed for the moity , and made lineal for the moity . v. 9. h. 5. 12. 4 h. 7. 18. three parceners make partition , the eldest hath one acre in fee , the second another acre in fee , the third one in tail , all being of full age , the eldest dies , her issue enters upon the youngest ( as she may ) the second may enter also , and the partition is defeated ; for when the youngest is outed , the second shall have part of that to which the issue of the eldest is remitted , as she would if she had recovered in a formedon , if the second may not enter it will be a mischief ; for she cannot have aid , being the other holds pro indiviso . a. hath two daughters by one venter , and a third by another , the youngest is seised of three acres of equall value , and grants a rent of three shillings to the father in fee , and then infeoffs the second of one acre , who dies without issue , so that it descends to the eldest , the father dies , the eldest shall have the rent , but if the second had infeoffed the eldest of the acre , then she should have nothing ; for in the first case she hath the land by descent , and the rent also , and therefore the rent shall be apporcioned , but in the other case she hath the land by purchase , in which case the rent shall be extinct , though she hath the rent by descent , or not , and though the purchase was before the descent or after . and if a man hath a rent of twenty shillings out of twenty acres of equall value , and one acre descends to his wife , all the rent is suspended ; for it cannot be apporcioned when he is seised of part of the land in auter droit ; but if she dies , and he is tenant by the curtesie it shall be apporcioned ; for the land continues in him by the act of the law , which is equall to a descent ; and if a rent be in tall , and parcel of the land descends to him in fee , or the rent be in fee , and parcell of the land descends to him in tail , there must be no apporcionment . i. dies having two daughters , one is attainted of felony , a lease is made for life , the remainder to the right heirs of i. the other shall take nothing in remainder , because she which is attainted is living . particeps criminis . if the lord procures one to disseise the tenant , and the disseisor cesses , and the lord recovers against him , he shall retain it against the disseisee ; for by the procurement he is no disseisor , as it appears , 50 e. 3. 2. but see littleton contra in his chapter of remitter ; for he had cause to recover de puisne temps : but otherwise if he had title of cessavit at the time of the procurement and disseisin , quaere , if he had ceased one year before the disseisin and another year after ? as if the issue in tail procures one to disseise the disseisor of his father , whose heir is in by descent , against whom the father recovers and dies , the issue shall retain : but if he himself had recovered against the disseisor upon a title then in being to him at that time , he shall not be remitted . if one hath title of formedon , and he procures one to out the tenant , to the intent that he may recover against him , and a stranger outs him , and after i s. recovers upon a title puisne to the procurer , and the other recovers against him by a formedon , he is there remitted . and if two jointenants have a title of action , where their entry is taken away , and one procures a stranger ( ut supra ) against whom they two recover , and he which was party dies , the other is remitted to all , but if he which did not procure had died first , the other should not be remitted but to a moity , quaere ? payment . a rent charge is issuing out of two acres , the tenant of the land makes a feofment of one , the grantee may distrain in one , or the other for all ; but if one tenant payes to him the rent , if the other be distreined he shall plead the payment by his companion , for it discharges the whole tenancy . place . if a. leases land in two counties , rendring a rent , it is one entire rent , and he may distrain in one county for all , but he must have severall assizes , and in every county make his plaint for all the rent : but it seems that upon a rescous in one county he shall have an assize in the other , quaere . pleas. if a man hath a wife , and makes severall feofments with warranty , and dies , the wife brings dower against one of the feoffees , he may plead that the heir hath endowed her having regard unto all the land ; for there is a great privity betwixt the tenant and the heir , for the tenant may vouch the heir , and it seems that he might plead that one feoffee had endowed the wife , for it goes in discharge of the tenancy . some think that guardian in fact in dower shall not plead detinue of the body of the heire , for none can plead that but he whose title commenced when the title of dower commenc'd : but the guardian in droit may plead it , and if the heir make a feofment , the feoffee shall not plead detinue of charters in dower . if an obligation be delivered in owell maine to i. who breaks the seal , in detinue if he should not plead a release to the obligor if it would be heard , and yet paston in 9 h. 6. 19. b. sayes , that the goaler cannot plead a releafe made to him that escapes . possession . if the tenant dies without heir , the law casts the possession of the tenancy upon the lord before entry , but if the tenant is attainted of felony , he shall not have the possession in fact or in law before entry . if one jointenant leases his part for years , a stranger enters , claiming the moity of the other , who waives the possession ; it seems it is a disseisin to him , though the termor continues in , for they are tenants in common , and though the possession of the lessee be the possession of him in reversion , sc . his companion : but è contra if the termor had waived the possession and the other continues in , it seems that he in reversion cannot be out of possession , for his joint companion held it . two jointenants in fee of a rent charge , a stranger takes it to the use of i. one releaseth to the pernor , the other to the tenant , if by the last release he shall be said in possession ab initio , then the first release to the pernor is void ; for the possession of one is the possession of both . possessio fratris . a. makes a lease for life , and dies , having a son and a daughter by one venter , and a son by another , the eldest son grants the reversion in tail , the tenant atturns , and he dies , the grantee in tail dies without issue , tenant for life dies , it seems the daughter shall have the land , not the youngest son. the disseisee dies having a son and a daughter by one venter , and a son by another , the son after the descent enters upon the heir of the disseisor , and dies without issue , the daughter shall not have the land ; for his possession was tortious , if the father dies seised , and the eldest son makes a lease for life , the mother recovers dower against the lessee , the son dies , the daughter shall have the reversion , and not the son. but if tenant for life dies after the death of the son , and during the life of the tenant in dower , quaere , who shall have the reversion , the son or daughter ? if a. makes a lease for life , and dies , his eldest son disseises tenant for life and dies , tenant for life dies , the son shall have the land from the daughter , which is put in the book of ass . and the principall case is , the eldest son endows his mother and dies , if the youngest son , or the collaterall heir of the eldest shall have the land. the father dies seised of two acres , theson enters into one saying nothing , if that shall be a sufficient possession of the other acre , to make the sister to be heir . quaere . some think it shall not . if a disseisor or feoffor on condition enter into one acre saying nothings there no more shall be gained by that entry ; but in the principall case , if the acres had descended one from the father , and another from the mother , then the entry into one is an entry but into that only . so if it had been on a title for several conditions , 9 h. 7. 25. so the entry of the bastard into one acre shall devest no morethan that ; for the mulier had a possession in law. quaere . if a man makes a lease for years and dies , this possession in law of the reversion is sufficient to make the sister heir . quare impedit . in a quare● impedit against the patron and incumbent it is no plea for the incumbent , to say , that he hath been in six months upon the presentation of the patron ; for none can plead plenalty , but he who by such plea may gain the patronage , and against whom a writ of right of advowson is maintainable , quod vide in 16 e. 4. 11. but in a quare impedit against the ordinary and incumbent , the incumbent shall say , that he hath been in six months upon the collation of the bishop by reason of laps , because no patronage is gained by that , so note the diversity , 2 r. 2. encumbent 4. 18 e. 3. quare imp. 4 8. 13 h. 8. 14. 14 h. 8. 31. 39 e. 3. 30. recognizance , vide statute . record . if a record in the c. b. be pleaded in any other court of the king , where it is requisite to be produced , it must be exemplisied under the great seal of england , and the seal of the court is not sufficient , but if he pleads it in c. b. there if he shews the exemplification under the seal of the court it sufficeth ; for in the one case it is teste meipso , and in the other , teste the chief justice . relation . if a feoffment be made of a mannor when atturnment is had the services passe ab initio . if a lease be made for life the remainder to the king , and livery is made , and after th e deed is inrolled , now the remainder passes to the king , as a remainder , ab initio . if land be given to baron & fem in fee , he dies , and the wife waives the possession , and recovers her dower against the heir , she shall recover damages ; for by her refusall the husband shail be said to die seised . keylway 104. p. 14. if a man who hath a villein delivers an escrowl of enfranchisement , to be delivered to his villein seven years after , and before the end of the seven years he dies , and the deed is after delivered , that will be a good enfranchisement by relation . vide barg . & sale. release . lord , mesne , and tenant , the tenant holds in socage , and the mesne in chivalry , the tenant makes a gift in frankmarriage , the mesne releaseth ro the donor , the four degrees passe , the donor seiseth the ward of the issue , and enters into the land , and he brings an action of trespass , some think it is maintainable . if lessee for years makes a feoffment to two , a release to one shall inure to both . if tenant in tail makes a lease for life , the remainder for life , and releaseth to him in remainder , and his heirs , if the first tenant for life dies in the life of tenant in tail , it is a discontinuance . the tenant holds ten acres by ten pence , and makes a feoffment of one , the lord grants the rent , reserving the fealty , the tenant atturns , the grantee releaseth all his right in the land to the tenant , yet he shall have one penny ; for the feoffment severed the seignory , and by the grant two rents passed , and but one is extinct by the release , viz. the rent of nine pence . two disseisors make a gift in tail to hold in chivalry , the disseisee releaseth to one , the donee dies ; some think this release will inure to both . two women disseise another , and make a feofment to their father , who dies , so that the land discends to them , the disseisee releaseth to one , it shall inure to both ; for betwixt themselves they are in by title . if a disseisor dies seised having two daughters bastards , and the disseisee releafeth to one of them , that shall inure to both . a. makes a feoffment to two upon condition , which is broken , the feoffor releaseth to one , it shall operate to both ; for they are not in by wrong , and a release where it countervails an entry and feoffment doth not extend to titles , if a disseisee enters upon two disseisors , and they recover falsly in an assize , and he releaseth to one , that shall inure to both ; for between themselves and the disseisee also they are in by title . if an infant infeoffs two , and at his full age releaseth to one , it goes to both . if two disseisors make a feoffment , and take back an estate , a release to one inures to both ; for though in respect of the disseisee they be disseisors , yet in relation to themselves they are in by title . so if a disseisor makes a feoffment , and takes back an estate to himself for life , a release to him will go to him in remainder . if a disseisor makes a lease for life , and the lessee makes a feofment , and the disseisee releaseth to the feoffee , the right of entry which the disseisee had is taken away ; for a release of the disseisee will avoid all rights of entry , but not titles . if a disseisor grants a rent-charge , and is disseised , and a release is made to the second disseisor , the charge remains , but the dower of the wife not ; for the one is executed , and the other executory only . if two disseiors make a lease for life , with a remainder in fee , the disseisee releaseth to the tenant for life , the wife of the first disseisor shall be endowed . if my tenant for life is disseised by a. who is disseised by b. to whom i release , the wife of a. shall be endowed ; and if tenant for life dies , a. may enter upon b. and retain for ever . after the vouchee hath entred into warranty , an ancestor collaterall of the demandant releaseth to the vouchee with warranty and dies ; now the vouchee cannot plead this warranty against the demandant , for the release was void ; for though the vouchee shall be tenant to the demandant , yet he shall not be so to a stranger , for if a stranger will release to him after he hath entred into warranty , the release is void . but if an ancestor collateral had released to the tenant after the entry of the vouchee into warranty , the vouchee may plead it . quaere in the first case , though the release be void , yet if the warranty shall not be good ? a feofment is made rendring a rent , and upon default of payment a re-entry , the rent is behind , and then the lessor releaseth the rent . there is a difference between a releafe in fact and in law. if the tenant makes a lease for life , and the lord releaseth to the tenant for life , all his right in the seignory is utterly extinct . but if the lord distrein the tenant , and makes a lease for life , he hath not extinguished his seignory for ever , for a release in law is taken most favourable . if a rent be granted for life , and by another deed thegrantor releaseth to the grantee all his right in the rent ; and if it be behinde , that he shall distrain for it , yet it is but a rent seck . if two are disseised , and one releaseth to the disseisor all his right in the one moity , his right is gone in al● , and yet his right was per my & per tout ; but being he hath released all his right in one moity , which extends per my & per tout , that is the reason why , &c. so if there be two disseisors , and one disseisee releaseth to one , for he was seised per my & per tout . but if he had released all all his right to one , viz. in the moity of that one , and not in a moity generally , the law had been otherwise , viz. that his moity remains in the moity of the other moity . a disseisor having a wife makes a lease for life , the lessee makes a lease to the wife , for the life of the wife , the husband accepts the deed , and agrees to it , the disseisee releaseth to the wife , the husband dies , the release is void ; for , by the lease to the wife the husband had title of entry for the forfeiture , and then he is remitted , and though he agrees that the wife shall take the estate , yet it is no estopple , then the husband being remitted there is no possession in the wife upon which the release may operate . if a disseisor having a wife makes a lease for life to a. who makes a lease to b. for life , the disseisee releaseth to b. the wife of the disseisor shall be endowed , for the release doth not countervail an entry and feofment . if a disseisor makes a lease for life , the lessee makes a feofment , and the disseisee releaseth to the feoffeo , that takes away the entry of the disseisor ; for such a release takes away all rights , but not titles , as conditions or dower . but if a dis seisor be disseised , & the disseisee releases to the second disseisor , that takes away the dower of the first disseisors wife . tenant pur auter vy , the remainder to i. for his life , i. releaseth to the lessee , that release is good , and inures by way of fezance de estate , for if a remainder had been limited to the tenant for the life of i. that had been good , therefore here he hath a sufficient tenant for life , and a possession whereupon a release may operate , but if the first lessee had had an estate for his own life , then the release had inured by way of extinguishment ; for the first estate was greater having regard to the lessee . if a lease be made for forty years , the remainder for ten years , and he in remainder releaseth to the tenant for forty years , he shall have it for fifty years ; for the forty years cannot be drown'd : if the remainder had been a lease for an hundred years ; for one chattle cannot consume another , for it is all one as if lessee for forty years should make a lease for ten years , and after will release to the lessee , he shall have it for forty , and not for thirty years . if a lease be made for years , the remainder to a. for life , the remainder to b. for life : if b. will release to the lessee , that is cleerly good ; for there is sufficient privity between them although he hath not the next immediate estate . but if the lessee will release to his lessor , that is void ; for the lessee was in possession . so if the guardian releaseth to the heir , that is void . if two disseisors make a lease for life , and the disseisee releaseth to one , that will inure to both ; for of necessity it will inure to lessee for life : and so by consequence to them in reversion , and that is to two . if tenant for life is disseised by two , who are disseised by another , the lessor releaseth to the last disseisor , the first disseisors may enter notwithstanding the release ; for the releasor had no title of entry . but if his entry had been lawful , as if his tenant for life had infeoffed a stranger , who had been disseised , and the lessor had released to the disseisor the lessee could not have entred ; for the entry of the lessor ( who had a title paramount ) was congeable . as if a disseisor makes a lease for life , and the lessee makes a feofment , and the disseisee releaseth to the feoffee , the disseisor cannot enter . but if the heir of the disseisor , who is in by descent makes a lease for life , the lessee makes a feoffment , and the disseisee releaseth to the feoffee , the lessor may enter ? for the disseisee could not , 9 h. 7. 25. pet fineux . if an infant makes a lease for life , and the lessee grants his estate with warranty , the infant brings a dum fuit infra etatem , and the tenant vouches the grantor , who enters into warranty , and loseth , the demandant releaseth to him and his heirs , some think the release is void ; for he is tenant only to answer the action , but a release which is to enlarge an estate must inure upon a privity of estate . and therefore a release made to tenant by the curtesie in fee after he hath granted over his estate is void , and yet an action of wast shall be maintainable against him by the heir , and he shall atturn . if a lease be made for life , the remainder for life , the tenant for life dies , and before the entry of him in remainder the lessor releaseth to him in fee , that shall inure according to the words . but in a writ of entry in the per , if the tenant vouch him , by whom , &c. who enters into warranty , and the demandant releaseth to him , that inures by way of extinguishment . if a woman who hath cause of dower releaseth to the guardian , that takes away her title and estate , though the gardian had but a chattle , and the heir shall advantage of it . it was said in the case of the dum fuit infra aetatem , if he had released in tail a greater estate should not have passed ; for though it doth not appear by the dum fuit infra aetatem what estate he claims ( for the writ is generall ) yet when he enters generally into the warranty , he shall not be said to have a fee against the demandant , but the demandant shall make an averment , that he did not make the devise but only for life . a release made to the patron when the church is full doth not extinguish an annuity , otherwise if it had been in the time of vacation , 21 h. 7. 41. but a release to the ordinary peradventure will not avail ; tenant for life grants a rent charge , a release to him in reversion will not extinguish it , no more than if he in reversion grants a rent charge , a release to tenant for life will extinguish it . if there be two disseisors , and one makes a lease of a moity for years , reserving a rent with a re-entry for not payment , the disseisee releaseth to the other who did not make a lease , he shall have the whole freehold of all the land , and the lessee shall not pay the rent to him ; for he comes to the reversion by title paramount , and not by any privity . a. ours his termor for years , and then makes a lease for years , the first termor releaseth to the second , the first lessor may enter and have the land against them both ; for by the release the right of the first termor was extinct . as if a rent charge be granted to the disseisor , &c. and it doth not fortifie the estate of the second lessee during the first term ; for if the first lease had bin for twenty years , and the second but for a year , yet by the release of the first lessee to the second , all the first estate shall be extinguished . but if he had been tenant for life , and the disseisee releaseth to the disseisor , now during his life the lessor cannot enter , otherwise if he had been tenant for years ; for in one case the disseisor had a freehold in him which might be fortified , and in the other case but a chattle . although the husband cannot give any thing to the wife immediately , yet if a disseisoresse makes a lease for life , the remainder to her self in tail , the remainder to a. in fee , and marries the disseisee , who releaseth to tenant for life , that will inure to his wife . if an infant disseisor makes a feoffment , and the feoffee dies seised , and his heir enters , to whom the disseisee releaseth , yet the infant shall have a dum fuit infra aetatem , and shall recover ; for he demauds the possession to which he had more right than the disseisee , and the tenant ought to answer to the demise , and not to the right : as if the heir of the disseisor , who is in by descent , brings an assize against his disseisor , it is no plea for him to plead the release of the disseisee ; for he demands the possession to which he had more right than the disseisee . so if the disseisor recovers in an assize by erroneous judgement against his disseisor , and the disseisee releaseth to him that hath recovered , and the other brings a writ of error , it is no plea for him to plead the release ; for the intent of the suit was to correct the error upon the record . if a disseisor makes a lease for life , and the lessee makes a feoffment to a. who obtains a release from the disseisee , the disseisor brings a consimili casu , some think he shall recover ; but if the heir of the feoffee , who is in by descent , &c. gets a release , it is cleer the disseisor may have an action , and the tenant ought to answer to the demise , and not to the right of the land in both cases . if a disseisor enters upon his feoffee for breach of a condition , the feoffee shall not have a writ of right , though the right of the disseisee be released to him before the breach of the condition . so if the disseisee enters upon the heir , who is in by descent , and makes a feoffment , or releaseth of such an heir , and the heir re-enters , or if one who hath a title brings a formedon in remainder against an abator , and recovers by default . see the rest of the case in 9 h. 7. 25. in all these cases he to whom the release was made , or the right was given , shall not have a writ of right , but it shall goe in advantage of him that removes the possession ; for being one hath a right in possession , and recontinues it , that draws the very right to it , and the right by it self shall not be left in the other . note that in all these cases , the right comes after the possession ; but if the right were before the possession , and then the possession is removed , the right remains in the person to whom it was given . as if the heir of the disseisor , who is in by descent , enfeoffs a. and several other feoffments are made , and after the land comes to the heir again , and the disseisor enters upon him , and he outs him . now if the disseisee brings a writ of right upon his first possession , he shall be deluge by vouching of the feoffees ; but he may have a writ of right upon the last possession which he had by disseisin , and that is beyond all the vouchers , and though the possession was removed , yet that is not materiall ; for littleton saith , the effect of the writ is the meer right . the husband discontinues in fee , and takes back an estate to himself and his wife for their lives , the husband makes a feoffment and dies , the wife releaseth to the second feoffee , yet the first feoffee may enter for the forfeiture , and she hath no remedy , and this case is supposed before the statute of 32 h. 8. but if the wife had not released , but the first feoffee had entered upon the second for the forfeiture , the wife ( the husband being dead ) might enter upon him ; for she may claim by the lease , and then the entry for the forfeiture had avoided the discontinuance , and so she may enter by vertue of the lease made by the first discontinuee . if tenant for life be disseised , and the disseisor is disseised , and the lessor releaseth to the second disseisor , and the first disseisor outs him , he hath no remedy by writ of right , or otherwise , quod nota . a gift in tail is made with warranty , the donee releaseth the warranty to the donor , the reversion is granted , the donee atturns , if the issue in tail be impleaded , he shall not vouch ; for the release hath extinguisht the warranty for ever ; for the statute is of tenements , &c. and this is no tenement , but a covenant reall , which is extinguished by the release . as if an annuity be granted in tail , a release from the grantee dischargeth it . if a false verdict passeth against tenant in tail , a release made by tenant in tail of all his right shall not bar the issue of his atttaint , but if he releaseth all false oaths to one of the petit jury . quaere , if the issue shall have an attaint ? and a partitione facienda is maintainable by the issue in tail , by the equity of the statute de donis , &c. & contra form . feoffam . & contributione faciend : and a release of them will not bar the issue ; for it is of the land , and an vse in tail is taken by equity , and tenant by copy , &c. shall be taken by equity to have an estate tail , and shall have a plaint in nature of a formedon . so by some the release in the principall case is no bar ; but tenant in tail by his release may extinguish an accquittall granted by the donor . and execution of a recovery in value by reason of a warranty , and not a recovery pro rata against his coparcener . if a man binds himself and his heirs in twenty pound and dies , his executors having assetts , the obligee releaseth all actions of debt to the heir , the executors pay the assetts to other creditors , some think the obligee shall have an action of debt against the heir ; for at the time of the release the obligee was not intitled to have an action of debt against the heir , but if neither the heir nor executors had assetts , and then the debt is released to the heir , and after assetts come to the hands of the heir , it seems the release will bar him . if tenant for life commits wast , and grants over his estate , the lessor releaseth all actions to the grantee , yet he shall have an action against the grantor ; for he was not intitled to have an action against the grantee . so if tenant in dower , or by the curtesie , who have granted over their estates , otherwise of a release of land. a. makes a lease for life , and grants a rent out of the reversion , a release made by the grantee to tenant for life will not extinguish the rent : so if a rent be granted by tenant for life , a release to him in reversion will not extinguish the rent . a lease is made for life , the remainder for years , he in remainder releaseth to tenant for life all his right in the land , the yeares are drownd ; but if the release had been , habendum the land during the years , then the term for years had continued . as if a lease is made for life , and after a release is made to tenant for life , habendum to him for forty years after the lease for life ended , there he shall take it as the words direct : and some say , that a release made by tenant for years to the lessor extinguisheth the term , orherwise of a release by tenant for life . and if a lease for years be made to commence at easter , and before easter he releaseth all his right to the lessor , the years are extinguished . if lessee for years be ●jected , and releaseth to the disseisor , the lessor may enter , but otherwise of a release made by tenant for life . if one makes and delivers an obligation at michaelmas , which bears date at christmas following , and at the feast of all saints he releaseth to the obligor all actions , and after christmas he brings an action of debt , he shall plead the release , and say the obligation was delivered at michaelmas , and that the release was delivered at all saints , according to the date . if the disseisee releaseth to the disseisor all actions , and dies , and the disseisor dies , and his heir enters , and the land discends to the heir of the disseisee , it seems by the release of all actions , which he hath , or may have afterward by the same right , are discharged . so of actions which his heir might have for the same disseisin . so that a writ of entry in the quibus is released , although his heir had no cause of action at that time , then it is in a manner as if he had released after the descent as to the extinguishment of the action , then being he had a right notwithstanding the release , so that he might enter , that right is not taken away by the descent after . some think a release of actions is but a conclusion , which goes in privity of blood , and not of estate : and therefore after such a release to the disseisor , if he aliens over , the release is not pleadable by the alienee ; for he is not privy , and it doth not go with the estate . so if a disseisor makes a lease for life , with a remainder over , and the disseisee releaseth all actions reall to the tenant for life , who dies , he in remainder cannot plead it , as if it had been a release of right , and therefore if a release of all actions had bin made to him in remainder , that had been void to all other purposes , so such a release of actions shall not extinguish a right , if the entry be taken away , otherwise than by an estopple , which being removed by the descent in law , the release ceaseth to be a conclusion after . some think if the heir of the disseisor infeoffs two , and the disseisee releaseth all actions to one of them , and he dies , the other shall not plead it , and so if two are disseised , and one releaseth all actions to him that is in by descent , and dies , the other , as survivor shall have an action for all the land. if tenant for life commits wast , and grants over his estate , in wast brought against him he may plead a release in the land , and yet he hath nothing in the land. a conusor of a statute merchant is in execution , and his land also , the conusee releaseth to him all his debts , afterwards the goaler lets him have his liberty , it seems that the execution is discharged by the release ; for the debt is in esse until the profits satisfie it , or else the execution could not remain , as the heir is in ward until he be capable to perform his services , but if the seignory be released to the tenant , he is out of ward for body and land. if he in reversion of a seignory releaseth to his grantee for years , and to the tenant of the land , and to his heirs . quaere how it shall inure ? but if it had been to them two generally , then the estate for years and all the seignory had been extinct ; for though it inlarges his estate for life , and no more , yet without those words , his heirs , all the reversion is extinct , and consequently the estate for yeares , quod non negatur . 8 h. 6. 24. but if it had been of a rent charge , and the release had been to them , the grantee shall have it all for life , and the other the fee , and so it shall inure to both . tenant for life and he in reversion grant a rent charge , the grantee releaseth all his right to the reversion , if the rent be extinct ? some think not ; for their estates being severall so are their grants , and then a release to the reversioner will not extinguish a rent issuing out of the possession . and if it shall be taken to be the grant of tenant for life , and the confirmation of him in reversion , yet such a release will not extinguish it ; for though he purchaseth the reversion yet he shall have the rent during the life of tenant for life , and if it were severall grants , a release to tenant for life will not extinguish a rent issuing out of the reversion ; for to this charge the tenant need not atturn . the surviving parcener may release to the husband of the other being tenant by the curtesie . and if one parcener hath twenty daughters and dies , the other may release her whole part to either of them . but if jointenants be of twenty acres , and one makes a feoffment of all his part in eighteen , perhaps the other can release his right but in two acres . but if husband and wife , and a stranger are jointenants , the stranger may release all his right to the wife only . tenant for life , the remainder in fee , makes a gift in tail , the remainder in fee , he in the first remainder releaseth all his right to the donee , not saying , and to his heirs , and then grants a rent charge to a stranger out of the remainder in fee , and dies , the donee dies without issue , the heir of him in remainder enters , if he shall hold it charged ? some think the release doth not give the right in fee , which the releasor had , to the releasee ; for then in a manner he doth release to himself , but if the remainder had been in tail to him that had the remainder in fee , then the release had inured to the first estate in tail , and to the fee , and then if the last fee be fortified , the mesne remainder is established , and so the release inures to himself . but as to the other point which may be moved . if the remainder be good to him that had the remainder before ? being it is out of him and in him at one and the same instant , it is good enough . if one be disseised to the use of a. the disseisee releaseth to the disseisor , yet a. may agree to the disseisin ; for a release doth not take away a title any more than it doth a condition , or a rent charge granted by him ; or if he covenants to stand seised to an vse executory upon marriage , such an use cannot be taken away by such a release . but if there had been two disseisors to the use of a. and the disseisee had released to one of them , that will take away all the title , causa paret . so if tenant for life releaseth to his disseisor , that doth not restore the reversion ; but if he had released to one of the disseisors , it had been otherwise . land is holden of the mannor of dale by fealty and twenty shillings , the lord makes a lease of the mannor for years , rendring forty shillings with atturnment , after the lessor releaseth to the tenant all his right , if the rent of forty shillings shall be apporcioned ? by the release the tenant is discharged of twenty shillings as well against the lessee as the lessor ; for the tenant holds it of the lord paramount , so he does not hold it of the lessee ; for he cannot hold the same land of two severall lords , and the rent of forty shillings is as well payable for the services , as for the demesnes , although he cannot distrain , &c. as in the case of sheep , 21. h. 7.6 . if feoffee upon condition makes a lease for life , a release of the condition to the tenant for life will extend to the feoffee , as it will do of a right or rent . if there be feoffee upon condition of two acres , and the feoffor releaseth the condition in one acre , if it be collaterall , it remains in the other ; as of a warranty annext to two acres , a release in one , yet it remains in the other ; for the condition is severall as the right is ; but if the condition had been made to two , or by two , a release to one , or by one extinguisheth all , as it shall do a warranty . tenant for life of a seignory purchaseth the tenancy pur auter vye , if the lord releaseth to him and his heirs all his right in the tenaney , some think it shall inure by way of extinguishment . but if he releases to him and his heirs all his right in the seignory , that inures as an enlargement of the seignory . so the mesne being a fem marries the tenant , the lord reseaseth to the fem and her heirs all his right in the seignory , that inures to extinguish the seignory only , and not the mesnalty . but if he had released to the husband all his right in the seignory , or tenancy , the seignory , and mesnalty are extinct . but a release to the wife of all his right in the tenancy had been void . but if the lord had released all his right in the seignory to husband and wife . quaere , but some think it inures to extinguish the seignory , and not the tenancy . two jointenants in fee of a rent charge , a stranger receives it to the use of a. one releaseth to the pernor , and the other to the tenant : if by the last release he shall be said in possession ab initio , the first release to the pernor was void ; for the possession of one is the possession of both . if two disseisors grant a rent charge , and the disseisee releaseth to one , he shall hold it discharged ; for the grant of the other by the release is discharged , and the grant being but by one is discharged as to all . and the pernor shall hold it subject to the agreement of a. for some think there shall be an election after , as if he had granted his part to a stranger . a release to one tenant in common will not inure to his companion for want of privity . a. seised of an house on the part of his mother , is disseised by two , and they have estovers granted to them in the same house , the disseisee releaseth to one , the estovers remain for part ; for as to a stranger the release doth not countervail an entry and feoffment . as if a disseisor takes a confirmation to hold by lesser services , and after the disseisee releaseth , yet he shall take advantage of the confirmation . if the son endows his wife , ex●●assensu patris , and the disseisee releaseth to the disseisor , if the dower shall be avoided or not ? a warranty made to the disseisor is not gone , by a release made by the disseisee . if a disseisor having a wife makes a lease to a. for life , who makes a lease to b. for life , the disseisee releaseth to b. the wife of the disseisor shall be endowed ; for the release doth not amount to an entry and feoffment . two fems disseise one , one marries , the disseisee releaseth to the husband in fee , that goe●● by way of extinguishment to both the women ; for it cannot inure as an entry and feofment to one woman , for she is not privy to the deed , and as an entry and feofment to the husband it cannot inure ; for he was in by title : and if the release had been to the other woman , that should not have devested the possession of the husband . the lord disseiseth the tenent and is disseised , the disseisee releaseth to the disseisor of the lord , the seignory is extinct ; for it doth not countervail an entry and feofment in respect of the lord , but extinguisheth the right of the lord to the land , in which right to the land , the right which he had to the seignory was suspended . but if the lord and a stranger disseise the tenant , and the tenant releaseth to the stranger , the seignory is revived , for there it inures as an entry and feofment against the lord , and the lord had not the right to the land : so if the lord dies , and the other hath that by survivorship . remainder land is given to husband and wife , and to the heir of the husband begotten on the body of the wife ; and if the husband dies without issue by the wife , then the land to remain to a. in fee ; the husband and wife die without issue , a. enters , upon whom the feoffor enters , and a. brings an assize ; some think it is maintainable , 14 h. 6. 25. such a limitation good . tenant in tail makes a feofment and dies , the discontinuee makes a gift in tail , the remainder in fee to the first issue in tail , the second tenant in tail dies without issue , his wife enseint with a son , the issue of the first entail enters , and after the other issue is born , and enters upon him , and he brings an assize ; some think it is not maintainable . a fem lessee for life marries , a confirmation is made to them two for their lives , that is a remainder in the husband , by reason of the joint-estate of the wife . so if land be given to a. & b. for the life of b. and after a confirmation is made to them two for their lives , that is a remainder in a. and the jointure remains . land is given to husband and wife , and to the heirs of the body of the husband , the remainder to husband and wife in speciall tail ; the remainder is void . if a lease be made for the life of the lessee , the remainder to the lessee for the life of a. that remainder is void . if land be given to one , habendum to him and the heirs males of his body , and the heirs females of his body , he shall have it as a remainder . land is given to two women , quam diu simul vixerint , the remainder to the right heirs of her who first dies ; one marries , and hath issue and dies ; it seems the remainder is good notwithstanding the incertainty . but if the land shall be assets in a formedon or debt against the heir , quaere ? some think it is not , for it was never in the mother . the donor disseises tenant in tail , and dies , and the heic who is in by descent makes a lease to the issue within age , the remainder in fee , tenant in tail dies , though the issue be remitted yet the remainder is good , because it was a livery once , and the remitter was subsequent , as if the lessor disseiseth his tenant for life , and lets for the life of the disseisee , the remainder in fee , the disseisee enters , yet him remainder shall hold it : but in both cases it is a reversion , and not a remainder . quaere of the first case . if a lease be made for life upon condition , that if the lessee shall not have issue during his life , that then it shall remain in fee to a. and he dies without issue , the remainder is void ; for although a remainder may be limited upon condition , yet the condition ought to be performed during the life of tenant for life . but if the condition had been that if he had issue during his life , that then it should remain , the remainder had been good , if he had issue , 7 h. 4. 6. a rent granted to one for the life of a. the remainder to the right heirs of a. that cannot be during the life of a. and yet thought to be a good remainder ; for it vests in the same instant that the first estate determines . a remainder may be good to him that had the remainder before . tenant for life makes a lease for life , the remainder to his lessor , and a stranger in fee , some think the stranger shall take all ; for he cannot give a fee in any part to him that had a fee before . remitter . tenant in tail makes a feoffment and dies , the discontinuee makes a gift in tail , the remainder to the issue in fee , the second tenant in tail dies without issue , his wife enseint with a son , the issue in the first intail enters , the son is born , and enters upon him , and he brings an assize , it is maintainable ; for the remainder is limited to the issue in the first intail , and he by vertue of his remainder enters , then he is remitted , but dy. 129. makes it a quaere , but bendlows 195. he is remitted , and so is the inst . 357. 11 h. 4.1 . if the disseisee enters upon the heir of the disseisor , and grants a rent charge and dies , the issue shall hold it discharged ; for though he hath the right form the same ancestor that granted the rent charge , yet he is remitted to another possession than descended to him . and if the heir of the disseisee enters upon the disseisor , and grants a rent charge , and the disseisee dies , because a new right is come to him , he is remitted , and the grantor shall hold it discharged . but if the son disseises the father , and grants a rent charge , and the land descend to him , the son shall hold it charged ; for he is not remitted ; for the right descended to him from the same person to whom he did the wrong , and he shall be disabled to claim a right from him whom he disseised . but in the other case he claims the right from another . if the father disseiseth the grandfather and dies , after he hath granted a rent charge , and the grandfather dies , the son shall hold it discharged ; for he claims from the grandfather , quaere ; for the entry of the grandfather was taken away , and then when the right of one , who cannot enter , descends , the tenant is remitted . quaere , but if there be lord , mesne , and tenant , and the tenant aliens in mortmain , the lord paramouns enters , and grancs a rent charge , and after his title is come , viz. the year past , and the mesne hath not entered , the lord shall hold it discharged , and his issue too , as it seems , for he shall not be remitted for a title , as he shall for a right accrued ; but it seems he may bar him upon whom he enters , if he brings an assize , and that by his title . grandfather , father , and son ; the father disseises the grandfather and dies , the son endows the wife of the father , the grandfather dies , the son may enter upon the tenant in dower , for he hath a new right descended from the grandfather , and the entry of the grandfather was congeable upon the tenant in dower , so shall the entry of his heir . but if the son had granted a rent charge , and the granfather had died , he should hold it charged , and should not be remitted ; for the entry was not lawfull upon him , and when a right descends from the grandfather , he shall not be remitted . if the issue in tail procure one to disseise the heir in by descent , against whom the heir recovers , and dies , the issue shall retain ; but if he himself had recovered against the disseisor , upon a title in being to him , he shall not be remitted . quaere , if his father disseisee dies , and he recovers a gainst the heir , or the disseisor , by a formedon , if he shall be remitted ; for the wrong was made to the estate tail at that time : and if one hath title to a formedon , and he procures one to out the tenant , to the intent that he may recover against him , and the stranger outs him , and a stranger recovers by a puisne title to the procurer , and the other recovers against him by a formedon , he is remitted . if two jointenants have title of action , where their entry is taken away , and the one procures a stranger , ut supra against whom they two recover , and he who was party dies , the other is remitted to all ; but if he which did not procure had first died , the other had not been remitted , but to a moity , quaere ? if the issue in tail within age by covin commands a. to disseise the discontinuee of his father , a. disseises him to the use of b. for life , and after to the use of his own right heirs , b. agrees , a. dies , b. dies , the heir of a. enters , and enfeoffs the issue ; he is remitted , because he is now within age . tenant in tail levies a fine , and takes back an estate in fee upon condition , and dies , the heir enters , and is remitted , and after the proclamations pass , if that takes away the remitter , and if the condition remains ? quaere . if two jointenants are disseised by the father of one of them , who dies seised , and his son enters , he is remitted to all the land , and his companion may enter with him : and it is not like where two are disseised , and a descent cast during the non-age of of one , and he enters , and is remitted to a moity , his companion shall not enter ; for the advantage is given him more in respect of his person than of the land . neither is it like where tenant in tail enfeoffs one daughter , and dies , she being within age , she is remitted , and her companion shall not have advantage of it ; for the right was not in them before . nor where they have a joint title of formedon by descent , and the land descends to one only , his companion peradventure shall not take advantage of it , for the estate tale was taken away , but here it was not . but if the grandfather had disseised , &c. and the land had descended to the father , and from the father to him , it will be otherwise , for his companion shall not have advantage , for the entry was taken away before . if the discontinuee makes a lease to the issue in tail and another , with livery to the other , and after grants the reversion to the issue , and the other dies , so that the freehold is cast upon the issue without his folly , yet he shall not be remitted ; for he assented to the reversion upon the lease for life . a disseisor dies without heir , his wife enseint , the lord enters , a son is born , the disseisee enters upon the lord : if the entry had been before the birth , it had been lawfull , and he had been remitted , and the birth after would not have avoided the remitter : as if the discontinuee makes a gift in tail to one , the remainder to the issue in tail , if the first donee dies without issue , his wife priviment enseint , now the issue in the first intail is remitted , and though the issue of the second donee be after born , the remitter continues ; but here the entry is not till after the birth of the son , for if a stranger had abated , the disseisor having issue , or if after abatement a son had been born , the disseisee could not enter . a disseisee , releaseth all actions to the disseisor , and dies , and after the disseisor dies , and his heir enters and dies , and the land discends to the heir of the disseisee , if he be remitted ? some say there can be no remitter where there is a cause of action , so that without his folly he hath not any body against whom he may bring his action , but though he hath no action here , yet he hath not lost it by the law , but by his own act , and the right remains , which is the cause of his remitter , and in many cases a right shall remain without an action , as if there be tenant for life of a seignory , and a tenancy escheats , and a stranger intrudes , tenant for life dies before entry , he in reversion cannot have any action , but may enter , as upon the disseisor , of his tenant ; but if he dies , and his heir be in by descent , there he cannot enter , and yet he hath a right , and shall be remitted upon a discent . if a fem tenant in generall tail marries an infant who aliens and dies , and his heir enters upon the feoffee , the wife re-enters , she is not remitted . tenant for life , the remainder in fee makes a gift in tail , the remainder in fee , he which had the first remainder releaseth all his right to the donee , without saying to his heirs , and dies , the donee dies without issue , the heir of him in remainder enters , if he be remitted ? if the disseisee takes an estate in fee from him who had the land by descent , he agrees unto it , and yet if he dies seised , his heir shall be remitted . the issue in tail within age having a title to bring a formedon , accepts from the discontinuee a bargain and sale inrolled , he shall not be remitted ; for he is in by the statute . tenant in tail , the remainder to his right heirs , makes a lease to the issue within age , upon condition to have fee at full age , during the term he performs the condition , he shall be remitted ; for the contract was during his minority . as if an infant delivers a deed as an escrowl , to be delivered as his deed when he comes of full age , and receives the money , yet he shall avoid the deed. vide release & condition . rent . lessee for life makes a lease for forty years , rendring a rent , the lessor confirms the estate of the second lessee , and then tenant for life dies within the term , the lessor distrains and avows for the rent , some think it is not maintainable . lord and tenant by homage , fealty , and rent , the lord grants his homage upon condition , reserving the rent , the condition is broken , he hath no remedy for the arrerages due before . tenant in tail discontinues in fee , and takes back an estate in fee , and grants a rent charge in fee , and dies , the lord seiseth the ward , the grantee distrains for the rent , and the lord makes rescous , and the grantee brings an assize , som e think it is maintainable . lessee for life makes a lease for ten years , rendring a rent , the lessee for years makes a feofment , he shall hold the land discharged of the rent , though it binds the lessee for life ; for the rent cannot indure longer than the reversion ; and though he had granted it to a stranger , yet had it been gone , and so it differs from the other , which is not in respect of the reversion . and if a man makes a lease for life , reserving a rent to the use of a. and tenant for life surrenders , the rent is gone , 1 ass . 10. if the mesne grants the rent of the tenant , and the tenancy escheats , the rent is gone . a. makes a lease for life , and grants a rent charge , out of the reversion ; the grantee purchaseth the estate of tenant for life , who dies , and the lessor enters , if the grantee may distrain for all the arrerages from the time of the grant ? a rent is granted to commence after the death of the grantee , who dies , if his wife shall be endowed ? the father dies seised of a remainder , having two sons by two venters , the eldest son being tenant in tail of the particular estate grants a rent charge in fee , and dies without issue ; the second son enters , and an avowry is made upon him for the whole charge . if a man hath two daughters by two venters , or by one , he dies , and the eldest grants a rent charge , and dies , before entry into the land , some think the youngest shall hold all the moity charged ; as if one jointenant grants a rent charge and dies , the survivor shall hold all difcharged . if land be devised , reserving a rent , that is a void reservation ; for the reservation of the rent cannot be good ; but in respect the reservor might take advantage of it by possibility ; and the heir cannot have that which the ancestor could not ; for if a re-entry be reserved to the heir it is void . if tenant in tail holds by rent , and the donor grants the services of the donee , nothing passeth , though there be atturnment ; for the rent cannot passe but as a rent service ; for if there be lord and tenant by rent and fealty , and the lord grants the services saving the fealty , nothing passeth ; for it must passe as a rent service ; for it is granted by the name of services ; for a rent seck , or rent charge cannot passe by that word . quaere , if the sueing be not void for the repugnancies , and as a rent service it cannot passe ; for then the donee should pay one fealty to the grantee , and another to the donor for the reversion , and so the donor should charge him with two fealties , which cannot be , no more than the lord can grant the moity . tenant for life grants a rent charge in fee , and after he and the lessor make a feoffment of all their land in such a town where the land lieth , and make a letter of atturny to make livery , yet the rent indurcs but for the life of tenant for life ; for it is but a grant of the estate of tenant for life , and also of him in reversion . but if they had made a feoffment of that land only , then the rent should endure for ever ; for it is the feoffment of tenant for life , and the confirmation of him in reversion . quaere , for the deed is first delivered ; and after the livery is made , and the reversion passeth by the delivery of the deed ; for it is an atturnment of the tenant for life by the delivery of the deed. if a man reserve a rent upon a lease for life , he hath not a fee in it ; for his wife shall not be endowed , but if lessee for life grants a rent in fee , a fee passeth : for by possibility it may endure for ever ; that is , if the lessor confirms it . but if tenant for life grants a rent in fee to the lessor , who grants it over , yet he shall avoid it after the death of tenant for life ; for it cannot be a confirmation though it were granted by dedimus & concessimus ; for the grantee had not possession of it before , and one and the same word at the same time cannot amount to a grant and a confirmation also . and therefore if a disseisor grants a rent charge to the disseisee , and he grants it over , and after re-enters , he shall hold it discharged . if tenant pur auter vye grants a rent charge in fee , and after he hath the reversion by descent , or release , & cesty que vye dies , he shall hold it discharged ; but if after the fee was vehe had made a feoffment , the feoffee should not have avoided it after the death of cesty que vye . a seignory is granted for years , the rent being arrear , the tenant dies , the years expire , the heir shall not be charged as heir in debt , if the father did not bind himself and his heirs by expresse words , and the executors shall not be charged ; for they were not chargeable with it at the death of the testator ; for at that time the grantee could not have had an action of debt for it ; but he must have distrained , and so the lessee is without remedy . if a rent be granted to one and his heirs , and if it be behind , that he shall distrain for the life of a. during the life of a. it is a rent charge , and after a rent seck , and some think that seisin of a rent charge is sufficient to have an assize for a rent se●k . if a reversion be granted rendring a rent . quaere , what rent it is during the particular estate , but after the particular estate be determined , it is a rent service . if a rent be granted out of two acres , and if it be behind , that he may distrain in one , that is but a rent seck ; for it is but one rent which cannot be wholly a rent charge ; for the other acre is not charged , and the distress is but a penalty . and if a rent in fee be granted , and if it be behind two years , that the grantee may distrain , now it is not a rent seck during the two years , but a rent charge distrainable after the two years . and if a rent be granted to one , and if it be behind , his heirs shall distrain , the distress is void ; for there is not any such person in rerum natura , and it shall never be a rent charge because it was not one at the beginning , but if the distresse had been limitted to a person in esse , then it should have been a rent charge , as 46 e. 3. 18. if the lord grants his seignory , reserving a rent , the seisin before will not be a sufficient seisin of it . if a rent be granted to two , and if it be behind , that one may distrain , that is a rent seck for one moity , and a rent charge for the other moity , because one hath another benefit than the other . if a rent be granted for life , and by another deed the grantor releaseth all his right in the rent to the grantee , and if it be behind , that he and his heirs shall distrain , although the heir shall have it by distresse , as it is adjudged in 8 h. 4. 18. yet the wife shall not be endowed ; for it is yet but a rent seck , and the distress but a penalty , and it is no new rent which commences after the death . for if a rent be granted for life , and by another deed the grantor grants , if the rent be behind he shall distrain the remainder in fee , the remainder is void ; for he doth not take such an estate which will support a remainder . if a rent be granted our of the mannor of d. and if it be behind he shall distrain in the mannor of s. the grantee purchaseth the mannor of s. yet the rent remains , and if he doth not purchase all the mannor the distress shall remain in the rest , and yet the penalty was a thing against common right . tenant in tail makes a lease for forty years , reserving a rent , and after dies , the heir suffers the lessee to continue in two or three years , and then outs him , he hath no remedy for the rent arrear after the death of tenant in tail , no more than the lessee hath for the arrears incured after the breach of a condition , where he hath entred for the breach of the condition , and it seems he shall not have an action of accompt against him as bailiff of the land. a rent seck is granted for life , and after the grantor confirms his estate , and if it be behind , that he and his heirs shall distrain , it is a rent seck stil for life , and the grantee hath the rent charge in fee in remainder ; for he hath not two rents . as if the lord of a mannor grants the homage and fealty of his tenants , saving the rent , it is a rent seck , and shall be parcell of the mannor , now if the tenant will grant to the lord , that he and his heirs shall distrain for that rent , yet the rent is parcel of the mannor , and the distresse but a penalty , but if it were a rent charge , it shall not be said parcell of the mannor , because it shall commence but now . if the lord grants the rent of his tenant to one for life , saving the seignory , and then grants the seignory and reversion of the rent to the grantee , yet it must be a rent seck during the life of the grantee , and after a rent service ; for the reversion of the rent , which was a rent service cannot drown the freehold of the rent , which was of another nature , no more can the reversion of the rent charge drown the freehold of the rent seck in the principal case . but in the last case , if the grantee had re-granted the rent seck to the grantor , who had the reversion , that will operate as a surrender . quaere , what diversity where the reversion comes to the freehold , or the freehold to the reversion ? if a rent be granted out of two acres , and if it be behind , that he shall distrain in one , that is not a rent charge in any part ; for the distresse is not limitted out of all the land. if twenty shillings be granted out of the mannor of d. and if it be behind , that he shall distrain for that twenty shillings , and another twenty shillings out of the mannor of s. the first twenty shillings is but a rent seck , and the distresse a penalty , and the last a rent charge in the mannor of s. but if one grants a rent out of the mannor of d. and if it be behind , that he shall distrain in d. and s. that is a rent charge in the mannor of d. and a penalty in the mannor of s. if a rent be granted to one for the life of a. and after the grantor grants by another deed , that he shall distrain for his life , with a remainder in fee , that is a good remainder , if the first rent be determined , but if the distresse be appointed for the life of a. or b. it is otherwise ; for it is but a penalty , but in the other case the estate is given also , though it be a penalty during the time of the appointment of the determination of the first rent . if twenty shillings is granted out of d. and that the grantee and his heirs shall distrain for that twenty shillings , and other out of the mannor of d. and s. for the first twenty shillings it is a rent charge in d. and a penalty in s. and for the other it is a rent charge in both . if a rent be granted out of two acres , with a distresse in one , and after the other is recovered by an eigne title , it shall be a rent seck , as it was before ; for it cannot be now a rent charge , if it were a rent seck before . if a rent reserved upon a lease for life be granted over , and after a recovery is had in wast , yet the rent remains , as if the lord grants the rent , reserving the homage , the rent remaines after the escheat . a rent is granted in fee out of land in borough english , and at common law the grantee dies , having two sons , the eldest shall have all ; for the rent is intire , and so not apporcionable , then the eldest , being he is heir at common law shall have all , as an assize at common law is maintainable for a rent granted out of ancient demesue , and other lands , 35 h. 6.4 . p. ashton . if a rent be granted in fee , and the grantee grants it for years , the grantee hath no remedy if it be denied ; for the election to have an annuity is only given to the first grantee and his heirs , and the election runs in privity , which fails in the second grantee . if a rent , incident to a reversion , be granted for years , saving the reversion , the grantee hath no remedy ; for he shall not have an action of debt , though the lease out of which the rent issued was for years ; for there wants privity . if a lease be made to two , habendum the one acre in fee , and the other for life , reserving a rent . quaere , how the lessor shall avow , but his executors are not aided by the statute of 31 h. 8. if a lease be made of two acres , reserving a rent for years , and then the reversion of one acre is granted , the rent shall be apporcioned ; for as the contract is made in respect of the reversion , so it shall be severed in respect of the reversion . a rent charge is granted in tail to the vse of a. and his heirs , the rent is behind , the donee dies without issue , a. brings an action of debt for the arrerages . if the parson and ordinary grant a rent charge out of the glebe to the patron , the successor shall avoid it ; for the assent of the patron ought to be expresse , and of the ordinary also where the successor must be bound , and it is but implied here , but the best way had been to have granted it to a. and he to have granted it to the patron ; and in the first case if the patron grants it over , that is no full assent , but the successor shall avoid it . if tenant in tail grants a rent charge in fee , and makes a lease for forty years , and dies , and the issue accepts the rent , the grantee shall have the rent during the lease and the life of the issue , although the lessee surrenders , quaere , for the reversion is discharged . if tenant in tail grants a rent in fee , and dies , and the issue having a wife dies before entry , his wife is endowed , she shall hold it discharged . if the father disseises the son , and grants a rent charge , and the son endows his wife ex assensu patris in the same land , the father dies , the son dies , the wife enters , she shall hold it charged , for she claims from the possession charged . and if tenant in tail grants a rent charge , the abator shall hold it charged . if the father disseises the son , and grants a rent charge in fee , and makes a lease for years , and the son confirms the lease , and the father dies , the rent is gone . so if a man grants a rent in fee , and makes a lease for years , and grants the reversion to the king , or to the grantee , the rent is gone . if a lease be made of two acres in one county , rendring a rent , and livery is made in both severally , yet it is but one rent , though one acre passed by the livery before the other . lessee for twenty years makes a lease over , and makes a lease of other land , in which he hath an estate in fee simple for twenty years , reserving a rent , without deed , the whole rent doth issue out of the lands in which he hath an estate in fee ; for being he hath granted all his right over in the other land , it cannot be a reservation out of that . if a mangrants a rent for life , and after by another deed grants , that it shall be lawfull for the grantee and his heirs to distrain for the same rent , that shall be intended a rent of the same value ; for that rent is determined by the death of the grantee . as if the king grants to the mayor and commonalty of d. the same liberties which the mayor and commonalty of london have , that shall be construed liberties of the same nature , if a man grants to me , that whereas he hath made a lease for forty years to a. that i shall present to the advowson which the lessor hath during the same term . if a. surrenders the mannor , yet i shall present ; for when my grant was during the same term , that is to be understood during the like time . if the patron and ordinary give license to the parson to grant a rent in fee , if he does it , that will bind the successor according to the opinion of 7 h. 4. 18. but if a confirmation had been made to the grantee before the grant , that had been void ; and the diversity is this ; for in the first case there was nothing requisite but an assent , which may be before the act is done , and therefore it is said , that if a bishop makes a gift in tail by deed , and the dean and chapter confirm the deed , et omnia quae in eo sunt , according to the usuall confirmation in those cases , and after livery is made , that was holden by all the justices to be a void confirmation ; for the assent was not but to the deed , but the confirmation ought to be after the estate made , and so a diversity . if a rent seck be granted to a. for life , and after it is granted , that he and his heirs shall distrain for it during the life of the grantee , it is still a rent seck , though he may distrain for it , but the heir shall distrain for it and take it by descent . a. makes a lease for life , reserving a rent in fee , and then grants the reversion with atturnment ; and reserves the rent in fee , and dies , the rent is gone ; for it is reserved out of an estate for life only . so if tenant in tail of a rent grants it in fee , that is no discontinuance ; for it is granted but during the life of the grantor . if a. makes a lease for life , reserving a rent , the remainder for life , the lessor grants the reversion to him in remainder , the first tenant for life atturns , he shall not have the rent ; for the fee simple drowns the remainder to some purposes , but as to this it is in esse . a. grants a rent charge in tail , and enfeoffs the grantee of the land , who gives in tail , reserving to him so many services as he pays over to the lord paramount , and dies , the issue shall not have a formedon of the rent , being he hath the reversion ; for the land is discharged at the time of the gift in tail , 31 e. 3. scire fac . lessee for twenty years makes a lease for ten years , who purchaseth the reversion with atturnment of the lessee , the executor of the lessee for ten years , shall not have the residue of the term , but the heir ; but he shall pay the first rent reserved to the lessee for twenty years in nature of a rent charge granted by him ; for the term is in esse as to that purpose , but it seems the first lessee may distrain . if two parceners are seised in tail , and one grants a rent to the other for equalty of partition , she shall have an estate tail in the rent , 2 h. 7. 5. and note that the estate in the rent shall be of the same nature of the estate received , and not of the nature of the estate out of which it issues . as if there be two parceners of one acre in fee , and of the other in tail , and upon partition she which hath the acre in fee grants a rent to the other , that rent shall be in tail , and not in fee , but if she which hath the acre in tail grants a rent to the other , that shall be in fee ; for if she dies without issue , her heir shall have it as long as the other hath issue of ber body . but if there be four acres in fee , and one in tail , and she which hath the four acres in fee grants a rent to the other , that shall be in fee , quia sequitur magis principale . if the lord grants the rent , saving the seignory , and the tenant is after disseised , and atturns , this is void , for it is now a rent seck , in which there is no attendancy , but a charge to the land. if a man grants a rent , reserved upon a lease for life , saving the reversion , it is a good rent seck , if the tenant atturns . but if there be lessee for years , rendring a rent , and the rent is granted over , saving the reversion , that is void ; for debt cannot lie by the grantee , and he cannot have any other action . if the feoffec upon condition pays twenty shillings to the lord , whenas the tenure was by fine , the feoffor after his entry for breach of the condition is bound in a replevin . so if lessee for life with condition to have fee , and the lessor pays more rent to the lord than he ought , and after the condition is performed , the lessee is bound in a replevin . so if a seignory of twenty shillings is granted over by fine , and the tenant aliens over , and after pays forty shillings to the lord , the feoffee is bound . if a lease be made for life , rendring the first four years a rose , and after a yearly rent of twenty shillings , and the lessor grants the rent of twenty shillings to commence after the four years , this grant is void ; for the rose and twenty shillings are all one rent , and if the grant should be good , the grantor should have the rose for four years , whereas before he had the freehold , and then it is as if one had a rent in fee , and grants it over after four years , that grant is void , otherwise of a rent created de novo . if a man hath a rent in fee , and becomes tenant by the curtesie of the land , and dies , his heir shall have a mortdancester of the rent , which he could not have had if his ancestor had not died seised . so if an assize be brought against the pernor of a rent , and after the plaintiffe is nonsuited , the disseisee of the rent is chased to his action for the rent ; for the dying seised takes away his entry , viz. where the pernor had an estate for life in the tenancy . lessee for twenty yeares makes a lease for ten years , reserving a rent , and after makes a lease to the same lessee for ten years , to begin after his first estate ended . it seems that the first lessee shall have the rent during the first ten years , as a rent service , and distrain for it ; for the last ten years are not out of the first lessee , nor vested in the other , neither shall they , untill the beginning of the term , and in the mean time he hath but a right or title to the term. if tenant for life , and he in reversion grant a rent charge , and the grantee releaseth all his right to him in reversion , if the rent be extinct quaere . if a lease be made of two acres , rendring a rent upon condition to be performed by the lessee , that he shall have fee in one acre , not saying in which , and livery is made of both , the lessee performs the condition , what rent the lessor ought to have ? quaere , or if it shall be apporcioned , being part of the reversion to which the rent is appendant is in the lessee , and by an act that had relation : so that it may now be said , that the rent was never reserved out of that acre , which seems to be of the same effect as if there had been a gift made of two acres , the one in fee , and the other for years , rendring a rent , in this case it shall be of one only acre ; for he may distrain of common right , and out of the other acre no remedy until after seisin . also in the said cafe if the lessor will distrain in one acre , the lessee shall take his election , viz. he shall say that he hath fee in that acre , and so exclude the lessor . the son makes a lease to the father for life , who makes a lease to a. for life , the remainder in fee to the son , the son grants a rent charge out of the remainder , and releaseth to a. in fee , the father and a. die , if his issue shall hold it charged ? first , it seems that the right fee is devested , and a tortious vested all in the same lastant . as if tenant in tail makes a lease for life , &c. or the husband makes a lease for life of the wives land , &c. then in the first case , the rent being granted out of the reversion , it is the same as if it had been granted out of the remainder ; for they differ not in substance . and when the son releaseth to a. and his heirs all his right ; that doth not inure as an entry and feoffment , because a. was in by title , without disseisin , then that doth not give unto him the remainder , as if he had released all his estate in the land , or all his right , habendum the land in fee , but here he had the right and the estate , and then a release of right doth not inure to the estate , then if the release doth not perfect the remainder , if the grant of the rent , which is an assent to the remainder , doth so inseperably unite the remainder and the rent , that the right shall be drownd in the estate for the preservation of the rent ? and some think not ; for if the disseisee takes an estate in fee from him who hath the land by descent , he agrees to it , and yet if he dies his heir shall be remitted , and so the rent charge avoided . but others think that being by the grant of the rent charge he hath agreed to the remainder , and so to the livery , he cannot after enter upon the tenant for life , and then the release gives the remainder , and so the land is charged . where a woman shall be endowed of a rent , vide dower . if a rent seck be granted , and after it is granted that he may distrain in the same land , and after the grantee brings a writ of annuity , if he may dristrain after . quaere , viz. if there be one or two rents ? a rent charge is granted out of two acres , the tenant of the land conveys away one , the grantee of the rent may distrain in one or the other : but if one tenant pay the rent , if the other be distrained he may plead payment by his companion . a fem hath a rent seck and marries , the tenant grants to the husband , that he and his heirs may distrain for the rent , the husband & wife die without issue , the distress is extinct ; for the heirs of the husband are only privy to distrain , and they cannot distrain so ●● rent due to another . but if a man hath a rent on the part of his mother , and the tenant grants that he ●● his heirs may distrain for the rent , and he dies without issue , there the distresse shall go to the heirs on the part of his mother , and if they grant the rent to distranger the may distrain . but if the tenant grants to the lord of the mannor that he shall distrain , ut supra , and he aliens the mannor , the alience shall not distrain out of the mannor , and in that case the penalty of the distresse is gone , but in the other case , the grante being of a distresse in the same place out of which the rent issues , this is now a rent charge , and by consequeuce the distresse shall passe to the grantee : but if the grant of the distresse had been in another place , then it had been but a penalty , and could not have gone to the heir on the part of the mother , non to the assignee of the same rent , and therefore the penalty being severed from the principall by act in law , or in deed , the penalty shall cease . vide parceners , lease , atturnment . reservation . if a rent be reserved to the lessor , he shall have it but during his life ; for it was not reserved longer . and if it had been ceserved during forty years he should have had it no longer . but if the rent had been reserved generally , and not expressed to whom , that shall be to the m●●ssoc and his heirs ; for the law will direct it . if lessee for twenty years makes a lease for ten years , reserving a rent to him , his executors shall have it ; for they represent the person of the testator . if a gift in tail be made reserving , during the life of the donor a socage tenure , and after knights service , that is a good reservation , and it shall be according to the words , and his wife shall be endowed of the knight service . if a lease for life be made , rendring a rent for the first seven years , he shall have an assize for it ; for it is adjudged in 7 e. 3. 10. that an action of debt will not lie for the rent . dy. 23. a. spilman cont . although littleton saith a man cannot reserve a rent but to the lessor or his heirs , yet if a man makes a lease , rendring a rent to his heir , that is a void reservation ; for his heir shall take as a purchase , and is as a stranger . but littleton is to be understood so , that the disjunctive must be taken for a copulative . if a feoffment be made of a mannor , reserving to the feoffor an acre for twenty years , the feoffor hath a fee in it , and nothing passeth of it ; for it cannot passe by the livery , and he cannot passe it to himself , or reserve it for a certain time ; for then he should have a lease for years without a lessor , which cannot be . if a dean and chapter make a lease , reserving a rent to them , their successor shall have it because they never die . if a man upon a gift in tail reserve socage tenure the first ten years , and after knights service , within the ten years the donee dies , his heir within age , if he shall be in ward during the first ten years , or after , if they expire during his nonage ? if a feoffment be made of a mannor , reserving one acre , that is a good reservation ; but if a feoffment be made of twenty acres , reserving one acre , that is void . if a lease be made of land and wood for life , rendring twenty shillings rent , viz. ten shillings for the land , and ten shillings for the wood , the rents are made severall . if there be lord and tenant by fealty and twenty shillings rent , and the tenant makes a gift in franckmarriage to hold of him by fealty only , untill the fourth degree be past , and after that by twenty shillings , and knight service , in that case , after the four degrees he shall neither have the twenty shillings , nor the knight service ; for though he reserved but fealty until the four degrees were past , yet it is an intire reservation presently , and the services be in him although they be not to be performed untill the four degrees be past , and seifin of fealty shall be a seifin of the remnant , wherefore being the reversion is intire , that is the reason that it is void . for all cannot be reserved upon the gift in frank-marriage . if a man makes a lease to two , habendum the one moity to one , the other to the other , reserving one hauk , or a lease pur auter vye to a. and a dean and chapter , reserving one hauk , or if the land the beginning goeth two severall ways , and but one hauk , is reserved , he shall have no more . reversion . if one acre be given in tail , which is holden in socage , and another acre which is holden in chivalry , saying nothing , the donor shall have severall services , and make severall avowries , though he hath an intire reversion ; for the law makes the avowries in respect of the tenure over ; and he holds the reversion of one acre of one , and of the other acre of another , and they shall escheat severally . if a reversion be granted to tenant for life and a stranger in fee , the jointure of the fee is severed ; for the tenant for life hath a fee simple in the moity vested presently , but if the reversion had been granted to tenant in tail and a stranger , there the jointure remains . but if the husband be tenant for life , and the reversion be granted to him and his wife , the fee remains in jointure ; for there is no moities between them . a lease is made for the lives of a. and b. the lessee makes a lease for the life of a. only , he hath the reversion notwithstanding the lease ; for he hath given a lesser estate than he had , if the second lessee dies , living a. an occupant shall have it , but others think the contrary ; for he had not before but one freehold , and by the lease to the second lessee he hath departed with the freehold , and the reversion of the same freehold cannot be in him . but if a lease is made to me for the life of a. the remainder to me for the life of b. and i make a lease for the life of a. only , i have a reversion for the life of b. for they were two estates , but here was but one estate , and all that grant was irrecoverable if a. survived , then the possibility of the surviving of a. doth not make a reversion in the first lessee . but it is as if i am lessee for the life of c. and i grant my estate upon condition , that if d. dies , living c. that i shall re-enter . i have no reversion notwithstanding this condition ; for if the condition be sufficient for me to enter upon an occupant . quaere . if the bastard endows the wife of the common ancestor . quaere , in whom the reversion shall be ? if tenant for life surrenders upon condition , and the lessor marries , and dies , and the wife is endowed against the heir , and after tenant for life enters for breach of the condition , and not by the wife , and no default in the heir , yet the wife shall not have the reversion of the land after the death of tenant for life : for the freehold which was the cause of her dower was taken away by an eign title . if a lease be made for life , reserving a rent , and the reversion is granted to the lessee for his own life , the grant is void , and he shall pay the rent ; but if the grant of the reversion to another for the life of the lessee , that had been good ; for he shall have the rent and take a surrender without livery . a lease is made to a. and b. fortheir lives , and after the reversion is granted to c. during the lives of a. and b. they make partition and a. dies ; the question is , if the first lessor shall have his part after his death , or c ? some think the grant of the reversion was good ; for if the tenant for life had entred into religion c. should have the land , quaere , of this forreign intendment ; but if the reversion doth passe , the rent shall passe as a rent service . and if the first estate had been upon condition , to cease , c. should have had it during their lives , then it seems the partition severs the reversion ; for though by the first grant he was intitled to have the reversion so long as either of them lived , that was in respect of the jointure , and when that is severed , so is the reversion , so that the first lessor shall have it after the death of tenant for life , and not c. quaere ? if a lease be made for twenty years , rendring a rent , and the reversion is granted for ten years , that is a good grant , and he shall distrain for the rent , quod nota . if husband and wife accept a fine , sur conusans de droit come ceo &c. of the wives land from b. and they render it to him in tail , yet the reversion is in the wife only ; for the husband had nothing but by reason of the coverture . if the donor confirm the estate of the donee in tail , that is a grant of the reversion in law. a recovery is had against tenant for life upon a false oath , he in reversion dies without heir , tenant for life brings an attaint , and reverseth the judgement : to whom the reversion is recovered , is the question ? vide remainder . reviver . if the tenant makes a lease for years to the lord , and he makes a lease for life , and the tenant enters , the seignory is revived after the death of the tenant for life , notwithstanding there was a disseisin , and the lord was the disseisor by the statute . if the tenant enfeoffs the lord upon condition , and enters for the condition broken , the seignory is revived . but if the lord grants his seignory in fee to one who hath the tenancy with a condition , and after the feoffor enters for the condition broken before or after , the seignory is gone in both cases . if the lessor recovers in wast against the lessee for life , who comes to the seignory after the wast committed , the seignory shall be revived : but otherwise if wast had been made after the seiguory accrued . if after a dissent the disseisor comes to the possession again , the entry of the disseisee is revived . if a bastard dies seised , leaving issue , who endows his mother , the mulier may enter ; for the wife is endowed by an eign title , and so the right is revived . if a disseisee enters upon a dissent , and dies seised , and the heir endows his mother , the entry of him who was in by descent is revived . if the tenant enfeoffs the heir of the lord upon condition , the lord dies , the condition is broken , the seignory is revived . if the grantee of a rent charge in fee grants to one , that if he pays to him or his executors twenty shillings by such a day , that he shall have rent in fee , the grantee dies without heir , the second grantee pays the money to the executors according to the appointment , the rent is revived . a. having common sans number in tail in two acres , purchaseth one acre , and then hath issue , and dies ; so that the common in one acre desdescends to the same issue , if the common shall be revived in the other ? if the issue had recovered one acre against the grantor by a title before the grant , there it shall remain in the other acre ; for then it is as if but one acre had been charged at the first ; but upon a dissent there can be no apporcionment ; for it is gone and suspended for all , or revived in the residue for all ; for common without number is intire , and cannot be severed , but common certain may be apporcioned upon a dissent . if the lord disseises his tenant , and is disseised , and the tenant enters , the seignory is revived . if tenant for life aliens in fee to the grantee of a rent in fee by his lessor , and the lessor enters for a forfeiture , the rent is revived . seisin . lord and tenant , the lord having a son dies , the tenant makes a feoffment , the son hath seisin of the rent by the hands of the feoffee ; if this seisin be sufficient for the son to maintain an assize against his disseisor after ? severance of the jointure . if two jointenants make a lease for life , and after one grants his part to a stranger for the life of the lessee , some think it is a severance of the jointure . if two women jointenants be mesnes , and one of them marries the tenant , the moity of the mesnalty is suspended , and the jointure severed . vide jointenants . statutes . the husband is bound in a statute merchant , & after he and the wife levy a fine of the land of the wife to a. the husband dies , the statute shall not be extended in the hands of a. for nothing thing passed from the husband but the estate which he had during the coverture , which is determined by his death ; and a. shall have the same benefit which the heir of a. should have had , or as he should have if the wife had been discovert , and had granted it ; for it is lawfull for a fem covert to grant her estate by fine , and then it would be against reason , that the grantee of the wife should not have it with the same advantages which the wife should have . but if the land had been in execution , then it had been unavoidable , because it had been executed . if tenant for life and he in reversion levy a fine , it shall be lyable to the statute of tenant for life during his life only , and never shall be lyable to the statute of him in reversion ; for though the words of the fine be joint , yet he may avoid it by shewing the truth of the matter . so in the principall case he may shew that the estate of the husband was during the coverture only . if the grantee of a rent charge dies without heir , the land shall be bound with a statute merchant entred into by him ; for though it be determined , yet the determination shall not have relation ; for if the tenant be bound in a statute , and dies without heir , it shall be extended against the lord by escheat . and if one manumits a villain , a statute in which he was bound shall be executed upon him , if the writ of execution did issue out against him before . land whereof a man hath onely seisin in law shall be lyable to a statute . the conisor of a statute is in execution and his land also , the conisee releaseth to him all his debts , the execution it discharged ; for the debt remains untill it be levied of the profits . if the son be tenant in tail , the remainder to the father in fee , the father is bound in a statute , and dies , and the remainder descends upon the son , he aliens in fee , or suffers a common recovery , the land is lyable to the execution presently . as if the lord had recovered in a cessavit against tenant in tail with a remainder over , being charged , the land in the lords hand shall be lyable to the statute of him in remainder presently , as it shall be to the grant of a rent by him , though as a remainder it was not lyable . surrender . lessee for forty years makes a lease for ten years , rendring a rent , the first lessee surrenders , and the lessor brings debt against the second lessee . quaere . if lessee for years makes livery , as atturny to the lessor , it was ruled in 34 eliz. in c b. to be no surrender . tenant for life cannot surrender to him in remainder for years ; for he hath a freehold in possession , which cannot drown in a chattle . if a lease be made to commence at easter , and before easter the lessee takes another lease to begin presently , if that be a surrender ? some think it is . a lease is made for ten years , and after another lease is made to begin after the first lease determined , the first lessee surrenders , the second lessee may enter , otherwise if the reversion had been granted for ten years . a lessee cannot make an actual surrender before entry . if a lease be made for years , the remainder for years , the remainder to the first lessee in fee , he in remainder may surrender to him , and yet he hath nothing in possession . so if there be lessee for years , the remainder for years and the fee descends to the first termor , he in remainder may surrender if a. makes a lease for years to b. to begin at michaelmas , and before the day he enfeoffs b. b. dies before the day , and his son enters , if the executor may enter upon the heir is the question ? tail. a dies leaving issue , two daughters , land is given by deed in tail to the youngest , and to the heirs of the body of the father begotten , and she hath issue and dies , and the issue brings a formedon against the eldest daughter : the question is what estate the daughter took ? tenant in tail in vse , the remainder unto his right heirs , enters upon the feoffees , and makes a feoffment , and takes back an estate in tail , the remainder to his right heirs , and after the stat. of 27 h. 8. is made , and he dies , how the issue may avoid the second estate tail , and take the first is the question ? it seems he cannot take the first estate in tail by no means ; for when he entered upon the feoffees , and made a feoffment , then the remainder in fee was not in him , yet by his feoffment a fee simple passed not determinable by his death , but defeasible by the entry of the feoffees , then the fee simple must needs pass being he had the vse to his right heirs , then when the stat. of 27 h. 8. was made , the vse not being in esse , but the right of an vse , the possession is executed according to the right of the vse , and then when he dies there is no remitter to the estate ; for that was not in esse . a gift in tail is made with warranty accordingly , the donee releaseth the warranty to the donor , and after the reversion is granted , and the donee atturns . if the issue in tail be impleaded he shall not vouch ; for the release hath extinguished the warranty for ever ; for the statute speaks of tenements , and a warranty is no tenement , but a covenant reall which is extinguished by the release , as if an annuity be granted in tail , a release of the donor extinguisheth it . if tenant in tail makes a lease to begin at easter , reserving a rent , and dies , and the issue in tail enters , and makes a feoffment before eastar , the feoffee cannot avoid the lease ; for the lease was not avoided by the entry of the issue . a lease is made for years , the remainder in tail , he in remainder grants it over in fee , the lessee atturns , the years expire , the grantee enters , and dies seised , tenant in tail dies , his issue may enter ; for the grant was not but for the life of tenant in tail , and then he did not die seised in fee , & if the dying seised had been after the death of tenant in tail , it should not have taken away his entry . tamen quaere . but if the issue of the issue of the grantee had entered , and died seised , there his entry had been taken away , and if tenant in tail enfeoffs the donor , who dies seised ; by most , that dissent will take away the entry of the issue . tenant in tail makes a feoffment , and dies , the feoffee makes a lease for life , and grants the reversion to the issue , he shall not have a formedon against tenant for life ; for he hath assented to the reversion . but if tenant in tail makes a lease , pur auter vye , and dies notwithstanding the dissent in fee of the reversion , the issue shall have a formedon ; for the reversion is waived by using the action . if donee in tail to him and his heirs males , the remainder to him and the heirs females of his body , makes a lease for years , reserving a rent , and dies without issue males , if the heir female accepts the rent she shall be bound ; for the lease was derived out of both their estates , and she comes in by descent , but if the heir male had made a lease and died without issue , the heir female cannot make that good by acceptance . if tenant in tail of a seignory , to which a villain is regardant , makes a lease to the villain for one and twenty years , according to the statute , and dies within the term : if the issue being remitted to the freehold of his villain may enter into the mannor , and out the villain ? tenant in tail of a seignory purchaseth the tenancy , and before the stat. of quia empto makes a feoffment thereof , reserving a new rent and dies , having issue , the issue of necessity ought to have the last seignory ; for that suspends the first . as if the lord being tenant in tail purchaseth the mesnalty in fee , the issue of him in whom both are suspended ) cannot distrain for the rent of the seignory , and choose to have that by descent ; for the mesnalty by descent cast upon him is not waivable ; for notwithstanding any act that he can do to wave it , yet the freehold & fee remains in him before which another hath that by pernancy , but it seems if any takes it before the issue makes an act to shew that he will discent to it , then he may distrain for the seignory . as if tenant in tail of a seignory purchaseth the tenancy and dies , the issue may distrain if another enters into the land before him , but if he enters , and after another enters upon hi● he cannot distrain after . tenant in tail , the remainder to his own right heirs , makes a lease to the issue within age , upon condition to have fee , and at full age , during the term he performs the condition , and after grants a rent charge , and the grantee is seised , and disseised , and brings an assize , and pending that tenant in tail dies , the assize is now abated by the remitter , though the performance of the condition was at full age ; for the contract was during the minority , which is the ground , and the issue shall avoid the charge . the donor disseiseth tenant in tail and dies , tenant in tail and the heir , who is in by descent make a lease to the issue within age for life , the remainder in fee : tenant in tail dies , although the issue be remitted , yet the remainder is good ; for it was once executed , and the remitter comes after . tenants in common . if the reversion be granted to tenant for life and a stranger in fee , the jointure is severed ; for the tenant for life hath the feesimple in the moity executed presently . but if the reversion be granted to tenant in tail and another in fee , the jointure in the eee remains , but if the husband be tenant for life , and the reversion is granted to him and his wife , the fee remains in them in jointure ; for there are no moities between them . if a lease be made to two , habendum the one moity to one , and the other moity to the other for life , and after a confirmation is made to them and their heirs , the jointure of the fee is severed and they are tenants in common thereofasthey were of the frehold ; for a confirmation inures according to the nature of the estate on which it inures , and doth not alter the estate , 9 h. 6.9 . but if the reversion had been granted to them in fee they had been jointenants of the fee presently ; for their fee in jointure drowns their severall estates of freehold . but if there be tenants in common for life , and two jointenants of the reversion , and one of them purchaseth of one tenant for life his estate , and the other of the other , the jointure is severed ; for when one of them purchased the estate of one tenant for life , he had the moity of the fee executed to the moity of the freehold , and by that the jointure was presently severed , but in the other case they come to the reversion at one instant , and that is the diversity . land is given to baron & fem , habendum the one moity to the husband , the other moity to the wife , and after the land is confirm'd to them in speciall tail , reserving a hauk , the donor shall have two hauks , for the husband had the one moity of the inheritance , because his possession was severed from the possession of his wife , so that of that moity the husband is seised in his own right in speciall tail , and the wife hath nothing in it . then of the other moity whereof the wife was tenant in common with her husband , the husband is seised in right of his wife , which is a sufficient estate , whereupon a confirmation may inure . if land be given to the husband for life , the remainder to the wife for life , and their estates are confirmed in tail , the husband shall have one moity in tail only , and he and his wife the other moity : and yet the estate tail is not executed for any part . quaere , for it is a good moot case . if land be given to two , and the heirs of their bodies begotten , and the donor confirms the land to them in fee , they are not jointenants of the fee : for the estate tail was executed to such purpose , and so the confirmation inures severally . if tenant pur auter vye be of a tenancy , and the seignory is granted to him and another in fee , the jointure is severed presently , and if cesty que vye dies , yet the seignory is not in jointure ; for it was so at the first . but if a seignory is granted to two in fee , and after one accepts the tenancy , pur auter vye , and cesty que vye dies , now the jointure remains , because it was joint at the beginning . if land be given to a. and a dean and chapter , and his successors , and livery is made to a. in the name of both , nothing vests in the dean because they take it severally , and in common , by reason of their severall capacities , and so no privity between them ; for a release to one tenant in common will not inure to his companion , but if the discontinuee in tail enfeoffs the issue in tail within age and another , and makes livery to the infant in both their names , though the infant shall be remitted for a moity , yet the other takes a moity , and they shall be tenants in common ; for their capacities are not severall , but they take severally by operation of the law ; for first it vests , and then he is remitted . tenant by the curtesie . if there be tenant by the curtesie of an advowson , and he in reversion is presented by a stranger , his heir shall not avoid it ; for it was during the life of tenant by the curtesie , and he shall not be said to be tenant for life , and the stranger has gained the patronage , and he was not but an atturny to convey it to him . if the tenant marries the seignoresse , or the seignoresse takes an estate for life of the tenancy , and after marries , the husband shall not be tenant by the curtesie ; for the freehold of the tenancy was in suspence , and then he could not be tenant by the curtesie of such a reversion . but if she had taken an estate for years , or the tenant had been her ward , and after she had married , and died , during that estate he shall be tenant by the curtesie ; for the freehold was not in suspence , but the possession for years only . land is given to two women quant diu simul vixerint , the remainder to the right heirs of her who first dies , one of them takes husband , hath issue , and dies , the husband shall not be tenant by the curtesie ; for she had not the sole possession . tenant by the curtesie of a seignory , and a tenancy escheats , and he makes a feoffment with warranty of it . if that shall be a bar to the issue without assetts ? is the question . if one hath a son which is a bastard eign , and a daughter mulier puisne , and dies seised of a rent , the daughter having a husband , and after the bastard gets the rent , and thereof dies seised , and that descends unto his issue , yet the husband shall be tenant by the curtesie ; for the rent was in esse ( at the time of the discent ) in the daughter , and she may choose whether or no she will admit her self out of possession . tenures . if there be lord , mesne , and tenant , the tenant holds by four pence , and the mesne by twelve pence , and the tenant makes a gift in tail , saying nothing , and the reversion escheats after that , some think the donee shall hold by twelve pence , so if the mesnalty descends to the donor , the donee shall hold by twelve pence , and if the mesne had released to the donor , the donee shall hold by twelve pence . as if the tenant had made a gift in tail , the remainder in fee , and the remainder had escheated , the donee shall hold by twelve pence ; for the first services which he paid , and the first tenure is extinct by the unity of the remainder to the seignory , so it is cleer the mesnalty is extinct , viz. the four pence , then the donee shall hold by twelve pence , and it is all one as if the mesne had released to him in remainder , and the reason in the principall case why the tenure of the donee shall be charged , is , because the law makes the tenure of the donor in respect of the mesnalty , and when the mesnalty is extinct , the tenure between the donor and the donee is extinct also , and then by the same reason that thedonee shall take advantage , if the donor by release or dissent had held by lesser services , he shall be prejudiced when he holds by greater services . and some think if the wife of the donee in tail , of which the law makes the tenure be endowed , and after the estate is extinct , she shall hold by fealty only , otherwise if the tenure had been reserved by expresse words , and if the wife of the tenant be endowed , and after the reversion escheats , the wife shall hold by fealty only . if the tenant who holds by four pence , makes a gift in frankmarriage , and after the donor dies without heirs , so that the reversion is held by twelve pence , quaere , how the donees shall hold ? whether by such services as the donor held when the gift was made ? or by such as the reversion is now held by ? if a gift in frankmarriage be made , the donees ( after the fourth degree ) shall hold as the donor holds over . if a gift in tail be made , rendring two pence during the life of the father of the donee , during his life the issue shall hold by the reservation of the party , and after his death by reservation of the law. if an encroachment of services be made upon the husband , the wife endow'd shall not be contributory , and yet the heir shall not avoid it . a man hath issue two daughters , and holds land of the eldest by suit and a hawk , and dies , the daughters assign a third part to the mother in dower , and after make partition . tenant in dower shall not be contributory for any part of the services ; for the reversion remains in parcenary between them ; for they cannot make partition thereof , and then the whole seignory is in suspence . and yet if land holden by a hawk descend upon the seignoresse and her sister , and they make partition , the seignoresse shall have the hawk , but there is no suit ; for by the statute of marlebr . cap. 9. the eldest shall perform it , and the other shall be contributory , then if she be seignoress she cannot do it her self . but the reason in the principal case why the youngest shall not be charged , is , because the seignory is in suspence , & it cannot be in essc for another parcel . the tenancy , being a mannor , is holden by twelve pence of another mannor , which is the mesnalty , and holden by six pence , and the mesne enfeoffs the tenant of the mannor , which is the mesnalty , now he shall hold both the mannors of the lord by one joint tenure of six pence , and the lord shall avow upon the tenant , because the two mannors are holden of him by six pence , so had it been if the tenancy had escheated to the mesnalty , and the one mannor is parcel of the other , there the tenancy hath not lost the name of a mannor ; for the land which was held of the tenancy is not held of another mannor which was the mesnalty , but as it was before , 39 h. 6. 9. b. where one mannor may be parcel of another . if the tenant who holds by one hauk makes a feofment of a moity to a stranger , or of the whole to a mayor and commonalty and a. now the lord paramount shall have two hawks ; for they are severall feofments ; for if livery had bin made to one in the name of both , nothing passeth but to him who took the livery , and the lord shall be compell'd to make several avouries , which proves that he shall have severall hawks . if the tenant who holds by two severall hawks makes a gift in tail to two several persons , reserving a rent , habendum the one moity to one , and the other moity to the other , so that they have severall estates in tail , the donor shall have two hawks ; for the law makes the tenure , and reservation , but if the party had reserved it by special words , as if a man makes a lease , habendum one moity to one , the other moity to the other , reserving one hawk , or makes a lease , pur auter vye , to a. and to a dean and chapter , reserving one hawk , and the land goes two severall ways , and he does reserve but one hawk , he shall not have more than he reserved . if a reversion at the beginning goes severall ways , yet they shall not have more than is reserved , if it were special reservation by the party . land is given to two , and to the heirs of their two bodies begotten , the remainder to their right heirs , and the land before was holden by one hawk , the lord shall now have but one hawk , and yet they are not jointenants of the fee simple , but there is no apporcionment by moities , but if a lease be made for life of two acres , the remainder in fee of one to a. and of the other to b. there he shall have two hawks . lord , mesne , and tenant , the tenant makes a gift in tail , the remainder in fee , the remainder escheats , upon whom the lord shall avow , and of whom the donee shall hold is the question ? so if the tenant makes a gift in tail to the mesne , the remainder in fee , or makes a gift in tail to a stranger , the remainder in fee to the mesne , how the tenure shall be now is the question ? but in the first case , if the mesne had released to him in remainder , or to the donee in tail , it seems the donee ought to avow upon the donee in tail , and that the donee shall hold immediately of the lord paramount after the release . quaere , if there be any difference ? the tenant who holds by homage and ten shillings rent , makes a lease for life , the remainder in tail , not speaking of any reservation , the tenant for life ( although he doth not hold by homage ) yet he shall hold by fcalty and ten shillings rent , being both the estates , now are but one : but a gift had been made in tail , the remainder for life , after the estate tail determined , the tenant for life shall not hold by the same services as the donee held , causa patet . if there be two jointenants , and to the heirs of one of them ( who hold , ut supra ) make a gift in tail , the donee shall hold of them both by the like services , and yet the freehold is no cause of the tenure . quaere , for some say that he that hath the fee shall have the whole tenure ; for the inheritance passeth only from him . if tenant for life , and he in reversion make a gift in tail , quaere how he shall hold ? if a lease be made for life , the remainder in frankmarriage , some think the tenant for life shall hold by fealty only , untill the fourth degree be past . if there be lord and tenant by fealty and twenty shillings , and the tenant gives in frankmarriage , to hold of him and his heirs by fealty only until the fourth degree be past , and after by twenty shillings and chivalry , in that case after the fourth degree be past , he shall not have the twenty shillings , nor the chivalry ; for though he reserved but fealty until the fourth degree be past , yet it is an intire reservation presently , and the services are in him although they be not to be performed untill the fourth degree be past , and seisin of the fealty shall be a seisin of the rest , and therefore the reservation being entire , that is the reason that it is void for all , because all cannot be reserved upon the gift in frankmarriage . testament . if a man makes severall wills , of severall dates , and dies , and the executor of the last will refuseth before the ordinary , yet the first will is clearly defeated , and yet the refusal is peremptory : but it is not so if there be two executors , and one refuseth before the ordinary . if a fem sole makes her will , and then marries , and he dies . quaere , if the will be revoked . villain . if the lord deviseth land to his villain , he shall be enfranchised against the heir , and yet he was a villain to the heir at the same time the devise took effect ; but being the lord had a power to enfranchise him , he shall be enfranchised . as if one delivers an escrowl of enfranchisement to be delivered seven years after , the lord dies , and then the deed is delivered to the villain , it is a good enfranchisement . if a man makes a lease for life , the remainder to the right heirs of a. who hath issue , a son who is a villain by confession to the feoffor , and the feoffor dies , and a. dies , and the tenant for life dies , the son of a. enters , he shall be enfranchized , and yet he was not enfranchized in the life of the feoffor , but now he shall be said in by him . so if a man devise that his executors shall sell his land , and they sell it to the villain of the testator , he shall be enfranchised against the heir ; for he comes in in the per by the testator . if a fem be endowed of a villain in grosse , and the tenant in dower and the heir enter together into land purchased by the villain . quaere in whom the freehold shall be . so if he had been a villain to an abbe and a secular man ; for his body is intire to every of them . and if the grantee for life of a villain , and he in reversion of a villain enter together into land of the villain , it seems that tenant for life shall gain all , but some think that he in reversion shall disable him in an action . if executors have a villain that the testator had , and enter into land purchased by the villain , it shall be assetts notwithstanding they have a fee , as land in fee descended to the heir shall be assetts to a chattle , viz. a debt to a stranger . and the reason why they shall have it to the use of the testator is , because they had it in auter droit , and so it shall be a perquisite unto the same right . so if a guardian in socage of a mannor to which a villain is regardant , enters into land purchased by the villain , it shall be to the use of the infant . so if a bishop enters into land purchased by a villain , which he hath in right of his church , the land shall be to the same use , so is 42 e. 3. 24. but if one hath a villain for years in his own right , he shall have a fee in the land purchased by the villain . it was said if a man be intitled to be tenant by the curtesie of a villain , and enters into land purchased by him , he shall be seised of the land to his own use , and not in right of his wife , because he hath the villain in his own right ; but , quaere , if he were not intitled to be tenant by curtesie ? if the lord of a villain gives land by fine to the villain , which is land of ancient demesne , the lord reverseth the fine by disceit , some think the manumission is destroyed ; for it doth not appear upon record ; otherwise if he enfeoffs his villain upon condition , and enters for the breach . and if a villain acknowledges an action brought by baron & fem , that is no enfranchisement against the fem ; for it is but an enfranchisement in law upon which she is not examined . the tenant enfeoffs the villain of the lord and a stranger , upon collusion , the matter is how the lord may obtain the ward without dammages ? for if he brings a writ of ward , the villain shall be manumitted , and if he enters upon the villain he avoids the collusion for ever , and shall retain the land , but then he shall be tenant in common with the other , and so he can have no writ of ward for the other moity . if tenant in tail of a mannor to which a villain is regardant makes a lease for one and twenty years to the villain , rendring a rent according to the statute , and dies within the term , if the issue being remitted to the freehold of the villain may enter into the mannor and out the villain ? upon a plea in bar of an assize the parties are adjourned , and after the tenant pleads a release made after the darrein continuance , bearing date in a forreign county , and after at the venire fac . return'd , the tenant pleads that after the darrein continuance he hath purchased the mannor to which the plaintiffe is a villain , he shall not have this plea ; for he shall not delay the plaintiff by his plea , but once , where the matter of fact happens de puisne temps ; for he is at no mischeif if his plea be true : but in shewing a record after he shall plead it if it be in the same court. and here the villain shall not be enfranchized ; for the plea was pleaded before , which now he ought to maintain : but if he answers his villain de novo , that is an enfranchisement . voucher . the youngest son of an abator hath land by descent by the custom of borough english , or by reason of an estate tail made to his father and a second wife , in a mortdancester brought against him he shall vouch , notwithstanding the counterplea given by the statute ; for the statute extends but to heirs at common law ; and therefore if an abator hath issue , two daughters , and makes a feoffment and dies , and one of them takes a feofment , and an assize is brought against her , she shall vouch ; for she is not sole heir : but if she had been sole heir , then cleerly she shall not vouch , though she doth not come to it as heir . and if an abator and a stranger being tenants in a mortdancester , vouch , they shall have the voucher . if feoffee with waranty to him , his heirs and assigns makes a lease for life , the tenant for life in a plea vouches the first feoffor , and recovers in value land held of the feoffee , if the feoffee shall have his seignory ? for if the reversion of the land recovered be in the feoffee , then he shall not avow , and if he shall not . quaere , if lessee for life shall vouch as assignee , being that he hath not all the estate ; and it is cleer if the feoffee had made a lease for life , the remainder in fee , the lessee shall vouch as assignee , and if he recovers in value , the remainder shall be in him in whom it was before . 28 ass . p. 18. 11 ass . p. 3. if the younger brother and a stranger abate , and the stranger dies , now a mortdancester doth not lie ; or if an abator makes a feoffment , and retakes an estate to himself and another , and the other dies , the voucher does not lie for him ; and yet before , an assize of mortdancester and voucher did lie . if a feoffment be made with warranty to one , his heirs and assigns , the feoffee makes a feoffment over , the second feoffee enfeoffs the son of the first feoffee , he shall vouch ; for he may be assignee of his father , being he does not come in as heir . lord by escheat , mortmain , or of a villain , &c. shall not be said assignees . land is given to husband and wife , and to the heirs of the husband , he makes a feoffment with warranty and dies , the wife brings her cui in vita , the feoffee vouches and recovers in value by reason of the warranty , after the death of the wife he shall vouch again by reason of the warranty aforesaid . so if a woman brings a writ of dower , and the feoffee vouches by reason of the warranty , he shall vouch again after the death of the wife , because the voucher and recovery in value was onely in respect of the freehold ; but if he had once recovered in value of the fee , he should never vouch again by reason of the first warranty ; for he hath the effect of it , and also the warranty is gone with the estate . but if tenant in frankmarriage recovers in value , he shall vouch again ; but it is otherwise of tenant for life . if tenant in tail , to him and his heirs females , the remainder to him in fee , makes a feoffment with warranty and dies , the heir female recovers , and the feoffee recovers over in value , he shall vouch again after the estate tail is spent by reason of the first warranty . if the tenant vouches , and at the sequat . sub suo periculo the tenant and the vouchee make default , whereupon the demandant hath judgement to recover against the tenant , and after he brings a seire fac . against the tenant to execute the judgement , if the tenant shall have a warrantia chartae against the vouchee ? but if a stranger brings a praecipe quod reddat against the tenant , some think that he shall vouch ; for by the first voucher and the judgement given against the tenant the warranty was not defeated , nor the possession of the tenant ; but if the tenant had judgement to recover in value against the vouchee , he shall never vouch again by reason of this warranty : for the warranty hath lost its force , being he had judgement to recover in value by reason of it ; for if he should recover again , he should have 2 recoveries upon one warranty . it was holden cleerly , that if the tenant hath judgment against the vouchee , he shall recover no land in value , but that the vouchee had at the time of the judgment . and note upon a summoneas ad warrantizand . if the sheriff returns the vouchee warned , and he makes default , the tenant shall have a cap. ad val . and recover in value , but if he returns , that he hath nothing , then after the sicut alias , & pluries , a sequatur sub suo periculo shall issue , and there if the vouchee makes default he shall not have judgement to recover in value ; for the warranty is not confessed , and it is uncertain whether he had any thing , but in the cap. ad val . it appears that he has assetts . a. seised of two acres at common law , and one in borough english , and makes a gift in tail to a stranger of one of the two acres , and dies , the donee , is impleaded , and vouches the eldest son , and recovers in value the other acre out of his possession ( as he shall do in this case , being he vouches him alone , and not the youngest , where the eldest hath assetts ) the question is if he be impleaded for that acre he hath recovered , if he shall vouch the eldest and the youngest ? if that acre in borough english shall be lyable by reason of the said warranty in law , being it is not the warranty which descends , but the warranty in law commenceth first in the eldest son ; for the recovery in value shall be said in lieu of the first land given , yet it is always to be intended ( having regard to the estate of the reversion descended from the father ) the reversion left in the eldest son , and then the acre of the youngest is not lyable to that warranty . so if the father had given a seignory to the eldest son in tail , and died seised of land in borough english , which descended to the youngest son , and after the tenancy escheats , the eldest being impleaded vouches himself to save the intail ; but if the land of the youngest shall be lyable , is the question ? lessee for life , the remainder to the right heirs of a. who is dead , having a daughter , his wife enseint with a son , the lessor warrants the land in forma praedicta , the son is born , the daughter cannot vouch by reason of the warranty ; for the warranty is a thing executory which cannot be deraigned , but by the right heirs of a. for if a feoffment be made to the son with warranty , and he dies without issue , and the land comes from the unkle to the father , he cannot take advantage of this warranty as heir to his son ; so if possessio fratris makes the sister heir , she shall not vouch , 35 h. 6. 34. danby ; but he shall be voucht as heir for the possession , so shall the father , so shall the youngest son in borough english , but shall not vouch , vide fitzh . voucher 94. 35 h. 6. 33. if land be given to two brothers in fee with warranty to the eldest , the eldest dies having issue , and the youngest dies without issue , the issue of the eldest being his heir , and he enters , he shall not take advantage of this warranty by voucher or rebutter ; for the warranty was void , having regard to the survivor , because his title hath relation before the warranty . if the eldest son is voucht as heir to the warranty , and the youngest as heir in borough english , and the eldest voucheth over , if the eldest or the youngest shall have the recompence in value ? it would be unreasonable , that the eldest should have it , for he lost nothing , for by the law the tenant cannot sue execution against the vouchee , untill the demandant , hath sued execution against him , and in this case execution was never sued against the eldest , for he hath no land , and the youngest hath not the warranty by descent , ( though he hath the land ) and so he cannot vouch , and therefore it is hard he should be bard by it . wast . land is given to baron & fem , and to a third person , the third person releaseth the fem all his right , and the baron & fem makes a lease of the whole for yeares , and brings a writ of wast against the lessee . the lessee is not punishable in wast if a house falls that was ruinous at the time of the demise , and he may cut trees to repair it , so he may do if the lessor covenants to repair it , vid. 12 , h. 8. 1. if a house with land is let , upon which is a wood without impeachment of wast for the house , yet if the house becomes ruinous , he may cut timber for the reparation , and a lessee may take timber for fier-boot , if there be no other wood . quod vid. 21. h. 6. 47. if a man makes a lease upon condition , or that the lessee is bound in an obligation not to do wast , and that his estate shall cease : if a stranger commits wast , that is no forfeiture of the lease , for the condition extends only to the person of the lessee . vid. 3. h. 6. 17. but if a stranger commits wast upon the lessee for years , or guardian in chivalry , they shal render treble and shall lose the ward , but guardian in socage shall not be punisht for wast of a stranger , for the heir himself shall have an action . if a lease is made for life , the lessor dies having two sons by divers venters , the eldest grants to the lessee that he shall be dispunisht of wast , yet that shall not bind the youngest , for he does not claim as heir to his brother , but as an heir to his father , who was last actually seised . fem tenant for life , the remainder for years to i. s. who marries with the fem , and commits wast . quaere , if the land be lost ? if tenant for life makes a lease for years , and after enters upon the termor , and commits wast , and the lessor recovers , the lessee shall lose his term . a man shall not be punished for comming on the land to see if wast be committed . the heir makes a lease for years , wast is committeed , the wife recovers in dower , the heir shall have an action of wast in the tenuit . a man makes a lease for twenty yeares without impeachment of wast , and the lessor confirmes for forty years , the lessee shall be dispunisht for twenty years a man makes a lease rendring rent on condition , that if the rent be behind , that the lessor shall reenter and retain until he be satisfied the rent out of the profits , the lessor doth enter and a stranger commits wast , and then the lessor is satisfied of the rent , if the wast be punishable . if one doth devise his lands which he hath for years and dies , the executors commits wast , and then agree to the devise , an action of wast lies against them , notwithstanding the relation ; so if lessee for years grants his term upon condition , and the grantee commits wast , and the lessee for years enter for the condition broken , yet wast lies against the grantee . where a man hath election to take two estates , his committing of wast will be a determination of his election . if there be lessee for life , the remainder for life , and the lessor grants the reversion to him in remainder , quaere , if he shall have an action of wast ? if tenant for life makes a lease for years , and enters and commits wast , the tenant for yeares leases his term , wast by the assignee of an infant or fem covert shall take away the special right of infancy coverture or condition , but otherwise if it had it been made by themselves . warranty . grandfather father and son , the grandfather makes a lease of an acre for life , and dies , the father being tenant in taile , discontinues it in fee with warranty , and dies , the tenant for life dies , the son enters into the acre after his death , and brings a formedon , the warranty of the father with this assets seemes no barr . the discontinuee of a tenant in tail makes a feofment on condition , and a warranty collateral is made to the feoffee of the discontinuee , the discontinuee enters for the condition bro ken , the issue hath no remedy against him . if a collaterall warranty descends within a year upon him that hath title to enter for mortmain , he cannot enter after ; for if he himself had re leased he could not have entred , and the warranty will bind him as well as his release : but quaere , if a collaterall warranty extends to a title of entry ? if a man devises land with warranty , that is void ; because the father himself was not bound . a warranty made to a disseisor is not destroyed by the release of the disseisee . a collateral warranty shall not bar execution of a recovery in value ; for it is but a title , to which a warranty does not ex●end no more than to bar a title of entry ; for consent to a ravisher or mortmain , also conditions and titles are always said to be in possession as a rent is , and then a warranty to the tenant of the land will not extinguish them . lord by escheat shall not vouch by reason of a warranty , if a seignory be granted with warranty , and a tenancy escheat , the warranty shall not extend to it . vide fitzh . 18. voucher . father and son and a third person are jointenants , the father makes a feofment of all with warranty , and dies , the son dies , the third shall have an assize of but one part by some , and yet the warranty commences by disseisin , as to the son , but yet the survivor cannot deny but that this warranty is collaterall ; for he comes not under the estate of the other . if a lease be made for years to the grandfather , remainder to the father for life , remainder to the son in fee , the grandfather enfeoffs with warranty , it comences by disseisin to thefather , and collateral to theson ; for the feofment was not a disseisin to the son . if the father be lessee for years , remainder for life to the son , remainder over for life , remainder in fee to the son , the father enfeofs with warranty , it comences by disseisin as to the son for thefreehold , but for the fec t is collateral . quaere by some in all cases every man shal a void a warrantywhich comences by disseisin . vid. fitz. war. 28. if a lease for life be made , remainder for years with warranty . quaere , if this warranty will benefit him in remainder , being the precedent estate is of another nature . if a man makes a lease for life on condition that if the lessee doth such an act , that the lessee shall have fee , and warrants the land in forma , praedicta , that warranty extends to the fee , but if the feoffor dies , and then the condition is performed , then if it be available is the question ? being the lessor was not bound to warranty during his life , and then the warranty which was annext to the freehold is gone ; for the greater estate drowns the lesser . and to provethat the greater drowns the warranty , it was said if tenant in tail be with warranty to him , his heirs and assigns , hisfeofee in fee shall not besaid assignee , nor vouch , because he hath not any part of the estate tail . it was also said , that if the condition had been performed in the life of the lessor , that the warranty would not extend to it ; for it must be annext to something in possession . but some take a difference , that if in the first case the firstlease had been for years , that the warrantycould not extend to the remainder , because the first estate was but for years , and of another nature , but it would be otherwise in a lease for life . and it was said if a lease for years be made , remainder in fee with warranty , he in remainder can't take advantage of the warranty , because he was not privy to the first deed , and thenhe cannot take as an immediate warranty , because the first estate was of another nature , a reversion descends to barow & fem lessees for life as to the issues of two parceners , thehusband dies , thewife shall have the wholefreehold assurvivor , and the fee shall be executed for a moity , because the other moity goes another way , sc . to the heirs of the husband , and he shall dereign the warranty annexed in fait to the first estate for the moity , and not for the other moity , because the fee is executed . if land be bargained & sold by indenture in fee with warranty , & the indenture is delivered , and after inrolled within six months , if he shall vouch , quaere , because the nature of a covenant is , that it ought to take effect presently by the delivery of the deed , and then the warranty was void , because the land did not pass at that instant , and though the inrollment makes it to pass ab initio , yet the relation shall not make a void warranty good . to which it was said , if one makes a feofment with a letter of atturny , and warranty is in the deed , by the delivery the warranty shall be good , and yet the deed was delivered before . if a gift in tail be made with warranty to a man , his heirs and assigns , and he makes a feofment and dies , with issue in a formedon in reverter , the warranty shall not be a bar , not with standing the book of the 39 & 45 e. 3. 4. if the lord confirms the estate of the tenant with warranty , and after the tenant ceases , the warranty shall not be a bar in a cessavit , notwithstanding the seignory which was in esse before the warranty made was the conveyance to his action , because the action a rises upon an after cause . tenant by the curtesie of a seignory whereof a tenancy escheat make a feofment with warranty , if it shall be a bar to the issue without assets ? quaere . a fem which hath a rent charge in fee marries with the tenant of the land , a stranger release to the tenant with warranty , the warranty can't extend to the rent , because therent was suspended by act in law , and the wife if the husband dies , nor the heir of the wife , living the husband , cannot have any action for the rent upon a title before the warranty made ; for if theheir of the wife brings a mortdancester , that is de puisne temps , and after the warranty ; so if the grantee of a rent grant it on condition to the tenant , who makes afeofment of the land with warranty , thatwarranty can't extend to the rent and yet theland was discharg'd of the rent ; but all the actions shall be took as the cause of action arises afterward ; for if the condition be broken , and after an action be given , that shall arise after the warranty made : but if a fem which hath a rent marries with the tenant , who makes a feoffment of the land with warranty and dies , and the wife brings a cui in vita of the rent , there the feoffee shall vouch as of land discharged . so if tenant in tail of a rent purchases the land , and makes a feofment , and the feoffee aliens with warranty , or if tenant in tail of a rent releases to the ter tenant who aliens over with warranty , if the issue brings a formedon he shall vouch as of land discharged . so if an infant hath a rent , and disseises the tenant , and is disseised by another , who aliens with warranty , that warranty shall extend to the rent , because in all these cases the land is discharg'd of the rent at the time of the feofment in fee ; and the action is conceived upon a title paramount to the warranty . but if a man grants a rent charge out of land to commence at mich. and the tenant makes a feoffment with warranty , or if a rescous be made , and after the tenant makes a feofment of the land with warranty , as it is in 31 e. 3. in a warrantia chartae , there the warranty shall not extend to the rent , because the rent was not in esse at the time , but if upon a rescous she brings an assize , and after is nonsuited , and after the tenant makes a feofment of the land with warranty , that warranty will extend to the rent , quod nota . a man dies seised of an acre in borough english in tail , having three sons , the youngest enters , and makes a lease to the second for years , who makes a feofment with warranty , and dies without issue , the yongest dies without issue , the eldest brings a formedon , if he shall be barred by the warranty ? it seems though the warranty descends upon the eldest where it was a disseisin to the youngest , yet when the right of the land comes unto him he shall say that the warranty comences by disseisin , because he is now privy to the warranty , and to the estate ; for if the father seis'd in fee makes a lease to the grandfather for years , who makes a feofment in fee with warranty and dies , and the father dies , that warranty shall not be a bar to the son , because it comenc'd by disseisin to him whose heir he is . and if a man hath issue two sons , the youngest makes a lease for years to the father , who makes a feofment with warranty and dies , and after the eldest dies without issue , and the warranty descends upon the youngest , that shall be no bar , because it comences by disseisin ; and though the land doth come immediately to him upon whom the warranty descends , as it was in the principall case , or although the warranty doth not descend upon the tenant of the land immediately as heir to him thatmade the warranty , yet all is one warranty which ommences by disseisin , and wrong is made to him in the interim , upon whom the warranty descends after , although that wrong was not a dissesin to him , yet it is a warranty which commences by disseisin ; as if an ancestor collateral to the donor , desseise the donee , to the intent to make a feofment , with warranty , which is done accordingly , and the warranty descends upon the donor , and after tenant in tail dies without issue , in a formedon in reverter , the warranty shal be no bar , because it commences by disseisin to the tenant in tail , at which time wrong was made to him in reversion , and therefore he shalsay that the warranty commences by desseisin , tamen vid. 30. e. 3. 12. but if a man makes a feofment with warranty and dies , which is a disseisin to a stranger , the heir of the feoffor ( if he hath not the right of the land descended to him after ) shall be vouched for the warranty , then in the principal case , if the eldest cannot say that the warranty commences by disseisin , yet it shall be lineal against him , for by possibility he might have made himself 〈◊〉 to him that made the 〈…〉 for the land doth descend to the youngest heir , as well as to the youngest son , and so to the youngest unkle , for the reason is all one , for the young'st brother shal be in as youngest son to the common ancester : but some say there is not any reason in these two cases . if tenant in tail is desseised , and release to the desseisor with warranty , and after is attained of felony , and hath a charter of pardon and dies ; it ●●●ms it is a discontinu●●ce , for if he had purchase● land after his charter , it would descend to his heir , which proves that the blood betwixt him and his he●●●●ot corrupt , as it is between him and his ances 〈…〉 then the warranty being in esse at the time 〈…〉 death there is no i●pediment , but that 〈◊〉 descend : but if t●nant in rail , who hath a 〈◊〉 annexed to h●s estate , be attained of sel 〈…〉 executed , many think his issue 〈◊〉 not i●herit the voucher for the warranty 〈…〉 th the land ; for the warranty is out of 〈…〉 de donis condit , which 〈◊〉 of 〈…〉 ements which are given upon addition 〈…〉 sowd . thinks the contrary for by the equity 〈…〉 statute , it is pres 〈…〉 as well 〈◊〉 charters 〈◊〉 1. h. 6 , 20. per m 〈…〉 60. b. c. 〈◊〉 for charters . feoffee with 〈…〉 by the feoffor who dies sell 〈…〉 he issues who brings a w●●● of 〈…〉 ●oyned upon the mecre 〈…〉 the 〈…〉 barred , for if the feoffee 〈…〉 ●●mpleaded 〈◊〉 ●●ranger , shal arraine the w●●● 〈…〉 aganist 〈◊〉 issue , is the question . the lavvyers light: or, a due direction for the study of the law for methode. choyce of bookes moderne. selection of authours of more antiquitie. application of either. accommodation of diuers other vsefull requisits. all tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome. with necessary cautions against certaine abuses or ouersights, aswell in the practitioner as student. written by the reuerend and learned professor thereof, i.d. to which is annexed for the affinitie of the subiect, another treatise, called the vse of the law. doddridge, john, sir, 1555-1628. 1629 approx. 348 kb of xml-encoded text transcribed from 118 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2003-01 (eebo-tcp phase 1). a20578 stc 6983 estc s109766 99845411 99845411 10308 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a20578) transcribed from: (early english books online ; image set 10308) images scanned from microfilm: (early english books, 1475-1640 ; 1349:23) the lavvyers light: or, a due direction for the study of the law for methode. choyce of bookes moderne. selection of authours of more antiquitie. application of either. accommodation of diuers other vsefull requisits. all tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome. with necessary cautions against certaine abuses or ouersights, aswell in the practitioner as student. written by the reuerend and learned professor thereof, i.d. to which is annexed for the affinitie of the subiect, another treatise, called the vse of the law. doddridge, john, sir, 1555-1628. bacon, francis, 1561-1626, attributed name. [16], 119, [1]; [8], 93, [3] p. [by bernard alsop and thomas fawcet] for beniamin fisher, and are to be sold at his shop in aldersgate street, at the signe of the talbot, imprinted at london : 1629. i.d. = sir john doddridge. printers' names from stc. "the vse of the lavv" has separate dated title page, pagination and register. it is anonymous, and has been attributed with doubtful validity to francis bacon. the first leaf and the last leaf are blank. reproduction of the original in the henry e. huntington library and art gallery. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -great britain -early works to 1800. 2002-03 tcp assigned for keying and markup 2002-03 apex covantage keyed and coded from proquest page images 2002-04 tcp staff (michigan) sampled and proofread 2002-04 olivia bottum text and markup reviewed and edited 2002-05 pfs batch review (qc) and xml conversion the lavvyers light : or , a due direction for the study of the law ; for methode . choyce of bookes moderne . selection of authours of more antiquitie . application of either . accommodation of diuers other vsefull requisits . all tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome . with necessary cautions against certaine abuses or ouersights , aswell in the practitioner as student . written by the reuerend and learned professor thereof , i. d. to which is annexed for the affinitie of the subiect , another treatise , called the vse of the law. ¶ imprinted at london for beniamin fisher , and are to be sold at his shop in aldersgate street , at the signe of the talbot . 1629. to the reader . courteous reader , i present vnto you here two children , the one whereof hath an authour vnknowne ; the other a father deceased ; both infants ; both orphans ; and both so like , as if they were gemini horoscope uno . the law enioynes you to keepe them ; and their descent deserues it : if you keepe , and cherish them in their infancie , the law by whose letters of commendations they are committed to your tuition , will keepe and preserue you and yours , your persons , goods , and good names from violence , depredation , and detraction , vnto posterity . case them in what fashion you please : and put them into what livories you like best ; they are both so seasoned , that no weather can alter their constitutions : and both so solid that no teste can disrepute their perfections ; indeede they were intended for generall good . for he that will calculate their natiuitie , shall by a true iudiciall finde in either a plentifull promise of publique profit and fundamentall fabrique both of the study and vse of the lawes of this realme . it is a duty we owe to the knowne authour though deceased , and a charity to the authour whose modesty conceales his name , to communicate to the generall what was so collated in their particular , and so legaterily provided for their common behoofe ; which not as proximiores sanguinis , or proper executors of the will of the deceased , but as creditors to whom the administration of their good intentions for the publicke is committed ; we do now publish and commend to all students in the lawes , and others which shall desire to enable their iudgments in this kinde . in praise of the worke . as after paine in digging of the mould , long time is spent in seuering the oare from the mixt earth ; at length refined gold is by the artist wrought , by which his store is much encreased and the common good . so by this booke if rightly vnderstood and prised at full worth , the reader may obserue the authors labour , who hath drawne from the deepe masse of law , an easie way to make the student perfect ; and doth pawne his credit on 't , perusers may be bold to shew it for he knowes the touch will hold . w. t. another . vvhen criticks shall but view the title , they will carpe at this great enterprise , and say , it was too boldly done , thus to comprize in a small volume , law , and a true size to set vpon it ; but the learned will excuse his little booke , and praise his skill , his ayme being onely to instruct the youth , not to controll the iudge , or wrong the truth : for he well knowes , cases with time may change , and that prooue common which before was strange . i. s. the table . notes collected out of diuers authors . fol. 5 grounds borrowed out of logicke . 7 grounds borrowed out of naturall philosophy . 9 grounds borrowed out of morall philosophy . ibid grounds borrowed out of the ciuill law. 10 grounds borrowed out of the cannon law. 12 grounds deriued from the vse , custome and conuersation of men . 13 proverbiall grounds . 14 maximes applia●le onely to one title . 15 the diuers kinds of grounds which doe concerne one title . 16 formall causes and grounds of the law. 42 notes collected touching the verity of principles . 43 notes collected touching the difference betweene primary and secondary principles . 45 the first sort of secondary rules grounded vpon entendement . 48 notes touching the definition , diuision , and necessary consequents of secondary principles . 49 the second sort of secondary rules grounded vpon entendement . 59 the second principall kinde of contingent propositions . 57 the triple vse of equity in the lawes . 62 notes collected out of authours touching exceptions of rules , and from whence they spring . 63 exceptions ministred by equity . 77 the vse of generall rules , and the obseruations of their specials . 89 notes collected out of authours touching the obseruation of generall propositions . ibid notes of authours touching the obseruation of collection of grounds , and rules by inference . 104 aristotle in the first book of his topickes expressing the meanes , wherby in euery facultie or science intellectuall , resting vpon discourse of reason , men might abound in matter apt for argumentation , and might bee furnished with copy of reason fit for the proofe or disproofe of things called into debate , in such the sciences by them professed , expresseth a fowrefold obseruation , 1. quarum vna ( as he sayth ) est in propositionibus eligendis . 2. altera in distinguendo quot modis quicquid dicatur . 3. tertia in differentijs inueniendis . 4. quarta in similitudinis cognitione & scientia . all which are notable instruments of knowledge , greatly profitable , yea necessary for the obtayning of all such sciences as doe depend vpon reason : and so consequently much auayleable to be obserued in the study of the lawes of this land , which are grounded vpon the depth of reason , and inuested often times by the name of reason , in our reported cases , and ruled authorities of the same : 11. hen. 7. 24. b. 13. hen. 7. 23. b. com. colth . 270. b. com. brown. 140. b. 27. hen. 8. 10. a. montague . of which fowre principles , purposing ( for direction of study ) to say somewhat , in order , as they are afore proposed . it is to be considered that the first of them being propositionum electio , containeth the election , choice obseruation , and collection of all receiued principles , propositions , sentences , assertions , axiomes and reasons , importing eyther certainety of truth , or likelyhood of probability . wherein first aristotle giueth precepts to collect them , and then after giueth counsayle , so to digest them , as that they may at all times bee ready for our vse . wherefore heereof intending an ample discourse , it shall be requisite to follow the ordinary and best method , by definition , diuision , and the due speculation of their causes , whereby may be manifested what they are , of how many kinds they are , the diuers manners of collection of them ; and lastly , the end , scope , and vse , whereunto they tend , and the profit ensuing by obseruation of the same . that first therefore the names , by which in our law they haue vsually beene called , might bee made manifest before their nature be discouered ( primò enim de nomine conveniat ) it may with little labour easily appeare , that sundry are the titles or names giuen in the volumes of reports and other writings of the law , vnto such propositions as doe remaine as reasons of resolued cases . sometimes they haue beene called grounds , see in the 30. hen. 8. 44. b. dyer numero 30. it is said , est une auter grounde in tenure in chief . s. il. do et este immediate del roy ; et il convient comencer , et prend son original creation per le roy mesme , et per nul de ses subiects . so likewise speakes rede . 5. hen. 7. 23. b. est bone ground in trespas , discontinuance vers un est discontinuance vers touts , with infinite such other . sometime they haue beene called maximes ; for so saith fortescue in 34 , hen. 6. 33. a. est un maxime en nostre ley , que in chacun action personal , le non-sute del an sera le nonsutte de ambidoux , fore prise in tiels cases que sont except per statut . likewise saith knightley 19. hen. 8. 38. a. dyer numero 51. est un maxime , que un action sera touts foits conceiue ou le plus meliour trial , et notice del fait poit este conus ; et specialment lou de tort est personal , with diuers such like . sometimes they are called principles , for so in the 8. hen. 74. a. it is said , that it is un common principle , que terre ( s. estate de frank tenant ) ne pas sans livery de seisni . likewise saith sanders in the com. colthurets case 28. b. il ad este temis come principle , que quand un fait livery de seisni que son livery sera pris plus fortment vers luy . somtimes they haue beene called eruditions . in such sort saith keble , in 11. hen. 7. 15. a. ceo ad este un erudition , que le partie navera capias ad satisfaciendum , mes ou capias gift in l'original . and some in 29. hen. 8. 40. a. dyer numero 66. saith , iustices il est une common erudition , que in cel countie lou le tort commence , l'action sera porte . moreouer , sometimes for their firmenesse they haue beene called lawes positiue , for so speaketh belknap . 2. rich. 2. fitzh . accompt 45. il est ley positive , que home navera damages in breve d'accompt . sometimes they are inuested by the title of law it selfe ; for in such manner it is said tempore ed. 1. fitzh . grant. 41. lex est , cuicunque aliquis quid concedit , concedere videtur , & id sine quo res esse non potuit . and so bracton saith , 9. hen. 6. 59. b. lay prise pur ley , que si home plede un plee et preigne un protestation ; et puis son plee est troue encounter lay , il naver unque advantage de son protestation . of which manner speeche there are manifold examples . so that be they named grounds , maximes , principles , eruditions , lawes positiue , lawes , rules or propositions , or by whatsoeuer other name they bee called , let vs now seeke the nature of them by their definitions . paulus the ancient romane lawyer thus defines a principle or rule of law : regula iuris , rem quae est , breviter enarrat . &c. if we doe respect the originall thereof together with the effect it yeeldeth ; morgan in the commentaries of plowden , thus defineth it : a maxime is the foundation of law , and the conclusion of reason : for reason is the efficient cause thereof , and law is the effect that floweth therefrom . such of the civilians as in the description of a rule of law , doe onely respect the manner of the collecting of them , from particular cases or circumstances doe thus affirme : regula iuris est multorum specialium per generalem conclusionem brevis comprehensio . or as ioachimus hopperus in his first booke de iuris arte , though disagreeing in words , yet one in the sense with the former ; regulae iuris sunt quaedam coniectiones tantum , & breviaria ex pluribus speciebus in unum per commune aliquod collecta . another of them in this manner , regula est sententia generalis , quae ex plurium legum mente à iuris consultis notata atque animadversa , paucis verbis summam earum consentionem & tanquam harmoniam complectitur . matheus gribaldus in his first booke de ratione studij cap. 7 saith , regulae iuris nihil aliud sunt quàm breves & compendiosae sententiae ex pervagatis definitionibus perstrictae , quò & minori labore discantur , & faciliùs diutiúsque memoria teneantur . notes collected out of authors . regula iuris est plurium conpendiosa narratio , & quasi causae coniectio . nec absimile est quod grammatici dicunt , eam esse multorum similium collectionem . in summa autem est , ac si quis , praedictis cum verbis archid. dist . 3. c. reg. coniunctis , ita diceret , quod regula sit compendiosa definitio ; seu cum quintiliano universale , vel perpetule praeceptum diversarum rerum , quasi sub unâ eadémque causâ cadentium , universitatem complectens . est regulanihil aliud quàm plurium rerum & specierum in unam quasi summam coniectio . but binding our selues to no prescript rules of art , for the better vnderstanding of the same , we may describe a rule or ground of law thus : a ground , rule , or principle , of the law of england is a conclusion either of the law of nature , or deriued from some generall custome vsed within the realme , conteyning in a short summe , the reason and direction of many particular and speciall occurrences . as touching the diuision thereof , wee shall better obserue how many principles and grounds there be , by the due consideration of their causes from whence they spring . non solùm ea quae insita sunt causae dicuntur , sed etiam ea quae extrinsecus sumuntur : ut id quod motum affert & efficiens est . causarum quatuor sunt genera . 1 vnum est forma atque essentia rei . 2 alterum est in quo inest necessitudo non absoluta , sed ex adiunctione ; si alia quaedam sint , haec esse necesse est . 3 tertium genus est id in quo inest rei efficiendae vis primaria . 4 quartum est finis cuius causâ aliquid fit . nam ad interrogationem factam per verba , propter quid fit aliquid , nihil aliud unquam respondetur , quam aliqua exdictis quatuor causis : inter quas tamen , finis est potisstma , & quasi aliarum causa : materia enim non esset causa , nisi haberet formam ; & forma itidem nisi ab agente introduceretur ; agens quoque nen ageret nisi moveretur à fine ; finis autem ipse immobilis permanet : est ergo primum movens , & prima causa , &c. all causes of euery thing are either internall or externall . internall are the causes materiall formall . the externall causes are the efficient finall . as touching the materiall cause , matter , or subiect wherein these grounds are conversant , the same are all those things , whereof debate may rise betweene parties iudicially : which are as well diuine as humane . insomuch as iuris prudentia , or the knowledge of the law , is divinarum humanarúmque rerum scientia . and hence proceedeth it , that all grounds or rules of the law of england in respect of their matter which they doe concerne , are either such as are not restrained to any one proper or peculiar title of the law , but as occasion serueth , are appliable vnto euery part , title , or tractate of the law , as by the view and due consideration of examples following may be made manifest ; all which , being either conclusions of naturall reason , or drawne and deriued from the same , do not onely serue as directions and principles of the law , but are likewise as positions and axiomes to be obserued throughout all mans life and conuersation ; hauing their originall from those arts that are necessary and behoofull for maintenance of humane societie . and first of all concerning the art of logicke ; from thence the learned of our lawes haue receiued many principles , as well out of that part which concerneth the inuention of arguments , as of that which teacheth the disposing , framing and the iudgement of the same . from the first part these may serue for example . idem non potest esse agens & patiens . omne maius continet in se minus . magis dignum trahit ad se minus dignum . in praesentia maioris cessat minus . frustra fit per plura quod fieri potest per pauciora . turpis est pars quae cum toto non convenit . with many such like , &c. from the iudiciall parts of logicke , these and diuers others . qui negat confusè , negat confusè & distributivè . but how that saying may be vnderstood , and in what sense it may be intended true , and in what not , peruse the case of 4. hen. 7. 8. a. touching the travers of a suggestion of breach of the peace : ( where although the said rule be not mentioned , yet the meaning thereof , by the case there debated is partly made manifest ) moreouer brian borroweth the sophisters verse , and maketh it a ground to try whether an issue tendered be an expresse negatiue or no , in 11. hen. 7. 23. a. prae contradic . post contrar . prae postque subalter . this likewise is deriued thence , negativum nihil implicat . out of naturall philosophie these with diuers other are deducted , that follow . vis vnita sortior . est naturae vis maxima . vltra posse non est esse . sublata causa tollitur effectus . vltra scire non est esse with many other of like quallitie . out of morall pihlosophie . from whence , as from a fountaine , all lawes doe flow , we doe obserue these few following for an example ; as qui sentit commodum , sentire debet & onus . volenti non fit iniuria . sic vtere tuo vt alienum non laedas . fraus & dolus nemini patrocinantur . agentes & consentientes pari poena plectuntur . summum ius summa iniuria . vix vlla lex fieri potest quae omnibus commoda sit : sed si maiori parti prospiciat , vtilis est . a vero non declinabit iustus . quod tibi fieri non vis , alterine feceris , with many more such like . out of the ciuill lawes there are also very many axiomes and rules . vvhich are likewise borrowed and vsually frequented in our law. for sith all lawes are deriued from the law of nature , and do concurre and agree in the principles of nature and reason : and sith the ciuill lawes , being the lawes of the empire , doe bewray the great wisdome whereby the romane estate , in the time it most flourished , was gouerned : sith likewise the law of this land hath alwaies followed best and most approued reason ( which is also a type of humane wisdome ) it doth ensue of necessitie , that great conformitie must be betweene them . which conformitie may be made apparent partly by these ( amonge some thousand axiomes and conclusions of reason ) following . qui tacet consentire videtur . vigilantibus & non dormientibus iura subueniunt . quod initio non valet , tractu temporis non convalescit . quando duo iura in vno concurrunt , aequum est ac si esset in duabus . in aequali iure , mclior est conditio possidentis . optima legum interpres est consuetudo . frustra legis auxilium petet , qui in legem peccat . ignorantia facti excusat . 14 hen. 8. 27. b. modus legem dat donationi . non est regula quin fallat . modus & connentio vincunt legem . with others in manner infinite , written and published in the latine tongue . in the french also many other grounds there are in our law , to befound agreeable in sense and meaning to such as are frequent and vsuall in the ciuill lawes , and there published in the latin-tongue , wherof also these following may serue for example . nul prendra benefit de sontort demesne . nemo ex dolo suo proprio releuetur aut auxilium capiet . homo ne sera double charge pro vne mesme duetie . bona fides non patitur idem ab eodem bis exigi . auxy moult aucthorities & voies que home ad a faire vn fait auxy mult auctorities & voies ad cesty a qui le fait est fait a ceo dessoluer . 1. hen. 7. 16. a. nihil est magis rationi consentaneum quam eodem modo vnum quodque dissoluere quo constatum est . le common welth sera prefer deuant priuate wealth . vttlitas publica priuatorum commodis ante-ferenda . l : 1. § . fin . & cap. col . le ley in cheseun act ad respect al comencement : origo rerum attendenda . imagination de mente de faire tort , sans de act sait , nest punishable in nostre leg. affectus non punitur nisi sequatur effectus . prateus lib. 3. c. 4. intent direct done plus tost quam parolls . proferent is intentio & voluntas magis quam verborum locutio examinetur . prateus lib. 3. cap. 3. quant diuers choses sont fait a vn mesme instant , & lune ne poet prender effect sans l'auter ; le common ley adiudger ceo depreceder & ensuer , que aptment : do et preceder & ensuer in feasant l'intent des parties deprender effect . vbi in instrumento reperitur plures actus successive fuisse celebratos , semper fingitur ille actus praecessisse qui reddit actum validum . nicholai euerard topica iuris loco 1. non attento ordine verborum , talis ordo presumitur qualis debet esse . with many others to like purpose , if place did permit or cause did require to obserue the same : yea many times when as no ground or rule is expressed in our law , but that we may onely collect cases concurrent vpon some conformitie of reason : we shall finde in the ciuill lawes a proposition or rule which shall most aptly and most fitly expresse the same reason in such shortnesse of speech , as nothing shall seeme more sufficient in that respect . and vnto the which propositions such as are or may be framed by vs in the french , cannot in excellencie be worthily compared . as touching the canon law. forasmuch as the studies both of the same and of the ciuill law , are in sort conioyned by the professors of both what may be sayd of the one , in this respect , may likewise be verified of theother : which aswell by view of the title de regulis iuris in sexto decretalium , as also in diuers other titles of the same law , especially in such as are most vsuall for matters of debate in this realme , as are those of excommunication , marriage , diuorce , legacies , tythes , and such like will at large appeare . finally many grounds and rules of the lawes of this realme are deriued from common vse , custome , and conuersation amonge men , collected out of the generall disposition , nature and condition of humane kinde : which grounds are of two natures . the one obserued out of humane actions , the other out of vsuall and ordinary speech . ( principia externa propriè vocamus ea quae in communi hominum vita versantur & ab experientibus & prudentibus animaduertuntur . ioh. hopper : de iuris arte . haec non tam ex ipsa hominis natura quam foris adueniunt , debent que non ex mente hominis aut animo , sed ex communibus vitae moribus longo vsu & tractatione colligi . ibidem haec sunt igitur illa quae dico externa principia , quae ex communibus vitae vsibus & mortbus diligenter in historia obseruatis decerpuntur , quae que non tam òrdine describi , & literts mandaeri , quam long a tractatione colligi , & per manus tradi possunt . ibidem . of the first sort are these and such like following . home est tenus destre procheni a soy mesme . le inclination de touts homes est de faire ou parler choses pour lour gaine & inent pour lour perde : et deceux que voilent gabber , de gabber pur aduantage . est le propeitie de nature de preseruer luy mesme . quant home est partie , ilne poet esse iudge indifferent a luy mesme . with many other of like qualitie , which the intendement of the law deriueth and collecteth out of the vsuall condition nature , and qualitie of things vpon the probabilitie and likely-hood of occurrences often or for the most part hapning and falling out . axiomes or propositions of the second sort , are drawne from the phrase of speech , and deduced from the ordinarie manner of conference by talke among men most vsuall in all places , as are the common and ordinarie prouerbs and prouerbiall assertions , and such like ; the which , as well by reason of their ordinarie and often vse in talke ; as also for their probabilitie and likelihood of trueth , haue beene sometime vsed as axiomes , principles , and grounds of the law ; and are to be found confirmed with many cases , hauing beene vsed as reasons in the same : whereof these few ensuing may serue for example . da tua dum tua sunt ; post mortem , tunc tua non sunt . qui ambulat in tenebris , nescit quò vadit . necessitas non habet legem . as good neuer the whit as neuer the better . let him that is cold blow the coale . one to beate the bush and another to take the birds . with many other such like speeches , which although they are of small moment , being euery where ordinary ; yet neuerthelesse for the perspicuitie and plainenesle , they haue heretofore , at some times , in law arguments beene vsed , and fitly applyed in debate of cases ( although not ad probandum , yet ad illustrandum ) and so likewise may at any time hereafter , vpon like occasion offered , without blame bee frequented . although these generall positions , maximes and rules proposed , and such like , cannot bee properly reduced ( as is aforesaid ) vnder any one peculiar title of the law extant in any abridgement , table , or directorie ; yet neuerthelesse may they be brought vnder generall titles or common places , to bee framed of purpose , as hereafter in place more convenient shall be declared . and thus much therefore of generall grounds or maximes . now followeth to speake of such as are to bee reduced vnder one particular title , tractate or matter of the law , seruing to no other vse , but onely doe concerne the said speciall matter , and cannot bee transferred thence , neither may properly serue any other then their natiue place , vnto the which they are wholly and alonely to bee referred : as for example . vnder grantes these . quandoaliquis quid concedit , & id etiam concedere videtur , sine quo res concessa esse non potest . grant sera prise plus fort vers le grauntour &c. vnder contracts these and such like . ex nudo pactonon oritur acti . com. 5. a. com. 302. a. com. 305. a. com. 321. a. contract ne poit estre , si ne soit que chescum partie soit agree . vnder prerogatiue these and such others . nuslum tempus occurrit regi . com. 243. a. 261. a. 321. a. le roy ad auxy un prerogatiue en le forme de brefs port per luy , different de ceaux que common person ad , &c. vnder deeds these . fiunt al aliquando donationes in scriptis , sicut in chartis , ad perpetuam memoriam , propter brevem hominum vitam & ut faciliùs probari posit donatio . choses incident que per leur mesme ne potent estre grant sans fatt , uncors ils passeroni oue le principal a qui sont incident sans fait . with diuers other in euery title of the law of like effect . these speciall grounds are of diuers sorts : for some concerne the very nature and essence of the title : some the consequents and incidents annexed thereunto . those which doe concerne the nature of the thing , doe flow from some of the causes thereof , as the materiall , the formall , the efficient , or the finall . some from the generall notion ; others from the speciall difference ; and some doe proceede from the effect . those which doe proceed of the consequents , concerne either the incidents inherent and inseparable , or the adiuncts and such like . which grounds so drawne , if they bee orderly disposed with all their subdiuisions , and particular rules , and the same furnished with apt cases , will make a perfect and exact treatise of such matter as concerneth that title , resembling those treatises compiled , by littleton , parkins , stanford of the plees of the crowne , and others of like forme . but in this place not intending to combine any such grounds as doe concerne one title or matter , or thereof to endeauour to draw a type of any perfect treatise , it shall be sufficient at this present , for example only , to expresse that which is here meant , by the disposing of some few grounds of the title of arbitrement , according to the obseruation aboue mentioned , that thereby might be conceiued , how such like grounds concerning one title or matter do flow from the causes and consequents of that title , whereunto they are applied ; and that a coherency of them might be both found and orderly framed for the more certaine obteyning of knowledge in obseruing this , or the like course to this hereafter following . first although we finde not an arbitrement to be defined in any report of our lawes ; yet neuerthelesse rastall in the small treatise of the termes of the law , thereof yeeldeth this description . arbitrement est un award , determination , ou iudgement , quel plusiors font al request de deux parties almenis , pur , & sur ascum dett , trespas , on outer controversie ewe perenter les dits parties . but more artificially it may be described out of the ciuill law thus : arbitrium est arbitri sententia sive iudicium inter controvertentes ; privato consensu , non autem publica interveniente authoritate , datum . out of the bookes of reports of the lawes of this land this full description may be drawne . an award is a iudgement 8. edw. 4. 1. 8. edw. 4. 10. a. 21. edw. 4. 39. a. giuen by such person or persons as are elected by the parties vnto the controuersie , 9. edw. 4. 43. b. fairfax . 16. edw. 4. 9. a. for the ending and pacifying the said controuersie . 8. edw. 4. 10. a. 19. hen. 6. 37. b. askewe . according to the comprimise and submission . 19. edw. 4. 1. a. and agreeable to reason and good conscience . 19. hen. 6. 37. a. touching the etymologie or notation of the names thereof , it seemeth to bee called an arbitrement , because the iudges elected therein , may determine the controuersie , not according to the law , but ex boni viri arbitrio . or else perhaps because the parties to the controuersie haue submitted themselues to the iudgement of the arbitrators , not by compulsary meanes , and coertion of the law , but ex libero arbitrio suo , of his owne accord . it is called an award of the french word agarder , which signifies to decide or iudge . it is in the saxon or old english sometime called a loueday , for the quiet and tranquillitie that should ensue thereof , and for the ending of the cause which is wrought thereby . the materiall cause whereabout it is conuersant , is the controuersie , which 1 first may be either action , suite , quarrell , or demand ; and the 2 second that , concerning dutie or demand , either personall , reall or mixt , or euery of them . the formall cause is , the forme and manner of the award , or the yeelding vp of their iudgement , according to reason , intent and good meaning . the immediate efficient cause , is the arbitrator or arbitrators . the mediate efficient cause , is the comprimise or submission , and the parties at variance , being also parties to the submission . wherefore for the more breuitie we will discourse of euery of these last recited , when we shall discouer the power of the arbitrator . the finall cause , is both to appease 1 first the debate and variance so risen betweene the parties , and compremitted ; and also to reduce 2 secondly that which was before vncertaine , vnto a certaintie . so that by these you see , that those fiue things which are found to bee incident to euery award , viz. 1 first matter de controuersie . 2 submission . 3 parties al submission . 4 arbitrators and 5 render sur del iudgment , spoken of in 4. eliz. dyer 217. a. are here reduced into a methodicall consideration of the causes of euery award , seeing indeed , they and no other are the very causes of the same . the genus or generall notion of the former description , is , that it is a iudgement . the speciall difference whereby it is distinguished from other iudgements , and expressed in the said description , is , that it is giuen by iudges elected by the parties , and not by coertion of the law. the effect is , when it concerneth any payment of money , to alter , change and make the controuersie transire in rem iudicatam , and thereupon to giue action for the summe awarded . if it doe determine any collaterall or other matter then payment of money to bee made or done , then is it not compulsary to constraine the parties to performe it ; but euery of them is restored to his former action . except the comprimise or submission be by deed ; and so therein it resteth wholy vpon that security by bond , couenant , stature , or recognizance , by the which the parties comprimitted themselues . the adiunct , is the performance thereof and the manner how , which whether the award be performed or not , it maketh nothing to the nature and substance of the award it selfe . but neuerthelesse such performance of the award is a requisite consequent annexed to the consideration of the nature of an award . these the generall causes of an award thus considered ; next followeth the consideration of the groundes that flow from euery of them . from the materiall cause which is the controuersie , these groundes or rules are deduced . in reall matters quo concerne franke tenement , arbitrement ne lia , le title , ne done ceo . 14. hen. 4. 19 a. in matters of realtie which concerne freehold , an arbitrement doth neither giue title nor bind the right . in reall actions , vn arbitrement nest plee . in mixt actions , arbitrement nest plee ; si non que le comprimise soit per fait . 19. hen. 6. 37. 6. newton . in personall actions sur personall torts , arbitrement est plee , coment que le submission ne soit per fait . 14. hen. 4. 24. b. rauish gard . in controuersie concernant le propertie de reall chattells , vn arbitrement transfer propertie de ceo accordant al agard 21. hen. 7. 29. b. in chattells personall , arbitrement transfer propertie . in personall dutie grounde sur specialtie , arbitrement nest availeable . 3. hen. 4 , 1. b. 8 hen , 5. 3. b. in controuersie ground sr matter de record , arbitrement ne sera regard . 6. hen. 4. 6. a. 8. hen. 5. 3. b. 4. hen. 6. 17. b. arbitrement do et este de dutie inent certaine . 6. hen. 4. 6. a. 2. hen. 5. fitzh . 23. 4. hen. 6. 17. b. 10. hen. 7. 4. a. controuersy de dett solement . ne poet este misi on arbitrement . 45. ed. 3. 16. a. 2. hen. 5. fitzh . arbitrement . 23. 8. hen. 5. 3. b. 4. hen. 6. 17. b. 10. hen. 7. 4. a. in contract de det oue auter chose mise en conprimise arbitrement sera bone . 2. hen. 6. fitzh . arbitrement 23. 4. hen. 6. 17. b. 10. hen. 7. 4. a. dett sur contract sans specialtie , per le resolution de ascuns liuers poet ester mise en arbitrement . 45. ed. 3. 16. a. 6. hen. 4. 6. a 4. hen. 6. 18. a. these with diuers other grounds , doe proceede , as we haue said , from the materiall cause or controuersie . there resteth now to speake of such as doe proceede from the formall cause . euery award , as touching the forme thereof , ought to haue these foure qualities . 1. first that it be not of a thing impossible to be performed by the parties . 2. secondly , that it doc not ordaine matter vnlawfull to be done . 3. thirdly , that the same award agree with reason and with good meaning . 4. fourthly , that it be sensible , full , and perfect in vnderstanding . as touching the first . 1. arbitrement ne doiet este de chose ou matter impossible . 8. edw : 4. 1. b. moyle . 8. edw. 4. 10. a. yeluerton . 19. edw. 4. 1. a. neele . 9. hen. 7. 16. b. keble . 2. arbitrement ne doiet este de chose encounter ley . 19. edw. 4. 1 a. neele . 21. edw. 4. b. bridg. 9. hen. 7. 16. a. b. keble . 3. arbitrement ne doiet este reasonable . 46. edw. 3. 16. a. 43. edw. 3. 17. b. 2. hen. 5. 2. a. 17. edw. 4. 5. b. 9. hen. 7. 10. b. keble . 4. 6. edw. 3. 17. b. 21. edw. 4. 40. a. 10. hen. 4. fitzh . arbitrement . this ground last remembred , being generali , containeth therein many speciall rules vnder it ; whereof some doe follow . arbitrement doiet este tiel que les parties poient performer sans le assistance de ascunes auters quenx ils ne poient compela ceo faire & performer . 8. edw. 4. 2. a. illingworth . 17. edw. 4. 15. b. 18. edw. 4. 23. a. catesby . 19. edw. 4. 1. b. brian . mes si les parties ont mean per le ley a compeller tiels estrangers a ceo performer , le agard est assets bone . 17. edw. 4. 5. b. arbitrement g'le partie faire vn iudiciall act est bone , coment que il ne poiet ceo performe sans assistance del court. 19. hen. 6. 38. a. past. nonsute . 19. edw. 4. 1. b. brian . fine . 12. edw. 4. 8. a. retraxit . 21. edw. 4. 38 a. retraxit . 5. hen. 7. 22. a. b. discon &c. chascune arbitrement que ne import satisfaction del tort que est mise in comprimise , nest bone . 43. edw. 3. 28. b. sinchd . 46. edw. 3. 17. b. 2. hen. 5. 2. a. 45. edw. 3. 16. a. 19. hen. 6. 38. a. past : 22. hen. 6. 39. a. port. 30. hen. 6. fitzherbert arbitrement . 27. 9. edw. 4. 44. a. choke . 9. hen. 7. 16. b. 12. hen. 7. 15. a. this ground is also generall : wherefore it shall be expedient to diuide it by the particular circumstances of cases vnto more especiall propositions , together with their seuerall exceptions to be set downe in manner following . arbiterment in tiel maner , que pur ceo que vn des parties ad les chatells delauter , que il eux redeliuera , ceo nest satisfaction . 45. edw. 3. 16. a. kirton . 2. hen. 5. 2. a. 12. hen. 7. 15. a. mes si sur le deliuery des biens , cesty a que serront deliuer poet auer ascun benefit , per tiel deliuery in satisfaction del tort , donque est le arbitrement bone . 2. hen. 5. 2 a. 14. hen. 4. 14. b. 12. hen. 7. 15. a. arbitrement que vn partie auera vn parte del chose comprimise , & sr que le controuersie fat , & l'auter partie l'auter parte est voide . 45. edw. 3. 16. a. 10. hen. 4. fitzh . arbiterment . 19. arbitrement que le partie paiera part de sadett , est voide . 45. edw 3. 16. a. arbitrement sur matter de dett , sils agard que le parties endebted payera plus que il doit in recompence del dit dett ceo est void . 9. hen. 7. 16. b. keble . arbitrement que cesty que est suppose dauer fait trespas , faira de ceo son ley , et sur ceo sera discharge , nest satisfaction al auter , et pur ceo nest bone . 46. ed. 3. 17. b. arbitrement que in satisfaction del tort que les parties entermariont , ceo nest bone agard ; car nest satisfaction 9. edw. 4. 44. a. chock . arbitrement que vn des parties que est in arrerages in accompt accomptera al auter , ceo nest satisfaction . 30 hen. 6 fitzh . arbitrement . 27. arbitrement que les parties fera act a tiel iour , & deuant que le agard est perfect , le iour est passe til agard nest bone . 8. edw. 4. 11. a. 8. edw. 4. 22. a. arbitrement que refer le feasance del chose ou auter matter a tiel chose que nest in rerum natura ; tiel arbitrement est voide . 21. edw. 4. 40. a. 9. edw. 4. 44. a. 39. hen. 6. 10. a. haueing thus shewed the circumstances of certaine arbitrements , which haue beene taken to be against reason , sounding to no satisfaction , and therefore voyde : now resteth to be shewed certaine circumstances , in arbitrements agreeable vnto reason , and imparting satisfaction , and therfore deemed good . arbitrement do et este equall in respect d' ambideux parties , & lune come l'auter sera lie a ceo . 7. hen. 6. 41. a. strange . 19. hen. 6. 38. a. newton . 20. hen. 6. 19. a. newton . 39. hen. 6. 12. a. moyle . lou diuers dune parties , & dauter eux submit al agard , & le arbitrement est , que lune de lune partie paiera a vn auter de lauter partie tant , sans rien parler des auters ; ceo est bone agard , pur ceo que poet este que le auters naueront cause dauer ascun chose . 22. edw. 4. 25. b. arbitrement pur ceo que les torts fait per les parties chescun a lauter sont equal seront quit chescun vers lauter ; ceo est bone agard . 19. hen. 7. 37. b. newton . 20. hen. 6. 19. a. newton . 21. hen. 6. fitz. arbit . 9. arbitrement que vne des parties sera quit vers lauter , et que cesty auter paiera ou faira taut pur ceo que son trespas fut le greinder , est bone agard . 10. hen. 6. 4. a. 20. hen. 6. 19. a. newton . arbitrement que lune done al auter quart de rine , ou tiel petit recompence pur satisfaction del tort , est bone agard . 43. edw. 3. 33. a. 45. edw. 3. 16. b. belknap . 9. edw. 4. 44. a. nedham . si le arbitrement soit ; que vn des parties paiera grenider sum in value que le tort est que il ad fait , vncore le agard est bone , & ceo gist in discretion des arbitrators . 8. edw. 4. 21. chock . arbitrement , que chescun release a lauter , est . bone . 9. edw. 4. 44. b. danby . arbitrement que lune release tout son droit in tiel terre est bone satisfaction . si cesty a que le release sera fait soit in possession del terre &c. et ceo appiert per le agard . 9. edw. 4. 44. b. 21. edw. 4 40. b. arbitrement que lune partie done al auter tel chose , coment que le partie nad tel chose vn core est le agard bone , et il doit prouide ceo . 19. edw. 4. 1. a. neele . 9. hen. 7. 16. a. arbitrement bone in parte , et voide in parte . 19. edw. 4. 1. a. arbitratours poient ordaine act deste fait in lour agard pur le meliour securitie del performance de ceo , come obligation . 8. hen. 6. 18. b. newton . 19. hen. 4. 1. a. chock . chescune arbitrement do et este plaine , et certaine in sence . 8. edw. 4. 11. a. pigot . arbitrement est chose entier . 18. edw. 4. 23. a. brian . thus much touching the matter and forme of arbitrements and the axiomes , grounds and rules deduced from the same : wherein we haue not expressed euery rule that might be found in the books or collected thence , tending hereunto neither are these axiomes or propositions here put downe , furnished with all those cases , that mighe be thereunto applied . for , not intending to expresse the type of any treatise of this title ; but onely a methodicall abstract or directorie , that which is heere exemplified in part may be sufficient to expresse our meaning before declared . but to proceed . the efficient causes , and the rules drawne from the same do : come next to consideration . the first whereof is the arbitratour . of whom the author of the institutions of the canon law giueth this description . arbitri dicuntur proprie , qui ( nullam potestatem habentes ex lege ) consensu litiganttum in iudices eliguntur : in quos compromittitur , vt eorum sententiae stetur . out of the bookes of the common law , a description of an arbitratour may be thus collected . vne arbitratour est iudge priuate , esle● per les parties . 9. edw. 4. 43. b. fairefax . 16. edw. 4. 9. a. feneux . 19. hen. 6. 37. b. askew pur appeaser les debates enter cux . 8. edw. 4. 10. a billinge . et de arbitrate et adiudge selonque lour bone intent . 19. hen. 0. 37. a. paston . sithence in the award it selfe , the law requireth such qualities , there hath not bin made many nor scarce any question , who may be an arbitratour and who not : neither ( considering what hath beene said touching the forme of an award ) should it be greatly necessarie . therefore we will proceede respecting in the arbitratour these three things . 1. first his ordinance , from whom it is . 2. his authoritie , what it is . 3. his dutie wherein it consisteth . touching his ordinance , he is ordained by these two things . 1. first by the election of the parties . 20. hen. 6 , 41 , a. 2. by his own vndertaking of the charge . 8. edw. 4 , 10 , a. billinge . touching his authoritie , what it is . 1. first it is deriued from the submission ; and extendeth no further . 2. thereby he is a iudge betweene the parties . 3. and therefore he cannot transfer his authoritie ouer to any other . touching his duty , it consisteth in these three . 1. first to heare the griefe of the partie . 2. to iudge according to equitie . 3. to notifie their award . first therefore concerning the election of the arbitratours by the parties to the controuersie ( which ought likewise to be parties to the submission ) there is first of all to be considered , what persons may by the law submitte themselues to an award made by others , and what persons cannot . and therefore , si vne des parties submitt luy a vne arbitrement dune parte , et depute del auter parte in nosme del dit auter party : arbitrement sur ceo fait per enter eux , semble bon . 4. eliz. 217. a. 60. le baron poet luy mesme submit al agard pur luy et sa feme pur chattells des queux il adle disposicon in droit , et per reason de sa fem , et ceo liera la feme . 21. hen. 7. 29. b. si enfant submit luy al vne agard , il sera lye de ceo performer cy bien come home de plein age . 13. hen. 4 , 12 , a. 10. hen. 6. 14. a. si diuers dune parte ont fait tort a vn auter , & cesti a qui le tort est fait , et vn de les auters submit eux al agard , de cest agard fait les auters nient parties al submission aueron aduantage in extinguishment del tort . 7. hen. 4. 31. b. 20. hen. 6. 12. a. 20. hen. 6. 41. a. si divers del une parte submitt eux mesmes al agard de certaine persons , & divers del auter parte : les arbitratours ont power de faire agarde pur matters enter eux ioyntment , & issint pur matter enter eux seueralment . 2. rich. 3. 18. b. vide 21. hen. 7. 29. b. com. dalton . 289. b. si divers del une parte & de auter submit eux al agard del une , que fait agard perenter ascunes dune party , & ascunes del auter party et nemy perenter eux touts , & ne parle rien en son agard des auters , uncore tel agard est bone . 22. edw. 4. 25. b. thus much touching the parties that doe submit themselues vnto an award , and which make an election of the arbitratours . now followeth that somewhat be also said as touching the vndertaking of the charge of the said award . si le arbitratour protest , que il ne voile meddle ave tout ceo que est commit a luy ou conteyne en le submission ou sil fait agard tantum del percel , le agard est bone 19. hen. 6. 6. b. 39. hen. 6. 11. b. prisot , cont . 4. eliz. 217 , 60. 7. 1. eliz. 243. b. 52. mes si le submission soit per fait condicionalment que le dit gard soit deliver deuant tiel iour : une arbitrement de percel nest bone 4 eliz. 217. 60. 7. 8. eliz. 243. b. 52. mes uncore , si le submission soit que ils estoieront al agard des arbitratours de tout le chose comprimit ou fait pur ascun percel de ceo : donque le arbitrement est bone pur parcel . 39. hen. 6. 11. b. and thus much hath beene said of the taking vpon them of the charge of the arbitrement . now resteth it likewise to speake of the authority of the arbitrators themselues : which is , as before is declared , grounded vpon the submission . the submission or comprimise therefore out of the ciuill law , is thus defined . compromissum est simultanea illa partium promissio , qua sua sponte , ad alicuius boni viri arbitrium suam remittunt controversiam . submissions are in two manners , either by writing or by word . these that are by writing , are either by obligation , or by couenant . which obligation is eyther of record , as a recognizance , or by deed betweene the parties . and this submission by writing , or by word is eyther absolute , or conditionall , so that the award be deliuered by a certaine day , or such like . wherefore inasmuch as the authority of the arbitratour is deduced from the submission , it followeth that , le arbitrement que est fait de chose inent containe in le submission , est voide , 7 , hen. 6 , 40 , b. 19 , hen. 6 , 38 , b. forsc . 9 , ed. 4 , 44 , a. chock . 19 , ed. 4 , 1 , a. neele . 7 , 8 , eliz. 242 , b , 52. mes si le submission est de chose personales arbitrators poient agard , que vn des parties fera act que est de chose real in satisfaction del personal tort . 9 , ed. 4 , 44 , a , brian . si le submission soit de chose real , les arbitratours poient agard satisfaction deste fait de chose personal , 9 , ed. 4 , 44 , a , brial . si les arbitratours agard , que vn des parties fera act al estranger , come feofment , ou tiels sembles , tel arbitrement est void , 22 , hen. 6 , 46 , b. 17 , ed. 4 , 23 , a , catesby . 19 , ed 4 , 1 , b , brian . 5 , hen. 7 , 22 , b. si le submission soit dune chose , le arbitrement poit esse fait de chose incident a ceo . 8 , hen. 6 , 18 , b. 19 , ed. 4 , 1 , a , chock . ver . 9 , hen. 7 , 15 , b , 16 , a. vpon this authority giuen to the arbitrators by the submission , to deale in manner as aforesaid , in things touching the same submission . it ensueth also secundarily , that le arbitrator est un iudge perenter les parties , 19 , hen. 6 , 37 , b , ascough . 9 , ed. 4 , 43 , b , fairf . 16 , ed. 4 , 9 , a , leney . com. fogosta . 6. a. wherefore likewise it ensueth that the arbitrator being a iudge cannot transferre that his iudiciall authority to any other . and therefore , si le arbitrement soit , que les parties estoiera al arbitrement dun estranger ; ceo nest bone agard , 47 , ed. 3 , 21 , a , cont. 8 , ed , 4 , 10 , 11 , a. mes si l'estranger ad sait un arbitrement deuent perenter les dits parties , le agard pur estoier a tiel arbitrement del estranger est bone , 39 , hen. 6 , 10 , a , 11 , a. mes si le arbitrement soit que les parties performera le agard dune auter deuant sait perenter mesmes les parties , lou in verity nest ascun tel agard : uncore cest arbitrement est bone prima facie tanque soit nostre que nest tiel agard , 39 , hen. 6 , 12 , a , prisot . mes uncore si le arbitrement soit , que une act limit per le agard sera fait per le aduise & counseil d'une auter person , tiel agard est bone , 8 , ed. 4 , 11 , a. 14 , ed. 4 , 1 , a , chock . mes si le agard soit , que le act sera fait per le advise del arbitratour mesme apres le agard rendu sur tel agard nest bone , 19 , ed. 4 , 1 , a , chock . si les parties eux submit al agard de certaine persons , & sil ne poient agree , donque al ordinance dun auter come umpier si les arbitratours font agard de parcel , umpier ne fera agard del auter parcel remnans , 39 , hen. 6 , 10 , a , b. mes si le submission soit tiel que le umpier fera agard del tout ou parte , donque il poit faire agard de cest parte , ouesque que les arbitratours nauont meddle , 39. hen. 6. 11. b. prisot . now as touching the duty of the abitratours . first les duties des parties est a vener devant les arbitratours & mre lour grieues . 1 et le arbitratour doit eux oir . 2 et solonque ceo adiudge , ou auterment il nest bone iudge , 8 , ed. 4 , 10 , a , billinge . those which affect the method of ramus ( that is to begin with the efficient cause , as here , with arbitratour ) rather then that which is vsually prosecuted by the interpretors of aristotle ( namely to begin first with the matter and forme , which wee hitherunto haue endeauoured to follow ) may heere adde to , the second part of the duty of an arbitratour ( that is , to that which hath beene here said of this iudiciall authority and iudgement ) as much as hath beene before , first of all , shewed by vs , touching the materiall and formall causes and the groundes and rules incident thereupon . but neuerthelesse , to proceed with our intended enterprise , touching the third part of the duty of an arbitrator , viz. the publishing or notifying of his award , it is to be considered that the publishing or notifying of an award is either prouided for and ordained by the submission it selfe ; or else it is left and permitted to the discretion of the arbitratour . if it be prouided for , by the submission ; for the most part it is in this manner , that either the same award made be notified to the parties , or some of them ; and that , either by a certaine day or time , or else without limitation of any time . as concerning therefore the deliuery of the award , their is to be noted ; that where such prouision is made of notification by the submission , that then ; arbitrement nest arbitrement deuant que il soit pronounce . 8. edw. 4. 21. b. chock . lou per le submission est ordaine ou prouide condicionalment , que le agard soit deliuer , ceo nest ascun arbitrement in ley deuant que il soit deliuer in fait . 8 edw. 4. 11. yeluerton . 8. edw. 4. 21. a. chock . vide . 1. hen. 7. 5. a. 37. hen. 8. browne , condicions 46. mes si le submission soit que le agard sera deliuere al parties &c. deuant vn iour hoc petentibus , mes nul certaine iour limit quand doibt este deliuer les parties doient prender notice del agarda lour perill . 8. edw. 4. 1. 8. 21. &c. si diuers d'un party & diuers de auter party submit eux al arbitrement de vn auter , prouise , que il soit deliuer al parties , ou a vn de eux : ne besoign al arbitratour a deliuer ceo a ambideux del vn party ou a vn de chacuns partie : mes suffist si soit deliuer al aseun des dits parties 4. 5. eliz. 218. b. 5. si le submission soit que le arbitrement sera deliuer deuant tiel iour , il poet cy bien este deliuer per parol come per fait : si non que le submission soit que il sera per fait . 4. 5. eliz. 218 b. 5. si le submission soit que le arbitremnt sera deliuer ceo poet este fait in vn county , & deliuer in auter county . 5. hen. 7. 7. a. si le submission soit per fait , & le temps pas in que le arbitrement do et este fait , les parties ne poient proroge le temps ouster pur faire le agard sans nouel submission a tel extent . 49 edw. 3. 9. a. mes si le submission soit sans fait , les parties poient proroge le temps que fnt done pur faire le agard . 49 ed. 3. 9. fitzh . agard . 22. si les arbitratours font lour agard per enter les parties vn iour , ils ne poient faire auter agard per enter les parties vn auter iour , coment que le temps don per le submission ne soit expire . 22. hen. 6. 52. a. vide . 33. hen. 6. 28. b. arbitrement ne poet este fait parte a vn temps , et parte al auter , coment que soit deins le temps del submission . 39. hen. 6. 12. a. danby . 8. edw. 4. 10. b. fairfax 19. edw. 4. 1. a. chocke vide . 3. hen. 4. 1. b. mes les arbitratours poient common enter eux mesmes , & agree sur vn chose vn iour , & de aute chose auter iour , & in le fine faire vne entire agard de tout : et ceo est bone . 47. edw. 3. 21. a. 39. hen. 6. 12. a. danby . si arbitratours agard vn chose de vne parte , & deuant que ils poient agree de lour agard del remnant , le temps done par le submission expire ; tout lour agard est voide . 39. hen. 6. 12. a prisot . but if there be by the submission no order taken for the deliuery or publication of the award ; then in honesty & conscience le arbitratour est tenus de faire notice al parties de ceo . vide . 8. edw. 4. 10. a. billinge . vide . 8. edw. 4. 2. a. b. markham . mes in rigore iuris l'arbitrement mesme est intend chose notorious . 8. edw. 4. 1. b. chock . 8. edw. 4. 21. b. chock . et per ceo . parties al arbitrement sont tenus de prender notice del agard a lour peril . 8. edw. 4. 1. 8. 21. 18. edw. 4. 18. a. 1. hen. 7. 5. a. coment que les parties ne sont dauer notice done a eux de l'arbitrement , vncore si les arbitratonrs agard que un des parties fera act que depend sur auter primes deste faite del auter partie , de ceo il auer notice 8. edw. 4. 21. b. 20. edw. 4. 8. b. sulliard . hitherto hath beene said of such matters where the arbitratours haue executed their authoritie without controull of the parties : but if , before any award made , their authoritie shall be lawfully countermanded . then doth there remaine in this place to be considered . 1. whether such countermaunds be permitted by the law. 2. and in what cases not . 3. and also in what manner the same is to be done . wherefore si le submission soit sans fait , chescun des partes poit countermand & discharge les arbitratours . 49. edw. 3. vide fitzherbert arbitrement 21. 21. hen. 6. 30. a. 28. hen. 6. 6. b. 5. edw. 4. 3. b. 8. edw. 4. 10. b. mes donque les parties doient doner notice al arbitratours del dit discharge . 8. edw. 4. 10. b. markham 8. edw. 4. 12. a. lakyn . mes si diuers d'vn part & diuerse d'auter partie eux submit al arbitrement sans fait , vn del vne parte ne poet discharge le arbitratour sans les auters son compagnons de mesme le partie . 28 hen. 6. b. mes si le submission soit per fait vn des parties ne poit countremaund les arbitratours . 49 edw. 3. fitzh . arbitrement 22. nient in le liuer a large . 5. edw. 4. 3. b. 8. edw. 4. 11. b. pigott . the last cause of the fower before remembred being the finall cause ( that is ) the end and scope wherefore men do submitte themselues vnto the arbitrement and award of any person , consisteth vpon two things . 1. chacun arbitrement est a faire final determination & de appeaser le strifes , debates & variances enter les parties . 19. hen. 6. 37. b. newton . 8. edw. 4. 10. a. lakyn . 8. edw. 4. 12. b. yeluerton . 2. chacune arbitrement est a reducer chose incertaine a vne aertainetie & nemy a reducer vn certainty in auter certainetie 6. hen. 4. 6 a. hankford . 4. hen. 6. 17. b. weston . 10. hen. 7. 4. a. thus much hath beene said as touching the causes . now as concerning the genus or generall notion in the former definition of an arbitrement , it is to be considered , that chescun arbitrement est vn iudgement . 8. edw. 4. 1. b. fairefax . 8. edw. 4. 10. a. ieney . 21. edw. 4 39. a. vauasour . because the speciall difference vsed in the said former definition of an award , was this , that it was giuen by iudges elected by the parties and not by compulsary iurisdiction of the court , thereof enseweth , that il est diuersitie lou home est iudge per authorite del ley , & per election del partie mesme : car iudge de record ne doner iudgement vers les parties , sinonque ils sont appells deuant eux per proces del ley : mes autrement est dun arbitratour que est iudge per enter les parties . 8. ed. 4. 2. a. illing sworth . of this also ensueth , that whereas euery iudgement of record shall be executed literally , according to the warrant issuing out of the record , vpon and for the executing of the said iudgement ; yet neuerthelesse . chescune arbitrement doit este expound et intend accordant al intent des arbitratours , & ne my literalment . 17. edw. 4. 3. brian . 21. edw. 4. 39. a. b. vide 19 hen 6. 36. b. markham . mes si l'intent des arbitratours ne estoit oue la ley : donque les parties ceo performera accordant eux parolls in tiel sence que agree ove le ley . 21. edw. 4. 39. b. fairefax . the causes of an arbitrement being thus deciphered , there followeth next the consideration of the effects thereof . the effects of an arbitrement are these which do ensue . per arbitrement le controuersie transit in rem iudicatam . 49. edw. 3. 3. a. hanmer . 20. hen. 6. 41. a. paston . 9. edw. 4. 51. a. danby . 6. hen. 7. 11. b. hussey . com fogassa . 6. a. et pur ceo lou le party port action pur le tort a luy fait , est bone plea que il eux submit al arbitrement de tiels ; qui agard que il paieratant &c mes le iour de payment , de ceo nest vn core venu . 6. hen. 7. 11. b. hussey . 9. edw. 4. 51 , a. chock . 20. hen. 6. 12. b. newt . 20 hen. 6. 40. a. b. paston 28. hen. 6. 12. 5. edw. 4. 7. a. mes si le iour de payment soit pass , il doit monstre que il tender les deniers al iour , & que il est vncore prist . 8. hen. 6. 25. b. martin . 16. edw. 4. 8. b. pigot . car , arbitrement per que les arbitratours agard , que vn des parties paiera money , done action . 15. edw. 4. 7. a. chock . 16. edw. 4. 9. a. pygot . 17. edw. 4. 2. b. townssend . 17. edw. 4. 8. a. pigot . fitzh . natura breuium h. 121. que . 6. hen. 7. 11. b. hussey . 9. edw. 4. 51. danby . et si les parties ne performe l'arbitrement , le parte est restore a son primer action . 49. edw. 3. 3. a. mes vncore est a son election de auer briefe de debt sur le agard , ou le primer action . 49. edw. 3. 3. a. 33. hen. 6. 2. b. mes si le payment soit fait , le primer tort est tout ousterment determin per le agard 4. hen. 6. 1. a. 8. hen. 6. 25. b. 21. hen. 7. 28. b : ex que ensuit auxy si les arbitratours a gardant , que vn des parties paieratant des deniers , et chacun de eux est , oblige al auter pur estoier al agard le party auera action sur le agard , & auxy le fait si agard ne soit performe . 21. edw. 4. 41. b. 33. hen. 6. 2 b. si le submission soit per paroll & arbitrement soit que vn des parties fairont vn collateral act , auter que payment des deniers , ceo ne done action , & si ne soit execute in fait et satisfie , le arbitrement nad ascun effect ; et tel arbitrement ne determyn le primer tort , 19. hen. 6. 38. a. newton : 20. hen. 6. 19. a. markham . 5. edw. 4. 7. a. chock . comfogossa . 11. b. vncore si le submission soit per obligation , si vn collaterall act soit agard deste fait ; si ceo ne soit performe , le obligacion sera forfeit . 9. edw. 4. 44. a. thus much touching the effects of an award . a consequent thereof is , the performance ; wherin we are to consider , that . les parties doient faire tout ceo que in eux est ceo performe . 21. edw. 4. 39. b. fairfax . si per le arbitrement soit agard que vn act sera fait le quel home poit performer , in deux manners lun voy per luy mesme , et per l'auter voy il doit auer l'aide d'un auter person : le party doit ceo performer per tel meanes que il solement poit faire sans aid de l'auter . 21. edw. 4. 40. b : hussey . arbitrement ne doit este performe in part , et in part ne my . 6. hen. 7. 10. b. mes coment que arbitrement ne poet este fait per les arbitraetours , part a vne temps , et part a auter temps : vncore ceo poit este performe part a vn temps et parte al auter . 8. edw. 4. 10. b. fairfax . les parties aueront reasonable temps a eux allowe pur le performer , d'un agard , si nul temps soit limitt . 20. edw. 4. 8. b. 21. edw. 4. 41. a. b. &c. si le act que les arbitratours agard que l'un party performera , ne poit este performe , denant auter act primes fait per lauter partie , si cest partie ne fait le primer act , l'auter est excuse . 5. edw. 4. 7. a. arbitrement que l'un partie patera mony , & l'auter fera relcas ; ceo sera fait a vn mesme temps , si ne soit obligation a performer le agard . 21. hen. 7. 28. b. knightly , & reade . mes si soit obligation a performer le agard , donque chacun doit performe son parte de soubs le peril de l'obligation . 21. hen. 7. 28. b. reede . si obligation soit fait pur estoier al arbitrement coment que le arbitrement soit void in ley , vncore ceo doit este performe , auterment le obligation sera forfeit 22. hen. 8. 46. b. port. per cur. mes si action soit port sur tel void agard , le action ne sera maintaine . 22. hen. 6. 46. b. port. si le matter contenus in le agard , & le matter contenus in le submissior . de que les arbitratours doient agarder , differt in parolls , ou in circumstance , les parties al arbitrement ne seront receiue in sute sur ceo de auerrer que tout est vne . 7. 8. eliz. 242. b. 52. thus much hath beene spoken concerning arbitrements , their causes , effects , and consequents . there resteth to accomplish our intended methode , that we adde somewhat touching that wherewith an arbitrement is compared , matched and resembled in the booke cases . wherefore know you that , chacun accord resemble vn arbitrement . vncore chacun accord doit este satisfie oue recompence ; et accord ne done action ; leu del auter parte arbitrement pur que les parties sont adiudge de paier deniers , done action ; & ne besoique dests pledc , execute come deuant ad apparus . 6. hen. 7. 11. b. 5. edw. 4. 7. a. 17. edw. 4. 2. b. 17. edw. 4. 8. a. com. 6. a. fogassa . and thus farre forth for example sake , haue we set out these grounds and rules of arbitrements . whereunto if there were added , in their due places , the residue of the rules and grounds which may be collected out of the bookes of the law concerning the same , and furnishing both these and them with as many cases as might be applyed thereunto ; the same cases being put at large vnder euery of their rules , to demonstrate that in particuler , which the rule includeth in generall , the enterprise would proue ( as i thinke ) some shew of a treatise , concerning this title . which being no hard thing to accomplish , thereby would appeare that it were neither vnpossible neither vnprofitable , nor altogether vnpleasant , to reduce euery title of the law particularly to a methode ; and so consequently , the whole body thereof into a perfect shape , which now seemeth wholly without conformitie , and altogether dismembred . wherefore now , as touching the materiall cause of rules and grounds , thus much said , may suffice . formall causes and grounds of the law. the diuisions of grounds of the law , as touching and concerning the forme , are in sorte to be considered . 1. first , the coherence of the words and the matter . 2. secondly , the manner of the manifestation thereof . for the coherence of the matter and wordes , there are to be regarded these two qualities . 1. first , veritie and 2. secondly amplitude or generalitie . veritie of propositions or grounds consisteth of two sorts : for they import either a necessarie or knowne truth which cannot be impugned : or contingent veritie or probabilitie , which may sometimes notwithstanding their shew of truth , be impeached of falsehood , and so be subiect vnto many exceptions : the former of these are called primarie conclusions of reason . and the later secondarie principles . 1. those of the first sort are such generall assertions of the law , as are imprinted in the minde of euery man , and discerned by the light of very nature it selfe : which , as most certaine and vndoubted , neede no confirmation or fortification , but of themselues are most sufficiently knowne to be true and not impugnable : which the philosophers doe call , primò & per se cognita ; communes animi conceptiones & notitiae , familiar to the conceipt of euery person . notes collected touching the veritie of principles . principiorum . alia sunt necessaria , alia in rebus contingentibus cernuntur . axioma verum , est , quando pronunciat vt res est . axioma verum est , aut contingens : necessitans . necessarium axioma , quando semper verum est ; nec falsum esse potest . vnde aristoteles , vera quidem sunt & perspicua ea , quae non ab alijs sed à seipsis fidem habent . de primis principijs . principia nihil aliud sunt quam propositiones immediatae . ego propria cuisque generis principia appello , quae , quod sint , demonstratione probari non possunt : ( nam , quae sit verborum vu et significatio , tum principiorum , tum eorum quae ex principijs efficiuntur , intelligendum est ) quod verò ipsa sint principia , citra demonstrationem ponitur ; reliqua autem demonstratione concluduntur . prima et principia pro eodem sumo . est autem principium demonstrationis propositio , quae ob id immediata dicitur , quoniam nulla est alia prior per quam ipsa confirmari possit . primaria principia dicuntur vniuersalia quaedam iuris pronunciata , quae omnibus hominibus ita sunt impressa naturaliter et infixa , vt , velut indubitata et notissima , non alia egeant demonstratione , aut certè leui aliqua probatione confirmentur . vnde et communes animi conceptiones et notitiae appellantur quod suapte vi & perspicua sit et euidens horum principiorum veritas et natura , quasi sine aliqua dubitatione et contradictione veluti ab omnibus concessa , in disputatione sumantur . of which sort for example are some of them before mentioned , and here againe to be remembred in this behalfe , in manner following . volenti non fit ininria omne maixs continet in se minus . qui sentit commodum sentire debet et onus : fraus et dolus nemini patrocinantur . with infinite other in vniuersall manner proposed , and with not a few in speciall set forth , as in grants , as afore hath beene declared . quando aliquis quid concedit , et id etiam concedit sine quo res concessa esse non potest . in testaments . testamentum est morte confirmatum . in rents . chacun rent est issuant hors de terre . with exceeding many other of like nature to be found in euery title or tractate of the law. the manifest truth and great reason of which said grounds is euident to euery person of any iudgement , and neede no proofe for demonstration and establishing of them . 2 secondary principles , are certaine axiomes , rules , and grounds of the law , which are not so well knowne by the light of nature , as by other meanes : and which although they neede no great proofe to be confirmed ; because they comprehend great probabilitie ; yet many times are they , at the first shew , not yeelded vnto without due consideration : and are peculiarly knowne , for the most part , to such onely as professe the study and speculation of lawes . probable they are said to bee , because , although the manifest truth of them be vnknowne , yet neuerthelesse they appeare to many , and especially to wise men , to be true . and of this sort in the lawes of the realme there are so many found , that some men haue affirmed , that all the law of the realme is the law of reason : because they are deriued out of the generall customes , and maximes , or principles of the law of nature or primary conclusions . and for the knowledge of these propositions there is a greater difficulty ; and therefore therein dependeth much the manner and forme of arguments in the lawes of england . notes collected touching the difference betweene primarie and secondarie principles . principia immediata quae in demonstrationibus accipiuntur , in duo genera distribui possunt . vnum corum quae quanquam demonstrari non possunt , non tamen ita aperta , & per se manifesta sunt , ut necesse sit ante cognita esse ei qui artem aliquam discere velit , quae nos positiones appellamus . altero genere continentur ea , quae ita sunt per se perspicuae , ut non possint non esse , omnibus multò ante cognita , & perspecta quam quicquam doceatur ; quae pronunciata dicuntur . to like effect speaketh aristotle in another place , ea pro initio & proposito sumenda sunt . 1 quae in omnibus . 2 vel certe in plurimis rebus inesse videntur . the former sort aristotle seemeth to call , as afore shewed , pronunciata , the other propositiones . and although in the law of the realme , they are indifferently called , without distinction , rules , principles , groundes , maximes , eruditions , and such like : yet the iudgement of massaeus herein is worthy obseruation . accursius videtur non parum aberravisse à vero , cùm idem significare voluerit principia , maximas , & regulas ; cùm ( aristotle auctore ) cuiusque scientiae principia sunt quaedam propria , quae quod vera sint non contingit demonstrari , & quae per se , & non per alia fidem'habent , quoniam nihil prius superiúsque in ea scientia est per quod confirmari explicarique possint . talium autem principiorum , nonnulla sunt positiones , alia dignitates , sic dictae , ob id quod iure illis fides habenda sit , cùm ea unusquisque audita statim admittit : quale est istud : totum unumquodlibet maius est aliqua sua parte . hae rursus appellantur maximae , propositiones , & communes animi conceptiones ; quod muliorum scilicet intellectu facile percipiantur . tales autem nonsunt regulae ; quae licet sint universalia praecepta , indigent tamen probatione , & probari possunt : nec tamen auditae admittuntur . hee seemeth to attribute the name of principles , axiomes , and maximes to the first sort , and the name of rules to the second . of the secondarie principles or rules there are two kindes . some deduced and drawne from the vsuall and ordinary disposition of things ( as hath been before declared ) and by the obseruation of humane nature dispersed in the mindes of men , collected by long obseruation : whereof some are altogether vpheld in the law vpon common presumption , and entendment : others doe rest vpon discourse of reason deducted in argument . but of the former , some are such , as although they are but probable , and import no certaine truth , and therefore may notwithstanding be sometimes vntrue : yet neuerthelesse for the great likelihood of them in humane actions , and the better to frame a conformitie , through the whole body of the law , the said lawes permit no allegation to impugne them , or any speech or auerment to impeach their credit . the first sort of secondarie rules grounded vpon entendment . others there are also that depend vpon entendment : but of the former kinde , this is one , grounded vpon naturall affection . la ley ne voit presume que ascun voit lede son heire , ou auter que est procheni de son sanck , mes que il voit plus test advance luy . which ground , vpon the presumption of naturall affection , is not such , as that it soundeth alwaies true ; ( for in diuers persons nature worketh diuersly ) wherefore although this assertion shew how euery man should be affected , notwithstanding it is no proofe that all men are so affected . and yet neuerthelesse this strong entendment of law , doth not permit any thing to impeach the same ; and will not suffer any person bound by collaterall warranty ( the reason whereof floweth herehence ) to trauerse such affection , although there be neuer so pregnant proofe to encounter the same . notes touching the definition , diuision , and necessary consequents of secondary principles . ivris praecepta secundaria sunt certa quaedom axiomata & definitiones seu regulae , quae non tam naturâ quàm civili aliquâ ratione & authoritate , aut communi mortalium usu per hominum animos diffunduntur . quae etsi plerumque verae sunt , nec valde egeant demoustratione ; non tamen ita , priusquam pressius considerentur ab illis cognoscuntur qui nostrae scientiae dant operam . quapropter , levi aliqua & verisimili ratione , ut ijs assentiantur , opus est . see the manner and meanes how they are inferred by discourse out of the generall customes or principles of reason , and the example thereof vsed by the author of the dialogues of the doctor and student . presumption or entendment of law , whereupon certaine of the secondary rules are grounded ( as before is shewed ) are in two sorts : for species presumptionum sunt duae : una , quae legitimis probationibus regulariter refutari potest , quam communē licebit appellare : altera quae reprobari non potest , quae & specialis rectè fortasse dicetur . certè magno reip. bono constituuntur huiusmodi praesumptiones : nec potest fieri ut sine praesumptionibus ulla certa iura aut ullae certae leges describantur . secondarie principles are grounded either vpon entendment of law , of which sort some are such as doe admit of no proofe to encounter them , and rest vpon entendment , but yetadmit proofe to the contrary . or discourse ofreason . so likewise the law vpon like common presumption conceiued of the acts aud behauiour of men , intendeth this principle . nul bome sans cause voile faire act a preiudice ley mesme . and hereupon the law presumeth that eucry assertion and allegation proceeding from any person which soundeth to his preiudice and hurt , is so vndoubtedly true , as that there shall not be suffered any trauers or deniall of the same . wherefore if in a praecipe quod reddat brought of twenty acres of land against one , and he , before the stature of coniunction feoffatis , had pleaded ioyntenancy with another of deede ; or sithence the said statute , if he had pleaded ioyntenancy by fine with another ; although the piea be vtterly false , yet shall not the demaundant haue any answere or trauers thereunto ; because that when the demaundant by his writ hath admitted him tenant of the whole ; and hee saith that hee was ioyntenant with another ; this other , if he bee false , may stop the tenant by this record ; to say the contrary of his affirmation , and thereby may gaine the moytie of the land , against him that hath so pleaded . and therefore , for that , that men are not wont to tell vntruths in disaduantage of themselues ; and that the saying hereof if it were not true , will greatly be to the preiudice and hurt of him that affirmed it ; thereupon the law presumeth , that it was true indeed ; and will in no wise admit the trauers against the same , or giue the demaundant abilitie to impugne it ; but hereupon presently , the writ shall abate , and no maintenance of the writ for the cause aforesaid , shall be allowed . in like manner also matters of record the entendment of law doth giue an impeachable credit . and hereof also this rule of law is drawne . matters de record import in eux ( per presumtion delley , pur lour hautnesse ) credit . and therefore none shall be permitted to say , that the kings pattent vnder the great seale was made or deliuered at any other time then that wherein it beareth date . no more then a man may say , that a recognizance or stature marchant or staple , was acknowledged , or any writ was purchased at any other time , then that wherein it beareth date . for an auerment that it was antedated , or that it was deliuered or acknowledged after the date , is an auerment tending to the discredit of the great seale , or of the iustice of officer of record which recorded the recognizance , or the statute marchant , or such like . in the dealings and affaires of men , one man may affirme a thing which another may deny . but if a record once say the word , no man shall be receiued to auerre ; speake against it ; or impugne the same : no though such record containe manifest and knowne falshood , tending to the mischiefe and ouerthrow of any person . and therefore whereas certaine persons were outlawed in the kings bench , in the time of shard iustice , and their goods forfeite , and their names likewise certified into the exchequour with an abstract of their goods , it hapned so that the name of one ( by misprision of the clarke ) was , among the rest certified likewise into the exchequour , as out-lawed and that he had goods to the value of sixe pounds , whereas indeede the same man was not outlawed . and thereupon a writ iussued to the sheriffe of that countie , where the said goods were supposed to be , to seaze the same to the vse of the king , who returned that a nobleman had seized the same goods ; and thereupon issued forth another writt out of the exchequour , to cause him to answer the same goods so seized by him , who vpon the returne of the second writ , alleadged , that the partie whose goods he had seized , was not vtlawed : and greene , one of the iustices of the kings bench came into the exchequer with the person who was supposed out lawed , and there testified that he was not out-lawed ; but shewed , that that which was certified was done altogether by the misprision of the clerke : where skipwith returned him this answer . that although all the iustices would now record the contrarie , that they could not be permitted nor any credit might be giuen thereunto , whenas there was a record extant , and not reuersed testifying the same out-lawry : yea the law so mightily vpholdeth the intended credit of a record , that it preferreth the same before the oathes of men , sounding to the contrarie , and in respect thereof , will not permit a verdit to be receiued , which might impeach the same . and therfore whereas one brought a writ of wast and assigned the wast in diuers particuler things , and moreouer in a message and tenants in wood-church ; where amongst other wasts assigued , the plaintife shewed , that the defendant had done and permitted waste in the hall of the said messnage , &c. the defendant pleaded in this action , that woodchurch was a hamlet of a. and no towne of it selfe . which plea includeth a confession of the wast to haue beene done in such manner as was declared . and vpon this plea , the parties were at issue ; with the which the iurie were charged : and further it was giuen them in charge , that if they found that woodchurch was a towne of it selfe , and no hamlet of a : as the plaintife had supposed , that then they should assigne damages seuerally for euery waste committed . the iurie at length found , that woodchurch was a hamlet of it selfe , and assessed damages for certaine of the particular wastes supposed seuerally , as they ought . and as touching the wast supposed to be done in the said hall , they said there was no such messuage . the iudges reiected their verdit , because it was contrary to that which was implyed by the plea of the defendant of record : and so inforced the iurie to giue damages for a wast : which ( indeed ) was not done contrarie to the conscience of the iuries ; notwithstanding that some of them made protestation , that in so doing they might be periured : which wholly was done onely to vphold the credit of the record ; and that the verdit ( of record ) might not be contrarie , to that which was implyed by the plea of the parties . moreouer , there is a rule of law wholy grounded vpon entendment which is this . liuery del fait sera intend in le lieu cu le date fut . the deliuery of a deede shall bee intended to be where it beareth date . which rule the law vpholdeth for certaine truth , ( although in very deed it may be at sometimes vntrue ) and therefore will not permit any proofe which may impeach the intended truth , of the said proposition . for confirmation whereof , a notable case cited in the 31. hen. 6. and by way of argument alleadged in fogassa his case , may be produced ; which was in this manner . an action of debt was brought vpon a deede ; the defendant denyed the same ; whereupon the parties were at issue ; and the witnesses produced to proue the deede were examined where the deed was deliuered : who answered : at yorke ; which was in another countie then where the said deede bare date ; and hereupon the desendant demurred : and after vpon consideration , iudgement was giuen against the plaintife in ouerthrow of the action founded vpon that deed ; which cannot be intended to be deliuered else where then at the place where it beareth date . many examples may be further produced to like effect , to proue that diuers rules there are receiued in the law which vpon presumption and common entendment , to eschew some notable mischiefe or inconuenience , are so holden for truth , that in no wise they shall be incountred ; although indeede , as occasion may fall out , they doe containe manifest and apparent falshood . but these allready in that respect alleadged may abundantly suffice for example . of like nature also there are in the law other kind of rules or principles ; which although , they doe concerne contingent matters ; and therefore may sometimes be impeached , and found vntrue ; yet doe they carry a kinde of credit also vpon presumption or entendment of law , although not so vehement as the former . wherefore although the law doth receiue them prima facie , and at the first shew , as likely , and giueth credit vnto the assertion contained in them , yet neuerthelesse doth it admit proofe to the contrarie , and so suffereth such praesumption or entendment , which vpholdeth such rules , to be impeached , and controlled by a contrarie tryall by pregnant proofe , and so doth permit any auerment to be made against the same . for example : it is a rule in law that a verdict sera intenda touts foits vray tanque il est reuers pur ceo que il est issint troue perferment de 12. homes . a verdict shall be intended alwaies true , till it be reuersed , for that it is so found by the oath of twelue men . and hereupon it is agreed for law , that if a iudgement be giuen erroniously , the partie grieued thereby shall not onely , haue his writ of errour to redresse the same , but also a supersedeas to countermaund execution thereupon . but if iudgement be giuen vpon a verdict although the same verdict be vntrue , and the partie greiued doe bring his writ of attaint , yet neuerthelesse he shall not in that case haue a supersedeas to stay execution , for the intended truth , which the law supposeth in the said verdict . and yet the law permitteth the falsehood in verdicts to be laid open , and punisheth them with great seueritie 33. hen. 8. 196. brookes case . 4 edw. 6. com. 49. if a writt of conspiracie be brought against one , for that he gaue euidence before the iustice of peace at their sessions , concerning the suspicion of a felony supposed to be done by the plaintife , vpon which euidence , the plaintife was indicted of the said felonie ; and after found not guiltie by a lurie of twelue men ; it is no plea in this writt of conspiracie , for the desendant to say , that the plaintife was guiltie of the felonie , for that were to encounter the verdict ; which shall be entended true . and although the law doe giue credit , to all verdicts ; yet doth it not foreclose the partie greiued thereby , but permitteth him to impugne it , and to impeach it of falsehoode , if he can , by his writt of attainct . also there is a rule in the law , that feesimple ou auter estate certaine conuay a vn sera intend de continuer in le person in que il est repose , toats foits durant mesme l'estate . an estate of inheritance or other estate certaine conucied to a man , shall be intended to continue in the person wherein it was reposed alwaies during the continuance of the said estate . although this for law be prima facie intended true ; yet neuerthelesse thereunto this must be added viz. sine soit mre comment auterment ceo est deuest . if it be not shewed otherwise how it is deuised . by thus much said , it is sufficiently made manifest , that some propositions , rules and grounds of the law are intended true ; but yet proofe is allowed to encounter the same . so hither to hath bin spoken of the veritie of propositions ; whereof some are indeed and nature manifest true , and grounded on necessarie reason ; and other some are true also , but vpon matter contingent . contingent veritie was said to be of too kinds . the one grounded on common presumption and entendement of the lawes , which like wise was subdiuided into two branches . some of them such as doe not admit any contradiction to impugne them ; for the certaine supposed truth ( though indeed not alwaies found , in them , yet alwaies deemed by them ) alloweth no controll ; the other sort of rules resting vpon entendement , are such as are prima facie supposed true , but yet no otherwise supposed true then till the contrarie be proued , and they impeached of false-hood : of both which there hath beene shewed sufficient examples . now therefore in order followeth the second principall part of contingent propositions or grounds framed vpon obseruation of nature , and disposition of things , collected and drawne by discourse of reason , because it cannot be equally euident to euery mans capacitie . and for asmuch as the said discourse and manner of reasoning , through the weakenesse of mans vnderstanding , and difficultie of the matter , may faile and be oftentimes deceiued in some circumstances which may and daily do occur through the varietie of particular matter , which againe ( in reason ) may offer a contrary resolution ; therefore are those grounds not vniuersally true , but subiect to many and manifould exceptions . and yet neuerthelesse true in all such cases as are not comprehended vnder those restraints or exceptions . of which kinde we mentioned some in the beginning ; as namely . 1. sublata causa tollitur effectus . 2. qui tacet consentire videtur . 3. quod initio non valet , tractu temporis non conualescit . 4. quando duo iura in vno concurrunt , aequum est ac si esset in diuersis . euery of which many other of the like nature ; though they be of themselues , vpon the first viewe of great probabilitie ; yet neuerthelesse , being with more earnest consideration pondered , are found not so firme as they seeme , but are subiect to some controulment , and to be impeached with sundrie instances and exceptions . of such like the number is in manner infinite : at the least many thousands in our law , which are published in the french. nest loial pur ascun de enter in le terre del auter sans son licence . it is not lawfull to enter in another mans ground without license . discent de estate dinheritance in terr , toll le entry de ceste que droit ad . the discent of an estate of inheritance in lands taketh away his entrie which hath right . but these few shall suffice in this place for an example . wherefore for asmuch as the minde of man is beautified with two faculties or powers in qualitie different , though flowing from that which is in nature indiuisible ; whereof the one we now call for distinction sake ( capacitie ) and the other ( discourse ) . by the former of which we apprehend , as with the in ward eye , the naturall light and resplendency of many primarie propositions , and knowne motions ; whose clearenesse and euidence causeth euery one to yeeld thereto their consent . and by the later we doe collect , reason , argue , and infer of those former motions and resolutions , certaine secondarie propositions discended and deriued from the first , as branches from the roote , or riuers from the fountaine ; which by how much the more they are drawne from their sping , by so much the more ( by reason of the varietie of interposed circumstances ) they are oftentimes obscured and made lesse cleare and euident . and sith that euery science is not of like certainty , by reason of the variable condition of the subiect whereupon it is imploved ; so that rightly of morall philosophy ( consisting wholly of mans changeable and inconstant conuersation , and from whence indeed , the knowledge of all lawes are in a generality deriued , and thereto to be referred ) said , the philosopher aristotle right well in excuse of his purposed method in the deliuery of the same , that doctrina discernens honesta & turpia , tantis dubitationum fluctibus concutitur , ut multis lege tantum & opinione , non naturâ , constitutum esse ius videatur . it followeth me thinketh , of necessity , that it is scarcely possible to make any secondary rule of law , but that it shall faile in some particular case : whence springeth this often vsed assertion , non est regula quin fallat : and therefore the ordainers and interpreters of law , respect rather those things which may often happen ; and not euery particular circumstance , for the which though they would , they should not bee able by any positiue law to make prouision . by reason whereof they doe permit , the rules , axiomes , and propositions of the common law , vpon discourse and disputation of reason , to bee restrained by exceptions ; which are grounded vpon two causes . the one is equity : the other is some other rule or ground of law , which seemeth to encounter the ground or rule proposed : wherein , for conformities sake , and that no absurdity or contradiction be permitted , certaine exceptions are framed , which doe not onely knit and conioyne one rule in reason to another , but by meanes of their equitie , temper the rigour of the law , which vpon some certaine circumstances in euery of the said rules might happen and fall out : et omnia benè coaequiparat , as saith bracton . and therefore the author of the dialogues betweene the doctor and student describeth equity according to this the effect thereof here mentioned : which is that it is no other thing , but an exception of the law of god or of reason from the generall rules of the law of man , when they by reason of their generality , would in any particular case , iudge against the law of god , or the law of reason : the which exception is secretly vnderstood in euery generall rule of euery positiue law. and a little after , in the same place affirmeth , that equity followeth the law in all particular cases , where right and iustice requireth , notwithstanding that the generall rule of the law bee to the contrary . and the exception so framed vpon any rule or ground to the which it is annexed , doth not impeach the credit of the said ground ; but being included therein , as aforesaid , format regulam in omnibus casibus non exceptis . but lest some men might thinke , that whatsoeeuer is spoken in the said dialogues touching equity might be onely vnderstood of that equity which either enlargeth or restraineth statute lawes ( and of which mr. plowden in his appendix vnto the argument of the case of eston and studd , in his second commentaries so largely out of aristotle and bracton discourseth . there followeth in the same place of the said dialogues , and in the chapter next ensuing are proposed two axiomes , groundes , or rules , with their exceptions , there put for example , and which doe tend to the purpose and proofe of that whereof we now speake . and because that those said rules there mentioned are last of all here for example before proposed , it shall bee requisite first of all to furnish euery of them with examples . but yet for the better vnderstanding of that which is behoofefull to be knowne concerning equitie in generall , we are to note that euery rule with his exceptions or ( to speake otherwise in words ) euery receiued difference in the law ( being indeede nothing but a rule or ground and his exceptions ) doth either flow from equitie , or else result of the combining of two rules together , as before hath beene declared . the vse therefore of equitie is triple in our law : for 1 either it keepeth the common law in conformity by meanes here mentioned . 2 or it expoundeth the statute law. 3 or thirdly giueth remedy in the court of conscience in cases of extremitie which otherwise by the lawes are least vnredressed . wherefore as all men endewed with the right vse of reason , and conuersant in the knowledge of any law , must of necessity confesse , that euery law doth stand vpon permanent rules , as of iron not to be bent or broken vpon this or that occasion , or to be infringed vpon this or that occurrence ( for else there neede no court of law , but all should be one with the court of conscience , and haue their proceedings framed according to the arbitrary conceipt of the iustice ) so likewise neuerthelesse , vpon euery circumstance of time , person , place , and the manner of doing , there falleth out such matter of equitie , that if law should be pursued according to the setled rules thereof , summum ius ( as cicero saith ) would prooue summa iniuria : wherefore law without equitie were rigour . and yet againe , of the other side , if all lawes should change and bee controlled as often in euery case as equitie would require , then should there be ( as aforesaid ) no law certaine . and therefore it standeth with good reason , that the common law in some cases , should allow and follow equitie , as farre forth as the constancy of the law would permit , and for the better conformity of one rule thereof with another : which common law againe in other cases should refuse equitie for the better auoiding of confusion . notes collected out of authors touching exceptions of rules , and from whence they spring . equitie therefore in all the vse thereof , and in euery of the threefold before mentioned obseruations hath a double office , effect , or function . sometimes it doth amplifie . sometimes againe ( when reason will ) it doth diminsh or extenuate . a description of the former is that which bracton yeeldeth , aequitas est rerum conuenientia quae in paribus causis paria desiderat iura , & omnia bene coaequiperat , & dicitur aequitas quasi aequalitas . this enlargeth the common law ; for it teacheth to proceed in the same from one case to another like thereunto ; and so to proceed , that si aliqua nova & inconsueta emerserunt , & quae priùs usitata non fuerint in regno ; si tamen similia evenerint , per simile iudicientur ; cum bona sit occasio à similibus procedere ad similia . and therefore these cases differing neuer so much in circumstance , so that they doe concurre in reason , should be ruled after one and the selfe same mannner . for , vbi est eadem ratio , idem ius statuendum est . but hereof we shall hereafter haue more ample occasion to speake , when we take in hand the last of aristotles , before remembred , obseruations ; namely similitudinum collectionem , or cognitionem . this equitie moreouer in satutes enlargeth the letter to cases not comprehended within the words ; if neuerthelesse they doe stand in equall mischiefe . lastly in all cases of mischiefe , for redresse whereof positiue law or ordinary rules of law are defectiue ; equity extendeth forth her hand in the court of conscience to helpe therein the said defect of the lawes . the second kinde of equity doth againe of the other side restraine the ample or generall rules of the common lawes by ministring exceptions , in like manner as is before remembred . and in statute law it doth also limit the ouerlarge letter , drawing it wholly to , and keeping it within the bounds of the intent & meaning of the makers . in the court of conscience it giueth likewise comfort , considereth all the circumstances of the fact , and is as it were tempered with the sweetnesse of mercy , and mitigateth the rigour of the common law ; and leauing the inflexible stiffe iron rule , taketh in hand the leaden lesbian rule : which being rightly swaied in cases of extremity , and herein , enioyning the common law of her strait proceeding , issueth this sentence full of comfort to the afflicted , nullus recedat à cancellaria sine remedio . wherefore if the same equity bee vsed in such cases onely as are of extremity ( as indeed it should ) it causeth the chancellour , into whose hand the managing thereof within this realme is committed to be in high estimation of honour : so that in eius sorte iuris dicendi gloriam conciliat magnitudo negotij , gratiam aequitatis largitio ; in quâ sorte sapiens praetor offensionem vitat aequabilitate decernendi ; benevolentiam adiungit lenitate audiendi . and thus much by the way hath beene spoken of equitie , upon the occasion of speech of exceptions which doe restraine rules and axiomes , that the originall fountaine from whence such exceptions doe spring , might the better and more manifestly be conceiued . and therefore thus much thereof sufficeth , reseruing the rest to his due and natiue place . now wee will proceed with the first example published in the said dialogues of the doctor and student , concerning the exceptions attributed and annexed vnto maximes , rules and grounds . there is saith hee a generall prohibition in the lawes of england ; that it is not lawfull for any man to enter into possession or freehold of another without authority of the owner , or of the law. this ground may be proued by many particular cases and authorities : for the law of property would that euery mans owne should be priuate and peculiar vnto himselfe ; and therefore it is said , that nest loyal al un de enter en mon terre sauns mov licence . lou mes beasts sont damage fesant in auter terr , ie en puis enter pur eux enchaser hors ains convient a moy primerment a tender amends . if my beasts be damage fesant in anothers ground , i may not enter and driue them out , but i ought first to tender an amends . si home ad merisme gisant sur laterr d'un auter , il ne poit iustifier le entry in le terr a veyer ceosi soit in bon plyte . if one haue his timber lying on anothers ground , he cannot iustifie his entry to see his timber in good case . si maison soit lease a moy et ieo mit mon biens en ceo & puis mon lease expire les dits biens estant in le meason , nest layal pur moy a ore pur enter en le dit meason de eux prender . if a house bee leased to me wherein i put my goods where they lye till the lease be expired , i cannot now enter into the house to take them . si ieo mit mon chiual in voster stable & vous ne voiles ceo deliver a moy , et ico enter et enfrend vostre stable , ieo sera puny pur l'entry , et le enfreinder del stable , mes nemy pur le prisel del chivall . if i put my horse into your stable , and you will not deliuer him vnto me ; if i enter and breake your stable , i shall be punished for entring and breaking the stable , but not for taking my horse . si ieo command un a deliuer a vous certaine beasts quesont en mon park , nest loyal pur vous de enter en mon park , et prender les dits beasts , ovesque cestique ieo issent command per reason de cest commandment ; car vous purra assets bien eux receiver coment que vous demurres hors del park . if i command one to deliuer you certaine cattell out of my park , it is not lawfull for you to enter into my park with him whom i commanded to deliuer them : for you may receiue them though you stay without the park . si ieo baile biens al home , ieo ne puis iustifier l'entry en son meason pur prender les biens , car ceo non fut per nul tort que ils viendra la , mes per l'act de nous ambideux . if i deliuer my goods vnto a man , i cannot iustifie the entring into his house to take them &c. si le vicont ad fierifacias pur leuier deniers recouers vers ascun , uncore si per force de ceo il ne voile enter et detraser le meason de cesti vers que le recouery fat , il sera de ceo puny pur cest entry en trespas . if the shriefe hath a fierifacias , to leuie money recouered , if by force thereof he enter , and breake the house of the debtor , he is subiect to an action of trespasse . si un vicar ad offrings in un chapel de quel chapel le franktennant est in moy ; il ne poiet ceo iustifiera l'entry et debruser de ma chapel pur eux prender hors . if a priest haue offerings in a chappell , the freehold of which is in me , hee cannot iustifie the entry and breaking the chappell to take out his offtings . si home eant in sa garren demesn spring un feasant , et lessa sa falcon voler a ceo que vola in le garren d'un auter home , et la prist le feasant , nest loial pur le owner del falcon , pur enter in le auter garren , et de la emporter . if a man spring a pheasant in his owne warren , and let his falcon flye at her , and she flyes into anothers warren and there taketh the pheasant , hee that oweth the hawke cannot enter into the others ground to take her . hauing proued the former ground with these sufficient former authorities , let vs now descend vnto the examination of such exceptions of the said proposition , as may exemplifie our former speeches ; whereof some certaine being orderly deliuered and confirmed with some authorities of booke cases , i hold it sufficient so to make manifest our meaning at this present ; leauing a more exact consideration thereof to more fit place and opportunity . we are therefore to conceiue that there is an infallible rule of law , that le common wealth est deste prefer devant ascun private wealth . the common wealth is to bee preferred before any priuate wealth . by reason whereof lest contradiction betweene the said proposed rule and this now in hand should ensue vpon some circumstance which may fall out ; therefore the said last specified ground , concerning the benefit of the common wealth ; doth minister an exception for the better vnderstanding of the aforesaid rule proposed , namely , that home poit iustifie son entre en le franktenement ou sur le possession de un auter si soit pur le benefit del common wealth . a man may iustifie his entry into anothers free-hold , if it be for the good and benefit of the common wealth . and therefore these cases following depending therupon are produced to proue & manifest the same . si ieo vien in vostre terre , et occide un fox , un gray , ou un otter , pur cest entry ieo ne sera my puny , pur ceo que sont beasts encounter le common profit . if i come into your ground to kill a fox , gray , or otter , for this entry i shall not be punished ; for they are beasts against the common profit . pur le common wealth meason sera plucked down si le prochein meason soit ardent . for the good of the common-wealth an house shall be pulled downe if the next be fired . et suburbes del citie seront plucked downe in temps de guerr , pur ceo que ceo est pur le common wealth : et chose que est pur le common wealth chascune poit faire sans aver action . and the suburbes of a citie shall be razed in the time of war : and that which is for the good and profit of the common weath any man may do without danger of anothers action . home iustifiera son entry in auter terr in tempore de guerr pur faire bullwarke in defence del realme , et ceux choses sont iustifiible & loial pur maintenance del common-wealth . a man may iustifie his going into another mans ground in time of war to make a bulwarke in defence of the realme &c. pur felony , ou pur suspicion de felony home poit de bruser meason pur prender le felon , car il est pur le common wealth pur prender eux . for felony or suspition thereof a man may breake a house to take the felon ; for it is the good of the common-wealth , to haue him taken : with such like . moreouer because there is another rule of law , that nul prendra benefit de son tort demesme . no man shall take benefit of his owne wrong . and sometimes it falleth out that men , through malice to haue others in danger , would not sticke to lay a traine to intrap them to the intent , that they might , by some colour , for their further vexation , prosecute suite against them ; to vphold the conformity of law vpon those two grounds , that one of them do not encounter the other , there is a second exception to the former rule namely , that si home soit le cause pur que vn torcious entry est fait sur son possession , il nauera de ceo remedy : mes le party que ad issent enter ; sur le matter disclose poit ayd luy mesme & iustify tiel entry . if a man be the cause that a wrongfull act or entrie be made vpon his possession , he shall haue no remedie for it , but the partie who hath entred may disclose the matter to iustifie his entrie . home ad vn molyn , & l'cau courge per le terr d'une auter al dit molyn , le tenant del terre mise stakes deins le dit eaw sur que il edify vn meason , pur reason de quel l'eaw ne poit vener cy bien al dit molin come devant : le tenant del molin enter en la dit terre , & enraca les stakes , per que la dit meison eschew : et in trespas pur entry en la dit terr & enracer la meason tout cest matter pur auoider le dit nusance fut plede per le defendaunt & tenus bon iustification . a man hath a mill , and the water running to it cometh through anothers ground , and he fastneth stakes vpon the ground in the water , and buildeth an house ; by reason whereof the water cometh not to the mill aswell as in time past , the miller entreth vnto the others ground and breaketh downe the stakes , and thereby the house falleth ; if the other bring an action of trespasse against him , for this , he may shew that he did it , to auoyde wrong done to himselfe , and iustifie the deede . home auer pris les beasts de i. s. & eux impound in sa terre , & vint vn pur repleuy mesme les beasts , et pur ceo que cest que ad eux destraine ne voilet suffer les beasts dests repleuy , il oue ares & sagitts , sagitta al cesti que vint pur eux repliuy eaut in le porte de mesme le close lou ils fuere impound , pur que il pur doubt enfrenit le close in auter lieu , et enchase hors les auers que fueront impound , et pur cost entry et infrenider del close , le pleintise port trespas , et sur tout cest matter disclose ceo semble bone iustification . a man hauing taken i. s. his goods , and impounded them in his owne ground , a repleuin was brought for those cattle , and he that destraind them would not suffer any repleauin to be made , but standing in the gate of the close where the cattle were impounded , shot at him that came to make the repleuin , whereupon he broke the close in another place , and drew forth the said beasts : for which breaking the plaintifes close , he brought an action of trespasse ; but vpon this matter disclosed it was taken for a good iustification . in trauers , le defendant dit , que par ceo que le plaintife violet aver le defendant in son dainger , il commaund vn son sruant de chaser les beasts de defendaunt inles blees del plaintife mesme , et le defendant cy hast wenit que il auoit notecede ceo , il enter en le dit terre le plaintife , et eux enchase hors : et ceo fuit tenus bon pleanient amountant al generall issue . in an action of trespasse , the defendant said , that because the plaintife would haue the defendant within his danger , he commaunded one of his seruants to driue the defendants beasts into the plaintifes corne , and the defendant assone as he had notice thereof , entred into the plaintifes close and draue them out ; this was taken for a good plea , and not amounting to the generall issue . in travers pur entry in le close &c. del plaintife le defendant iustifiera , pur ceo que le defendant fuit chiuauchant en le roial chimin que gisott pres le meason del plaintife , quand il vint la encounter la dite mese , la vient le plaintife oue arke et sagitts et fist vn assault sur le defendant , pur que il avoide son chiual , et sua in la dit mese , et ouster in le dit close ; et puis reuint in le dit chimin . et ceo fuit tenus bon iustification , si il voile adde a ceo que le chymin est in mesme le ville que le meason est , ou in quel vile ceo est , et que le fuis del mease ful ouert al temps : per que le defendant issint dist accordant . in an action of trauerse for entering into the plaintifes close , the defendant iustified , for that he ryding in the kings high way , which lay neere to the plaintifes house , the plaintife set vpon the defendant , when he came neere against the plalntifes house , and assaulted him with bow and arrowes , whereupon he forsooke his horse and fied into the house , and so through it into his close , and after returned into the high way ; and this was taken for a good iustification , if he had shewed further that the highway was in the same towne where the house was , and shewed in what towne the house was , and that the doore of the house was open &c. moreouer where there is a ground or rule of law , as hath beene often before remembred , that quando aliquis quid concedit , et id concedere videtur sine quo res concessa esse non potest . hereof ensueth a third exception to be annexed vnto the said former ground in this manner . si home ad interest ou authority deriue de ascun person , owner , et possessor del soile : le quel cesty a que le interest ou authority est done , ne poit accomply sans entry in la terr ou mease de cesti que issent done la interest ou authority , la son entry est imply in la dit interest ou authority : et pur tel cause son entry la serra iustifiable . le abbe de hyde fait lease d'un ferm rendant rent a son monastery vient al mains le roy hen. 8 , per le statute de dissolutions , que puis ceo grant ouster al estranger : le lessee del dit ferme poit bien venir al dit monastery la a tender la dit rent , et cesti que ad le possession de ceo nauera enint trauers pur tel entry . si a : soit tenus a b : in vn obligation de 20. l. pur paier a luy 10 l. a tel iour la intant que nul lien est expres pur le payment . a : est tenus a querer b. inquocum que liew que il soit : et si b : est in son meason demesue , et vient a luy la , et tender le argent , il ne sera trespasser pur le vener la mes sil vst este in la meason de ascun auter home la il seroit trespassor al dit home : mes in lauter cas intant que il fut assentant que il paira a luy les dits deniers , et in ceo fut il containe que il fut assentant que il vener a luy pur ceo purpose : il ensuit ex consequenti que il ne puniera luy pur ceo chose a que luy mesme fut priuy et agreement . si ieo enfeoffe g. et face litre d'attorney a. c. a deliuer seisnia g : pur le venider sur la terre et pur l'entry fait per g. de prender la livery , g. ne sera punish in trespas car il est impossible que il receivera livery si non que il entra in leterre , et il est imply in le fesance del feosment que il viendra sur la terr de prender livery . si home moy grant pur foder in son terre , et de faire un trenche de tiel sont ou spring iusques a mon place , si puis le pipe est estopp ou enfreint issent que l'eaw issu hors , ieo ne poi foder in son terre pur mender le pipe , car ceo ne fut grant a moy &c. mes cest opinion fut deny per tont le court car fut dit , que il poit enter et foder pur ceo mender , pur ceo que est incident a tel gront a ceo discourer et d'amender . intrauers pur entry en un meason le defend aut dit que long temps devant le trespas que a. fut seisi del dit meason in fee , & que ceo est in tel ville & deuisable per testament , per que le dit a : deuise le dit maison a vn fem in taile , & que sil deuy sans issue que son executor ceo vendroit , & fait le defendant son executor & deuy la fem entermary oue le plaintise et puis deuy sans issue pur que le defendant enter sur le poss : le plaintise a voir , si fut bien repaire al intent de seavoir a quel value le reuercion fut a vender , & ceo fut tenus bone iustification . in trauers pur entry in meason et prisel del biens le defendant dit que le baron del plantise fut possesses des dits biens et suit seisy del dit meason infee , et sait le defendant , et auter ses executours et devy possesses des dits biens , et le defendant vint al dit meason apres la mort le testatour pur administer et trovant shays del dit meason ouert il enter et prist les biens , et ceo fut tenus bon plee per tout le court. by reason also that there is a rule of law. that le possession del terre de chescun home est subiect al iurisdiction del ley . thereof also this exception following holdeth likewise place in restraint of the said former generall rule or ground , that is to say , lou le ley done al ascun authority de enter in auter ter ou sur le possession del auter , il iustifiera son entry . si ieo suis scisi de terre in fee sur bon et indefesible title , et vn estrange demand cest terre per precipe vers un auter estranger , et sur ceo le vicount per force del precipe vient sur la terre ove sommoners , et summon luy vers que le precipe est pert , et puis le demandant recouer vers luy per default ou per issue try sur certaine point , et perforce de haberi factas seisniam le vic vient arere & mist cesty que ad recouer in seisni ; reo ne puniera le vicont pur le primer vener , ne pur le second vener in le terre , pur ceo que le vicont ne sait riens mes execute le mandement le roy come il ad in charge , et mon possession est chargeable a cost iurisdiction del roy & ses ministers . si home fait lease pur vie , & un vilain purchase le revercion , semble a litt. que le signor del villein poit maintenant vener al terre et clayme mesme le revercion , et per tel clayme le reuercion est maintenant in luy , et per tel vener a le terr et act fait il nest trespassor . si vilen purchase advowson pleni dincombent , le signior del vilein poit vener al dit elglise , et claime le dit advowson , et pur ccole incumbent ne punishera luy per tiel vener al dit elglise . intrauers le defendant plede que il fut seisy del meason et terre et ceo lease al plaintife pur terme de ans , et que fut certifie que wast fut fait et il enser in le close & meason pur veiwer siwast fut fait , et le huis del maison fuit ouert , & demand iudgement et ceo sut tenus bonbarr ; a que le plaintife replica que il la demurr encounter le volunt le plaintife uniour et un nuict , &c. hitherunto haue we expressed certaine exceptions of the fore specified grounds which are deriued from the reason of some other grounds and rules of the law , and which reason would should be added , as restraints vnto the said former rule of law first remembred for conformities sake , and that the law no way be impeached of contrarieties . now resteth also that we deliuer some few other exceptions vnto the said generall rule drawne likewise from the fountaine of equitie ; which are such as doe ensue . sith it were voide of all reason and conscience that a man should punish a wrong done vnto him , by the which he either sustaineth little or no detriment or damage , or at leastwise more benefit then he sustaines preiudice : therefore this exception vnto the said generall rule , is among other likewise allowed for law . that . loa le party sur que possession home fait tortions entry est plus benefit per tiel entry que preiudice la home bien iustifiera la dit tortions entry . which the cases following doe likewise at large sufficiently confirme . si ieo sue in peril deste murder in mon close , ou in mon meason , il est loial a chescun de enfrender mon meison ou close pur moy avder , pur ceo que est pur mon benefit . si ieo voy vostre beastes demesne in vostre corne , et ieo eux enchase hors , teo ne sera my puny pur ceo que fut pur vostre aduantage , et vous aves inter est in les beastes mes si ieo chase les beastes d'un estranger hors de vostre corne , ieo seray puny pur ceo ; car vous puisses aver remedy pur ceo ; seil : per distresse . si ieo voy le chimney de mon vic in urant , pur saver les choses pue sont deins son meason , ieo iustifiera l'entry in le meason , & deprender les hiens que ieo troue de deins pur eux saver . in trauers de parco fracto , le defendant iustify le trauers pur ceoque fut controvercy perenter luy , & le seigneur de huntingdon plaintife pur le overtune d'un gorce , et pur ceo que le dit signeur fut in le dit parke hunting , il enter pur les portes eant overt a monstrer a luy ses euidences concernant le dit gorce et ceo fut tenus per tout le court bone iustification . againe , the like equity doth minister one other exception of the like quality ; for it were vnconscionable and vnreasonable that a man should bee punished for a wrongfull entry , whereas he is compelled so to doe , and cannot without his great preiudice eschew the same : and therefore it is holden for law , that si home enter sur le possession de un auter , lou il ne poit auterment faire sans son grand preiudice , ceo ne sera deeme tiel entry de que il sera puny . si home ad querck cressant in midds de trois maisons , et il descoupa ceo , et le querckeschet in terr d'un auter , si il iustify in travers il covient de alleager que il ne auterment puit faire . home de coupa thornes que cress inson terr et ils eschaont in terr dun auter , & il enter & eux prender hors , sil ne poit in auter maner faire , ceo luy excusera . si home chase avers per le chymin , et les beasts happont de escaper in les blees de son vicin , & cesty que eux enchase enter freshment in le terr de eux enchaser hors , pur ceo que ils ne ferront ascun damage , il iustifiera tiel son entry intrauers . and thus much hath beene said touching the first ground proposed in the said dialogues of the said doctor and student , which hath beene proued in particular with cases , and thereunto haue beene annexed certaine exceptions which haue likewise beene fortified with booke cases and authorities whereby the former assertions haue not onely beene exemplified , but also thereby it doth plainly appeare , that almost euery disposition in the lawes , de qualitate or de iure is in conference of maximes , and resteth betweene the rule and the exception , which is either ministred by reason of equity , or vpon some other rule or axiome . so that euery difference shewed betweene cases , is nothing else but the rule and his exceptions ; the effect whereof briefely is set forth by morgan , who saith : that maximes ne doient este impugne , mes touts temps admit mes les maimes per reason poient este confer et compare l'un oue leauter , coment que ils ne variont : ou per reason poit este discusse quel chose est plus precheni al maxime ou meane perenter les maximes & quel nemy : mes le maximes neunque poient este impeach ne impugne , mes touts ditsdoient este obserue et tenus come firme principles de eux mesmes . for the better vnderstanding whereof , wee may note that all matters of debate which may be referred to the controuersies or questions de qualitate or de iure , as hath beene said , haue either commonly a maxime of the one part , and a maxime of the other ; or severall resons of each part deriued from sundry maximes ; or else that there is a maxime of the one part , and there is equity and reason which doth minister an exception to that maxime or generall rule : so that all disceptation herein is , as hath beene said , in conference or comparing of maximes and principles together discoursing , which thing is directly vnder the reason of the said maxime ; and what matter or circumstance may make a difference , and will be by exception exempted ftom the same ; as more at large hereafter in the declaration of the vse of these maximes may be made manifest and apparent . now resteth moreouer to prosecute the second axiome or principle proposed in the said dialogues , namely , that which followeth there in the seauenteenth chapter of his first booke , that is to say : it is not lawfull for any man to enter vpon a discent . which ground being expounded by littleton in his chapter of discents to extend only to discents of an estate of inheritance and freehold , and not of a reuersion or remainder , all which followeth after in the said chapter , are nothing but cases of exceptions vnto the said grounds , as it is euident vnto euery one that considereth the same , and therefore shall it heere be needlesse long to insist thereupon . neuerthelesse it shall be expedient to shew some exceptions thereunto , especially some certaine , of such of them as being exceptions vnto the said rule , are againe restrained with other exceptions . because there is a rule of law , that laches ou folly ne sera impute a un enfant de luy preiudice . therefore lest contrarietie might happen in consequence of reason betweene the said rule of discents , and this rule last remembred : there is ministred by the meanes of this later rule , an exception vnto the said former ground namely , that if an infant haue right of entry , he may enter vpon a discent . this exception , although it doth import great probabilitie of truth , yet is the same like vnto the ground in this respect , namely , that it is also subiect to be restrained with another exception , viz. if an infant , or such priviledged or excepted person haue a right of entry , and a discent of those lands is had to one that hath a more ancient right ; the party hauing such ancient right , shall be remitted : and both the right and entry of the infant taken away . and this exception ensueth of another generall rule of law , which is , that an ancient right shall alwaies be preferred before an other meane right or title . the said exception vpon exception grounded vpon the last remembred rule , may be plainely proued by this case . if tenant in tayle doe discontinue and after doe disseize his discontinuee , and during that disseisein the discontinuee dieth , his heire within age ; and after the tennant in tayle doth die seised ; and this land descendeth vnto the issue in tayle , the heire of the discontinuee being still within age ; this is a remitter , and the entry of the heire of the discontinuee is tolled , notwithstanding that the ground and principle is , that the laches of the enfant shall not preiudice the enfant . and the cause is the ancient right the issue had . moreouer the former generall rule touching discents that toll entries , hath among other , also this , exception . a discent had during the couerture , shall not toll the entry of the woman or her heires after the couerture dissolued . but because there is a generall rule of law , that none shall be fauoured in any act wherein folly may be imputed to him . from whence is deriued also this more speciall rule or ground . couerture shall not ayde a woman where the taking of a husband which respecteth not her benefit may be imputed to her folly . hereof ensueth this exception vpon exception to the said former remembred rule , that where folly may be imputed to the woman for taking of such a husband as will be heedlesse of her benefit , there a discent , during the couerture , shall bind the woman and her heires . much more might be said of like effect , but this for example sake shall suffice . now resteth briefely to say something touching the first proposed latine rules : of which the forme was this , sublata causa tollitur effectus . this rule is not absolutely true ; for the philosopher from whence it is borrowed , doth vnderstand it , de causis internis , non de externis . the ciuill lawyers doe restraineit in this manner haec autem gnosis sine regula , de causa finali , non de causa impulsiva intelligitur . the common law of the realme , thus ; sublatâ unâ causâ , si alia remanet , non tollitur effectus . the second rule ; which was this , qui tacet consentire videtur , is verified with this exception . si ad eius commodum & utilitatem spectat , praesens & tacens pro consentiente habetur . the third rule was this , quod initeo non valet , id tractu temporis non convalescit . which ground may bee confirmed with many cases , yet is the same ground restrained with this exception , because that habet locum in his tantum quae statim debent valere , & nullam suspentionem habent . if a man make a lease for life of land vnto i. s. and after doth make a lease for yeares vnto i. n. of the same land to begin presently , this lease being made by word , is void ; for the freehold in the first lease is more worthy , and by law intended to be of longer continuance then the terme in the second lease : yet if the first lease die , or surrender afore the second be expired , the residue of the terme is good . if the father deuise his land vnto his daughter and heire apparant , and after leauing his wife enceinct , or w th child with a sonne , vpon the death of the father this deuise vnto the daughter is voyd , for that she is his heire ; but after , when the sonne is borne , it is good . the fourth rule of the said latine rules before set downe , was this , quando duo iura in uno concurrunt , aequum est ac si esset in duobus . this rule hath exception grounded vpon another rule , that is , that vigilantibus & non dormientibus iura subi eniunt . or to the same effect ; v●icuiou : sua mora nocet . and therefore in causes de negligence on laches divers droits concurrant in un person ne seront deeme si come ils sussent in divers persons . where , if tenant pur auter vie be , the remainder for life ouer to another , the remainder in see to the right heires of the tenant pur auter vie , if the said tenant pur auter vie be disseised , and the disseisor leuie a fyne with proclamations , and the fiue yeares doe passe , and after cesti que vie dyeth ; and after also dyeth he in remainder for life ; hee which was tenant pur auter vie shall not haue other fiue yeares after the death of the tenant for life in remainder to pursue his right for the see simple . vpon like reason , if a bishop be seised of an aduowson in the right of his bishopricke , and the church become voyd , and six monthes do passe ; the bishop shall not haue other sixe monethes as ordinary , the same church being in his diocesse , as he should haue if the same church were of the patronage of another person , although hee bee in one respect patron , and in another ordinarie . hitherto haue we entertained discourse as touching the verity of axiomes , rules , and grounds ; which , as hath beene shewed , is either necessary or contingent . contingent verity was diuided into two branches ; the one resting vpō the entendment of law ; the other being deriued from the disposition and nature of humane things , by debate and discourse of reason . of the first sort there are two kindes ; for some propositions there are , although of themselues but onely probable , yet neuerthelesse are supposed of such certainty , that no averment shall bee receiued to enounter the same . othersome , although they be by the law intended true , prima facie , yet neuerthelesse the same law alloweth an averment , and admitteth proofe to impeach the same . those moreouer which rest vpon discourse of reason , are subiect to diuers exceptions , the materiall cause whereof is , the infinite variety of circumstances that in all humane actions doe happen . the forme and nature of the exception is perceiued and knowne by this effect following ; in that it restraineth the ground vnto which it is connexed . the efficient causes are two , viz. equity or some other ground of the law importing contrarietie . and the end thereof is conformity and coherency of law agreeable vnto iustices whose minister the law is . moreouer as occasion hath bin offered in the declaration of the causes from whom exceptions of rules doe spring , there hath beene shewed the vse of equity in the common law , statute law , and chancery , by the two effects thereof , application and restraint ; the one enlarging , the other abridging . wherefore now resteth to speake of the second principall part , concerning the forme of axiomes , namely , generallity : the consideration whereof , bringeth to memory , that god in his most excellen worke , of the frame of transitory things , though he hath furnished the world with vnspeakable variety , thereby making manifest vnto all humane creatures , to their great astonishment , his incomprehensible wisdom , his omnipotent power , & his vnsearchable prouidence , yet , being the god of order , not of confusion , hath admitted no infinitenesse in nature ( howsoeuer otherwise it seeme to our weake capacities ) but hath continued the innumerable variety of particular things vnder certaine specialls ; those specialls vnder generalls ; and those generalls againe under causes more generall , lincking and conioyning one thing to another , as by a chaine , euen untill we ascend unto himselfe , the first chiefe and principall cause of all good things . and this is that which plato out of homer , was wont to call iupiters golden chaine . the eye whereby we doe see and viewe , and the in ward hand whereby we doe reach and apprehend these things , is mans vnderstanding , which is wholly imployed about vniuersality as about his proper obiect , by meanes whereof , in all things rationall , being discouered by the vse of reason , mans vnderstanding for the attaining of knowledge proceedeth from the effect to the cause , and againe from the cause to the effect ; that is from the particular to the speciall , and from the speciall to the generall ; and so to the more generall , euen to a principall and primary position or notion , which needeth no further proofe , but is of it selfe knowne and apparant . and so againe from such chiefe and primary principles and propositions to more speciall and peculiar assertions , descending euen to euery particular matter . but that , of this which hath beene said , some example might be shewed , especially in this matter , which we now haue in hand , namely , concerning the grounds and rules of the law of england ; let one of the proposed grounds first before mentioned stand here for an example , viz. nihil est magis rationi consentaneum , quam codem modo quodque dissolvere quo constatum est . this principle being a rule of reason containing great probability , and being of the number of those that before we said to haue beene deriued from the obseruation of the nature of things , which though it be subiect to manifold exceptions , yet neuerthelesse as a generall rule , the same is verified in many speciall axiomes ; and they againe diuersly subdiuided into many more peculiar propositions ; as the example of these following may make manifest . 1 cesty que est charge pur record doit luy discharger per record . 2 cesty que est charge per fait doit luy mesme discharge per fait , ou per auter matter cy haut . 3 cesty que est charge fo rs que pur parol , poet este discharge pur parol . of which generall propositions there can be made no better reason then by the commemoration of the said first aforeshewed generall rule . moreouer , the first of the last aboue remembred comprehendeth vnder the generality thereof certaine other more speciall rules : as in det sur arrerages de accompt que est matter de record , le party doit discharger luy pur matter cy haut , & nemy per specialty , on fait ou auter matier que nest cy haut . 6. hen. 4. 6. a. 3. hen. 4. 5. a. 11. hen. 4. 79. b. 13. hen. 4. 1. a. 8. hen. 5. 3. b. 3. hen. 6. 55. a. 4. hen. 6. 17. b. 20. hen. 6. 55. b. in det sur recouery , home ne sera discharge mes per matter cy hout : ou a tiel effect . 6. hen. 4. 6 a. vnder the second rule or ground before proposed touching a discharge where the party is charged by matter of specialty ; those speciall rules following are likewise comprehended . in nul casehome ne poit avoide single obligation , sans auter specialty de auxy haut nature . 1 hen. 7. 14. b 5. hen. 7. 33. b. 11. hen. 7. 4. b. home que ad enfreint covenant ne pledera matter in discharge de ceo sans sait . 3. hen. 4. 1. b. 1. hen 7. 14. b. 21. hen. 6. 31. a. home ne dischargera luy mesme d'un annuitie que charge son person sant specialty . 5. hen. 7. 33. b. 33. hen. 8. 51. a. dyer . the first rule of these last remembred grounds , namely , touching obligations , is againe diuided into diuers particulars ; as for example . arbitrement ne dischargera home de un duty due per unobligation . 8. hen. 7. 3. b. 6. hen. 4. 6. a. si le obligee deliuer l'obligation al obliger come acquittance , & puis ceo prift de luy , & comence sute sur ceo ; cest deliuery ne sera discharge del obligation . 1. hen. 7. 17. a. 33. hen. 8. 51. a. dyar 22. hen. 6. 52. b. the other following concerning indentures of couenants , may likewise be diuided into other more particular assertions : but to avoyde rediousnesse , these already shewed abundantly manifest our meaning , and therefore may suffice : the vse of this kind of obseruation of the generallity of rules and propositions is manifold . first , things proposed in the generallity are best knowne and most familiar to our conceipt , sith they be the proper obiect of our vnderstanding , as before is declared . secondly , they doe better adhere and sticke in memory , sith intellectiue memory is ( as the vnderstanding is ) imployed about vniuersall and generall things . thirdly , vniuersall propositions are the precepts of art , and therefore they are called perpetuall and and eternall : for no art , science , method , or certaine knowledge can or may consist of particularities : for the orderly proceeding of euery art , methodically handled , is from the due regard had of the generall , to descend vnto the specialls contained vnderneath the same : wherefore it ensueth hereof , that generall propositions are the most speedy instruments of knowledge : for experience , which wholly is gotten by the obseruation of particular things ( being depriued of speculation ) is slow , blinde , doubtfull , and deceiueable , and truly called the mistresse offooles . notes collected out of authors touching the obseruation of generall propositions . if perchance vpon occasion of some former speeches here published touching the vniuersallity of grounds , there be demanded this question . why the lawes of england at the first and from time to time , had not beene published after this method of generall and speciall rules with their exceptions . i answere thereunto , that many ancient writers attempted that kinde of writing , and accomplished the same according to their seuerall and sundry gifts more or lesse perfect each then other : as by the treatises of glanvile , braction , britton , and others appeareth . secondly i say that forasmuch as daily new questions came in debate whereof before had beene no resolution , and wherein many times the least variety of circumstances doth alter the law ; therefore our ancestors thought it more convenient , to be rather gouerned by an vnwritten law , not left in any other monument , then in the minde of man ; and thence to be deduced by disceptation & discourse of reason : and that when occasion should bee offered , and not before . thirdly , it is more conuenient and profitable to the state of the common wealth to frame law vpon deliberation and debate of reason , by men skilfull and learned in that facultie , when present occasion is offered to vse the same , by a case then falling out and requiring iudiciall determination : for then is it likely , with much more care , industrie and diligence to be looked vnto ; and much more time of deliberation is there taken for the mature decision thereof , then otherwise upon the establishing of any positiue law , might be imparted concerning the same . last of all , sith all good lawes require perspicuity and plainesse ; and that in generallity , for the most part , lurketh obscurity ; therefore there is nothing of more force and effect touching the making and framing of a good law , then the present occasion offered , sith thereby it brought to light , that which otherwise would not asmuch ( many times ) as be thought vpon , and giueth occasion to dispute that which none would haue thought euer should haue come in question . and therefore not without due consideration among the romans , disputationes fori , and with vs demurrers haue euer beene allowed as originalls of law. as touching the manifestation of rules , all are affirmatiue or negatiue : wherein though the affirmatiue be , for many causes , the more worthy ; yet such negation as implyeth affirmation ( and therefore called pregnant ) is not without some vse in the setting downe and deliuering of exceptions and generall rules . and thus much touching the forme of rules , grounds , and axiomes . the efficient cause of rules , grounds , and axiomes is the light of naturall reason tryed and sifted vpon disputation and argument . and hence is it , that the law ( as hath beene before declared ) is called reason ; not for that euery man can comprehend the same ; but it is artificiall reason ; the reason of such , as by their wisdome , learning , and long experience are skillfull in the affaires of men , and know what is fit and conuenient to be held and obserued for the appeasing of controuersies and debates among men , still hauing an eye and due regard of iustice , and a consideration of the common wealth wherein they liue ; for well saith aristotle , hoc qu dem perspicuum est , leges pro ratione reipub. esse scrilendas . and of this reason that wee speake of , tully hath a noteable saying . ratio est societatis humanae vinculū , ut ratio , quae dicendo , communicando , disceptando , indicando , conciliat inter se homines , coniungit , & retinet naturali societate . wherefore sith the grounds of law are the foundation of law , or at leastwise the law it selfe deliuered in manner of compendious and short sentences and propositions ; that which is the efficient cause of law , must likewise be the efficient cause of those rules and axiomes . inasmuch then as primaria efficiens causa iuris , est natura & ratio civilis , ex quibus potissimum leges emanant , & veluti scaturiunt . the same nature and reason are likewise the principall and originall efficient cause of the rules , axiomes , grounds , and propositions of the law ; i meane civilis ratio , that is reason respecting iustice and the common wealth . this reason hath in the written workes of the lawes of this land , either beene plainely published and expressed in the bookes of law , vpon deceptation of cases in debate , and left vnto posterity as the lights , rules , and directions , whereby the said cases so called into question , were at the last decided and determined . or else it is not at all expressely published in words , but left neuerthelesse implyed and inclined in the cases so decided , and therein doth as it were lye hidden ; and yet neuerthelesse to be easily , with industrie collected and inferred vpon those cases decided , and doth necessarily follow vpon the resolution of the same , and being thence drawne , may abundantly serue to infinite vses , in the determinating of other doubts ? which daily doe and may come in debate . wherefore sith in the law ( as in other sciences ) all arguments and disputation doe either consist of expresse proofe and allegation of authoritie ( which are called inartificiall arguments ) or else of application and inference ; as well the rules to bee collected vpon inference and application of other cases , are to bee regarded and to bee produced , as those which are direct authorities . and forasmuch as in very few cases of doubt newly rising in debate , and called into question and controuersie , expresse proofe and pregnant authoritie can be found ; the lawyer is most beholding to inference and application , where with hee is instructed and taught , that cases different in circumstance , may be neuerthelesse compared each to other in equalitie of reason ; so that of like reason , like law might be framed . and by how much application and inference doth more depend vpon wit and art , then the producing of expresse authoritie ; by so much the more it excelleth the same , sith the allegation of expresse authoritie , resteth wholly vpon industrie and memorie in publishing and noting that which hee findeth already framed to his hand expresse rules , axiomes , grounds and positions of the former sort are published in the booke of law , either in the lattin tongue , as are the former generall rules first mentioned , and also infinite other of that kinde ; or else in the french ; in which tongue the reports of forepassed cases are published vnto the vse of posteritie , and wherewith the said bookes of yeares and tearmes ( almost in euery case therein found ) are fully furnished . so that all , though it shall be need esse to make manifest that by example , which of it selfe is euident ; yet still to pursue the former methode and order hitherunto obserued , we shall easily perceiue the same in this short case hereafter expressed . vn home avoit a lay et ses heires le nomination del clerke d'un esglise a vn abbe , et le abbe doit presenter ouster le clerke nominate al ordinary , ore le roy ayant les possessions del abbey ad present son clerke al dit esglise estant voide sans ascun nomination . et le opinion del court fut , que le party que aueroit le nomination , auera quare impedit vers le incumbent tantum , sans ascun deste nosme patron : car le roy ne poit este sue come disturber . tamen fut dit que le roy ne poit este instrument al ascun home . et shelley dit que il est instrument a chacun home : car per luy chacun subject ad iustice a luy minister . the principles , maximes , rules , or grounds expressed in plaine words in this case , and which are indeed the very reason of the resolution therein taken , are these . 1 le roy ne poit este sue come disturber . 2 lou le roy present per tort , quare impedit sera port vers l'incumbent sole sans a scun deste nosme patrone . 3 le roy ne poit este instrument al ascun home sccome son seruant . 4 per le roy chescun subiect ad iustice a luy minister . 5 le roy est instrument a chacun home purminister a luy iustice. so that the reasons of euery resolution in any booke case being reduced into short sentences , propositions or summarie conclusions are the grounds rules , and principles that we doe meane and speake of in this place . such summarie conclusions , corolaries , reasons , grounds , or propositions therefore as afore declared are deliuered in the bookes of reports in two manners . sometimes without any note or marke that they are grounds or rules , but onely as laid downe and dispersed in the arguments and resolutions as short reasons of the opinion or determination there expressed as in the last example appeareth . sometimes with a note or marke that they are grounds , rules , and maximes , and are expresly inuested with such names , as in the entrance of this treatise hath appeared . and thus much of the grounds or positions expressed in the bookes . now as touching the second sort , which are to be collected , and inferred out of the cases left reported , wee plainely may perceiue the notable vse of such collection , in reading aduisedly the commentaries of mr. plowden , or other the best bookes of reports ; or diligently obseruing any notable argument made at this day in any the queenes courts in matter of demurrer , where wee may not thinke that euery case cited or alleadged out of the bookes for proofe of the controuersie , is therefore alleadged because it hath expresse matter therein published in plaine words , and tending to the resolution of the point in question : but at sometimes , and that most commonly , such proofe is produced vpon inference , and yet neuerthelesse , sufficiently pregnant to approue the matter whereunto it is rightly applyed : which inference and application proceedeth wholly vpon collected rules and axiomes included in the resolution of those cases produced although the same bee not expresly spoken or published therein . wherefore notwithstanding , the best meanes of the collection of the said rules depending onely vpon meditation , and resting wholly vpon the sagacitie , wit , industrie , and iudgement of the student , ( because euery mans seuerall conceit is in it selfe sundry ) may best be referred vnto the student himselfe : yet neuerthelesse , shall it not bee amisse here to manifest such direction therein as may be obserued with some fruit . 1 first , after the case read , let vs consider with our selues , and meditate in our mindes , to what seuerall purposes the same case may be applyed , and what matter , or seuerall matters the resolution of the said case can confirme . which when we haue considered of , it shall bee good for our memory to commit them to writing , in manner , and according to this example following . fut moue si tenant in tayle d'un manour , a que vilains sons regardant , en feoft vn des vilains d'un acre per cel del manor , et devy , coment que le manor discend al issue in tayle , vncore il ne poit seiser son vilain tanque le aer● soit recover . vpon meditation had of this case , what it will proue , these propositions or rules following may easily be collected . 1 lou home ad forsque vn action al principal chose la il nauer benefit del accessary , tanque il ad per recouery continue le principal . and because here the whole principall is not discontinued , but onely one acre , thereof may be collected , that 2 regardancy ou apendancy nest solement al tout le manor , mes chacun acre del demeanes . moreouer , because the principall in this case , viz. the acre discontinued , cannot be recontinued without suite to be attempted against the villen ; it followeth in reason , that he shall not be infranchised thereby : whence also this axiome is to be confirmed or proued , that 3 necessary suite ew vers vn villen per le signor ne enfranchise le villen . here of hath appeared that although none of these propositions bee expressed in the resolution of the said case , in the booke wherein the same is left reported ; yet neuerthelesse are they necessarily imployed in the resolution of the said case , as before hath beene declared . but if the case so read doth consist of many points or seuerall questions sunderly debated , euery of them may likewise be sunderly and apart considered of , according to the manner before shewed . a second meanes , by inference to collect , such rules and propositions as are before declared , is by way of argument by syllogisme : for supposing the said case to be denyed to be law which wee haue read . let vs endeauour to draw the immediate reasons thereof into a syllogisme for confirmation of the same . so that thereby , forasmuch as all rules out of the law are of two sorts , that is , either being the reasons of the case , or the case contracted shortly it selfe , by such manner of argument , the maior , and first proposition of the said syllogisticall argument , will bee the generall reason of the said case : the minor or second proposition , will be the particular reason : and the conclusion will bee the contracted case it selfe : which also will serue as a secondarie rule to determine other cases of equall reason called into controuersie . for example herein , we will take the opinion of hulls in 9. hen. 4. 8. a in the end of a case there argued , where he holdeth for cleere law , that si vn home fait fine pur vn trespas dont il fut endite son boache sera estopp a dire que il nest my culpable , sil soit eint implead apres . but because the same is denyed in hen. 6. wee endeauouring to proue the same by syllogisme , shall not onely confirme it , but also exemplifie our former speeches . maior ] nul sera permit a denyer cest iniury pur que il ad fait satisfaction , ou ad suffer punishment . minor ] mes cesty que ad fait fine pur vn offence ad fait ascun satisfaction et in ceo ad este puny . conclusio ) il que ad fait vn fine pur vne trespas ou auter offence sera estopp a ceo denier apres . euery of these propositions bee est-soones confirmed not onely with the case before spoken ( for as they doe proue the case , being the immediate reasons thereof ; so are they to be proued againe by the case as by their effect ) but also with sundry other authorities found in the bookes of like effect . a third obseruation of propositions and axiomes may be drawne from the consideration of the titleing words ; or words which doe yeeld matter of effect ; whereof in the case last remembred are such as doe follow ; namely . fyne , estoppel , enditement , nonculpable , party , &c. and herein is to bee meditated and considered what rules may be deriued and collected out of the said case , and be referred to euery of the said titles : as namely , vnder fynes . 1 fine fait pur vn offence proue , cesty que fait le fine voluntarunt , deste culpable del dit offence . 2 fine fait per vn offence causera cesty que fait le offence que il ne ceo denier a apres . vnder enditement , these . si home soit convince , d'un offence sur vn enditement , que est al sute le roy , il ne deniera le dit offence , sil soit apres de ceo implede al sute del party . vnder estoppell , these . home sera estopp per matter de implication que imply le contrary de son disant de record . vnder non culpable , these . non culpable ne sera plede per ascun lou per implication il ad confess le cause del action . vnder party , these . si offence soit commit cy bien al roy que come al party condemnation al sute d'vn d'eux , aydera l'auter in son sute . a fourth manner of obseruation is to referre vnto euery ground or rule so collected , a rule , more generall , so proceeding from the speciall rule vnto the generall reason , and from that generall reason vnto a more generall : as out of the said first case may be drawne this generall rule . home ne sera permit a denier ceo que deuant il ad confess per implication de record . vnder which ground not onely , the first proposed case of 9. hen. 4. 8. a. may be comprehended ; and diuers others of like effect and purpose , and which doe concurre vnder the said generall rule ; as for example . he which is arraigned , after hee hath pleaded either in barre or in abatement of the appeale whereon he was arraigned , may plead ouer not guilty to the felony : except the barre or plea doe comprehend such matter as doth acknowledge the felony ; as a release or pardon . but if he doe pleade any such plea or barre ; viz. release , or pardon in any appeale or enditement , he cannot plead ouer not guilty to the felony , because thereby hee confesseth the felony by implication . if in a praecipe , the tenant say that hee is leasse for life , and pray in ayde , the demaundant saith hee hath fee , which the tenant denyeth not , and therefore he is owted of the ayde : if after he will say he is tenant for tearme of life , and vouch , he shall not be thereunto receiued . these cases with many other may bee comprehended vnder the generalitie of the last specified rule , & are one in reason , not vnder one immediate reason , but vnder this reason , viz. home ne sera admitt a contradize ceo que il ad confes de recorde . moreouer there is another case , one in effect of reason , with the former proposed case , which because it is neuerthelesse , in circumstance more generall , therefore it cannot be comprehended vnder the last specified rule , as namely . if a man bee indicted of trauers , and thereupon be found guiltie by verdict at the suite of the king ; if after , the party against whom the trauers was committed , bring action for the same trauers ; the other shall not pleade not guiltie thereunto . in the former grounds , and cases thereupon , the partie was concluded by an implyed confession ; but in this last case , he is conuinced by an open tryall or verdict . and whosoeuer will comprehend both this and the former cases vnder one ground or rule , must make the same more generall then the former , in this manner . home ne sera permit a denier tiel offence de que il poit este convince per matter de record . and forasmuch as a man may be conuinced of an offence as well by confession , as by verdict ; and that as well , by implicature confession , as by expresse confession : therefore euery of the said former cases may be concluded and comprehended vnder the amplenesse of this last remembred ground . a speciall ground may bee reduced vnto a rule or proposition generall , by seeking the genus or generall notion of euery titling word found in the said speciall ground , as for example , the said proposition before remembred , and which hath beene exemplified with cases , was this . home ne sera permit adenier ceo que devant il ad confess per implication de record . vpon the word ( denier ) it may be drawne more generall , thus . home ne sera permit de contrary son act demesne que deuant il ad conuz . a more generall reason whereof may againe bee yeelded , thus . seroit inconuenient que le ley alloweroit a dize , et a dedize vne mesme chose de record . vpon the word ( confession ) these reasons also may be assigned more generall then that first ground . confession de vn est le plus pregnant proofe que poit este encounter luy . a reason hereof : for , le confession de chacun que concerne luy mesme sera intendvray . for , nul conuoit le offence melious que cesty que ad ceo comit et perpetrat . vpon the word ( implication ) these generall rules may be proposed . confession per implication est cy sort oncounter le party come confession experss . for , pregnant implication est equiualent al matter express . vpon the word ( record ) somewhat likewise may be said of like effect ; viz. thus ; matter de record que est grounded sur le act del party mesme luy issint liera que il ne contra dira ceo apres . for , le credit d'vn iudicial act ne sera impeach per ascun que est privy a ceo . for , matter de record est plus hault testimony in ley . vnder the word ( fine ) there was mentioned this ground or rule . fine que est fait pur vn offence proue home culpable del offence . here hence these propositions being more generall , may be deriued . nul per common presumption voit faire voluntarie fine pur le offence de quel il nest culpable . a reason whereof may be thus . poena culpam implicat . and le consequent importa son principal . hereof you see what abundance of rules and propositions one case containeth ; and that we may descend from the particular case , to the speciall reason , from that to a more generall , vntill we finde out the very primarie ground of naturall reason , from whence all the other are deriued . herein this caution is to bee considered and had in minde , that in collection of grounds and principles out of any proposed case , the same may bee natiue , and alwaies appliable and reduceable to the immediate reason of the said case , so that in any occasion of argument , the same case may be a pregnant and efficient proofe thereunto . furthermore collection of propositions may bee drawne and reduced from all the principall places of logicall inuention . 1 as from the causes vnto the effect . 2 and contrariwise from the effects vnto their causes . 3 so likewise from the consequent vnto the antecedent . 4 and from the antecedent to the consequent . 5 moreouer a paris as from the equall or like 6 amaiors from the more likely vnto that which is lesse probable . 7 and againe , from that which is lesse likely or probable to that which is more probable . 8 finally , from the contrary to his contrarie : sith that eadem est ratio & proportio contrariorum : notes of authors touching the obseruation of collection of grounds & rules by inference . the reasons and causes wherefore these propositions , rules , and axioms ( as hath beene declared first in manner as aforesaid ) are not onely to be considered , obserued and collected , but alway to be had , and carefully to be kept in memorie , and the end and scope whereto they serue and tend , will manifestly appeare , as well by the obseruation of the right vse of them , and the manifold vtilitie and great helpe , which riseth by the daily meditation therein , as likewise by the consideration and amendment of some inconsiderate abuses which haue crept into the daily handling of them , both in iudiciall places abroad , and in priuate exercises at home . the necessary vse of them therefore consisteth in two parts . 1 the one seruing to the obtaining of the knowledge of the law. 2 the other in vse and practise of the law learned by these propositions and rules , reducing them , as occasion serueth to publique and priuate behoofe . the first is speculatiue . this last practique . as touching the first , the profit hence springing may soone be seene and discouered , if we call to our memorie , that no manner facultie whatsoeuer to bee learned by the the light of reason , can consist or be comprehended by the capacitie of mans vnderstansting , except ( as before also in part hath appeared ) it be furnished with certaine assertions , precepts , rules , and propositions , and the same adorned with these two qualities , vniuersalitie and veritie . and as none may worthily take vpon him the name of a diuine , which is ignorant of the principles of his science ; nor any man may well arrogate the title or name of a philosopher or physitian , who knoweth not the seuerall rules , whereupon , as vpon sundry foundations , the said seuerall faculties are built and erected ; so none may bee deemed a lawyer , or admitted , or can giue good aduise therein , which knoweth not the precepts whereon his art dependeth ; or hath not read the determination of former doubts left reported in bookes , being the greatest part of the written law in his land ; and thence , not collected conclusions for the decisions of present and future controuersies . moreouer seeing the law of this land is wholly rationall ( as hath beene said ) wherein , as in all other sciences , the minde of man holdeth and keepeth the former published proceeding , by apprehension and discourse , collecting primarie aud secondary conclusions and grounds , it cannot bee otherwise , but that the obseruation of these primarie and secondarie conclusions , must needs bee the best , most approued , profitable and speedie meane , for the attaining of the right , sound , and infallible knowledge of the said lawes . and if there be any way extant , or to be found by mans wisedome , to purge the english lawes , from the great confusions , tedious and superfluous iterations , with the which the reports are infested ; or quit it of these manifold contrarieties , wherewith it is so greatly ouercharged , so that the coherencie , constancie , and conformitie thereof , is almost vtterly lost , and not without some blemish and reproach of our nation and common-wealth , in manner cleane abolished ; surely , as to mee seemeth , there is likelihood by that way and meanes to bring the same to passe , or by none . for , by rules and exceptions , all sciences are and haue beene published , put downe and deliuered : out of rules and exceptions , a method is framed , by which meanes men may view a perfect plot of the coherence of things : euen as in a large spred tree , from the lowest roote to the highest branche ; from the most ample and highest generall , by many degrees of discent , as in a petigree or genealogie , to the lowest speciall and particular ; which are combined together as it were in a consanguinitie of bloud and concordancy of nature . and yet therewithall perusing the particular differences and degrees of distinction betweene them , in all the course of humane studies , there is none that doth more commend vnto our cogitations the wonderfull force of mans wisedome , then doth this discourse which treateth of the principles , grounds , rules , and originals of law and iustice , being the chayne of humane societie , without the which it cannot consist ; and which , besides the exceeding pleasure that the consideration thereof breedeth in the well affected minde , is able to bring vs speedily to ripenesse and maturitie in that profession . for , principium est dimidium totius , saith aristotle . short refined reasons of long perplexed cases , doe , through their soundnesse , satisfie our iudgements , through their breuity and shortnesse , wonderfully delight the minde , through their pithinesse , they may be deemed incomparable treasures , yeelding a great shew of wit , and wonderfully sharpening our vnderstanding , of infinite vse , in all humane affaires , containing much worth in few words , no burthen to memorie , but once obtained , are euer retained . sith all sciences doe tend to veritie ( as hath beene before often affirmed , which is the obiect of the intellectuall part of our minde ; and sith verity and truth cannot be obtained or found without due knowledge of the causes ; tunc enim ( as saith the philosopher ) unum quodque scire arbitramur , cum eius causas & principia cognoscimus . and not vnfitly said the poet , foelix qui potuit rerum cognoscere causas . then must the right and due obseruation of these and such like principles containing the causes of things , be a direction to conduct and leade vs to the knowledge of that faculty and science , whereof they are principles . for from hence all artificiall demonstrations are , and haue beene drawne and deduced . to adhere therefore and wholly to respect particular cases , without any observation of the generall rules and reasons , and to charge the memory with infinite singularities , is vtterly to confound the same ; a labour of vnspeakable toyle , and wherein we shall neuer free vs from confusion ; but engender in our selues , that wrong opinion which many haue ( amisse ) entertained , that there is nothing certaine in our lawes . finally , if the law be euery mans inheritance borne vnder the same , as notably ( besides our owne lawes ) saith the prince of oratours , tully : maior haereditas venit unicuique nostrum à iure et legibus , quàm ab ijs à quibus illa bona relicta sunt . nam ut perveniat ad nos fundus , testamento alicuius fieri potest : ut retineamus quod nostrum factum est , sine iure civili fieri non potest . and all mens inheritance should be certaine both for the priuate repose of the people , and publique good and quiet of the common wealth . wee must needs thinke the law of this land full of defect , except we thinke and deeme it to be ( as indeed it is ) certaine . who then can , without the consideration of these vniuersall maximes , propositions , rules , and principles , wherein certainty is alone conteined , attaine vnto the certaine knowledge thereof ? for as it hath beene truly published ; principiorum est unumquodque sibi ipsi fides ; insomuch that cum negantibus ea , non est dsputandum . 10. eliz. 271. a. dyer , 26. hitherto hath beene spoken what profit the carefull consideration aud obseruation of principles , rules , and maximes of the law of this realme doth giue vs , and what assistance we may finde therein toward the study and speculation of the same . it resteth therefore now , that somewhat be said of the commodity which may come to him , that shall mannage and practise the same lawes , and to what vse this obseruation therein likewise serueth . two kindes of arguments are noted by morgan . ily sont deux principall choses sur que arguments poient este fait s. nostre maximes , & reason , la mere de touts leyes &c. i thinke by the later of these , the vse of argumentation vpon reasons drawne from the logicall places of invention , are to bee vnderstood ; as namely to argue and reason in cases of debate , from the causes , effects , parts , consequents , mischiefes , and inconueniences and such like ; which aptly may be called naturall reason , because all art therein obserued , is but the imitation of nature : which kinde or course of argument , is much vsed in ancient bookes , when as there were fewest bookes of reports extant . but by the former of these two specified kindes of arguments , is meant as manifestly appeareth , the helpe , grounds , and maximes doe yeeld in that kinde . for the vnderstanding therefore of the right vse thereof , it behooueth to consider , that the same wholly doth consili in the apt and convenient application of the said rules , vnto such particular cases daily falling in debate , as may be comprehended vnder the generallity of the same rules , and may in euery respect berightly reduced thereunto ; so that the rule might serue as a well-grounded reason of the matter called in question . to this effect the author of the dialogues betweene the doctor and student , after hee had at large spoken of the credit and supposed certainty of a principle or maxime of the lawes of this land , addeth further that such maximes be not onely holden for law , but also other cases like vnto them , and all things , that necessariy follow vpon the same , are to be reduced to the like law. a second vse of the obseruation of principles in argumentation may be this . wee are taught ( as saith aristotle ) and as likewise hath afore beene remembred , by the election of principles to abound in matter fit for argumentation . our propositions may be framed as parts of syllogisme , or as antecedent propositions of enthymemes , by which forme of arguments , this profit and commodity is reaped , that he which rightly useth the same , in proofe or disproofe of any proposed matter shall not need to fall into any unnecessary and extravagant matter , or digresse from the point that hehath in hand . for if the parts of our argument so to be concluded , doe consist of propositions which are principles in law , and be in due and expedient manner framed and combined together , the conclusion , which is the point in question , will follow , either necessarily or probably , according to the truth of the said propositions , for as we haue before shewed , that by reducing a case to a syllogisme , we might finde some of the principall reasons and propositions , whereupon the verity of the said case , being the conclusion , dependeth ; as trying out the cause by the effect : so of the contrary part , to frame the effect by the cause ; the same propositions will , as they confirme one case , so likewise establish all other speciall cases , which shall happen to concurre in equall and like reason , or be reducible to , or vnder , the generallity of the said proposition . and although the lawyer be not tyed to this short course of argument current in schooles , yet in whatsoeuer large discourse of argument , if this forme be respected , though amplified and enlarged with prosyllogismes , after the manner of rhetoritians or oratours , it will yeeld the fruit aforce remembred . there are in our books extant of both , as namely , by conisby , to prooue that a man might grant his lease for yeares without deed , vseth this plaine and expresse syllogisme ; whereof euery proposition being a ground and principle in the law , the conclusion necessarily doth follow . 1 maior ) chose que ico poy prender in lease sans fait poiet passer hors de moy sans fait . 2 minor ) et un lease de terre pur terme d'anus est bon sans fait . 3 conclusio ) ergo per mesme le reason il poit passer hors del lessee , & ceo sans fait . likewise a question grew whether the heire or executor were to haue a furnace fixed vnto the soyle , or such chattells as were annexed to the freehold after the death of the testator , or no ; where the reporter putteth downe the opinion of reede chiefe iustice , fisher , and kingsmill , that the executors should not haue the same vnder the frame of this forme of syllogisme ; whereof euery proposition is a rule of law. 1 maior ) ceux choses que ne poient este forfeit per vtlary in personall action , ne este attache in assise ne distraine per le signor pur rent , tiels choses executours naveront . 2 minor ) mes un furnace ou table fix sur la terre , ou posses , ou un pale , ou un couering de un lict merisme , ou bord annex al franktenant , ou house & fenesters , & auters tiels semblables queux sont annex al franktenement , & sont fait , pur un profit del inheritance , ne poient este forfeit per utlary , ne attache , ne distraine . 3 conclusio ) ex consequenti sequitur que executours naveront tiels choses . as touching the second sort of argument by syllogisme , in the commentaries of plowden the same is very frequent and usuall . and herein to take example out of the first case , because it first commeth to memory , all the said argument of griffith in the case of foggosa , may be reduced into this syllogisme set forth in the entrance thereof . maior ) chascun agreement covient este perfect , plein & compleite . minor ) et le evidence icy ne proue le agreement deste perfect , ne plain , ne compleite , mes plus tost un communication ou parlance que un agreement . the conclusion is suppressed for that it apparently followeth of the premises , vntill the end of the argument ; where at last it is expressed in this manner . conclusio ) et issint le agreement est imperfect a doner action pur le subsedy per que le agreement intend per le statute nest accomply . the maior proposition is amplified with this prosyllogisme . car agreement concernant personall choses , est un mutuall assent des parties , & doit este execute oue un recompence , ou auterment doit este cy certaine & sufficient que doit doner action , ou auter remedy pur recompence , & sil issent nest , donquene sera dit agreement mes plus tost un nude communication . and this proposition he prooueth by the cases thereafter by him alleaged . the minor proposition of the first syllogisme is there enlarged where he further addeth . et issint in nostre case entant que estatute de an . 1. regis nunc , cap. 3. &c. vntill the end of the case . the like may be obserued in euery good and effectuall argument ; but we stand not vpon example . a third profit may be considered herein : for manytimes it falleth out , that we perceiue a coherence and likenesse betweene diuers and sundry cases , which therefore wee know are applyable to our purpose ; and yet neuerthelesse , except we draw the unity of reason so found and considered in the said cases , vnto a short sentence , ground , rule , or proposition , wherein they may concurre , and do agree ; we shall be driuen with long circumlocution and many words , to make manifest our meaning in the allegation of the same , especially if the cases do not concurre and agree in one mediate reason or likenesse , but are vpon some conformity further off , to be resembled each to other . as for example . le roy ne poit arrest un home de suspition de treason ou felony , luy mesme , come un subiect poit faire , pur ceo que si il fait tort in ceo feasant , le party issint iniury ne poit auer action envers luy . si home soit in debt a un sur contract sans specialty ; si apres cesty a que le dit est due soit vtlaye in action personall , le roy naver cest dett pur l'utlary a luy forfeit , pur ceo que donque le defendant perderoit le benefit del ley gager que il poit aver in sute de ceo comence vers luy per le creditour . coment que lestatute de w. 2. cap. 3. done resceit a cesty in le revercion generalment uncore si le tenant pur vie soit , ou le roy ad le revercion ; & il estant implede fúit default a pres default , le roy ne sera receiue come common person seroit . car , sur le resceit , le demandant doit connter vers cesty que est receiue , mes issent ne poit a scun counter vers le roy , ne luy suer , mes per petition ; et pur ceo , si le roy seroit resceiue le breve , le demandant abateroit maintenant , et pur cest mischiefe , al demandant le roy ne sera resceiue : mes son droit sera sabe per auter meane . these three cases greatly doe differ both in the circumstance of matter , & in the immediate reasons , and yet neuerthelesse haue some resemblance , and a kinde of conformitie and likenesse , betweene them each to other . 1 first they all concerne the king. 2 secondly the king in euery of them is restrained from that power or benefit that his subiect hath . for 1 in the first , he cannot arrest one as his subiect may . 2 in the second he shall lose that debt which his subiect , in whose right hee claimeth it , shoud recouer . 3 in the third he shall not be receiued where the subiect might . and lastly in euery of these cases , if the king should bee admitted to doe as a common person might , the subiect in suite with him should sustaine great preiudice . for 1 in the first he should not be permitted to punish the iniury done to his person . 2 in the second he should lose the benefit of waging his law. and 3 in the third and last haue his action debated without his default . the likenesse of which cases cannot so well bee conceiued without many words , except wee reduce vnto some generall axiome the vnity and resemblance of reason found in them . and therefore this proposition without more might haue sufficed for all . where the subiect by reason of some prerogatiue that is in the king , should otherwise be put to a preiudice ; there the king shall not be allowed that benefit which euery of his subiects by law enjoyeth . in which generall axiome or rule , a generall reason of all the said seuerall cases doth equally concur . by this obseruation wee may reape likewise a fourth commoditie , after this manner . all the reports doe consist of particular cases euery particular case hath his seuerall circumstance . circumstances are singular , and hardly retained in memorie . for , true is that sentence , which bracton hath borrowed out of the ciuill law , omnia habere in memoria , ct in nulio errare , diuinum est potius quam humanum . wherefore when the case is out of memorie , and the circumstances thereof quite forgot , the reason yet remaineth , and is had in memorie . for , memoria intellectiua est vniuersalium , vt est ipsemet intellectus . it is not the case ruled this way , nor that way but the reason which maketh law ; for , non quid sit intelligere sufficiat , sed cursit diligentius inquiratur . so that hee which by obseruation of these grounds and principles , remembreth but the reason ( as he easily may ) shall so sufficiently resolue all doubts of like degree , as if hee had remembred the expresse cases from which the same reason is deduced . although in argument , i confesse not onely the generall reasons , but likewise the speciall cases are as proofes produced and alleadged . lastly , sith the chosen and collected propositions and principles in manner as aforesaid , for our better vse behooueth to be committed to writing ; we may easily without great trouble , by disposing of them orderly , frame a directory , in manner either of a methodicall treause , or of an alphabeticall table , fit and conuement both for the speedie finding of that wee would seeke , and the ready hauing of that we can wish for , surpassing the benefit of any abridgement hereto fore extant . and thus much touching the commodities growing by the consideration and collection of principles , rules , axiomes , grounds , and maximes : and of the scope and end whereunto they tend in managing of our lawes , as well for the behoofe of the student , and for the vse of the practiser . and now remaineth that a few words be said to forewarne both , of certaine abuses ordinarily bred herein . 1 the first abuse is , that neither the ground often times produced doth come neere the reason of the case , in question ; nor the cases alleadged to proue and fortifie that ground , doe directly confirme the same . a fault very vsuall in publique exercises ; and may be redressed if we doe call to minde that any case alleadged ought not to be wrested to proue the rule or ground alleadged ; but the rule , ground , or principle ought to be the very immediate or secondarie reason of the cases whence , it is drawne , and which cases are brought to confirme the same , in such sort that all the cases alleadged doe concurre in equalitie of reason , likenesse , and proportion ; and in full proofe of the principle so produced . and that the ground or principle bee a reason of the question in variance , to subuert or confirme the same . wherein also let this be weighed , that a few principles cannot sufficiently serue to supplie all occasions in that behalfe , but the same must be drawne and deduced of all causes , titles , and matters in the law fit for argument and ves . 2 a second principall ouersight is this . many to proue their opinion in the controuersie proposed , frame their reason rightly from some notable ground , and knowne principle or rule , which though it bee well applyed , yet not regarding the manifold exceptions whereunto the same principle is subiect , they doe set it forth so generall , that it giueth their aduersarie some cause of challenge and cauill thereunto , by obiecting some instance or cases vpon exception of the said rule : and thereby doth not onely seeme to enfeeble the same , in shewing the fallacies thereof ; but sometime in shew , weakeneth the whole reason and argument grounded thereupon . 3 the third abuse of these principles or propositions , is , in the two much frequenting and often needlesse vse of them . for sometimes the obscuritie of the cause , may require some other manner of argument , drawne from places of inuention , which may content and satisfie the minde of the hearers much better . and sometimes the clearenesse of the matter it selfe , needeth not such preparation of proofe and confirmation of those principles and rules . for then is the most and best of them , when that both propositions and cases to confirme the same , haue great coherence with the question ; when both the circumstance of the case in question , and the cause of doubt , doe giue occasion to vse them ; so that which thereby is affirmed , may rightly be reducible to the purpose . 4 finally , it sometimes falleth out to be a fault ouermuch to abound in well doing . omne nimium vertitur in vitium , saith the prouerbe ; for sundry times it happeneth , that it is very conuenient and direct to the matter to make argument vpon a well applyed prnciple , rule or ground , which by men of great learning and reading is sometimes so sufficiently handled , with such abundance and ample furniture of notable and direct cases , that their endeauour herein deserueth high commendations : yet more conuenient were it , that their paines were lesse . for to what purpose behooueth it , to heape case vpon case , as it were one on the necke of another , pelion vpon ossa ? whereas many probable reasons , though confirmed with few good cases , breede greater contentation to the hearer , by reason of the seuerall proofe made thereby then many cases . finis . the vse of the law . provided for preservation of our persons . goods , and good names . according to the practise of the lawes and customes of this land. london . printed for ben : fisher , and are to bee sold at his shop without aldersgate , at the signe of the talbot . 1629. a table of the contents of this ensuing treatise . folio . what the vse of the law principally consisteth in , fol. 1. surety to keepe the peace , fol. ibid. action of the case , for slaunder , batterie , &c. fol. 2. appeale of murther giuen to the next of kinne , fol. ibid. manslaughter and when a forfeiture of goods , and when not , fol. 3. felon . de se , felony by mischance , deodand , fol. ib. cutting out of tongues , and putting out of eyes , made felonie . fol. 4. the office of the constable , fol. ibid. two high constables for euery hundred , and one pettie constable for euery village , fol. 5. the kings-bench first instituted , and in what matters they anciently had iurisdiction in , fol. 6. the court of marshalsey erected , and its iurisdiction within 12. miles of the chiefe tunnell of the king , which is the full extent of the verge , fol. 7. sheriffes tourne instituted vpon the division of england into counties , the charge of this court was committed to the earle of the same county , fol. 7. subdivision of the county court into hundreds , fol. 8. the charge of the county taken from the earles , and committed yearely to such persons as it pleased the king. fol. ibid. the sheriffe is iudge of all hundred courts not giuen away from the crowne , fol. 9. county court kept monethly by the sheriffe , fol. ib. the office of the sheriffe , fol. ibid. hundred courts to whom first granted , fol. 10 lord of the hundred to appoint two high constables , fol. ibid. of what matters they enquire of in leets and law dayes , fol. 11 conseruators of the peace and what their office was , fol. 12 conseruators of the peace by vertue of their office , fol. 13 iustices of peace ordayned in lieu of conseruators . power of placing and displacing of iustices of peace by vse deligated from the king to the chancellor , fol. ibid. the power of the iustice of peace to fine the offenders to the crowne , and not to recompence the partie grieued , fol. ibid. authority of the iustices of peace , through whom run all the county seruices to the crown , fol. 14 beating , killing , burning of houses , fol. ibid. attachments for surette of the peace , fol. ibid. recognizance of the peace deliuered by the iustices at their sessons , fol. 14 quarter sessions held by the iust. of peace , fol. 15 the authority of iustices of the peace out of their sessions , fol. 16 iudges of assize come in place of the auncient iudges in eyre , about the time of r. 2. fol. 17 england diuided into six cicuits , and two learned men in the lawes , assigned by the kings commission to ride twice a yeare through those shires alotted to that circuit , for their try all of priuate titles to lands and goods , and all treasons and felonies , which the county courts meddle not in , fol. ibid. the authority of the iudges in eyre translated by parliament to iustices of assize , fol. 18 the authority of the iustices of assizes much lesned by the court of common pleas , erected in h. 3. time , fol. ibid. the iustices of assize haue at this day fiue commissions by which they fit , viz. 1. oyer and ternier , 2. goale deliuery , 3. to take assizes , 4. to take nisi prius , 5. of the peace , fol. 19 booke allowed to cleargie for the scarcitie of them to be disposed in religious houses , fol. 22 the course the iudges hold in their circuits in the execution of their commission concerning the taking of nisi prius . fol. 26 the iustices of the peace and the sheriffe , are to attend the iudges in their countie , fol. 27 of propertie of lands to be gained by entry , f. 28 land left by the sea belongeth to the king , fo . 29 propertie of lands by discent , fol. 30 three rules of discent , fol. 31 customes of certaine places , fol. 32 euery heyre hauing land is bound by the binding acts of his ancestors , if hee be named , fol. 33 propertie of lands by escheat , fol. 34 in escheat two things are to be obserued , fol. 35 concerning the tenure of lands , fol. ibid. the reseruations in knights seruice tenure , is foure , fol. 36 homage , and fealtie , fol. 38 knight seruice in capite , is a tenure de persona regis , fol. 39 grand seriantic , petty scriantie , fol. ibid. the institution of soccage in capite , and what it is now turned into monyes rents , fol. 40 antient demeasne , what ? fol. ibid. office of alienation , fol. 41 how mannors were at first created , fol. 42 knights seruice tenure reserued to common persons , fol. ibid. soccage tenure reserued by the lord , fol. 43 villenage or tenure by coppie of court roll , fol. 44 court baron , with the vse of it , fol. 45 what attainders shall giue the escheat to the lord , fol. ibid. prayer of clergie , fol. 47 hee that standeth mute forfeiteth no lands , except for treason , fol. ibid. he that killeth himselfe forfeiteth but his chattels fol. 47 flying for felonie , a forfeiture of goods , fol. ibid. lands entayled , escheat to the king for treason , fol. 48 a person attainted may purchase , but it shall be to the kings vse , fol. 50 propertie of lands by conueyance is , first distributed into estates for yeares , for life , intayle and fee-simple , fol. 52 lease for yeares goe to the executors and not to the heyres , fol. ibid. leases , by what meanes they are forfeitable , fol. 53 what liuerie of seizen is , and how it is requisite to euery estate for life , fol. 54 of the new deuise called a perpetuitie , which is an entayle with an addition , fol. 58 the inconueniencies of these perpetuities , fol. 59 the last & greatest estate in land is feesimple , 60 the difference betweene a remainder and a reuertion , fol. 61 what a fine is , fol. 62 what recoueries are , fol. 63 what a vse is , fol. 66 a conueyance to stand ceased to a vse , fol. 68 of the continuance of land by will , fol. 70 propertie in goods , 1. by guift , 2. by sale , 3. by stealing , 4. by wauing , 5. by straying , 6. by shipwrack , 7. by forfeiture , 8. by executorship , fol. 78 by letters of administration , fol. 88 where the intestate had bona notabilia in diuers diocesse , then the archb shop of that prouince where hee dyed is to commit administration , fol. 89 an executor may refuse the executorship before the bishop , if hee haue not entermedled with the goods , fol. ibid. an executor ought to pay , 1. iudgements , 2. stat. recogn . 3. debts by bonds and bills sealed , 4. rent vnpayed , 5. seruants wages , 6. head-workmen , 7. shop-booke , and contracts by word fol. ibid. debts due in equall degree of record , the executor may pay which of them hee please before suite be commenced , fol. 90 but it is otherwise with administrators , fol. 91 propertie by legacie , fol. 92 legacies are to bee payed before debts by shop-bookes , bils vnsealed , or contracts by word , fol. ibid. an executor may pay which legacie he will first . or if the executors doe want they may sell any legacie to pay debts , fol. 93 when a will is made and no executor named , administration is to bee committed cum restamento annexo . fol. ibid. the vse of the law , and wherein it principally consisteth . the vse of the law , consisteth principally in those three things : 1 to secure mens persons from death and violence . 2 to dispose the propertie of goods and lands . 3 for preservation of their good names from shame and infamie . for safetie of persons , the law provideth , that any man standing in feare of another , may take his oath before a iustice of peace , that he standeth in feare of his life , and the iustice shall compell the other to bee bound with suerties to keeps the peace . if any man beate , wound or maime another , or giue false scandalous words that may touch his credit , the law giveth thereupon an action of the case , for the slaunder of his good name ; and an action of batterie , or an appeale of maime , by which recompence shall bee recovered , to the value of the hurt , dammage or danger . if any man kill another with malice , the law giveth an appeale to the wife of the dead , if hee had any , or to the next of kinne that is heire in default of a wife , by which appeale the defendant conuicted is to suffer death , and to loose all his lands and goods ; but if the wife or heire will not sue or bee compounded withall , yet the king is to punish the offence by indictment or presentment of a lawfull inquest and tryall of the offenders before competent iudges ; whereupon being found guiltie , hee is to suffer death , and to loose his lands and goods . if one kill another vpon a suddaine quarrell , this is man slaughter , for which the offender must dye , except hee can reade ; and if hee can reade , yet must he loose his goods , but no lands . and if a man kill another in his owne defence , hee shall not loose his life , not his lands , but he must loose his goods ; except the partie slaine did first assault him , to kill , robbe , or trouble him by the high-way side , or in his owne house , and then he shall loose nothing . and if a man kill him-selfe , all his goods and chattels are forfeited , but no lands . if a man kill another by misfortune , as shooting an arrow at a butt or marke , or casting a stone ouer an house or the like , this is losse of his goods and chattels , but not of his lands , nor life . if a horse , or cart , or a beast , or any other thing doe kill a man , the horse , beast or other thing is forfeited to the crowne , and is called a deodand , and vsually graunted and allowed by the king to the bishop almner , as goods are of those that kill themselues . the cutting out of a mans tongue , or putting out his eyes maliciously , is felonie ; for which the offender is to suffer death , and loose his lands and goods . but , for that all punishment is for examples sake . it is good to see the meanes whereby offenders are drawne to their punishment ; and first for matter of the peace . the auntient lawes of england planted heere by the conquerour , were , that there should bee officers of two sorts in all the parts of this realme to preserue the peace : 1. constabularij pacis . 2. conservatores pacis . the office of the constable was , to arest the parties that he had seene breaking the peace , or in furie ready to breake the peace , or was truely informed by others , or by their owne consession , that they had freshly broken the peace ; which persons hee might imprison in the stockes , or in his owne house , as his or their quality required , vntill they had become bounden with sureties to keepe the peace ; which obligation from thenceforth , was to bee sealed and deliuered to the constable to the vse of the king. and that the constable was to send to the kings exchequer or chancery , from whence processe should bee awarded to leauy the debt , if the peace were broken . but the constable could not arrest any , nor make any put in bond vpon complaint of threatning onely ; except they had seene them breaking the peace , or had come freshly after the peace was broken . also , these constables should keepe watch about the towne , for the apprehension of rogues and vagabonds , and night-walkers , and euesdroppers , scouts and such like , and such as goe armed . and they ought likewise , to raise hue and cry against murtherers , manslayers , theeues and rogues . of this office of constable there were high constables , two of euery hundred ; pettie constables one in euery village , they were in auncient time all appointed by the sheriffe of the shiere yearely in his court called the sheriffes tourne , and there they receiued their oath . but at this day they are appointed eyther in the law day of that precinct wherein they serue , by the high constable ; or in the sessions of the peace . the sheriffes tourne is a court very ancient , incident to his office. at the first , it was crected by the conquerour , and called the kings-bench , appointing men studied in the knòwledge of the lawes to execute iustice as substitutes , to him in his name , which men are to bee named , iusticiarij ad placita coram rege assignati . one of them being capitalis iusticiarius called to his fellowes , the rest in number as pleaseth the king , of late but three , insticiarij holden by patent . in this court euery man aboue twelue yeares of age , was to take his oath of allegiance to the king , if hee were bound , then his lord to answere for him . in this court the constables were appointed & sworne ; breakers of the peace punished by fine and imprisonment , the parties beaten or hurt recompenced vpon complaints of damages , all appeales of murther , maime , robberie decided , contempts against the crowne , publique annoyances against the people , treasons and felonies and all other matters of wrong , betwixt partie and partie for lands and goods . but the king seeing the realme grow daily more and more populous , and that this owne court could not dispatch all : did first ordaine that his marshall should keepe a court , for controuersies arising within the virge . which is within xij . miles of the chiefest tunnell of the court , which did but ease the kings bench in matters onely concerning debts , conenants and such like , of those of the kings houshold onely , neuer dealing in breaches of the peace , or concerning the crowne by any other persons , or any pleas of lands . insomuch , as the king for further ease hauing diuided this kingdome into counties , and committing the charge of euery countie to a lord or earle ; did direct , that those earles within their limits should looke to the matter of the peace , and take charge of the constables , and reforme publike annoyances , and sweare the people to the crowne , and take pledges of the freemen for their allegiance , for which purpose the countie did once euery yeare keepe a court , called the sheriffes tourne . at which all the countie ( except women , clergie , children vnder 12. and not aged aboue 60. ) did appeare to giue or renew their pledges for allegiance . and the court was called , curio franciplegij , a view of the pledges of free-men ; or , turnus comitatus . at which meeting or court , there fell by occasion of great assemblies much bloudshed , scarcitie of victuals , mutinies and the like mischiefes ; which are incident to the congregations of people , by which the king was moued to allow a subdiuision of euery countie into hundreds , and euery hundred to haue a court , whereunto the people of euery hundred , should bee assembled twice a yeare for surueigh of pledges , and vse of that iustice which was formerly executed in that grand court for the countie ; and the court or earle appointed a bayliffe vnder him to keep the hundred court. but in the end , the kings of this realme found it necessarie to haue all execution of iustice immediately for themselues , by such as were more bound then earles to that seruice , and readily subiect to correction for their negligence or abuse ; and therefore , tooke to themselues the appointing of a sheriffe yearely in euery countie calling , them vicecomit . and to them directed such writs and precepts for executing iustice in the countie , as fell out needfull to haue beene dispatched , committing to the sheriffe custodium comitatus ; by which the earles were spared of their toyles and labours , and that was layd vpon the sheriffes . so as now , the sheriffe doth all the kings businesse in the countie , and that is now called , the sheriffes tourne ; that is to say , hee is iudge of this grand court for the countie , and also of all hundred courts not giuen away from the crowne . hee hath another court , called the countie court , belonging to his office , wherein men may sue monethly for any debt or damages vnder 401. and may haue writs for to repleuie their cattell distrained and impounded for others , and there try the cause of their distresse ; and by a writ called iusticies , a man may sue for any summe , and in this court the sheriffe by a writ , called an exigent , doth proclaime men sued in courts aboue , to render their bodies , or else they be out-lawed . this sheriffe doth serue the kings writs of processe , bee they sommons , attachments to compell men to answere to the law , and all writs of execution of the law , according to iudgements of superiour courts , for taking of mens goods , lands , or bodies as the cause requireth . the hundred courts , were most of them graunted to religious men , noble men , others of great place . and also many men of good quality haue attained by chance , and some by vsage within mannors of their owne liberty of keeping . law dayes , and to vse their iustice appertaining to a law day . whosoeuer is lord of the hundred court , is two appoint two high constables of the hundred , and also is to appoint in euery village , a pettie constable with a tithingman to attend in his absence , and to bee at his commandement when he is present in all seruices of his office for his assistance . there hath beene by vse and statute law ( besides surueying of the pledges of free-men and giuing the oath of allegiance , and making constables , many addictions of powers and authoritie giuen to the stewards of leets and lawdayes to be put in vre in their courts ; as for example , may punish inne-keepers , bakers , butchers , poulterers , fishmonger , and tradesmen of all sorts , selling with vnder weights or measures or excessiue prizes , or things vnwholsome , or ill made in deceipt of the people . they may punish those that doe stop straiten or annoy the high wayes , or doe not according to the prouision enacted repaire or amend them , or diuert water courses , or destroy frey of fish , or vse engines or nets to take deere , conies , phesants or partridges , or build pigion houses ; except hee bee lord of the mannor , or parson of the church . they may also take presentment vpon oath of the xij sworne iury before them ; but they cannot try the malefactors , onely they must by indenture deliuer ouer those presentments of felonie to the iudges , when they come their circuits into that countie . all those courts before mentioned are in vse , and exercised as law at this day , concerning the sheriffes law dayes and leets , and the offices of high constables , pettie-constables , and tithingmen ; howbeit , with some further addictions by statute lawes , laying charge vpon them for taxation for poore , for souldiers and the like , and dealing without corruption and the like . conservators of the peace were in auntient times certaine , which were assigned by the king to see the peace maintained , and they were called to the office by the the kings writs , to continue for terme of theyr liues , or at the kings pleasure . for this service , choise was made of the best men of calling in the countie , and but few in the shire . they might bind any man to keepe the peace and to good behauiour , by recognizance to the king with suerties , and they might by warrant send for the partie , directing their warrant to the sheriffe or constable , as they please , to arest the partie and bring him before them . this they vsed to doe , when complaint was made by any , that hee stood in feare of another , and so tooke his oath ; or else , where the conseruator himselfe did without oath or complaint , see the disposition of any man inclined to quarrell and breach of the peace , or to misbehaue himselfe in some out-ragious manner of force or fraud . there by his owne discretion hee might send for such a fellow , and make him find suerties of the peace or of his good behauiour , as hee should see cause ; or else cōmit him to the goale if hee refused . the iudges of eyther bench in westminster , barons of the exchequer , master of the rolles , and iustices in eire and affizes in their circuits , were all without writ conseruators of the peace in all shires of england , and continue to this day . but now at this day , conseruators of the peace are out of vse ; and in lieu of them , there are ordained iustices of peace , assigned by the kings cōmissions in euery countie , which are moueable at the kings pleasure ; but the power , of placing & displacing iustices of the peace , is by vse deligated from the king to the chancellor . that there should be iustices of peace by commissions , it was first enacted by a statute made 1. ed. 3. and their authoritie augmented by many statutes made since in euery kings raigne . they are appointed to keepe foure sessions euery yeare ; that is , euery quarter , one . these sessions are a sitting of the iustices to dispach the affaires of their commissions . they haue power to heare and determine in their sessions , all felonies , breaches of the peace , contempts and trespasses , so farre as to fine the offender to the crowne , but not to award recompence to the partie grieued . they are to suppresse ryots , and tumults , to restore possessions forcibly taken away , to examine all felons apprehended and brought before them ; to see impotent poore people , or maimed souldiers prouided for , according to the lawes . and rogues , vagabonds , and beggers punished . they are both to licence and suppresse alehouses , badgers of corne and victuals , and to punish fore-stallers , regrators , and engrossers . through these in effect runne all the countie seruices to the crowne , as taxations of subsidies , mustring men , arming them , and leauying forces , that is done by a speciall commission or preceps from the king. any of these iustices by oath taken by a man that hee standeth in feare that another man wil beat him , or kill him , or burne his house , are to send for the partie by warrant of attachment directed to the sheriffe or constable , and then to bind the partie with suerties by recognizance to the king , to keepe the peace , and also to appeare at the next sessions of the peace ; at which next sessions , when euery iustice of peace hath therein deliuered all their recognizances so taken , then the parties are called and the cause of binding to the peace examined , and both parties beeing heard , the whole bench is to determine as they see cause , either to continue the partie so bound , or else to discharge him . the iustices of peace in their sessions are attended by the constables & bayliffes , of all hundreds and liberties within the countie , or by the sheriffe or his deputy , to bee employed as occasion shall serue in executing the precepts and directions of the court. they proceed in this sort , the sheriffe doth sommon 24. free-holders discreet men of the said county , whereof some 16. are selected and sworne , and haue their charge to serue as the grand iury ; the partie indicted is to trauerse the indictment or else to confesse it , and so submit himselfe to bee fined as the court shall thinke meet ( regard had to the offence ) except the punishment be certainely appointed ( as often it is ) by speciall statutes . the iustices of peace are many in euerie countie , and to them are brought all traitors felons and other malefactors of any sort vpon their first apprehension , and that iustice to whom they are brought , examineth them , & heareth their accusations , but iudgeth not vpon it ; onely if heo find the suspition but light , then hee taketh bond with sureties of the accused , to appeare either at the next assizes , if it be a matter of treason or felonie ; or else at the quarter sessions , if it bee concerning ryot or mis-behauior or some other small offence . and hee also bindeth to appeare then those that giue testimonie and prosecute the accusation , all the accusers and witnesses , and so setteth the partie at large . and at the assizes or sessions ( as the case falleth out ) hee certifieth the recognizances taken of the accused , accusers , and witnesses ; who being there are called , and appearing , the cause of the accused is dept into according to law for his clearing . but if the partie accused , seeme vpon pregnant matter in the accusation and to the iustice to bee guilty , and the offence heinous , or the offender taken with the manner , then the iustice is to commit the partie by his warrant called a mittimus to the goaler of the common goale of the countie , there to remaine vntill the assizes . and then the iustice is to certifie his accusation , examination , and recognizance taken for the appearances and prosecution of the witnesses , so as the iudges may when they come readily proceed with him as the law requireth . the iudges of the assizes as they bee now become into the place of the antient iustices in eyre . the prime kings after the conquest vntill h. 3. time especially ; and after the lesser men euen to r. 2. time , did execute the iustice of the realine ; they began in this sort . the king not able to dispatch busines in his own person , erected the court of kings bench , that not able to receiue al , nor meet to draw the people all to one place , there were ordained counties , and the sheriffes tornes , hundred courts , and particular leets , and law-dayes , as before mentioned , which dealt onely with crowne matters for the publique ; but not the priuate titles of lands or goods , nor the tryall of grand offences of treasons and felonies , but all the counties of the realme were diuided into six circuits . and two learned men well read in the lawes of the realme , were assigned by the kings commission to euery circuit , and to ride twice a yeare through those shires allotted to that circuit , making proclamation before hand , a conuenient time in euery countie , of the time of their comming , and place of their sitting , to the end the people might attend them in euery countie of that circuit . they were to stay 3. or 4. dayes in euery countie , and in that time all the causes of that countie were brought before them by the parties grieued , and all the prisoners of the said goale in euery shire , and whatsoeuer controuersies arising concerning life , lands or goods . the authoritie of these iudges in eyre , is translated by act of parliament to iustices of assize ; which bee now , the iudges of circuits , and they doe vse the same course that iustices in eyre , did to proclaime their comming euery halfe yeare , and the place of their sitting . the businesse of the iustices in eyre , and of the iustices of assize at this day is much lessened , for that in h. 3. time there was erected the court of common-pleas at westininster , in which court haue beene euer since and yet are begun and handled , the great suits of lands , debts , benefices and contracts , fines for assurance of lands and recoueries , which were wont to bee either in the kings bench , or else before the iustices in eyre . but the statute of mag. char. cap. 5. is negatiue against it . viz communia placita non sequantur , curiam nostram sed sequantur in aliquo loco certo ; which locus certus must be the common pleas , yet the iudges of circuits haue 5. commissions by which they sit . the first is , a commission of oyer and termnier directed vnto them , and many others of the best accompt , in their circuit ; but in this commission the iudges of assize are of the quorum , so as without them there can be no proceeding . this commission giueth them power to deale with treasons , murtherers , and all manner of felonies and misddemeanours whatsoeuer ; and this is the largest commission that they haue . the second is a commission of goale deliuery ; that is , onely to the iudges themselues , and the clearke of the assize assotiate , and by this commission they are to deale with euery prisioner in the goale , for what offence soeuer hee bee there . and to proceed with him according to the lawes of the realme , and the quality of their offence ; and they cannot by this comission doe any thing concerning any man , but those that are prisoners in the goale . the course now in vse of execution of this commission of goale deliuery , is this . there is no prisoner but is committed by some iustice of peace , who before he committed took his examination , and bound his accusers and witnesses to appeare and prosecute at the goale deliuery . this iustice doth certifie these examinations and bonds , and therevpon the accuser is called solemnely into the court ; and when he appeareth hec is willed to prepare a bill of indictment against the prisoner , and goe with it to the grand-iury , and giue euidence vpon their oathes he and the witnesses , which he doth ; and then the grand iury write thereupon either billa vera , and then the prisoner standeth indicted , or else ignoramus , then he is not touched . the grand iury deliuer these bils to the iudges in their court , and so many as they find indorsed billa vera , they send for those prisoners , then is euery mans indictment put and read to him , and they aske him whether he be guilty or not ; if he say not guilty , then he is asked how he will be tryed , he answereth , by the countrey . then the sheriffe is commanded to return the names of 12. freeholders to the court , which freeholders be sworne to make true deliuery betweene the king and the prisoner , and then the indictment is againe read and the witnesses sworne , and speake their knowledge concerning the fact , and the prisoner is heard at large , what defence he can make , and then the iury goe together and consult . and after a while they come in with a verdict of guilty or not guiltie , which verdict the iudges doe record accordingly . if any prisoner plead not guilty vpon the indictment and yet will not put himselfe to tryall vpon the iury , ( or stand mure ) he shall be pressed . the iudges when many prisoners are in the goale doe in the end before they goe , peruse euery one . those that were indicted by grand iury , and found not guiltie by the select iury , they judge to be quitted , & so deliuer them out of the goale . those that are found guilty by both iuries they iudge to death and command the sheriffe to see execution done . to those that refuse tryall by the countrie , or stand mute vpon the ind ctment , they iudge to be pressed to death , some whose offences are pilfring vnder twelue pence value , they judge to be whipped . those that confesse their ind ctments , they iudge to death , whipping or otherwise , as their offence requireth . and those that are not indicted at all , but their bill of inditement returned with ignoramus by the grand lury and all other in the goale , against whom no bils at all are , they doe acquit by proclamation out of the goale ; that one way or other they ridde the goale of all the prisoners in it , but because some prisoners haue their bookes and burned in the hand and so deliuered , it is necessary to shew the reason thereof . this hauing their bookes is called their clergie , with in antient time began thus . for the scarcity of the clergie in the realme of england to be disposed in religious houses , or for preists , deacons and clerkes of parishes , there was a prreogatiue allowed to the clergie , that if any man that could reade or were a clerke , were condemned to death , the bishop of the diocesse , might if he would clayme him as a clerke , and he was to see him tryed in the face of the court. whether he could read or not the booke was prepared and brought by the bishop , and the iudge was to turne to some place as he should thinke meete , and if the prisoner could reade them then the bishop was to haue him deliuered ouer vnto him to dispose of in some places of the clergie , as hee should thinke meete . but if either the bishop would not demand him : or that the prisoner could not read , then was hee to bee put to death . and this clergie was allowable in the ancient times and law , for all offences whatsoeuer they were except treason and robbing of churches of their goods and ornaments . but by many statutes made since , the clergie is taken away for murther , burglarie , robberie , purse-cutting , and diuers other felonies particularized by the statutes to the iudges , and lastly ; by a statute made 18. elizabeth : the iudges themselues are appointed to allow clergie to such as can read , being not such offenders from whom clergie is taken away by any statute . and to see them burned in the hand , and so discharge them without deliuering them to the bishop , howbeit the bishop appointeth the deputie to attend the iudges with a booke to trie whether they would reade or not . the 3. comission , that the iudges of circuits haue , is , a cōmission directed to themselues onely to take assizes by which they are called iustices of assize , and the office of those iustices is to doe tight vppon writs called assizes , brought before them by such as are wrongfully thrust out of their lands . of which number of writs there was farre greater store brought before them in antient times then now it is , for that mens seizons and possessions are sooner recouered by sealing leases vpon the ground , and by bringing an eiectione firme , and trying their tytle so , then by the long suites of assizes . the 4. cōmission , is cōmission to take nisi prius directed to none but to the iudges themselues and their clerkes of assizes , by which they are called iustices of nisi prius . these nisi prius happen in this sort , when a suit is begun for any matter in one of the three courts , the kings bench , common pleas , or the exchequer here aboue , and the parties in their pleadings doe varie in a point of fact ; as for example , if an action of debt or trespasse growne for taking away goods , the defendant denieth that hee tooke them , or in an action of the case for slaunderous words , the defendant denieth that he spake them . then the plaintiffe is to maintaine and proue them , that the obligation is the defendants deed , that hee either tooke the goods , or spake the words , the law saith , that issue is joyned betwixt them , which issue of the fact is to bee tried by a iurie of twelue men of the countie , where it is supposed by the plaintiffe the prises to bee done , and for that purpose the iudges of the court doe award a writ of venire fac : in the kings name to the sheriffe of that countie , commanding him to cause foure and twentie discreet free-holders of his countie at a certaine day to try this issue joynt , out of which foure and twentie onely twelue are chosen to serue , and that double number is returned , because some may make default , and some bee challenged vpon kindred , alliance , or partiall dealing . these foure and twentie , the sheriffe doth name and certifie to the court , and withall that hee hath warned them to come at the day according to their writ . but because at his first summons there falleth no punishment vpon the foure and twentie if they come not , they very seldome or neuer appeare vpon the first writ , and vpon their default there is another writ * returned to the sheriffe , commaunding him to distraine them by their lands to appeare at a certaine day appointed by the writ , which is the next day after the nisi prius iusticiarij nostri ad assizas capiendas venerint , &c. of which words the writ is called a nisi prius , and the iudges of the circuit of that countie in that varatis and meane time before the day of appearance appointed for the iurie aboue , haue their commission of nisi prius , authority to take the appearance of the iury of the county before them , and there to heare the witnesses and proofes on both sides concerning this issue of fact , and to take the verdict of the iury , and against the day they should haue appeared aboue , which to returne the verdict read in the court aboue , returne is called postea . and vpon this verdict clearing the matter in fact , one way or other , the iudges aboue giue judgement for the partie for whom the verdict is found , and for such damages and costs as the iury doth assesse . by those tryals called nisi prius , the iuries and the parties are eased much of the charge they should bee put to , by comming to london with their euidences and witnesses , and the courts of westminster are eased of much trouble they should haue , if all the iuries for tryals should appeare and try their causes in those courts ; for those courts haue little leisure . now though the iuries come not vp , yet in matters of great weight or where the tytle is intricate or difficult , the iudges aboue vpon information to them doe retaine those causes to be tryed there , and the iuries doe at this day in such causes come to the barre at westminster . the fift commission that the iudges in their circuits doe sit by , is the commission of the peace in euery countie of their circuit . and all the iustices of the peace hauing no lawfull impediment , are bound to bee present at the assizes to attend the iudges as occasion shall fall out , if any make default the iudges may set a fine vpon him at their pleasure and discretions . also the sheriffe in euery shire through the circuit , is to attend in person the iudges all that time they bee within the countie , and the iudges may fine him if hee faile for negligence or misbehauiour in his office before them ; and the iudges aboue may also fine the sheriffe for not returning sufficiently writs before them . propertie in lands is gotten and transferred by one to another , those foure manner of wayes . 1 by entry . 2 by discent . 3 by escheat . 4 most vsually by conueyance . 1 propertie by entry is , where a man findeth a piece of land that no other possesseth or hath tytle vnto , and hee that findeth it doth enter , this entry gaineth a propertie ; this law seemeth to bee deriued from this text , terradedit filijs hominum , which is to bee vnderstood , to those that will till and manure it , and so make it yeeld fruit ; and that is hee that entreth into it , where no man had it before . but this manner of gaining lands was in the first dayes and is not now of vse in england , for that by the conquest all the land of this nation was in the conquerours hands , and appropriated vnto him ; except , religious and church-lands , and the lands in kent , which by composition were left to the former owners , as the conquerour found them , so that no man but the bishopricks , churches , and the men of kent , can at this day make any greater title then from the conquest to his lands in england , and lands possessed without any such title are in the crowne and not in him that first entreth ; as it is by land left by the sea , this land belongeth to the king and not to him that hath the lands next adioyning which was the auncient sea bankes , this is to bee vnderstood of the inheritance of lands : viz. that the inheritance cannot bee gained by the first entry . but an estate of franckiut . for an other mans life by our lawes , may at this day be gotten by entrie . as a man called a. hauing land conueyed vnto him for the life of b. dyeth without making any estate of it , there whosoeuer first entreth into the land , after the decease of a. getteth the propertie in the land for time of continuance of the estate which was granted to a. for the life of b. which b. yet liueth , and therefore the said law cannot reuert to him . and to the heire of a. it cannot goe , for that it is not any state of inheritance but onely an estate for another mans life ; which is not deseendable to the heire , except he be specially named in the grant : viz. to him and his heires . as for the exccutors of a. they cannot haue it , for it s not an estate testamentory that should goe to the executors as goods and chatrels should , so as in truth , no man can intitle himselfe vnto those lands ; and therefore , the law preferreth him that first entreth , and he is called occupans and shall hold it during the life of b. but must pay the rent , performe the conditions , and doe no wast . and he may by deed assigne it to whom he please in his life time . but if he die , before he assigne it ouer , then it shall goe againe to him whomsoeuer entreth . and so all the life of b. so often as it shall happen . propertie of lands by discent is , where a man hath lands of inheritance and dyeth not disposing of them , but leauing it to goe as the law casteth it vpon the heire . this is called discent of land , and vpon whom the discent is to light , is the question . for which purpose the law of inheritance preferreth the first child before all others , and amongst children the male before the female , and amongst males the first borne . if there bee no children then the brother , if no brothers , then sisters , if neyther brothers nor sisters , then vnckles , and for lacke of vncles , ants , if none of them , then couzens in the necrest degree of consanguinity , with these three rules of diuersities . 1. that the eldest male shall safely inherit ; but if it come to females , then they being all in an equall degree of neerenes shall inherit altogether and are called parceners , and all they make but one heire to the ancestor . 2. that no brother nor sister of the halfe blood shall inherit to his brother or sister , but as a child to his parents , as for example . if a man haue two wiues , and by either wife a sonne , the eldest sonne ouerliuing his father is to be preferred to the inheritance of the father being fee-simple ; but if he entreth and dyeth without a child , the brother shall not be his heire , because he is of the halfe bloud to him , but the vnckle of the eldest brother or sister of the whole bloud , yet if the eldest brother had dyed in the life of the father , then the youngest brother should inherit the land that the father had , although it were a child by the second wife , before any daughter by the first . the third rule about discents . that land purchased by the partie himselfe that dyeth , is to be inherited ; first , by the heires of the fathers side , then if he haue none of that part by the heires of the mothers side . but land descended to him from his father or mother , are to go to that side only from which they came , and not to the other side . those rules of discent mentioned before are to bee vnderstood of fee simples and not of entailed lands , and those rules are to bee restrained by some particular customes of some particular places : as namely , the custome of kent , that euery male of equall degree of childhood , brotherhood or kindred , shall inherit equally , as daughters shall being parceners , and in many burrough townes of england , the custome alloweth the youngest sonne to inherit , and so the youngest daughter . the custome of kent is called ganel kind . the custome of boroughes burgh english . and there is another note to bee obserued in fee-simple inheritance , and that is , that euerie heire hauing land or inheritance , be it by common law or by custome is chargeable , so farre forth as the value thereof extendeth with the binding acts of the ancestors from whom the inheritance descendeth ; and these acts are colaterall encombrances , and the reason of this charge is , qui sentit commodum sentire debet incommodum siue onus . as for example , if a man bind himselfe and his heires in an obligation or doe couenant by writing for him and his heires , or doe grant an anuity for him & his heires , which warrantie in all these cases , the law chargeth the heire after the death of the auncestor with this obligation ; couenant , annuitie , warrantie , yet with these three cautions . 1. that the partie must by speciall name bind himselfe and his heires , or couenant , grant , and warrant for himselfe and his heires ; otherwise , the heire is not to bee touched . secondly , that some action must be brought against the heire , whilst the land or other inheritance resteth in him vnaliened away ; for if the ancestor dye , and the heire before an action be brought against him , vpon those bonds , couenants , or warranties , doe alien away the land , then the heire is cleane discharged of the burthen , except the land was by fraud conueyed away of purpose , to preuent the suite intended against him . thirdly , that no heire is further to bee charged , then the value of the land descended vnto him , for the same ancestor that made the instrument of charge , and that land also not to bee sold outright , but to bee kept in extent and at a yearely value vntill the debt or damage be runne out , neuerthelesse , if an heire that is sure vpon such a debt of his ancestor , doe not deale clearely with the court , when he is sued ; that is , if hee come not immediately by way of confession and set downe the true quantitie of his inheritance descended , and so submit himselfe ; therefore , as the law requireth . then that heire that otherwise demeaneth himselfe , shal be charged of his his owne other lands and goods , and of money for this deed of his ancestor . as for example . if a man bind himselfe and his heires in an obligation , and dyeth leauing but 10. acres of land to his heire , if his heire be sued vpon the bond , & commeth in , and denieth that he hath any by discent , and it is found against him by the verdict that he hath 10. acres , this heire shall bee now charges by his false plea of his owne lands goods and bodie to pay the 100l. although the 10. acres be not worth 10l. propertie of lands by escheat , is where the owder dyeth , seizeth of the lands in possession without child or other heire thereby the land for lacke of other heire , is said to escheat to the lord of whom it is holden . this lacke of heire happeneth principally in two cases . 1. where the lands owner is a bastard . 2. where he is attainted of felonic or treason , neither can a bastard haue any heire except it be his owne child nor a man attainted of treason , although it be his owne child . vpon attainder of treason the king is to haue the land although hee be not the lord of whom it is held , because it is a royall escheat . but for felonie it is not so , for there the king is not to haue the escheat , except the land be holden of him . and yet where the land is not holden of him the king is to haue the land for a yeare and a day next ensuing the judgment of the attainder , with a libertie to commit all manner of wast all that yeare in houses , gardens , ponds , lands and woods . in these escheats , two things are especially to be obserued ; the one is , the tenure of the lands , because it directeth the person to whom the escheat belongeth : viz. the lord of the mannor of whom the land is holden . 2. the manner of such attainder which draweth with it the escheat , concerning the tenures of lands , it is to bee vnderstood , that all lands are holden of the crowne either mediately or immediately , and that the escheat appertaineth to the immediate lord , and not to the mediate . the reason why all land is holden of the crowne immediatly or by mesne lords is this . the conqueror got by right of conquest all the land of the realme into his owne hands in demeasne , taking from euery man all estate , tenure , propertie and libertie of the same , ( except religious and church lands , and the land in kent ) and still as hee gaue any of it out of his owne hand , he reserued some retribution of rents or seruices or both , to him and to his heires ; which reseruation , is that , which is called the tenure of land. in which reseruation , he had foure institutions , exceeding politique , and sutable to the state of a conqueror . seeing his people to be part normans , and part saxons , the normans he brought with him , the saxons hee found heere : hee bent himselfe to inioyne them by marriages in amitie , and for that purpose ordaines , that if those of his noble knights and gentlemen , to whom hee gaue great rewards of lands should dye , leauing their heire within age , a male within 21. and a femalle within 14. yeares , and vnmarried , then the king should haue the bestowing of such heires in marriage in such family , and to such persons as hee should thinke meet , which interest of marriage went still imployed , and doth at this day in euery tenure called knights seruice . the second was to the end , that his people should still bee conserued in warlike exercises and able for his defence ; when therefore , he gaue any good portion of lands , that might make the partie of abilitie or strength , hee with all reserued this seruice . that that partie and his heire hauing such lands , should keepe a horse of seruice continually , & serue vpon him himselfe when the king went to wars , or else hauing impediment , to excuse his owne person , should find an other to serue in his place ; which seruice of horse and man , is a part of that seruice called knights seruice at this day . but if the tenant himselfe be an infant , the king is to hold this land himselfe vntill hee come to full age , finding him meat , drinke , apparell , and other necessaries , and finding a horse and a man , with the ouerplus to serue in the warres , as the tenant himselfe should doe if he were at full age . but if this inheritance descend vpon a woman , that cannot serue by her sex , then the king is not to haue the lands , she being of 14. yeares of age , because shee is then able to haue an husband , that may do the seruice in person . the third institution that vpon euery guilt of land the king reserued a vow and an oath to bind the partie to his faith and loyaltie , that vow was called homage , the oath fcaltie ; homage , is to be done kneeling holding his hands betweene the knees of the lord , saying in the french tongue ; i become your man of life and lands , and earthly honour . fealtie , is to take an oath vpon a booke , that hee will be a faithfull tenant to the king and doe his seruice , and pay his rents according to his tenure . the 4. institution , was for recognizon of the kings bounty by euery heire succeding his ancestor in those kts. seruice lands , the king should haue primer seissin of the lands , which is one yeares profit of the lands , and vntill this bee paid the king is to haue possession of the land , & then to restore it to the heire which continueth at this day in vle , and is the very cause of suing liuerie , and that as well where the heire hath bin in ward or otherwise . these before mentioned by the rights of tenure , are called knights seruice in capite , which is as much to say , as tenure de per sona regis & caput , being called the chiefest part of the person , it is called a tenure in capite , or in chiefe . and it s also to be noted , that as this tenure by capite in knights seruice generally was a great safetie to the crowne , so also the conquerour instituted other tenures in capite necessary to his estate ; as namely , he gaue diuers lands to be holden of him by some speciall seruice about his person , or by hauing some speciall office in his house , or in the field , which haue knights seruice and more in them , and these hee called . tenures by grand sarjantie . also hee provided vpon the first guift of lands , to haue reuenues by continuall seruice of ploughing his land , repairing his houses , parkes pales , castles and the like . and sometimes to a yearely prouision of gloues , spurres , hawkes , horses , and hounds and the like ; which kind of reseruations are called also tenures in chiefe or in capite of the king , but they are not by knights seruice . but such things as the tenants may hire another to doe or prouide for his money . and this tenure is called a tenure by soccage in capite , the word soccagium signifying the plough , howbeit in this later time , the seruice of ploughing the land is turned into money rent , and so of haruest workes , for that the kings doe not keep their demeasne in their owne hands as they were wont to doe , yet what lands were de antiquo dominico corona , it well appeareth in the records of the exchequer called the book of dommesday . and the tenants by auntient demeasne , haue many innuities and priuiledges at this day , that in auntient times were granted vnto those tenants by the crowne , the particulars whereof are too long to set downe . these tenures in capite , as well as that by soccage , as the others by knights seruice haue this propertie ; that the antient tenants cannot alien their lands without licence of the king , if hee doe , the king is to haue a fine for the contempt , and may seize the land , and retaine it vntill the fine bee paid . and the reason is , because the king would haue a libertie in the choyce of his tenant , so that no man should presume to enter into those lands and hold them ( for which the king was to haue those special seruices done him ) without the kings leaue ; this licence and fine as it is now disgested is easie and of course . there is an office called the office of alienation , whereby any man may haue alicence at a reasonable rate , it is at the third part of one yeares value of the land moderately rated . a tenant in capite by knights seruice or grand seriantie , was restrained by antient statute , that he should not giue nor alien away more of his lands , then that with the rest hee might bee able to doe the seruice due to the king , and this is now out of vse . and to this tenure by knights seruice in chiefe , was incident that the king should haue a certaine summe of money , called aid ; due to bee ratably leauied among if all those tenants proportionably to his lands , to make his eldest sonne a knight ; or to marry his eldest daughter . and it is to bee noted , that all those that hold lands by the tenure of soccage in capite ( although not by knights seruice ) cannot alien without licence , and they are to sue liuery , and pay primer seisin , and not to be in ward for bodie or land. by example and resemblance of the kings policie in these institutions of tenures ; the great men and gentlemen of this realme did the like so neere as they could ; as for example , when the king had giuen to any of them two thousand acres of land , this partie purposing in this place to make his dwelling ( or as the old word is ) his mansion house ; or his mannor house , did deuise how he might make his land a compleat habitation to supply him with all manner of necessaries , and for that purpose , hee would giue of the outtermost parts of two thousand acres , 100. or 200. acres or more or lesse , as he should thinke meet : to one of his most trustie seruants with some reseruation of rent to find a horse for the warres , and goe with him when he went with the king to the warres , adding vowe of homage , and the oath of fealtie , wardship , marriage , and reliefe . this reliefe is to pay fiue pound for euery knights fee , or after the rate for more or lesse at the entrance of euerie heire , which tenant so created and placed , was and is to this day called a tenant by knights seruice , and not by his owne person , but of his mannors ; of these hee might make as many as hee would . then this lord would prouide that the land which hee was to keepe for his owne vse , should bee ploughed , and his haruest brought home , his house repayred , his parke pailed and the like , and for that end would giue some lesser parcels to sundry others , of twentie , thirtie , fortie or fiftie acres ; reseruing the seruice of ploughing a certaine quantitie or so many clayes of his land , and certaine haruest workes or dayes in the haruest to labour or to repaire the house , parke , pale , or otherwise , or to giue him for his prouision , capons , hens , pepper , commin , roses , gillyflowers ; spurres , gloues , or the like ; or to pay him a certeine rent , and to bee sworne to be his faithfull tenant , which tenure was called a soccage tenure , and is so to this day , howbeit most of the ploughing and haruest seruices , are turned into mony rents . the tennants in soccage at the death of euery tennant were to pay reliefe , which was not as knights seruice , as fiue pound a knights fee. but it was , and so is still , one yeares rent of the land ; and no wardship or other profit to the lord. the remainder of the two thousand acres hee kept to himselfe , which hee vsed to manure by his bondmen , and appointed them at the courts of his mannor how they should hold it , making an entrie of it into the roll of the remembrances of the acts of the court , yet still in the lords power to take it away : and therefore they were called tennants at will , by coppie of court roll ; being in truth , bondmen at the beginning , but hauing obtained freedome of their persons , and gained a custome by vse of occupying their lands , they now are called coppie-holders , and are so priuiledged , that the lord cannot put them out , and all through custome . some coppie-holders are for lifes , one , two , or three successiuely ; and some inheritances from heire to heire by custome , and custome ruleth these estates wholly , both for widdowes estates , fines , harriots , forseitures , and allother things . mannors being in this sort made at the first , that the lord of the mannor should hold a court which is no more then to assemble his tenants together , at a time by him to be appointed ; in which court , he was to be informed by oath of his tenants , of of all such duties , rents , releases , wardships , copie-holds or the like , that had hapned vnto him ; which is called a court baron , and herein a tennant may sue for any debt or trespasse vnder 40l l value , and the freeholders are to iudge of the cause vpon proofe prosecuted vpon both sides . and therefore the free holders of these mannors , as incident to their tenures do hold by suit of court which is to come to the court , and there to iudge betweene partie and partie in those pettie actions . and also to enforme the lords of the duties of rents and seruices vnpaid to him from his tennants . by this course it is discerned who be the lords of lands , such as if the tennants dye without heire , or bee attainted of felonie or treason , shall haue the land by escheat . now concerning what attainders shall giue the escheat to the land is to bee noted , that it must eyther bee by iudgement of death giuen in some court of record against the felon found guiltie by verdict , or confession of the felonie , or it must bee by out-lawrie of him . the out-inwrie groweth in this sort , a man is indicted for felonie , being not in hold , so as hee cannot bee brought in person to appeare and to bee tryed , insomuch that processe of capias is therefore awarded to the sheriffe , who not finding him returneth non est inventus in balliva mea ; and therefore , another capias is awarded to the sheriffe , who likewise not finding him maketh the same returne , then a writ called an exigent is directed to the sheriffe , commaunding him to proclaime him in his countie court fiue seuerall court dayes to yeeld his body , which if the sheriffe doe , and the partie yeeld not his body , hee is sayd by the default to bee outlawed , the coroners there adjudging him out-lawed , and the sheriffe making the returne of the proclamations and of the judgement of the coroners , vpon the backside of the writ . this is an attainder of felonie , whereupon the offender doth forfeit his lands by an escheat to the lord of whom they are holden . but note that a man found guilty of felonie by verdict or confession , and praying his cleargie , preuenteth the judgement of death , and is called a clerke conuict , who looseth not his lands , but all his goods , chattels , leases and debts . so a man that will not answer nor put himselfe vpon tryall , although hee be by this to haue iudgement of pressing to death , yet hee doth forfeit no lands , but goods , chattels , leases and debts , except his offence bee treason , and then hee forfeiteth his lands to the crowne . so a man that killeth him-selfe shall not loose his lands , but his goods , chattels , leases and debts . so of those that kill others in their owne defence , or by misfortune . a man that beeing pursued for felonie , and flyeth for it , looseth his goods for his flying , although hee returne and is tryed , and found not guiltie of the fact. so a man indicted for felonie , if hee yeeld not his body to the sheriffe vntill after the exigent of proclamation is awarded vnto him , this man doth forfeit all his goods , for his long stay , although hee be found not guiltie of the felonie , but is not attainted to loose his lands , but onely such as haue iudgements of death by tryall vpon verdict of their owne confession , or that they be by iudgement of the coroners out-lawed as before . besides the escheats of lands to the lords of whom they be holden for lack of heires , and by attainder for felony ( which onely doe hold place in fee-simple lands ) there are also forfeiture of lands to the crowne by attainder of treason ; as namely , if one that hath entailed lands commit treason , hee forfeiteth the profits of the lands for his life to the crowne , but not to the lord. and if a man hauing an estate for life of himselfe or of another , commit treason or felonie , the whole estate is forfeited , but no escheat to the lord. but a coppie-hold , for fee simple or for life , is forfeited to the lord and not to the crowne ; and if it bee entailed , the lord is to haue it during the life of the offender , and than his heire is to haue it . the customes of kent is , that gauil-kind land is not forfeitable nor escheatable for felonie , for they haue an old saying ; the father to the bough , and the sonne to the plough . if the husband was attained , the wife was to loose her thirds in cases of felonie and treason , but yet she is not offender , but at this day it is holden by statute law that shee looseth them not , for the husbands felony . the relation of these forfeits are these . 1. that men attainted of felonie or treason by verdict or confession , doe forfeit all the lands they had at the time of their offence committed , and the king or the lord whosoeuer of them had the escheat or forfeiture , shall come in and auoid all leafes , acts , statutes , conueyances done by the offender , any time since the offence done . and so is the law cleare also if a man be attainted for treason by outlawry , but vpon attainder of felonie by outlawry , since it hath beene much doubted by the law-bookes , whether the lords title by escheat shall relate backe to the time of the offence done , or onely to the date or lefte of the writ of exigent for proclamation , therevpon he is outlawed ; howbeit at this day it is ruled that it shall reach backe to the time of his fact , but for goods , and chattels , and debts , the kings title shall looke no further backe then those goods , the partie attainted by verdict or confession , had at the time of the verdict and confession giuen or made . and in outlawries at the time of the exigent as well in treasons as felonies , wherein it is to bee obsaerued that vpon the parties first apprehension , the kings officers are to seize all the goods and chattels and preserue them together , dispending onely so much out of them as it is fit for the sustentation of the person in prison , without any wasting , or disposing them vntill conuiction , and then the propertie of them is in the crowne , and not before . it is also to bee noted , that persons attainted of felonie or treason , haue no capacitie in them , to take , obtaine or purchase , saue onely to thevse of the king , vntill the partie be pardoned . yet the partie giueth not backe their lands or goods without a speciall pattent of restitution , which cannot restore the bloud without an act of parliament . so if a man haue a sonne , and then is attainted of felonie or treason , and pardoned , and purchaseth lands , and then hath issue an other sonne and dyeth ; the sonne hee had before he had his pardon , although hee be his eldest sonne , and the pattent haue the words of restitution to his lands shall not inherit , but his second sonne shall inherit them . and not the first ; because , the bloud is corrupted by the attainder , and cannot be restored by pattent alone , but by act of parliament . and if a man haue two sons and the eldest is attainted in the life of his father , and dyeth without issue , the father liuing , the second sonne shall inherit the fathers lands , but if the eldest sonne , haue any issue , though he die in the life of his father , then neither the second son , nor the issue of the eldest , shall inherit the fathers lands , but the father shall there be accompted to dye without heire , and the land shall escheat whether the eldest sonne haue issue or not , afterward or before , though he be pardoned after the death of his father . propertie of lands by conueyance is , first distributed into estates , for yeares , for life , in tayle , and fee-simple . for estates for yeares , which are commonly called leases for yeares , they are thus made ; where the owner of the land agreeth with the other by word of mouth , that the other shall haue , hold , and enioy the land , to take the profits thereof for a time certaine of yeares , moneths , weekes and dayes , agreed between them ; and this is called a lease paroll ; such a lease may be made by writing pole or indented of deuise grant and to farme let , and so also by fine of record , but whether any rent be reserued or no , it is not materiall , vnto these leases there may bee annexed such exceptions , conditions and couenants , as the parties can agree of ; they are called chattels reall , and are not inheritable by the heires , but goe to the executors and administrators , and be sole able for debts in the life of the owner , or in the executors or administrators by writs of execution vpon statutes , recognizances , iudgements of debts or damages . they be also forfeitable to the crowne by outlawry , by attainder for treason , felonie , or premunier , killing himselfe , flying for felonie although not guilty of the fact , standing out and refusing to bee tryed by the country , by couiction of felonie , without iudgement , pettie larcerie , or going beyond the sea without licence . they are forfeitable to the crowne , in like manner as leases for yeares , or interest gotten in other mens lands by extending for debt vpon iudgement in any court of record , stat. marchant , stat. staple recognizances , which beeing vpon statutes are called tenants by stat. marchant , or staple . the other tenants by elegit , and by wardship of bodie and lands , for all these are called chattels reall , and goe to the executors and administrators , and not to the heires , and are soleable and forfeitable as leases for yeares are . lease for liues are also called freeholds , they may also bee made by word or writing , there must bee liuerie and seisen giuea at the making of the lease , whom we call , the lessor ; commeth to the doore , backside , or garden ; if it be a house , if not , then to some part of the land , and there he expresseth , that hee doth graunt vnto the taker ; called , the lessee , for tearme of his life : and in seisen thereof , hee deliuereth to him a turfe , twig , or ring of the doore , and if the lease bee by writing , then commonly there is a note written on the backside of the lease , with the names of those witnesses , who were present at the time of the liuerie of seisen made ; this estate , is not saleable by the sheriffe for debt , but the land is to bee extended for a yearely value , to satisfie the debt . it is not forfeitable by outlawrie , except in cases of felonie , nor by any of the meanes before mentioned , of leases for yeares ; sauing an in attainder for felonie , treason , premunire , and then onely to the crowne , and not to the lords by escheat . and though a noble man or other , haue libertie by charter , to haue all felons goods ; yet a tennant holding for tearme of life , being attainted of felonie , doth forfeit vnto the king and not to this noble man. if a man haue an estate in lands , for an other mans life , and dyeth ; this land cannot goe to his heire , nor to his executors , but to the partie that first entreth ; and he is called , an occupant . a lease for yeares or for life , may be made also by fine of record , or bargaine and sale , or couenant to stand seized vpon good considerations of marriage , or bloud , the reasons whereof , are hereafter expressed . entayles of lands , are created by guift ; with liuerie and seizen to a man , and to the heires of his bodie , this word ( body ) making the entaile , may be demonstrated and restrained to the males or females ; heires of their two bodies , or of the body of eyther of them , or of the body of the grand-father . entayles of lands began by a statute made in ed. 1. time , by which also they are so much strengthened , as that the tenant in tayle cannot put , away the land from the heire by any act of conueyance or attainder , nor let it , nor incomber it , longer then his owne life . but the inconueniencie thereof was great , for by that meanes , the land being so sure tyed vpon the heire as that his father could not put it from him , it made the sonne to bee disobedient , negligent , and wastfull ; often marrying withoutthe fathers consent , and to grow insolent in vice ; knowing , that there could bee no cheeke of dis-inheriting him . it also made the owners of the land lesse fearefull to commit murthers , felonies , treasons , and manslaughters ; for that they knew , none of these acts could hurt the heire of of his inheritance . it hindred men that had intayled lands , that they could not make the best of their lands by fine and improuement , for that none vpon so vncertaine an estate , as for terme of his owne life would giue him a fine of any valew , nor lay any great stocke vpon the land , that might yield rent improued . lastly , those entailes did defraud the crowne , and many subjects of their debts ; for that the land was not lyable longer then his owne life-time ; which caused , that the king could not safely commit any office of accompt to such , whose land were entailed , nor other men trust them with loane of money . these inconveniences , were remedied by acts of parliment ; as namely , by acts of parliament later then the acts of entailes , made , 4. h. 7. 32. h. 8. a tenant in taile may dis-inherit his sonne by a fine with proclamation , and may by that meanes also , make it subiect to his debts and sales . by a satute made , 29. h. 8. a tenant in taile , doth forfeite his lands for treason ; and by an other act of parliament , 32. h. 8. he may make leases good against his heire for 21. years , or three liues ; so that it be not of his cheife houses , lands , or demeasne , or any lease in reuersion , nor lesse rent reserued ; then , the tenants haue payed most part of 21. yeares before , nor haue any manner of discharge for doing wasts and spoiles , by a statute made 33 h 8. tenants of entayled lands , are lyable to the kings debts by extent , & by a stat. made 13. & 39. eliz. they are saleable for the arrerages vpon his accompt for his office ; so that now it resteth , that entayled lands haue two priuiledges onely , which bee these . first , not to be forfeited for felonies . secondly not to bee extended for debts after the parties death , except the entayles bee cut off by fine and recouerie . but it is bee noted , since these notable statutes and remedies prouided by statutes doe dock entayles , there is start vp a deuice called perpetuitie , which is an entayle with an addition of a proviso conditionall tyed to his estate , not to put away the land from his next heyre ; and if hee doe , to forfeit his owne estate . which perpetuities if they should stand , would bring in all the former inconueniences subiect to entayles , that were cut off by the former mentioned statutes and farre greater ; for by the perpetuitie , if he that is in possession start away neuer so little , as in making a lease , or selling a little quillet , forgetting after two or three descents , as osten they doe , how they are tyed , the next heyre must enter ; who peradventure is his sonne , his brother , his vncle or kinsman , and this raiseth vnkind suites setting all that kindred at jatres , some taking one part some another , and the principall parties wasting theyr time and money in suites of law. in the end , they are both constrained in necessitie to joyne both in a sale of the land , or a great part of it to pay theyr debts , occasioned through theyr suites ; and if the chiefest of the family for any good purpose of well seating himselfe , by selling that which lyeth farre off to buy that which is neerer , or for the advancement of his daughters or younger sonnes , should haue reasonable cause to sell the perpetuitie if it should hold good , restraineth him . and more then that , where many are owners of inheritance of land nor entayled , may during the minoritie of his eldest sonne appoint the profics , to goe to the aduancement of the younger sonnes and pay debts by entayle and perpetuities , the owners of these lands cannot doe it , but they must suffer the whole to discend to his eldest sonne , and so to come to the crowne by wardship all the time of his infancie . wherefore seeing the dangerous times and vntowardly heyres , they might preuent those mischiefes of vndoing theyr houses by conueying the land from such heyres , if they were not tyed to the stake by those perpetuities , & restrayned from forfeiting to the crowne , and disposing of it to theyr owne or to theyr childrens good . therefore , it is worthy of consideration , whether it bee better for the subject and soveraigne to haue the lands secured to mens names and bloods by perpetuities , with all inconueniences aboue-mentioned , or to bee in hazard of vndoing his house by vnthriftie posteritie . the last and greatest estate of lands in fee-simple , and beyond this there is none of the former for liues , yeares or entayles ; but beyond them , is fee simple . for it is the greatest , last and vttermost degree of estates in land ; therefore hee that maketh a lease for life , or a guift in tayle , may appoint a remainder when hee maketh another for life or in tayle , or to a third in fee-simple ; but after a fee-simple hee cannot limit no other estate . and if a man doe not dispose of the fee-simple by way of remainder , when hee maketh the guift in tayle , or for liues , then the fee-simple resteth in himselfe as a reuertion . the difference betweene a reuertion and a remainder , is this . the remainder is alwayes a succeeding an estate , appointed vpon the guifts of a precedent estate , at the time when the precedent is appointed . but the reuertion is an estate last in the giuer , after a particular estate made by him for yeares , life , or entaile ; where the remainder is made with the particular estates , then it must be done by deeds in writing , with liuerie and seisen , and cannot by words ; and if the giuer will dispose of the reuertion after it remaineth in himselfe , hee is to doe it by writing , and not by poll ; and the tenant is to haue a notice of it , and to atturne it , which is to giue his assent by word , or paying rent , or the like ; and except the tenant will thus atturne the partie to whom the reuertion is granted cannot haue the revertion , neither can he compell him by any law to atturne , except the grant of the reuertion be by fine ; and then , hee may by writ provided for that purpose : and if hee doe not purchase by that writ , yet by the fine , the revertion shall passe ; and the tenant shall pay no rent , except he will himselfe , nor bee punished for any wastes in houses , vnlesse it bee graunted by bargaine and sale by indenture in rolles ; these fee simple estates lye open to all perils , forfeitures , extents , incumbrances and sales . lands are conueyed by these 6. meanes ; first , by feofment , which is , where by deed lands are giuen to one and his heyres , and liuerie and seizein made accordingly to the forme and effect of the deed , if a lesser estate then fee-simple bee giuen and liuerie of seizein made it is not called a feofment , except the fee-simple bee conueyed . a fine is a reall agreement , beginning thus , haec est finalis corcordia &c. this is done before the kings iudges in the court of common pleas , concerning lands that a man should haue from another to him and his heyres , or to him for his life , or to him and the heyres males of his body , or for yeares certaine , whereupon rent may bee reserued but no condition or couenants . this fine is a record of great credit , and vpon this fine arc foure proclamations made openly in the common pleas ; that is , in euery terme one for foure termes together , and if any man hauing right to the same , make not his claime within fiue yeares after the proclamations ended , hee looseth his right for euer ; except he an insant , a woman covett , a mad man , or beyond the seas , and then his right is saued ; so that hee claime within fiue yeares after the death of her husband full age , recouerie of his wits , or returne frō beyond the seas . this fine is called a feofment of record , because that it includeth all that the feofment doth , & worketh further of his owne nature , and barreth intailes peremptorily whether the heyre doth clayme within fiue yeares or not , if hee clayme by him that leauied the fine . recoueries are where for assurances of lands the parties doe agree , that one shall begin an action reall against the other , as though hee had good right to the land , and the other shall not enter into defence against it , but alleadge that he bought the land of he who had warranted vnto him , and pray that i. h. may be called in to defend the title , which i. h. is one of the cryers of the common pieas , and is called the common voucher . this i. h. shall appeare and make as if he would defend it , but shall pray a day to bee assigned him in his matter of defence ; which being granted him at the day hee maketh default , and thereupon the court is to giue judgement against him which cannot bee for him to loose his lands , because hee hath it not ; but the partie that hee hath sold it to , hath that who vouched him to warrant it . therefore the demaundant who hath no defence made against it , must haue iudgement to haue the land against him that hee sued ( who is called the tenant ) and the tenant is to haue iudgement against l. h. to recouer in value so much land of his , where in truth hee hath none , nor neuer will. and by this deuice grounded vpon the strict principles of law , the first tenant looseth the land , and hath nothing for it ; but it is his owne agreement for assurance to him that bought it . this recouerie barreth entayles , and all remainders and reuersions that should take place after the entayles , sauing where the king is giuer of the fntayle and keepeth the reuersion to himselfe ; then neyther the heyre , nor the remainder , nor reuersion , is barred by the recouerie . the reason why the heires , remainders , and reuersions are thus barred , is because in strict law the recompence adjudged against the cryer that was vouchee , is to goe in succession of estate as the land should haue done , and then it was not reason to allow the heire the libertie to keepe the land it selfe , and also to haue recompence ; and therefore hee looseth the land , and is to trust to the recompence . this fleight was first invented , when entayles fell out to bee so inconvenient as is before declared , so that men made no conscience to cut them off , so they could finde law for it . and now by vse , those recoveries are become common assurances against entayles , remainders , and reversions , and the greatest security purchasers haue for their monyes ; for a fine will barre the heire in tayle , but not the remainder , nor reversion , but a common recovery will barre them all . vpon feofments and recoveries , the estate doth settle as the vse and intent of the parties is declared by word or writing , before the acts was done ; as for example . if they make a writing , that one of them shall leavie a fine , make a feosment , or suffer a common recoverie to the other ; but the vse and intent is , that one should haue it for his life , and after his decease , a stranger to haue it in tayle , and then a third in fee-simple . in this case the lord setteth an estate according to the vse and intent declared ; and that by reason of the statute made 27. henry 8. concerning the land in possession to him that hath interest in the vse or intent of the fine , feosment , or recoverie ; according to the vse and intent of the parties . vpon this statute is likewise grounded the fourth and fifth of the six conveyances , viz. bargaines , sales , covenants , to stand seized to vses ; for this statute , wheresoever it findeth an vse , conjoyneth the possession to it , and turneth it into like quality of estate , condition , rent and the like , as the vse hath . the vse is but the equity and honestie to hold the land in canscientia boni viri . as for example . i and you agree that i shall giue you money for your land , and you shall make no assurance of it . i pay you the money , but you made mee no assurance of it . yet the equitie and honestie to haue it is with mee ; and this equity is called the vse , vpon which i had no remedie but in chancerie , vntill this statute made 27. henry 8. and now this statute conjoyneth and containeth the land to him that hath the vse . i for my money paid to you , haue the land it selfe , without any other conveyance from you ; and is called a bargaine and sale. but the parliament that made the statute did foresee , that it would bee mischievous that mens lands should sodainly vpon the paiment of a little money bee taken from them , peradventure in an alehouse or a taverne vpon straineable advantages , did therefore grauely provide an other act in the same parliament , that the land vpon payment of this money should not passe away , except there were a writing indented , made betweene the said two parties , and the said writing also within six moneths , inrolled in some of the courts at westminster , or in the sessions rolles in the shire , where the land lyeth ; vnlesse it bee in cities or corporate townes , where they did vse to enroll deeds , and there the statute extendeth not . the fifth conveyance of a fine ; is a conveyance to stand seized to vses , it is in this sort ; a man that hath a wife and children , brethren and kinsfolkes , may by writing vnder his hand , and seale ; agree , that for him , they or any of their heires , hee will stand seized of his lands to their vses , eyther for life in tayle or fee , so as hee shall see cause ; vpon which agreement in writing , their ariseth an equitie or honestie , that the land should goe according to those agreements ; nature and reason , allowing these provisions , which equitie and honestie is the vse . and the vse beeing created in this sort , the statute of 27 , henry the eight , before mentioned ; conteyneth the estate of the land , as the vse is appointed . and so this convenant to stand seized to vses , is at this day since the said statute , a conveyance of land , and with this difference , from a bargaine and sale ; in that this needeth no enrollment as a bargaine and sale doth , nor needeth it to bee in writing indented , as bargaine and sale must , and if the partie to whose vse hee agreeth to stand seized of the land , bee not wife , or child , couzen , or one that hee meaneth to marry ; then will no vse rise , and so no conveyance ; for although , the law alloweth such weightie considerations of mariage and bloud to raise vses , yet doth it not admit so trifling considerations , as of acquittance , schooling , services , or the like . but where a man maketh an estate of his land to others , by fine , feofment or recoverie , hee may then appoint the vse to whom hee listeth , without respect of marriage , kindred , money or other things ; for in that case , his owne will and consideration , guideth the equity of the estate . it is not so when hee maketh no estate , but agreeth to stand seized , nor when hee hath taken anything , as in the cases of bargaine and sale , and covenant to stand to vses . the last of the six conueyances , is a will in writing ; which course of conveyance , was first ordained by a statute made 32. henry s. before which statute , no man might giue land by will ; except it were in a borrough-towne , where there was an especiall custome , that men might giue their lands by will ; as in london , and many other places . the not-giving of land by will , was thought to bee a defect at common law , that men vnawares or sudainely falling sicke , had not power to dispose of their lands , except they could make a feosment , or leavie a fine , or suffer a recoverie ; which lacke of time would not permit , and for men to doe it by these meanes , when they could not vndoe it againe , was hard ; besides , even to the last houre of death , mens minds might alter vpon further proofes of their children or kindred , or encrease of children or debt , or defect of servants , or friends to be altered . for which cause , it was reason that the law should permit him to reserue to the last instant , the disposing of his lands , and to giue him meanes to dispose it , which seeing it did not fidy serue , men vsed this devise . the conveyed their full estates of their lands in their good health , to friends in trust ; properly called feoffees in trust , and then they would by their wils declare how their friends should dispose of their lands and if those friends would not performe it , the court of chancery was to compell them , by reason of the trust ; and this trust was called , the vse of the land ; so as the feoffees had the land , and the partie himselfe had the vse , which vse was in equity , to take the profits for himselfe , and that the feoffees should make such an estate as hee should appoint them ; and if hee appointed none , then that the vse should goe to the heire , as the estate it selfe of the land should haue done , for the vse was to the estate , like a shadow following the bodie . by this course of putting lands into vse , there were many inconveniencies ; as this vse which grew first for a reasonable cause , viz. to giue men power and libertie to dispose of their owns , was turned to deceiue many of their just and reasonable rights ; as namely , a man that had cause to sue for his land , knew not against whom to bring his action , nor who was owner of it . the wife was defrauded of her thirds . the husband of beeing tenant by curtesie . the lord of his wardship , reliefe , heriot , and escheat . the creditor of his extent for debt . the poore tenant of his lease ; for these rights and duties were giuen by the law from him that was owner of the land , and none other . which was now the feoffee of trust , and so the old owner which wee call the feoffor should take the profits , and leaue the power to dispose of the land at his diseretion to the feoffee , and yet hee was not such a tenant to bee seized of the land as his wife could haue dower , or the lands bee extended for his debts , or that hee could forfeit it for felonie or treason , or that his heire could bee in warres for it , or any duty of tenure fall to the lord by his death , or that hee could make any leases of it . which frauds by degrees of time as they encreased , were remedied by diuers statutes ; as namely , by a statute of 1. henry , 6. and 4. henry , 8. it was appointed that the action may bee tryed against him which taketh the profits , which was then cesty and vse by a stature made , 1. richard , 3. leases and estates made by cesty and vse are made good , and estatutes by him acknowledged 4. henry , 7. the heire of cesty and vse is to bee in ward , 16. henry , 8. the lord is to haue reliefe vpon the death of any cesty and vse . which frauds neverthelesse multiplying dayly , in the end 27. henry 8. the parliament purposing to take away all those vses , and reducing the law to the the ancient forme of conveying of lands by publike liverie of seizen , fine , and recoverie ; did ordaine , that where lands were put in trust or vse , there the possession and estate , should bee presently carryed out of the friends in trust , and setled and invested on him that had the vses , for such tearme and time as hee had the vse . by this statute of 27. henry , 8. the power of disposing lands by will , is clearely taken away amongst those frauds , and so the statute did disponore justum cum imperio ; whereupon 32. henry , 8. an other statute was made , to giue men power to giue lands by will in this sort . first , it must bee by will in writing . secondly , hee must bee seized of an estate in fee-simple ( for tenant for an other mans life ) or terme in tayle , cannot giue land by will , by that statute 3. hee must bee solely seized , and not joyntly with an other ; and then beeing thus seized for all the land hee holdeth in soccage tenure , hee may giue it by the will except he hold any peece of land in capite by knight service of the king , and laying all his lackes together , he can giue but two parts by will ; for the third part of the whole , as well in soccage , as in capite must descend to the heire , to answere wardship , liverie and seizen , to the crowne . and so if hee hold lands by knights service of a subject , hee can devise of the lands but two parts , and the third , the lord by wardship , and the heire by descent is to hold . and if a man that hath three acres of land holden in capite by knights service , doe make a joynture to his wife of one , and convey an other to any of his children , or to friends , to take the profits , and to pay his debts or legacies , or daughters portions , then the third acre or any part thereof hee cannot giue by will , but must suffer it to descend to the heire , and that must satisfie wardship . yet a man having three acres as before , may convey all to his wife or children by conveyance in his life time , as by feolment , recoverie , bargaine and sale , or covenant to stand to vies , and to dis-inherit the heire . but if the heire bee within age , when his father dyeth , the king or other lord shall haue that heire in ward , and shall haue one of the three acres during the wardship , to sue liverie and seizen . but at full age the heire shall haue no part of it , but it shall goe according to the conveyance made by the father . it hath beene debated how the thirds shall bee set foorth , for it is the vse that all lands which the father leaveth to descend to the heire beeing fee simple , or in tayle , must bee part of the thirds ; and if it bee a full third , then the king , nor heire , nor lord , can intermeddle with the rest ; if it bee not a full third , yet they must take it so much as it is , and haue a supply out of the rest . this supply is to bee taken thus , if it bee the kings ward , then by a commission out of the court of wards , whereupon a iury by oath , must set downe so much as shall make vp the thirds , except the officers of the court of wards , can otherwise agree with the parties . if there bee no wardship due to the king , then the other lord is to haue a supply by a commission out of the chancetie , and a iury thereupon . but in all those cases , the statutes doe giue power to him that maketh the will to set foorth and appoint of himselfe , which lands shall goe for the thirds , and neither king nor lord can refuse it . and if it bee not enough , yet they must take that in part , and onely haue a supply in manner as before is mentioned out of the rest . propertie in goods . of the severall wayes whereby a man may get propertie in goods or chattels . 1. by guift . 2. by sale. 3. by stealing . 4. by waiuing . 5. by straying . 6. by shipwracke . 7. by forferture . 8. by executorship . 9. by administration . 10. by legacie . 1. propertie by guift by guift , propertie is when the property of goods may be passed by word or writing , but if there bee a generall deed of guift made of all his goods , this is suspirious to bee done vpon fraud , to deceiue the creditors . and if that a man who is in debt , make a deed of guift of all his goods to protract the taking of them in execution for his debt , this deed of guift is void , as against those to whom hee stood indebted , but as against himselfe his owne executors or administrators , or any man to whom afterwards hee shall sell or convey them , it is good . 2. by sale. propertie in goods by sale. by sale any man may convey his owne goods to another , and although hee may feare execution for debts , hee may sell them out-right for money at any time before the execution served , so that there be no reservation of trust betweene them , yet providing the money , hee shall haue the goods againe ; for that trust in such case , doth proue plainely a fraud to prevent the creditors from taking the goods in execution . 3. by theft or taking in iest. propertie of goods by theft or taking in iest. if any man steale my goods or chattels , or take them from mee in iest , or borrow them of mee , or as a traitor or felon carry them to the market or faire , and there sell them , this sale doth barre mee of the propertie of my goods , saving that if hee bee a horse hee must bee ridden two houres in the market or faire , betweene ten and fiue a clocke , and tolled for in the tolle-booke , and the seller must bring one to avouch his sale knowne to thee tolle-booke-keeper , or else the sale bindeth mee not . and for any other goods , where the sale in a market or faire shall barre the owner beeing not the seller of his propertie . it must bee sale in a market or faire where vsuall things of that nature are sold. as for example , if a men steale a horse , and sell him in smithfield , the true owner is barred by this sale ; but if he sell the horse in cheapeside , newgate or or westminster market , the true owner is not barred by this sale ; because , these markets are vsuall for flesh , fish , &c. and not for horses . so whereas by custome of london , every shop there is a market all the dayes of the weeke , sauing sundayes and holydayes ; yet , if a peece of plate , or iewell that is lost , or chaine of gold or pearle that is stolne or borrowed , be sold in a drapers or scriueners shop , or any others but a goldsmith , the sale barreth not the true owner , et sic in simili . yet by stealing alone of the goods , the thiefe getteth not such propertie , but that the owner may seize them againe wheresoever hee findeth them ; except they were sold in faire or market , after they were stolne ; and that bona fide , without fraud . but if the thiefe bee condemned of the felonie , or outlawed for the same , or outlawed in any personall action , or haue committed a forfeiture of the goods to the crowne , then the true owner is without remedie . neverthelesse if fresh after the goods were stolne , the true owner maketh persuit after the thiefe and goods , and taketh the goods with the thiefe , hee may take them againe ; and if hee make no fresh persuit , yet if hee prosecute the felon , soe farre as iustice requireth . this is to haue arraigned , indicted , and found guilty ( though hee bee not hanged , nor haue iudgement of death ) in all these cases hee shall haue his goods againe , by a writ of restitution , to the partie in whose hands they are . 4. by wayuing of goods . by wayuing of goods , a propertie is gotten thus . a thiefe hauing stolne goods beeing persued flyeth away and leaveth the goods , this leauing is called wauing , and the propertie is in the king ; except the lords of the mannor haue right to it , by custome or charter . but if the felon bee indicted or adjudged , or found guiltie , or outlawed at the suit of the owner of these goods , hee shall haue restitution of these goods , as before . 5. by straying . by straying , propertie in liue chattels , is thus gotten . when they come into other mens grounds , then the partie or lord into whose grounds or mannors they come , causeth them to bee seized , and a with put about their neckes , and to bee cryed in three markets adjoyning , shewing the markes of the chattell ; which done , if the true owner claymed them not within a yeare and a day , then the propertie of them is in the lord of the mannor whereunto they did stray ; if hee haue all strayes by custome or charter , else to the king. 6. wracke , and when it shall be said to bee . by shipwracke , propertie of goods is gotten . when a ship loaden is cast away vpon the coasts , so that no living creature that was in it when it began to sinke escapeth to land with life , then all those goods are said to bee wracked , and they belong to the crowne if they can bee found ; except the lord of the soyle adjoyning , can intitle himselfe vnto them by custome , or by the kings charter . 7. forfeitures . by forfeitures , goods and chattels are thus gotten ; if the owner bee outlawed , if hee bee indicted of felonie , or treason , or eyther confesse it , or bee found guilty of it , or refuse to bee tryed by peeres or iury , or bee attainted by iury , or flye for felony although hee bee not guilty , or suffer the exigent to goe foorth against him ; although he bee not outlawed , or goe over the seas without license , all the goods hee had at the iudgement , he forfeiteth to the crowne ; except some lord by charter can claime them . for in those cases prescripts will not serue , except it bee so ancient , that it hath had allowance before the iustices in eyre in theyr circuits , or in the kings bench in ancient time . 8. by executorship . by executorship , goods are gotten . when a man is possessed of gods maketh his last will and testament in writing or by word , and maketh one or more executors thereof ; these executors , haue by the will and ceath of the parties , all the propertie of their goods , chattels , leases for yeares , wardships and extents , and all right concerning those things . those executors may meddle with the goods , and dispose them before they proue the will , but they cannot bring an action for any debt or duety , before they haue proved the will. the prouing of the will is thus . they are to exhibite the will into the byshops court , and there they are to exhibite the will into the byshops court , and there they are to be sworne and the byshops officers are to keepe the will originall , and certifie the copie thereof in parchment vnder the byshops seale of office , which parchment so sealed , is called the will proved . 9. by letters of administration . by letters of administration , propertie in goods is thus gotten . when a man possessed of goods dyeth without any will , there such things as the executors should haue had if he had made a will , were by ancient law to haue come to the byshop of the diocesse , to dispose for the good of his soule that dyed , he first paying his funerals and debts , and giving the rest ad pios vsus . this is now altered by statute lawes , so as the bishops are to graunt letters of administration of the goods at this day to the wife if shee require it , or children or next of kin ; if they resnse it as often they doe , because the debts are greater then the estate will beate , then some creditor or some other will take it as the byshops officers shall thinke meet . it groweth often in question what byshop shall haue the right of proving wills , and graunting administration of goods . in which controuersie the rule is thus . that if the partie dead had at the time of his death bona notabilia in diuers diocesse of some reasonable value , then the arch-bishop of the prouince where hee dyed is to haue : the apptobation of his will , and to graunt the administration of his goods as the case falleth out ; otherwise , the bishop of the diocesse where hee dyed is to doe it . if there bee but one executor made , yet hee may refuse the executorship comming before the bishop , so that hee hath not entermedled with any of the goods before , or with receiuing debts , or paying legacies . and if there bee more executors then one , so many as list may refuse ; and if any one take it vpon him , the rest that did once refuse may when they will take it vpon them , and no executor shall bee further charged with debts or legacies , then the value of the goods come to his hands ; so that hee fore-see , that hee pay debts vpon record , debts to the king ; then vpon iudgements ; statutes , recognizances , then debts by bond and bill sealed , rent vnpayed , seruants wages , payment to head workmen ; and lastly , shop-bookes , and contracts by word . for if an executor , or administrator pay debts to others before to the king , or debts due by bond before those due by record , or debts by shop-bookes and contracts before those by bond , arrerages of rent , and seruants wages , hee shall pay the same ouer agains to those others in the sayd degrees . but yet the law giueth them choyce , that where diuers haue debts due in equall degree of record or specialty , hee may pay which of them hee will , before any suite brought against him ; but if suite bee brought hee must first pay them that get iudgement against him . any one executor may conuey the goods , or release debts without his companion , and any one by himselfe may doe as much as altogether ; but one mans releasing of debts or selling of goods , shall not charge the other to pay so much of the goods , if there bee not enough to pay debts ; but , it shall charge the party himselfe that did so release or conuey . but it is not so with administrators , for they haue but one authoritie giuen them by the bishop ouer the goods , which authoritie beeing giuen to many is to bee executed by all of them joyned together . and if an executor dye making an executor , the second executor is executor to the first testator . but if an administrator dye intestate , then his administrator shall not bee executor to the first ; but in that case the bishop , whom wee call the ordinarie is to commit the administration of the first testators goods to his wife , or next of kinne , as if hee had dyed intestate ; alwayes prouided , that , that which the executor did in his life-time , is to bee allowed for good . and so if an administrator dye and make his executor , the executor of the administrator shall not bee executor to the first intestate ; but the ordinarie must new commit the administration of the goods of the first intestate . againe , if the executor or administrator pay debts , or funerals , or legacies of his owne money hee may retaine so much of the goods in kind of the testator or intestate , and shall haue propertie of it in kind . 10. propertie by logacie . propertie by legacie , is where a man maketh a will and executors , and giueth legacies , hee or they to whom the legacies are giuen must haue the assent of the executors or one of them to haue his legacie , and the propertie of that lease or other goods bequeathed vnto him , is sayd to bee in him ; but hee may not enter nor take his legacie without the assent of the executors or one of them ; because , the executors are charged to pay debts before legacies . and if one of them assent to pay legacies hee shall pay the value thereof of his owne purse . but this is to bee vnderstood , by debts of record to the king , or by bill and bond sealed , or arrerages of rent , or seruants or workmens wages ; and not debts of shop-bookes , or bills vnsealed , or contract by word ; for before them legacies are to bee payed . and if the executors doubt that they shall not haue enough to pay euery legacie , they may pay which they list first ; but they may not sell any speciall legacie which they will to pay debts , or a lease of goods to pay a money legacie . but they may sell any legacie which they will to pay debts , if they haue not enough besides . if a man make a will and make no executors , or if the executors refuse , the ordinarie is to commit administration cum testamento annexo , and take bonds of the administators to performe the will , and hee is to doe it in such fort , as the executor should haue done if hee had beene named . finis . notes, typically marginal, from the original text notes for div a20578-e890 arist. top. lib. 1. cap. 12. 13. 14. grounds . uide 12. h. 7. 13. a. davers com. 121. b. stamford . maximes . principles . 〈◊〉 vide com. 345. a. eruditions . vide 14. hen. 8. 28. a. pollard 24. hen 8. 40 dyer . nu 66. 3 ed. 4. 7 a. lit. vide 33. hen. 6. 54. a. 44. ed. 3. 34. b. lawes positiue . lawes . vide 9. hen. 4. 59. b. paston . li. 1. f. de reg. iuris . 〈◊〉 . colth . 17. b. prateus de reg : iuris lib. 6. ioach. hopp . de iuris arte 371. a. sim. shardius lexic . iuris regul . matheus gribaldus l. 1. c. 7. de ratione studij iuris . paulus lib. f. de regula iuris . ant masae de exercitio iurispr . lib. 1. ioach. hopperus de iurit arte l. 2. so . 469. a. definition , diuision . de causis . arist 11. met. c. 4. t. 23. arist. l. 2. dem. c. 11. to. 11. ant. masae de exercitio iurisperitorum l. 1. p 38. b. materiall cause blacton lib. 1. cap. 4. § 4. grounds borrowed out of logicke . 14. h. 831. a. b. 28. b. 8. 10. b. n. 37. dyer . com. 213. b. com. 323. b. 9. hen. 7. 24. a. com. 161. a. 2. rich. 3. 7. a. grounds borrowed out of naturall philosophie . com. 307. a. com. 307. a. com. 72. b. com. 268 a. com. 294. a 8. ed. 4. 10. a. grounds borrowed out of motrall phylosophie . com. 244 a. 14 hen. 8. 6. a. com. 501. a. 13. hen. 8. 16. a. 14. hen. 8. 16. a. 14. hen 8. 8. a. com 160. b. com. 370. b. com. 48. b. grounds borrowed out of the ciuill law. com. 357. b. 5. hen 3. 222. com. 168. a. com. 296 b. com. 336. b. com. 251. a. com. 182. b. 1. hen 3. 33. 〈◊〉 . l. verum . §. tempus : fitz . pro soc . l. sedes de rescript . l. bona fides ff . de reg. iuris . l. nihil ff : de regul iuris . 13. hen. 8. 16. 〈◊〉 . in fine . com. 260. a. halls case . com. 259. b. halls case com. 160. b. throgm . case . com. 504. b. groundes borrowed out of the canon law. grounds deriued from vse , custome , and conuersation of men . com. 5 : 5. a. paramour . manxel . 6. a. b. com. 261. a. hallsc●s . 8. hen. 6. 19. b. per. martin . prouerbiall groundes . prouerbium vulgò interpretatur probatum verbum , cum dicatur quasi commune omxium verbum . prouerbia verò citata , instar iurium baberi tradium est . l. solent . f. de officio procurat . sim. sbardius lexicon iuris . com. 280. a. com. 173. a. com. 18. b. 29. eliz 356. a. 14. hen. 8. 23. a. maximes appliable onely to one title . t. e. 1. fitzb. grantes . 36. ass. p. 3. 17. ed. 4. 1. a. vide 18. ed. 3. 2. a. bracton lib. 2. c. 16 fol 33. b. 14. hen 8. 22. b. brudnel . vide litt. 18 : 21. hen. 7. 37. b. the diuers kinds of grounds which doe concern one title . arbitrement . arbitrement quid. the etymologie . the materiall cause . the formall cause . the efficient cause . the finall cause . genus . differentia . the effect . 2 the adiunct . materiall cause reall matters reall actions mixt actions . personall actions . reall chattells personall chattells . personall dutie . matters de record . dutie in certaine . dett . debt . dett . formall cause . impossible . encounter ley. satisfaction . assistance des auters . iudiciall act. satisfaction . redeliuerie desbiens . redeliuerie des biens . parte del chose . part del chose plus que il doit . gager de ley. entermariage . accomptera iour passe . non in rerum natura . reasonable . equall . enter ascunes parties . quitt . quitt . petit. recompence . grenider value que le tort . release . release . doue● ceo que il nad . bone parte security del agard . certaine . entier . efficient cause . iohannes paulus lancelottus . arbitrator quid. ordinance . authoritie duety . election of the arbitratour . queux persons poient eux submitter al agarde . deputy . baron & feme . enfant . ascuns des parties . ioynt et seuerall . ascunes des parties . vndertaking the award . del parcell . parcell . parcell . compromise on submission . nient containe in submission . nient containe in le submission . real . estrangler . incident . iudge . estranger . estranger . estranger . aduice . adul● . vmpier . vmpier . duty . pronounce . deliuery de agard deliuery . deliuery . deliuery . county et lieu del deliuery . temps . temps . temps . temps . temps . temps . notice . notice . notice . notice . countre 〈◊〉 countermaund . countermaund . countermaund . regule a causa finali . final determination . a reducer incertainetie al certainetie . iudgement . intent del arbitrator . intent . intent . transition in rem iudicatam . i●rnient venu par pay se mony . iour de payment vncore prist . dene action . restore al primer action . restore al primer action . determine . double action . collaterall matter . collaterall matter . performance . assistance . parte . parte . temps . primer act. tout 〈◊〉 〈◊〉 chacun perform son parte voide award quaere . void agard . ane●ment . paria . differentia . arist. lib. dem. cap. 25. t. 43. peter ramus li. 2. dial . cap. 3. peter ramus ibidem . arist. top. lib. 1. cap. 1. arist. lib. 1. dem . cap. 8. t. 24. arist. lib. 1. dem . cap. 2. t. 5. 10. coras . de arte iuris . lib. cap. 24. ibidem . com. griesbr . 180. b. probabilia sunt qua probant , autoribus , aut plurimis aut certe sapientibus atque ijs vel omnibus vel plurimis vel ijs quo rum spectata est & perspecta sapientia . arist. top. l. 2. c. 1. doctor and student l. 1. c. 5. fol. 1 c. a. arist. l. 1. c. 2. t. 5. ant. massaeus l. 1. de exercitio iuris peritorum . com. sharington & pledal . iohannes corassus de turis arte cap. 26. lib. 1. ioach. hopp . de iuris arte lib. 2. sol . 466. ibidem . com. mauxel . 6. a. com. ludford 491. b. lamberts iustice of peace . lib. 1. cap. 13. 38. ass. 21. 9. hen. 6. 56. b. 31. hen. 6. com. fogassa . 7. b. the second sort of secondarie rules grounded vpon entendment . 20. hen. 7. 11 b. coningsby . 5 hen. 7. 22. b. 20. hen. 7. 11. b. coningsby . com. wrotsley . 193. b. the second principall kind of contingent propositions . 12. hen. 3. 2. b. eliot . ethice verò supponitur quasi morali scientiae , qui tractat de moribus . bract. l. r. c. 1. 4. b. arist. ethic. l. 1. c. 3. bracton . l. c. 5. lib. 1. cap. 16. l. quaesit f. de sando instructio . the triple vse of equity in the lawes . lib. 1. c. 4. §. 5. com. 467 bracton lib. 1. cap. 2. 〈◊〉 . 7. 4. hen. 7. cicero in orat. pro murena . the ground . 12. hen. 8. 2. b. elliot . 21. hen. 7. 27. b. kingsoul . rede 21. hen. 7. 13. b. rede . 13. hen. 7. 9. b. 14. hen. 8. 1. b. brudnel . 18 ed. 4. 25. a. 9. ed 4. 35. a. 21. hen. 7. 13. 8. ed. 4. 4. a. 2. hen. 4. 24. a. 38. ed. 3. 10. b. the first exception . 12. hen. 8. 10. a. brooke . 13. hen. 8. 16. b. shellye . 8. edw. 4. 35. b. littleton . 21. hen. 7. b , ringsmil . 13. edw. 4. 9. a. the second exception . 9 edw. 4. 35. a. b. 20. hen. 6. 28. a. 21. hen. 6. 39. b. 9. edw. 4. 35. a. littleton . 37. hen. 6. 37. a. b. the third exception . com. kidw. & braud . 71. d. com. kidw. & praud . 71. b. 18. edw. 4. 25. b. 9 ed. 4 25. a. 13 hen 8. 15. b. englefeild . 9. hen. 6. 23. b. 2. hen. 6. 15. b. 16. a. the fourth exception . com. mauxel 13. a. littleton villenage . com. mauxel 13. a. com. mauxel 13. a. 11. hen. 4. 75. b. exceptions ministred by equitie . the fist excep tion . 12. hen. 8. 2. b. pollard . 13. hen. 8. 15. b. norwich . 21. hen. 7. 27. b. palmes . 20. hen 6. 37. a. the sixt exception . 13. hen. 8. 16. b. browne . 6. ed. 4. 7. b. doctor and student . ver . 10. ed. 4. 7. b. 22 ed. 4. 8. b. 6. ed. 4. 7. b. com. colib . 27. a. the second ground . first exception littleton garranty 279. littleton discents cas . 402. 20. hen. 6. 28. b. 11. ed. 4. 1. b. the second exception . litt. fol. 59. cas . 403. 9. hen 7. 24. a. 2. ed 4. 24. a. 7. ed. 4. 7b . 20 hen , 628 , b. com. z●ueb . 366. a. 42. ed. 3. 12. b. 9. hen. 7. 24. a. 41. ed. 3. 12. b. 9. hen 7. 24 a. litt fol. 95. cas . 404. 3. 4. phil. mar. 144. n. 57. com. 72. b. com. 268 a. com. 294. a. prataus . prataeus l. 7. c. 3. fol. 911. decius . 37. hen. 8. brooke . leasses 48. com. smith & stapleton 433. a. com. greisbrooke 422. a. 5. ed. 4. 6. per billing quod fuit concessum & abridge per fitzb. tit . assiss . 27. com. 57 b. com. st. well 372. b. the vse of generall rules and the observations of their specialls . question . answere 1. 2 3 4 arist. l. 3. pol. c. 7 cic. 1. offic. iohane● corasius de a●e 〈◊〉 lib. 1. cap 20. 33. hen. 8. 48. b. n. 1. dyer . 9. hen 4. 8. a. 3 4 9. hen. 4. 8. a. stamf. 155. a. cap. 62. stamf. 98. b. 22. ed. 4. 39. b. 11. hen. 4. 69. a. culpepper . 7. hen. 4. 35. b. m. t. cicero pro ceci●a . com. colthurst . 14. hen. 7. 3. b. 20 hen. 7. 13. b. 1. hen. 7. 4. b. 49. ed. 3. 5. a. 50 assis. p. 1. 9. eliz. 262. 25. ed. 3. 48. a. b. com. walsingh . bracton li. 1. cap. 1. 〈◊〉 . 3. math. gribal dus deratione study juris lib. 1. cap. 4. notes for div a20578-e27980 ☞ suretie to keepe the peace . ☞ action of the case , for slaunder , batterie , &c. ☞ appeale of murther giuen to the next of kinne . ☞ manslaughter , and when a forfeiture of goods , and when not . ☞ felon : de se. ☞ felony by mischance . ☞ deodand . ☞ cutting out of tongues and putting out of eyes , made felonie . ☞ the office of the constable . ☞ 2. high constables for euery hundred . first , high constables . 2ly , pettie constables . 1. pettie constable for euery village . ☞ the kings bench first instituted , and in what matters they anci ancuntly had inrisatction in . ☞ court of marshalsee erected , and its jurisaiction within 12. miles of the chiefe tunnel of the king , which is the full extent of the virge . sheriffes tourne instituted vpon the diuision of england into counties , the charge of this court was committed to the earle of the same countie , this was likewise called curia visus fra . pleg . ☞ subdiuision of the countie court into hundreds . the charge of the countie taken from the earles , and committed yearely to such persons as it pleased the king. the sheriffe is judge of all hundred courts not giuen away from the crowns . ☞ county court kept monethly by the sheriffe . ☞ the office of the sheriffe . ☞ hundred courts to whom they were at first granted . ☞ lord of the hundred to appoint two high constables . of what matters they enquire of in leets and law dayes . ☞ conseruators of the peace called by the kings writ for terme of their lines , or at the kings pleasure . ☞ conseruators of the peace & what their office was . ☞ conseruators of the peace by vertue of their office. ☞ justices of peace ordained in lieu of conseruators . power of placing and displacing iustic . of peace by vse deligated frō the k. to the chanchellor . ☞ the power of the iust. of peace , to fine the offenders to the crowne , & not to recompence the partie grieued . parle statut. 17. r. 2. cap. 10. & v dier 69. b. ils ount poiar d'inquier de murder car co felon . ☞ authority of the justices of the peace , through whō runne all the countie seruices vnto the crowne . ☞ beating , killing , burning of houses . attachments for suretie of the peace . recognizance of the peace deliuered by the justices at their sessions . ☞ quarter sessions held by the iustices of the peace . the authoritie of iustices of the peace out of their sessions . ☞ iudges of assize come in place of the ancient iudges in eyre about the time of r. 2. 1. kings bench. 2. marshals court 3. countie courts . 4. sheriffes torns . 5. hundred leets and lawdayes , all which dealt onely in crowne matters , but the iustice in eyre dealt in priuat titles of lands or goods , and in all treasons and felonies , of whom there were 12. in number , the whole realme , being diuided into six circuits . the authoritie of tournes , leets . hundreds , and law-dayes , as it was confirmed to some special causes touching the publike good . england diuided into six circuits , and two learned men in the lawes , assigned by the kings commission to ride twice a yeare through those shires alotted to that circuit , for their try all of priuate titles to lands and goods , and all treasons and felonies , which the countie courts meddle not in . ☞ the authority translated by parliament to iustices of assize . ☞ the authority of the iustices of assizes much lessened , by the court of common pleas , erected in h. 3. time . the iustices of assize haue at this day 5. comissions by which they ist . 1 oyer and termin . 2 goale deliuery . 3 to take assizes . 4 to take nisi pr. 5 of the peace . ☞ oyer and terminer in which the judges are of the quorum , and this is the largest commission they haue . ☞ goale deliuery directed onely to the iudges themselues , and the clearke of the assize . the mannerof the proceedings of the justices of circuits in their circuits . the course now in vse with the iudges for the execution of the commission of goale deliuery . ☞ book allowed to clergic for the scarcitie of them to bee disposed in religious houses . ☞ concerning the allowing of the clergie to the prisoner . clergie allowed in all offences except treason and robbing of churches , and now taken away by many statutes . 1. in treason . 2. in burgiarie . 3. roberie . 4. purse cutting . 5. horse-stealing . and in diuers other offences particularized in seuerall statutes . by the stat. of 18. eliz. the iudges are appointed to allow clergie , and to see them burned in the hand , & to discharge the prisoners without deliuering them to the bishop . ☞ 4. commission is to take nisi prius and this is directed to the two iudges and the clerks of the assize . nisi prius . uen fac . pr. 24. free-holders . * distringas . the manner of proceeding of iustices of circuits in their circuits . the course the iudges bold is their circuits in the execution of their commissiō concerning the taking of nisi prius . postea . ☞ 5. commission as a commission of the peace . the justices of the peace and the sheriffe are to attend the judges in their countie . ☞ ospropertie of lands to bee gained by entrie . all lands in england were the conquerours and apprepriated to him vpon the conquest of england , and held of him except , 1. religious and church-lands . 2. the lands of the men of kent . land left by the sea belongeth to the king. occupancie . ☞ propertie of lands by discent . of discent 3. rules . brother or sister of the halfe bloud shall not inherit to his brother or sister but only as a child to his parents . discent . customes of certains places . euery heire hauing land is bound by the binding acts of his aneestors if he be named . dier . 114. plowden . dier . 149. plowden . dauy and pepps case . heire charged for his false plea. ☞ propertie of lands by escheat . two causes of escheat . first . bastardy . second attainter of treason , selome . ☞ treason . attainder of treason the king though the lands be not holden of him otherwise in attainder of felonie , &c. for there the king shall haue but annum diem & vastum . ☞ in escheat two things are to bee obserued . 1. the tenure . 2. the manner of the attainder , all lands are holden of the crowne immediatly or mediately by mesne lords , the reason . concerning the tenure of lands . ☞ the conqueror by right of conquest got all the lands of the realme into his hands , & as he gaue it hee still cap. first instituted refer●●drents and seruices knights seruice , in the reseruations in knights seruice tenure was 4. 1. marriage of the wards male and female . 2. horse for seru. 3. homage & ●al . 4. primer seisni . ☞ the police of the conquerour in the reseruation of seruices constituted i●●●ure particulars , was to haue the marriage of his wards both male and female . interest of marriage goeth employed in euery tenure by knights seruice . ☞ reseruation that his tenant shold keepe a horse of seruice , and serue vpon him himselfe , when the king went to warres , which is a part of that seruice called knights seruice . ☞ 3. institution of the conquerour was that his tenant ; by knights seruice vow vnto loyeltie , which he called homage , and make vnto him oath of his faith which was called fea tie . ayd money to make the kings eldest son a knight , or to marry his eldest daughter is likewise due to his maiestie from euery one of his tenants in knights seruice , that hold by a whole feo 20 1. and from euery tenant in soccage if his land be worth 10. pounds per ann . 20. 5. vide n. 3. fol. 82. 1. homage . 2. fcaltie . ☞ 4. institution was for recognizon of the kings bountie to bee payd by euery heire vpon the death of his a ancestor , which is one yeares profit of the lands , called , primer seissin . escuage was likewise due vnto the king from his tenant by knights seruice , when his maiestre made a voyage royall to warre against another nation , those of his tenants that did not attend him there for 40. dayes with horse and furniture fit for seruice , were to bee assessed in a certaine sum ne by act of parliament , to bee payed vnto his maiesty , which assessement is called escuage . ☞ knights seruice in capite , is a tenure de persona regis . tenants by grand serjantie , were to pay reliefe at the full age of euery heire , which was one years value of the lands so held vltra repriss . grand serjantie . pettie serjantie . the institution of soccage in capite and what it is now turned into monies reuts . antient demeasne texure , what ? ☞ office of alienation . a●ence of alienation is the third part of one yeres value of the land moderately rated . ☞ aid , a summe of mony ratably leauied according to the proportion of the lands . euery tenant by knights seruice in capite , had to make the kings eldest son a knight , or tomarry his eldest daughter . tenants by soccage in cap. must sue liuerie and pay primer seisin , and not to bee in ward for bodie or land. ☞ how mannors were at first created . mannors created by great men in imitation of the policie of the king in the institutions of tenures . knights seruice tenure reserued to common persons . knights seruice tenure created by the lord is not a tenure by knights seruice of the person of the lord , but of his mannor . reliefe is 5 l. to bee paid by euery tenant by knights seruice to his lord vpon his entrance respectiuely for euery knights fee descended . soccage tenure reserued by the lord. ☞ reliefe of tennant in soccage one yeares rent and no wardship or other profit vpon the dying of the tenant . ayd mony and esctiage mony is likewise due vnto the lords of their tenants , ride n. 3. fol. 82. and 83. uillenage or tenure by coppie of court roll. ☞ court baron with the vse of it . suit to the court of the lord incident to the tenure of the free-holders . ☞ what attainders shall giue the escheat to the lord. attainders , 1. by iudgement . 2. by verdict confession . 3. by outlary giue the lands to the lord. ☞ of an attainder by out . lawrie . ☞ prayer of clergie . ☞ he that standeth mute forfeiteth no lands , except for treason . ☞ hee that killeth himselfe forfeiteth but his chattels . ☞ flying for felony , a forfeiture of goods . ☞ he that yeeldeth his body vpon the exigent for felonie forseiteth his goods . ☞ lands entailed , escheat to the king for treason . ☞ tenant for life committeth treason or felonie , there shall be no escheat to the lord. ☞ the wife looseth no power not-withstanding the hus band be attainted of felonie . ☞ attainder in felorie or treason by verdict , confession , or outlary , forfeiteth all they had from the time of the offence committed . of the relation of attainders , as to the forfeiture of lands and goods , with the diuersity . and so it is vpon an attainder of outlawrie , otherwise it is in the attainder by verdict , confession , and outlawrie as to their relation for the forfeiture of goods and chattels . the kings officers vpon the apprehension of a felon are to sesze his goods and chattels . ☞ a person attainted may purchase but it shall be to the kings vse . ☞ there can be no restitution in bloud . without act of parliament but a pardon enableth a man to purchase and the heire begotten after shall inherit those lands . ☞ propertie of land by conueyance diuided into 1. estates in fees. 2. in tayle . 3 for life . 4. for yeeres . lease paroll . lease by writing . pole or indented . a rent need not to be reserued . lease for yeares they goe to the executors and not to the heires : leases are to bee forfeited by attainder . 1. in treason . 2. felonie . 3. premunire . 4. by killing himselfe . 5. for flying . 6. standing out or mute , or refusing to bee tryed by the country . 7. by conuiction . 8. pettie larcerie . 9. going beyond the sea without license . by what means they are forfeitable . ☞ extents vpon stat. staple , marchant , elegit , wardship of bodie and lands are chattels and forfeitable in the same manner as leases for yeares are . ☞ lease for life is not forfeitable by out lawry except in cases of eclonie or premunire and then to the king and not to the lord by eseheat and it is not forfeited by any of the meanes before mentioned of of leases for yeares . what liuerie of seisien is , and how it is requistie to euery estate for life . indorsement of liuerie vpon the backe of the deed and witnesses of it . lease for life not to bee sould by the sheriffe for debt but extended yearely . ☞ a man that hath bona felon , by charter shall not haue the tearme if leaser for life be attainted . ☞ occupant . ☞ of estate tailes and how such an estate may be limited . ☞ by the stat. of west . 1. made in e. 1. time estates in tayle were so strengthened they were not forfeitable by any attainder . ☞ the great inconuenience that ensued thereof . ☞ the prejudice the crowne received thereby . the stat. 4. h. 7. and 32. h. 8 to bar estates taile by fine . 26. h. 8. 32. h. 8. 33 h 8. 13. & 39. eliz ent eyles two priuiledges . 1 not forfeitable for felonie . 2. ly not extendable for the debts of the partie after his death proviso , not to put away the land from his next heyre . if he do to forfeit his owne estate , and that his next heyre must enter . ☞ of the new devise called a perpetuitie , which is an entayle with an addition . these perpetuities would bring in all the former inconueniencies of estates tailes the inconueniencies of those perpetuities . ☞ quere whether it bee better to restraine men by those perpetuities from alienations or to hazard the vndoing of houses by vnthrifty posteritie . ☞ the last and greatest estate in land is fee-simple . a remainder cannot bee limitted vpon an estate in fee-simple . the difference betweene a remainder and a revertion . a revertion cannot bee granted by word . atturnement must be had to the grant of the revertion . the tenant not compellable to atturn but where the revertion is granted by fine . ☞ lands may be conueyed six manner of wayes . 1 by feofment . 2 by fine . 3 by recouerie . 4 by vse . 5 by couenant . 6 by will. what a feofment of land is . ☞ what a fine is , and how lands may bee conueyed hereby . fiue yeares non clayme barreth not . 1 an infant . 2 feme covert . 3 mad. man. 4 beyond sea. fine is a feofment of record . ☞ what recoueries are . common voucher one of the criers of the court. ☞ iudgement for the demaundant against the tenant in taile . iudgement for the tenant to recouer so much land in value of the common voncher . ☞ a recouery barreth an escheat taile and all reuersions and remaindments thereupon . ☞ the reason why a common recovery barreth those in remainder and reversions . ☞ the manie incōveniencies of estates in tayle brought in these recoveries , which are made now common conveyances and assurances for land. vpon fines , feofments , and recoveries , the estate doth settle according to the intent of the parties . ☞ bargaines sales and covenant to stand seized to a vse , are all grounded vpon one statute . ☞ what a vse is . before 27. h. 8. there was no remedie for a vse , but in chancerie . the stat. of 27. h. 8. doth not passe land vpon the payment of mony without a deed indented and enrolled . the stat. of 27. of h. 8. extendeth not into cities and corporate townes where they did vse to enroll deeds . ☞ a conueyance to stand seized to a vse . vpon an agreement in writing to stand seized to the vse of any of his kindred . a vse may be created and the estate of the land therevpon exccuted , by 27. h. 8. ☞ a convenant to stand seized to a vse needeth no enrolment as a bargaine and sale to ●se vse doth , so it bee to the vse of wife , child , or cozen , or one hee meaneth to marry . ☞ vpon a fine , feofment or recoverie , a man may limit the vse to whom hee listeth , without consideration of bloud , or money . otherwise , in a bargaine and sale or covenant . ☞ of the continuance of land by will. ☞ the not disposing of lands by will , was thought to bee a defect at the common law. ☞ the court that was invented before the stat. of 32. h. 8. which first gaue power to devise lands by will , which was a conveyance of lands to feoffors in trust , to such persons as they should declare in their will. ☞ the inconveniencies of putting lands into vse . ☞ the frauds of conueyances to vse by degrees of time , as they encreased , were remedied by the statutes . 1. h. 8. stat binding cesty and vse . 4. n 8. 1. r. 3. 4. h. 7. 16. h. 8. ☞ 27 h 8. taking away all u'es redu●●● the law to the ancient form of conveyances of land , by feofment , fine , and recoverie . ☞ in what manner the stat. of 32. h. 8. giueth power to dispose of lands by will. if a man bee seized of capite lands and soccage , he cannot devise but two parts of the whole . ☞ the third part must descend to the heire to answere guardship , livery and seizen to the crowne . ☞ a conueyance by deuise of capite lands to the wife for her ioynture , or to his children for ther good , or to pay debts is void for a third part , by 32. h. 8. ☞ but a conveyance by act executed in the life time of the partie of such lands to such vses is not void , but 〈◊〉 pa● : but if the heire 〈◊〉 〈◊〉 age , he shal ● one of the acres to be in wara . aflictis . aflictis ne . addere . ☞ entayled lands part of the thirds . the king nor lord cannot intermeddle if a full third part be left to descend to the heire . ☞ the manner of making supply when the part of the heire is not a full third . ☞ the stat. giueth power to the testator to set out the third himselfe , and if it bee not a third part , yet the king or lord must take that in part , and haue a supply out of the rent ☞ a deed of guift of goods to deceiue his creditors is void against them , but good against the executors admin . or vender of the partie himselfe . ☞ what is a sale bona fide and what not , when there is a priuate reseruation of trust betweene the parties . ☞ how a sale in market shall bee a barre to the owner . ☞ of markets and what markets such a sale ought to be made in . ☞ the owner may seize his goods after they are stolne . ☞ if the thiefe be condemned for felonie , or outlawed , or forfeit the stolne goods to the crowne , the owner is without remedie . ☞ but if hee make fresh persuit hee may take his goods from the thiefe . ☞ or if hee prosecuted the law against the thiefe and convict him of the same felonie he shall haue his goods againe , by a writ of restitution . ☞ executors may before probat dispose of the goods , but not bring an action for any debt . ☞ what probat . of the will is , and in what manner it is made . pij vsus . 〈◊〉 ☞ where the iutestate had bona notabilia in diuers diocesse , then the archbishop of that prouince where bee dyed is to commit the administration . ☞ executor may refuse before the bishop , if hee haue not intermedled with the goods . ☞ executor ought to pay , 1 iudgements . 2 stat. recogn : 3 debts by bonds and bills sealed . 4 rent vnpayed . 5 seruants wages 6 head workmen 7 shop-booke and contracts by word . ☞ debts due in equall degree of record , the executor may pay which of them hee please before suit commenced . ☞ any one executor may dot as much as all together , but if a debt be released and assets wanting , he shall only be discharged . ☞ otherwise of administrators . ☞ executor dyeth making his executor , the second executor shall be executor to the first testator . ☞ but otherwise , if the administrator dye making his executor , or if administration be committed of his goods . inboth cases , the ordinarie shall commit administration of the goods of the first iutestate . ☞ executors or administrators may reteyne ☞ executors or administrators may retaine ; because the executors are charged to pay some debts before legacies . ☞ legacies are to bee payed before debts by shopbookes , bils vnsealed , or contracts by word . ☞ executor may pay which legacie hee will first . if the executors doe want they may sell any legacie to pay debts . ☞ when a will is made and no executor named , administration is to bee committed cum testamento annexo . ecclesiastical cases relating to the duties and rights of the parochial clergy stated and resolved according to the principles of conscience and law / by the right reverend father in god, edward, lord bishop of worcester. stillingfleet, edward, 1635-1699. 1698 approx. 418 kb of xml-encoded text transcribed from 214 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2004-05 (eebo-tcp phase 1). a61555 wing s5593 estc r33861 13585131 ocm 13585131 100520 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a61555) transcribed from: (early english books online ; image set 100520) images scanned from microfilm: (early english books, 1641-1700 ; 1049:29) ecclesiastical cases relating to the duties and rights of the parochial clergy stated and resolved according to the principles of conscience and law / by the right reverend father in god, edward, lord bishop of worcester. stillingfleet, edward, 1635-1699. xxvii, [3], 393 p. printed by j.h. for henry mortlock.., london : 1698. reproduction of original in the union theological seminary library, new york. includes bibliographical references. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng ecclesiastical law -england. law reports, digests, etc. -england. 2004-02 tcp assigned for keying and markup 2004-02 aptara keyed and coded from proquest page images 2004-03 rina kor sampled and proofread 2004-03 rina kor text and markup reviewed and edited 2004-04 pfs batch review (qc) and xml conversion ecclesiastical cases relating to the duties and rights of the parochial clergy , stated and resolved according to the principles of conscience and law : by the right reverend father in god , edward , lord bishop of worcester . london , printed by i. h. for henry mortlock at the phoenix in st. paul's church-yard , 1698. to the reverend clergy of the diocese of worcester . my brethren , the following discourses do of right belong to you ; the substance of them being contained in what i delivered to you in several times and places , in the course of my visitations : in which i endeavoured to lay open the nature and dignity of your function , the rules you are to observe in the discharge of it , and to state and resolve the most important cases which relate to your duties and rights , according to the principles both of law and conscience . for i observed that some had spoken very well of the general nature of the ecclesiastical function , without a particular regard to the limitations of the exercise of it by our laws . others had endeavoured to give advice and counsel in point of law , who meddle not with the obligation of conscience . and therefore i thought it necessary to joyn both these together , that you might have a clear and distinct view of your duties in both respects . for in a matter of positive institution , where only the general duties are prescribed in scripture , and the bounds of the exercise of them depend upon the laws of the land , i could not see how any person could satisfie himself in the discharge of his duty , without a regard to both . for the care of souls in general , is a matter of wonderful weight and importance , and can never be sufficiently considered by those who are concerned in it . but no man among us takes upon him an indefinite care of souls , without regard to persons or places ; for that would produce confusion and endless scruples , and perplexities of conscience about the nature and obligation to particular duties , which cannot be prevented or removed without a right understanding the different respect all that have taken our holy function upon them , do stand in both to the church in general , and to that particular cure of souls which they are admitted to . the best way i know to represent them , is to consider the case of dominion and property ; and how far the vniversal obligation of mankind to promote each others good , is consistent with the care of their own and families welfare . adam had in himself the entire and original dominion over all those things , which after became the subject of particular property ; when his posterity found it necessary to make and allow several shares and allotments to distinct families , so as they were not to incroach , or break in upon one another . but the law of nature did not prescribe the way and method of partition , but left that to occupancy or compact : and so the heads of families upon their settlement in any countrey , had a twofold obligation upon them ; the first was to preserve the interest of the whole body , to which they still were bound , and were to shew it upon such occasions as required it . the next was to take particular care of these shares which belonged to themselves , so as to improve them for their service , and to protect them from the invasion of others . and although this division of property was not made by any antecedent law , yet being once made , and so useful to mankind , the violation of it , by taking that which is anothers right , is a manifest violation of the law of nature . i do not think , that the distribution of ecclesiastical cures , for the greater benefit of the people , is of so strict a nature ; because the matter of property doth not extend to this case in such a manner . but since an vniversal good is carried on by such a division far better than it could be without it , there is an obligation lying on all persons who regard it , to preserve that order which conduces to so good an end. and i cannot see how any persons can better justifie the breach of parochial communion as such , than others can justifie the altering the bounds of mens rights and properties , because they apprehend that the common good may be best promoted by returning to the first community of all things . if our blessed saviour , or his holy apostles in the first founding of churches , had determined the number of persons , or fixed the bounds of places within which those who were ordained to so holy a function , were to take care of the souls committed to them , there could have been no dispute about it among those who owned their authority . but their business was to lay down the qualifications of such as were fit to be imployed in it ; to set before them the nature of their duties , and the account they must give of the discharge of them ; and to exhort all such as under took it to a watchfulness , and diligence in their places ; but they never go about to limit the precincts , within which they were to exercise the duties incumbent upon them . when churches were first planted in several countries , there could be no such things expected as parochial divisions ; for these were the consequents of the general spreading of christianity among the people . as is evident in the best account we have of the settlement of the parochial clergy among us , after christianity was received by the saxons . which was not done all at once , but by several steps and degrees . it cannot be denied by any , that are conversant in our histories , that the nation was gradually converted from paganism by the succesful endeavours of some bishops and their clergy in the several parts of england . not by commission from one person ( as is commonly supposed ) but several bishops came from several places , and applied themselves to this excellent work , and god gave them considerable success in it . thus bizinus did great service among the west saxons ; and felix the burgundian among the east-saxons ; and the northern bishops in the midland-parts , as well as augustin and his companions in the kingdom of kent . and in these midland-parts , as christianity increased , so the bishops sees were multiplied ( five out of one ) and placed in the most convenient distances for the further inlarging and establishing christianity among the people . the bishops were resident in their own sees , and had their clergy then about them , whom they sent abroad , as they saw cause , to those places where they had the fairest hopes of success . and according thereto they either continued or removed them , having yet no fixed cures or titles . all the first titles were no other than being entred in the bishops register , as of his clergy , from which relation none could discharge himself , without the bishop's consent . but as yet the clergy had no titles to any particular places , there being no fixed bounds of parishes , wherein any persons were obliged to be resident for the better discharge of their duties . this state of an vnfixed and itinerant clergy was soon found to be very inconvenient ; and therefore all incouragement was given , where christianity most prevailed , for the building churches at a convenient distance from the cathedral , and setling a number of presbyters together there , which were after called collegiate-churches ; and the great and devout men of that time gave them liberal endowments that they might the better attend the service of god there , and in the countrey about them . but after that the several parts grew to be more populous , and lords of manors , for the conveniency of themselves and their tenants , were willing to erect churches within their precincts , laws were then made , that they might detain one share of the tithes for the supply of this new church ; the other two remaining due to the mother church . and i can find nothing like any allowance for the lords of manors to appropriate the other two parts as they thought fit . for those manors themselves were but parcels of larger parishes ; and the tithes were due from those estates , which were no part of their manors , and therefore they had nothing to do with them . but after the norman invasion , the poor parochial clergy being saxons , and the nobility and bishops normans , they regarded not how much they reduced the inferiour clergy , to enrich the monasteries belonging to the normans , either at home or abroad . and this i take to be the true reason of the multitude of appropriations of two thirds of the tithes in the norman times , and too often with the consent of the bishops , who ought to have shewed more regard to the interest of the parochial clergy than they generally did . but of this i have discoursed more at large in one of the following cases . in the latter end of the saxon times , if we believe those called the confessors laws , after all the danish devastations , there were three or four churches where there had been but one before . by which it appears that the parochial clergy were numerous before the conquest . and within this diocess , in two deanaries of it , there are to be found in doomsday-book above twenty parish-churches : in the deanary of warwick , ten ; and in the deanary of kingstone , fifteen : but of the former seven were appropriated in the norman times ; and of the latter , ten ; by which we may see to how low a condition they then brought the parochial clergy . one church in the former deanary i find built in that time , and that was at exhal ; which was before a chapel to salford , but was erected in the time of h. 1. by the lord of the manor and freeholders , who gave the glebe and tithes , as appears by the confirmation of simon bishop of worcester . many other parochial churches , i doubt not , were built and endowed after the same manner , although the records of them are lost . and as churches were new erected , the parochial bounds were fixed , that the people might certainly know whither they were to resort for divine worship , who were bound to attend them as part of their charge , from whose hands they were to receive the holy sacraments , and whose advice and counsel they were to take in matters which related to the salvation of their souls . now here lies the main difficulty with some people ; they cannot think that parochial bounds are to determine them in what concerns the good of their souls ; but if they can edifie more by the parts and gifts of another , they conclude , that it is their duty to forsake their own minister , and go to such a one as they like . i meddle not with extraordinary occasions of absence , nor with the case of scandalous incumbents , because it is the peoples fault if they be not prosecuted , and the place supplied by better men. but the case , as it ought to be put , is , how far a regard is to be shewed to a constitution so much for the general good , as that of parochial communion is . we do not say , that mens consciences are bound by perambulations , or that it is a sin at any time to go to another parish ; but we say , that a constant fixed parochial communion , tends more to preserve the honour of god , and the religion established among us , to promote peace and vnity among neighbours , and to prevent the mischief of separation . and what advances so good ends , is certainly the best means of edification : which lies not in moving the fansie , or warming the passions , but in what brings men to a due temper of mind , and a holy , peaceable , and unblameable conversation . and as to these excellent ends , it is not only your duty with great zeal and diligence to perswade your people to them ; but to go before them your selves in the practice of them . for they will never have any hearty regard or esteem for what any one says , if they find him to contradict it in the course of his life . suppose it be the peoples fault to shew so little regard to your profession ; yet you are bound to consider how far you may have given too much occasion for it , and their fault can be no excuse for you , if any of your own were the true occasion of theirs . we live in an age wherein the conversations of the clergy are more observed than their doctrines . too many are busie in finding out the faults of the clergy , the better to cover their own ; and among such priest craft is become the most popular argument for their insidelity . if they could once make it appear ; that all religion were nothing but a cheat and imposture of some cunning men for their own advantage , who believed nothing of it themselves ; and that all the business of our profession was to support such a fraud in the world for our own interest , they were very excusable in their most bitter invectives against such priest-craft . for nothing is more to be abhorred by men of ingenuous minds , and natural probity , than to be the instruments of deceiving mankind in so gross a manner . but , thanks be to god , this is very far from being the case among us ; for our profession is built upon the belief of god and providence , the difference of good and evil , and the rewards and punishments of another life . if these things have no foundations , we are certain that the best , and wisest , and most disinterested men in all ages have been in the same fundamental mistakes . and it is now somewhat too late for any persons to set up for sagacity and true iudgment in these matters , above all those of foregoing ages . there is a mighty difference between slight and superficial reasonings , ( although some may be vain enough to cry them up for oracles ) and those which are built on the nature of things , and have born the test of so many ages , and remain still in the same degree of firmness and strength , notwithstanding all the batteries of profane and atheistical wits . for it cannot be denied , that such there have been in former times as well as now ; but that makes more for the advantage of religion , that our modern pretenders are fain to borrow from the old stock ; and scarce any thing worth answering hath been said by them , but hath been often said , and with more force by their masters . and the best philosophers of this age have given up the cause of atheism as indefensible ; so that the being of god and providence seems to be established by a general consent ; and if any secretly be of another mind , they think it not for their reputation to own it . the main pretence now is against revealed religion ; but without offering to shew how so great and considerable a part of mankind as the christian church hath been made up of , came to be so imposed upon , as to a doctrine which advances morality to the greatest height , and gives mankind the most assured hopes of a blessed immortality , when nothing like interest and design as to this world , could be carried on by the first and greatest promoters of it . but we are told in a late complaint made abroad by a friend of our deists ( wherein i am particularly concerned ) that we make objections for them which are most easie to answer , and pass over their most considerable difficulties . which is a very unjust charge , and cannot be made good but by producing those considerable difficulties which we have taken no notice of . for my part , i know of none such : and we make no objections for them ; however , we may think it our duty to lay open the weakness of them , when we are importuned to do it ; which was my case in the treatise i suppose he refers to . if they keep their considerable difficulties to themselves . i know not how we should be able to answer them . but it is the common way in a baffled cause still to pretend , that the main difficulties were not produced . but this is not a proper occasion to insist lon●er on these matters ; my present business is to answer the objection which immediately regards the clergy ; and the summ of it is , that our profession rather hinders than confirms the belief of religion ; because they who plead for what makes for their interest , are always suspected to be swayed more by interest than by reason . to give a full and clear answer to this , we must consider , that however mankind are apt to be swayed by interest , yet the truth and reason of things do not at all depend upon them ; for a thing is not true or false in it self , because it makes for or against a man ; and the measures of judging truth and falshood , are quite of another nature ; and so mens interests come not into consideration . so that in this case they are not to examine whose turn is served , whether such a thing be true or false ; but whether there be sufficient evidence to convince an impartial mind of the truth of it ; for let the reasons be produced by whom they please , the grounds of conviction are the same . if a man in a dispute about surveying a piece of land , which he claimed a right to , should appeal to the elements of geometry in his case , would the evidence be less because he was concerned in the land ? but we proceed farther ; suppose it be for the interest of religion in a nation , for an order of men to be set apart on purpose to attend the services of it ; and that there should be great incouragements for their education ; and a maintenance set apart for their subsistence afterwards , that they may not live in dependance on the humours and uncertain fancies of the people ; how can such a constitution take off from the credibility of that religion which they are to support ? was it any lessening to the authority of the law of moses , that the tribe of levi was so plentifully provided for by god's own appointment ? they were to teach the law to the people in the places where they were dispersed among the several tribes : and suppose it had been then said , why should we believe what you say , when you live by it ? you have cities , and lands , and tithes , and oblations , and dignities among you ; no wonder you set up this law as divine and holy ; but we get nothing by it , but part with a share of our profits to maintain you ? what then ? was the law therefore false , and moses an impostor ? these are hard consequences , but they naturally follow from such a supposition . and if such an inference were not reasonable then , neither will it appear to be so now . but we do not pretend that the parochial settlement of our clergy is by such a divine law as the levitical priesthood was ; but this we do insist upon , that the christian religion being owned and established in the nation , there was a necessary reason from the nature of it , and the obligation to preserve and support it , that there should be an order of men set apart for that end , that they should instruct the people in it , and perform the several offices belonging to it ; and that a sufficient maintenance be allowed them by the law of the land to support them in doing their duties . and i appeal to any men of sense or of common vnderstanding , whether on supposition that our religion is true , these be not very just and reasonable things ? how then can that make a religion suspected to be false , which are very reasonable , supposing it to be true ? if it be true , as most certainly it is , are not they bound to maintain it to be true ? and can it be the less so , because their subsistence depends upon it ? therefore all the impertinent talk of our profession being a trade , can signifie nothing to any men that understand the difference between scarron and euclid , or the way of burlesquing and of demonstration . there is still one common prejudice to be removed , and that is , that too many of those who preach up our religion , as true , do not live as if they believed it to be so . we are very sorry , there should be any occasion given for such a reproach as this ; and we hope there are not so many instances of it , as some would have it believed . woe be to those by whom such offences come . but supposing the instances true , is there any religion in the world , considering the follies and infirmities of mankind , which can secure all the professors of it from acting against the rules of it ? but if such instances are sufficiently proved , there ought to be the greater severity used in such cases ; because religion it self , as well as the honour of our church , suffers so much by them . but it will still be said , that these persons are secret infidels , and believe nothing of what they profess . this is another point , how far bad lives are consistent with sound opinions : some that think that men act consistently , will not allow that bad men can be any other than meer infidels ; but others who consider the prevalency of mens lusts and passions over their reasons , are apt to think that they may retain their good opinions , even when they act contrary to them : but then their consciences fly in their faces , and they condemn themselves for their evil actions . and then these very instances are an argument against infidelity ; for we may justly presume , that they would shake off their fears of another world , if they could . but why should some instances of this nature signifie more against religion , than the many remarkable examples of a godly , righteous and sober life among the clergy , to a stronger confirmation of it ? for they have had greater occasion of searching into all the considerable difficulties about religion , than others can pretend to ; and i do not know any that have imployed most time and pains about it , but have had greater satisfaction as to the truth and excellency of it . thus i have endeavoured to remove the most common prejudices of our times , against our profession . it would now be proper for me to give some particular directions to you , but that is so much the business of the following discourses , that i shall refer you to them ; and commend you to the grace and blessing of almighty god , that you may so carefully discharge your duties in this world , that it may advance your happiness in another . i am your affectionate friend and brother edw. wigorn . hartlebury c. apr. 23. 1698. errata . preface , pag. viii . lin . 7. read birinus . p. xii . l. 7. r. kington . p. 26. l. 21. after fraudes add & . p. 126. l. 11. r. birinus . p. 129. l. 9. r. wulstan . p. 142. l. 7. r. flocks they go to . p. 157. l. 17. after but , insert to perswade you . p. 226. l. 5. for more r. meer . p. 236. l. 9. for titles r. tithes . p. 241. l. 9. r. a●b●rdus . p. 254. l. 17. r. guthrun . p. 256. l. 17. for than r. as . the contents . case i. the bishop of worcester's charge to the clergy of his diocess , in his primary visitation , &c. p. 1. ii. of the nature of the trust committed to the parochial clergy , &c. p. 103. iii. of the particular duties of the parochial clergy , &c. p. 175. iv. of the maintenance of the parochial clergy by law , p. 229. v. of the obligation to observe the ecclesiastical canons and constitutions , &c. p. 325. to which is annexed a discourse concerning bonds of resignation , &c. a catalogue of books published by the right reverend father in god , edward lord bishop of worcester , and sold by henry mortlock at the phoenix in st. paul's church-yard . a rational account of the grounds of the protestant religion ; being a vindication of the lord archbishop of canterbury's relation of a conference , &c. from the pretended answer of t. c. the second edition . folio . origines britannicae , or the antiquities of the british churches , with a preface concerning some pretended antiquities relating to britain , in vindication of the bishop of st. asaph . folio . irenicum , a weapon-salve for the churches wounds . quarto . origines sacrae : or a rational account of the grounds of christian faith , as to the truth and divine authority of the scriptures , and the matters therein contained . the fifth edition , corrected and amended . quarto . the unreasonableness of separation , or an impartial account of the history , nature and pleas of the present separation from the communion of the church of england . quarto . a discourse concerning the idolatry practised in the church of rome , and the hazard of salvation in the communion of it , in answer to some papers of a revolted protestant , wherein a particular account is given of the fanaticism and divisions of that church . octavo . an answer to several late treatises occasioned by a book , entitled , a discourse concerning the idolatry practised of the church of rome , and the hazard of salvation in the communion of it : part i. octavo . a second discourse in vindication of the protestant grounds of faith , against the pretence of infallibility in the church of rome , in answer to the guide in controversie , by r. h. protestancy without principles , and reason , and religion ; or the certain rule of faith , by e. w. with a particular enquiry into the miracles of the roman church . octavo . an answer to mr. cressy's epistle apologetical to a person of honour , touching his vindication of dr. stillingfleet . octavo . a defence of the discourse concerning the idolatry practised in the church of rome , in answer to a book entitled , catholicks no idolaters . octavo . several conferences between a romish priest , a fanatick chaplain , and a divine of the church of england ; being a full answer to the late dialogues of t. g. octavo . the council of trent examin'd and disprov'd by catholick tradition , in the main points in controversie between us and the church of rome ; with a particular account of the times and occasions of introducing them . a discourse concerning the doctrine of christ's satisfaction ; or the true reasons of his sufferings , with an answer to the socinian objections , and a preface concerning the true state of the controversie about christ's satisfaction . octavo . second edition . a discourse in vindication of the doctrine of the trinity : with an answer to the late socinian objections against it , from scripture , antiquity and reason : and a preface concerning the different explication of the trinity , and the tendency of the present socinian controversie . octavo . second edition . the bishop of worcester's answer to mr. locke's letter concerning some passages relating to his essay of humane understanding , mention'd in the late discourse in vindication of the trinity . octavo . the bishop of worcester's answer to mr. locke's second letter , wherein his notion of idea's is proved to be inconsistent with it self , and with the articles of the christian faith. octavo . sermons preached upon several occasions , in three volumes in octavo . the effigies of the right reverend father in god , edward lord bishop of worcester , engraven on a copper-plate . price 6 d. the bishop of worcester's charge to the clergy of his diocese , in his primary visitation , begun at worcester , september 11 th . 1690. my brethren , this being my primary visitation , i thought it fitting to acquaint my self with the ancient as well as modern practice of episcopal visitations , and as near as i could , to observe the rules prescribed therein , with respect to the clergy , who are now summoned to appear . and i find there were two principal parts in them , a charge and an enquiry . the charge was given by the bishop himself , and was called admonitio episcopi , or allocutio ; wherein he informed them of their duty , and exhorted them to perform it . the enquiry was made according to certain articles drawn out of the canons , which were generally the same ; according to which the iuratores synodi ( as the ancient canonists call them ; or testes synodales ) were to give in their answers upon oath ; which was therefore called iuramentum synodale ; for the bishop's visitation was accounted an episcopal synod . the former of these is my present business ; and i shall take leave to speak my mind freely to you , this first time , concerning several things which i think most useful , and fit to be considered and practised by the clergy of this diocese . for , since it hath pleased god , by his wise and over-ruling providence , ( without my seeking ) to bring me into this station in his church , i shall esteem it the best circumstance of my present condition , if he please to make me an instrument of doing good among you . to this end , i thought it necessary in the first place , most humbly to implore his divine assistance , that i might both rightly understand , and conscientiously perform that great duty which is incumbent upon me ; for without his help , all our thoughts are vain , and our best purposes will be ineffectual . but god is not wanting to those who sincerely endeavour to know , and to do their duty ; and therefore in the next place , i set my self ( as far as my health and other occasions would permit ) to consider the nature and extent of my duty ; with a resolution not to be discouraged , altho i met with difficulties in the performance of it . for such is the state and condition of the world , that no man can design to to do good in it ; but when that crosses the particular interests and inclinations of others , he must expect to meet with as much trouble as their unquiet passions can give him . if we therefore consulted nothing but our own ease , the only way were to let people follow their humours and inclinations , and to be as little concerned as might be , at what they either say or do . for if we go about to rowze and awaken them , and much more to reprove and reform them , we shall soon find them uneasie and impatient ; for few love to hear of their faults , and fewer to amend them . but it is the peculiar honour of the christian religion , to have an order of men set apart , not meerly as priests , to offer sacrifices ( for that all religions have had ) but as preachers of righteousness , to set good and evil before the people committed to their charge ; to inform them of their duties , to reprove them for their miscarriages ; and that , not in order to their shame , but their reformation : which requires not only zeal , but discretion , and a great mixture of courage and prudence , that we may neither fail in doing our duty , nor in the best means of attaining the end of it . if we could reasonably suppose , that all those who are bound to tell others their duties , would certainly do their own , there would be less need of any such office in the church as that of bishops ; who are to inspect , and govern , and visit , and reform those who are to watch over others . but since there may be too great failings even in these ; too great neglect in some , and disorder in others ; too great proneness to faction and schism , and impatience of contradiction from mere equals ; therefore st. ierom himself grants , that to avoid these mischiefs , there was a necessity of a superiour order to presbyters in the church of god ; ad quem omnis ecclesiae cura pertineret , & schismatum semina tollerentur ; as he speaks , even where he seems most to lessen the authority of bishops . but whatever some expressions of his may be , ( when the bishop of ierusalem and the roman deacons came into his head ) his reasons are very much for the advantage of episcopal government . for can any man say more in point of reason for it , than that nothing but faction and disorder followed the government of presbyters , and therefore the whole christian church agreed in the necessity of a higher order , and that the peace and safety of the church depends upon it ; that if it be taken away , nothing but schisms and confusions will follow . i wish those who magnifie s. ierom's authority in this matter , would submit to his reason and authority both , as to the necessity and usefulness of the order of bishops in the church . but beyond this , in several places , he makes the bishops to be successors of the apostles , as well as the rest of the most eminent fathers of the church have done . if the apostolical office , as far as it concerns the care and government of churches , were not to continue after their decease , how came the best , the most learned , the nearest to the apostolical times , to be so wonderfully deceiv'd ? for if the bishops did not succeed by the apostles own appointment , they must be intruders and usurpers of the apostolical function ; and can we imagine the church of god would have so universally consented to it ? besides , the apostles did not die all at once ; but there were successors in several of the apostolical churches , while some of the apostles were living : can we again imagine , those would not have vindicated the right of their own order , and declared to the church , that this office was peculiar to themselves ? the change of the name from apostles to bishops , would not have been sufficient excuse for them ; for the presumption had been as great in the exercise of the power without the name . so that i can see no medium , but that either the primitive bishops did succeed the apostles by their own appointment and approbation , ( which irenaeus expresly affirms , qui ab apostolis ipsis instituti sunt episcopi in ecclesiis ) or else those who governed the apostolical churches after them , out-went diotrephes himself ; for he only rejected those whom the apostles sent ; but these assumed to themselves the exercise of an apostolical authority over the churches planted and setled by them . but to let us see how far the apostles were from thinking that this part of their office was peculiar to themselves , we find them in their own time , as they saw occasion , to appoint others to take care of the government of the churches , within such bounds as they thought fit . thus timothy was appointed by st. paul at ephesus , to examine the qualifications of such as were to be ordained ; and not to lay hands suddenly on any ; to receive accusations , if there were cause , even against elders ; to proceed judicially before two or three witnesses : and if there were reason , to give them a publick rebuke . and that this ought not to be thought a slight matter , he presently adds , i charge thee before god , and the lord iesus christ , and the elect angels , that thou observe these things , without preferring one before another , doing nothing by partiality . here is a very strict and severe charge for the impartial exercise of discipline in the church upon offenders . and although in the epistle to titus , he be only in general required to set in order the things that are wanting , and to ordain elders in every city , as he had appointed him ; yet we are not to suppose , that this power extended not to a iurisdiction over them when he had ordained them . for if any of those whom he ordained ( as believing them qualified according to the apostles rules ) should afterwards demean themselves otherwise , and be self-willed , froward , given to wine , brawlers , covetous , or any way scandalous to the church , can we believe that titus was not as well bound to correct them afterwards , as to examine them before ? and what was this power of ordination and iurisdiction , but the very same which the bishops have exercised ever since the apostles times ? but they who go about to unbishop timothy and titus , may as well unscripture the epistles that were written to them ; and make them only some particular and occasional writings , as they make timothy and titus to have been only some particular and occasional officers . but the christian church preserving these epistles , as of constant and perpetual use , did thereby suppose the same kind of office to continue , for the sake whereof those excellent epistles were written : and we have no greater assurance that these epistles were written by st. paul , than we have that there were bishops to succeed the apostles in the care and government of churches . having said thus much to clear the authority we act by , i now proceed to consider the rules by which we are to govern our selves . every bishop of this church , in the time of his consecration makes a solemn profession , among other things , that he will not only maintain and set forward , as much as lies in him , quietness , love and peace among all men ; but that he will correct and punish such as be unquiet , disobedient , and criminous within his diocese , according to such authority as he hath by god's word , and to him shall be committed by the ordinance of this realm . so that we have two rules to proceed by , viz. the word of god , and the ecclesiastical law of this realm . ( 1 ) by the word of god ; and that requires from us , diligence , and care , and faithfulness , and impartiality , remembring the account we must give , that we may do it with ioy and not with grief . and we are not meerly required to correct and punish , but to warn and instruct , and exhort the persons under our care , to do those things which tend most to the honour of our holy religion , and the church whereof we are members . and for these ends there are some things i shall more particularly recommend to you . ( 1. ) that you would often consider the solemn charge that was given you , and the profession you made of your resolution to do your duty at your ordination . i find by the provincial constitution of this church , that the bishops were to have their solemn profession read over to them twice in the year , to put them in mind of their duty . and in the legatine constitutions of otho , ( 22 h ▪ 3. ) the same constitution is renewed , not meerly by a legatine power , but by consent of the archbishops , and bishops of both provinces ; wherein i● is declared , that bishops ought to visi● their diocesses at fit times , correcting and reforming what was amiss , and sowing the word of life in the lords field ; and to put them the more in mind of it , they were twice in the year to have their solemn profession read to them . it seems then , that profession contained these things in it ; or else the reading that could not sti● them up to do these things . what the profession was which presbyters then made at their ordination , we have not so clear an account , but in the same council at oxford , 8 h. 3. i● is strictly enjoined , that all rector● and vicars should instruct the people committed to their charge , and fee● them , pabulo verbi dei , with the food of god's word ; and it is introduced with that expression , that they might excite the parochial clergy to be more diligent in what was most proper for those times . and if they do it not , they are there called canes muti : and lyndwood bestows many other hard terms upon them , which i shall not mention ; but he saith afterward , those who do it not , are but like idols , which bear the similitude of a man , but do not the offices proper to men. nay , he goes so far as to say , that the spiritual food of god's word is as necessary to the health of the soul , as corporal food is to the health of the body . which words are taken out of a preface to a canon in the decretals de officio iud. ordinarii , inter caetera . but they serve very well to shew how much even in the dark times of popery , they were then convinced of the necessity and usefulness of preaching . these constitutions were slighted so much , that in 9 edw. 1. the office of preaching was sunk so low , that in a * provincial constitution at that time , great complaint is made of the ignorance and stupidity of the parochial clergy , that they rather made the people worse than better . but at that time the preaching friars had got that work into their hands by particular priviledges , where it is well observed , that they did not go to places which most needed their help , but to cities and corporations , where they found most incouragement . but what remedy was found by this provincial council ? truly , every parochial priest four times a year was bound to read an explication of the creed , ten commandments , the two precepts of charity , the seven works of mercy , the seven deadly sins , the seven principal vertues , and the seven sacraments . this was renewed in the province of york , ( which had distinct provincial constitutions ) in the time of edw. 4. and here was all they were bound to by these constitutions . but when wickliff and his followers had awakened the people so far , that there was no satisfying them without preaching , then a new provincial constitution was made under arundel , archbishop of canterbury ; and the former constitution was restrained to parochial priests who officiated as curates ; but several others were authorized to preach ; as ( 1. ) the mendicant friars were said to be authorized iure communi , or rather privilegio speciali , ( but therefore lyndwood saith , it is said to be iure communi , because that privilege is recorded in the text of the canon law ) these were not only allowed to preach in their own churches , but in plateis publicis , saith lyndwood , out of the canon law ( wherein those words were expressed ) and at any hour , unless it were the time of preaching in other churches ; but other orders , as augustinians and carmelites , had no such general license . those preaching friars were a sort of licensed preachers at that time , who had no cures of souls ; but they were then accounted a kind of pastors . for io. de athon . distinguisheth two sorts of pastors ; those who had ecclesiastical offices , and those who had none , but were such only verbo & exemplo ; but they gave very great disturbance to the clergy , as the pope himself confesses in the canon law. ( 2. ) legal incumbents authorized to preach in their own parishes iure scripto . all persons who had cures of souls , and legal titles , were said to be missi à iure ad locum & populum curae suae , and therefore might preach to their own people without a special license ; but if any one preached in other parts of the diocess , or were a stranger in it , then he was to be examined by the diocesan , and if he were found tam moribus quam scientia idoneus , he might send him to preach to one or more parishes , as he thought meet ; and he was to shew his license to the incumbent of the place , before he was to be permitted to preach , under the episcopal seal . and thus , as far as i can find , the matter stood as to preaching , before the reformation . after it , when the office of ordination was reviewed and brought nearer to the primitive form ; and instead of delivering the chalice and patten , with these words , accipe potestatem offerre deo sacrificium , &c. the bishop delivered the bible with these words , take thou authority to preach the word of god , and to minister the holy sacraments in the congregation , &c. the priests exhortation was made agreeable thereto , wherein he exhorts the persons in the name of our lord jesus christ , to consider the weight and importance of the office and charge they are called to ; not barely to instruct those who are already of christ's flock , but to endeavour the salvation of those who are in the midst of this naughty world. and therefore he perswades and charges them from a due regard to christ , who suffered for his sheep , and to the church of christ , which is so dear to him , to omit no labor , care or diligence in instructing and reforming those who are committed to their charge . and the better to enable them to perform these things , there are some duties especially recommended to them , viz. prayer , and study of the holy scriptures , according to which they are to instruct others , and to order their own lives , and of those who belong to them . and that they might the better attend so great a work , they are required to forsake and set aside ( as much as they may ) all worldly cares and studies , and apply themselves wholly to this one thing , that they may save themselves and them that hear them . after which follows the solemn profession , wherein they undertake to do these things . this is that , my brethren , which i earnestly desire of you , that you would often consider . you are not at liberty now , whether you will do these things or not ; for you are under a most solemn engagement to it . you have put your hands to the plough , and it is too late to think of looking back ; and you all know the husbandman's work is laborious and painful , and continually returning . it is possible after all his pains , the harvest may not answer his expectation ; but yet if he neither plows nor sows , he can expect no return ; if he be idle and careless , and puts off the main of his work to others , can he reasonably look for the same success ? believe it , all our pains are little enough to awake the sleepy and secure sinners , to instruct the ignorant , to reclaim the vitious , to rebuke the profane , to convince the erroneous , to satisfie the doubtful , to confirm the wavering , to recover the lapsed ; and to be useful to all , according to their several circumstances and conditions . it is not to preach a sermon or two in a weeks time to your parishioners , that is the main of your duty ; that is no such difficult task , if men apply their minds as they ought to do to divine matters , and do not spend their retirements in useless studies ; but the great difficulty lies in watching over your flock , i. e. knowing their condition , and applying your selves uitably to them . he that is a stranger to his flock , and only visits them now and then , can never be said to watch over it ; he may watch over the fleeces , but he understands little of the state of his flock , viz. of the distempers they are under , and the remedies proper for them . the casuists say , that the reason why there is no command for personal residence in scripture , is , because the nature of the duty requires it ; for if a person be required to do such things which cannot be done without it , residence is implied . as a pilot to a ship , needs no command to be in his ship ; for how can he do the office of a pilot out of it ? let none think to excuse themselves by saying , that our church only takes them for curates , and that the bishops have the pastoral charge ; for by our old provincial constitutions ( which are still in force so far as they are not repugnant to the law of the land ) even those who have the smallest cures are called pastors ; and lyndwood there notes , that parochialis sacerdos dicitur pastor ; and that not meerly by way of allusion , but in respect of the care of souls . but we need not go so far back . for what is it they are admitted to ? is it not ad curam animarum ? did not they promise in their ordination , to teach the people committed to their care and charge ? the casuists distinguish a threefold cure of souls . 1. in foro interiori tantum , and this they say is the parochial cure. 2. in foro exteriori tantum , where there is authority to perform ministerial acts , as to suspend , excommunicate , absolve , ( sine pastorali curâ : ) and this archdeacons have by virtue of their office. 3. in utroque simul , where there is a special care , together with jurisdiction : this is the bishops . and every one of these , say they , secundum commune ius canonicum , is obliged to residence , i. e. by the common law ecclesiastical ; of which more afterwards . the obligation is to perpetual residence , but as it is in other positive duties , there may other duties intervene , which may take away the present force of it ; as care of health , necessary business , publick service of the king or church , &c. but then we are to observe that no dispensation can justifie a man in point of conscience , unless there be a sufficient cause ; and no custom can be sufficient against the natural equity of the case , whereby every one is bound from the nature of the office he hath undertaken . i confess the case in reason is different , where there is a sufficient provision by another fit person , and approved by those who are to take care that places be well supplied , and where there is not ; but yet , this doth not take off the force of the personal obligation , arising from undertaking the cure themselves , which the ecclesiastical law understands to be , not meerly by promise , but cum effectu , as the canonists speak ; which implies personal residence . not that they are never to be away ; non sic amarè intelligi debet , ut nunquam inde recedat , saith lyndwood ; but these words are to be understood civili modo , as he expresses it , i. e. not without great reason . there must not be , saith he , callida interpretatio , sed talis ut cessent fraudes negligentiae , i. e. there must be no art used to evade the law , nor any gross neglect of it . it 's true , the canonists have distinguished between rectories and vicarages , as to personal residence ; but we are to consider these things . 1. the canon law strictly obliges every one that hath a parochial cure to perpetual residence , and excepts only two cases , when the living is annexed to a prebend or dignity ; and then he who hath it , is to have a perpetual vicar instituted , with a sufficient maintenance . 2. after this liberty obtained for dignified persons to have vicars endowed in their places , the point of residence was strictly enjoined to them : and we find in the provincial constitutions a difference made between personatus and vicaria ; but this was still meant of a vicarage endowed . this was in the time of stephen langton , archbishop of canterbury ; and in another constitution he required an oath of personal residence from all such vicars , altho' the place were not above the value of five marks ; which , as appears by lyndwood elsewhere , was then sufficient for maintenance and hospitality . and to cover the shameful dispensations that were commonly granted to the higher clergy , under pretence of the papal power , the poor vicars by a constitution of otho , were bound to take a strict oath of continual residence ; and without it their institution was declared to be null . but even in that case the gloss there saith , that they may be some time absent for the benefit of the church or state ; but not for their own particular advantage . 3. the obligation in point of conscience remains the same , but dispensing with laws may take away the penalty of non-residence in some cases . ioh. de athon . canon of lincoln , who wrote the glosses on the legatine constitutions , doth not deny , but that rectors are as well bound to residence as vicars ; but these are more strictly tied by their oath ; and because a vicar cannot appoint a vicar , but a parson may . and altho' that name among some be used as a term of reproach , yet in former ages personatus and dignitas were the same thing ; and so used here in england in the time of henry ii. but afterwards it came to be applied to him that had the possession of a parochial benefice in his own immediate right ; and was therefore bound to take care of it . for the obligation must in reason be supposed to go along with the advantage ; however local statutes may have taken off the penalty . ii. when you have thus considered the obligation which lies upon you , to take care of your flock , let me in the next place recommend to you a plain , useful , and practical way of preaching among them . i mean such as is most likely to do good upon them ( which certainly ought to be the just measure of preaching . ) i do not mean therefore a loose and careless way of talking in the pulpit , which will neither profit you , nor those that hear you . he that once gets an ill habit of speaking extempore , will be tempted to continue it by the easiness of it to himself , and the plausibleness of it to less judicious people . there is on the other side , a closeness and strength of reasoning , which is too elaborate for common understandings ; and there is an affected fineness of expression which by no means becomes the pulpit : but it seems to be like stroaking the consciences of people by feathers dipt in oil. and there is a way of putting scripture-phrases together without the sense of them , which those are the most apt to admire , who understand them least : but for those who have not improved their minds by education , the plainest way is certainly the best and hardest , provided , it be not flat , and dry , and incoherent , or desultory , going from one thing to another , without pursuing any particular point home to practice , and applying it to the consciences of the hearers . and give me leave to tell you , that meer general discourses have commonly little effect on the peoples minds ; if any thing moves them , it is particular application as to such things which their consciences are concerned in . and here i must recommend to you the pursuing the design of his majesties letter , which hath been some time since communicated to you ; by it you are required to preach at some times on those particular vices which you observe to be most prevalent in the places you relate to , such as drunkenness , whoredom , swearing , profaning the lord's day , &c. if ever we hope to reform them , you must throughly convince them , that what they do is displeasing to god. and there are two sorts of men you are to deal with , 1. profane scoffers at religion . these seldom trouble you ; but if any good be to be done upon them , it is by plain and evident proofs of the good and evil of moral actions . for , as long as they think them indifferent , they will never regard what you say , as to the rewards or punishments of them . 2. stupid and senseless people , whose minds are wholly sunk into the affairs of the world , buying and selling and getting gain . it is a very hard thing to get a thought into them above these matters . and whatever you talk of meer religion , and another life , is like metaphysicks to them ; they understand you not , and take no care to do it : but if you can convince them , that they live in the practice of great sins , which they shall certainly suffer for , if they do not repent , they may possibly be awakened this way ; if not , nothing but immediate grace can work upon them ; which must work on the will , whatever becomes of the understanding . iii. after preaching , let me intreat you to look after catechizing and instructing the youth of your parishes . he that would reform the world to purpose , must begin with the youth ; and train them up betimes , in the ways of religion and virtue . there is far less probability of prevailing on those who have accustomed themselves to vicious habits , and are hardened in their wickedness . it seems strange to some , that considering the shortness of human life , mankind should be so long before they come to maturity ; the best account i know of it , is , that there is so much longer time for the care of their education , to instill the principles of virtue and religion into them , thereby to soften the fierceness , to direct the weakness , to govern the inclinations of mankind . it is truly a sad consideration , that christian parents are so little sensible of their duties , as to the education of their children ; when those who have had only natural reason to direct them , have laid so much weight upon it . without it , plato saith , that mankind grew the most unruly of all creatures . aristotle , that as by nature they are capable of being the best , so being neglected , they become the worst of animals , i. e. when they are brought up without virtue . education and virtue , saith he , is a great thing , yea , it is all in all , and without it they will be much worse than beasts . the main care of the education of children must lie upon parents ; but yet ministers ought not only to put them in mind of their duty , but to assist them all they can , and by publick catechizing , frequently to instruct both those who have not learned , and those who are ashamed to learn any other way . and you must use the best means you can to bring them into an esteem of it ; which is by letting them see , that you do it , not meerly because you are required to do it , but because it is a thing so useful and beneficial to them , and to their children . there is a great deal of difference between peoples being able to talk over a set of phrases , about religious matters , and understanding the true grounds of religion ; which are easiest learned , and understood , and remembred in the short catechetical way . but i am truly sorry to hear , that where the clergy are willing to take pains this way , the people are unwilling to send their children . they would not be unwilling to hear them instructed , as early as might be , in the way to get an estate , but would be very thankful to those who would do them such a kindness ; and therefore it is really a contempt of god and religion , and another world , which makes them so backward to have their children taught the way to it . and methinks those who have any zeal for the reformation , should love and pursue that which came into request with it . indeed the church of rome it self hath been made so sensible of the necessity of it , that even the council of trent doth not only require catechizing children , but the bishops to proceed with ecclesiastical censures against those who neglect it . but in the old provincial constitutions i can find but one injunction about catechizing ; and that is when the priest doubts whether the children were baptized or not ; and if they be born eight days before easter and whitsontide , they are not to be baptized till those days , and in the mean time they are to receive catechism . what is this receiving catechism by children , before they are eight days old ? it is well exorcism is joyned with it ; and so we are to understand by it the interrogatories in baptism : and lyndwood saith , the catechism is not only required for instruction in faith , but propter sponsionem , when the godfather answers , de fidei observantiâ . it is true , the canon law requires in adult persons catechizing before baptism ; but i find nothing of the catechizing children after it ; and no wonder , since lyndwood saith , the laity are bound to no more than to believe as the church believes ; nor the clergy neither , unless they can bear the charges of studying , and have masters to instruct them . this was good doctrine , when the design was to keep people in ignorance . for learning is an irreconcilable enemy to the fundamental policy of the roman church ; and it was that which brought in the reformation , since which a just care hath still been required for the instruction of youth ; and the fifty ninth canon of our church is very strict in it , which i desire you often to consider with the first rubrick after the catechism , and to act accordingly . iv. after catechizing , i recommend to you the due care of bringing the children of your parishes to confirmation . which would be of excellent use in the church , if the several ministers would take that pains about it , which they ought to do . remember that you are required to bring or send in writing , with your names subscribed , the names of all such persons in your parish , as you shall think fit to be presented to the bishop to be confirmed . if you take no care about it , and suffer them to come unprepared for so great , so solemn a thing , as renewing the promise and vow made in baptism , can you think your selves free from any guilt in it ? in the church of rome indeed great care was taken to hasten confirmation of children all they could : post baptismum quam citius poterint , as it is in our constitution provincial ; in another synodical , the parochial priests are charged to tell their parishioners , that they ought to get their children confirmed as soon as they can . in a synod at worcester , under walter de cantilupo , in the time of henry iii. the sacrament of confirmation is declared necessary for strength against the power of darkness ; and therefore it was called sacramentum pugnantium : and no wonder then that the parochial priests should be called upon so earnestly to bring the children to confirmation ; and the parents were to be forbidden to enter into the church , if they neglected it for a year after the birth of the child , if they had opportunity . the synod of exeter allowed two years , and then if they were not confirmed , the parents were to fast every friday , with bread and water , till it were done . and to the same purpose , the synod of winchester in the time of edw. i. in the constitutions of richard , bishop of sarum , two years were allowed , but that time was afterwards thought too long ; and then the priest as well as the parents was to be suspended from entrance into the church . but what preparation was required ? none that i can find : but great care is taken about the fillets to bind their heads to receive the unction , and the taking them off at the font , and burning them , lest they should be used for witchcraft , as lyndwood informs us . but we have no such customs , nor any ▪ of the reformed churches : we depend not upon the opus operatum , but suppose a due and serious preparation of mind necessary , and a solemn performance of it . i hope , by god's assistance , to be able , in time , to bring the performance of this office into a better method ; in the mean time i shall not fail doing my duty ; have you a care you do not fail in yours . v. as to the publick offices of the church , i do not only recommend to you a due care of the diligent , but of the devout performance of them . i have often wondred how a fixed and stated liturgy for general use , should become a matter of scruple and dispute among any in a christian church , unless there be something in christianity which makes it unlawful to pray together for things which we all understand beforehand to be the subject of our prayers . if our common necessities and duties are the same ; if we have the same blessings to pray , and to thank god for in our solemn devotions , why should any think it unlawful or unfitting to use the same expressions ? is god pleased with the change of our words and phrases ? can we imagine the holy spirit is given to dictate new expressions in prayers ? then they must pray by immediate inspiration ( which i think they will not pretend to , lest all the mistakes and incongruities of such prayers be imputed to the holy ghost ) but if not , then they are left to their own conceptions , and the spirits assistance is only in the exciting the affections and motions of the soul towards the things prayed for ; and if this be allowed , it is impossible to give a reason why the spirit of god may not as well excite those inward desires , when the words are the same as when they are different . and we are certain , that from the apostles times downwards , no one church or society of christians can be produced , who held it unlawful to pray by a set-form . on the other side , we have very early proofs of some common forms of prayer , which were generally used in the christian churches , and were the foundations of those ancient liturgies , which , by degrees were much enlarged . and the interpolations of later times , do no more overthrow the antiquity of the ground-work of them , than the large additions to a building , do prove there was no house before . it is an easie matter to say , that such liturgies could not be st. iames's or st. mark 's , because of such errors and mistakes , and interpolations of things and phrases of later times ; but what then ? is this an argument there were no ancient liturgies in the churches of ierusalem and alexandria , when so long since , as in origen's time we find an entire collect produced by him out of the alexandrian liturgy ? and the like may be shewed as to other churches , which by degrees came to have their liturgies much enlarged by the devout prayers of some extraordinary men , such as s. basil and s. chrysostom in the eastern churches . but my design is not to vindicate our use of an excellent liturgy , but to put you upon the using it in such manner , as may most recommend it to the people . i mean with that gravity , seriousness , attention , and devotion , which becomes so solemn a duty as prayer to god is . it will give too just a cause of prejudice to our prayers , if the people observe you to be careless and negligent about them ; or to run them over with so great haste , as if you minded nothing so much as to get to the end of them . if you mind them so little your selves , they will think themselves excused , if they mind them less . i could heartily wish , that in greater places , especially in such towns where there are people more at liberty , the constant morning and evening prayers were duly and devoutly read ; as it is already done with good success in london , and some other cities . by this means religion will gain ground , when the publick offices are daily performed ; and the people will be more acquainted with scripture , in hearing the lessons , and have a better esteem of the prayers , when they become their daily service , which they offer up to god as their morning and evening sacrifice ; and the design of our church will be best answered , which appoints the order for morning and evening prayer daily to be said , and used throughout the year . vi. as to the dissenters from the church ; the present circumstances of our affairs require a more than ordinary prudence in your behaviour towards them . it is to no purpose to provoke or exasperate them , since they will be but so much more your enemies for it ; and if you seem to court them too much , they will interpret your kindness to be a liking their way better than your own ; so that were it not for some worldly interest , you would be just what they are ; which is in effect to say , you would be men of conscience , if ye had a little more honesty . for they can never think those honest men , who comply with things against their consciences , only for their temporal advantage ; but they may like them as men of a party , who under some specious colours , promote their interest . for my own part , as i do sincerely value and esteem the church of england ( and i hope ever shall ) so i am not against such a due temper towards them , as is consistent with the preserving the constitution of our church . but if any think , under a pretence of liberty , to undermine and destroy it , we have reason to take the best care we can , in order to its preservation . i do not mean by opposing laws , or affronting authority , but by countermining them in the best way , i.e. by out-doing them in those things which make them most popular , if they are consistent with integrity and a good conscience . if they gain upon the people by an appearance of more than ordinary zeal for the good of souls , i would have you to go beyond them in a true and hearty concernment for them ; not in irregular heats and passions , but in the meekness of wisdom , in a calm and sedate temper ; in doing good even to them who most despitefully reproach you , and withdraw themselves and the people from you . if they get an interest among them by industry , and going from place to place , and family to family ; i hope you will think it your duty to converse more freely and familiarly with your own people . be not strangers , and you will make them friends . let them see by your particular application to them , that you do not despise them . for men love to value those who seem to value them ; and if you once slight them , you run the hazard of making them your enemies . it is some trial of a christians patience , as well as humility , to condescend to the weaknesses of others ; but where it is our duty , we must do it , and that chearfully , in order to the best end , viz. doing the more good upon them . and all condescension and kindness for such an end , is true wisdom as well as humility . i am afraid distance and too great stiffness of behaviour towards them , have made some more our enemies than they would have been . i hope they are now convinced , that the persecution which they complained lately so much of , was carried on by other men , and for other designs than they would then seem to believe . but that persecution was then a popular argument for them ; for the complaining side hath always the most pity . but now that is taken off , you may deal with them on more equal terms . now there is nothing to affright them , and we think we have reason enough on our side to perswade them . the case of separation stands just as it did in point of conscience , which is not now one jot more reasonable or just than it was before . some think severity makes men consider ; but i am afraid it heats them too much , and makes them too violent and refractary . you have more reason to fear now , what the interest of a party will do , than any strength of argument . how very few among them understand any reason at all for their separation ! but education , prejudice , authority of their teachers sway them ; remove these , and you convince them . and in order thereto , acquaint your selves with them , endeavour to oblige them , let them see you have no other design upon them , but to do them good ; if any thing will gain upon them , this will. but if after all , they grow more headstrong and insolent by the indulgence which the law gives them ; then observe , whether they observe those conditions on which the law gives it to them . for these are known rules in law , that he forfeits his privilege who goes beyond the bounds of it ; that no privileges are to be extended beyond the bounds which the laws give them ; for they ought to be observed as they are given . i leave it to be considered , whether all such who do not observe the conditions of the indulgence , be not as liable to the law , as if they had none . but there is a very profane abuse of this liberty among some , as tho' it were an indulgence not to serve god at all . such as these , as they were never intended by the law , so they ought to enjoy no benefit by it : for this were to countenance profaneness and irreligion , which i am afraid , will grow too much upon us , unless some effectual care be taken to suppress it . vii . there is another duty incumbent upon you , which i must particularly recommend to your care , and that is , of visiting the sick. i do not mean barely to perform the office prescribed , which is of very good use , and ought not to be neglected ; but a particular application of your selves to the state and condition of the persons you visit . it is no hard matter to run over some prayers , and so take leave ; but this doth not come up to the design of our church in that office : for , after the general exhoratation and profession of the christian faith , our church requires , that the sick person be moved to make special confession of his sins , if he feel his conscience troubled with any weighty matter ; and then if the sick person humbly and heartily desires it , he is to be absolved after this manner , our lord iesus christ , who hath left power in his church to absolve all sinners who truly repent and believe in him , &c. where the power of absolution is grounded upon the supposition of true faith and repentance ; and therefore when it is said afterwards , and by his authority committed to me , i absolve thee from the same , &c. it must proceed on the same supposition . for the church cannot absolve when god doth not . so that all the real comfort of the absolution depends upon the satisfaction of the person's mind , as to the sincerity of his repentance and faith in christ. now here lies the great difficulty of this office ; how to give your selves and the wounded conscience satisfaction , as to the sincerity of those acts ; i do not mean as to the sincerity of his present thoughts , but as to the acceptableness of his faith and repentance with god , in order to remission of sins . but what if you find the persons so ignorant , as not to understand what faith and repentance mean ? what if they have led such careless and secure lives in this world , as hardly ever to have had one serious thought of another ? is nothing to be done but to come and pray by them , and so dismiss them into their eternal state ? is this all the good you can , or are bound to do them ? i confess it is a very uncomfortable thing to tell men how they are to begin to live , when they are liker to die than to live ( and the people generally have a strange superstitious fear of sending for the minister , while there is any hope of recovery . ) but at last you are sent for ; and what a melancholy work are you then to go about ? you are , it may be , to make a man sensible of his sins , who never before considered what they were , or against whom they were committed , or what eternal misery he deserves by committing them . but i will suppose the best i can in this case , viz. that by your warm and serious discourse , you throughly awaken the conscience of a long and habitual sinner ; what are you then to do ? will you presently apply all the promises of grace and salvation to one whose conscience is awakened only with the fears of death , and the terrors of a day of judgment ? this , i confess , is a hard case ; on the one side , we must not discourage good beginnings in any ; we must not cast an awakened sinner into despair ; we must not limit the infinite mercy of god : but on the other side , we must have a great care of incouraging presumptuous sinners to put off their repentance to the last , because then upon confession of their sins , they can so easily obtain the churches absolution , which goes no farther , than truly repenting and believing . but here is the difficulty , how we can satisfie our selves that these do truly repent and believe , who are out of a capacity of giving proof of their sincerity by amendment of life ? i do not question the sincerity of their present purposes ; but how often do we find those to come to nothing , when they recover and fall into the former temptations ? how then shall they know their own sincerity till it be tried ? how can it be tried , when they are going out of the state of trial ? the most we can do , is to encourage them to do the best they can in their present condition , and to shew as many of the fruits of true repentance as their circumstances will allow ; and with the greatest humility of mind , and most earnest supplications to implore the infinite mercy of god to their souls . but besides these , there are many cases of sick persons , which require very particular advice , and spiritual direction , which you ought to be able to give them , and it cannot be done without some good measure of skill and experience in casuistical divinity . as , how to satisfie a doubting conscience , as to its own sincerity , when so many infirmities are mixed with our best actions ? how a sinner who hath relapsed after repentance , can be satisfied of the truth of his repentance , when he doth not know , but he may farther relapse upon fresh temptations ? how he shall know what failings are consistent with the state of grace , and the hopes of heaven , and what not ? what measure of conviction and power of resistance is necessary to make sins to be wilful and presumptuous ? what the just measures of restitution are in order to true repentance , in all such injuries which are capable of it ? i might name many others , but these i only mention to shew how necessary it is for you to apply your selves to moral and casuistical divinity , and not to content your selves barely with the knowledge of what is called positive and controversial . i am afraid there are too many who think they need to look after no more than what qualifies them for the pulpit ; ( and i wish all did take sufficient care of that ) but if we would do our duty as we ought , we must inquire into , and be able to resolve cases of conscience . for the priests lips should keep this kind of knowledge ; and the people should seek the law at his mouth ; for he is the messenger of the lord of hosts , mal. 2. 7. if this held in the levitical priesthood , much more certainly under the gospel , where the rates and measures of our duties are not to be determined by levitical precepts , but by the general reason and nature of moral actions . viii . among the duties of publick worship , i must put you in mind of a frequent celebration of the lord's supper . there is generally too great a neglect of this , which is the most proper part of evangelical worship . the duties of prayers and praises , are excellent and becoming duties , as we are creatures with respect to our maker and preserver . the duty of hearing the word of god read and explained , is consequent upon our owning it to be the rule of our faith and manners ; and all who desire to understand and practise their duty , can never despise or neglect it . but that solemn act of worship wherein we do most shew our selves christians , is the celebrating the holy eucharist . for , therein we own and declare the infinite love of god in sending his son into the world to die for sinners , in order to their salvation ; and that this is not only a true saying , but worthy of all men to be credited . therein , we lift up our hearts , and give thanks to our lord god ; we joyn with angels and archangels in lauding and magnifying his glorious name . therein , we not only commemorate the death and sufferings of our lord , but are made partakers of his body and blood , after a real , but sacramental manner . therein we offer up our selves to god , to be a reasonable , holy and lively sacrifice unto him . therein we adore and glorifie the ever blessed trinity ; and humbly implore the grace and assistance of our ever blessed mediator . and what now is there in all this , which is not very agreeable to the faith , hope and charity of christians ? nay , what duty is there , which so much expresses all these together , as this doth ? nor , whereby we may more reasonably expect greater supplies of divine grace to be bestowed upon us ? what then makes so many to be so backward in this duty , which profess a zeal and forwardness in many others ? if we had that warmth and fervor of devotion , that love to christ , and to each other , which the primitive christians had , we should make it as constant a part of our publick worship , as they did ; but this is not to be expected . neither did it always continue in the primitive church , when liberty , and ease , and worldly temptations made persons grow more remiss and careless in the solemn duties of their religion . s. chrysostom takes notice in his time of the different behaviour of persons , with respect to the holy ●●charist . there were some who pretended to greater holiness and austerity of life than others , who withdrew from the common conversation of mankind , and so by degrees from joining in the acts of publick worship with them . which did unspeakable mischief to christianity ; for then the perfection of the christian life , was not supposed to consist in the active part of it , but in retirement and contemplation . as tho' our highest imitation of christ lay in following him into the wilderness to be tempted of the devil ; and not in walking as he walked , who frequented the synagogues , and went about doing good . but this way of retirement happening to be admired by some great men , the publick worship came to be in less esteem ; and others upon reasons of a different nature , withdrew themselves from such acts of devotion as required a stricter attendance , and a more prepared temper of mind . and there were some who did abstain , because they were not so well satisfied with themselves as to their own preparations ; and such as these s. chrysostom seems to favour , rather than such who came often without due care , as to the whole course of their lives ; only out of custom , or out of regard to the orders of the church . from hence many thought it better to forbear , as long as they did it not out of contempt . and so by degrees the people were content to look on it as a sacrifice for them to be performed by others , rather than as an office , wherein they were to bear a part themselves ; at least , they thought once or thrice a year sufficient for them . and to this , as appears by our old provincial constitutions , they were forced by severe canons . when the reformation began , this disuse of this holy sacrament was looked on , by the chief reformers , as a great abuse and corruption crept into the church , which ought by all means to be reformed ; and the frequent celebration of it set up in the reformed churches . but unreasonable scruples in some , and misapprehensions in others , and a general coldness and indifference , as to matters of religion , have hitherto hindered the reviving this primitive part of devotion among us . i do not go about to determine the frequency in your parishes , which the scripture doth not as to the christian church , but supposes it to be often done ; but i may require you to take care that christ's institution be observed among you ; and that with your utmost care , both as to the decency and purity of it . the last thing i recommend to you all , is , to have a great care of your conversations . i do not speak it out of a distrust of you ; i hope you do it already : and your case will be so much worse , if you do it not , because you very well know how much you ought to do it . for the honour of god and religion , and the success of your ministry , as well as your own salvation , depend very much upon it . lead your flock by your example , as well as by your doctrine , and then you may much better hope that they will follow you ; for the people are naturally spies upon their ministers , and if they observe them to mind nothing but the world all the week , they will not believe them in earnest , when on the lords days they perswade them against it . and it takes off the weight of all reproof of other mens faults , if those they reprove have reason to believe them guilty of the same . i do not think it enough for a preacher of righteousness merely to avoid open and scandalous sins , but he ought to be a great example to others in the most excellent virtues which adorn our profession , not only in temperance and chastity , in iustice and ordinary charity , but in a readiness to do good to all , in forgiving injuries , in loving enemies , in evenness of temper , in humility and meekness , and patience , and submission to god's will , and in frequent retirements from the world , not meerly for study , but for devotion . if by these and such things you shine as lights among your people , they will be more ready to follow your conduct ; and in probability you will not only stop their mouths , but gain their hearts . for among all the ways of advancing the credit and interest of the church of england , one of the most succesful will be the diligent labours , and the exemplary lives of the clergy in it . but if men will not regard their own , or the churches interest in this matter ; if they will break their rules in such a manner , as to dishonour god , and the church , and themselves by it ; then you are to consider the next thing i was to speak to , which is , ii. what authority is given to us for the punishing offenders in our diocesses by the ecclesiastical law of this realm . for this we are to consider , that our authority herein is not derived from any modern canons or constitutions of this church ( altho' due regard ought to be shewed to them ) but from the ancient common law ecclesiastical in this realm , which still continues in force . for as there is a common law with respect to civil rights , which depends not on the feudal constitutions , altho' in many things it be the same with them ; but upon ancient practice , and general consent of the people from age to age. so , i say , there is a common law ecclesiastical , which altho' in many things it may be the same with the canon law , which is read in the books ; yet it hath not its force from any papal or legatine constitutions , but from the acceptance and practice of it in our church . i could easily shew ( if the time would permit ) that papal and legatine constitutions were not received here , altho' directed hither ; that some provincial constitutions never obtained the force of ecclesiastical laws ; but my business is to shew what did obtain and continue still to have the force of such ecclesiastical laws among us . by the statute of 25 h. 8. c. 19. it is declared , that such canons , constitutions , ordinances , and synodals provincial being already made , which be not contrariant nor repugnant to the laws , statutes , and customs of this realm , nor to the damage or hurt to the king's prerogative royal , shall now still be used and executed as they were afore the making of this act , &c. it 's true , a review was appointed , but such difficulties were found in it , as to the shaking the foundations of the ecclesiastical law here , that nothing was ever legally established in it ; and therefore this law is still in force . in the statute 25 h. 8. c. 21. it is said , that this realm recognizing no superiour under god but the king , hath been , and is free from subjection to any man's laws , but only to such as have been devised , made , and observed within this realm , for the wealth of the same : or to such other , as by the sufferance of the king and his progenitors , the people of this realm have taken at their free liberty , by their own consent , to be used amongst them , and have bound themselves by long use and custom to observance of the same , not as to the observance of the laws of any foreign prince , potentate , or prelate , but as to the customs and ancient laws of this realm , originally established , as laws of the same by the said sufferance , consent , custom , and none otherwise . all that i have now to do ; is to shew what authority the bishops had over the clergy by the ancient ecclesiastical law of this realm ; and what censu●es they were liable to for some particular offences . i. by the ecclesiastical law the bishop is iudge of the fitness of any clerk presented to a benefice . this is confessed by the lord coke in these words : and the examination of the ability and sufficiency of the person presented , belongs to the bishop , who is the ecclesiastical iudge , and in the examination he is a iudge , and not a minister , and may and ought to refuse the person presented , if he be not persona idonea . but this is plain to have been the ancient ecclesiastical law of this realm , by the articul . cleri in edw. ii. time , de idoneitate personae praesentatae ad beneficium ecclesiasticum pertinet examinatio ad iudicem ecclesiasticum , & ita est hactenus usitatum , & fiat in futurum . by the provincial constitutions at oxford in the time of hen. iii. the bishop is required to admit the clerk who is presented , without opposition , within two months , dum tamen idoneus sit , if he thinks him fit . so much time is allowed , propter examinationem , saith lyndwood ; even when there is no dispute about right of patronage . the main thing he is to be examined upon , is his ability to discharge his pastoral duty , as coke calls it ; or as lyndwood saith , whether he be commendandus scientia & moribus . as to the former , the bishop may judge himself ; but as to the latter , he must take the testimonials of others ; and i heartily wish the clergy would be more careful in giving them , by looking on it as a matter of conscience , and not meerly of civility ; for otherwise it will be impossible to avoid the pestering the church with scandalous and ignorant wretches . if the bishop refuses to admit within the time ( which by the modern canons is limited to twenty eight days after the presentation delivered ) he is liable to a duplex querela in the ecclesiastical courts , and a quare impedit at common law ; and then he must certifie the reasons of his refusal . in specot's case it is said , that in 15 hen. 7. 7 , 8. all the iudges agreed , that the bishop is iudge in the examination , and therefore the law giveth faith and credit to his iudgment . but because great inconveniencies might otherwise happen , the general allegation is not sufficient , but he must certifie specially and directly ; and the general rule is , and it was so resolved by the judges , that all such as are sufficient causes of deprivation of an incumbent , are sufficient causes to refuse a presentee . but by the canon law * more are allowed . in the constitutions of othobon , the bishop is required particularly to enquire into the life and conversation of him that is presented ; and afterwards , that if a bishop admits another who is guilty of the same fault for which he rejected the former , his institution is declared null and void . by the canon law , if a bishop maliciously refuses to admit a fit person , he is bound to provide another benefice for him ; but our ecclesiastical law much better puts him upon the proof of the cause of his refusal . but if the bishop doth not examine him , the canonists say it is a proof sufficient that he did it malitiosé . if a bishop once rejects a man for insufficiency , he cannot afterwards accept or admit of him ; as was adjudged in the bishop of hereford's case . if a man brings a presentation to a benefice , the bishop is not barely to examine him as to life and abilities , but he must be satisfied that he is in orders . how can he be satisfied , unless the other produce them ? how can he produce them , when it may be they are lost ? what is to be done in this case ? the canon is express , that no bishop shall institute any to a benefice , who hath been ordained by any other bishop , ( for if he ordained him himself , he cannot after reject him , because the law supposes him to have examined and approved him ) except he first shew unto him his letters of orders , and bring him a sufficient testimony of his fo●mer good life and behaviour , if the bishop shall require it ; and lastly , shall appear upon due examination to be worthy of the ministry . but yet in palmes and the bishop of peterborough's case , it was adjudged , that no lapse did accrue by the clerk's not shewing his orders , for the bishop upon his not coming to him again , collated after six months . but the court agreed , that the clerk ought to make proof of his orders ; but they differed about the manner of their proof . anderson said , the bishop might give him his oath . but if a proof were necessary , and the clerk did not come to make proof , it seems to me to be a very hard judgment . ii. the bishop by the ecclesiastical law , is to visit his diocess , and to take an account of the clergy how they behave themselves in the duties of their places . by the eldest canons i can find , the bishops visitation is supposed as a thing implied in his office ; whereby he is obliged to look after the good estate of his whole diocess , and especially of the clergy in it . in the time of hubert arehbishop of canterbury , in the beginning of king iohn's time , care is taken in the canons then made , that b●shops should not be burdensom to the clergy in the number of the attendants in their visitations , which then were parochial , and the number allowed of twenty or thirty horse , was too heavy for the clergy to bear . and therefore by degrees it was thought fit to turn that charge into a certainty , which was the original of procurations . by the fourth council of toledo , the bishop was to visit his whole diocess , parochially , every year . the gloss saith , if there were occasion for it ; and that the bishop may visit as often as he sees cause ; but if he be hindered , the canon saith , he may send others ( which is the original of the arch-deacon's visitation ) to see not only the condition of the churches , but the lives of the ministers . the council of braga in the latter end of the sixth century , makes this the first canon , that all bishops should visit their diocesses by parishes , and there should first examine the clergy , and then the people ; and in another canon he was required to receive only his cathedraticum , i. e. a certain sum in lieu of entertainment ; which came to be setled by prescription . the council of cavailon in france , a. d. 831. fixed no sum , but desired the bishops to be no burdens to the clergy in their parochial visitations . lyndwood saith , the ancient procuration here , was a day and nights entertainment ; which after came to be a customary payment : but however it was paid , it is an evident proof of the right of the bishops visitations by the ancient ecclesiastical law ; and by such a custom as is allowable by the rules of our common law. iii. there are some faults which make the clergy liable to deprivation by virtue of the ecclesiastical law , which was here received . i shall name only some of them , and conclude ; these being sufficient for my present purpose . i. excessive drinking . all drinking ( ad potus aequales ) was absolutely forbidden to clergymen , on pain of suspension after admonition ; not only by a synodical , but by a provincial constitution under edmund , archbishop of canterbury . the canon law saith in that case , ab officio vel beneficio suspendatur : but our constitution is more severe , à beneficio & officio . the council of oxford not only strictly forbids all clergymen whatever tends to gluttony and drunkenness ; but it requires the bishops to proceed strictly against those who are guilty , according to the form of the general council , i. e. the lateran , 4. viz. by admonition first , and then suspension . lyndwood complains , that this was not so much looked after as it should be , because it brought no profit ; i hope that reason will not hold among those who pretend to reformation ; which will be very defective , if it extend not to our lives as well as our doctrines : for there can be no greater reproach than to see those loose and dissolute in their conversations , who think it their honour to be ministers of a reformed church . it was a stinging reflection upon our church by the archbishop of spalato , ( who was no very strict man himself ) that he saw nothing reformed among us but our doctrines . i hope there was more of satyr than of truth in it ; for i do not question , but there were many then ( as there are now ) of exemplary lives , and unblameable conversations ; but if there be any others , it will be the more shame not to proceed against them ; since even before the reformation , the canons were so strict and severe in this matter . in the council at westminster in henry ii. time , under richard , archbishop of canterbury , all clergymen are forbidden going into taverns to eat or drink , unless upon travelling ; and the sanction of this canon is , aut cesset , aut deponatur . the same was forbidden in the council at york , in the time of richard i. in the council at london under hubert , in the time of king iohn . and since the reformation the same canon is renewed , that no ecclesiastical persons shall at any time , other than for their honest necessities , resort to any taverns or ale-houses . and there have been instances of the severity of our ecclesiastical censures against drunkenness in clergymen . in 8 iac. parker was deprived of his benefice for drunkenness , and moved for a prohibition , but it was denied him . in 9 iac. another was deprived for the same fault ; and the judges at common law allowed the sentence to be good . no doubt there are other instances , but we had not known of these , if they had not been preserved in books of reports . ii. incontinency . lyndwood saith , those who are proved to be guilty of it , are ipso iure privati ; but he thinks a declaratory sentence of the ecclesiastical judges necessary for the execution of it . since the reformation , we have instances of deprivation for adultery in our law books . one 12 eliz. another 16 eliz. a third 27 eliz. these are enough to shew that the ecclesiastical law is allowed by the judges of common law , to continue in sufficient force for deprivation in this case . iii. simony . which is the name given by the ecclesiastical law , to all contracts for gain in the disposing or obtaining any ecclesiastical promotion or ministry . it is true , these do not come up to the very sin of simon magus , which related to the immediate gifts of the holy ghost ; but because the whole ministerial office in all the parts of it ( especially the cure of souls ) is of a spiritual nature ; and all bargains are so repugnant to the design of it , therefore the ecclesiastical law hath fixed that detestable name upon it : for , all contractus non gratuiti in these things , savour of turpe lucrum , and tend to bring in turpe commercium into the church ; which would really overturn the whole design of that ministry , which was designed for the salvation of souls . and therefore it was necessary , that when persons had received ( by the favour of temporal princes and other benefactors , who were founders of churches ) such endowments as might encourage them in their function , that severe laws should be made against any such sordid and mischievous contracts . and such there were here in england long before the excellent stat. of 31 eliz. c. 6. although it seems the force of them was so much worn out , as to make that statute necessary for avoiding of simony ; which is there explained to be corruption in bestowing or getting possession of promotions ecclesiastical . in a council at london under lanfranc , in the conqueror's time , simony was forbidden , under the name of buying and selling of orders . and it could be nothing else before the churches revenue was setled : but in the time of henry i. ecclesiastical benefices were forbidden to be bought or sold , and it was deprivation then to any clergyman to be convicted of it ; and a layman was to be out-lawed , and excommunicated , and deprived of his right of patronage . and this was done by a provincial synod of that time . in the reign of henry ii. it was decreed , that if any person received any money for a presentation , he was to be for ever deprived of the patronage of that church ; and this was not meerly a provincial constitution , but two kings were present ( hen. ii. and his son ) and added their authority to it . this was not depriving a man of his free-hold by a canon , as a learned gentleman calls it ; for here was the greatest authority , temporal as well as ecclesiastical added to it . but we are told , these canons were of as little effect as that of othobon , which made all simoniacal contracts void ; but some of the most judicious lawyers have held , that simony being contractus ex turpi causâ , is void between parties . all that i aim at is to shew , that by our old ecclesiastical law , simoniacus incurred a deprivation and disability before the stat. 31. eliz. and therein i have the opinion of a very learned judge concurring with me . iv. dilapidations . by which the ecclesiastical law understands any considerable impairing the edifices , woods , and revenues belonging to ecclesiastical persons , by virtue of their places . for it is the greatest interest and concernment of the church to have things preserved for the good of successors ; and it is a part of common iustice and honesty so to do . and the lord coke positively affirms , that dilapidation is a good cause of deprivation . and it was so resolved by the judges in the kings bench , 12 iac. not by virtue of any new law or statute , but by the old ecclesiastical law. for which coke refers to the year-books , which not only shew what the ecclesiastical law then was , but that it was allowed by the common law of england ; and we are told , that is never given to change ; but it may be forced to it by a new law , which cannot be pretended in this case . and by the old constitutions here received , the bishops are required to put the clergy in mind of keeping their houses in sufficient reparations , and if they do it not within two months , the bishop is to take care it be done out of the profits of the benefice . by the injunctions of edw. vi. and queen elizabeth , all persons having ecclesiastical benefices , are required to set apart the fifth of their revenue to repair their houses ; and afterwards to maintain them in good condition . v. pluralities . by the ecclesiastical law , which was here received , the actual receiving institution into a second benefice made the first void ipso iure ; and if he sought to keep both above a month , the second was void too . lyndwood observes , that the ecclesiastical law had varied in this matter . and it proceeded by these steps , ( which are more than lyndwood mentions . ) i. it was absolutely forbidden to have two parishes , if there were more than ten inhabitants in them , because no man could do his duty in both places . and if any bishop neglected the execution of it , he was to be excommunicated for two months , and to be restored only upon promise to see this canon executed . ii. the rule was allowed to hold , as to cities , but an exception was made as to small and remote places , where there was a greater scarcity of persons to supply them . iii. if a man had two benefices , it was left to his choice , which he would have : but he could not hold both . this kind of option was allowed by the ecclesiastical law then in force . iv. that if he takes a second benefice , that institution is void , by the third council of lateran , under alexander 3. v. that by taking a second , the first is void ; which is the famous canon of the fourth lateran council . vi. that if he were not contented with the last , but endeavour to keep both , he should be deprived of both . and this was the ecclesiastical law as it was declared in our provincial constitutions . but the general practice was to avoid the former , according to the lateran council . these were very severe canons , but that one clause of the pope's dispensing power , made them to signifie little , unless it were to advance his power and revenue . for when the dispensing power came to be owned , the law had very little force ; especially as to the consciences of men. for if it were a law of god , how could any man dispense with it ? unless it were as apparent that he had given a power in some cases to dispense , as that he had made the law. those casuists are very hard put to it , who make residence iure divino , and yet say the pope may dispense with it ; which at last comes only to this , that the pope can authoritatively declare the sufficiency of the cause : so that the whole matter depends upon the cause ; whether there can be any sufficient to excuse from personal residence . it is agreed on all hands , that the habitual neglect of a charge we have taken upon our selves , is an evil thing , and that it is so to heap up preferments meerly for riches , or luxury , or ambition ; but the main question in point of conscience is , what is a sufficient cause to justifie any man's breaking so reasonable and just a rule as that of residence is . it cannot be denied , that the eldest canons of the church were so strict and severe , that they made it unlawful for any man to go from that church in which he first received orders ; as well as to take another benefice in it : and so for any bishop to be translated from that place he was first consecrated to ; as well as to hold another with it . but the good of the church being the main foundation of all the rules of it ; when that might be better promoted by a translation , it was by a tacit consent looked on , as no unjust violation of its rules . the question then is , whether the churches benefit may not in some cases make the canons against non-residence as dispensible , as those against translations ? and the resolution of it doth not depend upon the voiding the particular obligation of the incumbent to his cure ; but upon some more general reason with respect to the state of the church ; as being imployed in the service of it , which requires a persons having ( not a bare competency for subsistence , but ) a sufficiency to provide necessaries for such service : for those seem to have very little regard to the flourishing condition of a church , who would confine the sufficiency of a subsistence , meerly to the necessaries of life . but it seems to be reasonable , that clergymen should have incouragement sufficient , not only to keep them above contempt , but in some respect agreeable to the more ample provision of other orders of men. and by god's own appointment the tribe of levi did not fall short of any of the rest , if it did not very much exceed the proportion of others . we do not pretend to the privileges they had , only we observe from thence , that god himself did appoint a plentiful subsistence for those who attended upon his service . and i do not know what there is levitical or ceremonial in that . i am sure the duties of the clergy now require a greater freedom of mind from the anxious cares of the world , than the imployments of the priests and levites under the law. but we need not go so far back ; if the church enjoyed all her revenues as entirely , as when the severe canons against pluralities were made , there would not be such a plea for them , as there is too much cause for in some places , from the want of a competent subsistence . but since that time , the abundance of appropriations ( since turned into lay-fees ) hath extreamly lessened the churches revenues , and have left us a great number of poor vicarages , and arbitrary cures , which would hardly have afforded a maintenance for the nethinims under the law , who were only to be hewers of wood , and drawers of water . but this doth not yet clear the difficulty : for the question is , whether the subsistence of the clergy can lawfully be improved by a plurality of livings ? truly , i think this ( if it be allowed in some cases lawful ) to be the least desirable way of any ; but in some circumstances it is much more excusable than in others . as when the benefices are mean , when they lie near each other , when great care is taken to put in sufficient curates with good allowance ; when persons take all opportunities to do their duties themselves , and do not live at a distance from their benefices in an idle and careless manner . but for men to put in curates meerly to satisfie the law , and to mind nothing of the duties of their places , is a horrible scandal to religion and our church , and that , which if not amended , may justly bring down the wrath of god upon us . for the loosest of all the popish casuists look upon this as a very great sin , even those who attributed to the pope the highest dispensing power in this case . but when the great liberty of dispensing had made the ecclesiastical laws in great measure useless , then it was thought fit by our law-makers to restrain and limit it by a statute made 21 h. viii . wherein it is enacted , that if any person or persons having one benefice with cure of souls , being of the yearly value of eight pounds , or above , accept , or take any other with cure of souls , and be instituted , and inducted in possession of the same , that then , and immediately after such possession had thereof , the first benefice shall be adjudged to be void . and all licenses and dispensations to the contrary are declared to be void and of none effect . this , one would have thought , had been an effectual remedy against all such pluralities and dispensations to obtain them ; and this , no doubt , was the primary design of the law ; but then follow so many proviso's of qualified men to get dispensations , as take off a great deal of the force and effect of this law. but then it ought well to be consider'd , whether such a license being against the chief design of a law , can satisfie any man in point of conscience , where there is not a just and sufficient cause ? for , if the pope's dispensation , with the supposed plenitude of his power , could not satisfie a man's conscience without an antecedent cause , as the casuists resolve , much less can such proviso's do it . it is the general opinion of divines and lawyers , saith lessius , that no man is safe in conscience by the pope's dispensation for pluralities , unless there be a just cause for it . no man can with a safe conscience , take a dispensation from the pope for more benefices than one , meerly for his own advantage , saith panormitan ; and from him sylvester and summ. angelica . a dispensation , saith cardinal to-let , secures a man as to the law ; but as to conscience there must be a good cause for it ; and that is , when the church hath more benefit by it , than it would have without it . but the pope's dispensing power went much farther in point of conscience in their opinion , than that which is setled among us by act of parliament . for it is expressed in the statute of 21 hen. viii . that the dispensation is intended to keep men from incurring the danger , penalty , and forfeiture in the statute comprised . so that the most qualified person can only say , that the law doth not deprive him ; but he can never plead that it can satisfie him in point of conscience , unless there be some cause for it , which is of more moment to the church , than a man 's sole and constant attendance on a particular cure is . but this statute is more favourable to the clergy , than the canon law was before , in two particulars . 1. in declaring that no simple benefices , or meer dignities , as the canonists call them , are comprehended under the name of benefices , having cure of souls , viz. no deanary , archdeaconry , chancellorship , treasurership , chantership , or prebend in any cathedral or collegiate church , nor parsonage that hath a vicar endowed , nor any benefice perpetually appropriate . but all these before were within the reach of the canon law , and a dispensation was necessary for them : which shews , that this law had a particular respect to the necessary attendance on parochial cures , and looked on other dignities and preferments in the church , as a sufficient encouragement to extraordinary merit . 2. that no notice is taken of livings under the valuation of 8 l. which , i suppose , is that of 20 e. 1. for that of h. 8. was not till five years after that statute . but after that valuation it was to be judged according to it , and not according to the real value , as the judges declared 12 car. i. in the case of drake and hill. now here was a regard had to the poorness of benefices , so far , that the statute doth not deprive the incumbent upon taking a second living , if the former be under 8 l. the question that arises from hence is , whether such persons are allowed to enjoy such pluralities by law ; or only left to the ecclesiastical law , as it was before ? it is certain , that such are not liable to the penalty of this law ; but before any person might be deprived by the ecclesiastical law for taking a second benefice without dispensation , of what value soever the former were ; now here comes a statute , which enacts , that all who take a second benefice , having one of 8 l. without qualification , shall lose his legal title to the first ; but what if it be under ? shall he lose it or not ? not by this law. but suppose the ecclesiastical law before makes him liable to deprivation ; doth the statute alter the law without any words to that purpose ? the bishop had a power before to deprive , where is it taken away ? the patron had a right to present upon such deprivation ; how comes he to lose it ? and i take it for granted , that no antecedent rights are taken away by implications ; but there must be express clauses to that purpose . so that i conclude , the ancient ecclesiastical law to be still in force , where it is not taken away by statute . and thus , my brethren , i have laid before you the authority and the rules we are to act by ; i have endeavoured to recommend to you , the most useful parts of your duty , and i hope you will not give me occasion to shew what power we have by the ecclesiastical law of this realm to proceed against offenders . nothing will be more uneasie to me , than to be forced to make use of any severity against you . and my hearts desire is , that we may all sincerely and faithfully discharge the duties of our several places , that the blessing of god may be upon us all ; so that we may save our selves , and those committed to our charge . of the nature of the trust committed to the parochial clergy , at a visitation at worcester , october 21 st . 1696. my brethren , i have formerly , on the like occasion , discoursed to you of the general duties of your function , and the obligation you are under to perform them ; and therefore i shall now confine my discourse to these two things : i. to consider the particular nature of the trust committed to you . ii. the obligation you are under to your parochial cures . i. the first is necessary to be spoken to ; for while persons have only so confused and cloudy apprehensions concerning it , they can neither be satisfied in the nature of their duties , nor in their performance of them . and there is danger as well in setting them so high as to make them impracticable , as in sinking them so low as to make , not only themselves , but their profession contemptible . for the world ( let us say what we will ) will always esteem men , not meerly for a name and profession , but for the work and service which they do . there is , no doubt , a reverence and respect due to a sacred function on its own account ; but the highest profession can never maintain its character among the rest of mankind , unless they who are of it , do promote the general good , by acting suitably to it . and the greater the character is , which any bear , the higher will the expectations of others be concerning them ; and if they fail in the greatest and most useful duties of their function , it will be impossible to keep up the regard which ought to be shew'd unto it . we may complain as long as we please of the unreasonableness of the contempt of the clergy in our days , ( which is too general , and too far spread ) but the most effectual means to prevent or remove it , is for the clergy to apply themselves to the most necessary duties , with respect to the charge and trust committed to them . but here arises a considerable difficulty , which deserves to be cleared ; viz. concerning the just measures of that diligence which is required . for , there are some who will never be satisfied that the clergy do enough , let them do what they can ; and it is to no purpose to think to satisfie them who are resolved not to be satisfied : but on the other side , some care not how little they do , and the less , the better they are pleased with them ; and others again , have raised their duties so high , that scarce any man can satisfie himself that he hath done his duty . it is a matter therefore of the highest consequence to us , to understand , what rule and measure is to be observed , so as we may neither wilfully neglect our duty , nor despair of doing it . here we are to consider two things ; 1. how far the scripture hath determined it . 2. what influence the constitution of our church is to have upon us concerning it . 1. the scripture doth speak something relating to it , both in the old and new testament . in the old testament we have the duties enjoyned to the levitical priesthood , and the extraordinary commissions given to the prophets . as to the levitical priesthood , we can only draw some general instructions , which may be of use , altho' that priesthood hath been long since at an end ; christ being our high-priest after another order , viz. of melchisedeck ; and our duty now is to observe his laws , and to offer that reasonable service which he requires . but even from the levitical priesthood , we may observe these things . 1. that although the main of their duty of attendance respected the temple and sacrifices ; yet at other times they were bound to instruct the people in the law. for so moses leaves it as a special charge to the tribe of levi , to teach iacob his iudgments , and israel his law. and to incourage them to do it , they had a liberal maintenance , far above the proportion of the other tribes . for , by computation it will be found , that they were not much above the sixtieth part of the people ; for when the other tribes were numbred from twenty years old , they made six hundred thousand , and three thousand and five hundred and fifty . but the children of levi were reckoned by themselves from a month old ; and they made but two and twenty thousand ; so that if the males of the other tribes had been reckoned , as they were , it is agreed by learned men , who had no fondness for the clergy , that they did not make above a fiftieth or sixtieth part ; and yet they had near a fifth of the profits , besides accidental perquisites , as to sacrifices , and ransoms of the first-born . thus , say they , god was pleased to enrich that tribe which was devoted to his service . but it was not certainly , that they should spend their time in idleness and luxury , but that they might with the greater freedom apply themselves to the study of the law , that they might instruct the people . for the cities of the levites were as so many colleges dispersed up and down in the several tribes , to which the people might upon occasion , more easily resort . 2. that if the people erred thro' ignorance of the law , god himself laid the blame on those who were bound to instruct them . my people , saith god by the prophet , are destroyed for lack of knowledge . if people are resolved to be ignorant , who can help it ? had they not the law to inform them ? but it is observable , that the peoples errors are laid to the charge of the priests , and the punishment is denounced against them . because thou hast rejected knowledge , i will also reject thee , that thou shalt be no priest unto me . it seems the priests were grown careless and negligent , as to their own improvements ; they did not know to what purpose they should take so much pains in studying the law , and the difficult points of it ; they were for a freedom of conversation , and hoped to keep up their interest among the people that way . therefore isaiah call them shepherds that cannot understand ; but were very intent upon their profits , they all look to their own way , every one for his gain from his quarter . but this was not all , for the prophet charges them with a voluptuous , careless , dissolute life . come ye , say they , i will fetch wine , and we will fill our selves with strong drink , and to morrow shall be as this day , and much more abundant . was not this a very agreeable life for those who were to instruct the people in the duties of sobriety and temperance ? it was death for the priests by the law to drink wine or strong drink , when they went into the tabernacle of the congregation ; and the reason given is , that ye may put a difference between holy and unholy , and between unclean and clean ; and that ye may teach the children of israel all the statutes , which the lord hath spoken to thee by the hand of moses . which implies , that those who are given to drinking wine or strong drink , are very unfit to instruct others in the law of god. and god looked on them as such a dishonour to his worship , that he threatens immediate death to them that approached to his altar , when they had drank wine ; and the iews say , that was the reason why nadab and abihu were destroyed . and then god said , i will be sanctified in them that come nigh me . all nations have abhorred sottish and drunken priests , as most unfit to approach to god when they were not themselves ; or to offer sacrifices for others , when they made beasts of themselves . but this was not all ; for god required from them who were to teach others the law , that they should be always in a capacity of understanding and practising it themselves . but if we proceed to the prophets , nothing can be more dreadful , than what god saith to ezekiel , that if he did not warn the people as he commanded them , their blood will i require at thy hand . is this charge now lying upon every one of you , as to every person under your care ? who would not rather run into a wilderness , or hide himself in a cave , than take such a charge upon him ? but we must distinguish what was peculiar to the prophet's immediate commission to go to any particular person in god's name , from a general charge to inform persons in their duties , and to tell them the danger of continuing in their sins . if any fail for want of information , when you are bound to give it , the neglect must fall heavy , and therefore you are bound to take all just opportunities in publick and private to inform those under your care of such sins as you know them to be guilty of ; not with a design to upbraid , but to reform them . in the new testament the charge is general to feed the flock of god ; and to do it willingly , not for filthy lucre , but of a ready mind ; and to be examples to the flock . but st. peter , who gives this advice , doth not determine who belong to the flock ; nor within what bounds it is to be limited ; and there were many flocks in the iewish dispersion , and many elders scattered up and down among them in pontus , asia , galatia , cappadocia , and bithynia ; so that here we have only general and excellent advice for such who had care of the several flocks , to carry themselves towards them with great humility and tenderness , with charity and goodness , as those that made it their business to do good among them , and conduct them in the way to heaven . st. paul , in his charge to those whom he sent for to miletus , tells them , that they must take heed to themselves , and to all the flock , over which the holy ghost hath made them overseers , to feed the church of god , which he hath purchased with his own blood. it 's possible here might be a particular designation of the flock they were to oversee , by the direction of the holy ghost ; but yet the charge is general to take heed to themselves and to the flock , and to promote the good of the church of god , which christ hath purchased with his own blood. which are the most weighty considerations in the world to excite us to the utmost care and diligence in discharge of our duties . in the epistle to the thessalonians they are said to be over them in the lord , and to admonish them . in that to the hebrews , to watch for their souls , as they that must give an account . no doubt , very great care and watchfulness is required in all that take so great and solemn an office upon them ; but where are the bounds and limits set , as to the people , and nature of the duties required from them ? must every man be left to his own conscience and judgment , what , and how far he is to go ? or can we suppose all men equally careful of doing their duties , if no particular obligation be laid upon them ? some of the eloquent fathers of the church , as st. chrysostom , st. ierom , st. gregory nazianzen , and others , have allowed themselves so much in the flights of fancy , and figures of speaking about the height and dignity of the sacred function , as if they had a mind to discourage all men of modest and humble dispositions from undertaking it . i do not wonder that they ran into solitudes , and withdrew from the world upon it ; but i do wonder how they came from thence and undertook the same charge afterwards , without giving an answer to their own arguments . for the world remained just as it was when they left it . mankind were still as impatient of being governed , or told of their faults , as sickle and humoursom , as prone to evil , and untractable to good , as it was before . and could they hope it would ever mend by their running away from it ? or , was their duty become more easie by declining it ; i think it was very well for the church of god , that , notwithstanding their own many arguments , they took the sacred office upon them at last , and did god and the church good service in it . but if men were to judge by their writings upon this argument , one would think none but those who had a mind to be damned , would undertake it . and their great strains of wit and eloquence , if they had any force , would keep the best men out of the church , who were most likely to do god service in it ; and we need no other instances than these very persons themselves . and if all good , and humble , and conscientious men should for the sake of the hardness of the work , decline the church's service , and take any other lawful imployment , what would become of the church of god ? for none that had , or intended to keep a good conscience , could undertake the cure of souls ; and so they must be left to such as had no regard to their own ; but were either ignorant , stupid and senseless creatures , or such as regarded not their own salvation , who durst undertake such a task , as would not only add to their own guilt , but bring the heavy load of other mens faults upon them too . what is now to be done in this case ? hath god really imposed such a task upon all those who enter into this sacred function , that it is morally impossible for an honest man to discharge it with a good conscience ? how then can any such undertake it ? but if it may be done , what are those bounds and rules we are to observe , so as a good man may satisfie himself in a competent measure , that he hath done his duty ? ii. and this is that which i shall now endeavour to clear . for every one who is in orders , hath a double capacity : one with respect to the church of god in general ; another to that particular flock which is allotted to him , by the constitution of this church , and the law of the land. for although the nature of our duty in general be determined by the word of god , as i have already ready shewed , yet the particular obligation of every one to his own flock , is according to that power and authority , which by the rules and orders of this church is committed to him , and is fully expressed in the office of ordination . by which it plainly appears , that the care of souls committed to persons among us , is not an absolute , indefinite , and unaccountable thing ; but is limited , as to place , persons , and duties , which are incumbent upon them . they are to teach the people committed to their charge ; by whom ? by the bishop when he gives institution . they are to give private as well as publick monitions and exhortations , as well to the sick , as to the whle : what , to all ? no , but to those within their cure. they are to banish erroneous doctrines , and to promote peace and love , especially among them committed to their charge . and last of all , they are to obey those who have the charge and government over them . these things are so express and plain in the very constitution of this church , and owned so solemnly by every one that enters into orders , that there can be no dispute concerning them . and from thence we observe several things that tend to the resolution of the main point , as to the satisfaction of doing your duties , as incumbents on your several places . i. that it is a cure of souls limited as to persons and place , i.e. within such a precinct as is called a parish . ii. that it is limited as to power , with respect to discipline . therefore i shall endeavour to clear these two things : i. what the just bounds and limits of parochial cures are . ii. what is the measure of that diligence which is required within those bounds . as to the former , we are to begin with the limitation as to place . i. that it is a cure of souls limited within certain bounds which are called parishes , which are now certainly known by long usage and custom , and ought still to be preserved with great care ; for otherwise confusion and disputes will arise between several ministers , and several parishes with one another . for since the duties and the profits are both limited , it is necessary that those bounds should be carefully preserved , as they generally are by annual perambulations . but there are some who will understand nothing of this bounding of ministerial duties by distinct parishes , who think they are at liberty to exercise their gifts where-ever they are called ; and that it were better that these parochial inclosures were thrown open , and all left at liberty to chuse such whom they liked best , and under whom they can improve most . these things seem to look plausibly at the first appearance , and to come nearest to the first gathering of churches , before any such thing as parishes were known . but to me this arguing looks like persons going about now to overthrow all dominion and property in lands and estates , because it seems not so agreeable with the first natural freedom of mankind ; who according to the original right of nature , might pick and chuse what served most to their own conveniency . but although this were the first state of things , yet the great inconveniencies which followed it , upon the increase of mankind , made division and property necessary ; and altho' there be no express command of god for it , yet being so necessary for the good of mankind , it was not only continued every where , but those persons were thought fit to be punished by severe laws , who invaded the rights and properties of others , either by open violence and rapine , or by secret stealth and purloining i grant , that at first there were no such parochial divisions of cures here in england , as there are now . for the bishops and their clergy lived in common ; and before that the number of christians was much increased , the bishops sent out their clergy to preach to the people , as they saw occasion . but after the inhabitants had generally embraced christianity , this itinerant and occasional going from place to place , was found very inconvenient , because of the constant offices that were to be administred ; and the peoples knowing to whom they should resort for spiritual offices and directions . hereupon the bounds of parochial cures were found necessary to be settled here by degrees , by those bishops who were the great instruments of converting the nation from the saxon idolatry . but a work of this nature could not be done all at once , as by a kind of agrarian law , but several steps were taken in order to it . at first , as appears by bede , they made use of any old british churches that were left standing ; so augustin at first made use of st. martin's near canterbury , and after repaired christs-church , which were both british churches . but ethelbert gave all incouragement both to repair old churches and to build new. however , the work went on slowly ; augustin consecrated but two bishops , which were setled at london and rochester , where ethelbert built and endowed two churches for the bishops and their clergy to live together . in the western parts bicinus built several churches about dorchester , where his see was fixed . wilfred converted the south-saxons , and settled presbyters in the isle of wight , but they were but two . in the kingdom of mercia there were five diocesses made in theodore's time ; and putta , bishop of rochester , being driven from his see , he obtained from saxulphus , a mercian bishop , a church with a small glebe , and there he ended his days . in the northern parts we read of two churches built by two noblemen , ( puch and addi ) upon their own manors . and the same might be done elsewhere ; but bede would never have mentioned these , if the thing had been common . but in his epistle to egbert , archbishop of york , a little before his death he intimates the great want of presbyters and parochial settlements , and therefore earnestly perswades him to procure more . and if egbert's canons be genuine ( of which there are several ancient mss. ) the duties of presbyters in their several churches are set down : however , the work went not on so fast , but in his successor eanbaldus his time , the bishops were required to find out convenient places to build churches in ; and the same passed in the southern parts by general consent . in the council of cloveshoo , we read of presbyters placed up and down by the bishops in the manors of the laity , and in several parts distinct from the episcopal see ; and there they are exhorted to be diligent in their duties . in the times of edgar and canutus , we read of the mother churches , which had the original settlement of tithes , ( after they were given to the church by several laws ) and of the churches built upon their own lands by the lords of manors ; to which they could only apply a third part of the tithes . but in the laws of canutus , we find a fourfold distinction of churches . 1. the head church , or the bishop's see. 2. churches of a second rank , which had right of sepulture , and baptism , and tithes . 3. churches that had right of sepulture , but not frequented . 4. field-churches or oratories , which had no right of burial . the second sort seem to be the original parochial churches which had the endowment of tithes , and were so large , that several other churches were taken out of them by the lords of manors ; and so the parishes came to be multiplied so much , that in the laws of edward the confessor , c. 9. it is said , that there were then three or four churches , where there had been but one before . in this diocess i find by an epistle of wulston , bishop of worcester , to anselm , that before the conquest there were churches in vills , or upon particular manors that were consecrated . and if william the conqueror demolished six and thirty parish churches in the compass of the new forest , as is commonly said , there must be a very great number before the conquest ; although so few are said to appear in doomsday book ; ( yet there are many parochial churches of this diocess in it , above twenty in two deanaries ) but the normans almost ruined the parochial clergy , by seizing the tithes , and making appropriations of them . but in the saxon times the number still encreased , as lords of manors and others were willing to erect new churches , and to have a settled parochial minister among them , who was to take care of the souls of the people within such a precinct , as hath obtained the name of a parish . but parishes now are of a very different extent and value ; but the obligation which the law puts upon them , is the same ; only where the maintenance is greater they may have the more assistants . and from hence came the difference among the parochial clergy ; for , those whose parishes were better endowed , could maintain inferior clerks under them , who might be useful to them in the publick service , and assist them in the administration of sacraments . and this was the true original of those we now call parish-clerks ; but were at first intended as clerks-assistant to him that had the cure ; and therefore he had the nomination of them , as appears by the ecclesiastical law , both here and abroad . and lyndwood saith , every vicar was to have enough to serve him , and one clerk or more ; and by the canon-law , no church could be founded , where there was not a maintenance for assisting-clerks . in the synod of worcester , under walter cantelupe , in henry the third's time , they are called capellani parochiales , and the rectors of parishes were required to have such with them . and the canon law doth allow a rector to give a title to another to receive orders as an assistant to him ; and this without any prejudice to the patron 's right ; because but one can have a legal title to the cure. but lyndwood observes very well , that those who gives titles to others , as their assistants or curates , are bound to maintain them if they want . these are called vicarii parochiales , & stipendiarii ; but conductitii presbyteri , who are forbidden , were those who took livings to farm , without a title . but after appropriations came in , then there were another sort of vicars called perpetui , and were endowed with a certain portion of the temporalities , and were admitted ad curam animarum : but such could not personam ecclesiae sustinere in an action at law about the rights of the church , but as to their own right they might . but still there is another sort of vicars , who are perpetual , but not endowed any otherwise than the bishop did allow a congrua portio ; and this was in appropriations where the bishop consented only upon those terms , as they generally were so made , till the neglect made the statutes necessary , 15 r. 2. 6. and 4 h. 4. 12. the bishops were to make , or enlarge the allowance , say the canonists , after presentation , and before institution , and were to see that it were a sufficient subsistence . but there were some cures which had chapels of ease belonging to them ; and they who offiuated in them , were called capellani , and had their subsistence out of the oblations and obventions , and were often perpetual and presentative . and where the incumbents had several chapels of ease , and only assistants to supply them , the canon law doth not call them rectores , but plebani ; who had a sort of peculiar jurisdiction in lesser matters ; but still they were under the bishops authority in visitations and other ecclesiastical censures , because the care of the whole diocess belonged to him iure communi ; and so it was taken for granted in all parts of the christian world : and especially in this kingdom , where parochial episcopacy was never heard of till of late years . for , nothing can be plainer in our history , than what is affirmed in two of our laws , stat. of carlisle , 25 e. 1. and the stat. of provisors , 25 e. 3. that the church of england was founded in prelacy , or diocesan episcopacy . for our first bishops were so far from being confined to one church or town , that at first in the saxon-division of kingdoms , every bishop had his diocess equal with the extent of the kingdom , except in kent , where one suffragan to the archbishop at rochester was confirmed . the first conversion of the english nation to christianity from paganism , was by the diocesan bishops , who were sent hither from several parts , and the presbyters imployed by them ; and as the number of christians increased , the number of bishops did so too ; so that in the parts of mercia one diocess was divided into five , that they might the better look after the government of them ; and every bishop , as appears by the saxon-councils , was bound to see parochial churches built , and the clergy to be settled in them to attend upon the duties of their function among the people committed to their charge . that which i have aimed at in this discourse , was to shew , that the original constitution of this church , was episcopal ; but yet that the bishops did still design to fix a parochial clergy under them , as churches could be built and endowed . it remains now to shew , that this constitution of a parochial clergy , is more reasonable , than that of an unfixed , and unsettled clergy by law ; which will easily appear , if we consider , 1. the greater advantage as to unity , and real edification among the people . for this makes them to be as one body within certain bounds : and the people know whither to resort for publick worship and sacraments ; and the inconveniencies , as to the difference of mens abilities , is not so great , as the inconveniency of a broken , divided people , as to religion ; which always creates suspicions and jealousies , and generally contempt and hatred of each other . and i think every wise and good christian will consider , that which tends to peace and unity , is really more edifying than a far better talent of elocution , or the most moving way of exciting the fancies and passions of hearers . for , s. paul tells us , charity is beyond miraculous gifts . it is easie to observe , that the wisest methods are seldom the most popular ; because the generality of mankind do not judge by reason , but by fancy , and humour , and prejudices of one kind or other . from hence the heats of enthusiasm , and odd gestures , and vehement expressions , with no deep or coherent sense , take much more with ordinary and injudicious people , than the greatest strength and clearness of reason , or the soundest doctrine , and the most pious exhortation , if they be not set off in such a way as strikes their imaginations , and raises their passions . and this is that which such do commonly call the most edifying way of preaching , which is like the coming up of the tide with noise and violence , but leaves little effect ; whereas the other is like a constant stream which goes on in a steady and even course , and makes the earth more fruitful . the one is like a storm of thunder and lightning , which startles , and confounds , and amuses more ; but the other is like a gentle rain which softens and mellows the ground , and makes it more apt to produce kindly and lasting fruit. we are to judge of true edification , not by the sudden heat and motion of passions , but by producing the genuine effects of true religion ; which are fixing our minds on the greatest and truest good , and calming and governing our disorderly passions , and leading a godly , righteous and sober life . but we too often find violent and boisterous passions , an ungovernable temper , envy , strife and uncharitableness , growing up with greater pretences to zeal , and better ways of edification . i never expect to see the world so wise , as to have persons and things universally esteemed according to their real worth. for there will be a tincture in most persons , from temper , and inclination , and the principles of education ; but generally speaking matters of order and decency , and things which tend to a publick good , affect those most , who have the best judgment and temper ; and irregular heats , and disorderly methods of praying and preaching , those whose religion makes more impression upon their fancies , than their judgments , and is seen more in the inflaming their passions , than in keeping them in their due order . 2. there is a greater advantage as to discipline : for , if among the teachers they are under no bounds nor subjection to a superiour authority , it is very easie to avoid any kind of censure for the most corrupt doctrines or practices . we cannot boast much of the strict exercise of discipline among us ; and one great reason is , that many have more mind to complain of the want of it , than to do their endeavour to amend it . we hear of many complaints of the clergy in general , and sometimes by those who have more mind to have them thought guilty , than to prove them so , for fear they should acquit themselves , or at least the church should not bear the blame of their miscarriages . but we cannot proceed arbitrarily , we must allow them timely notice , and summon them to appear , and a just liberty of defence ; but if upon proof , and sufficient evidence we have not proceeded against them with the just severity of the law , then we ought to bear the blame , but not otherwise . but whatsoever personal neglects or faults there have been , or may be , my business is to shew , that our way is much better fitted for the just exercise of discipline , than that of independant congregations , altho' the managers of them pick and cull out the best they can for their purpose ; and one would think , when they had made choice of members to their mind , and bound them together by an explicit covenant , they should be very easie , and tractable , and submissive to their own discipline . but they have found the contrary by their sad experience ; they grow too heady and wilful to bear any such thing as strict discipline ; for when they had the courage to exercise it , their congregations were soon broken to pieces , and the several divided parts were for setting up new heads one against another , till at last they found it was much easier to be teaching than to be ruling elders . and so they have let the reins of discipline fall to keep their congregations together . but suppose the teachers should fall out among themselves ; as , to give a fresh and late remarkable instance : suppose some set up antinomianism , and preach such doctrines to the people or flocks before you , which others think of dangerous consequence , what is to be done in such a case ? they may send some brethren to enquire whether the matters of fact be true . suppose they find them true , what then ? what is to be done next ? it may be , some would have them come up to their brethren and answer to the accusations brought against them . but suppose they will not ; and others of the brethren say , they ought not ; and so fall into heats and disputes among themselves about it , and make new parties and divisions : is not this an admirable way of preserving peace , and order , and discipline in a church ? and i am as certain , this is not the way of christ's appointing , as i am , that god is the god of order , and not of confusion ; and that when christ left the legacy of peace to his church , he left a power in some to see his will performed . but these things can never be objected against us ; for all are members of the same body , and are governed by certain and known rules ; and if any be guilty of open violation of it , the way is open to accuse and prosecute them ; and if they be found guilty , the censures of the church will render them uncapable of doing it in such a station ; or at least , to bring them to confession of their fault , and promise of future amendment . and now i leave any one to judge , whether the parochial clergy are not under greater and better discipline , than the teachers of the separate congregations . ii. but the great complaint of such men is , that we want parochial and congregational discipline , so that faults should be examined and punished where they have been committed ; but instead of that , all matters are drawn into the ecclesiastical court , and there causes are managed so , as looks rather like a design to punish men in their purses , than for their faults ; and the delays are so great , that the court it self seems to be designed for penance , and grows very uneasie , even to those who are the members of our church . and some think that the proceeding against men upon articles of enquiry , not so agreeable to the rights and liberties of mankind . in answer to this , i shall consider , ( 1. ) the proceedings upon enquiry at visitations . ( 2. ) the method of proceeding in the ecclesiastical courts . ( 3. ) the inconveniencies of parochial discipline . 1. as to enquiries at visitations . they were grounded upon one of the main pillars of our law , viz. an ancient , immemorial custom founded upon good reason : in the first canons that ever were made in this church under theodore , archbishop of canterbury ; the second is , that every bishop is to look after the government of his own diocess , and not to invade anothers . and that in so doing they went about their diocesses in order to an enquiry and correction of miscarriages , is evident from the council under cuthbert , archbishop of canterbury , can. 3. 25. the first council at calechyth , can. 3. the constitutions of odo , archbishop of canterbury , can. 3. and the canon of edgar , can. 3. but in these saxon times , the visitations were annual , which were found inconvenient ; and therefore in the norman times , the archdeacons were taken into a part of the jurisdiction under the bishop , and visited those years the bishop did not . but we meet with no archdeacons with any kind of jurisdiction in the saxon times ; we read indeed sometimes of the name of archdeacons , but they had nothing to do in the diocess , but only attended the bishop at ordinations , and other publick services in the cathedral . lanfranc was the first who made an archdeacon with jurisdiction in his see. and thomas first archbishop of york , after the conquest , was the first who divided his diocess into archdeaconries ; and so did remigius , bishop of lincoln , his large diocess into seven archdeaconries , saith h. of huntingdon : and so it was with the rest ; of which there were two occasions , 1. the laying aside the corepiscopi in the western parts , as assuming too much to themselves . 2. the publick services which the bishops were more strictly tied to , as the king's barons in the norman times : which was the reason not only of taking in archdeacons , but likewise of archpresbyters or rural-deans , who had some inspection into the several deanaries , and assisted the bishop in such things , as they were appointed to do ; and then came in the other ecclesiastical officers , as vicars general , chancellors , commissaries , &c. for we read not of them here at all in the saxon times ; but about the time of hen. ii. the bishops took them for their assistance in dispatch of causes , when the king required their strict attendance on the publick affairs in the supreme court of parliament . 2. as to the method of proceeding in the ecclesiastical courts , it is no other than hath been continued here without interruption , till of late years , ever since the conquest . for the consistory-court , and the rules of proceeding there , were established by a law in the time of william the first . as far as i can find by king edward's laws , c. 4. the bishops did then proceed by the ecclesiastical laws , although they then sat in the county-court ; but this caused so much confusion , that william , by a general consent , and a charter directed to all the people of england , doth separate the ecclesiastical from the temporal courts ; which was enrolled as good law , 2 r. 2. upon occasion of a suit of the dean and chapter of lincoln ; and therefore the charter of remigius , bishop of lincoln , is more mentioned than others , but the same was to all the bishops and counties of england , as appears by other copies of it . thus the consistory-court was first established , as a distinct court from the county-court , which it was not in the saxon times , for then the bishop sate with the civil magistrate in the same court ; and ecclesiastical causes were first heard and decided there . it seems the people wer very unwilling to go to a new place ; and therefore the law is inforced with severe penalties for contempt . and those who object against the reasonableness of the method of proceeding in those courts , must reflect upon some of the wisest nations in the world , who have gone upon the same grounds , in all that have received the civil law , and upon some of the greatest courts at this time in the kingdom , as the chancery and admiralty , which go by the same fundamental rules . as to any objections which arise from the personal faults of those who are imployed in them , that reaches , i am afraid , to all courts ; and it ought to be the work and business of those who look after them , to do what in them lies , to reform them , that others faults may not be laid at their doors . 3. but for those who would have a parochial or congregational discipline set up , as much better , and more effectual , i shall desire them to consider , that since matters of discipline are such , as that in them the reputation and interest of persons is very much concerned , they ought not to be left to arbitrary proceedings of any persons , but they ought to be managed by the certain and common rules of justice ; since every man hath a right to defend himself , when he is accused . and unless there be known and established methods of proceeding agreeable to natural justice , and the laws of the land , nothing would be more grievous and intolerable than the common exercise of a parochial discipline . for , 1. it cannot be presumed , that there will be competent judges . for every one who hath a faculty of preaching , hath not a faculty of judging in such cases . and where discretion and a judgment of circumstances is wanting , an honest mind will not secure men from doing injury , and exposing their judicature to contempt . 2. they have no fixed and established rules of proceeding , as there are in the ecclesiastical courts , which have been continued down from time to time , and allowed by the laws of the land. and what miserable disorder must follow an arbitrary method , when humour , and will , and passion may over-rule justice , and equity , and conscience ? 3. they are not under the check of the law , as the ecclesiastical courts are . for , if they exceed their bounds , either as to the nature of the cause , or the manner of proceeding , they are liable to prohibitions from the king's courts of justice ; but the law can take no notice of parochial or congregational judicatures , and so men may suffer without remedy . 4. they have no way to judge of legal evidence , which is very material when a person is accused . it is one of the nicest points in all criminal proceedings to determine what is good and sufficient evidence . for several things are to be weighed , before either witnesses or testimonies can be allowed . as to witnesses , it is required that they be persons of reputation , and free from infamy of law and fact ; that they be disinterested , and so not liable to the just suspicion of partiality ; that they be men of discretion and sane memory ; and all reasonable exceptions are to be allowed against them . as to testimonies ; they must be by our law upon oath ; and what authority have such persons to give an oath , and why shall a man be liable to suffer by a testimony , without one , when the law requires it ? they must be deliberate , and not given in passion , consistent as to time , place , and other circumstances : they must be certain and positive , and not upon hear-say , or the believing of other persons : they must be free from any just suspicion of contrivance and conspiracy , or any sort of corruption or partiality . and now is every parochial minister , or select congregation fit to judge of these matters , whereon the reputation , and consequently the interest of every person may be so deeply concerned ? 5. they have no way to prevent a percipitate and hasty sentence . suppose a man be accused by one of interest and passion , who possesses others with the same opinion before-hand , and the judges are all prejudiced before the matter comes to be heard ; and in popular assemblies some few men sway the rest , what a case is a person accused unjustly in ? he hath no liberty for others that are not of the congregation , altho' more disinterested , either to come in to judge , or to plead for him : he can have no advocate to defend him , or to shew the weakness , or inconsistency of the evidence against him . in all ecclesiastical courts , they may sometimes proceed summarily , but even then the fundamental rules of the court must be observed , as to proofs and witnesses , or else the sentence is void ; but here the sentence will take place , altho' there hath not been the least colour of justice in the whole proceedings . 6. here is no settled course of appeals in case of a wrong sentence . but where men are liable to mistake and passion , a right of appeal is one of the fundamental parts of justice . and therefore independent and arbitrary courts of judicature , as all congregational churches are , are inconsistent with the common rights of mankind , and that due subordination which ought to be in all societies in order to the preserving order and justice among men. but suppose , parochial discipline so settled among us , as to allow a liberty of appeal , how would the trouble , and vexation , and expence be increased , by going from the parochial sentence to the bishop's court , and from thence still further ? so that if there be some inconveniencies in point of distance , for persons to be summoned to appear at first so far from home , yet there is some compensation by the less trouble and charges , if due care be taken to prevent delays , and unnecessary expences ; which ought to be done : and those who do make the greatest clamour against our courts , are rather willing they should continue such as they may have cause to complain of , than to do their endeavours to reform them . thus i have endeavoured to shew the just bounds and limits of parochial cures . ii. i now come to consider the just measure of that diligence which is required under those limits . for our church requires faithful diligence in preaching , and sacraments , and prayers , and reading the holy scriptures . if then we can understand what this faithful diligence implies , we may come to satisfie our selves whether we do our duty or not . 1. faithful diligence implies serious application of our minds to the main end and design of our holy function : which is to do good to the souls of men , especially to those committed to your charge . and an idle , careless , santering life ; or one too busie and distracted with the cares of the world , are not consistent with it . i do not go about to take you off from necessary business , and reasonable allowances , as to health and studies ; but that the doing good to your peoples souls , ought to be the principal and chief design of your thoughts , studies and endeavours . and if the people be satisfied that this is really your design among them , you will find , that your doctrine will be easier received , your persons esteemed , and your labours valued . it is possible , you may meet with a froward , peevish , self-willed people ; and it is hard when a man is only set to water and mend a hedge made up of briars and thorns ; the more pains he takes , the more scratches he may meet with ; but if it be your lot , be not discouraged from doing your duty : remember what sort of people the prophets were sent to , and what usage they had from them ; what hardships and reproaches christ and his apostles underwent from a very unkind world ; but a patient continuance in well-doing , gave them inward satisfaction in the midst of all , and did by degrees gain the christian doctrine access to the hearts of those who most opposed it . 2. it implies an honest and conscientious care of discharging the known and common duties of your function , as preaching , praying , catechizing , administring sacraments , visiting the sick , &c. a diligent person is one who neglects no good opportunities of doing his business , but watches for them , and studies to improve them to the best advantage . can those satisfie themselves that they use faithful diligence , who shamefully neglect their cures , and care not how seldom they come at them , nor how they are supplied , if they make a good bargain for their own advantage ? i cannot deny , but that according to the laws of the land , and the canons of this church , some persons are allowed to have two several cures , which must imply a non-residence for some time at least , upon one of them . but they still suppose , that there are persons resident upon them , who are allowed by the bishop to be sufficient to discharge the necessary duties of the place , and not to be taken up like post-horses , the next that comes , and to be turned off at the next stage . i think it a very great fault in those who have pluralities , that they look no more after the curates they imploy , and that they do not bring them to the bishop to be approved , and to have their allowance fixed , before they imploy them . they think no more is required but to pay the fees for a licence ; but i have , and shall endeavour to convince the clergy of this diocess , that licences are not to be taken as st. peter took the fish that first came with money in the mouth of it ; i hope to be able to satisfie them , that it is not the fees that we aim at , but at persons doing their duties . and our canons are express , that no curate is to be allowed in any cure of souls , that hath not been examined and admitted by the bishop or ordinary having episcopal jurisdiction , and attested by the hand and seal of the bishop . how then come curates to officiate without ever coming to the bishop at all , or undergoing any examination by him ? this is a plain breach of the canon , and ought to be reformed . i do not say , that such licences as have customarily passed without the bishop's hand and seal , are void ; but i do say , that they are irregular and voidable , and none ought to be allowed , which are not according to the canon ; and that no incumbent ought to take any one for his curate till the bishop hath allowed and approved him under his hand and seal . and this remedy the law gives us against the inconveniencies which attend pluralities by weak and insufficient curates ; but no man is excused either by law or canons from attending the duties of his place at some times in his own person , and that good part of the year ; in which time he ought to do the duties of his place with diligence and care ; and to acquaint himself with his parishioners , in order to the better discharge of his duty towards them . they have very mean thoughts of their holy function , that think the main part of it lies only in the pulpit ( i wish even that were minded more ) but all the ways you can do good among your people , is within the compass of your duty ; not meerly to instruct them in religion , but to prevent quarrels , and contentions , and meetings for debauchery , which tend to corrupt mens minds , and draw them off from the principles as well as practice of true religion : it is your duty to endeavour to make them live like good christians and good neighbours , and to set patterns your selves of sobriety , meekness , charity , and of every thing praise-worthy . 3. faithful diligence implies filling up your vacant hours with the most useful studies , as to the main end of your function . for in your ordination you solemnly promise to lay aside the study of the world and the flesh , and to apply your selves to the study of the scriptures , and such studies as help to the knowledge of the same . but it may be seasonably asked by some , what method and course of studies will best conduce to that end ? to this i shall endeavour to give a short answer so far as it concerns the main end of your function , which it is most proper for me to consider at this time . 1. look well to the temper of your minds , that it be humble , sober , and religious . for a vain , affected and self-opinionated person can never have an inward and hearty relish of divine truths . the scriptures will appear to him either too plain and easie , or too obscure and intricate ; some things will seem low and flat , and others too lofty and poetical . those who read not with a good mind , will have always something or other to cavil at . it is a mighty advantage in all spiritual knowledge to come to it with an unbiassed mind , free from the power of prejudice and evil inclinations . for these give a strange tincture to the mind , and hinder the clear and distinct perception of revealed truths , as above the natural faculties which god hath given us . some are therefore so fond of philosophical speculations , that unless the letter of the scripture suits with them , they are ready to despise it , and only shame and fear keep up any reverence for it in them . some are altogether for mathematical evidence and demonstration , as though the way to salvation were to be shewed by lines and figures ; why do they not first run down all laws and history , because they are not capable of mathematical evidence . and it argues a far greater measure of true understanding to know when to be satisfied , than to be always disputing and cavilling . the plainness of scripture in some places , is no more an offence to one that wisely considers the design of it , than a beaten road is to a traveller who desires to know which is the true way to his journeys end , and the plainer it is , the more he is satisfied with it . but the scripture wants not its depths , which require a very attentive and considering mind , and will afford matter for exercise of thoughts , and frequent and serious meditation . the excellency of the scripture is , that all necessary things are plain ; and such as are not so , although they are not necessary to be known for salvation , yet require our diligence to understand them ; and give great satisfaction as far as we can know them . 2. not to perplex your minds with difficulties above your reach , as in what relates to the eternal decrees , and the particular manner of that unity of the godhead which is consistent with the trinity of persons . for since the scripture doth assert both , we may safely be contented with what the scripture reveals , although the manner of it be incomprehensible . and as to the other the scripture is clear and positive , as to the moral parts of our duties ; and if we are to seek how to reconcile them with gods decrees , we have this certain rule to go by , that without doing our duty , we cannot be happy ; but we may without understanding how the freedom of our wills is consistent with the divine prescience and decrees . 3. not to fix plain and necessary duties upon new and unaccountable theories . as for instance ; there are no duties of greater consequence , than the love of god and our neighbour : but it would be unspeakable mischief to religion to fix the love of god upon so absurd a principle as his being the immediate cause of all sensation in us . and it would have made the christian doctrine ridiculous to found its fundamental precepts on extravagant notions , and mystical contemplations . and so for the love of our neighbours to allow only a love of benevolence and charity , and not of delight and complacency , is to make nice distinctions , where god hath made none . but to take away the love of complacency in friends and relations , and the blessings which god gives for the comfort of life , is to overthrow the due sense of god's goodness in giving them ; and to take away a great measure of that gratitude we owe to god for them . but when any seem very fond of such notions , and shew so much self-complacency in them ; it is impossible upon such principles that they should love their neighbours as themselves . 4. if you would understand the new testament aright , fix in your minds a true scheme of the state of the controversies of that . time , which will give you more light into the true knowledge of the scriptures , than large volumes of commentators , or the best systems of modern controversies . as what the iewish notions of justification by works , and expiation of sin , were ; and of god's decrees of election and reprobation as to themselves : and what the principles of the judaizing christians were , as to the joyning the law and the gospel , and the pythagorean superstition together . and what the gnosticks , who were professed libertines , held , as to grace , redemption , liberty , government , &c. all which tend very much to the clearing the sense of the new testament . 5. where the sense appears doubtful , and disputes have been raised about it , enquire into the sense of the christian church in the first ages , as the best interpreter of scripture ; as whether the apostles left bishops or presbyters to succeed them in the government of churches ; whether the apostles appointed the lords day to be observed as the day of publick worship ; whether baptism were not to be administred to infants as well as circumcision , both being seals of god's covenant ; whether divine worship doth not belong to christ , and were ●o● given to him in the hymns and doxologies of the primitive church ; and , whether divine worship can be given to any creature ; whether the form of baptism was not understood so , as to imply a trinity of persons ; and , whether all true christians were not baptized into this faith ; and consequently , whether denying the trinity be not renouncing christian baptism . these and many other such questions of great importance , receive great light from the writings of the first ages . but some rules may be very useful for right judging the sense of those times . 1. to distinguish the genuine and supposititious writings of that time. this hath been examined with so much care by learned men of this last age , that it is no hard matter to make a true judgment about them . 2. in those that are genuine , to distingush the sense of the church , delivered by them , from their own particular opinions ; the sense of the church is best known by publick acts , as by creeds , sacraments , hymns , prayers and censures of such as oppose or contradict them . 3. to put a difference between the authority of private persons , and of the bishops and governours of the church , who may be presumed to understand the sense of the church , and the doctrine of the apostles better than the other . and so clemens , ignatius , polycarp , theophilus , and irenaeus are more to be trusted , as to the sense and practice of the christian church , than such as hermes , and papias , and tatianus , who had neither the judgment nor the authority of the other . 4. that may be justly looked on as the sense of the church , which is owned both by the friends and the enemies of it . the enemies of christianity charged them with many things , which the apologists utterly denied . now we find pliny charging the christians with singing hymns to christ , as to god ; several christian writers of that time mention this , but never go about to soften , or to excuse , or deny it . and so we find lucian deriding the christians for the doctrine of three and one ; which the apologists of that time are so far from denying , that they assert and vindicate it , as appears by athenagoras and others . but these things i only touch at , to shew how the sense of the church is to be taken , and how from thence the sense of the scriptures may be cleared . of the particular duties of the parochial clergy , at a visitation , october 27 th . 1696. my brethren , as often as it pleases god in his wise providence to bring me among you in the ordinary course of my visitation , i cannot satisfie my self that i do my own duty , unless i put you in mind of doing yours . we live in an age , wherein the contempt of the clergy is too notorious not to be observed ; but the true reasons are not so well considered as they ought to be . some , to increase the contempt of the clergy , have given such reasons of it , as seem to make it a light and jesting matter ; but truly it is very far from being so : for the contempt of religion is oft-times both the cause and the effect of it . it is not at all to be wondred at , that those who hate to be reformed , should hate those whose duty and business it ought to be to endeavour to reform them . but when religion is struck at through our sides , we ought with patience to bear the wounds and reproaches we receive in so good a cause . wo be to us , if those who are enemies to religion , speak well of us : for it is a strong presumption that they take us to be of their side in our hearts , and that we are distinguished only by our profession , which they look on only as our trade . and we give too much occasion for such suspicions of us , if we do not heartily concern our selves for the honour and interest of true religion in the world , whatever we may suffer , as to our reputation , for the sake of it . it is possible , that if we go about to humour such persons in their infidelity and contempt of religion , we may escape some hard words for the present , but they cannot but have the greatest inward contempt and hatred of all those who live upon religion , and yet have not the courage to defend it . and what satisfaction can such have , when they reflect upon themselves , and think what occasion they have given to confirm such persons in their infidelity , and to make them think the worse of religion for their sakes . the best thing we can do to recover the honour of religion , and to set our profession above contempt , is to apply our selves seriously and conscientiously to do our duties . for if others find that we are in earnest , and make it our great business to do all the good we can , both in the pulpit , and out of it ; if we behave our selves with that gravity , sobriety , meekness and charity which becomes so holy a profession , we shall raise our selves above the common reproaches of a spiteful world ; and do what lies in us to stop the mouths at least , if not to gain the hearts of our enemies . for the real esteem which men have of others , is not to be gained by the little arts of address and insinuation , much less by complying with them in their follies ; but by a steady and resolute practice of our own duties , joyned with a gentle , and easie , and obliging behaviour to others , so far as is consistent with them . but a proud , supercilious , morose behaviour towards our greatest enemies , doth but make them much more so ; if any thing softens them , and makes them more tractable , it will be , joyning a firmness of mind , as to our plain duties , with humility and kindness in other matters . but what are these duties we are obliged to so much care in the performance of ? there is a twofold obligation lying upon us . i. that which is more general from the nature and design of our imployment ; which is the cure of souls ; and that requires great diligence and faithfulness , frequent recollection and consideration , serious application of our selves to divine studies and imployments ; a prudent use of the best methods for the convincing , reproving , directing and assisting those who are committed to our care. and all these are implied in the nature of our office , as it is set forth in holy scripture ; wherein we are described as laborers , and therefore must take pains , and not spend our time in vain and idle company : as teachers , and therefore ought to be stored with a good stock of knowledge our selves , and be ready to communicate it to others : as pastors , and so we ought to look after our flock , and not leave them to the careless management of others , who are not so concerned for their welfare , as we ought to be : as ambassadors from christ , and therefore we are bound to look after the business we are sent upon and the great weight and importance of it , as to your own salvation as well as others : as stewards of the mysteries of god , and the first thing required in them , is to discharge their trust honestly and faithfully , remembring the account they must give to god. but these , you may say , are only general things , and do not determine and limit our duties within certain bounds ; what is there which doth fix and determine our duties , as to the station we have in this church ? ii. i come therefore to the special duties , which by the ancient constitution of this church , and the ecclesiastical laws of it , are incumbent upon you . and you are to consider , that as the law hath taken care for your maintenance and subsistence in doing your duties ; so it doth suppose your careful performance of them , not only in regard to the general rule of conscience , but to that particular obligation you are under , as members of this church . and therefore i shall enquire into two things : i. the duties you are under this obligation to . ii. the incouragement which the law gives in consideration of it . i. the duties are of two sorts : 1. publick and solemn . 2. private and occasional . 1. publick and solemn ; and those either respect the time , or the duties themselves . 1. as to the times of solemn and publick worship , which are the weekly lord's days , and the other holy-days . 1. i begin with the observation of the lord's days ; which i shall now make appear to have been set apart for the solemn worship and service of god , especially by the clergy , from the first settlement of a parochial clergy in this church . in a provincial council held at cloveshoo or cliff , a. d. 747. the king and nobility being present ( where the archbishop and bishops assembled for regulating the worship of god in parochial churches then newly erected in many places ) the fourteenth canon is express , that the lord's day ought to be celebrated with due veneration , and devoted only to divine worship ( divino tantum cultui dedicatus ) and the presbyters are required to officiate in their several churches , both in preaching and praying ; and the people are required to let alone their common worldly affairs , and to attend the publick worship of god. the canons of egbert , archbishop of york , are as clear and full for the northern province , as the other for the southern , can. 104. that nothing is to be done on the lord's day , but what tends to the worship and service of god. and can. 36. that christ sanctified the lord's day by his resurrection . but because these canons of egbert will be often used , something ought to be observed to clear their authority . sir h. spelman saith , there are several ancient mss. of them . mr. selden owns the cotton ms. to be of the time of h. 1. but he suspects that another made the collection , and put it under his name . but it was no strange thing for the great bishops to make such a collection of canons ; for so it was done by theodore , archbishop of canterbury ; by theodulphus of orleans ; isaac lingonensis , chrodegangus , herardus , hincmarus , &c. and egbert was not only a great man , brother to the king of the northumbrians , but a great promoter of learning and ecclesiastical discipline , as appears by his dialogue about the latter , and the other by alcuin's epistles about him , and bede's epistle to him a little before his death . and the agreement between the capitulars and these canons , might come from alcuin's carrying them over into france with him . in the saxon canons , c. 24. it is said , that the lord's day on which our saviour rose from the dead , is to be devoted wholly to the service of god , excepting only works of necessity and charity . these canons are translated from those of theodulphus , bishop of orleans , a. d. 786. and it is observable , that as the christian religion prevailed in these northern parts , so the religious observation of the lord's day was enforced , as appears by the canons of the gallican church , as well as this . as in the famous canon of the council of mascon , a. d. 585. where the bishops assembled , complain of the neglect of the lord's day , and agree to put the people upon a stricter observance of it . and so before in the council of orleans , a. d. 538. but in both these canons they avoid a iewish superstition as well as profane neglect . they allowed both works of necessity and conveniency , and did not place the observation in a bare rest , but in attendance on the worship of god ; and forbad all manner of secular imployments which were inconsistent with it . nay , theodulphus his canon goes higher , tantummodo deo vacandum , the whole day ought to be spent in religious and charitable imployments . the greatest men in our saxon churches asserted the same . bede saith , that the apostles appointed the lord's day to be observed with religious solemnity , and therein we ought to devote our selves to the worship of god ; tantum divinis cultibus seviamus . and to the same purpose speaks alcuin , who was bred up under egbert , archbishop of york , and calls bede the greatest master of his time ; and in another place he saith , one seventh day is set apart among christians , as another had been among the iews for the service of god ; and that therein we ought to attend to the care of our souls , and to lead a spiritual life . bede distinguishes between the patriarchal and iewish sabbath . the latter he calls a carnal , and the other a spiritual sabbath ; the former lay in a strict abistnence from labour , but the other in prayer , and devotion , and spiritual contemplations . the iewish rest , he saith , was inutile , 〈◊〉 , & luxuriosum . for the 〈…〉 ●llowed recreations and sports on their sabbaths ; vacant ab opere bono , saith he , non ab opere nugatorio . vacant ad nugas , saith s. augustin ; but he saith , they had better plow or dig , than dance on that day , or sit in the theater . and he tells us , that the heathens objected against the iews , that they spent one day in the week in idleness . for they supposed the bare rest to be the sanctification of the day which was commanded ; and the spending any part of it in the publick worship , to be voluntary devotion . but the better sort of the iews thought the rest was appointed for the knowledge of the law , and spiritual imployments . so philo , iosephus , aben-ezra , kimchi , and menasseh ben israel . it seems most reasonable in this case to distinguish between the legal rest strictly required by the fourth commandment , and the original rest in remembrance of god's resting from the work of creation . the former was a sign between god and the people of israel , as it is often called in scripture ; and the other was a commemorative sign , but such as excited them to the worship of the creator ; and therefore the patriarchal sabbath , as bede observes , was of a spiritual nature . and such a spiritual sabbath , as s. augustin calls it , ought to be observed by christians in the duties of god's worship , as well as in spiritual and holy thoughts . but the iewish sabbath , he often-saith , doth not oblige christians . i the rather mention him , because bede followed his doctrine herein ; and that of gregory i. who was the great instrument of promoting the conversion of our ancestors to christianity . and he declares himself fully , both as to the cessation of the iewish sabbath , and the religious observation of the lord's day . it seems there were some then , as there are among us now , who were for the strict observation of the saturday-sabbath . but gregory saith , they might as well insist upon circumcision and sacrifices , as the iewish sabbath . but yet he adds , we ought on the lord's day to abstain from worldly imployments , and devote our selves unto prayers , that we may make some amends for the weeks negligence , by the devotions on that day . and this devoting the lord's day to the service of god , is entred into the body of the canon law ; and taken out of ivo , and by him from the canons of the gallican church , as appears by several councils . our lyndwood mentions that canon as in force here , die dominicâ nihil aliud agendum , nisi deo vacandum . and he takes some pains to explain it , by distinguishing , 1. works servile materially and formally , as plowing , sowing , markets , law-days , &c. these are generally forbidden . 2. acts spiritual materially and finally , as all acts of piety and devotion , and these we ought to attend upon with care and diligence . 3. acts not servile in themselves , but done for a servile end , as studies and designs for gain . 4. acts servile in themselves , but not so in their end ; as the man's taking up his couch on the sabbath-day , whom christ cured . he affirms , that there is a moral part in the fourth commandment , which , he saith , is a spiritual rest , or a time set apart for god's service : which he takes from aquinas , who saith the substance of the command is moral ; but he doth not make it to be one day in seven , but some determinate time , which , he saith , the church may appoint ; but then it must be imployed in the service of god ( vacare rebus divinis ) as things were said to be sanctified under the law , which were applied to god's service . but notwithstanding this judgment of aquinas , some great men in the church of rome have thought one day in seven , moral ; and that the proportion which god himself had appointed , cannot be lessened . for altho' mankind could not by natural reason find out the proportion , yet being once revealed , it doth not cease to oblige , unless something figurative and symbolical , or peculiar to the iewish nation be discovered in it . bellarmin makes that the reason of the institution of the lord's day , because god's law required that one day in seven should be set apart for the worship of god ; but the apostles thought it not fit to observe the iewish sabbath , and therefore changed it into the lord's day . covarruvias saith , that all divines agree with aquinas , that there is something moral in the fourth command , which continues to oblige ; and that the lord's day is of divine institution . and to him the roman editors of the canon law referr , as to this matter . azorius confesseth , that the observation of the lord's day hath something of the divine and natural law in it , which requires one day in a week should be consecrated to the service of god , and that it is most agreeable to reason . and he adds , that panormitan , sylvester , and other canonists held the lord's day to be of divine institution . suarez saith , that the church doth observe one day in seven by virtue of the divine law ; that proportion being so agreeable to natural reason , that it cannot be altered . thomas waldensis , who lived here in the time of h. 5. observes , that even then there were two extreams in mens opinions about the observation of the lord's day ; some allowed no kind of work , and others , any . but he shews , that the law of nature requires some solemn days for divine worship ; and that then there ought to be a rest from other labours , because they hinder the mind from that attention necessary to the service of god : and necessary works are left to a few , that others may be more at liberty . in the saxon laws we find many against the profanation of the lord's day by slavish imployments , by markets and trading , by folkmotes and law-suits , &c. so that great care was taken then , that the lord's day should be duly observed . after the norman times , we have several constitutions to inforce the strict observation of the lord's day . in the time of h. 6. hubert de burgo saith , that custom may derogate from other holy-days , but not from the lord's day ; because they are not commanded by god , as that is . since the reformation our book of homilies goes upon the same grounds which were used in the saxon times , viz. that the iewish sabbath doth not oblige us ; but however to observe the like proportion of time , and devote it to the service of god. mr. hooker saith , that we are to account the sanctification of one day in seven a duty which god's immutable law doth exact for ever . but what is meant by this sanctification of one day in seven ? if it be understood according to the old canons , it will fill scrupulous minds with more doubts and fears about the right observation of it . origen saith , the observation of the christian sabbath lies in these things ; 1. a forbearance of worldly business . 2. attendance on the publick worship . 3. divine meditation on things invisible and future . haec est observatio sabbati christiani . and in another place , he requires besides publick worship , private meditation and reading the holy scriptures . s. chrysostom insists very much upon the same in several places , and on different occasions . and altho' it be in his popular sermons , yet he would certainly not put them upon any thing , but what he thought very fit to be done . and they must have a mean opinion of him , who think his eloquence carried him too far in this matter . i shall conclude with the opinion of lyndwood , a learned and judicious canonist ; and he observes a threefold sanctification of the lord's day . 1. by abstinence from sin , which is necessary at all times . 2. by abstinence from such bodily labours as hinder the mind's attendance upon god's service . 3. by the whole imployment of our minds in divine matters ; and this he calls the perfect observation of it . these things i have the more largely insisted upon , to shew , that the religious observation of the lord's day , is no novelty started by some late sects and parties among us , but that it hath been the general sense of the best part of the christian world , and is particularly inforced upon us of the church of england , not only by the homilies , but by the most ancient ecclesiastical law among us . but this is not all , for the ancient as well as modern canons require the observation of holy-days likewise . the canons of egbert require not only prayers , but preaching then , can. 1. 3. the council of cloveshoo , can. 13. distinguishes the holy-days relating to our saviour , from the rest ; and saith , they are to be observed in a solemn and uniform manner , and the rest according to the roman martyrology ; which , i suppose , were those repeated then in the diptychs of the church ; which custom continued longer at rome , than in other churches ; but it was generally disused before the time of charles the great . the custom in rome , in gregory's time , was to observe the saints days with the solemn service at one church , as appears by his homilies on the evangelists , which were many of them preached on those occasions ; as of s. felicitas , hom 3. s. agnes , hom. 11 , 12. s. felix , hom. 13. s. pancrace , hom. 27. &c. and of others who were roman martyrs ; and therefore had a particular solemnity appointed for them . but as to other saints days , it appears by the antiphonarius and sacramentary of gregory i. that they had particular anthems and collects proper for them in the offices of the day ; but i do not find that the generality of the people were so strictly tied up , when the offices were over , as they were on the lord's days , and the greater festivals relating to our saviour . in the council of cloveshoo , can. 13. i observe , that the natalitia sanctorum , i.e. the anniversary saints days , were observed with particular psalmody and anthems ; and can. 17. the days of gregory and augustin , the two great instruments of converting the nation , were only to be kept as holy-days by the clergy , without any particular obligation on all the people . so that the holy-days of strict observation then , seem to have been no other than those which relate to our saviour , called dominicae dispensationis in carne festivitates ; the rest had some proper offices which were performed on their days ; but the people were to attend them , as well as they could ; but after there was not this strictness required , as upon the greater holy-days ; and as it was in the church of rome afterwards , when they made the obligation of conscience to extend to all holy-days appointed by the church . but it is observable , ( 1. ) that this obligation is taken from those canons which mention only the lord's day , as appears by bellarmin . ( 2. ) that they kept up the distinction of greater and lesser holy-days . ( 3. ) that they allow the bishop to dispense , as to some works on holy-days . lyndwood observes , that the abstinence from work is not alike , but as the church hath required it ; and that if a bishop's licence cannot be had , a less will serve . our church , can. 13. requires holy-days to be observed with works of piety , charity , and sobriety ; but gives no rule as to abstinence from works , or the strict obligation of conscience . 2. i now come to the particular duties of the clergy on the days which are solemnly devoted to the service of god. 1. the constant and devout attendance upon , and solemn reading the prayers of the church , as they are appointed . in the old saxon canons the presbyters are required to officiate constantly at prayers in their churches ; so in the council at cloveshoo ; can. 8. the canons of egbert , can. 2. canons of edgar , can. 45. but how if the people will not come to the prayers ? you ought , what lies in you , to remove the causes of such neglect ; which arises generally from these things ; either a gross stupidity and regardlesness of religion , which is too common in the world , or from prejudice and principles of education , or the interest of a party ; or from not reading the prayers with that attention and devotion which is fit to raise an esteem of them . the other two , you ought to do what you can to remove ; but this is your own fault if you do it not . we are not to please the fancies of people by an affected variety of expressions in prayers ; but we ought to do what we can to excite their affections , which is done as much by the due manner of reading , as by figures in speaking . and the people are uneasie at staying , when they see the minister read them so fast , as though he minded nothing so much as to be at the end of them ; or when he mangles them so , as if he had a mind to make the people out of love with them . 2. the next duty is preaching ; and truly that need to be looked after , when the esteem of our profession depends so much upon it . we have none of those methods which those on both sides make so much use of ; we can neither comply with the people in gestures , and phrases , and enthusiastick heats , nor with the superstitious devotions and priest-craft of others . of all churches ours hath the least reason to be charged with it , since they let go so many advantages over the people by the reformation . thanks be to god , we have scripture , and reason , and antiquity of our side ; but these are dry and insipid things to the common people , unless some arts be used to recommend them . but since our main support lies in the honesty and justice of our cause , without tricks and devices , we ought to look very well to that part of our profession which keeps up any reputation among the people ; and that is preaching . those who are so weak or lazy , as to be glad to have that laid aside too , in a great measure , never well considered the design of our profession , or the way to support it . it 's true , for some time preaching was an extraordinary thing in the church ; and none but great and eloquent men of authority in the church were permitted to preach , and the greatest bishops were then the preachers , as appears by the sermons of s. ambrose , s. chrysostom , s. augustin , &c. and even some of the bishops of rome , whatever sozomen saith , were frequent preachers , as appears by gregory's homilies on ezekiel and the gospels . and if it were not then practised he did very ill to complain of the burden of it , and the danger of neglecting it . but in other churches while the bishop and the presbyters lived together , before parochial cures were settled , the presbyters had no constant office of preaching , but as the bishops appointed them occasionally . but afterwards , when the presbyters were fixed in their cures , they were required to be very diligent and careful in preaching , or instructing the people committed to their charge , as may be seen in many early canons of the gallican church ; and so it was here in england : council of cloveshoo , c. 8. 14. egbert , can. 3. and that not only in the moving way in the pulpit , but in the familiar and instructing way , which we call catechizing ; concil . cloveshoo , c. 11. can. egbert . 6. both ought to be done , because they are both very useful . the principles and foundations of religion must be well laid , to make the people have any taste or relish of preaching ; otherwise it is like reading mathematicks to those who understand not numbers or figures . erasmus observes , that the sense of religion grows very cold without preaching ; and that the countess of richmond , mother to h. 7. had such a sense of the necessity of it in those times , that she maintained many preachers at her own charges , and imployed bishop fisher to find out the best qualified for it . and since the reformation the church of rome hath been more sensible of the necessity of it , as appears by the council of trent . cardinal borromeo , one of the most celebrated saints since that time , frequently insists upon it , gives directions about it , and speaks of it as a thing , which tends very much to the glory of god , and the salvation of souls . and to the same purpose other great men among them , as cardinal palaeotus , godeau , bordenave , and others . would it not then be a great shame for us , who pretend to a zeal for reformation and the true religion , to neglect or lessen the reputation of those things which our adversaries have learnt from us , and glory in them ; and those are diligence in preaching and catechizing ? which none can despise who value religion , none can neglect who have any regard to the interest or honour of their profession . 3. the next duty is the solemn administration of the sacraments , which ought to be done in the publick assemblies , where there is not a great reason to the contrary . the saxon canons are express , that baptism , unless in case of necessity , should be administred only in due times and places , egber . can. 10 , 11. while the ancient discipline was kept up , and baptism only celebrated at the great festivals , there was a necessity of its being publick ; and the catechumens underwent several scrutinies , which lasted several days in the face of the church , as s. augustin observes , after they had been kept under private examination for some time before . but when whole nations were not only converted , but infants generally baptized , the former method of discipline was changed . but yet the church retained her right as to satisfaction about the due admission of her members . and that is the true reason why , after private baptism , the child is required to be brought to the publick congregation . for baptism is not intended to be done before a select number of witnesses , but in the face of the church , which is the regular and solemn way ; however , the bishop may dispense in some particular cases , which he judges reasonable . at first baptism was administred publickly , as occasion served , by rivers ; as bede saith , paulinus baptized many in the rivers , before oratories or churches were built . afterwards the baptistery was built at the entrance of the church , or very near it ; which is mentioned by athanasius , s. chrysostom , s. ambrose , s. augustin , &c. the baptistery then had a large bason in it , which held the persons to be baptized , and they went down by steps into it . afterwards when immersion came to be disused , fonts were set up at the entrance of churches : but still the place was publick . but in case of necessity there is a form prescribed ; and i do not see how any , without leave , can use the form of publick baptism in private houses ; which is against both our ancient and modern canons . in the greek church it is deprivation to do it ; and the synod under photius confirms it , both as to the eucharist and baptism , because publick order is to be preserved . but it is there understood to be done in opposition to the bishop's authority , whose consent may make the case different , if they judge it reasonable . but ministerial officers are not judges in an equitable case against a standing rule . 4. another duty of the parochial clergy is , to be able and ready to resolve penitential cases , which relate to the internal court of conscience , and not the external and judiciary court , which respects the honour of the church , as to scandalous offences committed by the members of it . and this takes in the private and occasional duties of the parochial clergy ; for they ought to inform themselves of the spiritual condition of their people , that they may be able to give suitable advice and directions to them both in health and sickness : but chiefly to be able to give them safe and seasonable advice under troubles of conscience by reason of wilful sins . duarenus , a very considerable lawyer , thinks the main business of the clergy , as to the cure of souls , lies in the power of binding and loosing , i. e. in dealing aright with the consciences of men , as to the guilt of their sins . and the rules of the penitential court , are different from those of the ecclesiastical court , as well as the end is different . in the saxon times , there were both here . there were ecclesiastical law which related to judicial cases , wherein a publick penance was injoyned in order to the churches satisfaction . but there were many cases which were not publick , and yet great care was to be used , as to the direction of penitents , as appears by the penitentials of theodore and bede in the saxon times . whereby we learn that a difference was to be observed , as to the nature of offences , and the circumstances of persons and actions , and the measure of contrition ; and the particular method is set down in the penitential books , which was in very material circumstances different from the methods used in the church of rome . but it is a thing necessary for every parochial minister to be able to settle doubting consciences , and to put them into the best methods of avoiding sin for the future , without which the absolution of the priest signifies nothing . for where god doth not absolve , the church cannot . 5. giving a good example to the people committed to your charge . this is often mentioned in the saxon canons : council at cloveshoo , c. 8. canons of egbert , 14 , 15 , 18 , 19 , 33. in the laws of alfred , c. 3. of edward c. 3. constit. of odo , c. 4 , 5. of edgar , 57 , 58 , 59 , 60 , 61 , 64. of canutus , c. 26. and in the conclusion of one collection of his laws are these words , happy is that shepherd , who by his good life and doctrine leads his flock to eternal and heavenly ioys ; and happy is that flock that follows such a shepherd , who hath rescued them out of the devil's hands , and put them into god's . 6. lastly the performance of all these duties supposes a constant residence among your people ; without which it is impossible to discharge them in such a manner , as to give them and your selves full satisfaction . this , i am sensible , is a very nice and tender point ; and the difficulties of it do arise from these things : on one side it is said , 1. that there is an allowance by the law given to several persons to hold more benefices than one ; and since the distribution of benefices is not by the law of god , but by the law of the land , what fault is there in making use of the privileges which the law gives ? but there cannot be constant residence in more places than one . 2. that the general service of the church is more to be preferred than taking care of a particular parish ; because the necessary duties of a parish may be supplied by persons approved by the bishop , and a single living seldom affords a sufficient competency for persons to be capable of publick service . 3. that the way of subsistence for the clergy , is now much altered from what it was when celibacy was enjoyned . for a competency was always supposed where residence was strictly required ; and what was a competency to a single person , is not so to a family . 4. that the church hath a power of relaxing the severity of ancient canons from the different circumstances of things ; and when the general good of the church may be more promoted therein ; as in the removal of clergymen from one diocess to another , and the translation of bishops . 5. that the case is now very different , as to dispensations , from what it was in the church of rome , as to the number of benefices , and the manner of obtaining them ; that a great restraint is laid by our laws upon pluralities , and our own metropolitan is the judge when they are fit to be granted . but on the other side it is objected , 1. that in the first constitution of parochial churches , every incumbent was bound to a strict residence ; so in the canons of egbert , can. 25. presbyters are said to be settled in those churches , which had a house and glebe belonging to them ; and many canons were then expresly made , that no person should have more than one church ; and it is said in the capitulars , that this had been several times decreed . and so it is in herardus his collection of canons , can. 49. in isaac lingonensis , tit. 1. c. 24. in chrodegangus , c. 67. in ivo carnotensis , part . 3. c. 51. in regino , l. 1. c. 254. the like we find in the spanish churches , concil . tolet. 16. c. 5. and thence in the canon●law , c. 10. q. 3. c. 3. and in the greek churches , concil . 7. can. 15. c. 21. q. 1. c. 1. and as soon as the abuse crept in in these western churches , it was complained of , and endeavoured to be redressed , concil . paris . 6. c. 49. concil . aquisgran . 2. part . 2. c. 5. concil . metens . c. 3. that afterwards , not meerly the mendicant friars complained of them , as some have suggested , but some of the greatest bishops have been zealous against them , as gulielmus parisiensis , peraldus , archbishop of lions , iacobus de vitriaco bishop of acon , robert de c●orton cardinal ; guiard bishop of cambray ; and gregory ix . declared , that he could only dispense with the penalty of the law. after a solemn disputation at paris , it was determined against pluralities , if one benefice be sufficient ; and all the divines joyned with the bishop therein , except two ; so that it seemed to be the current opinion of the learned and pious men of that time. aquinas saith , it is a doubtful point , but cajetan is positive against them . so that all the zeal against pluralities , is not to be imputed to the piques of the friars against the secular clergy ; although there is no question but they were so much the more earnest in it ; but in the council of trent the bishops of spain were the most zealous , as to the point of residence , and the friars against it , as appears by catharinus and others . 2. setting aside all authorities , the argument in point of conscience , seems the strongest against non-residence ; because persons have voluntarily undertaken the cure of souls within such limits ; and although the bounds be fixed by human authority , yet since he hath undertaken such a charge personally , knowing those bounds , it lies upon his conscience to discharge the duties incumbent upon him , which cannot be done without constant residence , as the magistrates are bound in conscience to do their duty , although the bounds are settled by human laws : and so in the case of property , human laws bind so that it is a sin to invade what is settled by them . and if it be left to a man's conscience , whether a man answers his obligation more by personal attendance , or by a curate ; whether the honour of religion , and the good of souls be more promoted , and the peace of his own mind secured by one or the other , it is no hard matter to judge on which side it must go . it is impossible to defend all the arguments used in the old canons against pluralities , as that polygamy is unlawful under the gospel : so that , as a bishop hath but one city , and a man but one wife , so a presbyter ought to have but one church : that no man can serve two masters , &c. but all their reasons were not of this sort . for , the council of toledo speaks home , that one man cannot perform his duty to more than one charge . to the same purpose the sixth council at paris ; and withal , that it brings a scandal on the christian church , and an hinderance to publick worship , and the good of souls , and savours too much of a worldly mind ; which are weighty arguments . the only considerable thing on the other side , is , that the bishops are to take care that the places be duly supplied ; but whether it be done by parson , vicar or curate , is not material . but this will not hold . for , ( 1. ) the care of souls is committed personally to him that doth undertake it . and a regard is had to the qualifications of the person for such a trust , by the patron that presents , and the bishop who admits and institutes the person so qualified . ( 2. ) the old canons were very strict as to personal residence , so as to fix them in their cures from which they could not go away when they pleased , which they called promissionem stabilitatis . our saxon canons are clear , as to the personal cure , can. egbert . 1. 4 , 6. populo sibi commisso ; and no presbyter could leave his cure and go to another only for honour or profit , can. 13. and none could go from one bishop to another , without his diocesan's leave , concil . herudford . c. 5. egbert . de eccles. instit. p. 97 , 100. and when the bishop gives institution , he commits the care of souls to the incumbent , and not meerly the care that divine offices be there performed . but yet it is well observed by aquinas , that if the having more benefices than one were a thing evil in it self , it could in no case be dispensed with ; but there are some actions which in general are irregular , yet in some cases may be justified ; especially , if they be extraordinary , as to publick service and usefulness , &c. and to the same purpose cajetan speaks ; but he saith , the cases that make it lawful , must relate to a publick , and not a private good ; but he mentions these things which excuse from residence ; 1. lawful impediments , as to health , &c. 2. publick service . and others say , a geometrical proportion ought to be observed in the distribution of ecclesiastical benefices , and not an arithmetical , i. e. a regard ought to be had to the merits and capacities of persons ; as a commander hath more pay than many common souldiers ; but this reaches only to the value , and not to the number of benefices . but the question still remains , whether a legal dispensation take not off the obligation in point of conscience , since it is allowed by law , and the curate appointed by the bishop , who committed the cure of souls to him ? in answer to this , we must consider , 1. that the law proposes in dispensations very allowable ends , as publick service , incouragement of learning , reward of merit ; and therefore doctors by favour have not the privilege which others have ; and in case of incompetency , as it was then judged , no legal dispensation was needful . 2. some ancient canons took care of the supply of the place by competent persons , and in that case abated the rigour of the canon . for sirmondus saith in the canon of the council of nantz , against pluralities , this clause was added , unless he hath presbyters under him to supply the duties of his place : and the same clause is in regino , l. 1. c. 254. and regino puts it among the articles of enquiry , as to the clergy , if any had more churches than one without presbyters to assist him . and in their old admonition to them at visitations it is to the same purpose , but in others it is left out . thomassin is of opinion , that the former enquiry related to those who had chapels , and not to more churches ; because then there were none that had titles upon anothers benefice ; but these words are express as to more churches . it 's true , there were no such titles then ; for a title in the old canon law , was the relation which a clergyman stood in to the bishop of his diocess , being one of his clergy ; and so the greek canonists understand a man 's not being ordained without a title , and not having two churches ; i. e. not to have relation to two diocesses , and so sine titulo , is without being owned by some bishop ; and this was that which they thought ought to be strictly observed ; and to which purpose many canons were made , both ancient and later ; and if any deserted their bishop , they were liable to deprivation . afterwards the word , title , came to be applied to parochial churches ; but there were some who found out , that the ancient canons had another sense . thence in the council of placentia in the canon sanctorum dist. 70. c. 2. it was decreed , that one might have two churches in the same diocess , but not two preferments in several cathedrals . and in the council of clermont , a. d. 1095. the reason is given , because according to the canons no man could have-two titles ; and every one was bound to hold to the title to which he was first ordained . but after all , the council of nantz shews plainly , that more parochial titles were then allowed , if well provided for , by such persons as the bishop of the diocess approved . now this very much alters the state of the case ; for then the obligation is real , and not personal . 3. it was agreed by the ancient canons , that where there was an incompetency of maintenance , they allowed an union for support ; now that is but the bishop's act in joyning what had been divided , supposing a sufficient subsistence : and a reasonable distance with the bishop's allowance , hath the same equity ; i.e. the bishop's act may unite two small benefices for a support , not by a perpetual union , but so long as he sees cause , which our law doth still allow , under such a value . but it is rather a dispensation than an union ; for the rights continue distinct . in the court of rome there were prerogative unions ad vitam , which were very scandalous , and are owned by the best canonists to be destructive of all order , and invented to defeat the canons against pluralities . but the unions which the law allows , are only those where two distinct benefices are made one for a competent subsistence ; and then if the union be reasonable , the dispensation within due distance is so too . balsamon saith , in the greek church pluralities are not forbidden , if they be near , and under the same bishop ; but they did not allow the same man to be under two bishops . in the capitulars that clause is added , that no man shall have more livings than one , si facultas suppetit , if it affords a reasonable subsistence . and therefore in case of incompetency of maintenance , of a good provision for curates , and of publick service , the severity of the ancient canons is with reason abated , and a person is supposed to undertake the cure , with those measures which the law and canons allow . but every man who regards the doing his duty out of conscience , will consider how much lies upon himself ; and that the original intention of the church and laws , was , that no man should undertake more than he was willing and ready to discharge , as far as one man's abilities could go . for , in great cities , one great parish requires more than several churches in the countrey ; and in such cases an equitable construction must be put upon such canons , which require personal performance of these duties . of the maintenance of the parochial clergy , by law . the subject i intend now to consider , is the incouragement which the parochial clergy have by law for the doing their duties : which are the manse , the oblations , and the tithes . i. the manse , or house and glebe . in the canons of egbert it is said , can. 25. that an entire manse ought to belong to every church , without any other than ecclesiastical service . by a manse , mr. selden saith , in the old charters the same is meant as a casat or hyde of land. bignonius and sirmondus say , so much glebe as was an imployment for an husbandman and two servants . spelman saith , it takes in the house too . lyndwood saith , as much land as would imploy a yoke of oxen ; and so the gloss on the canon law. but in another place the gloss saith , the manse is the original endowment of the church , without which it cannot be supplied : and without which it could not be consecrated . for the endowment was first to be produced before the building , collatâ primitùs donatione solemni , are the words of the canon law. and the same appears by concil . valent. 3. c. 9. concil . bracar . 2. c. 5. vit. udalrici c. 7. regino l. 1. c. 23 , 24. which is there explained to be a substantial sustenance for those who were to attend the service of that church . and in the acts of consecration of a parochial church in baluzius , the bishop in the first place declares himself satisfied with the endowment , unde dignè domus dei sustentaretur . and upon this the original right of patronage was founded , not upon the soil , which gave no title , where there was not a church built and endowed with a competent subsistence . so that all advowsons or rights of presentation in private patrons , were at first appendant to manors , and not in gross ; because the right came from the endowment out of the manor : and the name of patron in the sense of the feudal law , is the same with lord of the fee , and so beneficium is a feudal term ; and till the feudal law prevailed , the name of patrom is rarely used in this sense . and when it came to be used , the patrons in france would have brought those who had their benefices to a kind of feudal service , and to have received investiture from them . this mr. selden drives at , as though the patrons had the right of investiture belonging to them , because some such practice is often complained of in the french canons , and as often condemned , not meerly by ecclesiastical canons , but by as good laws as any were then made . it cannot be denied that bad practices are the occasion of making good laws ; but doth it follow that those practices which were against law , were the law of that time ? yet this is mr. selden's way of arguing ; he grants , that there were laws made , but they were little obeyed . must we therefore conclude those illegal practices to have been the standing law , and the laws themselves to be illegal ? there were two things aimed at by those patrons . 1. to keep the clergy in a sole dependance on themselves , witout regard to the bishop's authority . 2. to make such bargains with them as they thought fit . both these were thought necessary to be redressed by laws , since the canons were slighted by them . and if the practice be good against law in one case , why not in the other also ? why is not simony justified , as well as the patron 's absolute power over the incumbents ? but the laws were severe against both . for in the time of lud. pius , a. d. 816. there was a solemn assembly of the estates of the empire , where several ecclesiastical laws were passed , and among the rest , these two : 1. that no presbyters should be put in , or put out of churches , without the authority and consent of the bishops ; and that the bishops should not refuse those who were presented , if they were probabilis vitae & doctrinae , i.e. such as the bishops could not object against either for life or learning . 2. that every church should have an entire manse belonging to it , free from any feudal service ; but if they had other estates of their own , for them they were to answer to the lords of the manor , as others did . and from hence this came into the collections of ivo , regino , burchardus , and gratian , and passed for a law generally received . as to the former , a new sanction was added to it in another assembly at worms , a. d. 829. c. 1. and repeated in the capitulars , l. 5. c. 98. addit . 4. c. 95. and the like as to the latter , l. 5. c. 100. capit. a. 829. c. 4. but it seems there were some still continued obstinate in their former practices , and therefore these laws were reinforced in another assembly , a. d. 869. in the time of carolus calvus , who mentions the laws of his father and grandfather to the same purpose , c. 9. and there takes notice of the contrivances made use of to defeat the intention of those laws ; and the bottom of all is there said to be abominable simony . which shews , what it was which these patrons aimed at , by claiming investiture without the bishop . and it was then judged necessary , that the bishop's consent was required to prevent this mischief . but still some patrons required feudal service for the glebe they had given to the church ; but the law commands them to restore it free from such service , capit l. 5. c. 100. addit . l. 4. c. 98 , 163. and after much struggling , hinomarus , who lived at that time , saith , that these laws were observed . the patron 's right by virtue of the endowment , was not disputed ; but an arbitrary power , as to the incumbents , was utterly denied them ; and they were put under the bishop's care , who was to receive complaints against them , and to proceed according to the churches canons . but i am apt to think that all this stir in france did not arise from the pretence of original donation and endowment of churches , but from the infeodation of church lands and titles , by charles martel ( as an old ms. in filesacus saith ) and others in france , whose custom it was to give them in recompence to their souldiers , who then looked on them as their own , and were hardly brought to any reasonable allowance for the clergy which supplied them . these were called beneficia in the capitulars , and they were to pay nonae & decimae , i.e. a fifth part out of them , which was obtained with much difficulty , as appears by the many laws made about them . in the council at leptins , a.d. 743. carolomannus , son to charles martel , owns the letting out some of the church lands sub precario & censu , upon a reserved rent , can. 2. capit. l. 5. c. 3. but then it was barely for life . but the consequence was , that it was very hard to recover either the lands or the reserved rents , and they put in clergy-men , and put them out as they pleased , because they held these lands as beneficiary tenures from the crown . so that it was the work of more than an age to put the church there in any tolerable condition . but this seems to be very much mistaken , when it is brought to prove the right of patronage from the endowment , as to the disposal of benefices . but the right of patronage by the first building and endowing the church , is owned by the civil law in iustinian's novels , 123. c. 18. and two things were there required ; 1. a sufficient maintenance for the clergy who were nominated . 2. the bishop's satisfaction as to their fitness ; about which he speaks in another novel , 56. tit. 12. c. 2. and he elsewhere requires , that before any churches were built , the bishop should see that there were sufficient maintenance for those who were to officiate , novel , 66. tit. 22. the same right obtained here upon the same grounds , as appears by the barons answer to gregory ix . who affirm , that they had it ever since christianity was founded here . they mean , ever since parochial churches were endowed by their ancestors ; for there could be no such right of patronage before . and such patrons were here called advocati ecclesiae , as appears by ioh. sarisbur . ep. 6. 119. and the ius advocationis , as our lawyers tell us , is a right which a person hath to present to a vacant benefice in his own name ; which is agreeable to what bracton and fleta had said long before . but it doth not appear by them how the names of patron and advocate came to be so applied . among the romans , saith asconius pedianus , the patron was he that pleaded the cause of another ; the advocate , he that appeared in court on his behalf . but this doth not reach to the ius advocationis which we are now about . in the ninety seventh canon of the african code , an allowance is made for the churches to have advocates to solicite their causes at court. from hence the greater churches and monasteries had their proper advocates appointed them by the king , as bignonius observes ; and in the old charters of aub. miraeus , several such advocates are appointed ; and it appears to have been an honorary title , and great men were pleased with it . miraeus faith , it was accounted a considerable honour at that time . and so by degrees the founders of parochial churches came to have the title of patrons and advocates of them ; and the right they injoyed , the right of advowson as well as patronage ( not as some ridiculously talk of advocat se , or advocat alium ) because the trust and care of those churches , endowed by their ancestors , was fallen to them , and they were bound to look after , and to defend the rights of them ; and so lyndwood explains it . ii. the next thing to be considered , is the oblations of the people , which in those elder times were so free and large , that ( which may seem incredible now ) there were persons who would build churches on their own land to have a share in the oblations , as is affirmed in one of the spanish councils , and there forbidden with great severity . it was not , as the gloss on the canon law understands it , to make a bargain for the right of patronage , but it is expressed to have an equal share with the clergy in the oblations of the people . it is observed by agabardus , that the devotion of persons in the first ages was so great , that there was no need to make laws or canons for the supplies of churches , since they were so amply provided for by the liberality of the people . thence we read of the deposita pietatis in tertullian , which were voluntary oblations ; and out of which were made divisiones mensurnae in s. cyprian , and the sportulae , which were the allowances made to the clergy out of the common stock ; and they who received them , and not those who gave them ( as mr. selden fancies ) were called sportulantes fratres ; and the allowances were then stiled stipes & oblationes , which were so considerable , that st. cyprian blamed some for their setting their hearts too much upon them ; stipes , oblationes , lucra desiderant , quibus prius insatiabiles incubabant ; which could not be said of any meer necessary subsistence ; these they received tanquam decimas ex fructibus , as st. cyprian speaks , in lieu of tithes at that time , when the most of the christian church inhabited the cities , and gave out of their stock to maintain the church , and those who attended upon the service of it . but when christianity came to spread into the countries , then a more fixed and settled maintenance was required , but so as to retain somewhat of the ancient custom in voluntary oblations . no sooner was christianity settled in france , but we read of lands given to the church by clodovaeus after his conversion ; these are owned by the first council of orleans called in his time , a. d. 511. and were put into the bishop's hands , and to be distributed by him for repairs of churches , maintenance of the clergy , and other pious uses , can. 5. 14 , 15. but besides these , we read still of oblations made by the people on the altar , both in the mother-church , and in parochial churches . if in the mother-church one moiety went to the bishop , the other to the clergy ; if in the other , only the third part to the bishop . in the second council of mascon , can. 4. we find it required , that all the people make an oblation of bread and wine at the altar ; and this was a. d. 585. but besides , the next canon insists on the payment of tithes , as founded on the law of god , and the ancient custom of the church , which is thereby reinforced ; unde statuimus & decernimus ut mos antiquus reparetur ; which words are not fairly left out by mr. selden , because they shew that there was only in this canon a renewing of an ancient custom , which had obtained , but was now growing into disuse . for this council of mascon was called on purpose to restore what they found too much declining , as to religion ; and they begin with the observation of the lord's day , and after , add this , wherein they complain of the neglect of that which their predecessors observed , as founded on the law of god. so that there can be no doubt of the custom of paying tithes in france , from the time of receiving christianity ; and that this custom declined as their religion did . in the council of nantz , about a. d. 658. oblations and tithes are mentioned together , c. 10. as making up the churches stock , which was to be divided into four parts , to the bishop , and to the clergy , and to repairs , and to the poor . but besides the oblations of the living , it was then common to make oblations at their death ; and these were called oblationes defunctorum , and severe canons were made against the detainers of them , concil . vas. i. c. 4. agath . c. 4 , 13. q. 2 , 9 , 10 , 11. and so much appears by those canons which forbid exactions at funerals , concil . tribur . c. 16. nannet . c. 6. where an exception is made as to voluntary gifts , either by the parties deceased , or by the executors . but here , in the saxon times there was a funeral duty to be paid , called pecunia sepulchralis & symbolum animae , and a saxon soul-shot ; this is required by the council at aenham , and inforced by the laws of canutus , c. 14. and was due to the church the party deceased belonged to , whether he were there buried or not . some take this for the foundation of mortuaries ; but then the money must be turned into goods . for in glanvil's time , a freeholder is allowed to make his will of other things , provided that he give his first best thing to his lord , and his second to the church . and this was not originally pro animâ defuncti , as lyndwood thinks , from the modern canonists de consecrat . c. 12. but it was a right of the church settled on the decease of a member of it , as appears by the law of canutus . others have said , that it was in lieu of tithes substracted , and oblations not duly made . so simon langham in his constitution about mortuaries , which was made to explain a former constitution of robert winchelsee , because the people were observed not to pay their tithes and oblations as they ought . but he did not go about to settle a right which had not been before , but to prevent suits about that which was to be taken for a mortuary ; and he declares , that where there was a choice of three or more , the second was to be for the mortuary , de sepult . f. 93. b. so that r. winchelsee supposes it to be an ancient right . indeed in the cotton ms. of the council of merton , where this constitution is extant , the reason is given , that it was required by way of compensation for the neglect of tithes and oblations . in the synod of winchester , in his time , a constitution is made for the uniform payment of mortuaries in that diocess , the second best of the goods or chattels was to be paid in lieu of tithes unpaid . in the synod of exeter of pet. quivil , 15 e. 1. the reason is given for the neglect of all parochial duties ; but there it is said , that some pleaded custom against the payment of them , and others , as to the manner ; and although this council endeavoured to settle an uniform payment , yet the statute of circumspectè agatis , leaves the whole matter to custom , ubi mortuarium dari consuevit . from whence my lord coke inferrs , that there is no mortuary due by law , but only by custom . the true inference was , that the contrary custom had altered the law from what it was in the times of canutus and glanvil . but that the prevailing custom became the standing law , as to mortuaries , appears by the statute of 21 h. 8. c. 6. which limits the payment where the custom continued , but allows liberty for free oblations : and this free oblation was then called cors presentè , and was distinct from the mortuary in lieu of tithes , as appears by the instances in sir w. dugdale . but i return to other oblations , which lyndwood distinguisheth into those by way of gift , and such as became due . for these latter , he insists on c. omnis christianus in the canon law , de consecr . d. 1. c. 69. which requires that every one who approaches the altar , make some oblation . where the gloss saith , it is but counsel at other times , but a command on the festivals . for this 16 q. 1. c. 55. is produced , quas populus dare debet ; but it is there interpreted of the case of necessity : hostiensis thinks all are obliged on great festivals , and that the general custom lays an obligation ; but lyndwood thinks the custom of particular churches is to be observed . in the synod of exter before-mentioned , oblations are said to be of divine right , and that every parishioner is obliged to make them ; but the time is limited to christmas , easter , the saints-day of the church and the dedication , or all-saints . so that four times in the year they were required to make oblations after the age of fourteen . and so giles , bishop of sarum , debent offerre ex debito quater in anno . in the synod of winchester , none were so obliged till eighteen , and having goods of their own . but i observe , that in the ancient canons here , by the oblations , such things were then understood , as were for the support of the clergy : thence several canons were made against those who turned them another way . so in the council of london under archbishop stratford , oblations are declared to belong only to ecclesiastical persons . and so lyndwood saith , the goods of the church are called oblations . and in case the mother-church were appropriated , the oblations and obventions made in the chapel of ease , did not belong to the convent , but to the persons who officiated there . these were called by the name of the altarage , and were generally expressed under that name in the endowment of vicarages ; but when these were too small for the maintenance of the vicar , those small tithes which were joyned with them , were comprehended under that name ; and so it hath been resolved in the courts of law upon a solemn hearing . iohn de burgo , in his pupilla oculi , speaking of oblations , saith , that persons may be bound to them four ways : 1. by contract upon the foundation of the church , which amounts only to a pension upon endowment . 2. by promise either living or dying . 3. by necessity , when the parochial minister cannot be supported without it . 4. by custom , in the greater solemnities ; but he saith , the proportion and kind are left to discretion ; which made oblations sink so low , that the parochial clergy must have starved , if they had nothing else to support them . but besides these , he mentions occasional oblations upon particular services , as at marriages , christenings , funerals , &c. concerning which we have several constitutions against those who went about to hinder them , or to reduce them to a small quantity . the easter-offerings are none of these voluntary oblations , but a composition for personal tithes payable at that time ; of which i may have occasion to speak more afterwards . but in the saxon times here were other sorts of oblations ; as ( 1 ) the cyrycsceat or first-fruits of corn payable at s. martin's day , ina ll. 4. 62. edmund . c. 2. and is often mentioned in doomsday-book , and in fleta l. 2. c. 47. malmsb. l. 2. c. 11. and the oblation of poultrey at christmas is mentioned in doomsday , under that title . ( 2. ) there was here another kind of oblation called plow-alms , which was a peny for every plow between easter and whitsontide . this is mentioned in the laws of king ethelred , and required to be paid fifteen days after easter , although it be called eleemosyna aratralis . in the endowment of the vicarage of s. ives , plow-alms is mentioned besides the altarage and obventions . but all these oblations made a very poor subsistence for the parochial clergy . iii. and therefore i come to the main legal support of the parochial clergy , which is in tithes . concerning which i shall proceed in this method ; i. to consider the foundation in law which they stand upon . ii. the rules of law which are to be observed about them . i. as to the foundation they stand upon in point of law. my lord coke not only saith , that the parochial right of tithes is established by divers acts of parliament ; but he mentions the saxon laws before the conquest for the payment of tithes of edward and gathrun , ethelstan , edmund , edgar , canutus , and king edward ' s , confirmed by william i. hobart saith , that tithes are things of common right , and do of right belong to the church . and since parishes were erected , they are due to the parson ( except in spiritual regular cases ) or vicar of the parish . in the register of writs , a book of great authority , there is a writ of consultation for tithes , wherein they are owned to be of common right , as well as immemorial custom , due to the rector within the limits of his parish . lord chief justice dyer saith , that tithes can never be extinguished , because they are of common right . the same is affirmed by justice dodderidge in the case of fosse and parker . in pieddle and napper's case , tithes are said to be an ecclesiastical inheritance collateral to the estate in land , and of their own nature due to an ecclesiastical person : and , that all lands of common right are to pay tithes . therefore it is said by hobart in slade's case , that no land can be discharged of tithes , although it may be discharged of the actual payment . in popham's reports we read , that it is a maxim in law , that all persons ought to pay tithes , and all lands shall be charged with them of common right . so that if the judgment of some of the greatest men of the profession may be taken , nothing can be more clear and evident than the legal right of tithes . but it falls out unhappily among us , that nothing hath been the occasion of so much difference and contention between the incumbents and their parishioners , than the point of the payment of tithes . so that some have wished them changed into some other way of maintenance ; but i cannot see any reason why so ancient , so legal , so just a maintenance should be changed into any other , which would less answer the end , and be liable to as many difficulties , if not far more ; but every change of this kind , where we cannot be secured of the event , is very dangerous , especially when it proceeds from want of judgment or ill-will to the profession ; both which are to be suspected in this case . if the ill humours of some people could be changed , it would signifie far more to the quiet of the clergy , than altering their legal maintenance . therefore the best way is to enquire into the reasons of this dissatisfaction , that we may find out the proper methods to remove it , and thereby to prevent the troublesom and vexatious suits about them , which make the parochial clergy so uneasie , and their labour often unsuccessful with the people . and there is a twofold dissatisfaction which lies at the bottom of most of these contentions about tithes . 1. in point of conscience . 2. in point of law. 1. in point of conscience . there is a sort of people among us , who are very obstinate in this matter , and will rather chuse to go to prison and lie there , than pay their tithes . i have often thought whence such a stiffness should arise in a matter of legal right . if they had opposed all determinations of property by law , they had been more consistent with themselves ; but to allow the law to determine the right as to nine parts , and not as to the tenth , is not to be reconciled . for if the question be concerning the other parts , to whom they do belong , may not men as well dispute the matter of dominion and property in them ? may they not say , that the seed is our own , and the labour and charges our own ; why then shall i answer to another for the profit which arises from my pains and expence ? if it be replied , that the law hath given the property of the land to one , and the use to another , why may they not pretend this to be an unreasonable law to separate one from the other , since land was given for the use ; and the original right of dominion was from what was necessary for use ; therefore the separating right and use , is an incroachment on the natural rights of mankind . and there seems to be more colour for this , than for any to allow the laws to determine the right of nine parts to belong to the lord of the soil , but the tenth by no means to go that way , which the law of the land hath long since determined it . so that the lord of the soil either by descent or purchase , can claim no right to it ; for neither did his ancestors enjoy it , nor those who sold the land to a purchaser consider it as his own , for then he would have had the value of it . the tenth part then is set aside in valuation of estates , as already disposed of ; and the question is , whether the same law which settled the right to the other , shall determine this likewise ? is it not a part of natural injustice to detain that which by law belongs to another ? and is not the law the measure of right in cases of difference between man and man ; why then should not the law fairly and equally determine this matter , to whom the tenth of the profits belongs ? but still they say , it is against their conscience , and they cannot do it . is it against their conscience to do acts of natural justice , not to detain that from another , which of right belongs to him ? but it is in vain to argue with people , who do not judge of things by the common light of reason and justice , but by an unaccountable light within them , which none can judge of but themselves ; and in matter of interest men are the worst judges in their own case . 2. therefore i come to those who are capable of being argued with ; such , i mean , who are unsatisfied in the point of law , not in general , but in particular cases , from whence suits arise , and those are often from these causes : 1. not duly considering the just measure and extent of the rules of law for the payment of tithes . 2. not attending to the exemptions , or discharges by law from the payment of tithes . the best way i know to prevent troublesome suits about tithes , is to enquire diligently into these two things : 1. the rules of law for the payment of tithes . one might have justly expected , that in a matter of common right and daily practice , and wherein the peace and quiet of the people is so much concerned , as well as of the clergy , the rules of law should have been plain , and clear , and liable to as few exceptions as possible ; but instead of this , there is not one general rule in this matter , but hath several exceptions ; and different opinions have been about them by the great men of the law , which hath given too much occasion to the multitudes of suits which have been in the matter of tithes ; so that the clergy are not so much to blame , if they are unavoidably involved in suits by the perplexity of the law , and the different resolutions which have been made about the cases reported by them . this i shall make appear by examining some of the most general rules of law , and comparing them with the resolutions which have been made in particular cases . 1. one of the most standing rules of the law , is , that tithes are only to be paid of things which do annually increase , ex annuatis renovantibus simul & semel . but is this rule allowed in all cases ? 1. from hence coke concludes , that no tithes are to be paid of minerals , or of what is of the substance of the earth ; and so stone , turff , tinn , lead , coals , chalk , pots of earth , are denied to be titheable . but i find , 5 h. 4. n. 65. a petition of the commons was denied about being sued in the ecclesiastical courts for tithes of stone and slat taken out of their quarries . the petition was renewed , 8 h. 4. and then the king's answer was , that the former custom should continue . and so about tithes for sea-coals , 51 e. 3. n. 57. from whence it appears , that these things might be tithed by ancient custom , and that was not thought fit to be altered . but , 34 eliz. it was resolved in the kings-bench , that no tithes are due of quarries of slat or stone , in the case of lysle and wats . here was no regard to custom , and a reason is given , which deserves to be considered , viz. that he may have tithes of the grass or corn which groweth upon the surface of the land where the quarry is . but how if there be none ? as lands where quarries are , seldom afford tithes . but the note on the register saith , that if corn do grow there , tithe of it would be due however . so that here we have a rule against an ancient custom and rule too . but it cannot be denied , that fitz-herbert and brook say , that there is no tithe of quarries , or coals , or such things ; and it was so adjudged , 11 iac. and 14 iac. and in other cases since . and yet after all , rolls yields , that a custom in these cases is to be allowed ; so that the general rule is to be understood so , as there be no custom to the contrary . and as to minerals , it is determined by a late writer , that by custom tithes may be due of them , although they do not annually increase . and my lord coke mentions king iohn's grant to the bishop of exeter of the tithe of his tinn-farm . and a good author assures us , that in places of lead-mines , the tithe of lead is the chief part of the ministers maintenance . therefore my lord coke concludes his discourse of tithes with this general rule , that by custom a parson may have tithes of such things as are not titheable of common right . 2. from hence it is concluded , that no tithe can be due for houses , because they have no annual increase . this was solemnly debated in dr. grant's case , 11 iac. and that there was no tithe due , was proved by the counsel from the register , fitz. h. n. b. brook , &c. but it was resolved by the court , that although houses of themselves were not titheable , yet there might be a modus decimandi on the ground on which the houses stood , and the houses did not take away the right before ; and in most ancient cities and burroughs there was such a modus for the maintenance of their minister . i grant that there was a certain modus decimandi upon houses , but not upon the account of the ground they stood upon ; but there was a customary duty upon houses in lieu of tithes , and were accounted a sort of praedial tithes , although they were called oblationes de domibus , as lyndwood saith , and were distinct from personal tithes , for the iews were bound to pay tithes of houses , but not personal . such was the rate on houses in london : but in dr. layfield's case it was denied , that there could be a prescription of tithes upon houses , because they are to be paid only for the increase of things . what is now become of the former modus decimandi , when a prescription was here insisted upon and denied ? so that here were different opinions , a special custom was allowed upon good reason ; and here a prescription disallowed upon such a reason as would have overthrown the former custom , and yet the law was the same still . 3. from hence it would follow , that if this rule hold , things which have not an annual increase would not be titheable : then no tithe of saffron would be due , whose heads are gathered but once in three years , nor of sylva caedua , under twenty years ; and yet this was allowed in parliament at sarum , saith the register , notwithstanding it was not renewed every year . and rolls saith , that tithes shall be paid of beeches , hazle , willows , holly , alder , maple , even after twenty years , because they are not timber . but what if willows be used for timber ? then hobart saith , they ought to be excepted . if young trees grow in a nursery , and be sold , it is allowed that tithes shall be paid of them , and these are not renewed every year . and what becomes now of this general rule , when so many exceptions are made to it ? 4. if this rule hold , there can be no tithes of after-pasture , for the rule is simul & semel . and my lord coke saith , it was adjudged , 8 iac. that a parson shall not have two tithes of land in one year ; and he instances in the hay and after-pasture , &c. and yet rolls affirms , that it is due by law , unless there be a prescription to the contrary ; and he saith , the iudgment was given upon the prescription . and therefore he resolves it into a modus decimandi . but he mentions several judgments , that no tithe is due for after-pasture , where tithe-hay hath been paid before ; which must be where there was no custom to the contrary , or else he must contradict himself . and so yelverton saith in the case of green and austen , that of common right , tithe-hay discharges the tithe of the after-pasture . but crook saith , that in that case the court went upon the prescription , and allowed it to be good . how could it go upon both ? and sir s. degge is positive , that if a meadow affords two crops , the parson shall have tithe of both . how can these things consist ? or what authority may we rely upon in such difference of opinions ? 2. another rule in law is , that things which are ferae naturae , are not tithable . but here we are to seek what things are ferae naturae ? whether such things as may be tamed and kept under custody , and become a man's property , are ferae naturae ? is it not felony to steal rabbets or pigeons ? if it be , they must be some man's property ; and if they be a man's proper goods , how can they be said to be ferae naturae ? for the meaning was , that no man was to pay tithes for that which was not his own . are not bees ferae naturae , as much as pigeons and rabbets ? but the tithe of bees is allowed to be paid by the tenth of the honey and wax . but rolls saith , that it was doubted whether a tenth swarm were a good modus for the tithe of bees , because they are ferae naturae . the reason is , because they are left wild , and under no custody ; but if they went into several hives belonging to the proprietor , they might be tithable by the hives . and so for pigeons under custody in a dove-house , they are a man's property , and therefore tithable : as it hath been several times resolved in courts of law , 14 iac. in whately and fanbor's case , in iones and gastrill's case , a prohibition was denied ; and justice dodderidge declared , to whom the court assented , that tithe was due both of young pigeons and conies . but the prevailing opinion hath been , that if they are consumed in the house , they are not tithable , but if sold , they are . but are they not ferae naturae as well when they are sold at market , as when they are eaten at home ? why then are they tithable in one case , and not in the other ? if they are tithable at all , they are so where-ever they are spent ; for in tithing , the nature of the thing is to be considered , and not the place of spending it . for upon the same reason there would be no tithe of corn spent at home , or pigs , calves , &c. and therefore i look on the reason as of worse consequence , than the total denying the payment . for who can tell how far this reason may be carried in other cases ? but it is resolved in many cases , that though they are ferae naturae , yet by custom they may be tithed ; and so for fish. custom it seems hath the power of reducing things ferae naturae to the same condition with other things . but as far as i can find , these things by our old constitutions , were as tithable as other things ; but the notion of their being ferae naturae being started , served as a plea against them , where the custom was not continued ; and where it was beyond all dispute , then they said , they were not tithable in themselves , but only by custom ; or not by law , but by custom ; and yet such customs make a part of our law. in several ancient appropriations , fish , and pigeons , and rabbets are expresly mentioned , as given together with other tithes ; so that in those times both law and custom went together . for the lords of manors were not wont to give tithes which were not otherwise due . 3. but what is to be done with those lands which might afford tithe , if the increase of grass were suffered but the owners feed cattel upon it , and so there can be no tithes , what remedy doth the law afford in this case ? 1. it is agreed that no tithe is due , if no other cattel be fed , but such as the owner pays tithe for , or are imployed in plowing , or any other way which is for the benefit of the incumbent of that parish where they are fed . for otherwise they are but as barren cattel to him . 2. that there is a certain rate due for the agistment of barren cattel , iure communi , and so delivered by hales then chief baron , according to the value of the land , unless custom hath determined otherwise . and so for guest-horses , &c. unless the inn-keeper had paid tithe-hay , say some , or the custom be otherwise : but none for saddle-horses for the use of the owner . one of the judges dissenting , because not intended for husbandry . but for unprofitable cattel the tenth part of the bargain is due , or according to the value of the land , and the owner of the cattel is compellable to pay . 3. if profitable and unprofitable be mixed , so as the latter be the greater number , then herbage must be paid for them , and tithe in kind for the profitable ; but if the profitable be the greater number , it is questioned whether the other are not excused ; but no law or precedent is produced for it : and there seems to be no reason , if pasturage be due for unprofitable cattel , why they should be excused because there are more profitable , unless their number be inconsiderable . these things i have only briefly touched at , that you may the better govern your selves in disputes of this nature ; and as you are not to lose the just rights of the church , so neither is it for your interest or honour to be engaged in them , where the law will not bear you out . ii. the next thing necessary to be considered , is , the legal discharges from the payment of tithes . for , although the reason of the payment of them be founded on the law of god , and the settlement of tithes among us hath been by ancient and unquestionable laws of the land , yet the recovery of tithes when unjustly detained , can be no otherwise than by the law of the land , as it is now in force . and if these do allow several discharges and exemptions not to be found in the ancient laws or practice , we shall but involve our selves in fruitless-contentions , if we dispute those limitations which the law hath put upon the payment of tithes . and therefore our business is to enquire and satisfie our selves , as well as we can , about the nature and extent of these limitations . now there are four sorts of discharges of the payment of tithes allowed . 1. by appropriations to monasteries . 2. by privileges of particular orders . 3. by prescription and real compositions . 4. by unity and possession . of these i shall discourse in order , so as to clear the greatest difficulties , with respect to them . 1. as to appropriations . by the statute of dissolution , 31 h. 8. 13. the new possessors are to enjoy their parsonages appropriated , tithes , pensions , and portions , and all other lands belonging to them , discharged and acquitted of the payment of tithes , as freely , and in as ample a manner as they were enjoyed before . 32 h. 8. 7. it is enacted , that no persons shall be compelled , or otherwise sued to yield , give or pay any manner of tithes for any mannors , lands , tenements , or other hereditaments , which by laws or statutes of this realm are discharged , or not chargeable with the payment of any such tithes . so that we must enquire into the state of parsonages appropriated before the dissolution , and how the payment of tithes stood then . i will not deny that there were churches appropriated to monasteries in the saxon times ; but if mr. selden's doctrine hold good , as to the arbitrary consecration of tithes till the twelfth century , those churches cannot carry the tithes along with them , but only such glebe and oblations as belonged to them . for how could the tithes pass with the churches , if they were not then annexed to them ? but he confesses , that the mention of tithes with churches in appropriations , was rare , or not at all till after the normans . the reason might be , that the separation of tithes from the churches , was not known till the norman times . for the norman nobility took little notice of the saxon laws about tithes ; but finding tithes paid out of the lands within their manors , they thought they did well , if they gave the whole tithes , or a portion and share of them , as they thought fit , to some monastery either abroad or at home . and this i take to be the true account of the beginning of appropriations among us . it were endless to give an account of the appropriations made by the normans , for the monasticon is full of them . william i. gave several churches with their tithes to battle-abbey . william rufus added more . h. 1. to the monastery of reading , several churches in like-manner ; and h. 2. more . hugh earl of chester , gave the tithes of several manors to the monastery of st. werburg , in the time of william i. of which kind the instances are too many to be mentioned ; instead thereof , i shall set down the state of the parochial clergy under these appropriations , which was very mean , and intended so to be , being supplied by the english clergy . 1. where the churches and tithes were appropriated to a monastery , the vicar had only such a competency as the bishop thought fit to allow , till vicarages came to be endowed : for right understanding this matter of appropriations , as it stood here in england , these things are to be considered . 1. that there was a parochial right of tithes settled in the saxon times : which i infer from the laws of edgar and canutus , where the tithes are required to be paid to the mother-church ; and if the lord of a manor have a church on his own free-land , he may retain a third part of the tithes for the use of it . these laws are so plain and clear , that mr. selden does not deny them ; and he confesses , the first limitation of profits to be contained in them . but what is to be understood by the mother-church to which the tithes were given ? mr. selden would have it the monastery or mother-church ; but afterwards he grants , that a parochial right to incumbents was hereby settled ; which is the first legal settlement of tithes in a parochial manner : but these laws of edgar and canutus were so solemnly enacted , that , as mr. selden observes , they were particularly called , leges anglicae , the old english laws in the old latin mss. it is a commonly received opinion among the lawyers of the best rank , that before the lateran council there was no parochial settlement of tithes here . my lord coke found no such decree of the lateran council under alexander 3. 5 h. 2. a. d. 1179. and therefore he refers it to a decretal of innocent 3. as to the lateran council which lyndwood mentions , it plainly speaks of feudal tithes , which a person enjoyed by the churches grant , and such might before that council , be given to what church the person pleased . but is there no difference between feudal and parochial tithes ? and what proof is there of any ancient infeodations of tithes here ? mr. selden himself thinks lyndwood applies the custom of other countries to his own . but as to the parochial right of tithes among us , it stands thus : by the saxon laws the parochial was settled . after the norman invasion these laws were neglected and slighted by the normans ; h. i. by his charter restored them , h. 1. c. 11. and the very words of the laws of edgar and canutus are repeated . the normans went on notwithstanding , and so these laws were discontinued in practice . but hadrian 4. who was an englishman by birth , observing the disorderly payments of tithes here , published a constitution to require the parochial payment of them , as is observed by p. pithaeus , a very learned and impartial man. after him alexander 3. in a decretal directed to the archbishop of canterbury and his suffragans , complains , that whereas the parishioners had formerly paid their tithes entirely where they ought to pay them , the contrary custom had obtained ; and some withdrew the tithe of wooll , fish , and mills ; therefore he requires the strict payment of them to the churches to which they were due . the latter part only is in the canon law , but the former is added from the ancient copies by pithaeus . as to the decretal of innocent iii. to which my lord coke refers , and mr. selden thinks was mistaken for the lateran council , being brought into england with it ; there is such an epistle extant in the collection of his epistles , but not put into the canon law , and was nothing but an inforcement of the former laws , and a declaring the contrary custom void , which had too much obtained since the norman times . but in a decretal extant in the canon law , de decim . c. 29. he acknowledges the parochial payment of tithes to be due by common right , cum perceptio decimarum ad paroeciales ecclesias de iure communi pertineat . can any thing be plainer than that the parochial right could not depend upon his decretal epistle , when himself confesses that they were due by common right ? we do not deny that he inforced the payment which had been so grosly neglected in the norman times , and the most they would be brought to in many places , was to pay only a third part to the parish-priest who officiated , and gave the rest to monasteries , and often appropriated the whole tithes to them , either at home or abroad , as will abundantly appear by the monasticon ; from whence it is plain , that they looked on tithes in general , as due to the church , as appears by very many of their ancient charters ; but they thought they did very well when they appropriated them to monasteries of their own erection , or others , as they thought fit . but this humour took so much among the norman nobility , and served so many purposes of honour and devotion , as they thought ( besides reason of state ) that the parochial clergy were reduced to so poor a condition , that alexander iv. complained of it as the bane of religion , and destruction of the church , and as a poison which had spread over the whole nation . and it must be very scandalous indeed , when the pope complained of it : for the monks that were able , generally got their appropriations confirmed in the court of rome . 2. there was a competency to be settled on the parochial clergy by the bishops consent , which was required in order to the confirming an appropriation ; as may be seen in multitudes of them in the monasticon , besides those which are preserved in the churches registers . sometimes the endowment is expressed , and at other times it is reserved in the bishop's power to do it as he sees cause . but the bishops were either so remiss in those times , or the monks so powerful at rome , that the poor vicars fared so hardly , that in the time of h. 2. alexander iii. sent a reprimand to the bishops for favouring the monks too much , and the clergy too little ; and therefore requires the bishops to take care that the vicar had a competent subsistence , so as to be able to bear the burden of his place , and to keep hospitality . this was directed to the bishop of worcester ; for it seems so long since the poor vicars here were hardly provided for . and yet i have seen several forms of appropriations made by the bishops here , after the conquest , wherein there is a twofold salvo ; one for the bishop's right , and another for a sufficient maintenance for the curate , although the church were appropriated ad communem usum monachorum , as of wolstan , roger , and of william in the time of hen. ii. when alexander iii. lived , and of walter de grey , sylvester , &c. but it seems where a competent subsistence had been decreed , the monks took the first opportunity to lessen it ; which occasioned another decretal in the canon law , wherein any such thing is forbidden , without the bishop's consent . in other places they pleaded custom for it ; thence came another decree of the lateran council , to void all such customs by whomsoever introduced , where there was not a competent subsistence for him that served the cure. the monks were still refractary in this matter ; and because the bishops had power to refuse any person presented by the monks , unless they did consent to such a reasonable allowance as the bishop thought fit ; therefore they grew sullen , and would not present ; in which case another decretal was made to give the bishop power to present . and after all , clement v. de iure patron . c. 1. reinforced the former decretals , and injoyned the diocesans in the strictest manner , not to admit any person presented to a cure , where the church was appropriated , unless sufficient allowance were made by the bishop's consent and approbation , and all custom and privileges to the contrary are declared to be void . but how far doth this hold among us now , since the appropriations are become lay-fees , and the bishop's power is not mentioned in the statute of dissolution ? to this i shall give a clear answer , but i doubt not satisfactory , to all parties concerned . for as necessity and power , so some mens interest and reason live very near one another . 1. the statute of dissolution leaves all matters of right as to persons interested just as they were before . for by the surrender the king was to have the monasteries and tithes in as large and ample a manner as the abbots then had them in right of their houses , and in the same state and condition as they then were , or of right ought to have been : and so res transit cum suo onere . but this is not all : for there is an express salvo for all rights , claims , interests , &c. of all persons and bodies politick . so that if by the law of england there was such an antecedent right in the vicar to his allowance , and in the bishop to assign it , it is not taken away by this statute , nor any other . 2. by the law of england the bishop had a right to provide a competent maintenance for supplying the cure upon an appropriation . we are told by an unquestionable authority in point of law , that 9 car. 1. this point was brought before the kings bench , in the case of thornburgh and hitchcot . the vicar complained , that the church was appropriated , and that he wanted a competent maintenance ; a prohibition was prayed , but denied upon this reason , that the vicar had reason for his suit , and that the ordinary might compel the impropriator to make it greater ; because in all appropriations that power was reserved to the ordinary . and so in the year-books it is allowed , that the ordinary may increase or diminish the vicar's portion , 40 e. 3. cas. 15. f. 28. by our provincial constitutions , the bishop is to take care that the vicar have a competent allowance ; which at that time was set at five marks ; but lyndwood observes , that as the price of things rose , so the allowance was increased , and in stipendiaries it was then advanced to eight or ten marks ; which , according to sir h. spelman's computation , comes to above sixty pounds per annum . but some have told us , that by some old statutes , even beneficed persons were not by law to have above six marks per annum ; for this was the sum allowed to parish priests ; which is so gross a mistake in any that pretend to law or antiquity , that it is to be wondred how they could fall into it . the truth of the case was this ; the parochial chaplains or priests were complained of , 36 e. 3. n. 23. that they could not be gotten to attend after the plague , but at excessive rates ; upon this a provincial constitution was made , extant in the parliament rolls , wherein they are obliged to demand no more than six marks . but who were these parish-priests ? not such as had the legal endowments , but those who depended on the good-will of the parson or people , and were hired to officiate in chapels of ease , or to perform offices for the dead , which were so frequent at that time . and these were called annual chaplains , or masse chaplains , and were distinguished from domestick chaplains who officiated in great mens houses in their private oratories , and from beneficed persons , as appears by many constitutions . but whatever was understood by the act of parliament then , it was repealed 21 iac. 1. 28. 3. the law of england , as to a competent subsistence for the vicars or curates in appropriated churches , is founded on very good reason . for the tithes were originally given for the service of the church , and not for the use of monasteries . and this was a hard point for the monks to get over , since the tithes were given for the maintenance of the clergy , and they were none of the clergy , how they came to have a right to the tithes . it is certain , that the state of the clergy and the monastick state were different ; and the offices of the clergy and of the monks were inconsistent , if they held to their rules ; how then came the monks to take the maintenance which belonged to the clergy for other offices , as though they were originally intended for them ? for which there is no colour or pretence . this point was debated between two great men of their times , s. bernard and petrus cluniacensis : the former a cistertian monk , declared himself unsatisfied with the monks taking the maintenance of the parochial clergy from them , which was given on purpose to attend the cure of souls . but , said petrus cluniacensis , do we not pray for their souls ? but the cure of souls is another thing ; and by the canons of the church the monks were forbidden to meddle in parochial offices of preaching , baptizing , visiting the sick. so that it might bear a question in law , whether a monastery were capable of an appropriation , since by the ecclesiastical law , they are not an ecclesiastical body ? and for that reason hobart saith , a nunnery is not ; and the same reason will hold for the other . the cistertian order was at first very scrupulous in this matter , when they came hither , and pretended to live only on their own lands , and disliked appropriations , as great injuries to the clergy , and called it sacrilege to take their tithes away from them . this was wisely done of them at first to ingratiate themselves with the clergy , and to get as good lands as they could . but after a while they abated their zeal , and then they pretended to do nothing without the bishops consent ; till at last they were as ready as any , and got as large privileges to exempt their lands from payment of tithes , under which the clergy suffer to this day . but to return to the beginning of appropriations among us . after the normans coming , they stood upon no niceties of law , or original grants , but they took possessions of the tithes of their manors , and disposed them as they pleased . the poor parochial clergy were english , whom they hated , and cared not how poor they were ; the bishops were normans , as fast as they could make them ; and the business of the great men , was to incourage the norman monks that came over , and to build and endow monasteries for them to pray for their souls , which they minded so little themselves ; and this i take to be the true account of the beginning and increase of appropriations in england , which at first were only permitted , but are confirmed by the law since the statute of dissolution . ii. in some appropriations there were vicarages endowed , and here the difficulty lies in distinguishing the tithes which belong to one from the other . before the statutes for endowment of vicarages , in case of appropriations , 15 r. 2. 6. 4 h. 4. 12. there were endowments made , where the bishops took care of it ; but they were generally so remiss in it , that those statutes were thought very necessary ; and one , it● seems , was not sufficient . for they eluded the former by appointing vicars out of their own body ; but the latter statute requires , that the vicar shall be a secular person , and made spiritual vicar , and have such an endowment as the ordinary should think fit , otherwise the appropriation to be void . the scandal of the appropriations was made so great by the greediness of the monks , and easiness of the bishops , that i find in the parliament rolls 2 h. 4. 51. a petition of the commons , that no appropriations should be made for the future ; but afterwards they came to that temper which is expressed in the statute 4 h. 4. and that before those statutes , there was no necessity of the endowment of a vicarage , is plain from the occasion of making them ; and so it hath been agreed in the courts of law in the case of britton and ward . but the main difficulty is , to state the tithes which belonged to the vicarage and to the appropriation ; because there was no certain limitation either as to quantity or kind , although generally the great tithes of corn and hay went with the parsonage , and the small tithes and obventions , and altarage with the vicarage . the best rules i can find to be satisfied in this matter , are the endowment , or prescription . and where the endowment is found , yet there may be a prescription for tithes not mentioned ; because the bishop had a power reserved to increase the allowance : as in the case of the vicar of gillingham , who sued for customary tithes not mentioned in the endowment ; and he recovered them on this presumption , that the vicarage might be augmented with those tithes ; and in case of long possession , it is there said to have been often so held and ruled . sometimes there is a difficulty in the sense of the words of the endowment , as in the case of barksdale and smith , whether decima garbarum in w. implied tithe-hay ; but it was resolved , that although garba seems to relate to corn , de omni annonâ decima garba deo reddenda est . l. edw. confess . c. 8. at least , to something bound up ; and so lyndwood applies it to faggots ; yet the custom was thought sufficient to extend it to tithe-hay ; and for tithe-wood in renoulds and green's case . but the greatest difficulty hath been about small tithes , which is the common endowment of vicarages . in the case of ward and britton , one point was , whether lambs were small tithes or not . noy pleaded custom for it . the councel on the other side said , that small tithes were such as grew in gardens ; but lambs were a sort of praedial tithes ; however , it was yielded , that custom might bring them under small tithes . another point about small tithes , was about saffron growing in a corn-field , in the case of bedingfield and freak , and it was resolved to be small tithes . but the ground of that resolution was questioned in the case of udal and tyndal ; some said it was , because saffron was small tithes where-ever it grew : others , that by the endowment , the parson had only reserved the tithe of corn and hay . but suppose whole fields be planted with woad , which grows in the nature of an herb , is this to be reckoned among small tithes ? crook seems to deliver the sense of the court so , in the former case ; but hutton reports it , that it might come to be majores decimae and praedial , if it came to be the main profits of the place . and the like may hold as to hemp , hops , wooll and lambs . it 's there said , that all these new things , as saffron , hemp , woad , tobacco , &c. are to be reckoned among small tithes , unless there be some material circumstance to the contrary . but who is to be judge of that ? and what proportion changes small tithes into greater ? but what if the endowment be so expressed , that only tithes of corn and hay be reserved to the parson ? then rolls thinks all the rest falls to the vicar by construction of law. by the word altarage , it was resolved in the exchequer , upon a solemn hearing , 21 eliz. and after confirmed in the case of wood and greenwood , not meer oblations are to be understood , but whatever custom hath comprehended under it . and i find in the settlement of the altarage of cockerington by rob. grosthead , bishop of lincoln , not only oblations and obventions , but the tithes of wooll and lamb were comprehended under it . ii. the next discharge of tithes , is by the privileges of particular orders allowed by our law. for it is , to be observed , that no bulls of popes make a legal discharge ; but in such cases where the law allows them , and my lord coke thinks it cannot be insisted upon without danger of a praemunire . for when the cistertians had procured new bulls to inlarge their privileges , as to their lands in the hands of farmers , a law was passed against it , 2 h. 4. c. 4. which was grounded on a petition in parliament shewing the novelty and mischief of it . it was affirmed by our great lawyers , that the pope's act in dissolving the body of the templars , which was done , 5 e. 2. had no effect here till the 17 e. 2. when the parliament gave their lands to the hospitallers . and that the pope could not by his bull dissolve a vicarage after they were made perpetual by the statute ; so that our own law is to govern in this matter . but what orders had exemption from tithes by our law ? at first most of the orders of monks had it for lands in their own hands . this by hadrian iv. was restrained to the cistertians , templars and hospitallers , which is owned in the canon law by a decretal of alexander iii. who declares it not to be intended for lands let out to farm . innocent iii. restrains it to such lands as they were then in possession of ; but my lord coke makes the grant to be from innocent iii. in the council of lateran , 17 john ; but he adds , that it extends only to the lands which they had before ; which was all that was done then . but he saith , that this privilege was allowed by the general consent of the realm ; however that were , it is certain that the lateran council made no restriction to the three orders . but what shall we say to the praemonstratenses , of whom he saith , that they were discharged by a bull of innocent iii. this point was disputed in the case of dickenson and greenhow . it was not denied , that they had obtained such a bull , but it was denied that it was ever received here . on the other side , it was said , that their bulls were confirmed ; which doth not appear , nor that any judgment was given in the case . there is a bull extant in the collection of innocent's epistles , to exempt the praemonstratenses from the tithes of lands in their own hands ; but this was granted in the first year of innocent iii. sometime before the lateran council , and they might enjoy the same privileges with the cistertians , if it could be proved , that they were as generally received , which hath not yet been done . as to the cistertians themselves , there are considerable limitations of their privileges . 1. they must relate to lands in their possession before the lateran council , a. d. 1215. 17 of king iohn . and in matters against common right , the proof in reason ought to be on those who pretend to particular privilege . but it 's certain the cistertian order hath had many lands in england since that time ( and it were no hard matter to find them out . ) but , suppose they were actually discharged at the dissolution , and the proprietaries were to enjoy them in the state they found them , is not this a sufficient discharge ? yes , if it be a legal discharge ; for the statute only puts them into the same legal capacity they were in before ; but if they were lands given since the lateran council , they were not in a capacity to be discharged by law ; for it was not otherwise received . 2. this privilege doth not exclude ancient compositions , as to their demesn lands . for these privileges did not go down so easily , but where there were rectors able to contest it , they brought even the cistertians to compositions . and the pope himself appointed commissioners here to compound the matter : as between the monastery of pipewel and hugh patesbul rector of eltyndon , which ended in a composition of six marks per annum for the tithes of their demesns . and another between the vicar of dunchurch and the same monastery ; and between the rector of wynswick for the tithes of ten yard-lands in colds-abbey . all which i have perused in the register of that monastery ms. 3. the privilege doth not hold where the monasteries were under value , and came to the king by the statute 27 h. 8. unless they were continued , and came within the statute of dissolution , 31 h. 8. and it ought to be proved that they continued separate ; for if their lands were given to the greater monasteries , they did not retain the privilege upon dissolution . but there is a much harder point concerning the hospitallers ( who had the lands of the templers after 17 e. 2. ) their lands were not given to the king by the statute of dissolution , 31 h. 8. but 32 h. 8. c. 24. and the clause of exemption was left out of the grant. upon which a great question hath risen , whether their lands are exempt or not ? and judgment was given against them in the case of cornwallis , or quarles and spurling . but in the case of whiston and weston , it was argued , that the king had the same privileges which the hospitallers had . but it was replied , that other lands given to the king after that act , had not those privileges , as chanteries , &c. it was said , that it was , because they were not regular ecclesiastical bodies : which was a strange answer , considering what sort of ecclesiastical bodies the hospitallers made , when only the grand master and two chaplains are bound to be ecclesiasticks ; and in foreign judicatures they were denied to be any part of the clergy , being only an order of knights under some particular regulations . but suppose them capable of appropriations of tithes , yet when the body is dissolved , the appropriation falls of it self , unless continued by act of parliament , as those of the templars were to them ; and those of the monasteries by 31 h. 8. but where there is no clause to continue the appropriation , it must be understood to be left to the natural course of things , and so the appropriation sinks . iii. the third legal exemption is from prescription , and ancient compositions . this seems a difficult case , because something less than the real value is to be taken , and the rule in lyndwood is , non valet consuetudo , ut minus quam decima solvatur ; but in all such prescriptions and compositions there is less than the true value . to clear this matter , i shall shew , 1. that by our ecclesiastical law , all compositions are not condemned . 2. that by the common law all prescriptions are not allowed . and if these things be made out , it will follow , that where the compositions and prescriptions are legal , the clergy may with good conscience submit to them , as they do in other matters of law. 1. as to the ecclesiastical law , lyndwood himself makes these limitations ; 1. in case of personal tithes . he grants that as to them , a man may with a good conscience observe the custom although it be under the real value . now these are founded on the same laws that praedial and mixt tithes are ; and by the stat. 2 e. 6. c. 13. they are reduced to a customary payment before easter , as it had been used forty years before : but besides these there were offerings to be compounded for , and the easter duties are a kind of composition for personal tithes . 2. in small tithes , the customary payment is allowed . the payment in lyndwood's time , was 6 ob . for six lambs , because it was the tenth of the value at that time of a lamb of a year old ; the seventh lamb was to be paid in kind , for which 3 ob . were to be paid back , because three lambs were wanting of the number ten. but can any one believe that 5 d. was the true value then of a lamb of a year old ? and lyndwood doth not suppose it be the exact value ; but it was such as the provincial constitution determined , and he allows compositions super minutis decimis . 3. compositions were allowed with the bishop's consent with lay-persons for their tithes . as to what is past , there was no doubt ; but for the future he saith , it doth not hold sine iudicis auctoritate ; which implies , that by his consent it may . and if so , then a modus decimandi so qualified , is allowed by the ecclesiastical law. such compositions as these were entred into the bishop's registries , and if they were then made upon a valuable consideration at that time , i doubt the force of custom will get the better of the reason that may be taken from the great difference of valuation of things . 2. let us now consider what prescriptions and compositions are not allowable at common law. 1. no prescription de non decimando , is allowed among lay-persons , because none but spiritual persons are by the law capable of tithes in their own right . a lay-man , saith mr. selden , cannot be discharged of all payment by meer prescription , unless he begin the prescription in a spiritual person . and to the same purpose our great lawyers speak . but in the famous case of pigot and hern , a distinction was found out , which may prove of dangerous consequence , viz. that although the lord of a manor cannot prescribe for tithes , because he is not capable of them by our law , yet he may prescribe for a tenth shock , as a profit apprendre , as a thing appurtenant to his manor ; and so he may have decimam garbam , but not decimas garbarum . upon which resolution it is said in the bishop of winchester's case , that the lord of a manor may have tithes as appurtenant to his manor : for which there is no foundation in our ancient laws or customs , that i can find , and is inconsistent with what is before acknowledged , that none but spiritual persons are capable of tithes . but in plain truth , this case is not truly represented ; and my lord chief justice hobart , a person of great judgment and learning in the law , hath told the world , that this famous reporter hath sometimes given his own opinion , and that sudden , instead of the resolution of the court , which must take much off from the authority of his reports ; especially when the case is differently reported by others ; as it falls out in this case . for serjeant moor , who was of councel in that case , saith , that the defendant pleaded a modus decimandi in satisfaction for tithes , which was 6 s. per annum : but as to the other point , whether such an ancient modus being made with the lord of a manor , binds the copy-holders , it is out of our way ; but surely there ought to be good proof , that the modus was made before the copy-holds holds were granted , which is not offered , but only that it might be so ; which deserves no other answer , but that it might not be so . and it is hard indeed , when judgments are given upon possibilities . and for the distinction of decima garba and decimae garbarum , in a composition for tithes , is the same thing . mr. selden , as to this case of pigot and hern , saith , it was an inheritance of tithes from immemorial time , by virtue of an ancient composition . and he would not understand the judges in any other sense : for no kind of infeodation of tithes is allowable here , he saith , so as to create in lay-men a perpetual right to them ( except only by the statute of dissolution of monasteries ) unless it be derived from some ancient grant of discharge from the parson , patron and ordinary , with a consideration of recompence to the parson ; and that either from time immemorial , or ancient composition . and to the same purpose he speaks in another place , where he owns , that by our law every parson had a common right to the tithes of all annual increase ( praedial or mixt ) within the limits of his parish ; and any title or discharge must be specially pleaded . 2. where a prescription is pleaded de modo decimandi , the actual recompence by composition must be shewed . for , as my lord coke saith , a modus decimandi is intended as a yearly sum in way of satisfaction for the tithes to the parson ; which rolls calls the actual recompence . in the register the account of the modus decimandi is thus set down : 1. there was a real composition , as four acres of land for some small tithes . 2. there was an agreement in writing , by the consent of ordinary and patron . but my lord coke saith , the modus may as well be for a sum of money as for land. suppose no ancient composition in writing can be produced , how far doth a prescription hold ? 1. it must be immemorial , or time out of mind . here a great point arises fit to be considered : suppose the thing it self hath been within memory , as improvements by hops , fruit-trees , &c. doth not a composition bind in this case ? i answer , that we are to distinguish personal contracts from real compositions . in the case of hitchcock and hitchcock , there was a contract between the vicar and parishioners , but it was denied to be a real composition , although confirmed by the ordinary , and affirmed not to be binding to the successors . a composition by a meer verbal agreement in the case of hawles and bayfield was declared to be neither binding to the party nor his successors . but in the case of tanner and small it was declared to hold for years , but not for life . my lord coke seems to be of opinion , that if it be a prescription , it must be time out of memory of man ; but that a real composition may be either before , or within memory of man ; but then it must be by parson , patron , and ordinary . it is well observed by sir simon degge in his useful book about these matters , that although real compositions are supposed in law to be the foundation of prescriptions de modo decimandi , where the patron , ordinary and parson did consent to them ; yet that the most of them have grown up by the negligence and carelesness of the clergy themselves , which , i am afraid , is too true . and he is of opinion , that no real composition can be made now to bind the successor , since the statute , 13 eliz. c. 10. which restrains all binding grants to one and twenty years , or three lives ; and if so , then the consent of patron and ordinary cannot make it good . 2. it must be reasonable , and therefore it hath been rejected in these cases : 1. if it be a prescription to pay a certain tithe without the parson's view of the nine parts , because , saith hobart , it is against the law of partition , in the case of wilson and the bishop of carlisle . 2. if there be no recompence to the parson , as in the case of scory and barber , the prescription was founded on the parishioners finding straw for the body of the church . 3. if it be for paying only what was due in lieu of other tithes ; as in the case of ingoldsby and iohnson , that they paid their other tithes in lieu of tithes of dry cattel ; or in case a load of hay be prescribed for in lieu of tithe-hay , or ten sheafs of corn for the tithe of all the rest . 4. if it be not for something certain and durable . for this , saith hobart , shews an original weakness in the composition ; being of a thing certain and durable for that which is not so . iv. the last exemption or discharge that is pleaded as to the payment of tithes , is unity of possession : that is , where a monastery had the right of tithes by appropriation , and had other lands which did not pay tithes , because the owners were to receive them , these were actually free at the time of dissolution ; and the question is , whether they are legally so by virtue of the statute ? it cannot be denied , that unity of possession is in it self no legal discharge ; but whether by the words of the statute the judges were divided in opinion . but afterwards in the case of green and bosekin the judges allowed it , so it were not a meer unity of estate , but of occupation . hobart saith , that after it had been long controverted , it was received as the common opinion . coke , that where unity of possession gives a discharge , the title must be clear , the non-payment general , and the prescription time out of memory ; but if the appropriation were made in the time of ed. 4. h. 6. it could not be discharged by unity ; nor if it were a late abby-prescription . thus i have endeavoured to lay this matter before you as briefly and clearly as i could , from the best light i could get , that i might give you such directions , that you may neither run into needless and vexatious suits , nor be run down by frivolous pretences . it is your great advantage that you have the law of your side , if you understand it a right ; but have a care of being set on by such , whose interest it is to promote suits ; and i am sure it is yours to prevent them , if it be possible , and as much as lies in you . the church's right is not to suffer by your negligence ; and you are not to make the church to suffer by your contentions . he that loves going to law , seldom fails of having enough of it ; he suffers in his purse , in his reputation , in his interest , and the church suffers by his means . endeavour to gain , as much as may be , the love of your people by a kind , modest , courteous and peaceable behaviour , which is the best way to prevent , or to compose differences . if you are forced to sue for your maintenance , let them see that you are forced to it , and that you are always willing to put an end to all such disputes , if the church's right be secured , which you are bound to preserve . of the obligation to observe the ecclesiastical canons and constitutions , at a visitation october 29 th . 1696. in speaking clearly and distinctly to this case , there are these two things to be considered ; i. by what authority they do oblige , ii. in what way and manner they oblige . i. the first thing to be considered , is the authority by which ecclesiastical canons and constitutions do oblige . for , if there be not sufficient authority , there cannot be that obligation on conscience , which supposes a legal exercise of power , or a just right to command . our obedience to the orders of our superiours , is due by virtue of that divine law which requires us to be subject for conscience-sake : but our obedience is to be regulated by the order of iustice , i.e. it ought to be according to law. therefore it is necessary , in the first place , to enquire , whether there be among us any such things as ecclesiastical laws , i.e. such rules , which according to the constitution of our government , we are bound to observe . for we are members of a church established by law ; and there are legal duties incumbent on us , with respect , not only to the laws of god , but of the realm . for , although our office and authority , as church-men , hath a higher original ; yet the limitation of the exercise of it , is within such bounds as are allowed and fixed by the law of the land. it is therefore a matter of great consequence to us to understand how far our ecclesiastical constitutions are grounded upon the law of the land , which cannot be done without searching into the foundations of our laws . which lie in three things : 1. immemorial custom . 2. general practice and allowance . 3. authority of parliament . and i shall endeavour to shew how far our ecclesiastical constitutions are founded on these . 1. immemorial custom . our greatest lawyers allow ancient custom to be one of the foundations of our laws ; and my lord coke calls it one of the main triangles of the laws of england . i suppose he means foundations . and another saith , that the common law of england is nothing else but the common custom of the realm . my lord chief justice hales saith , that the common usage , custom and practice of the kingdom , is one of the main constituents of our law. coke quotes bracton ' s authority to prove , that custom obtains among us the force of a law , where it is received and approved by long use. and of every custom , he saith , there be two essential parts , time and usage ; time out of mind , and continual and peaceable usage without interruption . but in case of prescription or custom , he saith , that an interruption of ten or twenty years hinders not the title , but an interruption in the right ; the other is only an actual suspension for a time . it may be asked , how time and usage come to make laws , since time hath no operation in law , saith grotius ? not of it self , as grotius there saith , but with the concurrence of other circumstances it may . bracton saith , longa possessio parit jus possidendi ; and by a long and peaceable possession dominion is transferred , without either title or delivery ; which he founds on this good reason , that all claims of right ought to have a certain limitation of time , and length of time takes away any proof to the contrary . littleton saith , that time out of memory of man , is said to give right , because no proof can be brought beyond it . and this he calls prescription at common law , as it is distinguished from prescription by the several statutes of limitations . but whence is it then , that an immemorial possession gives right ? is it from the meer silence of the parties concerned to claim it ? no , silence gives no consent , where ignorance or fear may be the cause of it . and is it a punishment upon the neglect of the party concerned ? so bracton saith , time doth it per patientiam & negligentiam veri domini . but meer neglect doth not overthrow right , unless there be an antecedent law to make that neglect a forfeiture ? is it from a presumptive dereliction ? but that supposes not bare continuance of time , but some kind of voluntary act , which implies a sort of consent which doth not appear in this case . and it is a great mistake in those , who think there is no presumptive dereliction , where there is not a full consent ; for it may be , where there is the consent of a mixt will , i.e. partly voluntary , and partly involuntary ; when the circumstances are such , as the person rather chuses to leave his right , than submit to the lawful conditions of enjoying it : as if a man would rather quit his fee than perform the service which belongs to it . is it from the common interest of mankind , that some bounds be fixed to all claims of right ? because otherwise that men will be liable to perpetual disturbance , if the right be permitted to be claimed beyond any possibility of proof . or is it , lastly , that in such nations where immemorial custom obtains the force of a law , it seems agreeable to the foundations of law , that a long continued possession should carry right along with it . and this was the case here in england , as not only appears by what bracton hath said , but glanvil makes a great part of our law to consist of reasonable customs of long continuance . and st. germain affirms ancient general customs to be one of the principal foundations of our law ; and that they have the force of laws , and that the king is bound by his oath to perform them . and it is worth our while to observe what general customs he doth instance in ; as the courts of equity and law , the hundred court , the sheriffs turn , the court baron , &c. which depend not upon acts of parliament , but the ancient custom of england , which he calls the common law. and among these ancient customs , he reckons up rights of descent , escheats , the different sorts of tenures , freeholds , and the laws of property , as they are received among us . we are now to enquire , how far any of our ecclesiastical constitutions can be said to be built upon this foundation ; and upon immemorial custom generally received . 1. i place ( 1. ) the distribution of this national church into two provinces , in each whereof there is an archbishop with metropolitical power , which lies chiefly in these things , ( 1. ) the right of consecration of his suffragans . ( 2. ) the right of visitation of every diocess in such way and manner as custom hath settled it . ( 3. ) the right of receiving appeals from inferiour courts of judicature in ecclesiastical matters . ( 4. ) the right of presiding in provincial councils of the suffragans of his province ; which by the most ancient constitutions of this church , were to be held once a year ; so it was decreed in the council under theodore , a. d. 673. but by the difficulties of the times , they were discontinued ; and so the authority of examining things through the province , came by a kind of devolution to the archbishop and his courts . ( 5. ) the custody of vacant sees , by the custom of england , falls to the metropolitan , if there hath been no custom or composition to the contrary . and so it hath been upon solemn ▪ debates resolved in our courts of common law. coke thinks that of common right it belongs to the dean and chapter , but by custom to the archbishop . but panormitan saith , there was no pretence of common right for them , till the time of boniface viii . 2. the ordinary jurisdiction of every bishop over the clergy of his own diocess . this is as ancient as christianity among us . for no sooner were churches planted , but there were bishops set over them ; who had from the beginning so much authority , that none of the clergy could either receive or quit his benefice without their consent and approbation ; and they were all bound to give an account of their behaviour at their visitations ; and in case of contempt , or other misdemeamours , they were to proceed against them according to the canons of the church . i do not say the diocesses were at first all modelled alike , or with the same bounds which they now have ; which was unreasonable to suppose , considering the gradual conversion of the nation . for at first there was but one bishop in every one of the saxon kingdoms , except kent , where was but one suffragan to the metropolitan for some time , till the kingdoms came to be united ; or the kings consented to an increase of several diocesses , and uniting them under one metropolitan , which was a work of time. but in all the saxon councils we find no mention of any ecclesiastical jurisdiction , but what was in the bishops themselves , concil . cloveshoo , can. 1 , 4 , 5. concil . cealchyth . can. 1. egbert canon . c. 45 , 62. the first who began to seek for exemptions , were the abbots , who were under the bishop's jurisdiction , who was too near them ; and therefore they endeavoured to get under the pope's immediate jurisdiction by charters of exemption , which the great abbies either procured or made ; and the more ancient the more suspicious . but the lord chancellor and three chief judges declared , that by the common law of england , every bishop in his diocess , and the archbishops in convocation may make canons to bind within the limits of their jurisdiction . 3. the subordinate jurisdiction which was lodged in the bodies of the clergy resident in cathedral churches , and of archdeacons in the several diocesses : i cannot find either of these to have had any jurisdiction here before the conquest , neither were there any courts of justice out of the several counties before ; for all causes were transacted in the county-courts and sheriffs turns , and appeals lay from them to the supreme judicature of the king and the lords . but this doth not hinder but these courts may be founded on the law of england . and so the original jurisdiction , which of right belonged to the bishop , might by degrees , and a gradual consent , come to be committed , as to some parts , to the bodies of cathedral churches , and to the archdeacons , who are , saith my lord coke , sixty in england . we are told in a late case of woodward and fox , that there are archdeaconries in england by prescription , which have no dependency on the bishop , but are totally exempt . and for this godolphin is cited , who refers to the gloss on the legatine constitutions , f. 27. where we read of some archdeacons having a customary and limited iurisdiction separate from the bishop , for which a prescription lies . but this is only for some special iurisdiction ; as the archdeacon of richmond for institutions , which came first by grant from the bishops ; but that not being to be produced , they insist upon custom and prescription , as the deans and chapters do , where the ancient compositions are lost . but none who understand the ancient constitution of this church , can suppose either of them to have been original , since the right to the jurisdiction of the diocess was in the bishop , before there were here either archdeacons or chapters with jurisdiction . in the case of chiverton and trudgeon , it was declared , that an archdeacon might have a peculiar jurisdiction , as to administration , &c. as the dean of st. paul's had at s. pancras ; and so the archdeacon of cornwall , as to wills. in the case of gastril and iones the chief justice declared , that the archdeacon is the bishop's officer , and his authority subordinate to the bishops , and granted by them ; but if special custom be pleaded , that must be well proved ; to which dodderidge agreed . but we must distinguish between archdeaconries by prescription , for which i can find no foundation ( being all derived by grant from the bishop ) and archdeacons having some kind of iurisdiction by prescription , which others have not ; which cannot be denied . all the power which the archdeacons have by virtue of their office , is per modum scrutationis simplicis , as lyndwood speaks , tanquam vicarius episcopi : whatever power they have beyond this , is not iure communi , but iure speciali , and depends either upon grant or custom ; which the gloss on the legatine constitutions calls a limited iurisdiction . the archdeacon's court is declared by the judges in woodward ' s case , to have been , time out of mind , settled as a distinct court , from which there lies an appeal to the bishop's court , by the statute , 24 h. 8. c. 12. and so the archdeacon's jurisdiction is founded on an immemorial custom , in subordination to the bishops . as to deans and chapters , i observe these things : 1. that although ecclesiastical bodies in cathedrals were very ancient , yet we read not of any jurisdiction peculiar to themselves , during the saxon times . my lord. coke saith , there were chapters , as the bishop's council , before they had distinct possessions . and by their books , he saith , it appears , that the bishops parted with some of their possessions to them , and so they became patrons of the prebends of the church : such were london , york and litchfield . 2. that several of our chapters were founded and endowed by the bishops since the conquest : such was that of salusbury by osmund out of his own estate , as appears by his charter , and the confirmation of h. 2. so was that of lincoln by remigius , who removed the see from dorchester thither , and placed there a dean , treasurer , praecentor , and seven archdeacons , as henry of huntingdon saith , who lived near the time . and in following times those of exeter and wells were settled as dean and chapter ; for they were ecclesiastical bodies before , but not under that denomination . 3. that some had the legal rights of dean and chapters , as to election of bishops , and confirmation of leases , &c. but were a monastick body consisting of prior and convent : such were canterbury , winchester , worcester , after the expulsion of the secular canons ; for the monks not only enjoyed their lands , but were willing enough to continue the name of dean among them as at canterbury , after dunstan's time , agelmothas is called dean ; in worcester wolstan is called dean when he was prior ; and winsius , upon the first change , is said to be placed loco decani , by florence of worcester . at norwich , herbert the bishop founded the prior and convent out of his own possessions in the time of william ii. and they became the chapter of the bishop by their foundation . now as to these , it is resolved in the dean and chapter of norwich's case , that when the king transferred them from a prior and convent , the legal rights remained the same . and in hayward and fulcher's case , the judges declared , that an ecclesiastical body may surrender their lands , but they cannot dissolve their corporation , but they still remain a chapter to the bishop . and it was not only then delivered , but since insisted upon in a famous case , that it was the resolution of the iudges , that a surrender cannot be made by a dean and chapter , without consent of the bishop , because he hath an interest in them . 4. that h. 8. endowed some as chapters to new erected bishopricks , as chester , bristol , oxford , &c. 31 h. 8 , 9. 34 h. 8. 17. and united others , as bath and wells , and coventry and litchfield , 33 h. 8. 30. 34 h. 8. 15. 5. that where the custom hath so obtained , there may be a legal-chapter without a dean ; as in the diocesses of s. david's and landaff , where there is no other head of the chapter but the bishop ; but they must act as a distinct body in elections and confirmations of grants by the bishops . 6. that by the ancient custom of england , there are sole ecclesiastical corporations as well as aggregate . a sole ecclesiastical corporation , is , where a single person represents a whole succession , and under that capacity is impowered to receive and to convey an estate to his successors : as bishops , deans , archdeacons , parsons , &c. but parsons and vicars are seized only in right of the church , but as to a bishop , he may have a writ of right , because the fee-simple abideth in him and his chapter ; and so may a dean and master of an hospital : and these are called bodies politick by littleton . that the exercise of the bishop's power may be restrained by ancient compositions , as is seen in the two ancient ecclesiastical bodies of st. paul's and litchfield . concerning which , it is to be observed , that where the compositions are extant , both parties are equally bound to observe their parts . thus by the remisness and absence of the bishops of litchfield from their see , by going to chester , and then to coventry , the deans had great power lodged in them , as to ecclesiastical jurisdiction there . after long contests , the matter came to a composition , a. d. 1428. by which the bishops were to visit them but once in seven years , and the chapter had jurisdiction over their own peculiars . so in the church of sarum the dean hath very large jurisdiction , even out of the bishop's diocess ; which makes it probable to have been very ancient ; but upon contest , it was settled by composition between the bishop , dean , and chapter , a. d. 1391. but where there are no compositions , it depends upon custom , which limits the exercise , although it cannot deprive the bishop of his diocesan-right . 4. the delegate jurisdiction which was committed to the several officers of the bishops courts , and the manner of their proceedings , is founded upon immemorial custom . in the saxon times i find no delegation of ecclesiastical jurisdiction ; for the bishops sate in person in the county-courts , and there heard ecclesiastical causes , as appears by the charter of h. 1. when he pretended to restore the saxon laws , c. 7. but william i. had settled the consistory-court by as good a law as any was made at that time , distinct from the county-court , and required all ecclesiastical causes to be there heard ; and his son h. 1. did but make a shew of restoring the saxon laws , and the former law came to be generally received ; and so mr. selden yields , that it grew to be a general law ; which shews that it obtained the force of a law by consent , as well as by authority . the consistory-courts being thus settled , and numbers of causes there depending , and the bishops being then by h. 2. in the constitutions of clarendon strictly tied to attendance upon the supreme courts of judicature , with other barons , there came a necessity of taking in other persons with a delegated power to hear causes , and to do such other acts of jurisdiction as the bishops should appoint . for it was still allowed that iure communi , the jurisdiction was in the bishop ; but iure speciali , & in auxilium episcopi , it might be delegated to others . and so it hath been here received , and not only here , but it hath been the general practice of christendom . as to the manner of proceeding in the ecclesiastical courts , it is the same in all parts , and built on the same grounds with those of our courts of equity and admiralty , which are as different from those of the common law. 5. the settling parochial rights , or the bounds of parishes depends upon an ancient and immemorial custom . for they were not limited by any act of parliament , nor set forth by special commissioners ; but as the circumstances of times , and places , and persons did happen to make them greater or lesser . in some places parishes seem to interfere , when some place in the middle of another parish belongs to one that is distant ; but that hath generally happened by an unity of possession , when the lord of a manor was at the charge to erect a new church , and make a distinct parish of his own demesns , some of which lay in the compass of another parish . but now care is taken by annual perambulations to preserve those bounds of parishes , which have been long settled by custom . but the bounds of parishes is not allowed to belong to the ecclesiastical jurisdiction . ii. the next foundation of law is a general practice , and allowance i.e. when things of themselves do not oblige by the authority of those that made them ; yet being generally received and allowed , they thereby become law to us . this we have in an act of parliament , 25 h. 8. c. 21. wherein it is said , that the people of england are only bound to such laws as are properly their own , being in subjection to no foreign legislative power . but were not many things here received for laws , which were enacted by a foreign authority , as the papal and legatine constitutions ? true , say they , but it is not by virtue of their authority , but by the free consent of the people in the use and allowance of them : and so they are not observed as the laws of any foreign prince , potentate , or prelate , but as the customed and ancient laws of this realm , originally established as laws of the same , by the said sufferance , consent and custom , and no otherwise . so that here we have a full and express declaration by parliament ; that such canons as have been received and allowed by ancient custom , make a part of our laws , and continue to oblige , provided that they be not repugnant to the king's prerogative , nor to the laws , statutes , and customs of the realm , as it is expressed in another act of the same parliament , 25 h. 8. c. 19. the ecclesiastical laws , saith my lord coke , are such as are not against the laws of the realm , viz. the common law , and the statutes and customs of the realm : and according to such laws the ordinary and other ecclesiastical iudges do proceed in causes within their conusance . so that by the acknowledgement of this great oracle of the common law , there are laws ecclesiastical in force among us , and causes to be judged by those laws , and officers appointed by the law to proceed according to them . the ecclesiastical laws and ordinances are owned by the statute , 27 h. 8. c. 20. 32 h. 8. c. 7. 35 h. 8. c. 19. after the commission appointed for the review of them . 1 e. 6. c. 2. the ecclesiastical courts are appointed to be kept by the king's authority , and process to be issued out in his name in all suits and causes of instance between party and party , where the causes are particularly mentioned , which belong to those courts , and no alteration is made in them , as to their powers , but only that the process should be in the king's name . but some persons in our age , who love to be always starting difficulties to humour such as bear ill . will to our constitution , have 〈…〉 although this act was 〈…〉 m. 2. yet that repeal 〈…〉 ●ac . 25. n. 48. therefore 〈…〉 stat. 1 e. 6. is 〈◊〉 but the plain and short answer is this , that there was no need of any debate about the repeal of the statute of e. 6. after the first of q. eliz. because then the statute , 25 h. 8. c. 20. was expresly revived , wherein the bishops were impowered to act as before they might have done , according to the laws and customs of the realm . by which no less men of the law than coke , popham , and other judges did think the stile of the court , and manner of their proceedings was comprehended . and the ancient episcopal iurisdiction is declared to be according to law , by the stat. 1 el. c. 1. and all foreign iurisdiction is abolished , and the ecclesiastical iurisdiction annexed to the crown of this realm ; which is owned by every bishop when he takes the oath of supremacy . how then can it be imagined , that he should do any more to the prejudice of the crown , by the process being in the bishop's name , than the lord of a manor doth , when he keeps his courts in his own name ? to suppose that it is owning a foreign iurisdiction , is ridiculous ; for the bishops of england never pretended to act as ordinaries , by virtue of a jurisdiction from the pope , but by virtue of their original authority which they had by the laws of the realm , as to their exterior jurisdictions . and the authority they then acted by from the pope , was in cases extraordinary , when they were delegated by particular commission . and if there had been any real derogation from the king's prerogative , in the process being in the bishop's name , can any man of sense imagine , that it would have been permitted in such jealous times as to supremacy , as the latter end of h. 8. and the whole reign of q. elizabeth were , wherein the bishops wanted not enemies , but their malice would have been too apparent , if they had insisted on such objections ? but to proceed in shewing that the ecclesiastical laws have been owned by acts of parliament since the reformation , 2 e. 6. c. 13. n. 13. the ecclesiastical iudges are required to proceed according to the king 's ecclesiastical laws . and to the same purpose , 1 el. c. 2. n. 23. accordingly my lord coke frequently owns the ecclesiastical laws and iurisdiction , so they be bounded by the laws of the realm ; of which there can be no question . for deciding of controversies , and for distribution of iustice , saith he , there be within this realm two distinct iurisdictions ; the one ecclesiastical , limited to certain spiritual and particular cases ; the other secular and general , for that it is guided by the common and general law of the realm . and to the same purpose my lord chief justice hales in several places in a ms. discourse of the history and analysis of the common law , ch . 1 , and 2. but here the great difficulty lies in finding out what these canons and constitutions are , which have been so received and allowed by our laws . for it is certain , that several canons made by popes , were not received here , as in the statute of merton , about legitimation of children born before marriage , stat. mert. c. 9. where the lords declared they would not alter the old laws for a new canon . for alexander iii. in the time of hen. ii. had made a canon to that purpose ; but as glanvil saith , it was contra jus & consuetudinem regni . the canon to take away the benefit of the clergy from bigami , was debated in parliament how far it should be received , and the sense there declared , which was complained of , 51 e. 3. and taken away , 1 e. 6. c. 12. the canon against investiture of bishops by a lay-hand , was never here received ; for although h. 1. after a long contest gave it up , yet it was resumed by his successors . the canons for exemption of the clergy , were never fully received here . some lawyers say , it was never observed ; i suppose they mean , according to the canons , but that they had legal privileges here , although not a total exemption , cannot be denied by any one versed in our laws from the saxon times . the pope's canon for the clergy not being taxed without his consent , was never received , as appears by the contests about it in the time of e. 1. and their submission afterwards . the pope's canons about appeals , provisors , dispensations , &c. were never received by such a general consent as to make them laws ; they were sometimes practised by connivence , and the kings , when it served their purposes , let them alone ; but as often as there was occasion , they were contested and denied , and statutes made against the execution of them . some canons i find disputed , whether they were received by the law of england or not . as the canon against clergy mens sons succeeding their fathers in their benefices immediately , without a papal dispensation ; is not only a part of the canon law , but enter'd in our provincial constitutions . but in the case of stoke against sykes , it was held by dodderidge and iones , two learned judges , that this canon was not received here . and dodderidge instanced in two other canons not received ; as against a man's marrying a woman he had committed adultery with ; and a lay-man's not revoking his first presentation . and sir iohn davis mentioned reckoning the months for presentation by weeks , and not by the calendar . but both these are disputable points . for some say , as to the former , that none but the king can revoke a presentation . but the canonists think a private patron may vary with the bishop's consent . and as to the way of computing the months , it hath been differently resolved ; but in catesbie's case , it was determined to be calendar-months for many reasons . but in the ancient resolution in the time of e. ii. the tempus semestre was reckoned from notice to the patron , and not from the death of the incumbent . rolls saith , by our law it is from the time the patron might have notice , with regard to the distance of the place where the incumbent died : which leaves the matter uncertain . but the register reckons from the vacancy . in many other cases the foreign canons were not received , for they allow but four months to a lay-patron , but our law six months ; they deny any sale of a right of advowson , but our law allows it , and a separation of it from the inheritance , which the canon law allows not ; and so in other particulars , but these are sufficient to my purpose . it is observable , that after the council of lions , where the pope was present , peckham , archbishop of canterbury , called a provincial council , wherein he mentions the difference of our customs from all others , and a temperament to be made suitable to them . and our judges in the great case of evans and ayscough , declared , that no canons bind here , but such as are recieved by the realm . and dodderidge said , that our ecclesiastical law doth not consist of the pope's decretals , but is an extract out of the ancient canons , general and national . but the judges agreed , that when they are received , they become part of our law. lord chief justice vaughan saith , that if canon law be made a part of the law of the land , then it is as much the law of the land , and as well , and by the same authority , as any other part of the law of the land. in another place , that the ancient canon law received in this kingdom , is the law of the kingdom in such cases . in a third , that a lawful canon , is the law of the kingdom , as well as an act of parliament . iii. i now come to the third thing , viz. the power of making canons by act of parliament . this is founded on the statute 25 h. 8. c. 19. the words are , that no canons , constitutions and ordinances , provincial or synodal , shall be made , promulged and executed without the king 's royal assent or licence . canons so made , and authorized by the king's letters patents , according to the form of the statute , are said by lord chief justice vaughan , to be canons warranted by act of parliament . and such he affirms the canons of a. d. 1603. to be . but some have objected , that these are only negative words , and are not an introduction of a new law , but a declaration of what the law was before . but my lord coke with far greater judgment , limits that expression , that what was then passed , was declaratory of the common law , to that clause , that no canons should be in force , which were repugnant to the laws of the realm . but as to the making of new canons , he only saith , that their iurisdiction and power is much limited , because they must have licence to make them , and the king 's royal assent to allow them , before they be put in execution . but he never imagined the sense of the statute to be , that no canons could be made but in parliament , or that the king had not a power to confirm new canons made by the convocation . as to the law , as it stood before , we must distinguish these two things ; 1. convocations called by the king 's writ to the bishops , and the body of the clergy , could never assemble without it . but the writ for the convocation to sit with the parliament , ( not together in place , but at the same time ) is contained in the writ to the bishop , and begins with the clause , praemunientes . and it is most probable , that it began on the same ground that the attendance of burgesses did , viz. that when they were brought into the payment of subsidies , they ought to give their consent . for i find , that in the time of h. 3. a. r. 39. the inferiour clergy complained , that they were taxed without their consent . 2. convocations called by the king 's writ to the archbishops ; and in this province the archbishop sends his mandate to the bishop of london , who is to summon all the bishops , &c. to appear at a certain time and place , and to act as they receive authority from the king. the not distinguishing these two writs , hath caused so much confusion in some mens minds , about the rights of the convocation : for they imagine that the convocation , as it treats of ecclesiastical matters , sits by virtue of the first writ , which is in the bishops summons to parliament ; but that related to them as one of the three estates of the realm , whose consent was then required to their own subsidies , which were distinctly granted , but confirmed by the other estates . but the other writ was directed to the archbishop , by which the bishops and inferiour clergy were strictly required to appear , and then to understand the king's further pleasure , as appears by the most ancient . writs for a convocation . which shews , that the convocation , properly so called , is an occasional assembly for such purposes as the king shall direct them when they meet . and this was the true foundation upon which the statute , 25 h. 8. was built . for it cannot be denied , that in fact there had been convocations for ecclesiastical purposes called without the kings writ , by virtue of the archbishop's legatine power , which was permitted to be exercised here , although it were an usurpation upon the king 's right . so even in the time of h. 8. although there were a convocation summoned by the king 's writ to the archbishop of canterbury , yet cardinal wolsley , by virtue of his legatine power , superiour to that of the archbishop , removed the convocation to another place , and presided in it : which was as great an affront to the king 's as well as the archbishop's authority , as could well be imagined . but this was then patiently born : wherefore the statute is to be understood of legal , and not of legatine convocations . but when h. 8. was sufficiently provoked by the court of rome , he resolved to resume the ancient and legal rights of the crown , how soever disused by modern usurpations . and among these he claimed this of summoning the convocation , and directing the proceedings therein . the difference of these writs will best appear by the instance of the convocation , a. d. 1640. in the year , 1639. about the first of february the parliament writ was issued out to the bishops for calling their clergy to parliament ; and this is only ad consentiendum iis quae tunc ibidem de communi concilio regni nostri contigerint ordinari . the other writ for the convocation to the archbishops was issued out the twentieth of february , and had this clause , ad tractandum , consentiendum , & concludendum super praemissis & aliis quae sibi clarius exponentur ex parte meâ . the parliament at that time being dissolved , it 's certain the convocation sitting by virtue of the writ to the bishops must fall with it : but a great question arose , whether the convocation sitting by the writ to the archbishops , was dissolved , or not ? and the greatest judges and lawyers of that time were of opinion it was not . but those were not times to venture upon such points , when people were disposed to find fault , as they did , to purpose when the next parliament met ; who made use of the sitting of this convocation and the canons then pass'd , as one of the popular themes to declaim upon against the bishops , and to inflame the nation against the whole order . the greatest objection in point of law , was , that the commission had a respect to the convocation sitting in parliament-time , which began 13 april 1640. and the commission bore date april 15. the parliament was dissolved may 5. and the 12th of may a new commission was granted , which made void that of the fifteenth of april ; and so what was done by virtue of that , must be done out of parliament , and so not in convocation , according to 25 h. 8. 19. although these canons were confirmed by the king's authority the thirtieth of iune the same year . after the king's restoration , an act of parliament passed for restoring the bishops ordinary jurisdiction ; wherein a clause is added , that this act did not confirm those canons of 1640. but left the ecclesiastical laws as they stood 1639. which act being passed by the king's assent , it voids the former confirmation of them , and so leaves them without force . but the alteration of our law by the act , 25 h. 8. c. 19. lay not in this , that the convocation by the king 's writ to the archbishop , could not sit but in parliament-time ( although that in all respects be the most proper time ) for there is not a word tending that way in the statute ; but provincial councils having been frequently held here , without any writ from the king , and therein treating of matters prejudicial to the crown , by virtue of a legatine power , there was great reason for the king to resume the ancient right of the crown . for so william i. declared it in eadmerus , that nothing should be done in provincial councils without his authority . but afterwards we find hubert , archbishop of canterbury , holding a provincial council against the king's prohibition ; and several writs were sent to them to prohibit their meddling in matters of state in prejudice to the crown , 18 h. 3. under penalty of the bishops forfeiting their baronies ; and to the like purpose , 35 e. 1. 15 e. 2. 6 e. 3. which seems to be a tacit permission of these provincial councils , provided they did nothing prejudicial to the crown . and from such councils came our provincial constitutions , which lyndwood hath digested according to the method of the canon-law , and hath therein shewed what part of the canon-law hath any force here ; not by virtue of any papal or legatine power , but by the general consent of the nation , by which they have been received among us . but my business is not now with canons so received , but with canons made according to the statute , 25 h. 8. 19. for it is ridiculous to imagine those are only negative words , for then they exclude the king's power of calling a convocation , as well as confirming the acts of it . for to what purpose is the king 's writ to call them together , if being assembled they can do nothing ? but i have already mentioned my lord chief justice vaughan's opinion , that the canons made a. d. 1603. are warranted by 25 h. 8. c. 19. it was urged by the council in the case of grove and eliot , 22 carol. 2. that no canons can alter the law , which are not confirmed by act of parliament . but it was said on the other side , that these canons had been always allowed , having been confirmed by the king. one of the judges said , that the king and convocation cannot make canons to bind the laity , but only the clergy . but vaughan said , that those canons are of force , although never confirmed by act of parliament , as no canons are ; and yet , saith he , they are the laws which bind and govern in ecclesiastick affairs . the convocation , with the licence and assent of the king , under the great seal , may make canons for regulation of the church , and that as well concerning laicks as ecclesiasticks ; and so is lyndwood . there can be no question in lyndwood's time , but ecclesiastical constitutions were thought to bind all that were concerned in them ; and the ecclesiastical laws which continue in force by custom and consent , bind all ; the only question then is about making new canons , and the power to make them , is by virtue of an act of parliament , to which the nation consented ; and so there need no representatives of the people in convocation . and no such thing can be inferred from moor , 755. for the judges declared the deprivation of the clergy for not conforming to the canons , to be legal ; but they say nothing of others . but in the case of bird and smith , f. 783. the chancellor and three chief judges declared , that the canons made in convocation by the king's authority , without parliament , do bind in ecclesiastical matters , as an act of parliament . and therefore i proceed to shew , ii. in what manner we are obliged to the observation of these canons ; concerning which i shall premise two things ; 1. that i meddle not with such canons as are altered by laws ; for all grant , that unless it be in moral duties , their force may be taken away by the laws of the land. 2. there are some canons , where the general disuse in matters of no great consequence to the good of the church , or the rights of other persons , may abate the force of the obligation ; especially when the disuse hath been connived at , and not brought into articles of visitation , as can. 74. about gowns with standing collars , and cloaks with sleeves . but the general reason continues in force , viz. that there should be a decent and comely habit for the clergy , whereby they should be known and distinguished by the people ; and for this , the ancient custom of the church is alledged . but here a very material question arises , how far custom is allowed to interpret and alter the force of canons made by a lawful authority : for where a custom prevails against a standing rule , it amounts to this , whether practice against law , is to have more force than the law. and how can there be a reasonable custom against a law built upon reasonable grounds ? but on the other side , if custom hath no power in this case , then all the ancient canons of the church do still bind in conscience , and so we must not kneel at our prayers on sundays , nor between easter and whitsontide , which were thought to be made upon good reason at first ; and so many other canons which have long grown into a disuse . so that if we do strictly oblige persons to observe all ecclesiastical canons made by lawful authority , we run men into endless scruples and perplexities ; and gerson himself grants , that many canons of general councils have lost their force by disuse , and that the observation of them now would be useless and impossible . but on the other side , if meer disuse were sufficient , what would become of any canons and constitutions , where persons are refractary and disobedient ? this is a case which deserves to be stated and cleared . and we are to distinguish three sorts of customs . 1. customs generally obtaining upon altering the reason of ancient canons . 2. customs allowed upon the general inconveniency of modern canons . 3. customs taken up without any rules or canons for them . 1. as to general customs against ancient canons where the reason is altered ; i see no ground for any to set up those canons , as still in force , among us : for this must create confusion and disorder , which those canons were designed to prevent ; and the laws of the land do certainly supersede ancient canons , wherein the necessary duties of religion are not immediately concerned . for we must have a care of setting up ancient canons against the authority of our laws , which cannot be consistent with our national obligation , nor with the oath of supremacy . 2. as to customs relating to modern canons , if it hath any force , as to altering the obligation . 1. it must be general ; not taken up by particular dissaffected persons to our constitution ; for the custom of such men only shews their wilful disobedience and contempt of authority ; and all casuists are agreed , that contempt of lawful authority , is a wilful sin : which supposes a wilful neglect upon knowledge and admonition of their duty . for contempt is , nolle subjici cui oportet subjici ; and a lesser fault commited with it , is a greater sin than a greater fault in it self committed without it , i.e. by meer carelesness and inadvertency . but where there is an open and customary neglect , there is a presumption of contempt , unless some great and evident reason be produced for it . i do not say the bare neglect doth imply contempt in it self , but where there is admonition and a continuance after it , there is a down-right and positive contempt . but where the disuse is general , not out of contempt , but upon other reasons ; and there is no admonition by superiours , but a tacit connivence ; there is a presumtion of a consent towards the laying aside the strict obligation of the canons relating to it . 2. it must be reasonable ▪ i.e. on such grounds as may abate the force of the obligation . for there is a difference between a custom obtaining the force of a law , and a custom abating the force of a canon : in the former case the custom must be grounded on more evident reason than is necessary for the latter . wherein the casuists allow a permission of superiours joyned with reasonable circumstances , to be sufficient . but how can acts of disobedience make a reasonable custom ? cajetan saith , they are to blame who began it , but not those who follow it , when the custom is general . and suarez saith , it is the common opinion . the canonists say , if a custom be against a rule , the reason must be plain ; if only besides the rule , and be not repugnant to the end and design , the reasonableness when it becomes general , is presumed . but if the superiours take notice of it , and condemn it , it loses the force of custom , unless a new reason or higher authority appear for it . 3. but what is to be said for customs taken up without rules or canons ; of what force are they in point of conscience ? 1. it is certain , that no late customs brought in by such as have no authority to oblige , can bind others to follow them . for this were to lay open a gap to the introducing foolish and superstitious customs into the church , which would make distinctions without cause , and make way for differences and animosities , which all wise and good men will avoid as much as may be . it is a rule among the casuists , that voluntary customs , although introduced with a good mind , can never oblige others to observe them . and suarez yields , that a bare frequent repetition of acts cannot bind others , although it hath been of long continuance . 2. if the customs be such as are derived from the primitive times , and continue in practice , there is no reason to oppose , but rather to comply with them ; or if they tend to promote a delight in god's service . as for instance : 1. worshipping towards the east , was a very ancient custom in the christian church . i grant that very insufficient reasons are given for it ; which origen would not have men to be too busie in inquiring into , but to be content that it was a generally received practice , even in his time ; and so doth clemens alexandrinus before him , who thinks it relates to christ , as the sun of righteousness . tertullian and s. basil own the custom , and give no reason . but of all customs that of contention and singularity , where there is no plain reason against them , doth the least become the church of god. 2. the use of organical musick in the publick service . if it tends to compose , and settle , and raise the spirits of men in the acts of worship , i see no reason can be brought against it . if it be said to be only a natural delight , that reason will hold against david , who appointed it by god's own commandment . they who call it levitical service , can never prove it to be any of the typical ceremonies , unless they can shew what was represented by it . i come now to the measure of the obligation of the canons in force . and therein a great regard is to be had to the intention of that authority which enjoyns them ; and that is to be gathered from three things ; 1. the matter . 2. the words and sense of the church . 3. the penalty . 1. as to the matter . if it be in it self weighty , and tends to promote that which is good and pious , and for the honour of god , and service of religion , it cannot be denied but these canons do oblige in conscience . bellarmin distinguishes between laws of the church , which , he saith , are very few , and pious admonitions and good orders , which are not intended to oblige men to sin , but only in case of contempt and scandal . and as to the feasts and fasts of the church , which belong to the laws , he saith , they have mitissimam obligationem ; so any one would think , who considers how many are exempted , and for what reasons . gerson saith , that no human constitutions bind as to moral sin , unless it be founded on the law of god ; as he confesses the church's authority is , as to circumstances ; and then he thinks it obliges in conscience . the substance of his opinion , which hath been much disputed and controverted by modern casuists , lies in these things : 1. that where ecclesiastical constitutions do inforce any part of the law of god , although it be not expresly contained therein , they do immediately bind the consciences of men. 2. that where they tend to the good of the church , and the preservation of decency and order , they do so far oblige , that the contempt of authority therein , is a sin against the law of god. 3. that where the injunctions of authority are for no other end , but to be obeyed , he doth not think that there is any strict obligation in point of conscience . and so far cajetan agrees with him . and although the other casuists seem to be very angry with him , yet when they require a publick good , and the order of the church to be the reason of ecclesiastical laws , they do , in effect , agree with him . now as to the matter of our canons which respect the clergy , there are two especially which bind them strictly ; 1. the canon about sobriety of conversation , can. 75. yes , some may say , as far as the law of god obliges , i.e. to temperance and sobriety ; but the canon forbids resorting to taverns , or alebouses , or playing at dice , cards , or tables ; doth this canon oblige in conscience in this manner ? if it were a new thing that were forbidden , there were some plea against the severity of it ; but frequenting publick houses is forbidden by the apostolical canons , which are of great antiquity , by the council of laodicea , and in trullo , and many others since . and by the apostolical canons any presbyter playing at dice , and continuing so to do after admonition , is to be deprived . the illiberitan council makes it excommunication to play at dice . not meerly for the images of the gentile gods upon them , as albaspinaeus thinks , but because the thing it self was not of good report , even among the gentiles themselves ; as appears by cicero , ovid , suetonius , &c. as giving too great occasion for indecent passions , and of the loss of time . hostiensis reckons up sixteen vices that accompany it , which a clergyman especially ought to avoid . and playing at dice was infamous by the civil law. iustinian forbids clergymen not only playing , but being present at it . it was forbidden in the old articles of visitation here , and in several diocesan synods , spelm. ii. 192 , 252 , 298 , 367 , 450. so that there can be no reason to complain of the severity of this canon , which so generally obtained in the christian church . ii. the canons which relate to ministers discharging the several duties of their function , in preaching , praying , administring sacraments , catechizing , visiting the sick , &c. which are intended to inforce an antecedent duty ; which we can never press you too much or too earnestly to ; considering that the honour of religion , and the salvation of your own and the peoples souls depend upon it . ( 2. ) the next way of judging the church's intention , is by the words and sense of the church . cajetan thinks the general sense is the best rule . navarr saith to the same purpose , although some words are stricter than others . suarez , that the main obligation depends on the matter , but the church's intention may be more expressed by special words of command . tolet relies most upon the sense of the church : but the sense of the church must be understood , whether it be approving , or recommending , or strictly commanding , according to the obligation of affirmative precepts , which makes a reasonable allowance for circumstances . and so our church in some cases expresly allows reasonable impediments . and in precepts of abstinence , we must distinguish the sense of the church , as to moral abstinence , i.e. subduing the flesh to the spirit ; and a ritual abstinence in a meer difference of meats , which our church lays no weight upon ; and a religious abstinence for a greater exercise of prayer and devotion , which our church doth particularly recommend at particular seasons , which i need not mention . ( 3. ) by the penalties annexed , which you may find by reading over the canons , which you ought to do frequently and seriously , in order to your own satisfaction about your duties , and the obligation to perform them . but some may think , that such penal canons oblige only to undergo the punishment . to which i answer , that the case is very different in an hypothetical law , as suarez calls it ; when laws are only conditional and disjunctive , either you must do so , or you must undergo such penalty , which is then looked on as a legal recompence ; and ecclesiastical constitutions , where obedience is chiefly intended , and the penalty is annexed only to inforce it , and to deterr others from disobedience . for no man can imagine that the church aims at any man's suspension or deprivation for it self , or by way of compensation for the breach of its constitutions . and now give me leave not only to put you in mind , but to press earnestly upon you the diligent performance of those duties , which by the laws of god and man , and by your own voluntary promises when you undertook the cure of souls , are incumbent upon you . it is too easie to observe , that those who have the law on their side , and the advantage of a national settlement , are more apt to be remiss and careless when they have the stream with them , than those who row against it , and therefore must take more pains to carry on their designs . as those who force a trade must use much more diligence , than those who go on in the common road of business . but what diligence others use in gaining parties , do you imploy in the saving their souls : which the people will never believe you are in earnest in , unless they observe you are very careful in saving your own by a conscientious discharge of your duties . they do not pretend to fineness of thoughts , and subtilty of reasoning , but they are shrewd judges whether men mean what they say , or not ; and they do not love to be imposed upon by such a sort of sophistry , as if they could think that they can have such a regard to their souls , who shew so little to their own . therefore let your unblameable and holy conversations , your charity and good works , your diligence and constancy in your duties , convince them that you are in earnest ; and they will hearken more to you , than if you used the finest speeches , and the most eloquent harangues in the pulpit to them . these , the people understand little , and value less ; but a serious , convincing , and affectionate way of preaching , is the most likely way to work upon them . if there be such a thing as another world , as no doubt there is , what can you imploy your time , and thoughts , and pains better about , than preparing the souls of your people for a happy eternity ? how mean are all other laborious trifles , and learned impertinencies , and busie inquiries , and restless thoughts , in comparison with this most valuable and happy imployment , if we discharge it well ? and happy is that man , who enjoys the satisfaction of doing his duty now , and much more happy will he be whom our lord , when he cometh , shall find so doing . notes, typically marginal, from the original text notes for div a61555-e120 pag. 277 , &c. histoire des o●●●ages des scavans . août , 1697. p. 551. notes for div a61555-e2560 regino . l. 2. p. 205. hispan . concil . p. 29. regino collect. canon . lib. 2. p. 204. burchard . l. 1. c. 91 , 92. gratian 35. q. 5. c. 7. hieron comment . ad titum . epist. ad 〈◊〉 advers . luciferian . hier. in psal. ad evagr. ad marcel . cyprian . ep. 3 66. aug. in ps. 44. 44. ambros. ad eph. 4. 11. 1 cor. 12. 28. theod. ad 1 tim. 1. 3. iren. l. 3. c. 3. 3 iohn 9 , 10. 1 tim. 3. 2 , 3 , &c. 5. 22. 19. 20. 21. titus 1. 5. de voto & voti redempt . lyndw. f. 103. concil . anglic. vol. 2. f. 182. constit. othon . f. 292. concil . angl. vol. 2. f. 227. constit. provinc . de officio archi-presbyteri , f. 33. concil . anglic. vol. 1. p. 183. lyndw. v. latratuf . 33. v. pabulo v. dei. * prov. constit . de offic. arch-presbyt . f. 282. concil . anglic. vol. 2. p. 332. concil . anglic. vol. 2. p. 700 , 707. concil . anglic. 2 vol. p. 649. constit. de haeret . f. 156. lyndw. f. 156. c. dudum . clem. de sepulturis . io. de athon . in constitut. othobon . f. 46. c. dudum de sepulturis . non potest esse pastoris excusatio , si lupus oves comedit , & pastor nescit . extr. de reg. juris c. 10. reginald . praxis , l. 30. tr . 3. c. 5. p. 52. constit. provinc . de clericis non resid . c. quum hostis . ioh. athon . ad constit. othon . f. 14. reginald . ib. n. 53. can. relatum ex. de cleri●is non resid . lyndw. in c. ●uum hostis . residcant cum effectu . ioh. de athon . in constit. othon . f. 14. continui . can. extirpand . de praebend . & dign . de praesumpt . f. 55. 2. de cleri●● non resident . cum hostis , &c. lyndw. f. 34. ioh. de athon . in constit. othon . f. 12. otho de instit. vic. f. 14. othobon . f. 46. ioh. de athon . in constit. othon . can. quia nonnulli de clericis non resid . quadril . 1. 1. c. 5. plato de leg. l. 6. arist. polit. l. 1. c. 2. nicom . l. 2. c. 1. 7. c. 7. 〈◊〉 . 24. de 〈…〉 c. 4 ▪ lyndw. pr●v . c●st . f. 134 , 135. concil . anglic. 2 vol. 324 , 330. de c●nse●r . dist. 4. c. 54 , 57. lynd. f. 1. 11. sciat . si enim habeant expensas & magistros , peccarent , nisi plus sciant quam laici . provine . constit . de sacra vnct. f. 18. concil . angl. 2. vol. p. 353. c●●cil . angl. 〈◊〉 2. p. 14● , 1●● . 〈…〉 . p. 44● . ● . 143. lyndw. f. 19. orig. in iur. h●m . 14. p. 14. ed. 〈◊〉 . 11. q. 3. c. 63. lyndw. ad l. de poenis . f. 161. extr. de priv. c. porro in gloss. in 〈…〉 17. in ephes. hem. 3. concil . angl. tom. 2. p. 144 , 166 , 299. calvin . instit. l. 4. c. 17. n. 44. pet. martyr . l. c. l. 4. c. 10. n. 48. in 1 cor. 11. p. 55. bucer in matth. 16. p. 186. i●●t . 632. 2 inst. 632. provinc . cons. quum secund . f. 71. can. 95. 5 rep. 57. * multa impediunt promovendum , quae non de●iciunt . gloss. in c. 15. de vit. & honest. cleric . c. christiano , f. 63. de iure patron . c. pastoralis officii . gloss. in can. & malitiose . moor 26 el. 3. 3 cr. 27. can. 39. 3 cr. 341. 1 leon. 230. regino l. 1. c. 5 , 6 , 7 , 8 , 10. baluz . ad reginon . p. 531. concil . anglic. vol. 2. f. 124. c. 10. q. 1. episcopum , regino . l. 1. c. 7. concil . braga . 2. c. 1. 10. q. 1. placait . concil . cabil . 2. c. 14. de censibus , f. 121. de officio vicarii c. quoniam v. procurari . concil . anglic. vol. 2. 140 , 200. extr. de vita & honestat . cleric . c. 14. prov. cont. f. 61. epist. ad ios. hall. concil . anglic. 2 vol. 104. f. 122. 126. can. 78. brownlow's rep. f. 37. id. f. 70. lyndw. f. 9. 6 c. 14. hob. 293. owen 87. 1 cr. 41. 789. officium curae animarum est praecipuum a● spiritualissimum dei donum . ca●etan . in act. 8. concil . anglic. vol. 2. p. 8 , 10. p. 35. p. 105. constit. prov. 152. parsons councellor , sect. 5. hob. 167. 1 rolls 237. io. de athon . in constit. othob . f. 55. 2. 35. e. 1. ● r. 72. 〈◊〉 inst. 204. ●●oo● 917. godbolt 279. rolls 813. 29. e. 3. 16. 2 hen. 4. 3. 11 hen. 6. 20. 9. e. 4. 34. constit. othob . f. 55. 2. othob . f. 55. 2. provinc . constit . f. 59. lyndw. ib. v. sit content . 10. q. 3. c. vnio . concil . tolet. 16. c. 5. 21. q. 1. c. 1. clericus . ex. de praeb . c. referente . ex. de cleric . non-resident . c. quia nonnulli . ex. de praeb . c. de multa . less . l. 2. c. 34. dub. 27. pan. c. du . lu● . 2. de elect. sylv. benef. 4. sum. angel. ben. 35. tolet summa casim . 5. ● . 82. cr. car. f. 456. c. 4. 75. holland's case . notes for div a61555-e11750 deut. 33. 10. levit. 10. 11. numb . 1. 3 , 46. ● . 15 , 39. selden's review , p. 456. hosea 4. 6. isa. 56. 11. 12. levit. 10. 8 , 9. 10. 11. levit. 10. 3. ezek. 3. 18 , 20. 33. 7. 1 pet. 5. 2 , 3. acts 20. 28. 1 thess. 5. 12. heb. 13. 17. ad probandam ecclesiam parochialem , primo est necesse quod habeat locum certis finibus constitutum , in quo degat populus illi ecclesiae deputatu● . rebuff . ad concord . de collat. sect. stat. n. 2. bed. l. 1. c. 26. c. 33. l. 2. c. 3. l. 3. c. 7. l. 4. c. 13 , 16. l. 4. c. 12. l. 5. c. 4 , 5. bed. epist. ad egbert . p. 64. egbert . can. 1 , 2 , 3 , 4. concil . anglie . 1. 293. 1. p. 248. can. 9. concil . anglic● 1. 444. p. 544 , 545. p. 540. ansclm. episi . l. 4. ep. 3. ioh. de athon : in const. othob . p. 59. extr. de iure patron . c. 30. lyndw. f. 34. 167. de vit. & honest. c. 3. gloss. c. 1. q. 2. c. 1. concil . anglic. 11. 253. lynw. f. 53. 2. 167. 72. 2. extr. ne praeter vices , &c. c. 3. lyndw. de consert . e. stat. c. rect. athon . f. 13. ext. de praeb . c. de monachis . lyndw. d● o●ficio 〈◊〉 c. qu●● thorn. c. 2 ▪ sect. 8. extr. de 〈◊〉 ordin . azor. p. 2. l. c. 19. barbosa de officio parochial . c. 1. n. 9. concil . angls 1. p. 183. angl. sacr. 1. 150. stub . vit. arch. h. huntingin angl. sacr. concil . angl. 11. 14. seld. 14. 1. 4 l●st . 259. tit. h. 1. c. ● . can. 48. can. 41. notes for div a61555-e16040 concil . angl. 1. 249. concil . angl. i. 258. egbert . dial. de eccles. instit . cum bedae epistol . ad egbert . dublin , 1664. concil . angl. 1. 600. bed. t. 7. p. 639. alcuin . de offic c. 27. epist. 5. 49. de off. c. 40 , bed. t. iv. 586. v. 583. ii. 310. viii . 930. august . in psal. 91. in psal. 32. 11. 6. de 10 chordis . euseb. praep. l. 8. c. 7. ioseph . 2. c. appion . aben-ezra in exod. kimchi ad psal. 92. menass . concil . in exod. q. 35. aug. c. faust. l. 6. c. 4. c. adimant . c. 2. 16. de genes . ad lit . c. 11. 13. epist. ad ian. 119. c. 13. greg. epist. l. 11. c. 3. de consecr . dist. 3. c. 16. conc. narbon . can. 4. concil . cabil . c. 18. aquisgran . c. 81. arelat . vi. can. 16. rhem. 2. c. 35. paris . vi. l. 3. c. 5. de officio archipresbyt . f. 29. 2. aquin. in sent. l. 3. dist. 37. qu. 1. art. 2. 2. 2. 122. 4. ● 2. q. 100. 1. bell de cultu sanct. l. 3. c. 11. covarruv . car. resol . l. 4. c. 19. azor. t. 2. c. 2. q. 2. suarez de rel. tr. 2. l. 2. c. 1. n. 15. c. 4. n. 8 , 9. waldens . t. 3. tit. 16. c. 140. ina ll. c. 3. withred . c. 10. alfred . c. 10 , 11. athelst. c. 9. edgar . c. 19. ethelred . c. 15. canut . c. 15. concil . angl. ii. 238 , 372 , 599. pupill . oculi , part . 9. c. 6. homily of the place and time of prayer . eccles. polity , l. 5. n. 70. orig. in numer . hom. 23. c. 28. hom. 9. in levit. 16. chrysost. hom. 5. in matth. 2 hom. in ioh. hom. 5. ad pop. antioch . hom. 10. in gen. de officio archipresbyt . v. sanctifices . alcuin . de offic. c. 40. wilt●em . in diptych . leod. c. 8. de cultu sanct. l. 3. c. 10. de feriis , f. 52. concil . angl. i. 247. soz. l. 7. c. 19. regest . l. 1. 24. concil . vasens . 2. c. 2. turon . 3. c. 17. arel . 6. c. 10. capitul . 1. 160. reginold . 1. 205. capit. 11. c. 5. erasm. praefat . ad eccles. sess. 24. c. 4. de reform . act. eccles. mediol . 44● , 450. palaeot . de administr . eccles. bonon . part . 2. p. 34. godeau sur les ordres , p. 458. bordenave des eglis . cathedral . p. 670. tertul. de baptis . c. 19. leo ep. 78. ambros. serm. 61. theodulph . de ordine baptism . c. 8. alcuin . de bapt. cerem . p. 1151. august . de symbol . ad catech. l. 2. c. 1. de fide & oper. c. 6. august . serm. 160. bed. l. 2. c. 1● concil . in trullo , can. 31 , 59. syn. a. & b. can. 12. duaren . de benef. l. 2. c. 7 ▪ concil . angl. i. p. 194. theod. capit. 55 , 57. l. l. canut . c. 22 , 23. l. l. edmund . cap. 4. theod. capit. c. 13. regino i , 300. capit. l. 6. c. 73 , 75. addit . 2. c. 10. gul. paris . de collat. benef. c. 6. perald . sum. vit. to. 2. de avarit . c. 11 sect. 1. cantiprat . de apibus l. 1. c. 19. n. 5. hist. universit . paris . secul . 5. p. 164. aquin. quaest. quodlibet . q. 9. art. 15. caj . ad 2. 2. q. 185. r. 5. concil . tolet. 16. c. 5. c. 10. q. 3. c. 3. concil . paris . 6. c. 49. capit. l. 5. c. 108. capit. l. 6. c. 200. l. 7. c. 245. cajet . sum. v. benef. 1. 6. in. 2. 2. q. 185. r. 5. filliuc . tr. 41. c. 7. n. 6. concil . nanet . c. 8. regino inquisit . art. 46. baluz . append . ad regin . 604 , 608 , 612. thomassin , part. 3. c. 42. n. 9. can. apost . 19. nicen. c. 16. antioch . 3. laodic . 42. calced . 10 , 20. cod. afric . c. 54. cresc . coll. tit. 17. concil . herudf , c. 5. can. edgar . 8. egbert . can. 13. capitul . l. ● . c. 175. concil . nannet . c. 8. concil . tolet. 16. c. 4. c. 10. q. 3. c. vnio . compegins de vnion . n. 1 , 8 , 10 , &c. azor. p. 2. l. 6. c. 28. flam. paris . de resign . l. 12. c. 3. n. 49. addit . 2. n. 10. notes for div a61555-e21930 baluz . ad capit. 1148 selden of tithes , p. 53. bignon . ad form. marc. p. 980. sirmond . ad capit. p. 768. lyndw. f. 44. extr. de censib . c. 1. c. 23. q. 8. c. 24. de consecr . d●st . 1. c. 9. c. 16. q. 7. c. 26. baluz . append . ad reginon . p. 622. ent. de eccles . aedific . c. ad audientium . seld. 85 , 86. f. 89. capit. 816. c. 9. capit. 1 , 84 , 141. ivo p. 3. c. 55 , 174. regino l. 1. c. 24. burch . l. 3. c. 52. c. 23. q. 8. c. 24. 25. concil . labb . t. 8. p. 1815. filesaci opus . p. 846 , &c. fragment . de majoribus pal. du chesn . t. 1. capit. l. 1. 157. regin . l. 1. 43 , 45 , 46 , 47. 1 inst. 17. b. capit. l. 7. c. 392. bignon . in marculph . l. 1. c. 21. aub. mirae . cod. donat. l. 1. c. 136. p. roverii reomaus , p. 614. de foro compet . f. 50. c. 56. q. 7. n. 32. concil . brac. 3. c. 6. de consecr . 1. c. 10. agabard . de dispens . c. 20. tertul. apolog. c. 39. cypr. ep. 34. ep. 66. ep. 64. selden of tithes , c. 5. n. 5. p. 58. spelm. con. p. 517. glanvil . l. 7. c. 5. spelm. concil . ii. p. 433. p. 453. p. 391. 2 inst. 491. warwickshire , p. 470 , &c. spelm. ii. p. 393. p. 303. p. 452. p. 410. p. 585. lyndw. f. 12. spelm. ii. p. 393. spel. gloss. c. altarage . ioh. de burgo pupill . oculi , f. 118. b. spelm. ii. 495 , 410. pupilla oculi , part. 5. c. 21. spel. concil . ● 517 , 527. mon. i. 256. ● . inst. 642. hob. r. 296. regist. f. 46. moor. f. 50. bustrod . 3. 243. 11 r. 13. hob. 298. 44. rolls r. 2. 174. poph. r. 156. law of tithes , c. 12. p. 214. 2 inst. 651. select 〈◊〉 . 16. moor 908. ● . el. 277. 〈…〉 . f. n. b. 53. b. 241. rolls 637. march 58 ▪ law of tithes ▪ 214. 4 inst. 232. 1 rolls , 637. cosin's apo● . p. 38. 2 inst. 664. 11 r. 15 , 16. rolls 1. 636. lyndw. de decimis . c. sanct c. negotiat . selden of tithes , 244. cr. car. 596. hob. 1. 11. regist. 49. rolls 1. 640. hob. 219. cr. car. 526. rolls 1. 637. iones 416. hardres 381. 2 inst. 652. rolls 1. 640. 648. yelv. 86. cr. iac. 116. law of tithes , 190. c. 3. 2 inst. 651. law of tithes c. 8. cr. car. 559. iones , 447. f. n. b. 51. rolls . 1. 651. rolls , 1. 635. rolls , r. 2. 2. hetley , 147. littleton , 3. n. 40. rolls , 1. 644. march , 56. hetley , 13. rolls , 1. 635 , 636. palmer , 527. cr. car. 264 , 339. lyndw. 101. spel. ii. 503. hardr. 188. kebl . 2. 452. 1 inst. 115. 6. 244. monast. i. 577. 646. 1002. ii. 4. 658. lynd. f. 99. f. n. b. 53. 2 inst. 651. hardres , 184. poph. 142. rolls , 1. 641 , 650. bulst . 1. 171. rolls , 1. 641. poph. 126 , 197. hardr. 184. law of tithes 200. hist. of tithes , 370. m●n . 1. 31●punc ; 417. 202. l. l. saxon. wh. p. 62. spelm. concil . 444. l. l. canut . c. 8 , 10 , 11. seld of tithes , p. 262. p. 264. p. 224. 2 r. 44. 2 inst. 641. dyer , 84. brook , 241. cr. car. 422. palmer , 220. selden , 293. lyndw. 81. b. selden , 404. not. in decret . l. 3. c. 30. n. 4. innocent . 3. epist. 2. c. 114. monast. i. 112 , 114 , 201 , 202 , 327 , 590 , 436. ii. 50 , 81. du fresn . e. appropr . monast. i. 369 , 399. ii. 58 , 208 , 656 , 881. iii. 32 , 36. extr. de praeb . c. de monachis . ext. de praeb . c. avar. ext. de praeb . c. extirp . extr. de monachis , ubi supra . ext. de supplend . neglig . prael . sicut nobis . rolls , 2. 337. pro. const. de offic. vic. c. quoniam . of tithes , p. 153. miscel parl. 183. birchington , l. 42. lyndw. f. 32. sacerdos parochialis opposed to beneficiatus . lyndw. f. 1 petr. cluniac . ep. l. 1. 21. d. 55. c. 1. c. 16. q. 1. c. 4 , 5 , 6 , 8 , 10 , 11. mon. i. 699. rolls , r. 2. 480. mon. i. 736. rolls , r. 2. 99. cr. 2. 518. yelv. 86. hardr. 328. cr. el. 633. bulstr. 2. 27. palmer , 219. cr. ●ac . 516. cr. eliz. 467. moor , 909. hutton , 78. owen , 74 , cr. car. 28. hutton ▪ 78. rolls , a. 2. 331. littleton , 244. hetley , 135. mon. ii. 604 2 inst. 653. rot. parl. 2 h. 4. 41. mon. ii. 511. cr. 2. 578. palm . 222. walsingh . 1325. cr. 2. 517. pal. 222. extr. de de●imis . c. 10. 2 inst. 652. popham ▪ ●56 . innocent . 3. epist. l. 1. ep. 331. coke r. 2. 47. moor , 420. cr. car. 424. cr. 2. 58. moor , 913. iones , 186 bridgm. 33. latch . 89. rolls . r. 2. 40 ▪ selden 〈◊〉 tithes , 12 ▪ lynd. f. 101. lynd. f. 97. b. c. consuc● f. 99. lynd. f. 98. lynd. f. 97. b. selden of tithes , p. 409. coke r. 2. 44. cr. 2. 47. rolls , 653. moor , 531 , 425. hob. 297. cr. el. 599. 2 r. 45. hob. 300. moor , 483. moor , 278. seld. p. 398. p. 285. select cases , 43. registr . 38. b. 2 inst. 490. bulst . 2. 238. march , 87. hob. 176. yelv. 94 , 95. 2 inst. 653. select cases , 40. 2 inst. 655. loon. 1. 151. parson's coun. part. 2. c. 20. hob. 107. rolls , 647. rolls , 649. cr. el. 276. march , 65. cr. eliz. 786. c. select cases , 45. bulst . 2. 238. hob. 40. moor , 47. 420. c. r. 2. 47. moor , 533. mob . 298. 11 r. 14. notes for div a61555-e33720 1 inst. 11. b. 115. b. 344. preface to 4 r. sir iohn davis pref. hales history and analysis of the law , ms. 1 inst. 110. b. 1 inst. 114. b. grot. de j. b. & p. l. 2. c. 4. sect. 1. bract. l. 1. c. 3. l. 2. c. 22. n. 1. l. 4. c. 17. n. 5. c. 40. littl. ten. sect. 170. glanv . prol. dr. and st. c. 7. spel. con. i. p. 153. rolls , 2. 322. bulst . 3. 176. brownl . 1. 43. keble , 3. 91. panor . in c. cum olim . moor , r. 783. 1 inst. 〈◊〉 . ventris , ii. 189. 269. godol . 61 , 65. rolls r. 2. 150. 443. de offic. archdiac . gloss. in const. oth. p. 27. ventris , ii. 269. 4 inst. 339. 3 r. 75. 〈…〉 . i. 140. 〈◊〉 . a. 969. anderson , ii. 120. 1 inst. 102. b. 3 r. 75. palmer , 501. iones , 168. quo warranto , 14. 〈…〉 sect. 645. sect. 413. selden of tithes , p. 413. ●ordenave , f. 69. 1 inst. 344. c. 12. 8. 1 inst. 11. 4 inst. 321. prooem . to 4 inst. 1 inst. 96. stat. de merton . c. 9. glanvil . l. 7. ● . 15. stat. de bigamis . c. 5. popham , 157. spel. conc● 2. 342. de eili●● presbyt . cum à jure sit inhibit . lyndw. f. 32. latch . 191. popham , 157. leon. i. 156. hugh's pars. law , c. 12. lyndw. f. 119. leon. i. 39. 6 r. 61. rolls a. ● 363. reg. 42. b. 2 inst. 361. spel. concil . ii. 329. iones , 160. latch . 234. plamer , 458. 469. vaugh. 21. 132. 327. vaugh. 327. bagshaw's arg. about the canons , p. 10. 4 inst. 323. annal. bur●on , 356. 13 car. 2. c. 12. eadmer . hist. p. 6. hoveden , p. 806. ●pel . ii. 123. ventris rep. ii. 42. gers●● de vit. spirit . lect. 4. cor. 13. cajet . sum. in verb. so●o de iust. l. 1. q. 7. art. 2. ad 2. sayr . clavis reg. l. 3. c. 〈◊〉 . n. 12. caj . ad 1. 2. q. 97. art. 3. suar. de leg. l. 4. c. 16. n. 9. roch. curt. de statut. sect. 2. n. 20 , 34. sect. 7. n. 5 , 11 , 12 , 13. soto , l. 1. q. 7. art. 2. suarez , de ll. l. 7. c. 15. 10 , 11. origen . in numer . hom. 5. clem. alex. str. l. 7. tertul. apol. c. 16. basil. de sp. sancto c. 27. 2 chron. 29. 25. bell. de r. d. l. 14. c. 18. de vit. spir. lect. 4. cor. 1. coroll . 6. cajet . sum. 6. contempt . &c. clerico● rum . can. apost . 54. laodicea , 24. in trullo , 9. carthag . 43. dist. 44. 2 , 3 , 4. aquisgr . c. 14. francf . c. 19. aquisgr . 2. c. 60. extr. de vit. & honest. cleric . c. 15. conc. west●●●n . c. 2. spelm. ii. 192. lynd. l. 3. c. 1. concil . illiber . can. 79. cicero phil. 3. ovid de a. a. l. 3. suet. in aug ▪ c. 71. hostiens . sum. d. 5. de excess . praelat . d. de aleat . l. 2. cujac . observ. l. 9. c. 28. c. de episcop . audient . caj . & prae●ept . navar. man. c. 23. n. 50 , &c. suarez de ll. l. 4. c. 18. tolet. sum●● l. 8. c. 19. n. 3. the reverse or back-face of the english janus to-wit, all that is met with in story concerning the common and statute-law of english britanny, from the first memoirs of the two nations, to the decease of king henry ii. set down and tackt together succinctly by way of narrative : designed, devoted and dedicated to the most illustrious the earl of salisbury / written in latin by john selden ... ; and rendred into english by redman westcot, gent. jani anglorum facies altera. english selden, john, 1584-1654. 1682 approx. 438 kb of xml-encoded text transcribed from 84 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2005-03 (eebo-tcp phase 1). a59093 wing s2436 estc r14398 19083207 ocm 19083207 108530 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a59093) transcribed from: (early english books online ; image set 108530) images scanned from microfilm: (early english books, 1641-1700 ; 294:4) the reverse or back-face of the english janus to-wit, all that is met with in story concerning the common and statute-law of english britanny, from the first memoirs of the two nations, to the decease of king henry ii. set down and tackt together succinctly by way of narrative : designed, devoted and dedicated to the most illustrious the earl of salisbury / written in latin by john selden ... ; and rendred into english by redman westcot, gent. jani anglorum facies altera. english selden, john, 1584-1654. littleton, adam, 1627-1694. white, robert, 1645-1703. [32], 131, [1] p., [1] leaf of plates : port. printed for thomas basset, and richard chiswell, london : mdclxxxii [1682] translation of the author's jani anglorum facies altera. running title: janus anglorum, or, the english janus. each part has special t.p. and separate paging. engraved frontispiece portrait of the author signed: r: white sculpsit. error in paging: p. 23 misnumbered 17. errata: p. [1] at end. reproduction of original in the british library. includes bibliographical references. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -england -history and criticism. 2004-09 tcp assigned for keying and markup 2004-09 aptara keyed and coded from proquest page images 2004-10 emma (leeson) huber sampled and proofread 2004-10 emma (leeson) huber text and markup reviewed and edited 2005-01 pfs batch review (qc) and xml conversion johannes selden●s . armig. r. white sculpsit the reverse or back-face of the english janus . to-wit , all that is met with in story concerning the common and statute-law of english britanny , from the first memoirs of the two nations , to the decease of king henry ii. set down and tackt together succinctly by way of narrative . designed , devoted and dedicated to the most illustrious the earl of salisbury . written in latin by john selden of salvinton , student of the inner-temple in london ; and rendred into english by redman westcot , gent. haec facies populum spectat ; at illa larem . london , printed for thomas basset , and richard chiswell . mdclxxxii . to the right honourable and truly noble lord , robert earl of salisbury , viscount cranborn , baron cecil of essenden , knight of the illustrious order of the garter , lord high treasurer of england , master of the court of wards , and privy counsellor to his most excellent majesty , james , king of great britain , france and ireland , heartily according to his high desert , i devote and dedicate , and as it were with consecrated flowr , and crackling grain of salt , i offer up in sacrifice . i am not in condition to do it with a costly victim , or a full censer . great sir , deign with favour to receive these scraps of collection ; relating intirely , what they are , and as far as the present age may be supposed to be concerned in ancient stories and customes , to the english-british state and government ; and so far forth to your most honoured name . which name of yours , whilest i , one of the lowermost bench , do with dazzled eye-sight look upon ( most noble lord , and great support of your country ) i devoutly lay down upon its altar this small earnest and pledge of my obedience and duty . the translator's preface to the reader . reader , thou canst not be such a stranger to thy own countrey , as to need my commendation of the learned , worthy and famous author of these following sheets ; or that i should tell thee , what a scholar , a philologer , a humanist , a linguist , a lawyer , a critick , an antiquary , and ( which proves him an absolute master of all these and many other knowledges ) what a writer , the great selden was . since it is liberally acknowledged by every body , that knows any thing ( not only at home , but abroad also among foreigners ) that europe seldom hath brought forth his fellow for exquisite endowments of nature , attainments of study , and accomplishments of ingenuity , sagacity and industry . and indeed , to save me the labour of saying any more concerning this non-pareil in all kinds of learning , his own works , which are now under a review , and will e're long be made publick in several volumes , will sufficiently speak his character , and be a more prevailing argument to indear him to thy good opinion and firm acquaintance , than mine or any other words can . my business now is only to give thee some account of the author's design in this little treatise , and of those measures i took in translating him , that is , in restoring him to his own native language ; though his great genius had made the latin and several other tongues , as natural and familiar to himself , as the english was . to speak first of the author , i do take this piece to have been one of his first essays , if not the very first ; wherein he launched into the world , and did not so much try the judgement , as deservedly gain the approbation of the learned : which was certainly one reason , why , though the whole matter of the book be of an english complexion and concern , yet he thought fit to put it forth in a latin dress . that this was his first specimen , or at least one of the first , i gather from the time of his writing it , viz. in the six and twentieth year of his age ; when i suppose he was not of any very long standing in the temple ; i mean , in all likelihood , whilst he was on this side the bar. for having fraught himself with all kind of learning , which the university could afford him ( which could be , we must imagine , no small time neither ; as i may be allowed to guess from that passage of his in this book , where he so affectionately recognizeth his duty and gratitude to his dear mother oxford ; who , if she had no other antiquity to boast of , is and ever will be famous for this her scholar , our great antiquary ; who hath also such a monument to be seen in her publick library , as will make her glory and his memory ever to flourish ) i say , having after some competent time taken leave of academical institutions , and being now engaged into the study of law , he thought he could not do his profession a better service , than by looking back into former times , and making a faithful collection of what might be pertinent and useful , to bring down , along through all changes and vicissitudes of state , the light and strength , the evidence and reputation of old institutes and precedents to our present establishments under our gracious and happy monarchy . may it , as it is in its constitution to the english people gracious ; so be ever in its success to it self , and consequently to us all , happy ! here then thou wilt find the rights of government through all ages , so far as our histories will help us ; here thou wilt see , from the first , our king setled in his just power , even in his ecclesiastical surisdiction against the papal usurpation ; one shrewd instance whereof is , the forbidding appeals to the pope , at such a time when the popish religion was at its zenith in this island ; that is , when people in all probability were most ignorant . here thou wilt easily be brought to acknowledge the antiquity and usefulness of parliaments ( though under other names till after the conquest ) when all the barons , that is , as that title did at first import , all lords of mannors , all men of estate assembled together for the determination of publick affairs : which usage , because it produced too numerous and cumbersome a confluence , was afterwards for better convenience retrenched into a popular election by the kings writ to chuse some of the chiefest to act for all the rest . and sure enough , if we in duty keep up the royal prerogative , and our kings , as ever they have done , and ever , i hope , will , in grace and clemency oblige the peoples consent in their representatives ; we shall alwayes have such laws , such a government , such a correspondence betwixt prince and subjects , as must ( according to the rules of humane prudence , adding our piety to it ) make this kingdom of great britanny ( maugre the malice of the devil and his agents whatever , jesuits or fanaticks ) a flourishing and impregnable kingdom . having said this in general of the author's design , i shall not descend to particulars , which i leave to thy self , reader , to find out , in the perusal , that may be of good use and great consequence to the publick ; but fearing , thou maist think i am so much taken up with the author , that i have forgot my self , i have two or three words to speak of that sorry subject , before i leave thee . as to the translator ; i confess , it is no great credit for any one to appear in that figure ; a remark , which i have learn't from one , who hath translated another excellent piece of this noble author , ( noble i call him , sith nobility is rais'd by parts and merits , no less than continued by birth and descent ) it was his mare clausum , wherein he , i spoke of , hath acquitted himself very well , abating for his villanous dedication to the rump-parliament , which was then setting up for a republick ; in which dedication of his , he hath vilely and like himself ( i speak in charity , as to his interest , i mean , not his judgement or conscience at least , if there were any ) aspersed the royal family with weakness and collusion , to have lower'd the british renown . i am bid by him , who puts this into thy hands , to tell thee , that when he was embark'd into this employ ; whatever it was , upon the coasting of it over , he was surprized to find , he had undertaken such a difficult and hazardous voyage , and did presently conclude , that none but a selden ( that is , a person of omnifarious reading ) was fit to be a selden's interpreter . for no other person , but one so qualified , can be master of his sense , master of his expression . his ordinary style , where he delivers himself plainest , is as to the matter of it , so full of historical and poetical allusions , and as to the method ( and hath that of crabbed in it besides ) so intricate and perplex , that he seems , even where he pretends to teach and instruct , to have intended only to amuse and confound the reader . in very deed , it is such a style , as became a learned antiquary , which is to be antique and oracular ; that one would think , the very paper , he wrote upon , was made of the sibyll's old-worn sheets , and that his meaning could not be fisht out without the assistance of a delian diver . however the translator ( though so much inferiour to the undertaking , as to be almost unacquainted with some considerable parts of it ) did presume ( whether rightly or no , must be left to thy judgement ) that he was not utterly unfurnished with those skills and helps , which might make the work intelligible and acceptable even to plebeians . for though it was at first designed by the excellent author in his latin for such as were meerly lawyers and scholars ( they must be both , that mean to understand it as he wrote it ) yet now it being done into english , it was to be calculated to the meridian of common capacities and vulgar understandings . which end he hath , he hopes , in some good measure answered ; and in order to which end , he hath , to supply the defects of his translation , at the end of the book subjoyned some annotations , which may serve partly to clear the author's meaning , and partly to vindicate himself in the interpretation . he did think once to have affixt those annotations to the places they belong to ; but upon second and better thoughts , he consider'd , that the authors quotations would be enow of themselves to charge the margin with , and a further superfoetation would but cloy and surbate the reader ; though in the body of the work , there are up and down many explanations inserted , to excuse him from the trouble of having recourse to those notes , which are added out of pure necessity , and not from any vanity of ostentation , since the whole , if it had its due , might seem to require a perpetual comment . in the main , which is enough for a translator , be his author what he will , he doth assure thee , that the meanest subject of england may now read one of her greatest champions and writers ( for learned pens sometimes do as good and as great service as valiant swords do ) so understandingly , that he may edifie and learn , what duty and deference he ought to have for the best of governments . and now , reader , excuse me in a digression , and do not impute it as a levity to me , that i follow my grave author . it is my duty so to do ; it is my happiness , if i can : he doth not despair , now he appears in english , to have female-readers too , to court him so far at least as to peruse his translation , who hath so highly courted them with noble caresses in that chapter , wherein he hath so learnedly pleaded the excellencies and rights of that angelical sex , ( if angels have any sex ) to the abashment and overthrow of the salick law. to what purpose did the author write so much in their commendation , if they were not to know it ? which , if the poor translator hath any obligations upon the sex , he hopes they will own this as an addition : not to mention that other chapter of his , where , like a gentleman and a lawyer both , he maintains that freedom peculiar to our english ladies , and which with lawyers leave , i may call the courtesie of england , in receiving of salutes , against the censure of rudeness on the one hand , and the suspicion of wantonness on the other . though i must confess also , that some of his citations in that defence , are so free , that i thought fit rather to leave them as i found them , than by putting them into english , to expose the modesty of the sex. i have no more to say , reader , but to beg thy excuse , for any thing , wherein i may appear to have come short of the weighty and abstruse senses of our great and worthy author , and that i may detain thee no longer from his conversation , to bid thee farewell . the author's preface to the reader . and that the tutelar or guardian of my threshold may not entertain thee with unlucky or ill-boding terms , he doth freely bespeak thee health and greeting , whoever thou art , dear reader . moreover , he is in the humour to declare both the occasion of drawing the first furrow of this enterprize , and also the model and frame of the whole work , what it is , finished and compleated . it is a long while ago , considering how young a man i am , since from the first i have made it my hearty wish , that the ancient original and procedure of our civil law might more fairly and clearly be made out ; as far , i mean , as the thing will bear , and as what store we have of publick records affords assistance . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for several men with several things are pleas'd , as said archilochus of old ; and i do own for my self , what seneca the declaimer saith , that i take pleasure in going back to studies of antiquity , and in looking behind me to our grand-sires better times . which , to say truth , they who do too much , slight , ardua dum metuunt , amittunt vera viai . that is , whilst lofty passes they do fear , through sloth they lose the certain tracks and paths of troth . and , so may the muses alway favour me , they are such things as are — anteiqua , sepolta , vetusta , quai faciunt mores veterésque novosque tenentem moltarum veterum legum , divômque hominumque prudentem . — as saith another old latin poet ; that is , such stories as are antique , buried in rubbish , old and musty , which make one verst in customs old and new , and of laws , gods and men giving a view , render the careful student skill'd and trusty . some spare hours have been spent by me in reading over historians , chronologers , antiquaries , foreigners and our own countrey-men , those of ancient date and the more polite of the modern sort : those especially who seem'd to make out the quickest course to that goal and design i spoke of . i have carefully cull'd out whatsoever i met with , that lookt like the orders and decisions of praetors or lord chief justices , and whatsoever concerns the civil or prophane law. ( prophane i call that , which is not held by the religion of the church ; as ●●xtus pompeius hath taught me . ) i did judge that there were a great many things in those writers worth the knowing , and which might deserve to be digested into a kind of volume according to order of chronology , i did in the first place advise , and took that special order with my self , that as to this undertaking , i might with the greater ease have my attendants ready at hand to wait upon my studies . i went about to 〈…〉 and cement , such as it is , ( i. e. some method and connexion ) to the scattered and disjointed bulk , and i brought it to a conclusion ; and assoon as it came into my mind to publish it , i endeavoured according to that meanness , which it appears in , to finish it ( that i may make use of a mathematick term ) with its complement . i have set the model and frame upon a sure account ( not upon mine own credit neither , who am too apt to take on trust things suspected ) and in a compendious way : i have writ my self compendiously and succinctly ; i have transcribed out of others faithfully . i do on set purpose vouch the credit , i go upon , to be none of mine , but the authors , i have taken out of , that i may not be accused of false dealing by unskilful or careless readers . i have applyed my self not only to the meaning of the writers , or to their historical account , but even to the very words and syllables , which they spoke , and have inserted them printed in a different character ; those , i confess , unless it be from them of the middle age , many times sufficiently barbarous , that miserably want polishing , such as criticks cannot away with , and do very well agree with the records and reports of law , which we converse with . however i would not have thee disdain in the mean time brimful and wholsome draughts of liquor , because the bowl was not made in a potters shop of colias a place in athens , or in cold winter to slight a garment which is not made of attick wooll ; as plutarch hath admonished the hearers of philosophy . let young ladies speak finically with their golden flower-amours , and let them , who have store and leave at once , court the graces of words and beauties of expression . 't is true , the care of exact speaking , is a thing befits the muses , yet how the most abstruse mysteries even of the highest urania , of divinity it self , are laid open without it , the thomists , the scotists , and what other sects and parties of school-men there are , know well enough . and there are some others also , that think they know ; i mean the inquirers into heavenly calculations ( astrologers ) and the weather-wise-men ( almanack-makers ) who in good deed for the most part rely too much upon the trifling stories of their masters . now they , and not without good reason , have preferred the arab writers barbarously translated , and slovenly bonatus before julius firmicus and modern pontanus , as spruce as they are . these two may rather be termed grammarians , than astrologers . nor do aristotle's crabbed lectures of natural p●●losophy discourage interpreters or procure to themselves any discredit , ●y reason of the affected obscurity of speech , they are delivered in : and as to neatness of poetry , apollo himself hath been out-done by sappho , homer , hesiod . though the matter doth often surpass the workmanship ; yet who is there is so rigid or so fond a censurer , as to disparage and debase the matter upon the account of the workmanship ? which i would not have be said only of those passages , which i have brought into this piece out of those fore-mentioned authors , but also of the whole body of our common-law . i have , i hope , not unluckily begun with the very first inhabitants of this isle , as far as we can come to the knowledge of them . those authors , whom i have followed in the original of story , i have , as it was meet , set down and remark'd , adding the judgement and censure of the learned . afterward , besides caesar and tacitus there are but few that afford us any help , and that ●ut in few things too . for the name of brittany was known but of late to the greeks , but of late to the romans ; and the britans were truly for a long while divided from all the world besides . but among ●●reigners the latter ages have enquired after them . i speak of strabo , pliny , ptolomy , others ; and a certain writer of asia , marcianus heracl●otes , not y●t , that i know of , turned into latin , saith thus , albion the brittish isle hath in it thirty three nations , fifty nine remarkable cities ; and then he sub●●us other things concerning the number of rivers , promontories , havens and creeks or bays . i have stretched out this piece to the death of king henry the son of mawd the empress by jeoffrey the count of anger 's in france . in whose time , or near thereabout , are the first beginnings of our law , as our lawyers now account . there come in by the way richard called coeur de lion and king john ; but there is scarce any thing in that interim to our purpose . i have on purpose passed by mr. lambard's archaeonomia ( or antiquites of law ) without medling with it at all , only when some obvious accasion did sometimes suggest it for the explaining of what is set down by us . i have divided the whole into two books ; the first closes with the saxons ; the second begins with the norman conquest , the most famous aera or date of the english government in the reckonings of time . but however to refer the original of our english laws to that conquest ( as some make bold to do ) is a huge mistake ; forasmuch as they are of a far more ancient date . for it is a remark amongst statesmen , that new acquired empires , do run some hazard by attempting to make new laws : and the norman did warily provide against this danger , by bestowing upon the yielding conquered nation the requital of their ancient law : a requital , i say , but more , as it should seem , for shew than use ; and rather to curry favour with the people at the present , than in good deed for the advantage of the english name . wherein he in some measure followed well near the practice of alaricus , who having conquered the romans , and finding that they took it in dudgeon to be bound up by the laws of the goths , though in other things they were compliant enough , restored to them the roman laws , but by sly interpretations against the sense and meaning of the roman laws he drew these laws back again to the gothish . for the times on this side the normans entrance , are so full of new laws , especially such as belong to the right of tenancy or vassalage ; though other laws have been carefully enough kept up from the time of the saxons , and perhaps from an earlier date . for neither did the gliding decrees of that blazing-star , which appeared in the easter of that year , so well known for this victory , prognosticate , as the change of the kingdom ( a thing which astrologers affirm ) so the abolition of our laws ; and yet in some sense peradventure an alteration of them both ; at that rate , i mean , as jerom 〈…〉 , that the comet in the year 1533. which appeared in aries ( to which sign , our island according to ptolomies doctrine is lyable ) under the north side of the milky way , being of a jovial , martial and mercurial force and efficacy , was the fore-teller or fore-runner of the change of religion ; which happened three years after in henry the eighth's time . but whatever may be thought in other cases , christianity is exempt from the laws and over-ruling power of the stars , and i do but too well perceive , that cardan's piety is wanting in this and in other instances , and particularly in casting our saviours nativity . and why do i too much besides my purpose , trouble my self about these things here ? go thy wayes to our janus , ( for thou canst hardly chuse but own him having two faces ) where to speak of our english brittish law ( 't is no treason i trow so to call it ) nobilitas nec origo later , sed luce sequente vincitur . — that is , it 's noble rise doth not lye hid , but light attending makes it far more clear and bright . for , si nobilitas cunctis exordia pandit laudibus , atque omnes redeunt in semina causae . that is , if nobleness doth first commence all praise , and all things from their feeds do themselves raise . however it does not at all boast of its rom●lus's , its numa's , its decemviri , it s 2000. books , it s 4000. and 4000. and 4000. verses ; and the like ; which having been digested long since ( as it were — non hos quaesitum munus in usus , that is , a boon not purchas'd for such use as this ) do far and near bear sway in courts of law throughout all europe ; yet is not the rise and original of our laws also less to be regarded ; nor is it perchance for distance of time further from iapetus than they . but go thy wayes , i say , and see that thou dost not undertake without reason and good advice , to fit any thing to the present age , otherwise than the changes , the repeals and cancelling parts of laws , and new emergencies and vicissitudes of affairs , which were frequent , will give thee leave . remember lucretius in this case alike as in others . quod fuit in pretio , fit nullo denique honore ; porrò aliud succedit , & è contemtibus exit , inque dies magis appetitur , floretque repertum laudibus , & miro'st mortaleis inter honore . that is , what was in price , at last hath no esteem ; whilst somewhat else starts up , and gains repute , and every day grows more in vogue and brute , and mortals strangely do it highly deem . according to what that other , and the greatest philosopher among the poets saith , multa dies , variusque labor mutabilis aevi rettulit in melius . — that is , time and the various toyl of changing age many things betters , and reforms the stage . and the greek sentence , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for time to laws themselves gives law full oft . without a world of rubs in the way and slips or distances of years , i saw i was not able to put upon the work the face of a history , and to muster up all things that are wanting . very many things are so effaced by injury of time , several things have been lost through neglect , nor is the learned world under a small discontent , or at small variance by reason of this loss . these remains , which are left us , to be handled upon occasion , i have alwayes accounted pleasant researches : i , and perhaps one may say , that those learned pieces , which pomponius , rivallius , zasius , oldendorp , brissonius , and others , have published concerning the twelve tables , and the laws written upon oaken planks , upon elephants skins , and in former ages upon brass , are not of more use and advantage for the city spire in germany , than these collections may be for westminster-hall amongst us . we have said enough and to spare , concerning the model and frame of the work. for me now to beg the readers pardon , that i may speak a little concerning my self , seeing it was at my own choice , whether i would give him trouble or no , would be silly . i so be that any one shall shew himself more busie or pragmatical in these writings of mine , than becomes him ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not knowing ( as we say ) a pig from a dog. i would not have him ignorant , that i value it no more than a rush , to be lashed with the flouts of prattle-boxes or tittle-tatlers , and sch creatures as carry the goddess nemesis on pickpack . nor does any one that is in his wits , when an ass kicks and flings at him to little or no purpose , regard an idle oafish affront so as to requite it . i paint upon my weather-boards averrunca , i.e. god forefend , ( as they did of old arse verse upon houses , to preserve them from fire . ) may intercedona , pilumnus , and deverra , drive away silvanus , and keep him off from doing this tender infant any harm . well! let asses and silly animals commend , find fault , tune their pipes , how they will : let the envious and ill natured with their sneerings , prate and talk ; let snotty nosed fellows and clowns , that feed upon cockle bread , approve what i write , or let them flout and fleer , or let them play jack of both sides ; it 's all fiddle faddle to me , nor would i put a straw between . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . brow-benders , making nose and chin to meet , with dangling beards like sacks down to your feet . ye rigid cato's and severe criticks , do ye take in good part , what i have done ; nor let me be altogether slighted , if by chance ye shall vouchsafe to look this way , nor with your skew looks fore-speak my harvest in the blade . i shall readily and willingly yield the conquest to him that fairly gets it , and rightfully corrects me . but whoever thou art of that sort of men , per meos fines & aprica rura lenis incedas , abeasque parvis aequus alumnis . o're my bounds and sunny plain take a gentle walk or twain ; then depart with friendly mind , to me and my lambkins kind . you , that are candid and courteous , know , that 't is a very hard matter to brighten things that are grown out of use , to furnish things obscure with light , to set off things that are disdained , with credit , to make things doubtful pass for probable , to assign to every thing it s own nature , and every thing to its own nature ; and that it is a very brave and gallant thing , as he sayes , for those that have not attained their design , yet to have endeavoured it ; when the will ( as we say ) is accepted for the deed. but i know too , that every cone or point of vision in the opticks differs from a right angle ; and i know how odious a thing a train or solemn procession is in the publick games . therefore , dear reader , i bid thee heartily farewel ; and with a fortunate endeavour , fetch out hence , what may make for thy turn . why do i delay all this while to let thee in ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . go thy wayes in , o' gods name . laudamus veteres , sed nostris utimur annis : mos tamen est aeque dignus uterque coli . we praise old times , but make use of our own ; and yet 't is fit they both alike be known . go in and welcome heartily ; and be not unkind to thy entertainer . from the inner temple london , decemb. 25. 1610. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . in laudem dignissimi authoris , & politioris literaturae candidati , carmen . cum jovis effoeti pallas foret orta cerebro , vagitus teneros virgo patrima dedit . accurrit , tacitéque novam subducere prolem tentat , & abstrusis abdere juno locis . jupiter ingenuam solerti indagine natam quaeritat , & celeri permeat astra pede ; stat , cerebrique tuam cernens , seldene , minervam in natae amplexus irruit ille tuae . atque suam credit ; parilique ab imagine formae illa fuit suavis , suavis & illa fuit . lisque foret , nisi quae quondam lucina fuisset , musarum testis turba novena fuit . quam cognata jovis tua casta minerva minervae est , cum tantum fallax lusit imago deum ? aliud . dum tuus ambiguâ janus , facieque biformi respicit antiqua , & posteriora videt : archivos themidis canos , monumentaque legum vindicat à veteri semi-sopita situ . hinc duplex te jane manet veterane corona , gratia canitie , posteritate decus . gulielmus bakerus oxon. astraeae brit . ultima caelicolûm terras astraea reliquit . tu tamen alma redi & terras astraea revise : astraea alma redi tuis britannis : et diva alma fave tuis britannis : et diva alma fove tuos britannos : et diva alma regas tuos britannos : cantemus tibi sic tui britanni : foelices nimium ô tui britanni : tu tandem alma redis divum postrema britannis : ultima coelicolûm terras astraea revisit . alma redi . sacro redolent altaria sumo et tibi sacratis ignibus . alma redi . alma redi . posuit liber hic primordia juris anglos quo poteris tu regere . alma redi . alma redi . tibi templa struit seldenus : at aram qui tibi nil potuit sanctius . alma redi . e. heyward . in epigraphen libri carmen . quisnam iò mussat ? posuisti enyo arma ; jam doctos iber haùt batavos marte turbat ; foedere jam britannus continet orbem . clusium audax quis reserat latentem ? falleris . diae themidis recludo intima . haec portâ meliùs feratâ pandit eanus . i. s. the contents of the chapters . book i. chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei , page 1. chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription , p. 3 chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. p. 5 chap. iv. k. phranicus 900. years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds troynovant , i. e. london . dunvallo molmutius 600. years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . p. 6 chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus for a fabulous writer , p. 7 chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories , p. 8 chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary , p. 10 chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in case of crime . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity , p. 12 chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgement of the whole book , p. 13 chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabbalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described , p. 15 chap. xi . the britans and gauls had laws and customs much alike , and whence that came . some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government , p. 16 chap. xii . women admitted to publick debates . a large commendation of the sex , together with a vindication of their fitness to govern ; against the salick law , made out by several examples of most nations , p. 18 chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them , p. 21 chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rebuke of the foolish humour of jealousie , p. 22 chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time , p. 24 chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . p. 27 chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen , p. 29 chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money , p. 30 chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry , p. 32 chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans , p. 33 chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-money for murder . the nature of country-tenures and knights fees , p. 36 chap. xxii . since the return of christianity into the island . king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia , p. 37 chap. xxiii . king alfred divides england into counties or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast , p. 39 chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane . hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harold's law , that no welch-man should come on this side offa's dike with a weapon , p. 41 chap. vxx . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse , p. 43 the contetns . book ii. chap. i. william the conquerour's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , dan●lage , and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones , p. 47 chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not , p. 51 chap. iii. other wayes of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverse● . laws against taking of deer , against murder ; against rape , p. 54 chap. iv. sheriffs and juries were before this time . the four terms . judges to act without appeal . justices of peace . the kings payments made at first in provisions . afterwards changed into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warder of the cinque ports why made ▪ a disorder in church-affairs reformed , p. 56 chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . p. 59 chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hauberk . king edward's law restored , p. 60 chap. vii . his order for the restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions , p. 63 chap. viii . the regality claim'd by the pope , but within a while resumed by the king. the coverfe● dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war , p. 65 chap. ix . in king stephen's reign all was to pieces . abundance of castles built . of the priviledge of coining . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament , p. 67 chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted , p. 69 chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergy-man and a lay-man , where to be tryed . in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at the tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave , p. 72 chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time , p. 74 chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . leudemen signifies lay-men , and more generally all illiterate persons , p. 77 chap. xiv . the pope absolves thomas a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a seisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence , p. 79 chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers , p. 81 chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme clear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church , p. 84 chap. xvii . other laws : of entertaining of strangers . an uncuth , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm , p. 87 chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such , p. 90 chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates , p. 93 chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it , p. 95 chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i. e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . p. 98 the first book of the english janus . from the beginning of the british story down to the norman conquest . chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei . there came forth , and in buskins too ( i mean , with pomp and state ) some parcels of years ago , and is still handed about every where , an author , called berosus a chaldee priest ( take heed how you suffer your self to believe him to be the same that flavius josephus so often up and down quotes for a witness ) with a commentary of viterbiensis . or , rather to say that which is the very truth , john annius of viterbium ( a city of tuscany ) a dominican frier , playing the leger-de-main , having counterfeited berosus , to put off his own strange stories , hath put a cheat upon the lady muse who is the governess of antiquities , and has hung a bantling at her back . after the genealogies of the hebrews drawn down by that author , whoever he be , according to his own humour and method , for fear he should not be thought to take in the kingdoms and kings of the whole universe , and the etymologies of proper names by whole-sale , as we say ; as if he had been born the next day after grandam ops was delivered of jupiter , he subjoyns samothes ( the very same who is yeleped dis ) the founder of the celtick colonies , stuffing up odd patcheries of story to entertain and abuse the reader . now , this i thought fit by the by , not to conceal , that all that space which is bounded with the river rhine , the alpes , the mediterranean sea , the pyrenean hills , and lastly , the gascoin and the british oceans , was formerly termed celtogalatia ; nay , that p●olomy hath comprized all europe under the name of celtica . well , as the commentary of annius has it , this samothes was brother to gomar and tubal by their father japhet , from whom first the britans , then the gauls were called samothei ; and especially the philosophers and divines that were his followers . and out of laertius he tells us , for it is evident , that among the persians the magi flourished , among the babylonians and assyrians the chaldeans were famous , among the celts and gauls the druids , and those who were called samothei ; who , as aristotle in his magick , and sotion in his three and twentieth book of successions do witness , were men very well skilled in laws divine and humane , and upon that account were much addicted to religion ; and were for that reason termed samothei . these very words you meet with in annius . the name of laertius is pretended , and the beginning of his volume concerning the lives of philosophers . why then let us read laertius himself ; and amongst the celts and gauls ( saith he ) the semnothei as saith aristotle in his book of magick , and sotion in his three and twentieth of succession . concerning the samothei any other wayes there is not so much as one syllable . that they were men well skilled in laws divine and humane , or that they had their name given them upon that account , only the latin and foisted edition of b. brognol the venetian has told us : whereas in truth , in all the ancient greek copies of laertius , which that great scholar harry stephen saw and consulted with ( and he sayes he perused eight or nine ) there is no mention at all made of that business . and yet for all that , i cannot perswade my self , that it was only for want of care , or by meer chance , that this slipt into the glosses : it does appear , that there have been able lawyers and master philosophers not only among the greeks , the gauls , and those of italy ; but also among the northern nations , however barbarous . witness the druids among us , and among the goths , as jornandes tells us , besides cosmicus , one diceneus , who , being at once king of men , and priest of phoebus , did together with natural philosophy and other parts of good learning , transmit to posterity a body of laws , which they called bellagines ; that is , by-laws . there are some , who in laertius read samothei ; which is a device of those men , who with too much easiness ( they are isaac casaubon's words ) that i may say no worse , suffer themselves to be led by the nose by that counterfeit berosus . chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription . and indeed if the samothei had any thing to do with truth , or the semnothei any thing to do with the ancient law of the celts ( in as much as they write , that britany was once in subjection to the celtick kings ) i should judge it not much beside the design of my intended method to inquire into the name and nature of them both . but they being both one and t'other past all hope , except such a one as lucian returning from the inhabitants of the sun , or those of the moon , would write their history , to speak of them would be more than to lose ones labour . i dare not to say much of them . i imagine , sayes harry stephen , they were so called , for having the gods often in their mouths , and that in these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , the worshipful gods ; or for that they themselves were accounted amongst men as a kind of worshipful gods : but , writes he , this latter i do not take to be so likely as the former . but say i for my part , if i might venture my opinion against the judgement of so great a person , i guess this latter to be the likelier of the two . that the old heroes went by the names of gods , is a thing we read every where ; nor did antiquity grudge the bestowal of this honour even upon philosophers . not upon amphiaraus the prophet ; not upon aesculapius , not upon hippocrates , renowned physicians ; they are reckoned among the middle sort of gods. thus plato also was accounted by antistius labeo for a demy-god , and tyrtamus for his divine eloquence , had the name of theophrastus ( that is , god-like speaker ) given him by his master aristotle . no wonder then , if thereupon thence forward great philosophers were called semnothei , and as it were worshipful gods. these instances incline me , whilst i only take a view of their philosophy ; whom , if either the authority of annius , or the interpretation of brognol had sufficiently and fairly made out to have been also at the same time students and masters of law , i should hardly stick almost to affirm , that i had found out in what places the true natural spring and source both of their name , and as i may say , of their delegated power is to be met with . for i have it in pausanias ( forbear your flouts , because i waft over into greece , from whence the most ancient customs both sacred and prophane of the gentiles came ) i say in pausanias the most diligent searcher of the greek antiquities , i meet upon mars his hill at athens , and also in his achaicks ( or survey of achaia ) with chappels of the goddesses whom the athenians styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , worshipful . he himself also in his corinthiacks makes mention of a grove set thick with a sort of oaks on the left side of asopus a river in sicyon ( a countrey of peleponnesus ) where there stood a little chappel of the goddesses , whom the athenians termed semnai , the sicyomans called eumenides . the story of orestes and the eumenides or furies that haunted him is known to every body , nor can you tell me of any little smatterer in poetry , who doth not know , that they , together with adrastia , ramnusia , nem●sis , and other goddesses of the same stamp , are pretended to be the avengers of villanies , and continually to assist jupiter the great god in punishing the wicked actions of mortals . they were black ones that met with orestes , but that there were white ones too , to whom together with the graces the ancients paid their devotions ; the same pausanias has left written in his survey of arcadia . i let pass that in the same author , she whom some called erinnys , that is a fury ; others called themis the goddess of justice . to be brief and plain ; the furies , that is , the avenging goddesses sit upon the skirts of the wicked ; but the eumenides , that is , the kind goddesses , as sophocles interprets them ( for that they were so called properly without the figure of antiphrasis or contradiction he is our author ) do attend the good and such as are blameless and faultless , and poor suppliants . nay , moreover plutarch writes in a poetick strain , that alcmaeon fled from these eumenides ; meaning in very deed , that he made his escape from the civil magistrates . in a word , the whole business we have been aiming at , orpheus compriseth in two verses of that hymn he has made upon those goddesses . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . which in a short paraphrase speaks thus ; but ye with eye of justice , and a face of majesty survey all humane race , judges commission'd to all time and place . see here plainly out of the most ancient divine among the heathens , how judges and the dispensers of law pass under the notion of these venerable goddesses : and it was a thing of custom to term the right of the infernal powers , as well as the doctrine of the heavenly ones , a thing holy and sacred . what hinders then i pray , but that one may guess , that the name , and title , and attributes or characters of the semnothei sprang forth and flowed from hence ; to wit , from the semnai theai or venerable goddesses ? homer in his poems calls kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , persons bred and nourished by jove ; yea , the eternal and sacred scriptures themselves do more than once call judges by that most holy name elohim , that is , gods. the judgement is gods , not mans ; and ( as munster remarks out of rabbi kimchi ) whatsoever thing scripture designs to magnifie or express with height , it subjoyns to it the name of god. god ( as plutarch has it out of plato , who in his attick style imitates our moses ) hath set himself out as a pattern of the good , the dreadful syllables of whose very notto be uttered name ( though we take no notice of the cahalists art ) do strike , move and twitch the ears of mortals , and one while when thorough ignorance they straggle out of the way , do bring them back into the path or track of justice ; another while when they are stopt up with prejudice , and are overcast with gloomy darkness , do with a stupendous , dismal and continual trembling shake the poor wretches , and put them into ague-fits . nor let that be any hindrance , that so splendid and so manly a name is taken from the weaker sex , to wit , the goddesses . let us more especially have to do with the britans , as those amongst whom are those choice and singular altars , not any where else to be met with in the whole world , with this inscription , deis matribus , to the mother-goddesses . concerning these mother-goddesses , that excellent learned man ( that i may hint it by the by ) confesses he could with all his search find out nothing ; but if such a mean person as i , may have leave , what if one should imagine , that those goddesses , whom pausanias in his attick stories calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , were the same as these mother goddesses ? for so those names import . the mother of the gods is a title well known ; wherewith not only berecynthia , but also juno , cybele , tellus , ceres , and other shee s among mythologists are celebrated and made famous . be this , if you will , a thing by the by and out of the way ; as he tells us , no great wit ever pleased without a pardon . relying upon that ( the readers pardon i mean ) i undertook this job , whatever it is ; and upon confidence of that , i come back to the business . chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. we do not any where meet with any law enacted by samothes his authority . yet one only one concerning the account of times , basingstoke the count palatine , a very modern historian , attributes to him . he defined , sayes he , the spaces or intervals of all time , not by the number of dayes , but of nights ( the same thing , saith caesar of the gauls , and tacitus of the germans ) and he observed birth-dayes , and the commencements of months and years in that order , that the day should come after the night . truth is , the britans do at this time observe that fashion , which is most ancient , and highly agreeable to nature . and the evening and the morning was the first day , and so on , sayes the hebrew writer , whose countrey-men the jews also followed this custom . the peripateticks ( i. e. the followers of aristotle ) do also at this rate reckon privation in the number of their three principles ; and hereupon john bodin adventures to censure the common astrologers , that they , according to the course of the planets as they order it , and repeat it over and over , begin their unequal hours , from the rising , rather than the setting of the sun. they write , that after this samothes , there came in play magus , sarran , druis , bardus , and others more than a good many , in order of succession . sarron was not addicted to make laws ( 't is stephanus forcatulus helps us to this ) but to compose them , to put them into order , and to recommend them to practice , as one who reduced those laws , which his grand-father samothes , and afterward his father magus had made , into one volume , and with severe menaces gave order for the keeping of them . from druis or druides they will have the druids so called , a sort of philosophers so much famed and talked of in caesar , pliny and others : believe it who list for me . the whole business of the druids at present i put off till caesar's times . chap. iv. k. phranicus 900. years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds troynovant , i. e. london . dunvallo molmutius 600. years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . about nine hundred years after samothes , king phranicus ( take it from the british story , and upon the credit of our jeoffry ) intrusts the druids with the management of affairs , whilst he himself resided in pannonia or hungary . in the mean time brutus , the son of sylvius posthumus king of the latines , and grand-child to aeneas ( for servius honoratus in his comment upon virgil , makes sylvius to be the son of aeneas , not of ascanius ) being happily arrived by shipping , with corinus one of the chief of his company , and coming to land at totnes in devonshire , the britans salute and own him king. he after he had built new troy ( that is , london ) gave laws to his citizens and subjects ; those such as the trojans had , or a copy of theirs . a matter of six hundred years after dunvallo molmutius being king , ordained ( my authors besides jeoffry of monmouth , are ralph of chester in his polychronicon , and florilegus ) that their ploughs , temples and roads that led to cities , should have the priviledge to be places of refuge . but because some time after there arose a difference concerning the roads or high-wayes , they being not distinguished by certain limits and bounds , king belin son of the foresaid molmutius , to remove all doubt , caused to be made throughout the island four royal high-wayes to which that priviledge might belong ; to wit , the fosse or dike , watlingstrete , ermingstrete , and ikeniltstrete . ( but our learned countrey-man and the great light of britan , william camden , clarenceaux king at arms is of opinion , these cause-wayes were cast up by the romans ; a thing that tacitus , b●de and others do more than intimate . ) moreover , so sayes jeoffry , he ordained those laws , which were called molmutius his laws , which to this very time are so famed amongst the english. forasmuch as amongst other things , which a long time after , gildas set down in writing , he ordained , that the temples of the gods , and that cities should have that respect and veneration , that whatsoever runagate servant , or guilty person should fly to them for refuge , he should have pardon in the presence of his enemy or prosecutor . he ordained also , that the wayes or roads which led to the aforesaid temples and cities , as also the ploughs of husbandmen should be confirmed by the same law : afterwards having reigned forty years in peace , he dyed and was buried in the city of london , then called troynovant , near the temple of concord ( by which temple , there are not wanting those who understand that illustrious colledge on the bank of thames , consecrated to the study of our common law , now called the temple and ) which he himself had built for the confirmation of his laws . at this rate jeoffry tells the story ; but behold also those things which polydore virgil hath gathered out of ancient writers , whereof he wanted no store . he first used a golden crown , appointed weights and measures for selling and buying of things , punisht thieves and all mischievous sorts of men with the greatest severity ; made a great many high-wayes ; and gave order , how broad they should be , and ordained by law , that the right of those wayes belonged only to the prince ; and set dreadful penalties upon their heads , who should violate that right , alike as upon theirs who should commit any misdemeanour in those wayes . moreover , that the land might not lye barren , nor the people be frequently oppressed or lessened through dearth or want of corn , if cattle alone should possess the fields , which ought to be tilled by men , he appointed how many ploughs every county should have , and set a penalty upon them by whose means that number should he diminished : and he made a law , that labouring beasts which attended the plough , should not be distrained by officers , nor assigned over to creditors for money that was owing , if the debtor had any other goods left . thus much polydore . chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus , for a fabulous writer . the female government of martia , widow to king quintiline , who had undertaken the tuition of sisillius son to them both , he being not as yet fit for the government , by reason of his nonage ; found out a law , which the britons called the martian law. this also among the rest ( i tell you but what jeoffry of monmouth tells me ) king alfred translated , which in the saxon tongue he called merchenlage . whereas nevertheless in that most elaborate work of camden , wherein he gives account of our countrey , merchenlage is more appositely and fitly derived from the mercians , and they so called from the saxon word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , a limit , bound or border . these are the stories , which writers have delivered to us concerning those times , which were more ancient than the history of the romans ; but such as are of suspected , of doubtful , that i may not say of no credit at all . among the more learned , there is hardly any critick , who does not set down annius in the list of forgers . and should one go to draw up the account of times , and to observe that difference which is so apparent in that berosus of viterbium from sacred scriptures , and the monuments of the hebrews , one would perhaps think , that he were no more to be believed , than another of the same name , who from a perpendicular position of the wandring stars to the center of the world in the sign of cancer , adventured to foretel , that all things should be burnt ; and from a like congress of them in capricorn , to say , there would be an universal deluge . the story is in seneca . chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories . some have in like manner made enquiry concerning our british history , and stumbled at it . from hence we had brutus , dunvallo and queen martia : there are some both very learned and very judicious persons , who suspect , that that story is patched up out of bards songs and poetick fictions taken upon trust , like talmudical traditions , on purpose to raise the british name out of the trojan ashes . for though antiquity , as one has it , is credited for a great witness ; yet however 't is a wonder , that this brutus , who is reported to have killed his father with an arrow unluckily aimed , and to have been fatal to his mother at her very delivery of him ( for which reason richard vitus now after so many ages makes his true name to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , mortal ) should be mentioned by none of the romans : a wonder , i say , that the latin writers should not be acquainted with the name of a latin prince , who gave both name and government to britany . did euemerus messenius alone ever since the world began , fail to the panchoans and the triphyllians ? indeed it is an ordinary thing for poets , to ingraft those whom they celebrate in their poems , into noble stocks and illustrious families , and by the assistance of their muses heightning every thing above the truth , to feign and devise a great many stories . and what else were the bards , as athenaeus tells us out of possidonius ; but poets reciting mens praises in song ? how many things are there in that fabulous age ( which in joseph scaliger's account would more aptly be called the heroick age of the world , i mean ) down from that much talked of deluge of pyrrha to the beginning of iphitus his olympiads ; how many idle stories are there mixt with true ones , and afterwards drest up and brought upon the stage ? very many nations , sayes trithemius , as well in europe as in asia , pretend they took their original from the trojans ; to whom i have thought good to lend so much faith , as they shall be able to perswade me of truth by sufficient testimony . they are frivolous things , which they bring concerning their own nobility and antiquity , having a mind as it were openly to boast , as if there had been no people in europe before the destruction of troy ; and as if there had been no one among the trojans themselves of ignoble birth . he who made the alphabetical index to jeoffry of monmouth ( who was bishop of st. asaph too ) as he is printed and put forth by ascensius , propt up the authors credit upon this account , that , as he sayes , he makes no mention any where in his book , of the franks ; by reason forsooth , that all those things almost , which he has written of , were done and past before the franks arrival in france . this was a slip surely more than of memory . go to jeoffry himself , and in his nineteenth chapter of his first book you meet with the franks in the time of brennus and belinus among the senones , a people of france : a gross misreckoning of i know not how many hundred years . for the franks are not known to have taken up their quarters on this side the river rhine , till some centuries of years after christs incarnation . for howbeit by poetick license and rhetorical figure aeneas be said to have come to the lavinian shores , ( which had not that name till some time after ) yet it were much better , that , both in verse and prose , those things which appertain to history , should be expressed according to that form of ovid ; where at the burning of rhemus his funeral pile he sayes , tunc juvenes nondum facti flevere quirites ; that is , the young men then not yet quirites made , wept as the body on the pile they laid . and at this rate jeoffry might and ought to have made his translation , if he would have been a faithful interpreter . but as to our brutus whence the britans , saxo whence the saxons , bruno whence those of brunswick , freso whence those of friseland , and bato whence the batavians had their rise and name , take notice what pontus heuterus observes , as others have done before him . songs or ballads , sayes he , and rhymes made in an unlearned age , with ease obtruded falshoods for truths upon simple people , or mingling falsehoods with truths imposed upon them . for three or four hundred years ago there was nothing that our ancestors heard with greater glee , than that they were descended from the adulterous trojans , from alexander of macedonia the overthrower of kingdoms , from that manqueller hercules of greece , or from some other disturber of the world. and indeed that is too true which he sayes , — mensuraque fictis crescit , & auditis aliquid novus adjicit auctor . which in plain english speaks this sence . thus stories nothing in the telling lose , the next relater adding still to th' news . but i will not inlarge . to clear these points aright , antiquaries , who are at see-saw about them , will perhaps eternally be at loss , like the hebrews in their mysterious debates , for want of some elias to come and resolve their doubts . chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary . well ! suppose we grant there was such a person ever in the world as brutus : he made laws , they say , and those taken out of the trojan laws ; but what i pray were those trojan laws themselves ? there is one , i know well enough , they speak of , concerning the prerogative of the eldest sons , by which they inherited the whole right and estate of their deceased father . herodotus writes it of hector , son and heir to king priam , and jeoffry mentions it ; but did this law cross the sea with brutus into brittany ? how then came it , that the kingdom was divided betwixt the three brothers , locrinus , camber , and albanactus ? betwixt the two , ferrix and porrix ? betwixt brennus and belinus ? and the like of some others . how came it , that in a parliament of henry the eighth , provision was made , that the free-holds of wales should not thence-forward pass according to that custom , which they call gavelkind ? and anciently , if i be not mistaken , most inheritances were parted among the children , as we find in hesiods works . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — i. e. we had already parted the estate . and to the same purpose many like passages there are in old poets , and in holy writ . but , as i said , what are those trojan laws ? perhaps the same with those , by which nephelococcygia , the city of the birds in aristophanes , ( or , as we use to say , vtopia ) is governed . the gravest writers do acknowledge , that those most ancient times were for the most part free from positive laws . the people , so says justin , wee held by no laws : the pleasures and resolves of their princes past for laws , or were instead of laws . natural equity , like the lesbian rule in aristotle , being adapted , applied , and fitted to the variety of emergent quarrels , as strifes , ordered , over-ruled , and decided all controversies . and indeed at the beginning of the roman state , as pomponius writes , the people resolved to live without any certain law or right , and all things were governed by the hand and power of the king : for they were but at a little distance from the golden age , when — vindice nullo sponte suâ sine lege fidem rectumque colebant . that is to say , when — people did not grudge to be plain honest without law or judge . that which the heresie of the chiliasts heretofore affirmed , concerning the sabbatick or seventh millenary , or thousand years of the world. and those shepherds or governors of the people , to whom — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 — that is , — into whose hand jove trusts his laws and scepter for command . did govern them by the guidance of vertue , and of those laws which the platonicks call the laws of second venus . not out of the ambition of rule , as st. austin hath it , but out of duty of counsel ; nor out of a domineering pride , but out of a provident tenderness . do you think the trojans had any other laws ? only except the worship of their gods and those things which belong to religion . it was duty , says seneca , not dignity , to reign and govern : and an eye and a scepter among the aegyptians , were the absolute hieroglyphicks of kings . what ? that there is not so much as the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is law , to be met with in those old poets , orpheus , musaeus , or homer , ( who was about an hundred and fifty years after the destruction of troy ) as josephus against appio , plutarch , and several modern writers have remarked : i confess , if one well consider it , this remark of theirs is not very accurate . for we very often read in homer and hesiod , the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies laws ; and in both of them the goddess eunomia from the same theme as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — which being interpreted , is but they by legal methods bear the sway i' th' city fam'd for beauties . — which is a passage in homers hymn to mother tellus , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. the law of song , ( which musicians might not transgress ) is mentioned in his hymn to apollo . nay great plato , one beyond all exception , has left it in writing , that talus ( who had the management of the cretan common-wealth committed to him , together with rhadamauthus , the son of jupiter , by king minos ) that he did thrice every year go the circuit through the whole island ( which was the first country , as polyhistor tells us , that joyned the practice of laws with the study of letters ) and kept assizes , giving judgment according to laws engraven in brass . i say nothing of phoroneus king of the argives , or of nomio the arcadian ; and in good time leave this subject . i could wish i might peruse jupiters register , wherein he has recorded humane affairs . i could wish , that the censure of some breathing library and living study ( which might have power over the ancients , as we read in eunapius that longinus had ) or that the memory of some aethalides might help us sufficiently to clear and make out the truth . hence our next passage is to the classick writers of the latin style and story . chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in ease of crinie . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity . cajus julius caesar was the first of the romans , who has committed to writing the religious rites , the laws and the philosophy of the drvids . their name is of a doubtful origination , by no means were they so called from that druis or druides we meet with in berosus : but whether they were so termed from a greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that signifies an oak , in that they performed none of their devotions without oaken leaves , as pliny and those that follow him are of opinion ; or from the dutch true-wise , as goropius becanus will have it ; or from trutin , a word which with the ancient germans signified god , as paulus merula quotes it out of the gospel of othfred ( though in the angels salutation , in the magnificat , in zachariahs song and elsewhere , trutin rather denotes lord than god ; and see whether there does not lye somewhat of the druid in the name of st. truien , among the people of liege , some having exploded st. drudo ) whencesoever they had their name , these gownmen among the gauls , i and the britans too , were the interpreters and guardians of the laws . the discipline of these druids was first found in britany , and so far as it regards the civil court , we shall faithfully subjoyn it out of the forenamed caesar. 1. they order matters concerning all controversie , public and private . so in the laws of the twelve tables at the same rate the knowledg of cases , of precedents , of interpreting was in the colledge of pontiffs or high priests , and such plainly our druids were . if any ill prank had been played , if murder committed , if there were a controversie about inheritance , about bounds of land , these were the men that determined it , these amerced rewards and punishments . 2. if any private person or body of men do not stand to their award , they excommunicate him , that is , forbid him to come to sacrifice , which among them is the most grievous punishment . 3. those who are thus excommunicated , are accounted wicked and ungodly wretches , every body goes out of their way , and shuns their company and conversation for fear of getting any harm by contagion . neither have they the benefit of the law when they desire it , nor is any respect shown to them . 4. the druids have one over them , who has the chiefest authority amongst them . 5. when he dies , if there be any one that is eminent above the rest he succeeds in place : but if there be several of equal merit , one is chosen by majority of votes . 6. the druids were wont to be excused from personal attendance in war , nor did they pay taxes with the rest ; they were freed from military employ , and had an immunity of all things . the levites among the hebrews , who were the most ancient priests in the world , injoyed the same priviledge . chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgment of the whole book . 7. upon the account of that priviledge , they had in their schools ( which were most of them in britany ) a great confluence of youth . they are said to learn without book , says caesar , a great number of verses : therefore some of them spend twenty years in the discipline . nor do they judge it meet to commit such things to writing , whereas generally in all other , whether publick affairs or private accompts , they make use of greek letters . what ? greek letters so we read greek ones . why ! marseilles , a city of france , which was a greek colony of the phocians , had made the gauls such lovers of greeks , that , as strabo the geographer tells us , they writ their very contracts and covenants , bargains and agreements , in greek . the fore-mentioned julius caesar also writes , that there were tablets found in the camp of the switzers , made up of greek letters . but , for all that , i would not have any one from hence rashly to gather , that the greek language was in use to that age and people , or to these philosophers and lawyers . they made use of greek letters , therefore they had the greek tongue too ; this truly were a pitiful consequence . at this rate the ●argum or chaldee paraphrase , as paulus merula has it , and gorepius before him , would consist of the hebrew language , because 't is printed in hebrew characters : and the like may be said of the new testament in syriack , done in hebrew letters . what ? that those very letters of the greeks in caesars time , and as we now write them , are rather gallick ( as borrowed from the gauls ) than greek ? he was acquainted with those greek letters , but did not yet know the gallick ones , which learned men do think the greeks took for their copy , after the phoenician letters , which were not altogether unlike the hebrew , were grown out of use . consult for this wol●gangus lazius his celtae , becanus his gallica , and if thou hast a mind , annius his archilochus , xenophons aequivoca , and what others write concerning linus , cadmus , palam●des , and simonides , the first inventors of the alphabet . in the mean time take this from me , that those ancient and rude gothick characters , which bonaventure vulcanius of bruges , lately put forth , with a little comentary of one without a name , do very much resemble the greek ones ( as also the russian characters do at this day ) and that those which are now latin letters , were at first brought over into italy out of arcadia , along with nicostrata the mother of evander , who was banished his country . but that which seems to put the matter out of all dispute , caesar being about to write to quintus cicero , who was then besieged somewhere in flanders , among the nervians , by great rewards perswades a chevalier , that was a gaul , to carry the letter for him : he sends it written in greek , lest peradventure it being intercepted , the enemy should come to know their design . to what purpose should he have done this , if that chevalier , who was a gaul , or if the gauls , or if the very druids themselves , who had the management of state , had been skilled in greek ? among the western hills of denbeigh , a county in north-wales , there is a place , as i read in our famous chorographer , commonly called ceregy-drudion , that is , the druids stones , and some small pillars are seen at yvoellas , inscribed with foreign characters , which some suspect to have been those of the druids . who if they have reason so to suspect , i would to god , time , with his rusty teeth , had spared those pillars , that so some light might shine from thence to clear this quarrel if so be our interpretation of that form of caesars speaking , which we brought , do not please ( as to strabo's testimony , that respects somewhat later times , and perhaps mainly concerns those who lived near the sea-side ) why mayst not thou , with that great scholar francis hotoman be of opinion , that the word graecis crept into this story , either by the carelesness or confidence of transcribers ? for elsewhere in that very author , where it is said , dextris humeris exertis , justus lipsius , the prince of criticks , remarks , that the word humeris is plainly redundant , thrust in perchance by the vamper of that story , julius celsus . and what so great a man , of so great a judgment as he was , did censure of those commentaries of caesar , in his book called electa , or choice piece , take from himself thus . i see many patches stitched into that purple ; nor doth the expression it self there every where breath to my nostrils that golden ( as i may so say ) gum , or liquid myrrh , of pure antiquity . read it , read it over again , you will find many things idly said , disjoynted , intricate , vampt , said over and over , that it is not unreasonable to think , but that some novel and unskilful hand was added to this , as it were , statue of ancient work . therefore we may be easily cheated , if we stand upon such little scruples of words , as we shall meet with in one julius or other , caesar or celsus . chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described . 8. the druids begun their months and years from the sixth moon ( so says pliny ) and that which they called an age after the thirtieth year . in the attick account an age or generation , and that of a man in his prime and strength , was comprized within the same terms , according to the opinion of heraclitus , and as it is in herodotus ; not had nestor's triple age a larger compass , if one may believe eustathius , tiberius drove these druids out of the two gallia's , claudius banisht them out of rome , and the worship of the true god christ , sped them out of britany . what further appertains to the sacred rites and doctrine of the druids , ( not to speak further of caesar ) strabo , pliny , diodorus siculus , ( by the way his latin version we do not owe to poggius of florence , as the books published would make us believe , but to john frea formerly fellow of baliol colledge in oxford , if we may believe an original copy in the library of the said colledge . ) beside these , lucan , pomponius mela , ammianus marcellinus , and very lately otho heurnius , in his antiquities of barbarous philosophy , and others have , with sufficient plainness , delivered , yet so , that every thing they say savours of pythagoras ( and yet i am ne're a whit the more perswaded that pythagoras ever taught in merton-hall at oxford , or anaxagor as at cambridge , as cantilep and lidgate have it ) i and of the cabalists too ( for john reuchlin hath compared the discipline of pythagoras , and that of the cabalists , as not much unlike . ) whether the druids , says lipsius , had their metempsychosis or transmigration of souls , from pythagoras , or he from them , i cannot tell . the very same thing is alike to be said , concerning their laws , and the common-wealths which they both of them managed : they have both the same features as like as may be , as it was with cneius pompey , and caius vibius . for the samian philosopher did not only teach those secrets of philosophy which are reserved , and kept up close in the inner shrine ; but also returning from egypt he went to croton , a city of italy , and there gave laws to the italians , ( my author is laertius ) and with near upon three hundred scholars , governed at the rate , as it were of an aristocracy . the laws of zale●cus and charondas are commended and had in request . these men , says seneca , did not in a hall of justice , nor in an inns of court , but in that secret and holy retirement of pythagoras , learn those institutes of law , which they might propose to sicily and to greece , all over italy , both at that time flourishing . that holy and silent recess was perchance borrowed of the druids : forasmuch as what clement of alexandria witnesses , heretofore the more secret and mysterious arts were derived from the barbarians to the greeks . however the business be , it appears hence plainly , that the druids were of the oldest standing among the philosophers of the gentiles , and the most ancient among their guardians of laws . for grant they were of pythagoras his school , yet even at that rate they are brought back at least to the fiftieth or sixtieth olympiad , or if thou wilt , to the tyranny of the tarquins , which is about two and twenty hundred years ago . 't is true , pliny , cicero , austin , eusebius disagree in this point ; nor will i catch that mistake by the handle , which draws him , meaning pythagoras , back to numa's time . to what hath been said , i shall not grudge to subjoyn a surplage out of conradus celtes . he is speaking of some ancient images of stone , which he had seen in a certain abby at the foot of a hill that bears pines , commonly called vichtelberg , in the neighbourhood of voitland , which he conceives did by way of statue represent the druids . they were six in number , says he , at the door of the temple niched into the wall , of seven foot apiece in height , bare-footed , having their heads uncovered , with a greekish cloak on , and that hooded , and a satchel or scrip by their side , their beard hanging down to their very privities , and forked or parted in two about their nostrils ; in their hands a book and a staff like that of diogenes , with a severe forehead and a melancholy brow , stooping down with their head , and fastening their eyes on the ground . which description , how it agrees with those things which are recounted by caesar and strabo , concerning the golden adornments , the dyed and coloured vestures , the bracelets , the shaved cheeks and chin of the britans , and other things of the like kind , let them who are concerned look to that . chap. xi . the britans and gauls had laws and customs much alike , and whence that came , some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government . but forasmuch as britanny gave the beginnings and improvements to the discipline of these druids , and both britans and gauls had their government , customs , language , rites sacred and profane , every thing almost the same , or much alike , as mr. william camden hath some while since most learnedly made out , o mr. camden , with what respect shall i name thee ! in freta dum fluvii current , dum montibus umbrae lustrabunt convext , ac dum cynosura britannos , semper honos , noménque tuum , laudesque manebunt . which in hearty english makes this acknowledgment of his worth , as long as rivers run into the main . whilst shades on mountains shall the welkin hide , and britans shall behold the northern wain , thy honour , name , and praise shall still abide . and it is evident , that a great part of britany was once under the government of divitiacus king of the soissons , a people of france . therefore these following remarks i thought not amiss to set down as british , whether they were imparted to this isle by the ancient gauls ( by reason of its nearness ) or whether the gauls owed them to the britans . 9. they do not suffer their children to come to them in open sight , ( they are caesar's words ) but when they are grown up to that age , that they may be able to undergo military duty and to serve in war. 10. the men , what mony they receive with their wives upon account of portion , they lay down so much out of their own estate upon an appraisement made to make a joint stock with the portion . there is an account jointly kept of all this mony , and the profits of it are reserved ; the longer liver is to have both shares , with the profits of the former times . 11. the men have power of life and death over their wives , as well as over their children . hereupon bodin charges justinian with a falshood , for affirming that other people had not the same fatherly power as the romans had . 12. when a master of a family , who is of higher birth and quality , dies , his kindred meet together , that if the manner of his death were suspicious , they may by torture , as servants were used , examine the wife concerning the business , and if she be found guilty , they torment her miserably and burn her alive . to this story that most excellent lawyer , and worthy lord chief justice of the common pleas , sir ed●ward coke , refers the antiquity of the law , which we at this day use of devoting to the flames those wicked baggages , who stain their hands with the nefarious murder of their husbands . 13. those servants and dependents , who were known to have been beloved by their master in his life time , were , when the funeral rites were prepared , burnt with him for company . 14. it was ordered , that if any one by flying report or common same had heard any thing from the borders , that might concern the common-wealth , he was to make it known to some magistrate , and not impart it to any body else . 15. the magistrates conceal those things they think fit , and what they judge may be of use to the publick , they discover to the populace . 16. no body has leave to speak of the common-wealth , or of publick affairs , but in council or parliament . 17. they came armed into the council or to parliament . so the custom of the nation was , saith livy ; and tacitus , the like of the germans . chap. xii . women admitted to publick debates . a large commendation of the sex , together with a vindication of their fitness to govern ; against the salick law , made out by several examples of most nations . 18. it was grown a custom amongst them ( we meet with this in plutarch ) that they treated of peace and war with their women in company , and if any questions arose betwixt them and their allies , they lest it to them to determine . the same custom the cecropians , ( that is , the people of athens ) once had , as austin relates it out of varro , before the women by majority of vote carried it for minerva against neptune . away with you , simonides , and whosoever you are , scoundrels , that unworthily abuse the finer and brighter sex. good angerona , thou goddess of silence , wash , nay stop enbulus his foul mouth , who denies there were ever any good women more than two in the world , to wit , chast penelope , and alcestis , who died in her husbands stead . how large an honour was paid to the counsels , the prudence , the virtue of the gaulish ladies in their chiefest affairs , and not without their desert ? how much honour even at this day , is yearly paid at orleance , on the eighth of may , to the statue of joan darcy of lorain , that stands on the bank of the river loir ; who obliged her dear country with a victory wonderfully got , when all had been lost . to pass by other arguments , antiquity holds this sex to be equally divine as the male. in heaven , sea , earth , together with jupiter , neptune , pluto , who were the gods that shared the world , there governed juno , salacia , proserpina , their goddesses . marry ! in varro's three fold divinity , there are more she-gods than he-gods . ipsa quoque & cultu est , & nomine foemina virtus . virtue her self , howe're it came , is female both in dress and name . but i do not go to act over caius agrippa's part , by declaiming upon female excellency . the thing it self speaks more than i can , and the subject is its own best orator . i must add one thing which cornelius tacitus tells us of the britans , that they were wont to war under the conduct of women , and to make no difference of sex in places of command and government . which places yet there are some who stiffiy deny , that women by right should have the charge of ; as being , what euripides says of them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . that is , but ill for the stout feats of war , who scarce to look on iron dare . but those authors especially , who , propped up with the salick law ( as they call it ) write , that males only are by right of inheritance capable of the government of the french , they do hold and maintain this argument tooth and nail , with all the unkindness and spite as may be to the english law , which admits of women to the throne . they urge , that not only the laws of pharamond , but nature her self is on their side . the government of women ( 't is bodin of anjou sayes it ) is contrary to the laws of nature , which hath bestowed upon men discretion , strength of body , courage and greatness of spirit , with the power of rule , and hath taken these things from women . but , sweet mr. bodin , are not discretion , strength , courage and the arts of government , more to be desired and required in those who have the tuition of kings in their minority , than in the kings themselves till they are come to age ? truly i am of that mind . for why then , pray tell me , did not that reason of yours wring the guardianship of st. louis out of the hands of the queen-mother blanch ? why not out of isabella's hands under charles the sixth ? why not of catharine de medicis , whilst the two brothers francis and charles her pupils were incircled with the crown ? why not out of the hands of mary , louis the thirteenth being at this very time king ? were the jews , that i may go back to stories more ancient , blind , that they could not see the defects of womens nature , in the government of debora , who triumphed over sisera , and is sufficiently commended in holy writ ? were the italians blind under the government of the most prudent amalasincta ? the halicarnassians , under that of the most gallant artemisia ? the egyptians , among whom heretofore their women managed law-courts and business abroad , and the men lookt to home and minded huswifery ? and the aethiopians under their nicaula , whom being very desirous of wisdom , king solomon , the wisest man that has been ever since the world was , honourably entertain'd ? were the assyrians , under the government of their magnificent semiramis ? the massagetes , under that of the revengeful dame thomyris ? the palmyre●es , under that of the most chaste zenobia ? and that i may make an end once , under that of other excellent women , all nations whatever , none excepted but the franks ? who , as goropius will have it , came to throw off and slight female government upon this account , that in vespaesian's time they had seen the affairs of their neighbours the bructeri in east friseland , whilst that scornful hag velleda ruled the roast , came to no good issue . i do very well know , that our perjured barons , when they resolved to exclude queen mawd from the english throne , made this shameful pretence , that it would be a shame , for so many nobles to be subject to a woman . and yet you shall not read , that the iceni ( our essexmen , &c. ) got any shame by that boadicia , whom gildas terms a lioness , or that the brigantes ( i. e. york-shire-men , &c. ) got any by chartismandua . you will read , that they got glory and renown by them both . reader , thou canst not here chuse but think of our late soveraign of ever blessed memory , the darling of britan , q. elizabeth , nor canst thou , whosoever thou art , but acknowledge , that there was not wanting to a woman ( what malmesbury writes of sexburga the queen dowager of cenwalch king of the west saxons ) a great spirit to discharge the duties of the kingdom ; she levied new armies , kept the old ones to duty ; she governed her subjects with clemency , kept her enemies quiet with threats ; and in a word , did every thing at that rate , that there was no other difference betwixt her and any king in management , but her sex. of whose ( i mean elizabeths ) superlative and truly royal vertues a rare poet , and otherwise a very learned man , hath sung excellently well , si quasdam tacuisse velim , quamcunque tacebo major erit : primos actus veteresque labores pros●quar ? ad sese revocant praesentia mentem . justitiam dicam ? magis at clementia splendet . victrices referam vires ? plus vicit inermis . 't is pity these are not well rendred into english. however take them as they are in blank verse . should i in silence some her uertues pass , which e're i so pass o're , will greater be : shall i her first deeds and old facts pursue ? present affairs to them call back my mind . shall i her justice in due numbers sing ? but then her clemency far brighter shines . or shall i her victorious arms relate ? in peace unarm'd she hath got more to th' state. what did the germans our ancestors ? they thought there was in that sex something of sanctity and foresight , nor did they slight their counsels , nor neglect the answers they gave , when questions were put to them about matters of business ; and as superstition increased , held most of them for goddesses . let him then , whatever dirty fellow it was , be condemned to the crows ( and be hang'd to him ) who is not ashamed out of ancient scrolls , to publish to the world , that they ( women ) agree with soldiers ( bully-rocks and hectors ) mainly in this , that they are continually very much taken up with looking after their body , and are given to lust , that souldiers themselves are not , nor endeavour to be more quick and sudden in their cheats and over-reachings , that soldiers deceive people at some distances of time , but women lye alwayes at catch , chouse and pillage their gallants all the wayes they can ; bring them into consumptions with unreasonable sittings up ; and other such like mad rude expressions he useth , not unfitting for a professor in bedlam colledge . plato allowed women to govern , nor did aristotle , ( whatever the interpreters of his politicks foolishly say ) take from them that priviledge . vertue shuts no door against any body , any sex , but freely admits all . and hermes trismegistus that thrice great man in his poemander according to his knowledge of heavenly concerns ( and that sure was great in comparison of what the owl-ey'd philosophers had ) he ascribes the mystical name of male-female to the great understanding , to wit , god , the governour of the universe . they ( the good women i have been speaking of ) from their cradle ( at this rate men commonly talk of them ) do too much love to have the reins of government , and to be uppermost . well! be it so , that they do love to govern ? and who is it doth not love them ? now a sin and shame be it for lovers to grudge to their beloved , that which is most desired and wished by them : nor could i forbear out of conscience with my suffrage , to assist as far as i could , that sex , which is so great and comfortable an importance to mankind , so sweet a refreshment amidst our sharpest toils , and the vicissitudes of life ; and in a word , is the dearest gift that dame nature could bestow upon man. but let us now return to caesar's gauls again . chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them . 19. very many of them , when they are opprest with debt or with great taxes , or with the injurious oppression of great men , put themselves out to service to the nobles . over such they have the same right or authority , as masters have over their servants or slaves . these things following are expresly related also of the britans themselves . 20. they use brass coin or rings ( some read it , plates ) of iron proportion'd to a certain weight , instead of money . but , ( saith solinus , a more modern historian ) they dislike and disallow of markets or fairs or money ; they give and take commodities by way of barter . camden is of opinion , that the custom of coining money , came in along with the romans among the cattieuchlani , that is , the people of buckinghamshire , bedfordshire and hartfordshire . he takes notice out of william the conqueror's book of rates or dooms-day book ( which is seasonable to mention upon this head of coins ) that as amongst the old romans , so amongst our ancestors , money was weighed ( as gervase of tilbury also tells us ) and so told out and paid down . now they paid customs to the romans ; and for this purpose they had coins stamped and marked with various shapes of living creatures and vegetables , which ever and anon are digged up out of the ground . and we read in a very ancient chronicle of the monastery of abendon , which had two kings cissa and ina for its founders , that at the laying the first foundations , there were found very old coins engraven with the pictures of devils and satyrs . one may very well suppose them to be british coins . 21. they do not think it lawful to taste of the flesh of hare , or hen , or goose , and yet they keep these creatures for pleasure and divertisement sake . why they forbore only hare , and hen , and goose , i am not able to give the reason . i perceive something of pythagoras , and something of the jewish discipline mixt . for that philosopher of samos abstained from the eating of flesh , not in general from all , but with a certain choice from that of some particular creatures . chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rebuke of the foolish humour of jealousie . 22. they have ten or twelve of them wives in common amongst them , and especially brothers with brothers , and fathers with their sons , but what children are born of such mothers , they are fathered upon them by whom they were first lain with , when they were maids . o villany and strange confusion of the rights of nature ! dii meliora piis , erroremque hostibus istum ! which in christian english speaks thus . good god! for th' pious better things devise , such ill as this i wish not t' enemies . however let not this platonick community of wives be more reproach to the britans , than that promiscuous copulation which was used by the thuscans , and before cecrops his time ( who for appointing marriage , that is , joyning one man and one woman together , was termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i.e. as one may say two-shaped ) by the athenians , ( as theopompus , suidas and athenaeus report it ) was to them . besides , eusebius in his evangelical preparation writes , that our people for the most part were contented with one single marriage . did not , may one think , chalcondylas mistake caesar's meaning , who a hundred years ago and upwards setting himself to write history at athens , and peradventure over-carelesly drawing ancient customs down to the last age , ventured to affirm of the britans his contemporaries , that when any one upon invitation enters the house of a friend , the custom is , that he first lye with his friends wife , and after that he is kindly entertained ? or did that officious kiss , the earnest of welcome , which is so freely admitted by our women from strangers and guests , which some take particular notice of as the custom of our countrey , put a trick upon chalcondylas , and bring him into that mistake ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sayes theocritus of old , that is , in empty kisses there is swéet delight . and , qui vult cubare , pangit saltem suavium , sayes the servant in plautus , he that would a woman win , with a kiss he doth begin . and that other fellow , quaero deinde illecebr●m stupri , principio eam suavium posco . and et jam illud non placet principium de osculo , sayes jealous amphitruo to his wife alcumena . and agesilaus mistrusting his wanton genius , refused the buss or salute of a handsome beautiful youth . for as he sayes , — parva leves capiunt animos , that is , small matters kindle the desire ▪ and a loose spirit 's soon on fire . this our grecian knew well enough , and perchance thought of that unlucky hint , — si non & caetera sumpsit , haec quoque , quae sumpsit , perdere dignus erat . moreover , that great philosopher of lawyers baldus , hath set it down for a rule , that the fathers consent and betrothal is ratified and made good by the daughters admitting the wooer to kiss her . which point of law it would be very ridiculous to imagine should concern us , with whom both maids and married women do easily afford , and civilly too , them that salute them a kiss , not such as catullus speaks of billing like doves , hard busses or wanton smacks , but slight modest chaste ones , and such as sisters give to brothers . these civilities , when omitted , are alwayes signs of clownishness ; when afforded , seldom are accounted signs of whorishness . nor do the husbands in this case ( unless it be perhaps some horn mad-cuckold ) with a wrinkled forehead shake their bull-feathers , or so much as mistrust any thing as upon jealousie of this custom . it may be chalcondylas being a little pur-blind , saw these passages as it were through a grated lattice , and made ill use of his mistake : i mean , whilst he compared our britans , who upon a matrimonial confidence trust their mates honesty , with the jealous italians , venetians , spaniards , and even his own countrey-men . which people , it is a wonder to me , they should so warily , with so much diligence and mistrust set pinfolds , cunning spies and close attendance , locks and keys , and bats and bolts upon their madonna 's chastity ( most commonly in my conscience all to no purpose ) when that which he has said is as good as oracle , though a wanton one . quod licet , ingratum est : quod non licet , acriùs urit . ferreus est , siquis , quod siuit alter , amat . siqua , metu dempto , casta est , ea denique casta est : quae , quia non liceat , non facit , illa facit . qui timet , ut sua sit , nequis sibi subtrahat illam ; ille machaoniâ vix ope sanus erit . in english thus , what 's frée , 's unpleasant ; what 's not , moves desire . he 's thick skull'd , who doth things allow'd admire . who , fear aside , is chaste , she 's chaste indéed ; who , cause she can't , forbears , commits the deed . who 's wife mistrusts , and plays the jealous whelp , is mad beyond physicians art and help . who does not know , that natures byass runs to things forbidden ? and he who attempts unlawful things , does more often lose those which are lawful . marry ! that free usage of the hot baths of baden in germany , men and women together , is much safer than being jealous . — quis non bonus omnia malit credere , quàm tanto sceleri damnare puellam ? that is , what good man would not take all in best sense , rather by living undisturb'd and frée ; than by distrustful foolish jealousie his lady force to quit her innocence ? but we have taken that pains upon a thing by the by , as if it were our proper business . chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time . jvlius caesar gave a sight of britanny to posterity , rather than made a full discovery or a delivery of it . however malmsbury sayes , that he compelled them to swear obedience to the latin laws , certainly he did scarce so much as abridge the inhabitants from the free use of their own laws ; for the very tributes that were imposed upon them , they in a short time shook off , by revolting from the roman yoke . the same liberty they used and enjoyed to all intents and purposes during augustus , tiberius and caligula's reigns . aulus plautius as general by order of claudius caesar , brought an army into britany . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( so saith dio ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is , the inhabitants at that time were subject to divers kings of their own . he overcame in battel prince cradock and togodunus the two sons of king cunobellinus ; afterwards claudius himself came over into the island , fought a set battel ; and having obtained the victory , he took maldon in essex , the royal city of cunobellinus , disarmed the inhabitants , left the government of them , and the subduing of the rest of the people to plautius , and went back himself to ro●e , where he was honoured with a most splendid and stately triumph . for this was he , of whom seneca the tragoedian speaks : cuique britanni terga dedêre , ducibus nostris ante ignoti , jurisque sui . — which may be thus englished , to whom bold britans turn'd their back , t' our captains formerly unknown , and govern'd by laws of their own . the island being reduced great part under the romans power , and into a lieutenancy , a colony is brought down to maldon ( in essex ) as tacitus and dio has it , with a strong party of veterans , and is planted up and down in the countrey they had taken , as a supply against those that would rebel , and to train up their fellows or allies to the duties of the laws . and old stone speaks thus of that colony , cn . munatius m. f. pal . aurelius . bassus proc . aug . praef . fabro . praef . coh . iii. sagitariorum . praef . coh . iterum . ii. asturum . censitor . civium . romanorum . coloniae . victricensis . quae . est. in. britannia . camaloduni . besides , there was a temple built and dedicated to claudius ara ( or as lipsius reads it arra ) aeternae dominationis ; that is , the altar or earnest of an eternal government . but you will say , all this makes little to our purpose : yes , very much ; as that which brings from abroad the roman orders , laws , fashions , and every thing into britany . near st. albans , a town in hartfordshire , there was sure enough the seat of cassibellinus called verulams , and the burghers , as we learn from agellius , were citizens of rome infranchized , out of their corporations , using their own laws and customs , only partaking the same honorary priviledge with the people of rome : but we have the colony of maldon in essex , which upon another nearer account had all the rights and orders of the people of rome derived to it from the freedom of that city , and was not at its own disposal , or to use its own laws . and the like was practised in this island in more than one place . the reverse of sev●rus the emperours coyn shews it . col . eboracum . leg . vi. victrix . and the coyn of septimius geta on either side . col . divana . leg . xx. victrix . this old divana ( which is the very same with deunana in ptolomy ) if you make it english , is chester the chief city of the cornavians , that is , the people of cheshire , staffordshire , shropshire , &c. again , there is a piece of and old stone in the walls of bath in somersetshire near the north gate has this inscription upon it , dec . coloniae . glev. vixit . ann. lxxxvi . glevum was that then which glocester is now . it may be colchester had the same right of priviledge , unless you had rather derive its name from the river coln that runs aside it . in a word ( sayes seneca to albina ) how many colonies has this people of ours sent into all provinces ? where ever the roman conquers , he dwells . see what abundance there was of them in british province ; whose form of government , and other laws , that they were different from that of the britans , we may plainly perceive from that very form of their constitution after their detachment ; which i shall present you with out of that famous antiquary , and every way most learned and celebrious person justus lipsius . their manner and method was ( sayes he ) that the lands should be divided to man by man , and that by three grave discreet persons , whom they used to chuse for this purpose , who did set out their particular seats and grounds , and the town it self ( if there were one to be built ) and prescribed them rules and rights , and the form as it were of a new common-wealth : yet in that manner , that all things might bear a resemblance of rome and the mother city ; and that in the very places themselves the courts of law , the capitols , the temples , the state-houses or town-halls might be according to that model , and that there might be in the government or magistracy two persons as bailiffs in most places , like the two consuls at rome ; in like manner surveyors and scavengers , aldermen of the wards and headboroughs , instead of a senate or common council as we may call it . this is lipsius his account ; so that beatus gildas is not much out of the way , when he sayes , it was reckoned not britannia , but romania . and an ancient copy of verses , which joseph scaliger has rescued out of its rust and mouldiness , has it : mars pater , & nostrae gentis tutela quirine , et magno positus caesar uterque polo ; cernitis ignotos latiâ sub lege britannos , &c. that is , in english , sire mars , and guardian of our state quirinus hight after thy fate , and caesars both plac'd near the pole with your bright stars ye do behold , and th' unknown britans aw , t' observe the roman law. the stately seraglio or building for the emperours women at venta belgarum ( a city at this day called winchester ) and other things of that kind i let pass . in the time of the emperours v●spasian , titus and domitian , julius agricola , tacitus his wives father , was lord deputy lieutenant here . he encouraged the barbarous people to civil fashions , insomuch that they took the roman habit for an honour , and almost every body wore a gown ; and as juvenal has it in his satyr , gallia causidicos docuit facunda britannos . the british lawyers learnt of yore , from the well-spoken french their lore : t' imply , hereafter we should sée our laws themselves in french would be . chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . in commodus the emperours time the light of the gospel shone afresh upon the britans . lucius the first king of the christians ( for the romans , as in other places , so in britany , made use of even kings for their instruments of slavery ) by the procurement of fugatius and damianus did happily receive from pope eleutherius the seal of regeneration ( that is , baptism ) and the sacred laws of eternal salvation . he had a mind also to have the civil laws thence , and desired them too . ovid long since had so prophesied of rome : juráque ab hàc terrâ caetera terra petet . that is , and from this countrey every other land their laws shall fetch , and be at her command . now eleutherius wrote him this answer : you have desired of us , that the roman and caesarean laws may be sent over to you ; that you may , as you desire , use them in your kingdom of britanny . the roman and caesarean laws we may at all times disprove of , but by no means the laws of god. for you have lately through divine mercy taken upon you in the kingdom of britanny the law and faith of christ ; you have with you in the kingdom both pages of holy writ , ( to wit , the old and new testament ) . out of them , in the name and by the favour of god , with the advice of your kingdom , take your law , and by it through gods permission , you may govern your kingdom of britanny . now you for your part are gods vicegerent in your kingdom . howsoever by injury of time the memory of this great and illustrious prince king lucy hath been imbezill'd and smuggled , this upon the credit of the ancient writers appears plainly , that the pitiful fopperies of the pagans , and the worship of their idol-devils did begin to flag , and within a short time would have given place to the worship of the true god , and that three arch-flamens and twenty eight flamens , i. e. arch-priests , being driven out , there were as many arch-bishops and bishops put into their rooms ( the seats of the arch-bishops were at london , at york and at caerleon in wales ) to whom , as also to other religious persons , the king granted possessions and territories in abundance , and confirmed his grants by charters and patents . but he ordered the churches ( as he of monmouth and florilegus tell us ) to be so free , that whatsoever malefactor should fly thither for refuge , there he might abide secure , and no body hurt him . in the time of constantine the emperour ( whose pedigree most people do refer to the british and royal blood ) the lord president of france was governour of britanny . he together with the rest , those of illyricum or slavonia , of the east and of italy , were appointed by the emperour . in his time the lord deputy of britanny , ( whose blazonry was a book shut with a green cover ) was honoured with the title of spectabilis . there were also under him two magistrates of consular dignity , and three chief justices ( according to the division of the province into five parts ) who heard and determined civil and criminal causes . and here i set up my last pillar concerning the britans and the roman laws in britanny , so far forth as those writers which i have , do supply me with matter . chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen . afterwards the scots and picts making incursions on the north , and daily havock and waste of the lands of the provincials , ( that is , those who were under the roman government ) they send to desire of the romans some auxiliary forces . in the mean time , rome by a like misfortune , was threatned with imminent danger , by the fury of the goths : all italy was in a fright , in an uproar . for the maintaining of whose liberty , the empire being them more then sinking , was with all its united strength engaged and ready prepared . so this way the britans met with a disappointment . wherefore vortigern , who was governour in chief , sent for supplies from the neighbouring germans , and invited them in . but according to the proverb , carpathius leporem ; he caught a tartar : for he had better have let them alone where they were . upon this account , the saxons , the angles , the jutes , the frieslanders arrive here in their gally-foists in the time of theodosius the younger . at length being taken with the sweetness of the soil ( a great number of their countrey-men flocking over after them , as there were at that time fatal flittings and shiftings of quarters all the world over ) and spurred on with the desire of the chief command and rule , having struck up a league with the picts , they raise a sad and lamentable war against their new entertainers , in whose service they had lately received pay : and to make short , in the end having turned the britans out of their ancestors seats they advanced themselves into an heptarchy of england , so called from them . albeit they pass by various names , yet in very deed they were all of them none other but saxons . a name at that time of a large extent in germany ; which was not , as later geographers make it , bounded with the rivers of the elb , of the rhine and the oder , and with the confines of hessen and duringen , and with the ocean ; but reached as far as into the cimbrian chersonesus now called jutland . it is most likely , that those of them that dwelt by the sea-side , came over by ship into britanny . to wit , at first hors●s and hengistus came over out of batavia , or the low countreys , with a great company of saxons along with them ; after that out of jutland the jutes ( for janus douza proves , that the danes under that appellation seised our shores , in the very beginning of the saxon empire : ) out of angela , according to camden about flemsburg a city of sleswick , came the angles ; out of friseland ( procopius is my author ) the frizons . one may without any wrong call them all saxons ; unless fabius quastor aethelwerd also did his nation injury , by calling them so . he flourished six hundred and fifty years ago , being the grand-child or nephew of king aethelulph , and in his own words discourses , that there was also a people of the saxons all along the sea-coast from the river rhine up to the city donia , which is now commonly called denmark . for it is not proper here to think of denmark in the neighbouring territories of vtrecht and amsterdam , by reason of the narrowness of that tract . those few observes then , which adam of bremen hath copied out of einhard concerning the saxons , forasmuch as our ancient saxons i suppose , are concerned in them , i here set down in this manner and order . chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money . 23. the whole nation consists of four different degrees or ranks of men ; to wit , of nobles , of free-men born , of free-men made so , and of servants or slaves . and nithard speaking of his own time , has divided them into ethelings , that is , nobles , frilings , that is , free-men , and lazzos , that is , servants or slaves . it was enacted by laws , that no rank in cases of matrimony do pass the bounds of their own quality ; but that a noble-man marry a noble-woman , a free-man take a free-woman , a bond-man made free be joyned to a bond-woman of the same condition , and a man-servant match with a maid-servant . and thus in the laws of henry duke of saxony , emperour elect , concerning justs and tournaments , when any noble-man had taken a citizen or countrey-woman to wife , he was forbid the exercise of that sport to the third generation , as sebastian munster relates it . the twelve tables also forbad the marriage of the patricii or nobles with the plebeians or commons ; which was afterwards voided and nulled by a law which canuleius made , when he was tribune of the people . for both politicians and lawyers are of opinion , that in marriages we should make use of not an arithmetical proportion , which consists of equals ; nor of a geometrical one , which is made up of likes ; but of a musical one , which proceeds from unlike notes agreeing together in sound . let a noble-man that is decayed in his estate , marry a commoner with a good fortune ; if he be rich and wealthy , let him take one without a fortune : and thus let love , which was begot betwixt wealth and poverty , suite this unlikeness of conditions into a sweet harmony ; and thus this disagreeing agreement will be fit for procreation and breed . for he had need have a good portion of his own , and be nearer to crassus than irus in his fortunes , who , by reason of the many inconveniencies and intolerable charges of women , which bring great dowries , doth , with megadorus in plautus , court a wife without a portion ; according to that which martial sayes to priscus : vxorem quare locupletem ducere nolim quaeritis ? vxori nubere nolo meae . inferior matrona suo sit , prisce , marito : non aliter fiunt foemina virque pares . which at a looser rate of translation take thus , should i a wife with a great fortune wed , you 'l say , i should be swéetly brought to bed . such fortune will my liberty undo . who brings estate , will wear the bréeches too . unhappy match ! where e're the potent bride hath the advantage wholly on her side . blest pairs ! when the men sway , the women truckle , there 's good agréement , as 'twixt thong and buckle . and according to that of the greek poet , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . take , if you 'l be rul'd by me , a wife of your own degrée . but there is little of our age fashioned to the model of this sense : height of birth , vertue , beauty , and whatsoever there was in pandora of good and fair , do too too often give place to wealth ; and that i may use the comedians word , to a purse crammed with money . and as the merry greek poet sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . to be noble or high-born , is no argument for love : good parts of bréeding lye forlorn ; 't is money only they approve . i come back now to my friend adam . chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry . 24. they take a prisoner of that nation , with which they are to have a war , by what way soever they can catch him , and chose out one of their own countrey-men ; and putting on each of them the arms of their own countrey , make them two fight together , and judge of the victory , according as the one or the other of them shall overcome . this very thing also tacitus himself hath , to whom einhard sends his reader . for though he treat in general of the germans , yet nevertheless without any question , our saxons brought over along with them into this island very many of those things , which are delivered to us by those who have wrote concerning the customs of the germans . among which , take these following . 25. in councils or publick assemblies , the king or prince , ( i. e. a chief person ) according as every ones age is , according to his nobility , according to his reputation in arms , according to his eloquence , has audience given him , where they use the authority of perswading , rather than the power of commanding . if they dislike what he sayes , they disapprove it with a hum and a rude noise . if they like the proposal , they shake and rustle their spears or partisans together . it is the most honourable kind of assent , to commend the speaker with the clattering of their arms. from hence perhaps arose the ancient right of wapentakes . 26. there are also chosen at the same councils or meetings , chief persons ( as justices ) to administer law in the several villages and hamlets . each of those have a hundred associates out of the commonalty for their counsel and authority . this is plainly the pourtraict of our hundreds , which we still have throughout the counties of england . 27. they do nothing of publick or private affair , but with their arms on ; but it is not the custom for any one to wear arms , before the city or community approve of him as sufficient for it . then in the council it self , either some one of the princes or chief persons , or the father of the young man or some kinsman of his in token of respect , give him a shield and a partisan . this with them stands for the ceremony of the gown ; this the first honour of youth arriving at manhood ; before this be done , they seem but a part of the family : but after this is over , they are a part of the common-wealth . the right ancient pattern of dubbing knights , if any where else to be found . julius caesar sayes almost the very same thing of the gauls . they do not suffer their children , to come in publick to them , till they be come to age , that they be able to undergo the duties of war. 28. a remarkable nobleness of descent , or the high merits of their fathers , procure even to young lads the dignity and esteem of a prince . for , as the philosopher sayes , we owe this regard to vertues , that we respect them , not only whilst present , but also when they are taken away out of our sight ; and in the wife mans account , the glory of parents , is the honour of their children . 29. the wife doth not bring the husband a portion , but the husband gives the wife a dowry . contrary to what the roman law saith , that custom is still in use with the english , as morgangheb in other places . chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans . 30. the husband if his wife playes the whore , cuts off her hair , strips her naked , and turns her out of doors in presence of her kindred , and drives her through the streets , lashing or beating her as she goes along . they were formerly in this northern part of the world , most severe punishers of adultery , and they ahd such laws as were — ipsis marti venerique timenda ; that is , such as would put mars and venus in a trance of fear , amidst their dalliance . king knute ordered , that a wife , who took another passenger on board her than her husband , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . oft times i th' nights away she hies , and into other harbour flyes . ( well speed thee and thine , fair venus ; nor do i willingly bring these ill tidings to thy tender ducklings . ) should have her nose and ears cut off . i remember , antinous in homer threatens irus with the chopping off his nose , ears and privities ; and vlysses inflicts that very punishment upon his goat-herd melanthius , for his having been too officious in his pimping attendance upon the gallants , that haunted the house in his absence . how any one should deserve this penalty , which so disfigures nature , i do not yet sufficiently understand . heraclid●s ponticus informs us , that law-makers were wont to maim that part especially which committed the misdemeanour . in testimony of this , he mentions tytius his liver as the shop and work-house of lust ; and it were not hard matter to bring in other more pertinent instances ; and pereant partes , quae nocuere . saith some poet , the parts that did the hurt , let them e'en suffer for 't . however it was not melanthius his ears , and by no means his nose that offended ; no nor the good wives neither that commits the fact : as martial the merry wag tells a certain husband , quis tibi persuasit nares abscindere moecho ? non hàc peccata est parte , marite , tibi . that is , with modesty to render it , what made thee , angry man , to cut the nose of him , that went to rut ? 't was not that part , that did th' offence : therefore to punish that , what sense ? but who doth not see , that a woman hath no other parts of her body so lyable to maiming or cutting off ? both those parts make much for the setting her off ; nor are there any others in the whole outward frame of the microcosm , which being cut off , do either more disparage beauty , or withal less afflict the animal vertue , as they call it , by which life is maintain'd . now for those , who of old time did unluckily , that is , without the favour of those heathen gods prema and mutinus , to whose service they were so addicted , offer violence to untainted chastity ; the loss of members did await the lust of such persons , that there might be member for member ( they are the words of henry bracton , a very ancient writer of our law , and they are clear testimonies , that the english have practised the law of like for like ) quia virgo , cùm corrumpitur , membrum amittit , & ideò corruptor puniatur in eo in quo deliquit : oculos igitur amittat propter aspectum decoris , quo virginem concupivit ; amittat & testiculos , qui calorem stupri induxerunt . so long ago , aut linguam aut oculos aut quae tibi membra pudorem abstulerant , ferro rapiam . sayes progne to her sister philomele , speaking of the filthy villain tereus , who had ravished her , i 'le cut out his eyes or tongue , or those parts which did thée the wrong . and plautus in his play called paenulus , sy. facio quod manifesto moechi haud ferme solent . mi. ruid id est ? sy. referovasa salva . i remember i have read that jeoffry de millers a nobleman of norfolk , for having inticed the daughter of john briton to an assignation , and ingaged her with venereal pledges ; being betrayed and trepann'd by the baggage , underwent this execution ; and suffered besides , whatso●ver a fathers fury in such a case would prompt him to do : but withal , that king henry the third was grievously offended at it , dis-inherited briton , banished him , and gave order by proclamation , that no one should presume , unless it were in his wives case , to do the like . but these passages are of later date , and since the normans time and from them ; unless you will bring hither that which we meet with in alured's law concerning a man and a maid-servant . from whence we slide back again to tacitus . chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-mony for murder . the nature of country-tenures and knights fees. 31. every ones children are their heirs and successors , and there was no will to be . nor was it lawful with us down to our grandfathers time , to dispose of country farms or estates by will , unless it were in some burroughs , that had a peculiar right and priviledge of their own . if there be no children , then , says he , the next of kin shall inherit ; brethren , or uncles by the fathers or mothers side . those of the ascending line are excluded from inheritances , and here appears the preference of the fathers side : a law at this very day usual with the english. 32. to undertake the enmities rather than the friendships , whether of ones father or kinsman , is more necessary . capital enmities , which they call deadly feuds , are well known to our northern people . nor do they hold on never to be appeased : for even murder is expiated by a certain number of some head of cattel , and the whole family of the murdered person receives satisfaction . murders formerly were bought off with head-mony called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; though one had killed a nobleman , nay the king himself , as we may see in athelstan's constitutions : but good manners , i suppose , have prevailed above laws . 33. the lord imposes upon his tenant a certain quantity of corn or cattel , or clothes . we see here clearly enough the nature of country land-holders , fees or tenures . as to military or knights fees , give me leave to set that down too . dionysius halicarnasseus gives us a very ancient draught and model of them in the trojans and aborigines : florus in the cymbrians , and lampridius in alexander severus . both the northern people and the italians do owe them to the huns and lombards ; but these later according to a more modern form . let these things suffice out of cornelius tacitus , which belong to this head. chap. xxii . since the return of christianity into the island , king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia . before that the christian doctrine had driven out and banished the saxon idolatry , all these things i have hitherto been speaking of , were in use . ethelbert ( he that was the first king , not only of kent , but of all england , except northumberland ) having been baptized by austin the monk , the apostle , as some call him , of the english ) amongst other good things which by counsel and grant he did to his nation , ( 't is venerable bede speaks these words ) he did also with the advice of wise men , appoint for his peoples use the orders of their proceedings at law , according to the examples of the romans . which having been written in the english tongue ( says he ) are hitherto , or to this time kept and observed by them . among which orders or decrees he set down in the first place , after what manner such an one should make amends , who should convey away by stealth any of those things that belonged to the church , or to a bishop , or to the rest of the orders . in the laws of some that came after him , as those of king alured ( who cull'd out of ethelbert's acts to make up his own ) and those of king athelstan , thieves make satisfaction with mony ; accordingly as tacitus says of the germans , that for lighter offences those that were convicted are at the rate of their penalties amerced such a number of horses or other cattel . for , as festus hath it , before brass and silver were coyned , by ancient custom they were fined for their faults so much cattel : but those who medled with any thing sacred , we read had that hand cut off with which they committed the theft . well! but am i mistaken , or was sacriledge even in the time of the saxon government punisht as a capital crime ? there is a passage of william of malmsbury , in his book de gestis pontificum , that inclines me to think so . speaking of theodred , the bishop of london when athelstan was king , he says , that he had among the common people got the sirname of theodred the good ; for the eminence of his virtues : only in one thing he fell short , which was rather a mistake than a crime , that those thieves which were taken at st. edmunds , whom the holy martyr had upon their vain attempts tied with an invisible knot ( he means st. edmundsbury in suffolk ; which church these fellows having a design to rob , are said by miracle to have stood still in the place , as if they had been tied with cords : these thieves isay ) were by his means or sufferance given up to the severity of the laws , and condemned to the gallows or gibbet . let not any one think that in this middle age , this gallows or gibb●t i spoke of , was any other thing than the roman furca , upon which people hang and are strangled till they die . 34. egbert king of the west-saxons ( i make use of camdens words ) having gotten in four kingdoms by conquest , and devour'd the other two also in hope , that what had come under the government of one , might likewise go under one name ; and that he might keep up the memory of his own people the angles , he gave order by proclamation , that the heptarchy which the saxons had possest , should be called engelond . john carnotensis writes , that it was so called from the first coming in of the angles ; and another some body says it was so named from hengist a saxon prince . there are a great many laws of king ina , alfred , edward , athelstan , edmund , edgar , ethelred , and knute the dane , written in the saxon language ; which have lasted till these very times . for king knute gave order ( 't is william of malmsbury speaks ) that all the laws which had been made by former kings , and especially by his predecessor ethelred , should under pain of his displeasure and a fine , be constantly observed : for the keeping of which , even now in the time of those who are called the good , people swear in the name of king edward ; not that he appointed them , but that he observed them . the laws of edward , who for his piety has the sirname of confessor , are in readers hands . these of the confessor were in latin ; those others of knute were not long since put into latin by william lambard a learned man , and one very well vers'd in antiquity ; who had recovered them both , and published the saxon original with his translation over against it , printed by john day at london , anno 1567. under the title of archaeonomia , or a book concerning the ancient laws of the english. may he have a good harvest of it as he deserves . from historians let us borrow some other helps for this service . chap. xxiii . king alfred divides england into countyes or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast . 35. ingulph the abbot of crowland , writing of king alfred says : that he was the first of all that changed the villages or lordships and provinces of all england into counties or shires . before that it was reckoned and divided according to the number of hides or plough-lands by little districts or quarters . he divided the counties into hundreds and tythings ; ( it was long before that honorius , arch-bishop of canterbury , had parted the country into parishes ; to wit , anno 636. ) that every native home-born lawful man , might be in some hundred and tything ( i mean whosoever was full twelve years of age ) and if any one should be suspected of larceny or theft , he might in his own hundred or ward , being either condemned or giving security ( in some manuscripts it is being acquitted ) he might either incur or avoid the deserved penalty . william of malmsbury adds to this , that he that could not find security was afraid of the severity of the laws ; and if any guilty person , either before his giving security or after , should make his escape , all of that hundred and tything should incur the kings fine . here we have the original of decenna or a court-leet , of friburg , and perhaps of mainpast : which things though grown out of use in the present age ; yet are very often mentioned , not only in the confessors laws , but also in bracton and in other records of our law. what decenna was , the word it self does almost shew : and ingulph makes out , that is , a dousin or courtleet . friburg or borgh signifies a surety ; for fri is all one as free . he who passes his word for anothers good behaviour , or good abearing , and is become his security ; is said to have such a one in his borgh : being ingaged upon this account to the government , to answer for him if he misbehave himself . and hence it is , that our people in the country call those that live near them , or as i may say at the next door , neighbours : when yet those that would find out the reason why the people of liege in the low countries are called eburones , do understand that burgh , which is the same as borgh , to stand for a neighbour ; and this is plainly affirmed by pontus heuterus , in other originations of the like kind . manupastus is the same thing as a family : as if one would say , fed by hand . just in the like sence julius pollux , in greek terms a master of a family , trophimos ; that is , the feeder of it . that the rights of friburg and manupast were in use with the english some five or six generations ago , is manifest . curio a priest is fined by edward the third , because there had been one of his family a murderer . and the ancient sheets concerning the progress or survey of kent under edward the second , do give some light this way . ralph a milner of sandon , and roger a boy of the said ralph in borgh of * twicham ; ( critick whoever you are , i would not have you to laugh at this home spun dialect ) came by night to the mill of harghes , and then and there murdered william the milner ; and carried away his goods and chattels and presently fled : it is not known whither they are gone , and the jury mistrusts them the said ralph and roger concerning the death of the aforesaid william ; therefore let them be driven out and out-lawed . they had no chattels , but the aforesaid ralph was in borgh of simon godwin of tw●cham , who at present has him not ; and therefore lies at mercy : and roger was not in borgh , but was of the mainpast of robert arch-bishop of canterbury deceased ; there being no engleshire presented , the verdit is , the murder upon the hundred . the first discoverer of it and three neighbours are since dead ; and thomas broks , one of the neighbours , comes and is not mistrusted ; and the villages of wimesbugewelle and egestoun did not come fully to the coroners inquest and are therefore at mercy . and about the same time , solomon ro● of ickham came to the house of alice the daughter of dennis w●●nes , and beat her and struck her upon the belly with a staff ; so that she dyed presently . and the foresaid solomon presently fled , and the jury mistrust him concerning the death aforesaid ; therefore let him be driven out and be outlawed . he had no chattels , nor was he in borgh because a vagrant : the verdit , the murder lies upon the hundred . &c. and according to this form more such instances . but let it suffice to have hinted at these things , adding out of henry bracton ; if out of frank-pledge an offender be received in any village , the village shall be at mercy ; unless he that fled be such an one , that he ought not to be in leet and frank-pledge ; as nobles , knights , and their parents ( their eldest sons it is in the yearly records of law in edward the first 's time ; and we may take in daughters too ) a clergy-man , a freeman , ( i fear this word has crept in ) and the like , according to the custom of the country ; and in which case he , of whose family and mainpast they were , shall be bound in some parts , and shall answer for them ; unless the custom of the country be otherways , that he ought not to answer for his mainpast , as it is in the county of hertford , where a man does not answer for his mainpast for any offence , unless he return after felony , or he receive him after the offence committed , as in the circuit of m. de pateshull in the county of hertford , in such a year of king henry the fifth . in sooth these usages do partly remain in our tythings and hundreds , not at all hitherto repealed or worn out of fashion . chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane . hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harald's law that no welch-man should come on this side offa's dike with a weapon . 36. the governors of provinces who before were styled deputy-lieutenants ( we return to ingulph and king alfred ) he divided into two offices ; that is , into judges , whom we now call justices , and into sheriffs , who do still retain the same name . away then with polydore virgil , who fetches the first sheriffs from the norman conqueror . 37. john scot erigena advised the king , that he would have his subjects instructed in good letters ; and that to that end he would by his edict take care of that which might be for the benefit of learning . whereupon he gave strict order to all freemen of the whole kingdom , who did at least possess two hides of land , that they should hold and keep their children till the time of fifteen years of their age , to learning ; and should in the mean time diligently instruct them to know god. a hide of land , that i may note it once for all , and a plough land ( that is as much land as can be well turned up and tilled with one plough every year ) are read as synonymous terms of the same sence , in huntingdon , matthew paris , thomas walsingham ; and expresly in a very old charter of dunstan . although some take a hide for an hundred acres , and others otherwise ; do thou , if thou hadst rather so do , fansie it to be as much ground as one can compass about with a bull-hide cut into thongs , as queen dido did at carthage : there are some who are not unwilling to have it so understood . 38. king edgar like a king of good fellows , or master of revels , made a law for drinking . he gave order that studs or knobs of silver or gold ( so malmsbury tells us ) should be fastned to the sides of their cups or drinking vessels , that when every one knew his mark or boundary , he should out of modesty , not either himself covet or force another to desire more than his stint . this is the only law before the first parliament under king james , has been made against those swill-bowls , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , swabbers of drunken feasts and lusty rowers , in full brimm'd rummers that do ply their dars . who by their carowses ( tipling up nestor's years , as if they were celebrating the goddess anna perenna ) do at the same time drink others healths , and mischief and spoil their own and the publick . 39. there was no choice of prelates ( these are the words of ingulph again ) that was merely free and canonical ; but the court conferred all dignities , as well of bishops as of abbots , by the kings ring and staff , according to his good pleasure . the election or choice was in the clergy and the monks ; but they desired him whom they had chosen , of the king. edmund , in king ethelred's time , was after this manner made bishop of the holy island on the coast of northumberland : and king edgar in his patent , which he signed to the abby of glastenbury , retained to himself and his heirs , the power of bestowing the pastoral staff to the brother elect. 40. to as many as king knute retained with him in england ( to wit , to the danes ; for by their hands also was the scepter of this kingdom managed ) it was granted , that they should have a firm peace all over ; so that if any of the english killed any of those men , whom the king had brought along with him ; if he could not clear himself by the judgment of god ( that is , by ordeal ) to wit , by water and burning hot iron , justice should be done upon him : but if he run away and could not be taken , there should be paid for him sixty six marks ; and they were gathered in the village where the party was slain , and therefore because they had not the murderer forth coming ; and if in such village by reason of their poverty , they could not be gathered , then they should be gathered in the hundred , to be paid into the kings treasure . in this manner writes henry bracton , who observes that hence the business of englishshire came into fashion in the inquests of murder . 41. hand-writings ( i.e. patents and grants ) till edward the confessors time , were confirmed by the subscriptions of faithful persons pres●nt ; a thing practised too among the britans in king arthur's time , as john price informs us out of a very ancient book of the church of landaff . those subscriptions were accompanied with golden crosses , and other sacred seals or like stamps . 42. king harald made a law , that whosoever of the welch should be found with a weapon about him without the bound which he had set them , to wit , offa's dike ; he should have his right hand cut off by the kings officers . this dike our chorographer tells us was cut by offa king of the mercians , and drawn along from the mouth of the river dee to the mouth of the river wye for about eighty miles in length , on purpose to keep the english and welch asunder . chap. xxv . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse . the donations or grants of the royal consort , though not by the kings authority , contrary to what the priviledge of any other wife is , were ratified also in that age , as they were by the roman law : which by the patent of aethelswith , wife to burghred king of the mercians , granted to cuthwuls in the year 868. hath been long since made out by sir edward coke , lord chief justice of the common pleas : where also king ethelred's ancient charter proves , that the estates of felons ( those i mean who concern themselves in burglaries and robberies ) are forfeited to the king. having already mentioned those hand-writings or grants , which are from one hand and t'other , conveyances of tenure ( the fewel of quarrels ) i have a mind , over and above what has been said , to set down also these remarks , as being to our purpose ; and taken from the saxons . as for instance , that those are most frequent whereby estates are conveyed to be held with the best and fairest right ; yet most commonly these three things excepted , to wit , expedition , repairing of bridges , and building of castles : and that those to whom the grants were made , were very seldom acquitted upon this account . these three exceptions are noted by the term of a three-knotted necessity in an old charter , wherein king cedwalla granted to wilfrid ( the first bishop of shelsey in sussex ) the village of paganham in the said county . for though in the grants of king ethelulph the church be free ( says ingulph ) and there be a concession of all things for the release of our souls , and pardon of our sins to serve god alone without expedition , and building of bridge , and fortifying of castle ; to the intent that the clergy might wholly attend divine service : yet in that publick debate of parliament , in the reign of henry the third , concerning the ancient state , freedom , and government of the english church ; and concerning the hourly exactions of the pope and the leeches , jugglers and decoys of rome , that strolled up and down the country to pick peoples pockets , to the great prejudice of the common-wealth ; they did indeed stand for the priviledge of the church , and produced as witnesses thereof the instruments and grants of kings ; who nevertheless were not so much inclined to countenance that liberty of the church , but that , as matthew paris observes , they always reserved to themselves for the publick advantage of the kingdom , three things ; to wit , expedition , and the repairing or making up of bridge or castle ; that by them they might withstand the incursions of the enemy . and king e●helbald hath this form : i grant that all the monasteries and churches of my kingdom be discharged from publick customs or taxes , works or services , and burdens or payments or attendances , unless it be the building and repairing of castles or bridges , which cannot be released to any one . i take no notice how king ethelred the twelfth perhaps ( but by no means the fifteenth , wherein an historian of ours has blundred ) hath signed the third year of his reign by the term of an olympiad , after the manner of the greek computation or reckoning : as likewise i pass other things of the like kind , which are many times used and practised according to the fancy of the clerks or notaries . however the last words , which are the close of these grants and patents , are not to be slighted . these we may see in that of cedwalla , king of the south-saxons , made to theadore arch-bishop of canterbury , in the year 687. thus . for a further confirmation of my grant , i cedwalla have laid a turf of the land aforesaid upon the holy altar of my saviour : and with my own hand , being ignorant of letters , have set down and expressed the mark or sign of the holy cross. concerning withred and a turf of land in kent , camden has the same thing ; and king ethelulph is said to have offered his patent , or deed of gift , on the altar of the holy apostle st. peter . for a conclusion , i know no reason why i may not set underneath , the verses of an old poet , wherein he hath comprised the instrument or grant of founding an abby , which ethelbald , king of the mercians , gave to kenulph abbot of crowland : verses , i say , but such as were made without apollo's consent or knowledge . istum kenulphum si quis vexaverit anglus , rex condemno mihi cuncta catella sua . inde meis monachis de damnis omnibus ultrà vsque satisfaciat ; carcere clausus erit . adsunt ante deum testes hujus dationis anglorum proceres pontificesque mei . sanctus * guthlacus confessor & anachorita hic jacet , in cujus auribus ista loqu●r . oret pro nobis sanctissimus iste sacerdos , ad tumbam cujus haec mea don● dedi . which in rhyme dogrel will run much after this hobling rate . if any english vex this kenulph , shall i king condemn to me his chattels all . thenceforth , until my monks he satisfie , for damages , in prison he shall lye . witnesses of this gift here in gods fight are english peers and prelates of my right ▪ saint guthlac confessor and anchoret , lies here , in whose ears these words i speak yet . may he pray for us that most holy priest , at whose tomb these my gifts i have addrest . thus they closed their donations or grants ; thus we our remarks of the saxons , being now to pass to the normans . the second book of the english janus . from the norman conquest , to the death of king henry ii. chap. i. william the conquerour's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , danelage and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones . william duke of normandy upon pretence of a double right , both that of blood ( inasmuch as emme the mother of edward the confessor , was daughter to richard the first duke of the normans ) and withal that of adoption , having in battel worsted harald the son of godwin earl of kent , obtain'd a large inheritance , and took possession of the royal government over all england . after his inauguration he liberally bestowed the lands and estates of the english upon his fellow-soldiers ; that little which remained ( so saith matthew paris ) he put under the yoke of a perpetual servitude . upon which account , some while since the coming in of the normans , there was not in england except the king himself , any one , who held land by right of free-hold ( as they term it : ) since in sooth one may well call all others to a man only lords in trust of what they had ; as those who by swearing fealty , and doing homage , did perpetually own and acknowledge a superior lord , of whom they held , and by whom they were invested into their estates . all bishopricks and abbacies , which held baronies , and so far forth had freedom from all secular service ( the fore-cited matthew is my author ) he brought them under military service , enrolling every bishoprick and abbacy according to his own pleasure , how many souldiers he would have each of them find him and his successors in time of hostility or war. having thus according to this model ordered the agrarian law for the division and settlement of lands , he resolved to govern his subjects ( we have it from gervase of tilbury ) by laws and ordinances in writing : to which purpose he proposed also the english laws according to their tripartite or threefold distinction ; that is to say , merchenlage , danlage and westsaxenlage . merchenlage , that is , the law of the mercians ; which was in force in the counties of glocester , worcester , hereford , warwick , oxford , chester , salop and stafford . danlage , that is , the law of the danes ; which bore sway in yorkshire , derby , nottingham , leicester , lincoln , northampton , bedford , buckingham , hertford , essex , middlesex , norfolk , suffolk , cambridge , huntingdon . westsaxenlage , that is , the law of the west-saxons ; to which all the rest of the thirty two counties ( which are all that malmesbury reckons up in ethelred's time ) did belong ; to wit , kent , sussex , surrey , berks , southampton , winton , somerset , dorset and devon. some of these english laws he disliked and laid aside ; others he approved of , and added to them , some from beyond sea out of neustria ( he means normandy , which they did of old , term neustria corruptly , instead of westrich , as being the more western kingdom of the franks , and given by charles the simple to rollo for his daughter gilla her portion ) such of them as seemed most effectual for the preserving of the kingdoms peace . this saith he of tilbury . now this is no rare thing among writers for them to devise , that william the conqueror brought in as it were a clear new face of laws to all intents and purposes . 't is true , this must be acknowledg'd , that he did make some new ones ( part whereof you may see in lambard's archaeonomia , and part of them here subjoyned ) but so however that they take their denomination from the english , rather than from the normans ; although one may truly say , according to what lawyers dispute , that the english empire and government was overthrown by him . that he did more especially affect the laws of the danes ( which were not much unlike to those of the norwegians , to whom william was by his grand-father allied in blood ) i read in the annals of roger hoveden . and that he openly declared , that he would rule by them ; at hearing of which , all the great men of the countrey , who had enacted the english laws , were presently struck into dumps , and did unanimously petition him , that he would permit them to have their own laws and ancient customs ; in which their fathers had lived , and they themselves had been born and bred up in ; forasmuch as it would be very hard for them to take up laws that they knew not , and to give judgement according to them . but the king appearing unwilling and uneasie to be moved , they at length prosecuted their purpose , beseeching him , that for the soul of king edward , who had after his death given up the crown and kingdom to him ▪ and whose the laws were , and not any others that were strangers , he would hearken to them and grant that they might continue under their own countrey laws . whereupon calling a council , he did at the last yield to the request of the barons . from that day forward therefore the laws of king edward , which had before been made and appointed by his grand-father adgar , seeing their authority , were before the rest of the laws of the countrey respected , confirmed and observed all over england . but what then ? doth it follow that all things in william's time were new ? how can a man chuse but believe it ? the abbot of crowland sayes this of it , i have brought with me from london into my monastery the laws of the most righteous king edward , which my renowned lord king william hath by proclamation ordered , under most grievous penalties , to be authentick and perpetual , to be kept inviolably throughout the whole kingdom of england , and hath recommended them to his justices , in the same language wherein they were at first set forth and published . and in the life of fretherick abbot of s. albans you have this account : after many debates , arch-bishop lanfrank being then present ( at berkhamstead in hartfordshire ) the king did for the good of peace , take his oath upon all the reliques of the church of s. alban , and by touching the holy gospels , fretherick the abbot administring the oath , that he would inviolably observe the good and approved ancient laws of the kingdom , which the holy and pious kings of england his predecessors , and especially king edward had appointed . but you will much more wonder at that passage of william le rouille of alençon in his preface to the norman customs . that vulgar chronicle , saith he , which is intitled the chronicle of chronicles , bears witness , that s. edward king of england , was the maker or founder of this custom ; where he speaks of william the bastard duke of normandy , alias king of england , saying , that whereas the foresaid s. edward had no heirs of his own body , he made william heir of the kingdom , who after the defeat and death of harald the usurper of the kingdom , did freely obtain and enjoy the kingdom upon this condition , to wit , that he would keep the laws which had before been made by the fore-mentioned edward ; which edward truly had also given laws to the normans , as having been a long time also brought up himself in normandy . where then , i pray you , is the making of new laws ? why ! without doubt , according to tilbury , we are to think , that together with the ratifying of old laws , there was mingled the making of some new ones : and in this case one may say truly with the poet in his panegyrick : firmatur senium juris , priscamque resumunt canitiem leges , emendanturque vetustae , acceduntque novae . — which in english speaks to this sense ; the laws old age stands firm by royal care , statutes resume their ancient gray hair . old ones are mended with a fresh repair ; and for supply some new ones added are . see here ! we impart unto thee , reader , these new laws , with other things , which thou maist justly look for at my hands in this place . chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not . 1. he caused all england to be described , and inrolled ( a whole company of monks are of equal authority in this business , but we make use of florentius of worcester for our witness at this time ) how much land every one of his barons was possessed of , how many soldiers in fee , how many ploughs , how many villains , how many living creatures or cattel , i , and how much ready mony every one was master of throughout all his kingdom , from the greatest to the least ; and how much revenue or rent every possession or estate was able to yield . that breviary or present state of the kingdom being lodged in the archives for the generality of it , containing intirely all the tenements or tenures of the whole country or land was called dooms-day , as if one would say , the day of doom or judgment . for this reason , saith he of tilbury , we call the same dooms-day book : not that there is in it sentence given concerning any doubtful cases proposed ; but because it is not lawful upon any account , to depart from the doom or judgment aforesaid . reader , if it will not make thy nice stomach wamble , let me bring in here an old fashioned rhyme , which will hardly go down with our dainty finical verse-wrights , of an historical poet robert of glocester : one whom , for his antiquity , i must not slight concerning this book . the k. w. vor to wite the worth of his londe let enqueri streitliche thoru al engelonde , hou moni plou lond , and hou moni hiden also were in everich sire , and wat hii were wurth yereto : and the rents of each toun , and of the waters echone , that wurth , and of woods eke , that there ne bileved none , but that he wist wat hii were wurth of al engelonde , and wite al clene that wurth thereof ich understond and let it write clene inou , and that scrit dude iwis in the tresorie at westminster there it yut is . so that vre kings suth , when hii ransome toke and redy wat folc might give , hii fond there in yor boke . considering how the english language is every day more and more refined , this is but a rude piece , and looks scurvily enough . but yet let us not be unmindful neither , that even the fine trim artifices of our quaint masters of expression , will themselves perhaps one day , in future ages , that shall be more critical , run the same risk of censure , and undergo the like misfortune : and that , multa renascentur quae nunc cecidere , cadentque quae nunc sunt in honore ; — as horace the poet born at venusium , tells us : that is , several words which now are fal'n full low , shall up again to place of honour start ; and words that now in great esteem , i trow , are held , shall shortly with their honour part . 2. the normans called their writings given under their hand , charters ( i speak this out of ingulph ) and they ordered the confirmation of such charters with an impression of wax , by every ones particular seal , under the testimony and subscription of three or four witnesses standing by . but edward the confessor had also his seal , though that too from normandy . for in his time , as the same writer saith , many of the english began to let slip and lay aside the english fashions , bringing in those of the normans in their stead , and in many things to follow the customs of the franks ; all great persons to speak the french tongue in their courts , looking upon it as a great piece of gentility , to make their charters and writings alamode of france ; and to be ashamed of their own country usages in these and other like cases . nay , and if leland , an eye-witness , may be believed , our great prince arthur had his seal also , which he saith he saw in the church of westminster with this very inscription . patritius . arthurius . britanniae . galliae . germaniae . daciae . imperator . that is , the right noble , arthur , emperor of britanny , france , germany , and transylvania . but that the saxons had this from the normans , is a thing out of all question . their grants or letters patents signed with crosses , and subscribed with witnesses names , do give an undoubted credit and assurance to what i have said . john ross informs us that henry beauclerk was the first that made use of one of wax ; and matthew of canterbury , that edward the first did first hang it at the bottom of his royal writings by way of label ; whereas before , his predecessors fastned it to the left side . such a writing of henry the first in favour of anselm , the last author makes mention of ; and such an one of william's duke of the normans , though a very short one and very small written ; brian-twine in his apology for the antiquity of the famous university of oxford ( the great study and support of england , and my ever highly honoured mother ) saith , he had seen in the library of the right honourable my lord lumley . but let a circumcised jew , or who else will for me , believe that story concerning the first seal of wax , and the first fastning of it to the writing : a great many waxen ones of the french peers ( that i may say something of those in wax ) and golden ones of their kings ( to wit , betwixt the years 600 and 700 ) we meet with fashioned like scutcheons or coats of arms in those patterns or copies which francis de rosieres has in his first tome of the pedigree or blazonry of the dukes of lorain , set down by way of preface . nor was it possible that the normans should not have that in use , which had been so anciently practised by the french. let me add this out of the ancient register of abendon : that richard earl of chester ( who flourished in the time of henry the first ) ordered to sign a certain writing with the seal of his mother ermentrude ; seeing that ( being not girt with a soldiers belt , i. e. not yet made knight ) all sorts of letters directed by him , were inclosed with his mothers seal . how ? what is that i hear ? had the knightly dignity and order the singular priviledge , as it was once at rome , to wear gold-rings ? for rings ( as 't is related out of ateius capito ) were especially designed and ingraven for seals : let phoebus , who knows all things , out of his oracle tell us . for servants or slaves ( so says justus lipsius , and remarks it from those that had been dug up in holland ) and common soldiers were allowed iron ones to sign or to seal with ( which therefore flavius vopiscus calls annulos sigillaricios , i. e. seal-rings ) and so your ordinary masters of families had such , with a key hanging at it to seal and lock up their provision and utensils . but , saith ateius of the ancient time , neither was it lawful to have more than one ring , nor for any one to have one neither but for freemen , whom alone trust might become , which is preserved under seal ; and therefore the servants of a family had not the right and priviledge of rings . i come home to our selves now . chap. iii. other ways of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverfeu . laws against taking of deer , against murder , against rape . 3. at first many lands and estates were collated or bestowed by bare word of mouth , without writing or charter , only with the lords sword or helmet , or a horn or a cup ; and very many tenements with a spur , with a currycomb , with a bow , and some with an arrow : but these things were in the beginning of the norman reign , in after times this fashion was altered , says ingulph . i , and these things were before the normans government . let king edgar his staff cut in the middle , and given to glastenbury abbey for a testimony of his grant , be also here for a testimony . and our antiquary has it of pusey in berkshire , that those who go by the name of pusey do still hold by a horn , which heretofore had been bestowed upon their ancestors by knute the danish king. in like manner , to the same purpose an old book tells this story : that one vlphus the son of toraldus , turned aside into york , and filled the horn that he was used to drink out of , with wine ; and before the altar upon his bended knees , drinking it , gave away to god and to st. peter , the prince of the apostles , all his lands and revenues . which horn of his , saith camden , we have been told was kept or reserved down to our fathers memory . we may see the conveyance of estate , how easie it was in those days , and clear from the punctilio's of law , and withal how free from the captious malice of those petty-foggers who would intangle titles and find flaws in them , and from the swelling bundles and rolls of parchments now in use . but commend me to godwin earl of kent , who was , to use h●gesander's word , too great a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , catcher at syllables , and as the comedian says , more shifting than a potters wheel : give me ( saith he to the arch-bishop of canterbury ) boseham . the arch-bishop admiring what it was he would be at in that question , saith , i give you boseham . he straight upon the confidence of this deceit , without any more ado entred upon an estate of the arch bishops of that name on the sea-coasts of sussex , as if it had been his own by inheritance : and with the testimony of his people about him , spoke of the arch-bishop before the king as the donor of it , and quietly enjoyed it . those things i spoke of before ( to wit , of sword , horn , &c. ) smell of that way of investing into fees which we meet with in obertus de orto ; but are very unlike to that solemn ceremony which is from ancient time even still used in conveying of an estate and delivering possession , wherein a green turf or the bough of a growing tree is required . 4. they did so much abhor the english tongue ( 't is the abbot of crowland saith it ) that the laws of the land , and the statutes of the english kings , were handled or pleaded in the french language . for till the thirty sixth year of edward the third , all businesses of law were pleaded in french. that also in schools the rudiments of grammatical institution , were delivered to boys in french and not in english. also that the english way and manner of writing was laid aside , and the french mode was made use of in all charters or instruments and books . indeed it was such a fault to be ignorant in the french , or not to be able to speak it ; that mainly upon this account , in the reign of william rufus , vlstan bishop of worcester was censured as unworthy of his place , and deprived of his dignity , who as to other things according to the simplicity of that age , was scholar enough . the abbot whom i quoted , speaks thus of the french character : the saxon hand was used by all the saxons and mercians in all their hand-writings , till the time of king alfred , who had by french tutors been very well trained up in all literature ; but from the time of the said king , it did by disuse come to be of little account ; and the french hand , because it being more legible and more delightful to sight , had the preheminence , grew more and more every day in vogue and use among all the english. nevertheless however this business went , we are told that in the memory of our fathers , and that by an ancient order , there were lectures of the english-saxon language , read at tavistock abby in devonshire . 5. that his new kingdom might not be disturbed by riots and disorders in the night , he ordered that at the ringing of a bell ( which they called the curfew-bell ) all the lights and fires should in every little cottage , a little after the dusk of the evening , be put out . 6. he that should take a deer , or aprum , a boar ( so says huntingdon , but perhaps 't is caprum , a buck ) or a roe , was to have his eyes thrust or plucked out , saith matthew paris . 7. if any one had slain any one ( 't is huntingdon writes this ) be it upon what cause or occasion soever , he was sentenced to a capital punishment , he was to die for it 8. if one had forced any woman ( so i read aliquam any woman , not aliquem any man , as 't is in the common prints ) he was to have his privities cut off . forced her ? i , sure enough ; and perhaps he that lay with a woman with her consent , was notwithstanding that , served in the same kind too . and in this case i would have you hear what that great lawyer albericus gentilis , his opinion is . this i say , saith he , that a man hath a greater injury done him , if the woman were not ravished per force , but were debauched and made willing : because in this case her mind is estranged from her husband ; but in that other , not . chap. iv. sheriffs and ihries were before this time . tha four terms . judges to act without appeal . justices of peace . the kingr payments made at first in provisions . afterwards ehanged into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warder of the cinque ports why made . a disorder in church-affairs reformed . polydore virgil brings in at this time the first sheriffs of counties , and here places the beginning of juries , or determining of tryals by the judgment of twelve ; but is out in them both . this of juries is convinced by a law of ethelred in lambard's explications of law-terms , and by those irrefragable arguments which the famous sir edward coke brings against it . that other mistake of sheriffs is confuted by what we have formerly noted out of ingulph , and by what we shall hereafter somewhere have occasion to remark . mars being impleaded in the areopagus , the place of judgment at athens , for the murder of halirothius the son of neptune , whom he had slain for ravishing his daughter alcippa ; upon his tryal by twelve gods , was acquitted by six sentences or votes : for if the number were equal and no majority , the person was not condemned but discharged . my meaning why i put in this story , is to shew the most ancient use of this number of twelve in tryals elsewhere , as well as amongst us . an italian might well mistake in a concern of england ; yet take it not ill at my hands , that i have given you this upon his credit . 9. he appointed that four times every year , there should be kept conventions or meetings for several days , in such place as he himself should give order : in which meetings the judges sitting apart by themselves , should keep court and do justice . these are our four tserms . 10. he appointed other judges , who without appeal should exercise jurisdiction and judgment ; from whom as from the bosom of the prince , all that were ingaged in quarrels , addressing thither , might have right done them , and refer their controverlies to them . 11. he appointed other rulers or magistrates , who might take care to see misdemeanors punished ; these he called justices of peace . now one may well imagine , that this name of office is most certainly of a later date , and a foreign writer is to be excused by those rights which are afforded to guests and strangers ( since acting a busiris his part against them , would be downright barbarous ) i say he is to be excused so far , as not to have his mistakes in the history of the english nation , too heavily charged upon him . 12. in the primitive state of the kingdom after the conquest ( gervase of tilbury in his dialogue of the exchequer , saith , this is a thing handled down from our forefathers ) the kings had payments made them out of their lands , not in sums of gold or silver , but only in victuals or provisions : out of which the kings house was supplied with necessaries for daily use ; and they who were deputed to this service ( the purveyors ) knew what quantity arose from each several land . but yet as to soldiers pay or donatives , and for other necessaries concerning the pleas of the kingdom , or conventions , as also from cities and castles where they did not exercise husbandry or tillage ; in such instances , payments were made in ready mony . wherefore this institution lasted all the time of william the first , to the time of king henry his son , so that i my self ( gervase flourished in the reign of henry the second ) have seen some people , who did at set times carry from the kings lands , victuals or provisions of food to court. and the officers also of the kings house knew very well , having it upon account , which counties were to send in wheat , which to send in several sorts of flesh , and provender for the horses . these things being paid according to the appointed manner and proportion of every thing , the kings officers reckoned to the sheriffs by reducing it into a sum of pence ; to wit , for a measure of wheat to make bread for a hundred men , one shilling ; for the body of a pasture-fed beef , one shilling ; for a ram or a sheep four pence ; for the allowance of twenty horses likewise four pence : but in process of time , when as the said king was busie in remote parts beyond sea to appease tumults and insurrections ; it so happened , that ready mony was highly necessary for him to supply his occasions . in the mean time , there came in multitudes , a great company of husbandmen with complaints to the kings court , or which troubled him more , they frequently came in his way as he was passing by , holding up their ploughshares , in token that their husbandry was running to decay ; for they were put to a world of trouble , upon occasion of the provisions which they carried from their own quarters through several parts of the kingdom . thereupon the king being moved with their complaints , did by the resolved advice of his lords , appoint throughout the kingdom such persons , as he knew were , for their prudence and discretion , fit for the service . these persons going about , and that they might believe their own eyes , taking a view of the several lands , having made an estimate of the provisions which were paid out of them , they reduced it into a sum of pence . but for the total sum , which arose out of all the lands in one county , they ordered , that the sheriff of that county should be bound to the exchequer : adding this withal , that he should pay it at the scale . now the manner of paying , the tryal of the weight and of the metal by chymical operation , the melter or coyner , and the surveyor of the mint , are more largely handled and explained by my self in some other work of mine . 13. that he might the more firmly retain kent to himself , that being accounted as it were the key of england ; ( 't is the famous mr. camden tells the story ) he set a constable over dover-castle , and made the same person warden of the cinque ports , according to the old usage of the romans . those are hastings , dover , hith , rumney , and sandwich ; to which are joyned winchelsey and rye as principals , and other little towns as members . 14. to put the last hand to william , i add out of the archives , this law , not to be accounted among the last or least of his . william , by the grace of god , king of the english , to all counts or earls , viscounts or sheriffs , and to all french born , and english men , who have lands in the bishoprick of remigius , greeting . this remigius was the first who translated the episcopal see from dorchester to lincoln . be it known unto you all , and the rest of my liege subjects , who abide in england ; that i , by the common advice of my arch-bishops , and the rest of the bishops and abbots , and all the princes of my kingdom , have thought fit to order the amendment of the episcopal laws , which have been down to my time , in the kingdom of the angles , not well , nor according to the precepts of the holy canons , ordained or administred : wherefore i do command , and by my royal authority strictly charge ; that no bishop or arch-deacon , do henceforth hold pleas in the hundred concerning episcopal laws ; nor bring any cause which belongs to the government of souls ( i. e. to spiritual affairs ) to the judgment of secular men ; but that whosoever , according to the episcopal laws , shall for what cause or fault soever be summoned , shall come to a place which the bishop shall chuse and name for this purpose ; and there make answer concerning his cause , and do right to god and his bishop , not according to the hundred , but according to the canons and episcopal laws . for in the time of the saxon empire , there were wont to be present at those country meetings ( the hundred courts ) an alderman and a bishop , the one for spirituals , the other for temporals , as appears by king edgar's laws . chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . after the death of william , his second son william sirnamed rvfvs succeeded in his room . all justice of laws ( as florentius of worcester tells us ) was now husht in silence , and causes being put under a vacation without hearing , money alone bore sway among the great ones , ipsaque majestas auro corrupta jacebat . that is , and majesty it self being brib'd with gold , lay , as a prostitute , expos'd to th' hold . 15. the right or duty of first-fruits , or , as they are commonly called , the annats , which our kings claimed from vacant abbies and bishopricks , polydor virgil will have to have had its first original from rufus . now the popes of rome laid claim to them anciently ; a sort of tribute , which upon what right it was grounded , the council of basil will inform us , and by what opinion and resolution of divines and lawyers confirmed , francis duarenus in his sacred offices of the church will instruct us . 't is certain , that chronologers make mention , that at his death the bishopricks of canterbury , winchester and salisbury , and twelve monasteries beside , being without prelates and abbots , paid in their revenues to the exchequer . 16. he forbad by publick edict or proclamation ( sayes the same author ) that any one should go out of england without his leave and passport . we read , that he forbad anselm the arch-bishop , that he should not go to wait upon pope vrban ; but that he comprehended all subjects whatsoever in this his royal order , i confess i have not met with any where in my reading , but in polydor. 17. he did so severely forbid hunting of deer ( saith william of malmesbury ) that it was felony , and a hanging matter to have taken a stag or buck. chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hanberk . king edward's law restored . william , who had by direful fates been shewn to the world , was followed by his brother henry , who for his singular learning , which was to him instead of a royal name , was called beau-clerk . he took care of the common-wealth , by amending and making good what had slipt far aside from the bounds of justice , and by softning with wholsome remedies those new unheard of , and most grievous injuries , which ralph afterwards bishop of durham ( being lord chief justice of the whole kingdom ) plagued the people with . he sends letters of repeal to the high sheriffs , to the intent , that the citizens and people might enjoy their liberty and free rights again . see here a copy of them , as they are set down in matthew paris . henry by the grace of god king of england , to hugh of bockland , high sheriff , and to all his liege people , as well french as english in herefordshire , greeting . know ye , that i through the mercy of god , and by the common advice of the barons of the kingdom of england have been crowned king. and because the kingdom was opprest with unjust exactions , i out of regard to god , and that love which i bear towards you all , do make the holy church of god free , so that i will neither sell it , nor will i put it to farm , nor upon the death of arch-bishop , or bishop , or abbot , will i take any thing of the domain of the church , or of the men thereof , till a successor enter upon it . and all evil customs , wherewith the kingdom of england was unjustly oppressed , i do henceforward take away ; which evil usages i do here in part set down . 18. if any one of my barons , counts or others that hold of me , shall dye , his heir shall not redeem his land , as he was wont to do in the time of my father , but relieve it with a lawful and due relief . in like manner also shall the homagers or tenants of my barons relieve their lands from their lords with a lawful and just relief . it appears , that in the times of the saxons a hereot was paid to the lord at a tenants death , upon the account of provision for war ( for here in saxon signifies an army : ) and that which in our memory now in french is called a relief ( henry of bracton sayes , 't is an engagement to recognize the lord ) doth bear a resemblance of the ancient hereot . thereupon it is a guess , saith william lambard , that the normans being conquerors , did remit the hereot to the angles whom they had conquered and stripped of all kind of armour , and that for it they exacted money of the poor wretches . to this agrees that which is mentioned in the state of england concerning the nobles of berkshire . a tain or knight of the kings holding of him , did at his death for a relief part with all his arms to the king , and one horse with a saddle and another without a saddle . and if he had hounds or hawks , they were presented to the king , that if he pleased he might take them . and in an ancient sanction of conrade the first , emperour of germany , if a souldier that is tenant or lessee happen to dye , let his heir have the fee , so that he observe the use of the greater vavasors , in giving his horses and arms to the seniors or lords . john mariana takes notice , that the word seniors in the vular languages , spanish , italian and french , signifies lords , and that to have been in use from the time of charlemain's reign . but these things you may have in more plenty from the feudists , those who write concerning tenures . 19. if any of my barons or other men ( homagers or tenants ) of mine ( i return to king henry's charter ) shall have a mind to give his daughter , or sister , or niece , or kinswoman in marriage , let him speak with me about it . but neither will i take any thing of his for this leave and licence , nor will i hinder him from betrothing her , except he shall have a design of giving her to an enemy of mine . 20. if upon the death of a baron , or any other homager of mine , there be left a daughter that is an heiress , i will bestow her with the advice of my barons together with her land. 21. if upon the death of the husband , his wife be left without children , she shall have her dowry and right of marriage , as long as she shall keep her body according to law ; and i will not bestow her , but according to her own liking . and if there be children , either the wife , or some one else near of kin shall be their guardian and trustee of their land , who ought to be just . 22. i give order , that my homagers do in like manner regulate themselves towards the sons and daughters and wives of their homagers . 23. the common duty of money or coinage , which was taken through all cities and counties , which was not in the time of king edward , i do utterly forbid that henceforward this be no more done . 24. if any one of my barons or homagers shall be sick and weak , according as he himself shall give or order any one to give his money , i grant it so to be given ; but if he himself being prevented either by arms or by sickness , hath neither given his money , nor disposed of it to give , then let his wife , or children , or parents , and his lawful homagers for his souls health divide it , as to them shall seem best . and in canutus his laws , let the lord or owner at his own discretion make a just distribution of what he hath to his wife and children and the next of kin . but at this time , and long since , church-men have been as it were the distributors and awarders of the goods of such persons as dye intestate , or without making their wills , and every bishop as ordinary in his own diocess , is the chief judge in these cases . john stratford arch-bishop of canterbury saith it , and it is averred in the records of our law , that this jurisdiction also concerning wills , was of old long time ago in an ancient constitution , intrusted to the church by the consent of the king and peers . however , in what kings time this was done , neither does he relate , nor do i any where find , as william lindwood in his provincial acknowledgeth . it is a thing very well known , that after tryal of right , wills were wont to be opened in the ecclesiastical court even in the reign of henry the second ( ralph glanvill is my witness ) contrary to what order was taken in the imperial decrees of the romans . and peradventure it will appear so to have been before glanvill , as he will tell you , if you go to him ; although you have , quoted by my self some where , a royal rescript or order to a high sheriff , that he do justly and without delay cause to stand ( i. e. appoint and confirm ) a reasonable share to such an one ; that is , that the legatee may obtain and enjoy his right , what was bequested to him by the sheriffs help . i come back now to my track again . 25. if any one of my barons or homagers shall make a forfeit , he shall not give a pawn in the scarcity of his money , as he did in the time of my brother or my father , but according to the quality of his forfeiture : nor shall he make amends , as he would have done heretofore in my brothers or fathers time . 26. if he shall be convicted of perfidiousness or of foul misdemeanors , as his fault shall be , so let him make amends . 27. the forests by the common advice of my barons , i have kept in mine own hand , in the same manner as my father had them . 28. to those souldiers or knights who hold and maintain their lands by coats of male ( that is , per fee de hauberke , that they may be ready to attend their lords with habergeons or coats of male compleatly armed cap a pee ) i grant the plough-lands of their domainsacquitted from all gelds , and from every proper gift of mine , that , as they are eased from so great a charge and grievance , so they may furnish themselves well with horse and arms , that they may be fit and ready for my service , and for the defence of my realm . 29. i restore unto you the law of king edward , with other amendments , wherewith my father amended it . those amendments are put forth by lambard . hitherto out of those royal and general letters , directed to all the subjects . chap. vii . his order for restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy-members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions . 30. he did by his edict or proclamation , restrain the rapines , thefts , and rogueries of the courtiers ; ordering , that those who were caught in such pranks , should have their eyes with their stones pulled out . this malmesbury supplies us with . but florentius of worcester and roger hoveden give the account , that he punished thieves with death and hanging , otherwise than that pleasant and curious man thomas moor in his vtopia would have his people to be dealt with . yet i am inclined rather to believe malmesbury ; not only upon the authority of the man , in comparison of whose rose-beds ( if you well weigh the learning of that age ) the other pack of writers are but sorry low shrubs ; but also upon the account of a nameless monk , who in his book of the miracles of s. thomas of canterbury , tells us a story of one eilward , a poor mean fellow of kingsweston in berkshire , who being in the reign of king henry the second condemned of theft ( he had it seems stoln a pair of countrey gloves and a whetstone ) was punished by losing his eyes and privities ; who coming with devotion to s. thomas his tomb , got an intire restitution of his disappearing members and faculties , and was as good a man as ever he was . perchance in this he is no witness of infallible credit . let the story of iphis and ianthis , and that of ceneus try masteries with this for the wherstone ; to our purpose the writer is trusty enough . but in the first times of the normans , i perceive , that the halter was the ill consequence of theft . let it be lawful for the abbot of that church , if he chance to come in in the god speed , to acquit an high-way-man or thief from the gallows . they are the words of the patent with which william the conquerour , to expiate the slaughter of harald , consecrated a monastery to s. martin near hastings on the sea-coast of sussex , and priviledged it with choice and singular rights . 31. against cheats , whom they commonly call coyners ( 't is malmesbury speaks again ) he shewed his particular diligence , permitting no cheating fellow to escape scot-free , without losing his fist or hand , who had been understood to have put tricks upon silly people with the traffick of their falshood . for all that , he who hath tackt a supplement to florentius of worcester , and william gemeticensis give out , that the counterfeiters and imbasers of coin had , over and above those parts cut off , which galen accounts to be the principal instruments for propagating of the kind . to whom hoveden agrees , who writes in the life of henry the first , that coyners by the kings order being taken , had their right hands and their privy-members cut off . upon this account sure , that he that was guilty of such a wicked crime , should have no hope left him of posterity , nor the common-wealth be in any further fear of those who draw villainous principles from the loins of those that beget them . now at this very time and in former ages too , this piece of treason was punished with halter and gallows ; and that also of theft not only in england , but almost in all countreys , especially robbery upon the high-way , which is committed by those who lay wait to surprize passengers as they travel along upon one or other side of them ; whence not only in the latin , but in the holy language also , a high-way-man hath his name . and truly among the ancients guelding was lookt upon as a kind of death . the apostles canons give him the character and censure of a manslayer , who cuts off his own privities ( who lives all his life a batchelor , say the talmudists ) and he who cuts off another mans , is in danger of the cornelian law concerning murderers and cut-throats ; and so was it heretofore among the english. 32. he ordered ( they are hoveden's words ) that no half-penny , which also he commanded should be made round , or farthing also , if it were intire , should be refused . 33. he corrected the merchants false eln ( so sayes the monk of malmesbury ) applying the measure of his arm , and proposing that to all people over england . 34. he gave order to the courtiers , in whatsoever cities or villages he were , how much they were to take of the countrey people gratis , and at what price to buy things ; punishing offendors herein either with a great fine of money , or with loss of life . chap. viii . the regality claimed by the pope , but within a while resumed by the king. the coverfeu dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war. 35. anselm arch-bishop of canterbury labours earnestly with the pope and his party , and at length obtains it with much ado , that from that time forward ( you have it in florilegus after other writers ) never any one should be invested with a pastoral staff or a ring into a bishoprick or abbacy by the king , or any lay-person whatsoever in england , ( added out of malmesbury ) retaining however the priviledge of election and regality . there was a sharp bickering about this business betwixt the king and anselm ; and so between the popes paschalis and calixtus and henry about that time emperour . both of them at least pretendedly quit their right ; our king humouring the scene according to the present occasion . for after anselm's death , he did invest rodulphus that came in his room by a ring and a pastoral staff. 36. he restored the night-torches or lights which william the first had forbidden ; forasmuch as he now had less reason to apprehend any danger from them , the kingdom being in a better and firmer posture . 37. to make up a portion for mawd the kings daughter , married to henry the emperour , every hide of land paid a tribute of three shillings . here polydore makes his descant . afterward , sayes he , the rest of the kings followed that course of raising portions for the bestowal of their daughters ; so tenacious hath posterity alway been of their own advantages . it is scarce to be doubted , that the right of raising money for the marrying of the lords daughters by way of aid or subsidy upon the tenants or dependants , is of a more ancient original . neither would i fetch it from the mutual engagement of romulus his patrons and clients , or landlords and tenants , or from suetonius his caligula : rather from the old customs of the normans , more ancient than king henry ; where that threefold tribute is explained by the name of aid , which the patent granted by king john in favour of publick liberty mentions in these words : i will impose no escuage or aid in our realm , but by the common advice of our realm ; unless it be to ransom our body , and to make our first-born son a soldier or knight , and to marry our eldest daughter once . 38. some ascribe that law to henry , which lawyers call the courtesie of england ; whereby a man having had a child by his wife , when she dyes , enjoyes her estate for his life . 39. he made a law , that poor shipwrackt persons should have their goods restored to them , if there were any living creature on ship-board , that escaped drowning . forasmuch as before that time , whatsoever through the misfortune of shipwrack was cast on shoar , was adjudged to the exchequer ; except that the persons who suffered shipwrack and had escaped alive , did themselves within such a time refit and repair the vessel . so the chronicle of the monastery of s. martin de bello . this right is called wreck , or if you will , uareck , of the sea. how agreeable to the law of nations , i trouble not my self to enquire . that more ancient custom , is as it were suitable to the norman usage . now at this time our lawyers ( and that the more modern law of edward the first ) pass judgement according to the more correct copy of king henry . and they reckon it too among the most ancient customs of the kingdom . did therefore king richard order , or did hoveden relate this to no purpose , or without any need ? if one who suffers shipwrack dye in the ship , let his sons or daughters , his brethren or sisters have what he left , according as they can shew and make out that they are his next heirs . or if the deceased have neither sons nor daughters , nor brothers nor sisters , the king is to have his chattels . can one imagine , that this law he made at messina , when he was engaged in war , was calculated only for that time or place ? certainly in the archives there is elsewhere to be met with as much as this . 40. that he might with a stout army bear the brunt of baldwin earl of flanders and louis king of france , who had conspired , being bound by mutual oaths to one another with the duke of anjou , to take away from king henry by force of arms the dutchy of normandy , he first of all ( t is polydore avers it ) laid a heavy tax upon the people , to carry on the new war ; which thing with the kings that followed after , grew to be a custom . he was the last of the normans of a male descent , and as to the method of our undertaking , here we treat of him last . chap. ix . in king stephen's reign all was to pieces . abundance of castles buili . of the priviledge of coming . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament . as of old , unless the shields were laid up , there was no dancing at weddings ; so except arms be put aside , there is no pleading of laws . that antipathy betwixt arms and laws , england was all over sensible of , if ever at any time , in the reign of k. stephen , count of blois , king henry's nephew by his sister adela . for he did not only break the law and his oath too to get a kingdom , but also being saluted king , by those who perfidiously opposed mawd the right and true heir of king henry , he reigned with an improved wickedness . for he did so strangely and odly chop and change every thing ( it is malmsbury speaks it ) as if he had sworn only for this intent , that he might shew himself to the whole kingdom , a dodger and shammer of his oath . but , as he saith , — perjuros merito perjuria fallunt ? that is , such men as perjuries do make their trade , by their own perjuries most justly are betray'd . they are things of custom to which he swore , and such as whereby former priviledges are ratified , rather than new ones granted . however , some things there are , that may be worth the transcribing . 41. castles were frequently raised ( 'tis nubrigensis relates it ) in the several counties by the bandying of parties ; and there were in england in a manner as many kings , or rather as many tyrants , as lords of castles , having severally the stamping of their own coin , and a power of giving law to the subjects after a royal manner . then was the kingdom plainly torn to pieces , and the right of majesty shattered , which gains to it self not the least lustre from stamping of money . though i know very well , that before the normans , in the city of rochester , canterbury , and in other corporations and towns , abbots and bishops had by right of priviledge their stampers and coiners of money . 42. next to the king , theobald arch-bishop of canterbury presided over the council of london ( where there were also present the peers of the realm ) which buzzed with new appeals . for in england ( t is henry of huntington sayes it ) appeals were not in use , till henry bishop of winchester , when he was legate , cruelly intruded them to his own mischief . wherefore what cardinal bellarmin has writ , beginning at the synod of sardis , concerning the no body knows how old time of the universal right of appealing to the pope of rome , does not at all , as to matter of fact , seem to touch upon this kingdom of ours by many and many a fair mile . 43. in the time of king stephen ( fo 't is in the polycraticon of john of salisbury ) the roman laws were banisht the realm , which the house of the right reverend theobald lord primate of britanny had fetcht or sent for over into britanny . besides , it was forbidden by royal proclamation , that no one should retain or keep by him the books . if you understand the laws of the empire ( i rather take them to be the decrees of the popes ) it will not be much amiss , out of the parliament records to adjoyn these things of later date . in the parliament holden by richard of bourdeaux , which is said to have wrought wonders , upon the impeachment of alexander nevil arch-bishop of canterbury , robert uere duke of ireland , michael pole earl of suffolk , thomas duke of glocester , richard earl of arundel , thomas beauchamp earl of warwick , and others , that they being intrusted with the management of the kingdom , by soothing up the easie and youthful temper of the king , did assist one another for their own private interest , more than the publick , well near to the ruine and overthrow of the government it self ; the common lawyers and civilians are consulted with , about the form of drawing up the charge ; which they answer all as one man , was not agreeable to the rule of the laws . but the barons of parliament reply , that they would be tyed up to no rules , nor be led by the punctilioes of the roman law , but would by their own authority pass judgement ; pur ce que la royalme d' angleterre n' estoit devant ces heures , n'y à l' entent de nostre dit seigneur le roy & seigneurs de parlament unque ne serra rules ne gouvernes per la loy civil : that is , inasmuch as the realm of england was not before this time , nor in the intention of our said lord the king and the lords of parliament ever shall be ruled or governed by the civil law. and hereupon the persons impleaded are sentenced to be banished . but here is an end of stephen : he fairly dyed . chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted . at length , though late first , henry the son of jeoffry plantagenet , count of anger 's by the empress mawd , came to his grandfatherrs inheritance . having demolished and levelled to the ground , the castles which had , in king stephen's time , been built , to the number of eleven hundred and fifteen ; and having retrieved the right of majesty into its due bounds , he confirmed the laws of his grandfather . moreover , at clarendon in wiltshire , near salisbury , john of oxford being president , by the kings own mandate , there being also present the arch-bishops , bishops , abbots , priors , earls , barons , and peers of the realm , other laws are recognized and passed ; whilst at first those who were for the king on one side , those who were for the pope on the other , with might and main stickle to have it go their way ; these latter pleading , that the secular court of justice did not at all suit with them , upon pretence that they had a priviledge of immunity . but this would not serve their turn ; for such kind of constitutions as we are now setting down , had the vogue . 44. if any controversie concerning the advowson and presentation of churches , arise betwixt laymen , or betwixt laymen and clergymen , or betwixt clergymen among themselves ; let it be handled and determined in the court of the lord our king. 45. the churches which are in the kings fee , cannot be given to perpetuity without his assent and concession . even in the saxons times it seems it was not lawful , without the kings favour first obtained , to give away estates to monasteries ; for so the old book of abington says . a servant of king ethelred's called vlfric spot , built the abby of burton in staffordshire , and gave to it all his paternal estate , appraised at seven hundred pounds ; and that this donation might be good in law , he gave king ethelred three hundred marks of gold for his confirmation of it , and to every bishop five marks , and over and above to alfric arch-bishop of canterbury , the village of dumbleton . 46. clergymen being arighted and accused of any matter whatsoever , having been summoned by the kings justice , let them come into his court , there to make answer to that , of which it shall be thought fit that there answer ought to be made : so that the kings justice send into the court of holy church , to see after what manner the business there shall be handled . 47. if a clergyman shall be convicted , or shall confess the fact ; the church ought not from thenceforth to give him protection . 48. it is not lawful for arch-bishops , bishops , and persons of the kingdom , to go out of the realm without leave of our lord the king : and if they do go out , if the king please , they shall give him security , that neither in going , nor in returning , or in making stay , they seek or devise any mischief or damage against our lord the king. whether you refer that writ , we meet with in the register or record , ne exeas regnvm , for subjects not to depart the kingdom to this time or instance , or with polydore virgil to william rufus , or to later times , is no very great matter : nor will it be worth our while , curiously to handle that question : for who , in things of such uncertainty , is able to fetch out the truth ? nor will i abuse my leasure , or spend time about things unapproachable . an sit & hic dubito , sed & hic tamen auguror esse . says the poet in another case : and so say i. whether it be here or no , is a question , i confess : and yet for all that , i trow , here it is too , as i guess . out of king john's great charter , as they call it , you may also compare or make up this repeal of that law in part . let it be lawful henceforward for any one to go out of our realm , and to return safely and securely by land and by water , upon our royal word ; unless in time of war , for some short time , for the common advantage of the kingdom ; excepting those that are imprisoned and out-lawed according to the law of the kingdom , and any people or nation , that are in actual war against us : and merchants , concerning whom let such order be taken , as is afore directed . i return to king henry . 49. excommunicate persons ought not to give suretiship for the remainder , nor to take an oath ; but only to find surety and pledge , to stand to the judgment of the church , that they may be absolved . 50. persons of the laity ought not to be accused or impleaded but by certain and legal accusers and witnesses , in the presence of the arch-bishop or bishop : so that the arch-deacon may not lose his right , nor any thing which he ought to have therefrom . 51. if they be such persons who are in fault , as no one will or dare to accuse ; let the sheriff being thereunto required by him , cause twelve legal men of the voisinage or of the village , to swear before the bishop , that they will manifest or make known the truth of the matter according to their conscience . 52. let no one who holds of the king in capite , nor any one of the kings officers or servants of his domain , be excommunicated ; nor the lands of any of them be put under an interdict or prohibition ; unless first our lord the king , if he be in the land , be spoke with ; or his justice , if he be out of the land , that they may do right by him : and so that what shall appertain to the kings court , may be determined there ; and as to what shall belong to the ecclesiastical court , it may be sent thither and there treated of . chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergyman and a layman , where to be tryed . in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave . 53. concerning appeals , if at any time there shall be occasion for them , they are to proceed from the arch-deacon to the bishop , and from the bishop to the arch-bishop ; and if the arch-bishop shall be wanting in doing of justice , they must come in the last place to our lord the king ; that by his precept or order , the controversie may be determined in the arch-bishops court , so as that it ought not to proceed any further without the kings assent . this law , long since , the famous sir edward coke made use of , to assert and maintain the kings ecclesiastical jurisdiction , as a thing not of late taken up by him , but anciently to him belonging . 54. if a claim or suit shall arise betwixt a clergyman and a lay-man , or betwixt a layman and a clergyman , concerning any tenement which the clergyman would draw to the church , and the lay-man to a lay-fee ; it shall by the recognizance of twelve legal men , upon the consideration and advisement of the lord chief justice , be determined , whether the tenement do appertain to alms ( i. e. to the church ) or to lay-estate , before the kings own justice . and if it shall be recognized or adjudged to appertain to alms ; it shall be a plea in the ecclesiastical court : but if to a lay-fee , unless they both avow or avouch the tenement from the same bishop or baron , it shall be a plea in the kings court. but if each of them shall for that fee avouch the same bishop or ●aron , it shall be a plea in that bishops or barons court ; so that he who was formerly seised , shall not , by reason of the recognizance made , lose the seisin , till it shall by plea be deraigned . 55. he who shall be of a city , or a castle , or a burrough , or a manner of the kings domain , if he shall be cited by an arch-deacon or a bishop , upon any misdemeanour , upon which he ought to make answer to him , and refuse to satisfie upon their summons or citations ; they may well and lawfully put him under an interdict or prohibition ; but he ought not to be excommunicated . ( by the way ) seasonably remark out of the pontificial law , that that excommunication , they call the greater , removes a man and turns him out from the very communion and fellowship of the faithful ; and that an interdict , as the lesser excommunication , separates a man , and lays him aside only , forbidding him to be present at divine offices , and the use of the sacraments . ) i say he ought not to be excommunicated , before that the kings chief justice of that village or city be spoken with , that he may order him to come to satisfaction : and if the kings justice fail therein , he shall be at the kings mercy , and thereupon or after that the bishop may punish him upon his impleadment , with the justice of the church . 56. arch-bishops , bishops , and all persons whatsoever of the kingdom , who hold of the king in capite , and have their possessions from our lord the king in nature of a barony , and thereupon make answer to the kings justices and officers , and perform all rights and customs due to the king as other barons do ; they ought to be present at the tryals of the court of our lord the king with his barons , until the losing of limbs or death , be adjudged to the party tried . 57. when an arch-bishoprick or bishoprick , or abbacy , or priory of the kings domain shall be void ; it ought to be in his hand , and thereof shall he receive all the profits and issues as belonging to his domain : and when the church is to be provided for , our lord the king is to order some choice persons of the church , and the election is to be made in the kings own chappel , by the assent of our lord the king , and by the advice of those persons of the kingdom , whom he shall call for that purpose ; and there shall the person elect ( saving his order ) before he be consecrated , do homage and fealty to our lord the king , as to his liege lord , for his life and limbs , and for his earthly honour . 58. if any one of the nobles or peers do deforce to do justice to an arch-bishop , bishop , or arch-deacon , for themselves or those that belong to them ; the king in this case is to do justice . 59. if peradventure any one shall deforce to the lord the king his right ; the arch-bishop , bishop , and arch-deacon , ought then in that case to do justice ( or to take a course with him ) that he may give the king satisfaction . 60. the chattels of those who are in the kings forfeit , let not the church or church-yard detain or keep back against the justice of the king ; because they are the kings own , whether they shall be found in churches or without . 61. pleas of debts which are owing , either with security given , or without giving security , let them be in the kings court. 62. the sons of yeomen or country people , ought not to be ordained or go into holy orders , without the assent of the lord , of whose land they are known to have been born . chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time . i confess there is a great difference between these laws and the statutes of clarendon , put forth in the larger history of matthew paris , i mean those mangled ones : and in some places , what through great gaps of sence , disjointings of sentences , and misplacings of words , much depraved ones , whose misfortune i ascribe to the carelesness of transcribers . but the latter end of a manuscript book commonly called quadrilegus , ( wherein the life of thomas , arch bishop of canterbury , is out of four writers , to wit , hubert of boseham , john of salisbury , william of canterbury , and alan , abbot of tewksbury , digested into one volume ) hath holp us to them amended as you may see here , and set to rights . it is none of our business to touch upon those quarrels , which arose upon the account of these laws betwixt the king and thomas of canterbury : our historians do sufficiently declare them . in the mean time , may our poet of glocester have leave to return upon the stage , and may his verses written in ancient dialect , comprising the matter which we have in hand , be favourably entertained . no man ne might thenche the love that there was bitwene the k. h. and the good man s. thomas ; the diuel had enui therto , and sed bitwen them feu , alas , alas thulke stond , vor all to well it greu . uor there had ere ibe kings of luther dede as w. bastard , and his son w. the rede . that luther laws made inou , and held in al the lond the k. nold not beleue the lawes that he fond , ne that his elderne hulde , ne the godeman s. thomas thought that thing age right neuer law nas . ne sothnes and custom mid strength up i●old , and he wist that vre dere lourd in the gospel told that he himselfe was sothnes , and custum nought , theruore luther custumes he nould graent nought . ne the k. nould bileue that is elderne ad i●old , so that conteke sprung bituene them manifold . the k. drou to right law mani luther custume , s. thomas they withsed , and granted some . the lawes that icholle now tell he granted vawe . zuf a yuman hath a sone to clergi idraw he ne sall without is lourdes icrouned nought be uor yuman ne mai nought be made agen is lourds will free . those that are born slaves , or that other sort of servants termed villains , he calls by the name of yumen . we call free born commoners , alike as servants , as it were with a badg of ignobleness or ungentility , yeomen ; and those who of that number are married men , gommen ; for it was gomman in the old dutch , not goodman , as we vulgarly pronounce it , which signified a married man. words , as i am verily perswaded , made from the latin , homines ; which very word , by ennius and festus , according to the oscan idiom , is written hemones , and in our language , which comes pretty near that spelling of the poet , yeomen . and the etymon or origination of the word it self , is very much confirmed by the opinion of some of our own country lawyers , who take ( but with a mistake ) homines , i. e. men that do homage , and nativos , i. e. born slaves , in ancient pleas to be terms equipollent , and of the same importance . the constitution of clarendon style those rusticks or countrymen , whom he calls yumen ; and rusticks and villains ( those among the english were slaves or servants ) were anciently synonymous words , meaning the same thing . for whereas henry londres , arch bishop of dublin , had treacherously committed to the flames , the charters of his rustick tenants , the free tenants called him , as we read in the annals of ireland , scorch-uillein ; as if one would say , the burner or firer of villains . nor should i think it unseasonable in this place , to take notice of a mistake or oversight of thomas spott , a monk of canterbury ; who writes , that the english , before the norman conquest , knew nothing of private servitude or bondage ; i. e. had no such thing as villanage among them : for he is convinced both by the maid of andover , king edgar's miss , as also by the laws signed and sealed by king ina , and by that donation or grant torald of bukenhale made to walgate , abbot of crowland : wherein among other things a great many servants are mentioned , with their whole suits and services . take it also out of the synod of london , anselme being president of it ) since here belike there is mention made of servants ) that no one henceforward presume to use that ungodly practice , which hitherto they were wont in england to do , to sell , or put to sale , men , ( that is , servants ) like brute beasts . but we do not do civilly to interrupt the poet : we must begin again with him ; he once more tunes his pipes . another thing he granted eke as ye mow novise ; yuf a man of holi chirch hath eni lay see , parson , other what he be , he ssal do therevore kings service that there valth , that is right ne be vorlore , in plaiding and in assise be and in judgement also . bote war man ssal be bilemed , other to deth ido . be granted eke yuf eni man the kings traitor were , and eni man is chateux to holi chirch here that holi chirch ne solde nought the chateux there let that the k. there other is as is owne is ne wette . uor all that the felon hath the kings it is and eche man mai in holi church is owne take iwis . he granted eke that a chirche of the kings fe in none stede ene and ever ne ssold igiue be as to hous of religion , without the kings leve , and that he other the patron the gift first gave . s. thomas granted well these and other mo and these other he withsede that did him well woe . 1. yuf bituene twei leud men were eni striving , other bituene a leud and a clerc , for holi chirch thing as vor vouson of chirch whether shold the chirch giue , the k. wold that in his court the ple ssold be driue ; uor as much as a leud man that the o parti was chanliche was under the k. & under no bishop nas . chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . leudemen signifies laymen , and more generally all illiterate persons . that which this author of ours calls leudemen , the interpreters of law , both our common and the canon law call laicks , or laymen . for as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. people , as it is derived by caesar germanicus , upon araetus his phaenomena after pindar , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. from a stone , denotes a hard and promiscuous kind of men ; so the word leudes imports the illiterate herd , the multitude or rabble , and all those who are not taken into holy orders . justus lipsiu● in his poliorceticks , discourses this at large ; where he searches out the origination of leodium or liege , the chief city of the eburones in the netherlands . as to what concerns our language , john gowes and jeoffry chaucer , who were the reformers and improvers of the same in verse , do both make it good . thus jeoffry . no wonder is a leude man to rust if a priest be foule on whom we trust . however , that it signifies an illiterate or unlearned person , as well as one not yet in orders ; what he saith elsewhere , informs us . this every leud uicar and parson can say . and peter of blois , and others , use this expression ; as well laymen as scholars . but let not chaucer take it ill , that here he must give way to our glocester muse. ii. another was that no clere , ne bishop nath mo , ne ssolde without kings leue out of the lond go . and that hii ssolde suere up the boke ywis . that hii ne sold purchas no uvel the k. ne none of is . iii. the third was yuf eni man in mausing were i brought , and suth come to amendment , ne age were nought that he ne suore vp the boc , ac borowes find solde to stand to that holy chirch there of him toky wold . iv. the verth was that no man that of the k. buld ought in cheife or in eni servise in mausing were ibrought , bote the wardeins of holy chirch that brought him thereto , the k. sede or is bailifes wat he ad misdo , and loked verst were thei to amendment it bring , and bote hii wolde by their leue do the mausing . v. the vift was , that bishoprikes and abbeis also that vacans were of prelas in the k. hand were ido , and that the k. sold all the land as is owne take , uort at last that him lust eni prelat there make . and than thulke prelat sould in is chapel ichose be . of is clarks which he wuld to such prelace bise . and than wan he were ichose in is chapel right yere , homage he solde him do ar he confirmed were . vi. the sixt was yuf eni play to chapitle wore idraw , and eni man made is appele , yuf me dude him unlaw , that to the bishop from ercedeken is appele sold make , and from bishop to arcebissop and suth none other take , and but the ercebisops court to right him wold bring , that he sold from him be cluthe biuore the king. and from the k. non other mo so that attan end plaining of holi chirch to the k. shold wend. and the k. amend solde the ercebissops dede , and be as in the popes stude , and s. thomas it withsede . vii . the seuethe was that plaiding that of det were to yeld wel thoru truth i●light , and nought i●old nere althei thoru truth it were , that ple sold be ibrought biuore the k. and is bailies and to holy chirch nought . viii . the eighth that in the lond citation none nere thoru bull of the pope of rome , and clene bileued were . ix . the nithe was that peters pence that me gadereth manion the pope nere nought on isend , ac the k. echone . x. the tethe was yuf eni clarke as felon were itake , and vor felon iproved and ne might it not forsake , that me sold him verst disordein and suth thoru there law . and thoru judgement of the land hong him other to draw . uor these and vor other mo the godeman s. thomas fleu verst out of england and eke imartred was , uor he sei there nas hote o way other he must stiffe be other holy chirch was isent , that of right was so fre . chap. xiv . the pope absolves thoms a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a scisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence . to the laws of clarendon , which i spoke of , the states of the kingdom ( the baronage ) and with them the arch-bishop of canterbury , took their oaths in solemn manner , calling upon god. there were embassadors sent to pope alexander the third , that there might be that bottom also , that he would further confirm and ratifie them . but he was so far from doing that , that he did not only pretend that they did too much derogate from the priviledge of the clergy , and wholly refuse to give his assent to them ; but also having absolved thomas the arch-bishop , at his own request , from the obligation of that oath he had bound himself with , he condemned them as impious , and such as made against the interest and honour of holy church . king henry , as soon as he heard of it , took it , as it was fit he should , very much in dudgeon ; grievously and most deservedly storming at the insolence of the roman court , and the treachery of the bishop of canterbury . immediately letters were dispatcht to the several sheriffs of the respective counties , that if any clerk or layman in their bayliwicks , should appeal to the court of rome , they should seise him and take him into firm custody ; till the king give order what his pleasure is : and that they should seise into the kings hand , and for his use , all the revenues and possessions of the arch-bishops clerks ; and of all the clerks that are with the arch-bishop ; they should put by way of safe pledge the fathers , mothers , and sisters , nephews and neeces , and their chattels , till the king give order what his pleasure is . i have told the story out of matthew paris . you see in this instance a penalty , where there is no fault : it affects or reaches to their kindred both by marriage and blood ? a thing not unusual in the declension of the roman empire after angust●●s his time . but let misdemeanors hold or oblige those who are the authors of them ( was the order of arcali●s and honorius , emperors , to the lord chief justice e●t●chianus ) nor let the fear of punishment proceed further than the offence is found . a very usual right among the english , whereby bating the taking away the civil rights of blood and nobility , none of the posterity or family of those who lose their honours , do for the most hainous crimes of their parents , undergo any penalties . but this was not all , in those letters i mentioned , he added threats also . 63. if any one shall be sound carrying letters or a mandate from the pope , or thomas , arch-bishop of canterbury , containing an interdiction of christian religion in england , let him be seised and kept in hold , and let justice be done upon him without delay , as a traitor against the king and kingdom . this roger of hoveden stands by , ready to witness . 64. let the bishops of london and norwich be summon'd , that they may be before the kings justices to do right ( i. e. to answer to their charge , and to make satisfaction ) that they have contrary to the statutes of the kingdom , interdicted the land of earl hugh , and have inflicted a sentence of excommunication upon him . this was hugh bigod , earl of norfolk . 65. let st. peters pence be collected , or gathered , and kept safe . those pence were a tribute or alms granted first by ina king of the west-saxons ; yearly at lammas to be gathered from as many as had thirty pence ( as we read it in the confessor's laws ) of live-mony in their house . these were duly , at a set time , paid in , till the time of henry the eighth , when he set the government free from the papal tyranny : about which time polydore virgil was upon that account in england , treasurer , or receiver general . i thought fit to set down an ancient brief account of these pence , out of a rescript of pope gregory to the arch-bishops of canterbury and york , in the time of king edward the second . diocess li. s. d. canterbury 07 18 00 london 16 10 00 rochester 05 12 00 norwich 21 10 00 ely 05 00 00 lincoln 42 00 00 coventry 10 05 00 chester 08 00 00 winchester 17 06 08 exceter 09 05 00 worcester 10 05 00 hereford 06 00 00 bath 12 05 00 york 11 10 00 salisbury 17 00 00 it amounts to three hundred marks and a noble ; that is , two hundred pounds sterling , and six shillings and eight pence . you are not to expect here the murder of thomas a becket , and the story how king henry was purged of the crime , having been absolved upon hard terms . conveniunt cymbae vela minora me● . my little skiff bears not so great a sail. chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers . not long after , the king and the barons meet at northampton . they treat concerning the laws and the administration of justice : at length the kingdom being divided into six provinces or circuits , there are chosen from among the lawyers , some , who in every of those provinces might preside in the seat of justice , commissioned by the name of itinerant justices , or justices in eyre . see here the list and names of those justices out of hoveden . hugh de cressi . walter fitz-robert . robert mantel . for norfolk . suffolk . cambridge . huntington . bedford . buckingham . essex . hertford . hugh de gundeville . william fitz-ralph . william basset . for lincoln . nottingham . darby . stafford . warwick . northampton . leicester . robert fitz-bernard . richard gifford . roger fitz reinfrai . for kent . surrey . southampton . sussex . barkshire . oxford . william fitz-steeven . bertam de uerdun . turstan eitz-simon . for hereford . glocester . worcester . shropshire . ralph fitz-steeven . william ruffus . gilbert pipard . for wiltshire . dorsetshire . somersetshire . devonshire . cornwall . robert de wals. ralph de glanville . robert pikenot . for york . richmond . lancashire . copland . westmoreland . northumberland . cumberland . these he made to take an oath , that they would themselves , bona fide , in good faith , and without any deceit or trick , ( 't is the same author whose words i make use of ) keep the under-written assizes , and cause them inviolably to be kept by the men of the kingdom . he mentions them under this specious title . the assises of king henry , made at clarendon , and renewed at northampton . 66. if any one be called to do right ( or be served with a writ ) before the justices of our lord the king , concerning murder , or theft , or robbery , or the receiving and harbouring of those who do any such thing ; or concerning forgery , or wicked setting fire of houses , &c. let him upon the oath of twelve knights of the hundred ; or if there be no knights there , then upon the oath of twelve free and lawful men , and upon the oath of four men out of each village of the hundred , let him go to the ordeal of water , and if he perish , i. e. sink , let him lose one foot . the knights who are wanting here , are perhaps those who hold by knights service , or if you had rather , that hold by fee ; betwixt whom , and those who served in war for wages or pay , which in the books of fees are called solidatae ( the same peradventure as by caesar are termed soldurii , that is , soldiers ; by nicolaus damascenus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by our monks , bracton , otho frisingensis , and radevicus , in the camp laws of barbarossa , are styled servientes , that is , serjeants ) there is an apparent difference ; both of them being placed far below the dignity of those honorary knights , who are called equites aurati . but yet i do very well know , that these honorary knights also were of old time , and are now by a most certain right called forth to some tryals by jury . to the kings great or grand assise ( i say ) and to a suit of law contested , when a baron of parliament is party on one side , i. e. plaintiff or defendant . to the assise , in that it is the most solemn and honourable way of tryal , and that which puts an utter end to the claim of the party that is cast . to such an unequal suit , that there may be some equality of name or title as to some one , at least , of the judges ( for the jury or twelve men are upon such occasion judges made ) and as to the more honourable of the two parties , whether plaintiff or defendant . for the peers of parliament , who are the greater nobles ( amongst whom by reason of their baronies , arch-bishops and bishops , heretofore a great many abbots ) such as are dukes , marquesses , earls , viscounts , and barons ; who though they be distinguished by order and honorary titles , yet nevertheless they sit in parliament , only as they are barons of the realm . and those who at the kings pleasure are called in by letters of summons , as lawyers term it , are styled chevaliers , not barons . for that of chevalier was a title of dignity ; this of baron anciently rather of wealth , and great estate . which title only such writs of summons bestowed till richard the seconds time , who was the first that by patent made john bea●champ of holt , baron of kiderminster : now both ways are in fashion . chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme clear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church . 67. at northampton it was added for the rigour of justice , ( remember what was said in the foregoing chapter ) that he should in like manner lose his right hand or fist with his foot , and forswear the realm , and within forty dayes go out of the kingdom into banishment . ( he had the favour of forty dayes allowed him , so saith bracton , that in the mean time he might get help of his friends to make provision for his passage and exile . ) and if upon the tryal by water he be clean , i. e. innocent , let him find pledges , and remain in the realm , unless he be arighted for murder , or any base felony , by the community or body of the county , and of the legal knights of the countrey , concerning which , if he be arighted in manner aforesaid , although he be clean by the tryal of water ; nevertheless let him quit the realm within forty dayes , and carry away his chattels along with him , saving the right of his lords , and let him forswear the realm at the mercy of our lord the king. here let me say a little concerning the tryal by fire and water , or the ordeals . it is granted , that these were the saxons wayes of tryal , rashly and unadvisedly grounded upon divine miracle . they do more appertain to sacred rites , than to civil customs ; for which reason we past them by in the former book , and this place seemed not unseasonable to put the reader in mind of them . he who is accused , is bound to clear himself ( 't is ralph glanvill writes this ) by the judgement of god , to wit , by hot burning iron , or by water , according to the different condition of men : by burning hot iron , if it be a free-man ; by water , if he be a countrey-man or villain . the party accused did carry in his hand a piece of iron glowing hot , going for the most part two or three steps or paces along , or else with the soles of his feet did walk upon red hot plough-shares or coulters , and those , according to the laws of the franks and lombards , nine in number . the lady emme the confessor's mother being impeached of adultery with aldwin bishop of winton , was wonderfully cleared by treading upon so many , and is famous for it in our histories , being preserved safe from burning , and proved innocent from the crime . there were two sorts of watery ordeal or tryal by water ; to wit , cold or scalding hot . the party was thrown into the cold water , as in some places at this day witches are used : he who did not by little and little sink to the bottom , was condemned as guilty of the crime , as one whom that element , which is the outward sign in the sacrament of regeneration , did not admit into its bosome . as to scalding water , ones arm in that manner thrust in up to the elbow , made a discovery of the truth ; and aelstan a monk of abendon , afterward bishop of shirburn , thrusting in his bare hand into a boiling cauldron , shewed himself with some pride to his abbot . but that they say , that rusticks or vassals only were tryed by water , ( for water is ascribed to the earthly and ignoble nature , fire to the heavenly ; so that from the use of fire peculiar to man , firmianus lactantius hath fetcht an argument for the immortality of the soul ) that this is not altogether so true , is made out by that one example of john , a noble and rich old man , who in the time of king henry the second , when , being charged with the death of his brother the earl of ferrers , he could not acquit himself by the watery tryal , was hang'd on a gallows . whence or by what means both these customs were brought in among christians , 't is none of my business to make an over strait inquiry . i remember that fire among the ancients was accounted purgative ; and there is one in a tragedy of sophocles intitled antigone , who of his own accord profest to king creon , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 — that in his hands be red-hot gads would kéep , and over burning gleads would bare-foot créep . ●o shew himself innocent as to the burial of polynices . i pass by in silence that pythagorical opinion , which placeth fire in the centre of the universe , where jupiter hath his prison ; which fire some , however the peripateticks stiffly oppose it , would have to be in plain terms the sun , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . who all things overlooks , and all things hears . yet i shall not omit this , that in the holy bible the great and gracious god hath of a truth discovered himself to mortal conception in the very name of fire , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as a thing agreeable to divinity , as saith john reuchlin ; and that s. paul hath , according to the psalmists mind , stiled the ministers of god , a flame of fire . and indeed to abuse the holy scriptures , by mis-interpreting them , is a custom too ancient and too too common . homer and virgil both sing of — imperjuratam stygiamque paludem , dii cujus jurare timent & fallere numen . that is , — th' unperjur'd stygian lake , whose name the gods do fear in vain to take . we read of the infants of the celts , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . try'd in the streams of sacred flood , whether of right or of ba●e blood ; as it is in the greek epigrams : of the fountains of sardinia , in solinus : of the moist februa , or purifications by water , in ovids fastorum : and of those rivers that fell from heaven , and their most wonderful and hidden natures , among natural philosophers . but most of these things were not known peradventure in our ordeals . yet martin del rio , a man of various reading and exquisite learning , hath in his magical inquiries offered a conjecture , that the tryal by water crept into use from a paltry imitation of the jews cup of jealousie . truth is , a great many instances both of this way of trying by water and of that by fire , are afforded by the histories of the danes , saxons , germans , franks , spaniards , in a word , of the whole christian world. an quia cunctarum concordia semina rerum , sunt duo discordes ignis & vnda dei , junxerunt elementa patres ? was it , saith the poet , 'cause the two diff'ring gods , alwayes at ods , that of water , that of fire , which yet in harmony conspire the seeds of all things fitly joyn'd ; therefore our fathers have these two combin'd . or was it , because that the etymologie of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hashamaim , that is , heaven , ( for the heavens themselves were the feigned gods of the gentiles ) some are pleased with the deriving it from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esh , i. e. fire and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 maim , i. e. water : let some more knowing janus tell you . — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for my part i shall not this game pursue ; why should i lose my time and labour too ? the superstitions and fopperies , the rites and usages , the lustrations and purifyings , the prayers and litanies , and the solemn preparations ( in consecrating and conjuring the water , &c. ) you have in will. lambard in his explications of law terms , and in matthew parker arch-bishop of canterbury in his antiquities of the brittish church . both of them together , with that other of single combat or duel ( for that also was reckoned among the ordeals ) were judged by the church of rome to be impious customs ; and it is long since that they have been laid aside , and not put in practice among the common ordinary wayes of peoples purging and clearing themselves . well , now let me come back to my own country again , and return to northampton . chap. xvii . other laws : of entertaining of strangers . an uncuth , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm . 68. let it be lawful for no man , neither in borough nor in village or place of entertainment , to have or keep in his house , beyond one night , any stranger , whom he will not hold to right , ( that is , answer for his good behaviour ) unless the person entertain'd shall have a reasonable essoin or excuse , which the master or host of the house is to shew to his neighbours ; and when the guest departs , let him depart in presence of the neighbours , and in the day time . hither belongs that of bracton . he may be said to be of ones family , who shall have lodged with another for the space of three nights ; in that the first night he may be called uncuth , i. e. unknown , a stranger ; but the second night gust , i. e. a guest or lodger ; the third night hogenhine ( i read hawan man ) i. e. in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in latin familiaris , one of the family . 69. if any one shall be seised for murder , or for theft , or robbery , or forgery , and be knowing thereof , ( i. e. shall confess it ) or for any other felony which he shall have done , before the provost ( the master or bailiff of the hundred or borough , and before lawful men , he cannot deny it afterwards before the justices . and if the same person without seisin ( with seisin in this place is the same as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as we commonly say in our language , taken with the manner ) shall recognize or acknowledge any thing of this nature before them , this also in like manner he shall not be able to deny before the justices . 70. if any one shall dye holding in frank pledge ( i. e. having a free tenure ) let his heirs remain in such seisin , as their father had on the day he was alive and dyed , of his fee , and let them have his chattels , out of which they may make also the devise or partition of the deceased , ( that is , the sharing of his goods according to his will ) and afterwards may require of their lord , and do for their relief and other things , which they ought to do as touching their fee ( i. e. in order to their entring upon the estate . ) 71. if the heir be under age , let the lord of the fee take his homage , and have him in custody or keeping for as long time as he ought ; let the other lords , if there be more of them , take his homage , and let him do to them that which he ought to do . 72. let the wife of the deceased have her dowry , and that part of his chattels , which of right comes to her . in former times peradventure it was a like generally practised by the english , that the wife and children should have each their lawful thirds of the estate ; ( each of them , i say , if they were in being ; but half to the wife , if there were no issue ; and as much to the children , if the wife did not survive her husband : ) as it was practised by the romans of old according to the falcidian law , and of later time by the novells of justinian , that they should have their quarter ▪ part . for i see that those of normandy , of arras , of ireland , people that lay round about them , had the same custom . of this you are to see glanvill , bracton , the register of briefs or writs , and william lindwood , beside the records or yearly reports of our law. 73. let the justices take the fealties of our lord the king before the close of easter , and at furthest before the close of pentecost ; namely , of all earls , barons , knights and free-holders , and even of rusticks or vassals , such as have a mind to stay in the realm ; and he who will not do featly , let him be taken into custody as an enemy of our lord the king. 74. the justices have also this to give in charge , that all those , who have not as yet done their homage and allegiance to our lord the king , do at a term of time ; which they shall name to them , come in and do homage and allegiance to the king as to their liege lord. 75. let the justices do all acts of justice and rights belonging to our lord the king by a writ of our lord the king , or of them who shall be in his place or stead , as to a half-knights fee and under ; ( a knights ' fee in an old book , which pretends to more antiquity by far than it ought , concerning the manner of holding parliaments , is said to be twenty pounds worth of land in yearly revenue , but the number prefixt before the red book of the exchequer goes at the rate of six hundred and eighty acres : ) unless the complaint be of that great concern , that it cannot be determined without our lord the king , or of that nature that the justices by reason of their own doubting refer it to him , or to those who shall be in his place and stead . nevertheless let them to the utmost of their ability intend and endeavour the service and advantage of our lord the king. 76. let the justices provide and take care , that the castles already demolisht , be utterly demolished , and that those that are to be demolished , be well levelled to the ground . and if they shall not do this , our lord the king may please to have the judgement of his court against them , as against those who shew contempt of his precept . 77. a thief or robber , as soon as he is taken , let him be put into the sheriffs hands to be kept in safe custody ; and if the sheriff shall be out of the way , let him be carried or brought to the next constable of a castle , and let him have him in custody , until he deliver him up to the sheriff . 78. let the justices according to the custom of the land , cause inquiry to be made of those , who have departed or gone out of the realm . and if they shall refuse to return within a term of time that shall be named , and to stand to right in the kings court ( i. e. to make their appearance , and there to answer , if any thing shall be brought in against them ) let them after that be outlawed , and the names of the outlaws be brought at easter and at the feast of st. michael to the exchequer , and from thence be sent to our lord the king. these laws were agreed upon at northampton . chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such . 79. that henceforth a clergy-man be not dragg'd and drawn before a secular judge personally for any crime or transgression , unless it be for forest or a lay-fee , out of which a lay-service is due to the king , or to some other secular lord. this priviledge of the clergy the king granted to hugh the popes cardinal legate , by the title of s. michael à petra , who arrived here on purpose to advance the popish interest . 80. furthermore , that arch-bishopricks , bishopricks or abbacies be not held in the kings hand above a year , unless there be an evident cause , or an urgent necessity for it . 81. that the murderers or slayers of clergy-men being convicted , or having confest before a justice or judge of the realm , be punished in the presence of the bishop . 82. that clergy-men be not obliged to make duel : i. e. not to clear themselves , as others upon some occasion did , by single combat . 83. he ordained at woodstock ( we transcribe these words out of hoveden ) that whosoever should make a forfeit to him concerning his forest , or his hunting once , he should be tyed to find safe pledges or sureties ; and if he should make a second forfeit , in like manner safe pledges should be taken of him ; but if the same person should forfeit the third time , then for his third forfeit , no pledges should be taken , but the proper body of him who made the forfeit . moreover , we meet with these military laws , or laws of knights fees , made for tenants and other people of the common sort . 84. he who hath one knights fee ( 't is the aforesaid hoveden speaks ) let him have an habergeon or coat of male , and a helmet or head ▪ piece and a buckler or target and a lance : and let every knight have so many habergeons , and helmets , and targets , and lances , as he shall have knights fees in his demeans . 85. whatsoever free-holder that is a lay-man , shall have in chattel or in rent and revenue to the value of sixteen marks , let him have a coat of male , and a head-piece , and a buckler , and a lance. 86. whatsoever lay person being a free-man , shall have in chattel to the value of ten marks , let him have a little habergeon , or coat of male , and a capelet of iron , and a lance. 87. let all burghers or towns-men of a corporation , and the whole communities of free-men have a wambais , and a capelet of iron , and a lance. 88. let no one , after he hath once had these arms , sell them , nor pawn them , nor lend them , nor by any other way alienate them from himself , or part with them : nor let his lord alienate them by any manner of way from his man ( i. e. his tenant that holds under him ) neither by forfeit , nor by gift , nor by pledge , nor by any other way . 89. if any one shall dye having these arms , let them remain to his heir ; and if the heir be not of such estate or age , that he may use the arms , if there shall be need , ● let that person ▪ who shall have them ( the heir ) in custody , have likewise the keeping of the arms , and let him find a man , who may use the arms in the service of our lord the king , if there shall be need , until the heir shall be of such estate , that he may bear arms , and then let him have them . 90. whatsoever burgher shall have more arms , than it shall behove him to have , according to this assize , let him sell them , or give them away , or so dispose of them from himself to some other man , who may retain them in england in the service of our lord the king. 91. let no one of them keep by him more arms , than if shall behove him according to this assize to have . 92. let no jew keep in his possession a coat of male or an habergeon , but let him sell them , or give them , or in some other manner put them away , in that wise that they may remain in the service of the king of england . 93. let no man bear or carry arms out of england , unless it be by special order of our lord the king ; nor let any one sell arms to any one , who may carry them from england ; nor let merchant or other carry or convey them from england . 94. they who are suspected by reason of their wealth or great estate , do free or acquit themselves by giving their oaths . the justices have power or jurisdiction given them in the case for this purpose . if there shall be any , who shall not comply with them ( the justices ) the king shall take himself to the members or limbs of such persons , and shall by no means take from them their lands or chattels . 95. let no one swear upon lawful and free-men , ( i.e. in any matter against or concerning them ) who hath not to the value of sixteen or ten marks in chattel . 96. let no one , as he loves himself and all that he hath , buy or sell any ship to be brought from england ; nor let any one carry , or cause to be carryed out of england timber for the building of ships . 97. let no one be received or admitted to the oath of bearing arms but a free-man . to bring once for all something concerning a free man , that may not be beside the purpose . the ancient law of england bestowed that name only upon such persons , as many as , either being honoured by the nobility of their ancestors , or else out of the commonalty being of ingenuous birth ( to wit , of the yeomanry ) did not hold that rustick fee or tenure of villenage ) dedicated to stercutius ( the god of dunghils ) and necessarily charged and burthened with the plough tail , the wain , and the dray , which are the hard countrey-folks arms and implements . to this purpose makes the term of rustick or countrey-man above mentioned in the statutes of clarendon , and the place of glanvill cited in the tryal of ordeal . that the business may be more clearly asserted ; a suit of law being waged in the time of edward the first , betwixt john levin plaintiff and the prior of bernwell defendant ( i have taken the story out of an old manuscript , and the reports of our law , and the collection or body of the royal rescripts do agree to it ) it was then , after several disputes bandied to and fro , and with earnestness enough , decided by the judgement of the court , that those tenants which hold in fee from the ancient domain of the crown , as they call it , are by no means comprehended under the title of free-men ; as those who driving their labour around throughout the year pay their daily vows to ceres the goddess of corn , to pales the goddess of shepherds , and to triptolemus the inventer of husbandry or tillage , and keep a quarter with their gee hoes about their chattel . and now death hath put an end to king henry's reign . and i also having made an end of his laws , so far as histories do help me out , do at the last muster and arm my bands for the guard of my frontiers . i wish they may be of force enough against back-biters . chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates . but however laws are not without their makers and their guardians , or they are to no purpose . it remaineth therefore that we say somewhat in general of them . they are made either by use and custom ( for things that are approved by long use , do obtain the force of law ) or by the sanction and authority of law-givers . of ancient time the semnothei , the kings and the druids were law-givers ; amongst the britans i mean. concerning the semnothei whatsoever doth occurr you had before . the kings were neither monarchs of the whole island , nor so much as of that part of brittany that belonged to the angles . for there were at the same time over the single county of kent four kings ; to wit , cyngetorix , carvilius , taximagulus , and segonax ; and at the same rate in other counties . wherefore we have no reason to make any question , but that part wherein we live , now called england , was governed by several persons , and was subject to an aristocracy : according to what polydore virgil , john twine , david powell and others have informed us . the druids were wont to meet , to explain the laws in being , and to make new ones as occasion required , as is most likely , in some certain place designed for that purpose ; as now at this very time all matters of law go to be decided at spire in germany , at westminster-hall in england , and paris in france . their publick convention or meeting-place was constantly , as julius caesar tells us , in the borders of the carnutes the middle region of all france . some think that a town at eight miles distance from the metropolis of those people commonly called dreux , was designed for that use . whilst the saxons governed , the laws were made in the general assembly of the states or parliament . in the front of king ina's laws ( 't is above eight hundred and eighty years that he first reigned ) we read thus , it ine mid godes gift west-saxna cyning mid getbeat a mid lere cenredes mines fader a hedde a erconwald mine hiscops a mid eallum minum , ealdor mannum , & tham yldestan witan mines theode be beodeth , &c. which in our present . english speaks thus , i ina by the grace of god king of the west-saxons , by the advice and order of kenred my father , and of hedda and erconwald my bishops , and of all my aldermen , and of the elders and wise men of my people , do command , &c. there are a great many instances of this kind in other places . moreover witlaf and bertulph , who were kings of the mercians near upon eight hundred years ago , do in their instruments under their hands make mention of synods and councils of the prelates and peers convened for the affairs of the kingdom . and an ancient book has this passage of abendon , here was the royal seat , hither when they were to treat of the principal and difficult points of state , and affairs of the kingdom , the people were used to meet and flock together . to this may be added that which malmesbury sayes of king edward in the year of our lord 903. the king gathered a synod or assembly of the senators of the english nation , over which did preside pleimund arch-bishop of canterbury interpreting expresly the words of the apostolical embassy . these assemblies were termed by the saxons , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. meetings of the wise men , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. the great assemblies . at length we borrowed of the french the name of parliaments , which before the time of henry the first , polydore virgil sayes , were very rarely held . an usage , that not without good reason seems to have come from the ancient germans . so tacitus sayes of them , concerning smaller matters the princes only , concerning things of greater concern , they do all the whole body of them consult ; yet in that manner , that those things also , which it was in the peoples power to determine , were treated of by the princes too . and i have one that hath left it in writing , that when there was neither bishop , nor earl , nor baron , yet then kings held their parliaments : and in king arthur's patent to the university of cambridge ( for ye have my leave , if you can find in your heart , to give credit to it , as john key does ) by the counsel and assent of all and singular the prelats and princes of this realm , i decree . there were present at parliaments , about the beginning of the normans times , as many as were invested with thirteen fees of knights service , and a third part of one fee , called baron's , from their large estates : for which reason perhaps john cochleius of mentz , in his epistle dedicatory to our most renowned sir thomas more , prefixt before the chronicle of aurelius cassiodorus , calls him baron of england . but henry the third , the number of them growing over big , ordered by proclamation , that those only should come there , whom he should think sit to summon by writ . these assemblies do now sit in great state , which with a wonderful harmony of the three estates , the king , the lords and the commons , or deputies of the people , are joyned together , to a most firm security of the publick , and are by a very learned man in allusion to that made word in livy , panaetolium from the aetolians , most rightly called pananglium , that is , all england . as in musical instruments and pipes and in singing it self , and in voices ( sayes scipio in tully's books of the common-wealth ) there is a kind of harmony to be kept out of distinct sounds , which learned and skilful ears cannot endure to hear changed and jarring ; and that consort or harmony , from the tuning and ordering of voices most unlike ; yet is rendred agreeing and suitable : so of the highest and middlemost and lowermost states shuffled together , like different sounds , by fair proportion doth a city agree by the consent of persons most unlike ; and that which by musicians in singing is called harmony : that in a city is concord , the straightest and surest bond of safety in every common-wealth , and such as can by no means be without justice . but let this suffice for law-makers . chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it . i do scarce meet before the saxons times with any guardians of the laws different from these law-makers . in their time they were variously divided , whose neither name nor office are as yet grown out of use . the number is made up , to give you only the heads , by these ; to wit , the king , the lord highconstable , the chancellor , the treasurer , the alderman of england , the aldermen of provinces and the graves . those of later date and of meaner notice i pass by , meaning to speak but briefly of the rest . the king was alwayes one amongst the heptarchs or seven rulers , who was accounted ( i have beda to vouch it ) the monarch of all england . ella king of the south-saxons ( so sayes ethelwerd ) was the first that was dignified with so high a title and empire , who was owner of as large a jurisdiction as ecbright ; the second was ce●lin king of the west-angles ; the third aethelbrith king of the kentish-men ; the fourth redwald king of the easterlings ; the fifth edwin king of northumberland ; the sixth oswald ; the seventh osweo , oswald's brother ; after whom the eighth was ecbright . his west-saxon kingdom took in the rest for the greatest part . the office of lord high constable , which disappeared in edward duke of buckingham , who in henry the eighth's time lost his head for high-treason , was not seen till the latter end of the saxons . one alfgar staller is reported by richard of ely monk , to have been constable to edward the confessor , and mr. camden mentions a dwelling of his upon this account called plaissy in the county of middlesex . he of ely sets him out for a great and mighty man in the kingdom . and indeed formerly that magistrate had great power , which was formidable even to kings themselves . they who deny there were any chancellors before the coming in of the normans , are hugely mistaken . nor are they disproved only out of the grant of edward the confessor to the abbot of westminster , which i am beholden to mr. lambard for , at the bottom of which these words are set down : i syward publick notary , instead of rembald the kings majesties chancellor , have written and subscribed this paper ; but also out of ingulph , who makes mention of turketulus , some while after that abbot of crowland , chancellor of king edred , by whose decree and counsel were to be handled & treated whatsoever businesses they were , temporal or spiritual , that did await the judgement of the king ; and being thus treated of by him , might irrefragably stand good . and francis thinn , that learned antiquary has reckoned up several , who have discharged this office ; as turketill to king ethelbald , swithin bishop of winchester to king egbert , vlfin to king athelstan , adulph to king edgar , alsy abbot and prelate of ely to king ethelred . concerning which office and the seals , which the chancellor in old time had the keeping of , i had rather you would consult with camden's tribunals or seats of justice , and those things which john budden at wainfleet doctor of laws has brought out of the archives into his palingenesia , than seek them at my hands . as for treasurers , dunstan was so to king edred , and hugolin to the confessor . but that fifth title of alderman of england , is an unusual one . yet , if i don't mistake my self , he was the chief president in tryals at law , and an officer to keep all quiet at home ; the same as now perhaps is commonly called the lord chief justice of england . this remarkable name i do not meet with , neither in the monkish chronologers , which are to be had at the shops , nor in the records of our laws . but a private history of the abbey of ramsey in huntingdon-shire has given us notice of one ailwins tomb with this inscription , hic . requiescit . ailwinus . incliti . regis . eadgari . cognatus . totius . angliae . aldermannus . et . hujus . sacri . coenobii . miraculosus . fundator . that is , here resteth ailwin kinsman of the renowned king edgar , alderman of all england , and the miraculous founder of this sacred monastery . and by reason of his great authority and favour which he had with the king , by a nick name they called him healfkoning , i. e. half-king . now h●nry of huntingdon sayes , that tostius earl ( or to use his phrase consul ) of northumberland , and harald sons of godwin earl of kent were justices of the realm . aldermen may aptly be termed by the word senators . those judges did exercise a delegated power throughout the provinces , called counties or shires , and the graves and under-delegated power from them . the word is as much as governours , and is the same thing , as in high dutch grave in landgrave , burgrave , palsgrave , &c. and what amongst some of our own people reev . we shall call them both , as that age did , in a latin term , the one comites , i. e. counts or earls , the other vicecomites , that is , viscounts or sheriffs . the name of count is every where met with amongst the most ancient of the monks , which yet does very often pass into that of duke in the subscription of witnesses . and in the charter of the foundation of chertsey abby in surrey , frithwald stiles himself subregulus , i.e. an under kingling or petty vice-roy to wulpher king of the mercians ; make no question of it , he meant he was a count. a viscount and a vice-lord are more than very like , they are the very same . ingulph sayes it above . and in the last hand-writing of king edred we have , i bingulph vice-lord advised it , i alfer viscount heard it . these counts and viscounts , or earls and sheriffs had in their counties their several courts both for private and for publick matters . for private affairs they had every month a meeting called the county court. let every grave , as we have it in edward the elder 's laws , every fourth week convene and meet the people in assembly ; let him do equal right to every one , and determine and put an end to all suits and quarrels , when the appointed days shall come . for publick business king edgar ordered the court of inquests or inquiries , called tourn le uiscount . let a convention or meeting be held twice every year out of every county , at which let the bishop of that diocess , and the senator , ( i. e. the alderman ) be present ; the one to teach the people the laws of god ; the other the laws of the land. what i have set down in william the first at the end of the fourth chapter of this second book , you ought to consider of here again in this place . the inhabitants did not meet at this court of inquests at any season promiscuously and indifferently , but as it is very well known by the use and ancient constitutions of the realm , within a month either after easter , or after michaelmas . in which court , seeing that not only the count , as now a dayes the viscount or sheriff does , but also the bishop did preside ; it does not at all seem difficult to trace the very original of this temporary law. that peradventure was the synod of antioch held in pope julius the first 's time , and acknowledged in the sixth general council held at constantinople . in this latter there are expresly and plainly two councils or meetings of the bishops to be kept every year within three weeks after easter , and about the middle of october , ( if there be any small difference in the time , it can be no great matter of mistake ) . you may help your self to more other things of meaner note out of what has been said before about hundreds , bourghs and the like . and this may serve in brief for the saxons , who were entrusted with the care of their laws . chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i.e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . i shall be briefer concerning the normans , i mean their earls and barons . their counts or earls before the conquest , except those of leicester , and perchance some others , were but officers , and not as yet hereditary . when william bore the sway , they began to have a certain fee and a descent of patrimony ; having together with their title assigned to them a third part of the revenues or rents , which did arise out of the whole county to the exchequer . this custom is clear enough in gervase of tilbury in the case of richard de red●eriis made earl of devonshire by henry the first , & jeoffrey de magna villa made earl of essex by mawd the empress . it seems that the saxon earls had the self-same right of sharing with the king. so in doomsday book we find it ; the queen edeua had two parts from ipswich in suffolk , and the earl or count guert the third : and so of norwich , that it paid twenty pound to the king , and to the earl ten pound : so of the revenues of the borough of lewes in sussex , the king had two shares , and the earl the third . and oxford paid for toll and gable , and other customary duties twenty pound a year to the king , besides six quarts of honey , and to earl algar ten pound . to conclude , it appears also that these norman earls or counts had some power of making laws to the people of their counties . for instance , the monk of malmesbury tells us , that the laws of william fitz-osborn earl of hereford remained still in force in the said county , that no souldier for whatsoever offence should pay above seven shillings . the writings and patents of the men of cornwall concerning their stannaries or tinn-mines do prove as much ; nor need i tell the story , how godiva lady to the earl leofrick rid on horse-back through the streets of coventry with her hair disshevelled , all hanging about her at full length , that by this means she might discharge them of those taxes and payments , which the earl had imposed upon them . out of the countreys ( wherein all estates were subject to military service ) the barons had their territories , as we call them mannors ; and in them their courts to call their tenants together , at the end of every three weeks , and to hear and determine their causes . a civilian , one vdalricus zazius , would have the original of these courts among other nations , to have come by way of imitation from romulus his making of lords or patrons , and their clanns or tenants . the use of them at this day is common and ordinarily known . but to shew how it was of old , we will borrow out of hoveden this spark of light . john marshall complained to henry the second , that whereas he had claimed or challenged in the arch-bishops court a piece of land to be held from him by right of inheritance , and had a long time pleaded upon it , he could obtain no justice in the case , and that he had by oath falsified the arch-bishops court , ( that is , proved it to be false by oath , according to the custom of the realm : to whom the arch-bishop made answer , there has been no justice wanting to john in my court ; but he , i know not by whose advice , or whether of his own head , brought in my court a certain toper , and swore upon it , that he went away from my court for default of justice ; and it seemed to the justices of my court , that he did me the injury , by withdrawing in that manner from my court ; seeing it is ordained in your realm , that he who would falsifie anothers court must swear upon the holy gospels . the king not regarding these words , swore , that he would have justice and judgement of him ; and the barons of the kings court did judge him to be in the kings mercy ; and moreover they fined him five hundred pound . as to doing justice in all other cases , and managing of publick affairs , the normans had almost the same names and titles of officers and offices as the saxons had . finis . a brief chronology to attend and assist the history . in the year of the world .   1910. samothes , if there ever were such a man , bears rule . 2805. brutus makes a descent , ( that is , lands with his trojans ) in cornwall or devonshire . 3516. dunvallo molmutius swayes the scepter . 3627. martia , dowager of king quintilen , is queen regent during the minority of her son sisillius the first . 3942. caius julius caesar arrives at deal on the sea-coast of kent , and territa quaesitis ostendit terga britannis , that is , having inquiry made , after the britans bold , he turn'd his back , 't is said , his courage would not hold : and was the first that discover'd britanny to the romans . in the year of christ .   44. claudius caesar emperour sends over aulus plautius with an army as his lieutenant general , and by degrees reduceth the countrey into the form of a roman province . 52. a colony of veterans or old roman souldiers is sent down to maldon in essex . 86. britanny is subdued or brought under the yoke by the conduct of junius agricola , in the time of domitian the emperour . 183. lucius or king lucy was the first christian king. forasmuch as he was of the same standing with pope eleutherius and the emperour commodus . whence it appears , that beda makes others mistake , and is himself mistaken in his wrong account of time in this affair . 428. the saxons , angles , jutes , danes , frisons , or friselanders arrive here from germany , taurus and felix then consuls , in the one and twentieth year of theodosius the younger . the common or ordinary account of writers sets it down the four hundred forty ninth year : but that great man both for authority and judgement william camden clarenceaux king at arms hath , upon the credit of ancient records , closed this epoch or date of time within that term of years , which i have set in the margin . 561. king ethelbert the first king of the english saxons , who profest christianity . 800. king egbert . 872. king alured or alfred . 959. king edgar . 1017. canute or king knute the dane . 1036. harold , eldest son to king knute , called for his swiftness harefoot . 1042. edward the confessor , after whom harold son to godwin earl of kent usurp't the throne , where he continued only nine months . 1066. william duke of normandy , after a battel fought upon the plain near hastings , got the dominion or soveraignty of the british island . 1088. william rufus , second son of the conquerour . 1100. henry the first , younger brothor to rufus . 1135. king stephen , count of blois in france , nephew to henry by his sister adela . 1153. henry the second , grand-child to henry the first by his daughter mawd the empress , and jeoffrey count of anger 's in france . finis . brief notes upon some of the more difficult passages in the title-page . common and statute law ] so i render jus prophanum , as prophane is opposed to sacred and ecclesiastical , as himself explains the term in his preface out of festus . otherwise it might have been render'd civil law , as relating to civil affairs and the government of state , not medling with the canons and rules of the church ; but that the civil law with us is taken generally in another sense for the imperial law , which however practised in several other nations , hath little to do in england , unless in some particular cases . of english britanny ] that is , that part of britain , which was inhabited by the angles , in latin called anglo-britannia , by us strictly england ; as for distinction , the other part of the island , wales , whither the welsh , the true and ancient britans , were driven by the saxons , is called cambro-britannia , that is , welsh britanny ; and scotland possest by the scots , is in like manner called scoto-britannia , that is scotch-britanny , which now together with england , since the union of the two kingdoms , goes under the name of great britain . in the author's preface . the guardian of my threshold ] so 〈◊〉 among the romans was the god of the threshold , qui limentis , i. e. liminibus pr●est ; but it may be taken for the officer of the gate , the porter , who gives admission to strangers . in a different character ] accordingly in the latin the author's citations are printed in italick ; which , because they are so frequent , i thought fit rather to notifie by a distinction , as usual , in the margin ; thus , intercidona , pilumnus & deverra ] these were heathen deities , to whom they attributed the care of their children , who else they thought silvanus migh● ▪ like oberon king of the fairies , surprize or do some other mischief to . in the first book . chap. 1. pag. 2. lin . 23. among the celts and gauls ] who are reckoned for one and the same people ; as for instance , those gauls , who removed into the lesser asia , mixing with the greeks , were called gallo-graeci , but by the greeks were styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whence by contraction , i suppose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. 41. bellagines , that is , by-laws . ] from by , that is , a village , town or city , and lagen , which in gothish is a law ; so that it signifies such laws , as corporations are govern'd by . the scots call them burlaws , that is , borough-laws . so that bellagines is put for bil●gines or burlagines . this kind of laws obtains in courts leet and courts baron , and in other occasions , where the people of the place make their own laws . chap. ii. pag. 4. l. 7. adrastia , rhamnusia & nemesis . ] which is all but nemesis the goddess of revenge , called adrastria from king adrastus , who first built her a temple ; and rhamnusia from rhamnus a village in the athenian territory , where she was worshipped . l. 42. elohim , that is , gods. ] and so judges are properly called according to the original notation of the word , whose root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ala● , though in hebrew it signifie to curse , yet in the arabick language , a descendent of the hebrew , it betokens to judge . thus 't is said in the psalms , god standeth in the congregation of the gods , and i have said , ye are gods , &c. l. 45. it subjoins to it the name of god. ] to wit , that name of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 el , which signifies a mighty god. in this sense the cedars of god ar● lofty stately cedars ; and by moses his being fair to god , is meant , that he was exceeding fair . pag. 5. lin . 18. not only berecynthia , but also juno , cybele . ] why ! cybele is the very same goddess , who was called berecynthia from berecynthus a hill of phrygia ( as also cybelus was another ) where she was worshipped . and she had several such names given her from the places of her worship , as dindymene , pessinuntia , idaea , phrygia . this then was a slip of our worthy author's memory or his haste . chap. iii. pag. 5. lin . 34. not by the number of dayes , but of nights . ] thus in our common reckoning we say a sennight , that is , seven nights ; septinoctium , for what in latin they say septimana , seven mornings ; and a fortnight , that is , fourteen nights . again for sundayes and holy-dayes , the evening , which concludes the fore-going day , is said to be their eve , that is , evening . and the grecians agree with us in setting the night before the day , in that they call the natural day , which is the space of twenty four hours , comprehending day and night , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 night-day , not day-night . chap. iv. pag. 6. lin . 22. king phranicus . ] it is so ordinary a matter for historians , when they treat of things at great distance of time , to devise fables of their own , or take them up from others , that i doubt not but this phranicus was designed to give name to france ; whereas it was so called from the franks , who came to plant there out of franconia a countrey of germany , called east-france . l. 29. with corinus one of the chief of his company . ] from whom cornwall had its name , formerly called in latin corinia or cornavia ( say some ) now cornubia . and possibly if that were so , corinium also or cirencester , a town in glocestershire , and corinus too , the river churne , that runs by it , own their appellations to the same noble person . l. 31. new troy , that is , london . ] called also troynovant , and the people about it called trinobantes or trinovantes , from whom also the city it self was styled augusta trinobantum , that is , the royal seat of the new trojans . l. 40. king belin. ] who gave name to billinsgate , that is , belin's gate , as king lud to ludgate . pag. 8. lin . 39. eumerus messenius . ] some such fabulous writer as our sir john mandevil , who tells us of people and countreys , that are no where to be found in the world. chap. vi. pag. 9. lin . 19. in the time of brennus and belinus . ] the first of these was general of the gauls , who were called senones , and going into italy with them , sackt rome . there he built the city verona , called by his name brennona ; as he had done brennoburgum now brandenburg in germany . from his prowess and famed exploits , it is supposed that the britans or welsh do to this day call a king brennin . of the other , viz. belinus , some mention hath been made already . chap. vii . pag. 10. lin . 24. locrinus , camber and albanactus . ] from the first of these three brethren , to wit , locrinus , it is said , that the welsh call england lboegr , that falling to the eldest sons share ; from the second camber , that a welsh-man is named cumra , and the countrey cambria ; and from the third albanactus , that scotland , or at least good part of it retains the term of albania , a title still belonging to the king of britain's second brother , the duke of york . though for my part for this last name of albanactus i am somewhat of opinion , that it might be devised by some smattering monk purposely in favour of the trojan story , as much as to say in a mungrel word albae 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 king of alba , a city of italy built by one of aeneas his sons . l. 29. gavelkind . ] from the saxon gafel or gafol , a debt or tribute , and tyn or kynd , the kindred or children ; or , as mr. lambard , gif eal tyn i. e. , given to all who are next of kin ; or , as vorstegan , give all kind i. e. , give to each child his part . an ancient custom of the saxons , whereby the fathers estate was equally divided amongst his sons ; as it is still amongst the daughters , if there be no sons . it obtains still in several places , especially in kent by the concessions of the conqueror . pag. 11. lin . 22. the laws of second venus . ] not having plato by me , nor any other means to inform my self better , i imagine that by the first venus they mean the force of lust and beauty , which doth so naturally incline people to a desire of union and copulation ; and by the second venus consequently is intended that prudential reason , by which men according to wholsome and equal laws easily suffer themselves to be gathered into societies , and to comply with one another in mutual indearments . p. 12. lin . 12. jupiter's register . ] 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the greek proverb , is the skin of that goat , which nursed him in his childhood , of which after her death in honour of her memory , and reward of her services , he made his register , to enroll therein and set down upon record all the concerns of mankind . lin. 15. of some aethalides . ] he was the son of mercury , and had the priviledge allowed him to be one while among the living , another while among the dead , and by that means knew all that was done among either of them . the moral is plain , that he was a great scholar , who what with his resin'd meditation and study of books , which is being among the dead , and what by his conversation with men , had attained great knowledge and prudence : so that pythagoras himself , as modest as he was to refuse the title of wise man , and to content himself with that of a philosopher , that is , a lover of wisdom , yet was fond of the counterfeit reputation of being thought to be he , giving out according to his own doctrine of transmigration , that he was the man. chap. ix . p. 14. lin . 6. what ? that those very letters , &c. ] the authors expression here may seem somewhat obscure ; wheresore i think fit to set down this by way of explication . he sayes , that the letters which the greeks used in caesar's time , and which we now use , are rather such as the greeks borrowed from the gauls than what they had originally of their own . this he proves in the end of this paragraph by the judgement of several learned men. so then , if this were so , caesar , who without all question was well enough acquainted with the greek letters then in use , yet in all likelihood did not so well know what the true odl gallick letters were , the people being strangers to the romans , and he having but lately had any converse with them , and so might very probably mistake , in thinking that , because the letters were the same , the gauls might borrow the greek letters to make use of ; whereas the contrary ( to wit , that the greeks , after the disuse of the phoenician letters , which cadmus had brought over into greece , took the gallick in their stead ) is averr'd by lazins , becanus , &c. chap. x. pag. 15. lin . 12. from the sixth moon . ] whether that were from the sixth month they began their reckoning , which among the romans , was august , therefore called formerly sextilis , as the rest that follow according to order , are styled september , october , &c. or whether it were from the sixth day of the moon 's age , ( as they apply by way of proverb quartâ lunâ nati to the unfortunate , hercules having been born on such a day of the moon ) is none of my business to determine , but to leave it to the readers own inquiry and judgement . lin. 17. nestor's triple age . ] which if it be reckoned according to this account of thirty years to an age , makes but ninety years in all . and though that also be a great age for a man to handle arms , and to attend the duty and service of war , yet that is not so extraordinary a case , but that others may be found in story to stand in competition with him . besides it falls short of that description , which homer hath given of him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which implyes , that he had out-lived two generations ( to wit , the fathers which had been bred up with him , and the sons which had grown up into his acquaintance ) and that now he reigned among the grand-children , the third generation , the two former having been swept off the stage . and in this sense the latins took it , as appears by horace , who sayes of him ter a●vo functus , that he had gone through the course of nature , lived out the life of man , three times over ; and in that he is styled by another old poet triseclisenex , that is , the three hundred years old gentleman ; for as aevum in the one signifies the whole space of humane life , so seculum in the other is constantly taken for a hundred years . pag. 16. lin . 2. greece , all over italy . ] for all the lower part of italy was at that time inhabited by the greeks , and from them called magna graecia , or graecia major , in opposition , i suppose , only to sicily the neighbouring isle , as being alike inhabited by greeks , but of less extent . lin. 18. voitland . ] a province of germany , in the upper saxony . lin. 21. having their heads uncovered . ] that as they were bare-footed , so they were bare-headed also , perfect gymnosophists . the latin is nudis pedibus , capita intecta , graecanico pallio & c●cullato , perulàque , and may be rendred indeed , having their heads covered or muffled . but how ? with a pall hooded and a satchell . i , but what had the satchell to do with their heads , that hung at their side , and so they are pictured . but to pass this , reader , thou art at thy own choice , to take which interpretation of the two thou wilt ; for the latin word intectae , as i said , admits of either . chap. xii . pag. 18. lin . 10. the women carried it for minerva against neptune . ] there is another account given of this story , that these two gods being in a contest , which of them should be intitled to the presidence of this city athens , they did each of them , to oblige the community in their favour , by a miracle cause to rise out of the ground , the one ( neptune ) an horse , to denote prowess and warlike courage , the other ( minerva ) an olive-tree loaden with fruit , an emblem of peace and fruitfulness ; and that the citizens preferr'd the latter , as the greater merit and more welcome blessing . lin. 26. juno , salacia , proserpina . ] juno was jove the thunderer's consort , as proserpine was the forc'd mate of grim pluto ; the infernal queen . the third , salacia , lady of the sea , was wife to neptuneas , s. austin hath it out of some of the old roman writers : though among the poets she generally pass by the name of amphitrite . pag. 19. lin . 25. amalasincta , artemisia , nicaula , &c. ] these brave ladies or she heroes are famous upon record , and need not any thing further for their commendation , but their name . this artemisia mentioned here , was not the wife of mausolus , a vertuous and magnificent woman too , but another who lived in xerxes's time , a great commandress , in alliance with him . nicaula , it seems , though whence he learn't her name , i cannot tell , for scripture gives it us not ; was she , who is there called the queen of the south , a great admirer of solomon's wisdom . chap. xv. pag. 25 , 26. the inscriptions , which are left un-englished , are only brought in , to evidence , that there were several roman colonies , beside that at maldon , called colonia victricensis , planted up and down in britain ; to wit , at york , at chester , at glocester , and i doubt not but at colchester too , no less than there was one at cullen in germany , as the very name of them both imports , colonia . and that ours hath an addition of chester to it , is usual to some other cities : colchester for colnchester , which in latin would be colonia gastri , or rather coloniae castrum , the castle or garrison of the colony . chap. xvi . pag. 28. lin . 11. now you for your part are gods vicegerent in the kingdom . ] they are the words of pope eleutherius in his letter to lucy , the first christian king , which was in the year of our lord 183. from whence we may fairly conclude , that in those early dayes , the pope of rome according to his own acknowledgement had no such pretensions as now for several ages since they have made , upon the rights of princes , to the great disturbance of the world , and reproach of christian religion . and indeed this is the more considerable , in that such was the simplicity of devotion in those early converts , and such the deference , which princes who embraced the christian faith , especially from the missionaries of rome , had for that holy see , as appears by this one single instance ; that it had been no hard matter , nor could be judged an unreasonable thing , for them to lay claim to a right , and assert a power , which was so voluntarily offered . further i add , that seeing the donation of constantine , besides that it was alwayes look't upon as a piece of forgery , was at best , supposing it true , but an imperial grant and concession , which would not be of authority enough to bear up the popes supremacy in all other kingdoms of the earth ; and seeing pope boniface , who was the first that with bare face own'd it , his complyance with phocas was so grosly wicked , that none of their own writers but are ashamed to make that transaction betwixt those two , an argument for the papal pretence : seeing , i say , it is so , if the pope be intitled , as their canonists pretend , to an universal dominion by vertue of his office , and by commission from christ and his chief apostle s. peter , how came it to pass , that the bishops of rome all along till boniface , were so modest , as not to challenge any such rights or powers ; nay , upon occasion to declare against such pretences , as antichristian ; which , if that be true , that the pope is by his office , and by a divine commission instated into a supremacy , was in effect no less , than to betray the cause of christ and his church : how came it to pass , that eleutherius should neglect such a seasonable and exemplary opportunity of maintaining and exercising his right , and should rather chuse to return it in a complement back to the king his convert ? vicarivs verò dei estis in regno , sayes he , you are god's vicar in your kingdom : which title now the pope doth with as much arrogance challenge to himself , as here one of his predecessors doth with modesty ascribe to the king. lin. 32. with the title of spectabilis . ] towards the declension of the roman empire , it was usual so to distinguish great offices with peculiar titles , as spectabilis , clarissimus , &c. so among the italians , magnifico to a senator of venice , illustrissimo to any gentleman , eminenti●●●mo to a cardinal : so with us the term of highness is given to a prince of the blood , excellence to a vice-roy or a lord lieutenant and to a general of an army , grace to an arch-bishop and to a duke , honour to a lord , worship to an esquire , &c. chap. xvii . p. 29. lin . 43. fabius quaestor aethe●verd . ] why he calls him fabius quaestor , is at present past my understanding . did he take upon him a roman name ? was he in any such office as quaestor , i. e. treasurer or receiver general , wherein he behaved himself like a fabius ? or did he intitle his book by that name ? i am to seek . chap. xviii . pag. 31. lin . 19. whatsoever there was in pandora of good and fair. ] she was a woman made by jupiter's own order , and designed to be the pattern of female perfection : to which end all the gods contributed to the making of her several gifts , one wisdom , another beauty , a third eloquence , a fourth musick , &c. chap. xix . p. 32. lin . 27. wapentakes . ] which in some of our northern countreys is the same as we call other-where a hundred , from the s●xon word waepen , i. e. arms , and tac , i. e. touch ; as one should say , a touching or shaking of their arms. for , as we read it in king edward's laws , when any one came to take upon him the government of a wapentake , upon a day appointed all that owed suit and service to that hundred , came to meet their new governour at the usual place of their rendezvouz . he upon his arrival , lighting off his horse , set up his lance an end ( a custom used also among the romans by the prator at the meetings of the centumviri ) and according to custom took fealty of them . the ceremony of which was , that all who were present , touch't the governours lance with their lances , in token of a confirmation : whereupon that whole meeting was called a wapentake , inasmuch as by the mutual touch of one anothers arms , they had entred into a confederacy and agreement to stand by one another . this fashion , they say , the saxons took up from the macedonians their progenitors . others will have it from tac to take , and give this account of it , that the lord of the hundred at his first entrance upon the place was used to take the tenants arms , surrendred and delivered up to him by themselves , in token of subjection by way of homage . sir thomas smith differs from both these ; for he sayes , that at the hundred meeting , there was a muster taken of their weapons or arms ; and that those who could not find sufficient pledges for their good abearing , had their weapons taken away ; so that in his sense a wapentake is properly armilustrium , and so called from taking away their weapons or arms , who were found unfit to be trusted with them . l. 40. for the ceremony of the gown . ] he alludes to the roman custom , with whom the youth , when they arrived at mans estate , were then allowed to wear togam virilem , to put on a gown , the habit of men ; whereas before that , they were obliged to wear a coat peculiar to the age of childhood , called praetexta : whence papyrius , though yet a child , being admitted into the senate house for his extraordinary secrecy and manly constancy , was called papyrius praetextatus . pag. 33. lin . 9. morgangheb . ] or morgingah , from morgin , which in high dutch signifies the morning , and gab , a gift ; to wit , that present , which a man makes to his wife , that morning he marries her . chap. xx. pag. 34. lin . 3. tityus his liver . ] a gyant , who for ravishing of latona was adjudged to have his liver after death prey'd upon continually by a vulture , which grew up again as fast as it was wasted . the equity of which punishment lay in this , that the liver is reputed the source and seat of all lusts and unlawful desires , and doth naturally , as some physicians hold , receive the first taint of venereal distempers ( the rewards of impure mixtures ) according to that of solomon , speaking of an adulterer , till a dart strike thorough his liver ; from whence they gather , that that , which we now call the french pox , was not unknow even in that age of the world. l. 26. prema and mutinus . ] this latter a title given to priapus , much-what such a god , as baal peor was ; the other a goddess forsooth much to the same purpose . for the old romans had gods and goddesses , as the present romans have saints , for every thing , for every action of life . but their offices were such , as the modest reader will easily excuse the want of explaining them . lin. 38. sayes progne to her sister philomel . ] tereus king of thrace having married progne daughter of pandion king of athens , when he went to fetch her sister philomel , ravished her by the way on ship-board ; which occasioned a bloody revenge in the murder of his son itys . at last they were turned all four into so many several sorts of birds ; progne into a swallow , philomel into a nightingale , tereus into a lapwing , and itys into a pheasant . chap. xxi . pag. 36. lin . 20. with head-money called wergild . ] a word compounded of the saxon wert , the price or value or worth of a man , and geld or gild , a payment . that is , he that had killed another , was to buy off his life , by paying the full value of the person slain . the prizes or rates are set down in ethelstan's laws , by thrimsa's , a kind of coyn , or piece of money , of the value of three shillings , saith mr. lambard ; which being reduced to our sterling stand thus . a peasant , 40 l. 1 s. a thane , or one in orders , 300 l. a general , or chieftain , 600 l. a bishop , or alderman , 1200 l. an arch bishop , or peer , 2250 l. and a king , 4500 l. half of which last summ was to go to the kindred , and the other half to the publick . and these rates are set , he sayes , by the common law of the english. the reason of this pecuniary compensation , was their tenderness of life , that two men might not dye upon the account of the same mischance , according to that saying in an ancient law , nulla sit culpa tam gravis , ut vita non concedatur , propter timorem dei. but yet withal in some cases of premeditated or clandestine murder , they were not excused from making satisfaction with their life ; or in case one were not able to pay the were , or fine , he was punished with death . i called this head-money , because in latine it is termed capitis aestimatio , the value or price of a mans head : not in that sense as either chevage or poll-money is so called . chap. xxii . pag. 37. lin . 42. in the margin caxton is quoted , a book , it seems , rare ; of which he saith , that book , that goes up and down by this name , mr. warin townsend of lincolns-inn , a gentleman noble by his descent and learning both , very friendly lent me for my use in a very fair manuscript ; which courtesie of his , i cannot but think it a foul shame for me , not to own and acknowledge with all thankfulness . pag. 38. lin . 17 , 18. even now in the time of those that are called the good. 't is william of malmesbury , whom he quotes ; etiam nunc tempore bonorum . whether he mean good princes , who would have those laws observed , or honest subjects , who would observe them , or whether there were any sort of men in his time that went by that character of boni , good men , is more than i have to say . there was at one time a sort of religious persons , that went by the name of bon hommes ; but that can have nothing to do in this business . chap. xxiii . pag. 39. lin . 14. every native home-born lawful man. ] in the latin it is indigena legalis , in the saxon law-term it is inlaughe or inlaugh , that is , one that is under the law , inlagatus , who is in frank pledge , or belongs to some court leet : as all males from twelve years old and upwards were obliged to be . so bracton tells us . lin. 27. decenna . ] the same as decuria , which is generally rendred a tithing , i. e. a company of ten men with their families , all of them bound to the king to answer for one anothers good and peaceable behaviour . from the latin word it is called a dozein , and the people that belong to it are called deciners or dozeniers , that is , decennarii . the chief of them is termed decurio or decanus friburgi , the tithingman or headborough . and all males of twelve years age and upwards ( except nobles and religious persons ) were obliged to be of some dozein or other . but now there are no other dozeins but leets , and no other security there given for the kings peace , but the persons own oath . lin. 29. friborgh . ] from the saxon sreo free , , and borgh , a surety or security : or , as some write it , fridburgh , from frid , peace , and burgh , a surety . if it be taken for the person , it is the same that a deciner ( we now spoke of ; ) if for the action , it is their being sureties for one another : if for the company of these mutual ingagers , 't is the same as decuria , a tything , in saxon tienmannatale i. e. , the number of ten men . the normans retained the same custom , but altered the name , calling it frankpledg , from the french , frank , i. e. free , and pledg , i. e. surety . and the compass or circuit of this frankpledg the same as that of friburg , to wit , the decenna or dozein , i. e. ten housholds . lin. 40. manupastus . ] of this bracton sets down a rule for law , that every person , whether free-man or servant , either is or ought to be in frank-pledge or of some bodies mainpast . now he is of ones mainpast , saith he , who is allowed victuals and clothes , or victuals only and wages . and this was the reason , why great men were not obliged to be of any ordinary dozein , because bishops , earls and barons , as the same bracton informs us , ought to have their menial servants in their own friborgh , and to answer to the king for their behaviour , and to pay what forseits they should make , if they had not the persons themselves forth-coming . and this , sayes he , is the case of all those who are of any ones mainpast . chap. xxiv . p. 41. lin . 16. john scot erigena . ] a school-man famous for his subtilty , called in latin , johannes duns scotus . whether duns were the name of his family , as it might be , johannes de dunis , which in english would be john downs ; or whether it were a nickname given him for his slovenliness and seeming blockishness , from the word dunce , which in barbarous latin is dunsa , ( for so in camden's remains we find the emperour charles , as i take it , putting that question to him , as he sate at table over against him , quid interest inter scotum & sotum , what difference between a scot and a sot ? to which he as freely replyed , mensa , the table , sir ) i shall not determine . but scotus or scot , is the name of his countrey , he being a scotch-man , and for that reason called also erigena , that is , irish born , to wit , a highlander ; for those people were originally irish , and came out of that island over into the north parts of scotland . now ireland is by several authors greek and latin called ierna , and by the inhabitants themselves erin . l. 43. the goddess anna perenna . ] the lady president of the year , anna ab anno ; to whom they addrest their devotions , that she would per●nnare , that is , preserve and continue health and plenty and prosperity from year to year ; for which reason she was called anna perenna . now our author here brings in long-lived nestor and this goddess , to shew that those good fellows in quaffing of healths , do wish muchos annos , as the spaniard saith , many and many a years life to their absent friends , while in the mean time by tossing off so many bowsing canns , they shorten their own lives . pag. 42. lin . 24. englescyre . ] or englecerie , that is , the being an english-man . for there was a law made by king knute in favour of his danes ( and so afterward it was interpreted in behalf of the francigenae , french-men , or whatever foreigners ) that if any such were privily murdered or slain , the village , where the fact was done , should be amerced in a lusty fine to the king , unless they could prove englecerie , that is , that the murdered person was an english-man , one born of english parents , in which case there was no fine levied . so that the danes and french , when they governed here , provided they might secure themselves from the english , were well enough content to let them destroy one another . chap. xxv . pag. 44. lin . 11. an olympiad . ] an account of time used by the greeks , consisting of four years , so called from the olympick games , which were celebrated in honour of jupiter olympius every fifth year . this reckoning began first in the year of the world three thousand one hundred seventy four . in the second book . chap. i. pag. 48. l. 5. by right of fréehold . ] allodii jure , that is , by a mans own right , without acknowledgment of service or fealty , or payment of rent to any other as a superiour lord. in which respect it is opposed to an estate in fée , wherein though a man hath a perpetual right to him and to his heirs for ever , yet seeing he owes a duty and service for it , it cannot be said properly and simply to be his own . and such are all mens estates here in england , but the kings in the right of his crown , who cannot be supposed to hold of another , or to owe fealty to any superiour , but to god only . lin. 12. vnder military service . ] or knights service , that is , to find the king such a number of men and arms in time of war , as it is here expressed . see cowell in the word chivalry . indeed the clergy before the conquerour in the time of the saxons ( as we find it in the five and twentieth chapter of the first book ) were allowed to be free from secular services , but with an exception and reserve however of these things , to wit , expedition , repairing of castles and building of bridges , from which last duty the high-priests among the romans were called pontifices , i. e. bridge-makers . now this bringing of the bishops baronies under knights service , was sure enough design'd to engage them into a close dependence upon the crown , and to take them off from hankering after any forreign power , to which they might pretend to owe any subordination ; as all along the times of popery , out of reverence to the holy see , they were forward enough upon occasion to think themselves obliged to do , even to the high discontent and great disservice of their kings . chap. ii. pag. 51. lin . 12. ready money . ] so i render viva pecunia : which though spelman saith it is so called , that it may the more expresly signifie pecudes , i. e. cattle ; yet he doth not to me , i confess , make out by any fair instance that it doth ever so signifie ; and that it cannot be taken in that sense here , is plain from what immediately goes before , quot animalia , imò quantum vivae pecuniae quisque possidebat : where animalia living creatures include pecudes the cattle . chap. iii. pag. 54. lin . 32. boseham . ] what earl godwin's trick was , or wherein the conceit lay , i cannot at present well imagine , unless it were in the equivocation or misunderstanding of the word boseham , as it falls in with the word bosom in the pronunciation and sound of it ; thus . supposing the earl at meeting of the arch-bishop , coming up to him upon pretence of saluting him said , give me your boseham , my lord ; to which the arch-bishop thinking belike , he might , by way of desiring his pastoral embrace , mean only his bosom , readily made answer , i give you my bosom ; which the earl with a cunning fetch interpreted a grant of his estate of boseham . pardon , reader , my mistake , if it be one ; since i have no better account , from my own guess , to give , meeting with no help from our law-dictionaries . chap. iv. p. 56. lin . 8. the first sheriffs of counties . ] a sheriff or shyrereev signifies the governour of a county , called in latin vice-comes , as deputy to the count or lord or chief man of the county ; though even in the confessor's time he was reckoned the kings officer , and not the counts . this office , as mr. camden tells us , was first set up by king alfred , who also divided england into counties , and those counties again into hundreds and tythings . lin. 29. other judges without appeal . ] this should seem to be the court of chancery : for which reason the lord chancellor is said to keep the kings conscience , as here these judges are compared to the kings bosom . lin. 37. acting a busiris his part . ] i. e. treating strangers ill ; he being a cruel tyrant of egypt , who slew strangers , and sacrificed them to his gods : whence the proverb , busiridis arae . pag. 57. lin . 39. that he should pay it at the scale . ] that is , should pay it by weight , or according to full weight . chap. vi. pag. 60. lin . 17. being lord chief justice of the whole kingdom . ] in the latin it is thus expressed ; totius regni placitator & exactor : where i confess the former title of the two gave me the occasion of my mistake , as if he had been chief justice of the common pleas : whereas i should rather have rendred it thus ; who had been ( to wit , in king rufus his time ) pleader or demander and receiver of the kings duties throughout the whole kingdom . for such an officer this exactor regius was , otherwise called grafio . see spelman upon both those words . lin 39. in the times of the saxons a hereot . ] this at first was atribute given to the lord for his better preparation towards war ; but afterward though the name were kept , the thing was altered , being taken for the best chattle , that the tenant hath at the hour of his death , due to the lord by custom , be it horse , ox , &c. that hereot and relief do not signifie the same thing , appears by this , that they are both often found to be paid out of one and the same tenure , and again that the heir alway succeeds into the estate upon the payment of the relief , but not alwayes upon the payment of the hereot . lin. 42. in french is called a relief . ] from the verb relever , to raise again and take up the estate which had faln into the lords hand by the death of the ancestor . it is a summ of money , which the new homager , when he is come to age , payes to the lord for his admission or at his entrance into the estate . whence by the old civilians 't is called introitus , and in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this summ was moderately set ; wherein it differed from ransom , which was much more severe . the kings rates upon his homagers were thus : an earls heir was to give an hundred pounds , a barons an hundred marks , a knights an hundred shillings at most ; and those of lesser estate less , according to the ancient custom of their tenures : as spelman quotes it out of the charter of henry the third . pag. 61. lin . 11. of the greater uavasors . ] they were a sort of gentlemen next in degree to the barons . they did not hold immediately of the king , but of some duke , marquess or earl. and those that held from them again , were called valvasini , or the lesser vavasors . there is little certainty what their offices or priviledges were , or indeed whence they were so called ; whether qu. ad valvas stantes , or valvae assidentes , for their sitting or standing at their lords door , ( if those of that quality did so ) as some would have it ; or that they kept the doors or entrances of the kingdom against the enemies , as spelman sayes ; or whether from vassalli , as the feudists derive the name , from that inferiour tenure they had mediately from the king by his great lords ; which seems the more likely , because these greater vavasors , who did so hold , are sometimes termed valvasores regii and vassi dominici , that is , the kings vassals . lin. 27. her dowry and right of marriage . ] in the latin it is dotem suam & maritagium . now dos is otherwise taken in the english , than in the roman laws ; not for that which the man receives with his wife at marriage , a portion : but for that which the woman hath left her by her husband at his death , a dowry . and maritagium is that which is given to a man with his wife , so that 't is the same as dos among the romans , saith spelman . but that is too general , i think , that the man should be obliged to return at his death all to his wife that he had with her , beside leaving her a dowry . i am therefore rather inclined to cowell , who tells us , maritagium signifies land bestowed in marriage ; which , it seems , by this law was to return to the wife , if her husband dyed before her . the word hath another sense also , which doth not belong to this place , being sometime taken for that which wards were to pay to the lord for his leave and consent that they might marry themselves , which if they did against his consent , it was called forfeiture of marriage . lin. 35. the common duty of money or coinage . ] so i render the word monetagium . for it appears , that in ancient times the kings of england had mints in most of the countreys and cities of this realm . see cowell in the word moniers . for which priviledge , 't is likely , they paid some duty to the chief place of the mint . thus in doomesday we read , as spelman quotes it , that in the city winecestre every monyer paid twenty shillings to london ; and the reason given , pro cuneis monetae accipiendis , for having stamps or coins of money . for from this latin word cuneus ( which our lawyers have turned into cuna , from whence the verb cunaere ) comes our english word coyn. now it is more than probable , that the officers of the chief mint might by their exactions upon the inferiour mints give occasion for the making of this law. lin. 42. or children or parents . ] by parent here we are to understand not a father or mother , but a cousin , one a-kin ; as the word signifies in french , and as it is used in our laws . and indeed the latin word it self began to have that sense put upon it in vulgar speech , toward the declension of the empire , as lampridius informs us . pag. 62. lin . 21. a pawn in the scarcity of his money . ] that is , if he were not able to pay his forfeit in specie , i. e. to lay down the money , he was to give security by a pawn of some of his goods or chattels . see cowell in the word gage . this in latin is called vadium , a pawn or pledge , from vas , vadis , a surety . hence invadiare , to pawn or ingage a thing by way of security , till a debt be paid . lin. 23. nor shall he made amends . ] from the french amende , in our law-latin emenda : which differs from a fine ( or mulct ) in this that the fine was given to the judge , but amends was to be made to the party aggriev'd . now there were three sorts of this amende , the greater which was like a full forfeiture , the mid-one at reasonable terms , and the least or lowest which was like a gentle amercement . this distinction will help to explain the meaning of this law. l. 30. per sée de hauberke . ] this in latin is called feudum hauberticum , i. e. loricatum , sayes hotoman , from the french word haubert , that is , a coat of mail , when a vassal holds land of the lord on this condition , that when he is called , he be ready to attend his lord with a coat of mail or compleat armour on . now haubert , as spelman tells us , properly signifies a high lord or baron , from haut or hault , high , and ber ( the same as baro ) a man or baron . and because these great lords were obliged by their place and service to wait upon the king in his wars on horse-back with compleat armour , and particularly with a coat of mail on : hence it came , sayes he , that the coat of mail it self was also called haubert ; though he doth afterward acknowledge that the word is extended to all other vassals , who are under that kind of tenure . but then at last he inclines to think , that the true ancient writing of the word is hauberk ( not haubert ) as it were hautberg , i. e. the chief or principal piece of armour ; and berg he will have to signifie armour , as he makes out in some of its compounds , bainberg armour for the legs and halsberg armour for the neck and breast : and derives it from the saxon beorgan i. e. , to arm , to defend . add to this , saith he , that the french themselves ( and we from them ) call it an haubergeon , as it were haubergium . lin. 33. from all gelds . ] the saxon word geld or gild signifies a tribute or tax , an amercement , a payment of money , and money it self : whence i doubt not , but the best sort of money was called gold. it is from the verb geldan or gyldan , to pay . in latin it is geldum , and not gilda , as cowell writes it . for this signifies quite another thing , a fraternity or company of merchants or the like . whence a gild-hall , that is the hall of the gild or society : such as was once the stilyard , called gildhalla tentonicorum , the gild-hall for the dutch merchants from the hanse-towns . chap. vii . pag. 63. lin . 25. iphis and ianthis and ceneus . ] persons mention'd by ovid , who changed their sex , from female to male. iphis was a maid of creet , who after her metamorphosis when she turn'd to man , took ianthe to wife : and canis ( for that was her maiden name ) was a thessalian girl , whom neptune made a whore of first , and then at her request a man , who thenceforward went by the name of caeneus . lin. 34. cheats , whom they commonly call coyners . ] in malmesbury's latin , trapezitas , quos vulgò monetarios vocant . which bare citation is all the account , that spelman gives of the word monetarius . it doth properly signifie an officer of the mint , that makes and coyns the kings money ; a monier . but here by the historian's implying that such fellows , as this law was made against , were falsarii , cheats , and by our author 's terming of them adulteratores monetae , counterfeiters of coyn : we must understand them to be false coyners , clippers , washers , imbasers of the kings coyn , and the like . and therefore i render'd trapezitas ( which otherwise is a word of innocent meaning for money-changers , bankers , &c. ) in the historian's sense cheats . chap. viii . pag. 65. lin . 24. every hide of land. ] it is so called from the saxon word hyden , to cover ; so that thus it would be the same as tectum in latin , a dwelling-house . and thus i question not , but there are several houses called the hide : for i know one or two my self so called , that is , the capital messuage of the estate . nor is it so consined to this sense , but that it takes in all the lands belonging to the messuage or manour-house , which the old saxons called hidelandes , and upon some such account no doubt hidepark had its name , as a park belonging to some great house . now as to the quantity , how much a hide of land is , it is not well agreed . some reckon it an hundred acres , others thereabouts , by making it contain four yardlands , every yardland consisting of twenty four acres . the general opinion is , that it was as much as could be ploughed with one plow in a year , terra unius aratri culturae sufficiens . and thus it should be muchwhat the same as carrucata terrae , i. e. a plough-land . from bede , who translates it familia , they gather it was so much as could maintain a family . there is mention made of these hides in the laws of king ina , an hundred years before king alfred , who divided the countrey into counties or shires . and taxes and assessments were wont to be made according to these hides ; up as high as king ethelred's time in the year of our lord 1008. since the conquest , william the first had six shillings for every hide in england , rufus four , henry the first here three for the marriage of his daughter . pag. 66. lin . 8. this right is called wreck . ] i. e. by which the king claims shipwrack't goods cast on shoar . for though by the law of nature such things , as being nullius in bonis , having no owner , every one that finds them may seem to have a right to them ; yet by the law of nations they are adjudged to the prince as a special priviledge by reason of his dignity . now wreck ( or as the french call it varec ) properly signifies any thing that is cast on shoar , as amber , precious stones , fishes , &c. as well as shipwrack't goods : from the saxon wraet i. e. , any thing that is flung away and left forlorn ; though use hath limited the word to the later sense . chap. ix . pag. 68. lin . 6. the roman laws were banisht the realm . ] i suppose there may be some word missing or mistaken in the latin , à regno jussae sunt leges romanae : but that which follows , the forbidding of the books , obliged me to that interpretation : for why should the books of those laws be prohibited , if the laws themselves were ( as the latin reading seems to import ) ordered and ratified by the realm . wherefore i suppose some mistake , or omission , and for à regno jussae , read à regno pulsae or exulare jussae , &c. unless you would like to have it thus rendred , commanded out of the kingdom : which i confess would be a very odd unusual construction . chap. x. pag. 69. lin . 39. three hundred marks of gold. ] a mark weigh'd eight ounces , and as cowell states it out of stow , it came to the value of 16 l. 13 s. 4 d. at this rate three hundred marks of gold come to five thousand pound ; and to every bishop five marks , supposing only ten bishops , come to 833 l. 6 s. 8 d. which is a very unlikely summ in this business . 't is true , the value of it , as of other coyns and summs , might vary . and so we find in spelman , that an uncertain author reckons a mark of gold to be worth fifty marks of silver . but then 't is as uncertain , what marks of silver he means . for if they be such as ours are ( and as they were in king john's time ) at 13 s. 4 d. then a mark of gold will be of the value of 33 l. 6 s. 8 d. which is just double to the former value of 16 l. 13 s. 4 d. ( which being resolved into marks of silver , makes but 25. ) but in ancient times a mark of silver was only 2 s. 6 d. so that fifty of them will make but 6 l. 5 s. another instance we meet with , where one mark of gold is accounted equivalent to ten marks of silver ; which taking a mark for 13 s. 4 d. comes to 6 l. 13 s. 4 d. another , where nine marks of silver pass for one mark of gold , in a payment to the king : which is just six pound . and these three last accounts agree pretty well together . taking the middlemost of the three , viz. a mark of gold at ten marks of silver ; thus the above named summ of three hundred marks of gold , that is , three thousand marks of silver amounts to two thousand pound ; and the five marks to every bishop ( supposing but ten bishops ) come to 333 l. 6 s. 8 d. but if we take these marks of silver at 2 s. 6 d. the account will grow much less . for ten such marks are but 1 l. 5 s. so that the three hundred marks of gold at this rate will come but to 375 l. sterling . but that these marks of the ancient and lower estimate are not here intended , may probably enough be gathered from one passage more we find there , centum solidi dentur vel marca auri , where , if solidi stand for shillings ( for they may be taken for soulx as the french call them ) a mark of gold is made of equal value with 5 l. sterling . and thus three hundred marks of gold come to fifteen hundred pound . i confess after all , most of these accounts of the mark , gold or silver , may be admitted of , as having possibly at sometime or other been true ; since mony , both in its coyns and summs , hath in several ages of the world , risen , and fallen according to its plenty or scarcity . lin. 42. being arighted and accused of any matter . ] or rather in the law-spelling arrested ; in latin rectatus , that is , ad rectum vocatus , convened before a magistrate and charged with a crime . thus ad rectum habere , is in bracton , to have a man forth coming , so as he may be charged and put upon his tryal . it may be also rendred , taken upon suspicion . it is written sometime retatus and irretitus . pag. 70. lin . 33. to give suretiship for the remainder . ] i confess i do not well know how to apply to this place that sense , which our common law takes the word remainder in , for a power or hope to enjoy lands , tenements or rents after anothers estate or term expired ; when an estate doth not revert to the lord or granter of it , but remains to be enjoyed by some third person . what if we say , that as bishops could not ( because their estates are of alms ) grant any part of their demeans ad remanentiam , for ever or to perpetuity , so here excommunicate persons were not obliged dare vadium ad remanentiam , to find sureties for continuance or for perpetuity , that is , for their future good behaviour , but only to stand to the judgement of the church in that particular case for which they were at present sentenced . chap. xi . pag. 72. lin . 24. if a claim or suit shall arise . ] in the latin , si calumnia emerserit , a known and frequent word in our law , which signifies a claim or challenge , otherwise termed clameum . lin. 37. till it shall by plea be deraigned . ] or dereyned : which is in french dereyné , in the latin , disrationatum , which as it hath several significations in law , so here it imports , after a full debate and fair hearing , the determination of the matter by the judgement of the court. chap. xii . pag. 75. lin . 2. by the name of yumen . ] the same say some , as the danes call yong men . others derive the word from the saxon geman , or the old dutch gemen , that is , common , and so it signifies a commoner . sir tho. smith calls him yoman , whom our laws term legalem hominem , a free-man born ( so camden renders it by ingenuus ) who is able to spend of his own free land in yearly revenue to the summ of forty shillings , such as we now , i suppose , call free-holders , who have a voice at the election of parliament-men . but here the word is taken in a larger sense , so as to include servile tenure also or villenage . chap. xiii . pag. 77. lin . 5. leude men . ] from the saxon leod , the common people . it signified in law a subject , a liege man , a vassal , a tenant : hence in high-dutch a servant was called leute , in old english a lout . but in common acception lewd was formerly taken for a lay-man , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , one of the people , or for any illiterate person . now it is used to denote one who is wicked or loose and debauched . chap. xiv . pag. 79. lin . 8. the states of the kingdom , the baronage . ] he means the whole parliament , and not only the house of lords by the word baronage . for though by barons , now we properly understand the peers of the realm ; yet anciently all lords of manours , those who kept court-baron , were styled barons : nay spelman tells us , that all free-holders went by that name before the free-holds were quit letted out into such small pittances , as now they are , while noble-men kept their lands in their own hands , and managed them by their vassals . cowell gives this further account of those lords of manours , that he had heard by men very learned in our antiquities , that near after the conquest all such came to parliament , and sate as nobles in the upper house . but , as he goes on , when by experience it appeared , that the parliament was too much pestered with such multitudes , it grew to a custom , that none should come but such as the king , for their extraordinary wisdom or quality , thought good to call by writ , which writ ran hâc vice tantùm , that is , only for this turn . so that then it depended wholly upon the kings pleasure . and then he proceeds to shew , how after that they came to be made barons by letters patents , and the honour to descend to their posterity . lin. 27. by way of safe pledge . ] that is , to oblige them to give security for the parties appearance against the day assigned ; who in case of default were to undergo the dammage and peril of it . pag. 80. lin . 7. st. peter's pence . ] these peter-pence were also called in saxon , romescot and romefeoh ( that is , a tribute or fee due to rome ) and rome-penny and hearth-penny . it was paid yearly by every family ( a penny a house ) at the feast of s. peter ad vincula on the first day of august . it was granted first , sayes our author out of malmesbury , by ina or inas king of the west-saxons , when he went on pilgrimage to rome , in the year of our lord 720. but there is a more clear account given by spelman ( in the word romascot ) that it was done by offa king of the mercians , out of an author that wrote his life . and it is this , that offa after thirty six years reign having vowed to build a stately monastery to the memory of st. alban the british protomartyr , he went on pilgrimage to rome , adrian the first then pope , to beg indulgences and more than ordinary priviledges for the intended work . he was kindly received , and got what he came for ; and the next day going to see an english school , that had been set up at rome , he for the maintenance of the poor english in that school , gave a penny for every house , to be paid every year throughout his dominion , ( which was no less than three and twenty shires at that time ) only the lands of s. alban excepted . and this to be paid at the feast of s. peter , because he found the body of the martyr on that day , for which reason it was also called s. peter's penny. and although at last these peter-pence were claim'd by the pope as his own due and an apostolical right , yet we find , that beside the maintenance of a school here mentioned , for which they were first given , they have by other kings been appropriated to other uses . thus we read that athelwolf father to king alured , who was the first monarch of this isle , granted three hundred marks ( the summ total of the peter-pence here , bating only an odd noble ) to be paid yearly at rome . one hundred for the honour of s. peter , to find lights for his church : another hundred for the honour of s. paul on the like occasion : and the third hundred for the pope's use to enlarge his alms. this was done in the year 858. when leo the fourth was pope . lin. 9. thirty pence of live money . ] possibly the worth or value of thirty pence in goods and chattels . king offa , in his grant thus words it , quibus sors tantum contulit extra domos in pascuis , ut triginta argenteorum pretium excederet ; who had an estate besides houses in lands , which might exceed the value of thirty silver pence . lin. 15. out of a rescript of pope gregory . ] we have the whole letter set down in spelman , which speaks in english thus , gregory the bishop , servant of the servants of god , to his worshipful brethren the arch-bishops of canterbury and york , and to their suffragans , and to his beloved sons the abbots , priors , arch-deacons and their officials , appointed throughout the kingdom of england , unto whom these letters shall come , greeting and apostolical benediction . in what manner the pence of s. peter , which are due or owing to our chamber , are to be gathered in england , and in what bishopricks and dioceses they are owing , that there may arise no doubt on this occasion , we have caused it to be set down in this present writing , according as it is contained in the register of the apostolick see. out of the diocess of canterbury seven pounds and eighteen shillings sterling : out of the diocess of london sixteen pounds , ten shillings . and so of the rest . yeoven at the old city , april 22. in the second year of our popedom . there is some difference though in the account of the dioceses . for after lincoln he leaves out coventry and puts chichester for chester , 8 l. and then after bath he puts in salisbury and coventry ( with a mistake 10 l. 10 s. for 5 s. ) and leaves york last . besides every body knows there are more dioceses now than were then . this was gregory the fifth that wrote this , and it was ( our author tells us ) in the time of king edward the second . but edward the third in the year of the lord 1365. and of his reign 39. forbad these peter-pence to be paid any more at rome , or to be gathered any longer in england . chap. xv. pag. 81. lin . 10. into six provinces or circuits . ] as they are for number still , with two judges a piece , though at first three . how these differ from what they now are , as to the counties , the reader may easily satisfie himself . here are thirty seven of them , as we now reckon : only with this difference , that monmouth and rutland are left out , and richmond and copland are put in . pag. 82. lin . 27. and if he perish , i. e. sink , let him lose one foot . ] for that in this tryal by water , was the sign and proof of guilt , if the party thrown in did not swim , which is quite contrary in the tryal of witches : as you will find in the next chapter , which treats of ordeals . lin. 39. the kings great assise . ] assise is a word , that hath many significations in our law. it is here in the title taken for a statute ; the assises ( i. e. the statutes and ordinances ) of king henry made at clarendon . but in this place it is used for a jury ; and it is either the great or grand assise , which serv'd for the right of property , and was to consist of twelve knights ; or the petty assise , which served for the right of possession only , and was made up of twelve lawful men . chap. xvi . pag. 86. lin . 34. the superstitions and fopperies . ] these you have also in sir h. spelman , with an incipit missa judicii , which shews that the church of rome did once approve of these customs , which since she hath condemned , notwithstanding her pretence of being infallible . i would to god , she would deal as ingenuously in throwing off those other errors and corruptions , we do so justly charge her with . chap. xvii . pag. 87. lin . 21. hogenhine . ] or agen-hyne , that is , ones own servant . it is written also home-hyne , that is , a servant of the house . lin. 33. holding in frank pledge . ] the latin is francus tenens . wherefore amend the mistake , and read holding in frank fee. for frank pledg is a thing of another nature , as belonging to a mans behaviour and not to his tenure . now frank fee is that which is free from all service , when a man holds an estate at the common law to himself and his heirs , and not by such service as is required in ancient demesne . pag. 88. lin . 12. the falcidian law. ] so named from one falcidius , who being tribune of the people in augustus his time , was the maker of this law. lin. 33. twenty pounds worth of land in yearly revenue . ] so i render 20. libratae terrae . for although cowell in proportion to quadrantata , or fardingdeal of land , which he saith is the fourth part of an acre , seems at first to gather that obolata then must be half an acre , denariata a whole acre , and by consequence solidata twelve acres , and librata twenty times twelve , that is , two hundred and forty acres : yet this was but a conceit of his own . for by having found the word used with reference to rent as well as land , thus 20. libratas terrae vel reditûs , he is forced to acknowledge , that it must signifie so much land as may yield twenty shillings per annum . to which opinion spelman also gives his assent . but what quantity of land this librata terrae is , cannot so easily be determined . cowell out of skene tells us , it contains four oxgangs , and every oxgang thirteen acres : if so , then it is fifty two acres , and twenty of them , which make a knights fee , come to one thousand and forty acres , which somewhat exceeds the account here set down of six hundred and eighty out of the red book of the exchequer . but there is a great deal of more difference still , as the account of the knights fée is given by others . in one manuscript we read , that a yardland contains twenty four acres , four yard-lands make one hide , ( that is , ninety six acres ) , and five hides make a knights fee , ( that is , four hundred and eighty acres ) the relief whereof is a hundred shillings . another manuscript hath it thus , ten acres according to ancient custom make one fardel , and four fardels ( that is , forty acres ) make a yardland , and four yardlands ( that is , one hundred and sixty acres ) make one hide , and four hides ( that is , six hundred and forty acres ) make one knights fee. a third reckons it otherwise , that sixteen yard-lands make a whole knights fee ; which if we make a yard-land to be twenty four acres ( according to the first account ) comes to three hundred eighty four acres ; but if ( according to the second ) we take it for forty acres , it amounts to six hundred and forty acres . and , saith he , when they are taxed at six shillings four pence ( that is , every of the sixteen yard-lands , which make up the fee , at so much ) they make the summ of one hundred shillings ( or five pound , which was the ancient relief of a knights fee. ) but this is a mistake either of the author or the citation ; it is six shillings three pence , which makes that just summ ; from whence we learn also what proportion was observed by the lord in setting and demanding of the relief upon the next heir after his ancestor's decease . further in the kings writ , as glanvil cites it , it is said , that twelve plough-lands make one knights fee : which , allowing to a plough-land one hundred & twenty acres , amounts to one thousand four hundred and forty acres . in the main , as to the value of a knights fee , 't is enough what cowell tells us , that it was so much inheritance , as was sufficient yearly to maintain a knight with convenient revenue , which in henry the thirds dayes , camden sayes , was fifteen pounds , and sir thomas smith rates at forty . but to confirm the account , which our author here gives us , we find in the statute for knights in the first of edward the second , that such as had twenty pounds in fee , or for term of life per annum , might be compelled to be knights . and as to the various measure of land ( of which we have had a remarkable instance in this business before us ) spelman hath given us good reasons for it ; since where the land was good , they might probably reckon the fewer acres to a yard-land , a hide , a knights fee , &c. and where it was barren , they might allow the more . beside , that some lords , who lett these fees , might be more bountiful and profuse , others more parsimonious and severe to their dependents ; and that the services which were imposed upon these fees , might in some mannors according to custom be lighter , in others upon agreement and covenant more heavy . all which might strangely diversifie the account , as to the quantity or measure of those lands , which were to make up a knights fee. chap. xviii . pag. 91. lin . 4. a little habergeon or coat of mail. ] in latin halbergellum , a diminutive from the saxon halsberg , armour for the neck and breast . it is written also haubergellum and hambergellum . they mistake themselves , who translate it a halbert , in french halebarde , anoffensive weapon , for a coat of mail , which is armour of defence , in french haubert or hauberk ; whence fée de hauberk , which we have already explained somewhere before . lin. 5. a capelet of iron . ] a little iron or steel cap instead of a head-piece or helmet , which the better sort wore . for by comparing this with the two fore-going sections , we find they were to have a difference of arms according to their different quality and estate . lin. 7. a wambais . wambasium ] or wambasia , so called , i suppose , because it reached over the belly or womb , was a jacket or coat of defence , used in stead of the coat of mail , perhaps like unto our buff-coats , though probably not of leather only , but of any other material , as the wearer should think fit . pag. 92. lin . 6. timber for the building of ships . ] in latin here , mairemia ; written also meremia and meremium and maremium and muremium , from the french meresme , timber to build with . lin. 14. stercutius . ] saturn so called , as being the first inventer of dunging land. lin. 28. vnder the title of free-men . ] here the author himself hath in the latin added a marginal note , which i thought fit to remove to this place . he saith , that among the ancient germans the alway free , the middlemost free , and the lowermost free were , as it were , the classes and several ranks of the lesser nobles , i. e. of their gentry . for the title of nobless ( as also in our vulgar language ) was given only to princes and great men. and for this he quotes munster , cosmog . lib. 3. chap. xix . pag. 93. l. 32. in the borders of the carnutes . ] a people of france , whose countrey is called chartrain , and their chief city chartres , about eighteen leagues from paris eastward . that town eight miles off , called dreux ( in latin drocum ) was so named from the druids , who dwelt there at first , and likely enough afterward often resorted thither . p. 94. l. 37. of the three estates , the king , the lords , and the commons . ] there are indeed three orders or estates acknowledged by true divines and sound lawyers in the english government ; to wit , the lords spiritual , the lords temporal , and the commons of england . but the fundamental mistake of our learned author is , that he hath joyned those two sorts of lords ( whose very character shews them to be of a distinct species , though as to the publick welfare and the kings service they ought to be of one and the same interest ) into one estate , and to make up the third estate , thought himself obliged to bring in the king himself for one , who is lord paramount over all the three ; and by this means ipsam majestatem in ordinem redigere . i call this a fundamental mistake , as a most probable ground of rebellion ( as it was in the barons wars , and in our late civil broils ) inasmuch as if the king make one of the three estates , as they fancy he doth , and hath ( as they do from thence conclude he hath no more ) but a co-ordinate power with both or either of the other two estates ; that then it is lawful for both or either of those estates , in case of publick grievances to quarrel the king ( their co-ordinate ) if he will not give way to their redress ; that is , if he will not consent to do what they would have him to do ; and upon his refusal of so doing , to raise war against him , to sequester and murder his loyal adherents , to destroy his royal person ; and finally , if he escape the hazards of battel , when they get him into their hands , to bring him to account for a pretended male administration , and the violation of a trust , which god and not the people put into his hands ; and having gone so far , that they may , if possible , secure themselves , to put the monarch to death , and to extirpate monarchy it self . this was the ground and method of our late republican policy and practice . wherein yet they did not foresee what examples they set against themselves , supposing this doctrine of the three estates in their sense to be true , and that king , lords and commons had an equality of trust and parity of power , that the same outrage , which the rump-commoners acted against the king , to the destroying of him , and against the lords , to the outing of them , and voting them useless and dangerous ( as to their share of government ) might one time or other be more plausibly promoted , and more effectually put in execution by one or both of the other two estates , with the help and assistance of great numbers of the commoners ( as there ever will be in such national divisions ) against themselves and all men whatever of such pernicious and destructive principles . no. this false doctrine , i hope , will never obtain among us ; and our english government is so well constituted , that our lords spiritual and temporal and our worthy commoners , will find it the interest of themselves and their posterities , that they will ever have that duty and deference to our soveraign , as may secure him and us , and discourage the designs , and defeat the attempts of all such as wish ill to his honour and safety , or to the publick peace . besides , is it rational to imagine , that the king , whose absolute right by law it is , to convene the estates , when and where he thinks fit , to call and dissolve parliaments , as he pleases : in a word , that he , in whose name all justice is administred , in whose hands the militia is , and by whose authority alone the subjects can take up arms , should stand only in a co-ordination of power with any other persons whatsoever or however assembled or associated within his dominions ? this flaw i could not but take notice of in our great author , and that only with an intention to undeceive the unwary reader , and not to reflect upon his memory , who though he kept along a great while with the long parliament , yet never appeared in action for them , that ever i heard , much less used or owned that virulence and violence , which many others of that ill body of men judged necessary for their proceedings . chap. xx. pag. 96. lin . 15. alderman of england . ] the word alderman , in saxon , ealdorman , hath various acceptions , so as to signifie all sorts almost of governours and magistrates . so matth. 20. 25. the princes of the gentiles , in the saxon translation are called ealdormen ; and holofernes , i remember , the general of the assyrian army , is in an old english translation called the alderman of the army . so aethelstan ( whose younger son this ailwin was ) being duke or captain general of the east-saxons is in this book of ramsey styled alderman . the most proper importance of the word bears up with the latin senator , i. e. parliament-man ; as the laws of s. edward make out . in like manner , say they , heretofore among the britons , in the times of the romans , in this kingdom of britanny they were called senators , who afterwards in the times of the saxons were called aldermen ; not so much in respect of their age , as by reason of their wisdom and dignity , in that some of them were but young men , yet were skilled in the law , and beside that , were experienced persons . now that alderman of england , as ailwin here was , had to do in affairs of justice , appears by the foresaid book of ramsey , where it is said , that ailwin the alderman and aedric the kings provost sate judges in a certain court. the alderman of the county our author makes to be the same as the earl or lord of the county , and spelman saith , it is hard to distinguish , but at length placeth him in the middle betwixt the count and viscount . he and the bishop kept court together , the one for temporals , the other for spirituals . the title goes lower still , to denote a mayor or bailiff of a corporation , a bailiff of a hundred , &c. lin. 30. healf-koning . ] it was an oversight or slip of memory in our author , to say , that ailwin was so called ; when the book of ramsey tells us , it was his father aethelstan , who was of that great power and diligence , that all the business of the kingdom went through his hands , and was managed as he pleased , that had that nick name given him therefore . lin. 36. the graves . ] our author makes them subordinate to the aldermen of counties : but in the laws of the confessor they appear to be muchwhat the same . there we read , and as they are now called greves , who are put in places of rule over others , so they were anciently among the english called ealdermen . indeed , the word greve or reev ( for it is all one ) is of as various use , as that other of alderman is . in saxon it is gerefa , from gerefen and reafen , to take or carry away , to exact or gather . whence this officer ( graphio or gravius from the saxon ) is in other latin called exactor regius ; and by reason that the sheriff gathered the kings fines and other duties , and returned them to the exchequer , he was called the shire-greve or shire-reev , that is , the gatherer of the county . but the truth is , that greve or reev came at last in general to signifie any ruler or governour set over any place almost whatever ; as the same word grave doth among the dutch. so a shire-greve , or bihgerefa , the high sheriff of a county ; a port-greve , the governour of a city or port. so the lord mayor of london was called formerly . tun-greve , the bailiff of a town or mannor . sometime greve is taken for a count or earl , as alderman is . chap. xxi . pag. 98. lin . 22. for toll and gabell . ] in the latin pro theolonio & gablo . now telonium , from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , properly signifies the place where the officers of the customs receive the kings duties ; but is used also for a duty paid for the maintenance of bridges and river-banks . so hotoman . but in our law it is taken for the toll of a market or fair. and gablum or gabellum , a gabell , from the saxon gafol or gafel , signifies any impost upon goods ; as that in france , upon salt , &c. also tribute , custom , any kind of tax or payment , &c. lin. 32. through the streets of coventry . ] there is a famous tradition among the people of that town concerning this matter , that the lady being to ride naked , only covered all over with her hair , had given order for the more decent performance of her procession , that all the inhabitants should that day keep their shops and doors and windows shut . but that two men tempted by their curiosity to do what fools are wont to do , had some such penalty , i know not what it was , inflicted upon them , as actaon had for the like offence . and they now stand in some publick place cut out of wood or stone , to be shewn to any stranger that comes thither , like the sign of the two logger-heads , with the same motto belike , nous sommes trois . pag. 99. lin . 7. brought in my court a certain toper . ] in the latin , attulit in curiâ meâ quandam toper . i know what the adverb toper signifies among the ancient latines ; but what the word means here , i confess , i am in the dark . it doth certainly stand for some thing ( i was thinking a taper ) which he brought with him into court , and sware upon it , as he should have done upon the holy gospels . i cannot imagine , that by quandam toper , shold be intended some woman or girl , whose name was toper , whom he brought along with him , and in defiance to the court , laying his hand upon her , took his oath as formally , as if he had done it upon the holy evangelists . reader , one thing i forgot to acquaint thee with in the preface , that , whereas the author himself had divided each book into several sections , which were very unequal and incommodious , i thought it much more convenient for thy ease and profit , to distribute them into chapters ; together with the argument or contents of each chapter at the beginning ; and withal , that no one may complain , that i have injured the author , by altering his method , i have left his sections also marked with a numeral note 1 , 2 , 3 , &c. on the side of the inner or outer margin . finis . errata . in the translator ' s preface , p. 4. l. 15. r. ( and hath that of crabbed in it beside ) and as to the method is so intricate . pag. 11. l. 2. r. and strifes : p. 14. l. 50. r. pieces : p. 17. l. 41. r. borderers : p. 20. l. 16. for facts , r. toils : p. 21. l. 24. r. and money : p. 30. l. 16 , r. lazzes : p. 31. l. 28. r. and breeding : p. 34. l. 14. r. peccatum : l. 40. r. or his eyes : p. 35. l. 2. r. quid : p. 43. l. 7. r. sorry old verse : p. 49. l. 48. r. too truly : p. 56. l. 6. r. warden : p. 61. l. 13. r. vulgar : l. 21. r. bestowing her : p. 62. l. 25. r. misdemeanour : p. 65. l. 11. r. add : p. 72. l. 43. r. seasonably : p. 74. l. 5. r. glocester . whom : p. 85. l. 14. r. strict : p. 86. l. 26. r. that in the : p. 87. l. 5. r. what. of him : p. 91. l. 17. r. him : p. 92. l. 32. r. cattle : p. 96. l. 34. r. turned : p. 108. l. 33. r. retired : p. 110. l. 8. r. neptune , as : p. 112. l. 34. r. unknown : p. 113. l. 34. r. inlagh : p. 116. l. 18. r. three things : p. 117. l. 47. r. found : p. 122. l. 6. r. arretted : p. 123. l. 9. r. quilleted . finis . notes, typically marginal, from the original text notes for div a59093-e1270 senec. controv . ●ucret . l. 1. enn. annal. l. 7. plutar. de audiend● . plutar. lib. orac . pyth. 〈…〉 philip. honor . thes. politic . lat. & ital. machiavell in principe & comment . ad ●iv . l. 1. c. 25. & 26. cujacius . alber. gentil . l. 3. c. 11. de jure bell . h. cardan . in prolem . l. 2. judic . astron . text . 54. stat. 1. silv. claudian . in laud. serenae u●or . stili● . l. 2. sect. 2. omnia . c. de vet . jur . enuel . virg. aen. 1. lucret. l. 5. de re● . nat . virg. l. 11. aeneld . aristoph . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hegesand . delphus ap . athen. dipnos 4. horat. carm. 3. od. 18. plin. epist. ad nat. hist. senec. praf . ad controver . ovid. fast. 1. notes for div a59093-e7920 p●ol . 2. geogr. & 2. quadrip . & pausan. l. 1. jornand . de 1th . goth. c. 11. steph. ad la●rt . aug. de civ . dei , l. 2. c. 14. laert. lib. 5. soph. in oedip . in colon. plut. in lib. de exilio . nat. com●s , myt●ol . l. 3. c. 10. plut. de iside & osiride . odyss . 3. exod. 22. psal. 82. 2 paral. 1● . munst. ad gen. c. 9. plut. de serâ dei vindicta . camden . senec. epist. 115. gen. 1. bodin . l. 3. damonoman . 〈◊〉 . l. 1. 〈◊〉 gall. imp. serv. ad 6. aeneid . norden in brit. s●e . ul . senec. nat. quast . l. 3 c. 29 athen. dip . nos . l. 6. jos. scal. in elench . o●at . chron. d. par. trithem . lib. de s●cundis . ovid. 4. fast. heuter . de vet. belgio . l. 2. c. 8. ovid. metam . 12. herodot . in euterpe . stat. 37 hen. 8. c. 26. justin hist. l. 1. arist. 5. et● . ff . de orig. jur . l. 2. meram . 1. & lucr. l. 5. cum poetarumturb● . august . de civ . dei. l. 19. c. 14. hom. iliad . 9. senec. ep . 91. plut. de isid. & osirid . joseph . adv . app. l. a. plut. in lib. de homero . plut. lib. de musica . plato in minoc . sol. polyhist . cap. 6. 〈◊〉 in vit . p●●phyr . plin. nat . hist. l. 16. c. 44. gorop . in gal. paul. merula , in cosmogr . part . 2. lib. 3. num 1. 49. ezra 7. 24. strab. geogr. lib. 4. caes. de bello gall. l. 1. vulcan . in app . ad jornand . goth. munst. cosm. l. 4. cas. bell . gal. l. 5. hotoman c. 2. franco gallae . cas. bell . gal. l. 7. lips. elect. lib. 2. cap. 7. & quast . epi. ●●olic . l. 2. c. 2. plin. nat . hist. l. 10. c. 44. plut. de orac . def . herod . euterp . eustath . ad 1. iliad . senec. in apocol . plin. l. 30. c. 1. br. tuin . apolog antiq . academ . oxon. l. 3. §. 3. 3●9 . reuch l. 2. de . arte cabalist . lips. ●to●c . physolog l 3. dissert . 12 & vide forcatulum l. 1. de gall. imperio . laert. l. 8. & plut orat ●●le esu carnium . senec. epist. 91. clem l. 1. s●●om . apud p. merulam in cosmogr . part 2. lib. 3. camden . bodin . de repub . l. 1. c. 4. in praefat . ad l. 6. relat. lir. lib. 21. ●●ut . de vir●t● . mul●●● . aug. de ●iv . d. ●i l. 18. c 9. athenaus . paul. aemil. hist. franc. l. 10. ovid. de arte amandi l. 3. tac. in vlt. agric . & annal. l. 14. eurip. in mede● . bodin . de repub . l. 6. c. 5. pomp. mela , l. 1. c. 9. gorop . in francicis . malmesb. gest . reg . l. 1. c. 2. connu● ta●● . & l●●s . plato de rep . lib. 5. arist. polit. l. 1. c. ult . trismegist . solin . polyhist . cap. 35. v. plut. quaest . centuriat . rom. 41. br. tuin . apolog . oxon. l. 2. § ▪ 77. v. plut. sympos . l. 4. c. 5. laert. l. 8. plut. symp . l. 8. c. 8. georgic . 3. athen. dip . nos . l. 12. & 13. suid. in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 euseb. praepar . evang. l. 6. apud abrah . o●tel . in theat . mundi . munsler . boëmus , &c. theocr. eidyll . 3. plau. 〈◊〉 . id. amphitr . id. casinâ . plut. de aud . poct . ovid. de art . am . l. 1. bald. l. 5. consil . 78. alber. gentil de nupt . l. 2. c. 13. orid . amor . l 2. clep . 19. id. l. 3. cleg . 4. ld . de remed . amor . l. 2. virg. in ceiri . malmesb. de● gest . reg . l. 1. c. 1. dio hist. rom. l. 60. senec. in octav. act . tac. annal . l. 12. dio hist. l. 60. camden . & lips. ad l. 12. tac. num . 75. agell . l. 16. c. 13. can●len . colonia cas●ri , whence the river called coln . senec. ad alb. c. 7. lips. de mag . rom. l. 1. c. 5. gild. in epist. de excid . brit. noti●ia provine . tacit. vit . agric. juvenal . sat. 6. pla●●n . in vi● . eleutherii . ovid. fast. l. 1. jo. fox hist. eccles. l. 1. zofim . l. 2. notlt . provinc . utr . imper. l. 1. comm . c. 5. & l. 2. comm . pancit . c. 69. ja. douz . annal . holland . l. 1. & 6. procop. bell . goth. l. 4. aethelwerd . lib. 1. fo . 474. adam brem . hist. eccles . brem . & hamburg . c. 5. ex bibliothecâ henr. ranzovii . nithard . l. 4. munst. cos●og . l. 3. plut. in sympos . plaut . ●n aulul . act . 3. martial . l. 8. epig. 12. callimach . epig. 1. plaut . in as●nar . anacreon . carm . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . et tacit. cas. de bell . gall. l. 6. senec. de benefic . l. 4. c. 30. proverb . 1● . juvenal . s●● . canut . leg . can . 50. theognis . odyss . 18. & 22. in allegoriis ●omeric . martial . l. 3. epig. 43. bracton . de coronâ l. 3. c. 28. an. 18 ed. 3. fol. 20. à briton . cap. 25. ovid. metamor . l. 7. matth. parls in h. 3. pag. 1000. vid. l. 2. art . 8. alured . leg . can . 25. dion . halic . lib. 1. flor. hist. rom. l. 3. c. 3. lamprld . v. bodin . de rep . l. 2. c. 2. & franc. hotom . disp . ●eud . cap. 2. bed. hist. eccles . l. 2. c. 5. fest. verbo pecul . & verbo ovibus . v. inae leg . cap. 13. malmsb. de gest . pontif. l. 1. ranulph . higden in polychron . joan. car●otensis de nugis curial . l. 6. c. 17. caxt. cap. 96 ▪ rotulus wintoniae . hist. cantu●ri●nsis . canu● . leg . 19. leg. edw. confess . cap. 20. bract. de coron● , l. 3. c. 10. pont. heut . de vet . belg. l. 1. c. 13. jul. pollux . l. 3. c. 8. 3. edw. iii. itin. north. tit . coron . 293. 6 edw. 2. itin. can● . * perhaps it should be t●●cham . b●act . lib. 3. de caroni c. 10. a● . 21. ed. 1. alured . rhivallens . ap . tuin . apol. ant . oxon. l. 2. §. 207. dionysius . aeneus . malmsb. lib. 3. de pontif. & de gest . reg. 2. bract. lib. 3. decoron . cap. 15. ingulphus . joh. pris. detc●s . hist. brit. camdenus è sarisburiensi . c. de donat . inter virum & uxorem . l. 26. in epist. ad l. 6. relat. anno dom. 680. ingulph . matth. pari● hist. major . pag. 838. ingulph . ralph holinshed in hen. 7. chart. archi●p . cant. see the charter of edw. conf. in english rhyme , camden in essex . ingulph . ingulph . * the saint , to whom the monastery was dedicated . notes for div a59093-e28430 gerv. tilb. d● sca●c . cap. 32. camden . guil. lè rouille alencon . claudian . in 4. cons. honorli . dooms-day . horat. art . poetic . leland . matth. cantu . in antiq. eccles . britan. tuin . apol . an t oxon. lib. 1. §. 81. camden i● ord. angl. macrob. saturn . lib. 7. cap. 13. vopisc . in aurel. lips. ad 2. annal. tacit. num . 4. ingulph . malmsb. lib. 2. cap. 8. a. ch. 780. guil. mapaus . can●len . 〈◊〉 ●eud . 2. 〈◊〉 . 2. stat. 36. ed. 3. cap. 15. mi●h . p●ri . polydorus . coverfeu . alberic . gentil . de jure bell . lib. 1. c. 20. august . de civ . dei. l. 18. c. 10. pausan. atticis . terms . justices of peace . a. m. 66. in bot. chart . 2 rich. 2. pro decan . & capit . ec●●s . lincoln . leg. edgar . cap. 5. petron. arbl● . basil. concil sess . 21. duaren . de benes . l. 6. c. 3. vid. platin. in joh. 22. vit● . canut . leg . cap. 69. & ed. confess . bracton . lib. 2. cap. 35. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in novell . lev. 13. hotoman . in verbo fe●dal . releu . carol. sigon . de reg . ital. lib. 8. v. hocom . comm . ad 3. lib. feud . mariana hist. hispan . lib. 5. cap. 11. canut . cap. 68 ● rich. 3. tit . testament . 4. lind provin . ●●nstit . de testa●● . c. sta●utum & de ●umum . eccles. c. accidit . verb. abolim . glanvil . l. 7. c. 8. c. de testam . l consulta divalia . hotom . feud . haubertic . in diction . morus in utopi● , l. 2. de mirac . thom. ap . fox hist. eccles . lib. 4. guli . gemetic . de ducib . norm . lib. 7. cap. 23. fest. latro. heb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latro à 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latus . bodin . de rep . l. 6. c. 6. dist. 55. c. 4. ff . ad leg . corn. de sicar . l. 4. § ult . bract. lib. 3. tract . 2. c. 23. & stamf. plac . coron . l. 1. c. 38. stow , & v. malmesb. l. 5. de gest . reg . fol. 88. spec. just. cap. des articles , &c. lamb. itinerat . cant. west . 1. c. 4. pat. 46 lid . 3. ovid. art. am. lib. 1. v. leg. athelstan . 14. bellarm. l. 2. de rom. pontif . c. 21. polycrat . l. 8. c. 22. rot. parl. 11 rich. 2. camden . a. 1004. metamor . l. 10. v. rog. hovedeu . fol. 303. coke prafat . ad lib. 6. 40 assis. pl 24. & 32. ed. 3. 〈◊〉 . barr. 261. annal. hiber . 1212. sub henr. 3. malmsb. l. 2. de gest . reg . c. 8. & ingulph . fol. 519. malmsb. l. 1. de gest . pont. caes. germ. ad arat. in aquario . pindar . olym. 9. lips. poliorcet . lib. 1. dissert . 2. chauc . in prolog . of the sumners tale . pet. blesens . app . ad ingulph . c. de poenis . l. 21. sancimus . v. canut . leg . 74. fox . in hist. eccles. ed. 2. rescript . dat . 10. kal. maii ap . veterem urbem , pontificat . 2. ca●s . comm . l. 3. ath. dipn. l. 6. feud . l. 2. tit . 20. otho fris. lib. de frederic . 1. radevic . l. 1. c. 26. bract. l. 5. de esson●is , c. 10. & 26 ed. 3. fo . 57. a. 30 ed. 3. fol. 2. 6. v. 17 ed. 2. tit . attaint . 60. 1● ed. 3. tit . challenge . 115. plo. com . fol. 117. 8 h. 6. fol. 10. bract. tract . de coron . l. 3. glanv . l. 14. c. 1. polydor. hist. l. 8. matth. park . in vit . rob. archiep. cant. malmesh . l. 2. de gest . pontif . lact. instit. l. 7. de divin . praem . c. 9. hoveden . annal . l. 2. coel. rhod. antiq . sect . l. 17. c. 21. sophocles in antigone . arist. 2. de coelo . iliad . 3. deut. 4. zanch. de nat . dei , l. 1. c. 6. reuchl . de verb. m●rif . l. 2. c. 16. psalm 104. hebr. 1. 7. aeneld . 6. anthol . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . epigr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . polyhist . l. 1. c. 10. ovid. fast. 2. senec. ep. 41. mart. del rio disq mag . l. 4. sect . 3. & 4. ovid. fast. 4. pic. mirandula in heptaplo . pindar . olymp. 3. vit● roberti . decret . tit . de vulgar . purgat . ●●us . 2. qu●st . 5. bract. l. 3. tract . 2. c. 10. & canuti leges . matth. paris . v. britton . cap. d' appe●les , and temp . ed. 1. 〈◊〉 . quod permittat . 9. temp. ed. 1. tit . attorney , 103. polyd. hist. angl. 2. tuin . com. de . reb . albion . dav. pouel . in epist. guli . flèetwode . cas. l. 6. de bell . gall. paul. merula . in●ulph . camden . polyd. hist. angl. l. 11. mod. ten . parl. jo. caius antiq . cantabrig . l. 1. v. 2● . ed. 3. fol. 18. august . de clv. dei , l. a. c. ●1 . ethelw●●d . l. 3. c. 2. hist. eliens . camd. in northampt. v. kel . relat . 6 hen. 8. fol. 171. stat. 13 rich. 2. c. 2 matth. paris , pag. 563. brook tit . prerogative . 31. fr. thin . in contin . chr. eliz. matth. cant. in odonis severi vita . camden . huntingd. hist. l. 6. camden . leg. edw. 5. & canut . 17. leg. edgat . cap. 11. synod . antioch . c. 20. dist 18. c. 4. malmesb. de gest . reg . l. 3. ad leg . 2. de origin . jur . roger de hoveden in h. 2. notes for div a59093-e48280 lucan . some new cases of the years and time of king hen. 8. edw. 6. and qu: mary; written out of the great abridgement, composed by sir robert brook, knight, &c. there dispersed in the titles, but here collected under years. and now translated into english by john march of grays-inn, barrister. all which said cases are hy [sic]the translator methodised, and reduced alphabetically under their proper heads and titles. with an exact table of the principall matter contained therein. graunde abridgement. selections. french (law french) brooke, robert, sir, d. 1558. 1651 approx. 444 kb of xml-encoded text transcribed from 164 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2005-03 (eebo-tcp phase 1). a29656 wing b4898 estc r213260 99825710 99825710 30096 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can 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(eebo-tcp ; phase 1, no. a29656) transcribed from: (early english books online ; image set 30096) images scanned from microfilm: (early english books, 1641-1700 ; 1773:5) some new cases of the years and time of king hen. 8. edw. 6. and qu: mary; written out of the great abridgement, composed by sir robert brook, knight, &c. there dispersed in the titles, but here collected under years. and now translated into english by john march of grays-inn, barrister. all which said cases are hy [sic]the translator methodised, and reduced alphabetically under their proper heads and titles. with an exact table of the principall matter contained therein. graunde abridgement. selections. french (law french) brooke, robert, sir, d. 1558. march, john, 1612-1657. fitzherbert, anthony, sir, 1470-1538. [30], 165, 136-168, 209-295, [1] p. printed by t.n. for richard best, and john place, and are to be sold at grays-inn gate, and furnivals inn-gate in holborn, london : 1651. edited by john march from "la graunde abridgement" compiled by sir robert brooke, which was based in turn on the work of the same name by sir anthony fitzherbert. text and registration continuous despite errors in pagination. includes index. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) 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as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law reports, digests, etc. -great britain -early works to 1800. 2004-02 tcp assigned for keying and markup 2004-03 aptara keyed and coded from proquest page images 2004-11 melanie sanders sampled and proofread 2004-11 melanie sanders text and markup reviewed and edited 2005-01 pfs batch review (qc) and xml conversion some new cases of the years and time of king hen. 8. edw. 6. and qu : mary ; written out of the great abridgement , composed by sir robert brook , knight . &c. there dispersed in the titles , but here collected under years . and now translated into english by john march of grays-inn , barrister . all which said cases are by the translator methodised , and reduced alphabetically under their proper heads and titles . with an exact table of the principall matter contained therein . london , printed by t. n. for richard best , and john place , and are to be sold at grays-inn gate , and furnivals inn-gate in holborn , 1651. to the reader . reader , when i considered what great care our parliament had taken of the publick good ; in enacting our laws to be translate● into english , the●● which , certainly nothing more equall , that the people might in some measure instruct themselves in that to which they are bound to obedience ; and of which by the law it selfe , they cannot , nor must not plead ignorance . and when i had likewise considered the excellent , and most usefull law that is contained in this little volume called petty brock ; i thought it a labour servicable to the publick to translate it , which i here present you in your own language : make use of it , and you will finde magnum in parvo , great benefit in this little work ; and i doubt not give him thanks for it , who is ambitious of nothing more then to be yours , and the common-wealths most faithfull servant , jo : march : the table . abridgment . page 1 damages increased after issue and verdict upon it page 1 costs ibid acceptance . lease of a tennant for life is void by his death 1 void , and voidable lease , diversity 2 acceptance by the issue in taile of the second lessee ibid privity ibid diversity ibid apportionment ibid acceptance by him in remainder ibid acceptance by the successor of a bishop ibid payment at another place 3 action popular 3 within the yeer ibid action upon the case 3 mill 4 where an action upon the case lies , where not , diversity ibid delivery of goods traversed in detinue ibid negat pregnans ibid action upon the case for calling a man perjured ibid action upon the case for caling him perjured and justification in it . ibid of his own wrong . 5 bar in an action upon the case , by law wager in det . ibid plea to avoid double charge ib travers ibid action upon the case upon finding of goods 6 evidence ibid action upon the case upon a devenerunt to the hands of the defendant ibid evidence ib place in an action upon the case . assumpsit is not local 7 place in det . is not traversable ib action upon the case against executors . ib not guilty a good plea in an action upon the case , and where not 8 hiis similia in an action upon the case ib action upon the case , upon trover . ib the conversion to use traversed ib evidence ib action upon the case , for not payment of marriage money 9 action upon the statute his freehold no plea in an action upon the statute ib upon the statute of 5. r. 2. his freehold . ib avowing upon the statute , and by common law 10 diversity ib disclaimer ib his freehold is an action upon the statute of 5. r. 2. ib disseisor ib accompt 10 account against disseisors ib privity necessary ib account against a gardjan ib pleading ib adjournment 11 cause and place of adjournment . ib demurrer ib dubious verdict ib forreign plea ib certificate . ib administrators ibid administration committed , pending the writ ib who shall commit administration vacate ib episcopatu . ib relation ib power and interest certain ; diversity 12 who shall be said proximo de sanguine to take letters of administration by the statute ib civil law , the law is since adjudged otherwise 13 see ratcliffes case my lord cook ib land which is a chattel shall by office 14 age 14 arreares of rent ●or● of annuity and damage ib diversity ib scire fac , against the heir ib thing real and thing personal diversity ib avowry ib costs ib where debt lies , and where a scire fac . 15 diversity ib where the king shall have his age , where not ib age of a parson , prebend , &c. 10 alienations ibid where the heir within age shall be in ward , where not ib alienation by tenant in fee and by tenant in taile diversity ib relation of an office diversity 17 fine for alenation , intrusion , licence to alien inmortmaine ib variance from the licence ib fine levyed ib averment ib two joyntenants , the one releases to the other diversity 18 fine upon release , & upon conu●ance of his right , &c. diversity ib estoppel ib licence to alien for life ib burgage tenure ib devise is an alienation ib alien see tit. denizen 18 alien 19 alien purchase ib office ib information ib the king shall have a lease for yeers 20 purchased by an alien . ib amendment ibid variance amended after judgment ib amendment after a writ of error came to the common bench ib in what thing the king shall amend his declaration in another term 21 appeal ibid not guilty in an appeal ib se defendendum ib evidence ib justifie ib indictment before the coroners and before othe justices ib diversity 22 appeal for homicide ib woman intiuled to an appeal of death of her husband , loses it by marriage ib quarentine ib coroner and his power ib apportionment 23 contract apportion ib approportionment by the common law upon purchase ib quaere ib where a rent service shal be apportioned , where not , see before ib recovery or discent of parcel 24 rent charge ib arbitrement ib pleading of a condition in barr ib replication ib see tit. conditions ib assets in their hands , see tit. extinguishment 25 demurr upon evidence ib legacies shall not be paid before debts ib assets per discent assets by discent . judgement upon assets found false plea ib assigne 26 assignee charged with the covenant of his grantor ib audita quer . ib assise 26 baily examined in assise ib attachment shall not be de bones alterius quam ten . ib of what things an attachment ought to be 27 election of his tenant ib assurances 27 fine with proclamation to bind tenant in tail , and his issue 28 the law is now otherwise : see the case of fines in my lord coke ib five years for the issue in tail to claim ib equity ib quaere ib 4. hen. 7. cap. 24. ib rast. fine . 8. ib privity ib f●ne confessed and avoided ib intendment 29 averment ib fine by conclusion ib stranger ib fi●e with proclamation by the tenant in tail , the reversion or remainder to the king and common recovery ib diversity ib see my lord cokes first book ib quere 30 common recovery by the common law , and after the statute diversity ib assurance that the heir should not sell 31 to except the last obligation ib attaint 32 false quantity in demands ib attaint upon an appeal of maihew ib ataint for termor ib gardjan and tenant by stature merchant ib jurors take conusance and notice of a thing in another county 33 place not traversable ib trespass transitory , and locall diversity 34 information ib attorment 34 where the attornment in the absence of the purchaser shal be good , where not , ib quaere 35 avowry made without attornment , and the contrary ib fine levied ib per que servitia ib where a grant shall be good without attornment ib attornment necessary , where not 36 attornment upon grant of a reversion of a term ib diversity ib whether services pass by feoffment of the mannor without attornment 37 lease for life , and grant of a reversion for years , to commence after ib attorney 38 in what case a man shal make an attorney , what not ib audita querela ib feoff or the heir of the conusor shal have contribution ib contra of the conusor himself 39 averments see tit. pleadings 39 where a man ought to aver , that the one , and the other , are one , and not diverse , and where ècontra ib predict serves for an averment ib averment upon avowry 40 avowry 40 land charged with two distresses by dower of part ib partition is cause of two distresses ib avowry changed without notice and ècontra ib sale by deed inrolled 41 fine ib recovery ib discent ib quere ib how and in what place notice shal be made ib que estate in another person ib diversity ib avowry upon the land by the statute of 21. h. 8. cap. 19. and the answer in it 42 his free hold in avowry for damage feasant ib no seisin , and yet ward 43 limitation in avowry ib seisin traversed in avowry ib bar. bastardy . 44 vvhat divorce may bastardise the issue , what not ib divorce after death ib battell . 45 before whom bartell shall be made and tried ib bill 45 premunire by bill ib cerciorary . 46 mittimus ib cerciorary to remove indictments ib certificate of the bishop . ib averment contrary to the certificate of the bishop ib challenge 47 many hundreds ib challenge ib charge . 48 charters of pardon 48 for what thing pardon shall serve , and for what gift or restitution is necessary ib pardon before office , and after diversity ib where relation of an office shal not defeat a mean act ib pardon of alienation by parliament , and letters patents diversity 49 amoveas manum ib intrusion pardoned before office and after office diversity ib livery ib full age ib chattels 49 remainder of a chattel devised ib diversity 50 chose in action 50 thing in action ibid thing in action vested in the king by the stat. 31. h. 8. ib thing in action personal , mixt and real 51 diversity ib clergy 52 no clergy in petty larceny 52 bishop or metropolitan hath his clergy ib laps for the ordinary metrop . and the king ib bigamus ib heretik ib excom . ib jew ib turk ib greek ib roman ib cecus ib quere ib bastard 53 colour 53 matter in law ib to the plaintiff ib to one mean ib to the defendant ib poss. determined ib poss. defeated ib feoff . release ib fine recover ib diss. reentry ib property ib upon a bar ib by a mean ib writ . ib justifie as servant 54 poss. in law ib commission 54 made knight after the commission ib where one commission shall determine another ib et e contra ib diversity betwixt commission of goale delivery , and oyer and termyner 55 justice of the common bench , made justice of the kings bench ib kings bench error 56 justice of the common bench , chief baron of the exchequer or of oyer and termyner , or goale delivery ib voydence by creation a bish ▪ ib quere ib oyer ib oyer and termyner ib peace ib goale delivery ib error in pleas 57 proces or out law . ib justice of peace made knight of every commission ib grant , & commission , diversity ib commission read or proclaimed ib notice 58 no such in rerum natura ib commission unica vice ib commission determined in part ib commission in eyer ib kings bench 59 diversity ib justice for term of life ib commission determined for want of adiournment . ib where the records shall remaine . ib conditions 59 special shewing of the performance of the condition contained in indentures ib limitation of payment , and not condition 60 executors ib ordinary ib testament ib tenure , & condition diversity ib avowry ib causa matrimony praelocut . ib condition performed by reason of death , et econtra 60 ad intentionem , is no condition 61 he which will have advantage of a condition , must give attendance ib condition shall not be apportioned ib conditions performed 62 where proviso shall make a condition , where not ib quere 63 infra terminum 10. an . & infra terminum predict . diversity , surrender . foreiture ib reading 64 defeasans ib arbitrators ib the reason seems because the submission is conditional ib acquitted saved harmless , and discharged ib diversity ib non damnificatus est ib payment at another place ib pleading of a condition in the negative , and in the affirmative , diversity 66 condition that the estate shall cease ib confess and avoid 66 where a man confesses and avoids , there he shall not traverse ib confirmation 67 bishop charges with the assent of the dean and chapter ib misnamer ib sigillura ib relation 68 where a confirmation shall be 〈◊〉 by the bishop , dean , & chap et e cont ib interest and judiciall power , diversity ib patron hath fee ib where the conformat . of the new king is necessary , where not 69 franchise ib these words for him and his heirs in the grant of the king ib et è contra ib conscience 70 subpena to execute an estate ibid vendee shall have see without words heirs ib continuances ib imparle to a day in the same term in a common recovery ibid contract 71 contract cannot be divided ib obligation determines contract ibid diversity ib corone crown 72 a man pleads not guilty , and after pleads pardon ib felon after judgement , had the priviledge of the church ib attainder by premunire , and attainder of felony , diversity ibid woman with child shall not have the benefit of her belly but once ib woman bigg judg'd to be burnt 73 indictment ib appeal ib who shall be said principall ib a man killed at sword and buckler or at justing 74 indictment in the time of one king , shall serve in the time of another ib certiorari ib indictment , not discussed pending the commission of oyer and terminer ib cerciorari mittimus ib indictment before justices of oyer , &c. and before just. of gaol delivery , diversity ib burglary 76 burglary ib clergy of the principal , shal not serve the accessary ib acquit as accessary , and after arraigned as principal ib woman abjured 76 accusation in case of treason , and misprision ib tryal of treason by the common law ib tryal of petty treason 77 civil law ib witnesses , and accuser diversity . ib challenge ib abjure for treason ib quere ib tryal of felony ib removing of the prisoner out of the kings bench to the countrey 78 a man takes the church , and will not abjure ib church serves for forty daye● 79 abjuration , and day to doe it ib sanctuary pro vita hominis ib grant , or prescription to have sanctuary for debt , good , and where not 80 church suspended ib church , and sanctuary ib abjuration discharges felony ib abjure for petty larceny ib judgement of life and member is felony ib corporations fail of the name of corporat . ex parte quer . & ex parte def . diversity ib quere 81 abbie extinct ib quere ib creation and gift in one patent ib patent to two intents ib costes 71 costes in a quare impedit . 72 penalty given by statute ibid nonsuit ib defendant shall have costs by statute ib covenant 72 covenant without words of covenant for him , his heirs and execut : ib coverture . 73 deed inrolled by a feme cover by the common law , and by custom diversity 73 london ib count 73 count against the tenant , and prayee in aid 73 court baron 74 t is no mannor , without suitors ib where steward , or under steward may let by copy , and ècontta ib quere ib customs . 74 custom per tot . angliam , and custom in a city or county diversity 74 damages 76 damages abridged and increased upon inquest of office ib contra upon issue tried betwixt parties ib costes ib where attaint lies , where not . default default after réceit 76 demurrer . 77 demur upon office ib for what tenure , livery due to the king ib misrecital of a statute 77 denizen . see tit alien 77 denizen and alien ib king cannot alter his law by his patent ib escheat ib deputie 78 office assigned over 78 detinu . debt 78 debt upon indent . of covenant , in which are words obligat . ib where payment is a good plea in debt , without acquittance , or writing , & ècont . shewing of deed ib once barred upon an obligation , t is for ever ib debt for release ib devise 80 testament by a feme covert by assent of the husband ib countermandable after her death ib devise by the husband to the wife ib estate for life by intent , and devise good by implication ib devise to a common person in london , and devise in mort. in london diversity 81 where survivor shal not hold place in a devise ib in feodo simplici ib where all the executors shal sel , and where one may ib quere ib devise that his executors shal sel post mortem i. s. 82 devise that the feoffees shal make an estate , where he hath no feoffees ib sale of land by executors after disseism , recovery 82 fine levied , or discent 83. title of entry , and right of entry , diversity ib where the property is devised , and where the occupation , diversity ib devise the occupation ib devise that every one shal be heir to the other ib words to make a remainder 84 devise to do at his pleasure ib where the heir may waive a devise , and ècontra . discent ib diversity ib devise tols a discent , and no remitter 85 waive devise ib divorce 85 acts executed before the divorce ib diversity ib cui ante divorcium ib discent 86 remainder to the right heirs ib none can be heir to a man attaint . ib gavelkind ib diversity . ib casus sir john hussey 87 ouster l' main ib heirs males , name of purchase . ib treason 88 diversity where the ancestor hath some estate , where not ib remainder 89 remainder ib remainder ib remainder in abeyance 90 remainder heredibus mascul . de corp . & rectis hered . diversity ib discent to an heir in ventre mirs ib recovery against tenant in tail , the reversion in the king ib the king tenant in tail cannot discontinue by grant by patent 91 so t was determined in the case of the lord barkley ib discontinuance of proces 92 diversity betwixt discontinuance , and parol saus jour ib dismes , tythes 92 lay man shal pay tythes for spiritual land , otherwise of a man spiritual ib disseisor . 93 lease of land of another man ib commander is a disseisor ib distress pound overt ib pound breach : ib done , gift 94 what passes by words omnia terras & tenementa ib gift of a chattel by the king ib what passes by grant of omnia bona ib dower 95 dower of a rent reserved upon a lease for years , and for life ib judgement , & cesset executio . ib what joynture shal be a bar of dower , and what not ib devise by the husband to the wife ib dum non fuit compos mentis 96 fine levied before a judge off non saue memory , and a gift of an office by him diversity ib ejectione custod . 96 ejectione custod . of a rent before seisin ib contra of land ib enquest 97 where a peer of the realm is party , knight shal be in the jury ib quere ib enquest taken de bene esse ib enquest recharged after verdict ib entre congeable . lawfull entry . 97 land given habend to the grantee , and ●e●●dit●pro termino no vita ib where he in reversion shal falsifie recovery had against tenant for life , where not 98 aid prayer of a stranger is cause of forfeiture ib entry lawfull where not ib recovery against cestuy que use in tail ib recovery against cestuy que use in tail 99 and the entry of the feoffes tolled ib use in tail ib quere 100 equity ib exposition of a statute ib fine by ten in tail in use , or possession ib casus wimbish ib recovery void 101 averment ib recovery upon a true title falsified ib covin ib entry or distrain upon the patentee of the king , contras . upon the king ib who shal travsere an office . ib entry by a purchasor of a reversion , for condition ib equity ib error 103 teste misordred in a writ ib escape first sheriff suffers the escape , and retakes , and the second sheriff suffers him to escape again ib escheat 104 foundership escheated , or forfeited ib heir ib writ of escheat where the tenant died not seised ib right of entry● escheat ib acceptance ib disseisor 10 diversity ib acceptance ib alience ib essoigne essoign upon the vjew , or voucher ib error ib diversity ib estates casus sir t. lovel , heredib . mascul . by patent of the king , and in grant of a common person , diversity 106 estate in fee during the life of i. s. ib grant or feoffment , and devise diversity ib diversity ib tail executed by reason of an immediate remainder 107 devi●ee shal have fee without words , heredibus , or imperpetuum ib estoppel prescription gon by acceptance of a grant ib who shal plead a record for estoppel ib privity 108 respit of homage by 2. ib livery ib partition ib lease confessed and avoided ib a man makes a fine upon an indictment of extortion , or trespass , and after pleads not guilty 109 the entry in making a fine ib protestation ib estoppel by pardon pleaded ib quamdiu lease for years of his own land shall be an estoppel ib stranger 110 defeasance to a stranger , and where to the defendant ib diversity ib shewing of deeds ib estray 110 who shal have property in an estray ib executions 111 of a thing executory , a man shal have execution for ever , by scire fac . ib execution upon an obligation conjunctim & devisim , and satisfaction diversity ib vinica executio 112 capias ad satisfaciend , not retorned ib executors 112 executors denied the deed of their testator ib judgement thereon 113 executor of executor ib two executors , the one not to meddle by a certain time ib executor hath a term and purchases the reversion in fee 114 assets ib exposition extinguishment corporation ib restitution by parliament revives a seigniory or tenure which was extinct by attainder of treason by parliament 115 extinguishment and suspension diversity ib seigniory ib executor hath a term and purchases the reversion in fee 116 assets ib devastavit ib diversity ib the first lessee for years purchases the fee simple ib faits , deeds 117 deed bears date beyond sea ib place traversable ib verba post in cujus rei , &c. ib faits inroll ; deeds inrolled 117 deed inrolled by a feme covert , by the common law , and by custom , diversity ib london 118 examination ib fine levied ib livery of seisin ib feoffment to the king ib relation of an inrolment ib fauxefier , falsifying 120 who shal have attaint ▪ or error ib faux imprisonment , false imprisonment authority of a constable , or a justice of peace ib in nullo est erratum ib tryal in false judgement , and in writ of error , diversity ib fealtie 121 a man shal not doe 2 homage for 2 tenures to a man ; nor to the king ib king ib homage ib corporation ib feoffements 122 feoffement of a house cum pertinen . ib feoffement for maintenance ib exposition of a statute ib remitter 123 feoffement to four , and livery to the attorney of the one for all ib second lessee suffers livery ibid feoffement of a moyty ib feoffement and delivery of the deed upon the land 124 acre in possession and another in use ib plead feoffement infra visum feoffement infra visum terre 124 feoffement to many , and livery to one in the name of all . diversity 125 feoffement void by statute ib feoffements to uses 125 fitz. seised to the use of the father ib tenant in taile shall not be seised to anothers use 126 1. ibid use express . ibid 2. ibid who shall be seised to anothers use , who not ibid corporation cannot be seised to a use . ib in the post 127 mortmaine ibid escheate ib perquisite ib recovery ibid dower ib 3. ibid courtesie ib use in taile ibid 4. ibid tenure is consideration in law ibid termor shall do fealty ibid rent reserved a good consideration ib use changed by buying ib use at common law 128 tenure ibid to whose use the feoffee shall be seised before statute of tenures , and to whose after , diversity ib feoffee by collusion shall be seised to a use . warde ib feoffee causa matrimonii prelocut . seised to a use . quere 129 deceite ib cestuy que use in ●remainder or reversion may sell , but not make a feoffement ib recovery against feoffees to a seisen taile ib notice of the use ib statute expounded 130 notice of the use material ib et è contra ib when a man may change a use , when not ib use in taile determined ib to make a use to commence expectant by covenant 131 mesne to bind lands with a use , to whose hands soever they shall come ib notice of the use ib recovery against cestuy que use in taile . and the entry of the feoffees taken away ib use in tail 132 quere ib equity ib exposition of a statute ib fine by tenant in tail in use , or possession ib recovery to the use of covenants and agreements in indent . &c. 133 where a covenant shal change a use ib a woman seised to the use of her husband 134 where these words ( shal take the profits ) makes a use , and where è contra 135 use cannot be contrary to the consideration ib what is sufficient covenant to change a use ib recovery against cestuy que use in tail by sufferance 136 vendee shal have fee though he hath notice of the use ib use to alter the free hold from one to another by statute ib entry ib quere ib ex post facto 137 recovery to binde the tail in use ib use vests in the heir as heir of his father , where the father was dead before the use came ib relation 138 quere ib warde ib gift of chattels to a use ib statute expounded ib fines levies , fines levied 139 covenant for assurance of a joynture by fine 139 infant shal not levy a fine ib who shal take the first estate by fine , who the remainder ib fine sur conusance de droitame ceo by a. to i. and i renders to a. the remainder to the wife of a. who was not party to the writ ib fine levid by cestuy que use for life 140 use forfeit ib quaere ib fine levied by cestuy que use in tail ib use in tail . quere ib quaere ib london 141 deeds inrolled ib another of the same name levies the fine ib error ib dedimus potestat . 142 conventio ib lease for years by fine to bind the tenant in tail ib estoppel ib infancy ib coverture ib reservation to a stranger ib distress ib lease for years made by fine 143 who may take a fine by the statute de finibus & attornatis ib quere 144 fine in hamlet ib fine in hamlet , or ville decayed ib writ of dower ib forcible entry where a man may hold with force , where not ib remitter 145 quaere ib forfeiture of marriage ib tender not traversable ib forfeiture de terre , &c. ferfeiture of land , &c. 146 forfeiture in an attaint and premunire , diversity ib attainter by parliament 146 clerk convict shall forfeit his goods ib formedon 147 diversity 147 formedonupon taile which commenced in use and is executed upon the stat. 27. h. 8. ib general writ and special declation ib formodon upon a use , general writ and special declaration 148 diversity ib form 149 wood before pasture in plaint of assise ib frankmarriage . 150 frankmarriage with a man ib frankmarriage , the rem . in fee ib garde , warde vvhere the heir within age shall be in ward , where not ib woman out of ward by mariage ibid livery at fourteen yeers ib remainder to the right heirs 152 reversion and remainder diversity ib livery of soccage land 151 lord in knights service shall not ouste the termor , &c. ib where one person shall be twice in ward , where not ib grant of a ward 15● king shall not ouste a terme of his tennant , because he hath his heir in ward 155 knight in ward ib viscount mountague ib diversity where an heir is made knight within age in the like of the anncestor , and where knight within age after the ancestors death . ib writ of ward without seisen infra tempus memoriae tenure traversable 156 no seisen and yet ward 157 assent and dissent to marriage ib divorce ib ordinary ib warde and marriage 158 tenure ib two joyntenants and the heir of the one in ward living the other ib garranties ; warranties . 159 collateral warranty ib coverture shall not avoide a collateral warranty upon a discontinuance ib warranty without heirs 160 warranty to rebut , but not to vouch ib general writ . 161 general issue . ib things to be pleaded and not given in evidence ib command ib common ib rent 162 licence ib lease for yeers and at will diversity ib manumission in deed , and in law , diversity . ib not escaped pleaded , and not arrested given in evidence 163 grants 164 office of charge and of profit , diversity ib ousting the officers ib quere 166 grant void for incertainty 137 diversity betwixt grant and devise ib quere ib lease for life and four yeers over ib what shall pass by grant of lands and tenements , or omnes firmas ib ejectione firme bi hariots 138 hariot custome and service diversity ib detinue ib heresie 138 where a writ de haeret . comburend . shall issue , where not ib abjuration 139 diversity ib homage , see tit-fealty 139 ideot 1●0 ideot and unthrift diversiverty ib imprisonment 140 incident 140 court baron incident to a mannor , pipowders to a faire ib grants 141 recovery of a rent service , good titie to homage and fealty ib indictments 141 indictment of death and poysoning ib justice indicted ib diversity ib alter trespas in felony ib intrusion 142 relation of an office , diversity ib where pardon of intrusion excuses , the issues , livery , &c. where not ib diversity 143 joyntenants 143 where successive holds place , where not ib habendum ib reentry by two or against two where the one dyes 144 journeys accompts 144 judggment 145 nonage saves default ib recovery against an infant by default , and by action tried , diversity ib where a man shall be restored to his first action , and where he shall have error , &c. ib recovery of land in one county which lies in another ib vjew 146 intendement ib assise in n. and recovery p●eaded in h. ib condition determined by judgement 147 judgement given with original ib issues joynes ; issues joyned 148 action upon the case upon an assumpsit ib special verdict where the issue is upon an absque hoc ib americiament . ib issue found in part , diversity ib preignancy ib issue in wast ib americiament 149 issues retornes ; issues retorned . 159 see tit. intrusion debate of tithes betwixt lay persons ib spiritual court ib tryal of a thing ultra mare 150 jurors 150 jury took a scroule not delivered to them in court ib leet 150 pain in the leet for redressing anusance forfeited by presentment ib where the lord shal have debt upon a pain in a leet , and where distrain for it 151 leet of the torne of the sheriff ib exposition of a statute leases 151 void lease ib acceptance by the successor of a parson upon a lease for years , & for life diversity ib lease during a lease 152 house ib averment ib lease for life by a parson , and lease for years diversity lease determined for a time and yet good after ib gardjan in chivalry , nor lord by escheat , shal not ouste the lessee 153 lease for life , and lease for years after ib convenit ib concessit ib dimisit ib locavit ib acceptance of rent by the successor of a parson 154 parson shal not have a writ of right ib a man leases for twenty years , and after leases for fourty years ib lease of a bishop ib dean 155 parson ib prebend ib confirmation ib habend , after such a lease ended where there is no such lease ib lease of a prebend . equity ib lease for yeers before livery sued 156 relation of office ib where the wife shall lose her dower ib lease till a hundred pound be paid ib diversity ib lease by a bishop not sacred , and by a bishop deprived diversity ib confirmation 157 lease till he hath levyed 20. pound ib where the one feast is put before another in a lease ib ley gager , law wager ibid law in detinue of an indent . of lease ib law lies not in a q●o minus ib licences . ibid contra formam collationis 158 lieu place ibid scire facias upon a recognisance ib limitations ib copyhold 159 livery ib where ward , because of ward , shal not sue livery , but ouster l' maine . seiginory revived by suing livery ib where livery shal be of dutchy land , where not 160 general livery and special , diversity . ib mannor purchased by the king shall be in him as in the grantor ib livery , primer seisin ib garde 161 ouster l'main ib where a man shall hold of the king as of his person , and yet not in capite . et ècontra ib extent of livery , and of intrusion , diversity ib attainder of cestui que use by parliament , and of attainder of a sole tenant by the common-law , diversity ibid exposition of a stat. 162 livery by the heir during a leas or devise for years ib where a man shall sue livery ? where not ib what is livery ? what ouster l' main 163 livery of soccage land ib tenure of the king in knights service , and in capite , diversity . ib soccage in capite , and knights service in capite , diversity 164 what livery is ib what primer seisin ib livery in wales , and county palatine ib primer seisin of cestui que use 165 will not performed ib mainprize . svrety upon arrest in london ib priviledge ib procedendo ib revivings . ib where surety upon a bil in banco regis is discharged , where not ib repleader ib power of the justices of the gaol delivery 166 maintenance . ib maintenance by him in remainder or reversion ib sale , where he hath not been seised by a year ib statute expounded . mannor . 167 making of a mannor ib court baron ib suitors ib misnosmer , misnamer . 168 statute avoided by misnamer ib monstrans de faits , shewing of deeds . ib shewing of deeds , and records ib mortdauneester . ib ●eoffment to two , and the heir of the one ib mortdauncester ib discent of reversion , dower ib forfeiture , feoffment , right ib mortmain . ib when a remainder is granted in mortmain , and when a reversion , diversity ib claim ib remainder waived , vse ib appropriation without licence , is mortmain ib lease for 300 or 400 years is mortmain ib otherwise of a covenant for so many years ib 99 or 100 is not mortmain years ib mortmain ib deseisin and discent takes not away the entry of the lord for mortmain ib nonabilitie . ib obligation for usury ib conclusion ib non suit . king nonsuite ib nonsuit upon demur ib nontenure a good plea in an attaint for a stranger ; contra for a privy ib where non tenure shall be a good plea in attaint , where not ib entry in attaint after the last continuance ib nonse name 214 where a woman shall lose her name of dignity by marriage ib notice . ib notice of resignation shall be given by the ordinary ib office de vant. 215 where the king shall not seise without office ib tenant for life , the reversion to the king dies ib full age shal be expressed , when 216 office ought to be certain ib office findes dying seised , but tenuram ignorant . ib where an office intitles the k. to the seigniory , and tenancie ib servitia ignorant . ib melius inquirend . ib foundation not observed 217 land which is a chattel shall be by office ib where the king shall seise without office , & where econtra ib fees granted to him , who after is made justice ib steward and after made justice ib the same man made bailey and steward ib justice of the forrest , and keeper of the forrest ib parson created a bishop 〈◊〉 forfeiture of office i● steward of a forrest and justice ib authority of the justice of forrest 219 sheriff and escheater ib obligation . ib a man bound to b. ad usum ● . who releases ; and good ib oyer of records , &c. see tit. ib monstrans de faits . ib oyer and terminer ib commission of oyer and terminer ib kings bench , alwaies justices of oyer & terminer 220 pain . pain for striking a man in the presence of the king ib panel . 221 part of aliens ; and part of denizens ib tales . error ib parliament ib the king shall hold of no man ib what words in acts will revive seigniories extinct before , what not 222 office for the king ib remitter shall not be where land is assured by parliament in case of a common person , nor in case of the king 223 lease or charge by tenant in tail ib of relation of an act of parliament , diversity 218 pleading of a stat . 224 amendment of the count of the king in another term , contrary of a common person ib elect new burgesses ib parnour , taker of the profits . ib recovery against parnour of the profits , who is in ward of th● king 225 travers by feoffees in use ib pernour ib patents ib licence of the k. not p●rsued ib k. grants by general words ib tail extinct by surrender of the letters patents ●26 formedon without shewing the patent ib assurance ib constat . surrender 217 patentee leases or gives , & after surrenders his patent . ib constat . quaere 228 bailywick or sheriffwick granted , absque compot . ib tol. fair. market ib assise of fresh-force ib borough english , &c. ib diversity betwixt false suggestion , and false consideration quoere 229 of what lease recital shall be in the kings patent , of what not ib recital in a patent 230 king shall take notice ib constat & inspeximus , diversity ib peace ib breach of the peace ib peremptory 231 the first nihil in a scire facias per emptory ib petition . ib where a man shal have petition where travers ib petition and travers 233 pledgee . ib gage delivered for debt ib distress it as a gage ib pleadings . ib averment of his title ib recovery by default , and action tryed ; diversiry ib non tenure no plea in wast entry to avoid a warranty . seisin during the coverture in dower ib averre the like of tenant for life , or in taile ib where a man shall shew the commencem ent of a use , where not 234 fee simple . fee taile ib plenartie ib where plenarty is no plea ib mortmain . parson inpersonee ib premunire 235 where a prohibition lies , and where premunire ib premunire lies for a thing which never appertained to the spiritual court ib preregative ib priority and posteriority ib land in use 236 where the king may waive issue , where not ib gift of goods by the king ib precipe quod redd . for the king escheat 237 information ib myne . quere . prescription 238 custome shal serve , where a prescription will not serve ib presentation ib two grants de prox , presentatione . ib grant de prox . presentatione ib the king shall present to anothers benefit by his prerogative , for that the ineumbent is made a bishop 239 priviledge . ib priviledg shal dismiss the plaintiff . bill of middlesex ib procedendo . 240 where sureties in london shal remain after the action removed , and econtra ib proclamation , ib pena for making proclamation without authority prohibition 241 surmise to obtain a prohition ib admiralty ib property . 242 alien inhabiting before , and coming after war proclaimed : diversity ib quare impedit 243 presentment of the one joynt-tenant puts the other out of possession ib quare● impedit against the presentee of the king sole ib executors shall not have a writ by journies by the death of the testator , diversity 244 writ and count special ib writ to the bishop ib que estate , whose estate , &c. 245 que estate pleaded by the recoveror or disseisor ib que estate to a mean ib que tstate of a particular estate ibid quinzisme . 246 burrough and upland ib tenth and fifteen , who payes them , and whereof levied . ib quo minus 247 wager of law lies not in a quo minus ib rationabili paerte , &c. ib rationabilisi parte is by the common law ib recognisance . ib cognisee purchases , and cognisor repurchases ib recognisance to be recorded by justices out of term . place ib the king cannot take a recognisance ib who may take a recognisance ib constable . ib record 249 exemplification , & sub quo sigillo ib court baron , & court of record , diversity where the record it self shal be removed by writ of error mittimus . recovery in value 250 this assurance was made by the advice● of brudnel and others justices ib recovery in value to binde the tail ib recovery to binde him , reversion by aid , prayer , and voucher ib ancient demesne ib quere ib warranty ib recovery in value shal not go to him in reversion 251 assurance for to binde the tail vouch 252 recovery to binde him in remainder ib diversity where the remainder onely is warranted , and where the estate for life 253 formedon ib recovery to binde him in rem . &c. ibid joynder in aid ib relation 254 relation of forfeiture by act of parliament ib relation of forfeiture of felony by verdict , and by outlawry diversity ib releases 255 release no continuance ib release of all demands , barrs , entry , and seisure ib relief , see tit. debt 256 remainder , see tit. discent remitter the statute of uses 27. h. 8. doth not make remitter ib diversity ib title of entry doth not make ●remitter , contary of a right of entry ib quere 257 repleder jury discharged by jeofail ib rescous ; see tit distress reservations 258 soil excepted , by excepting of the wood ib restitution restitution by parliament ib restore al primer action restored to the first action remitter to the first action , & è contra ib where an action shall be restored after a feoffment ; where not ib retorn de avers return of beasts 259 discontinuance , or nonsuit in second deliverance ib revivings : see tit. extinguishment rit , rout , & unlawfull assembly difference betwixt riot , rout , and assembly ib sanctuory . see tit corone saving default . see tit. judgement scire fac ias . second deliverance . see tit. retorn de aeverse seisin 262 seisin by the hands of an intrudor ib livery ib distress suspended , not seigniory 262 seisin of the king loses not the arrerages ib several precipe debt and de●inue in the same writ ib several tenancy 263 uncertain demand in an assise statute merchant part of the land extended in the name of all ; no reextent . ib proces in another county upon a nihil returned upon a testatum est ib deiberate ib surrender ib when a man may hold the land beyond his term upon a statute 264 judgement ib reversion not extendable ib diversity betwixt a purchase after the statute , and before execution , and where t is purchased after execut ' had 265 execution by executors in the name of the conusee who is dead ib execution for the executors of the conusee 267 conusor returned dead ib retorn of extendi facias , liberate ib supercedias 268 attaint ib sureties death of the king id surrender 268 surrender extra terram ib trespas ib the king cannot record a surrender ib surrender by the first termor ib termor makes the lessor his executor 279 he in remainder surrenders where there is a lease for years in possession ib suitor ▪ two suitor onel coyurt baron ib taile . 270 single voucher and double voucher , diversitie . ib where the assets aliend shall be a bar in a formedon , where not . 271 two sons by divers venters ib collateral warranty by release ib quere ib taile extinct ib surrender ib tenant at will. 272 tenant by sufferance , and at will ib disseisor ib tennant by copy . ib formedon in discender by a copy-holder ib intendment ib where tenant at will , or a termor of a mannor may grant copy-hold for life 273 demise rendring the ancient rent or more ib tenant by sufferance , see tit. tenant at will. ib tender . ib what shall be the attendance in a condition ib diversity 274 condition of reentry for non payments ib at what time the lessee ought to make tender ib tender upon the land ●e contra ib tenures . 275 tenant makes a feoffment of a moyety , this is not pro praticula . the like matter in the cheq . 5. h. 6. ro. 4. ex parte ib remember thesaurarij 276 tenure in capite ib et de honore diversity ib ouster i' main ib socage in capite ib diversity ib to hold by suite of court ib court. mannor 277 testament . 277 where a man shall have for life and where see simplely devise ib payment by the heir , executor or assignee ib quere ib will of 3 mannor by the stat . 32. h. 8. 278 testament cannot be without execut. ib where a legacy or devises shall be good , though the devisor names no executors ib feoffment of all after the stat. of 32 h. 8. ib ward 279 primer seisin ib explanation of wills , by stat. 34 and 35 h. 8. ib. testmoignes , witnesses . 279 age of witnesses in etate proband . ib titles . 280 see tit. pleadings ib travers of office. 280 title made upon traverse tendered ib traverse dying seized , found by office ib termor cannot traverse 281. monstrance de droit ib traverse against the king ib where the king shall have prerogative , where not ib. non-suit in traverse and petition , diversity ib. judgement in traverse ib. travers by , &c. 282 action upon the case for making of false clothes ib. seisin in fee traversed in assize ib. the king shall waive his issues . contra of an informer ib. without that that he had any thing 283 the mean conveyance in the title shall not be traversed , where the plaintiff in his title binds the defendant ib. remitter ib. seisin in fee traversed 284 treason . misprision of treason ib. where tryall shall be per pares 285 forfeiture for misprision of treason 286 compasse or imagine ib. what shall be said treason ib. deprive ib. quaere ib. fine for misprision of treason ib. alien commits treason 287 diversity ib. trespas . 287 quare vi & armis of taking in anothers soil ib. tryall . 288 tryal of a peer of the realm arrained upon an indictment and appeal , diversity ib. tryall in court baron , by wager of law. ib. tryall of the law shall bee by the justices , and of a particular custome per patriam ib. tryall of a bishop 289 variance . 289 quare imped . and the writ and the deed vary ib. verdict . 289 verdict at large in a writ of entry ib. villeinage . 290 asserts in their hands ib. diversity ib. where the king shall have the villeine of another in ward , or ideot ib. quaere ib. voucher . 291 see b. tit. voucher ib. usury . 291 diversity , where the day is certain , and where incertain to make usury ib. defeasance ib. usury , and where not 292 waife . 292 waives his proper goods for fellony ib. waste 29● waste by a termor , who dyes before action brough● ib. cutting of beech of 20. 0● under 20. yeers of age shall be waste 293 locus vastat . waste in hedg-rows ib. where the termor may take all the under-wood , & e● contra ib. silva cedua 294 waste for not covering of a new frame and house ib. waste by the heir ib. a man shall be named heir or executor in the premises , and not in the alias dictus ib. conclusion to the writ 295 abridgment . holden by the prothonatories of the common bench in trespass of battery ; that of such matters which lie in conusance of the justices ; they may increase dammages after a verdict upon issue ; otherwise of such matter which lies not in their conusance ; as trees cut . but yet there they may increase costs . 3. mar. 1. b. abridgement , 36. the end . acceptance . note , by fitzjames and englefield , justices : if tenant in dower leases for years , rendring rent , and dies , the lease is void ; and acceptance by the heir of the rent will not make the lease good for t was void before : otherwise of voidable leases . 22. h. 8. b. acceptance , 14. if tenant in taill leases his land for twenty years , rendring rent , and dies , and the lessee leases to another for ten yeares , and the issue accepts the rent of the second lessee , this is no affirmance of the lease : for there is no privity between the second lessee and him ; contrary , if he paies it as bayliff of the first lessee ; and b. seems if the first lessee had leased over all his term in parcel of the land let , and this assignee paies the rent to the issue in tail , that this affirms the entire lease : for rent upon a lease for years , is not apportionable 32. h. 8. b. acceptance . 13. tenant in tail , the remainder over leases for years , rendering rent , and dies without issue , he in the remainder accepts the rent : this shal not binde him because that when the tail is determind , all that is comprised within it is determined , and so the lease void , and he in the remainder claims not by the lessor . 1. e ▪ 6. b. acceptance 19. bishop leases land of his bishoprick for years , rendering rent , and dies ; the successour accepts the rent ; this shall binde him ; for the bishop hath a fee-simple , and may have a writ of entry sine assensu capituli : otherwise in case of a parson or prebend , who can have but a juris utrum . 2. e. 6. b. acceptance . 20. if a man be bound in an obligation to pay ten pound to the obligee at paris beyond sea at a certain day , if the obligor pay at another place , and the same day in england , and the other accepts it , t is good clearly . 38. h. 8. b. conditions . 206. acceptance of rent by the lord from the disseisor of the tenant , shall not bar him of his escheat : otherwise if he had avowed for it in court of record , &c. see tit. escheat . action popular . note , by the statute the party which sues an action popular , ought to sue it within the year after the offence done , and not after : and this as well of offences done against the statute then made , as against statutes after to be made ; so see that it goes to a statute after made . b. action popular . 6. action upon the case . if i have a mill in b. and another makes another mill there by which i lose my toll by going of divers to it , yet no action lies : otherwise , if the mill disturb the water from coming to my mill ; there i shall have an action upon my case . 24. h. 8. b. action upon the case . 42. the end . in an action upon the case where the plaintiff delivers goods to the defendant , and the defendant for ten shillings promises to keep them safe , and does not , to the dammage , &c. and by fitzherbert and shelly justices , non habuit ex deliberac ' , is a good plea. 26. h. 8. b. action upon the case . 103. note , in an action upon the case betwixt awsten plaintiff , and thomas lewis defendant , for calling him false and perjured ; he justifies , because that the plaintiff was perjured in the star-chamber in such a matter , &c. and a good plea by the court. 28. h. 8. b. action upon the case . 3. more of this in the next . action upon the case for calling the plaintiff false perjured man ; the defendant justifies that such a day and year in the starchamber the plaintiff was perjured , and pleaded certain in what , &c. for which he called him false perjured man , as afore , as t was lawful for him : and a good plea by the court in the common bench. wherefore the plaintiff said of his own wrong , without that he swore in manner and form , &c. 30. h. 8. b. action upon the case . 104. if a man bring debt of 10. l. the defendant wages his law : and after the plaintiff brings an action upon the case against the same defendant , that he promised to pay the 10. l. &c. the defendant may plead that for the same summ the plaintiff brought before an action of debt , in which the defendant waged his law , judgement , if action . and a good plea , for he was once barred of the same summ . and in action upon the case , that the defendant promised to pay 10. l. to the plaintiff , which he ought to him for a horse , and a cow , the defendant may say , that he promised to pay 10. l. to the plaintiff , which he did ow● to him for a horse , which he bought of him , which summ he hath paid to the plaintiff without that that he promised to pay 10. l. which he did ow● to the plaintiff for one horse , and one cow , as &c. or without that that he did ow● to the plaintiff 10. l. for a horse and a cow , as &c. 33. h. 8. b. action upon the case . 105. action upon the case , for that the defendant found the goods of the plaintiff , and delivered them to persons unknown there ; that he did not deliver them in manner and form , is no plea , without saying not guilty where the thing rests in doing . and if the action were , that whereas the plaintiff was possessed , &c. as of his proper goods , and the defendant found them , and converted them to his proper use , t is no plea that the plaintiff was not possessed as of his proper goods , but he shall say not guilty to the misdemeanour , and shall give in evidence that they were not the goods of the plaintiff : and yet t is true , not guilty against him . 33. h. 8. b. action upon the case . 109. in an action upon the case , that the goods of the plaintiff came to the hands of the defendant , and he wasted them , the defendant saies that they came not to his hands , &c. and a good plea , and gives in evidence that they were not the proper goods of the plaintiff . 34. h. 8. b. action upon the case . 103. the end . action upon the case was brought in london by a. b. that whereas he was possessed of certain wine and other stuff ( and shews in certain ) in such a ship , to the value , &c. and doth not shew the place certain where he was thereof possessed , and yet good . and alledged that the defendant such a day , year , and place in london , promised for 10. l. that if the said ship and goods did not come safe to london , and put upon the land , that then he would satisfie to the plaintiff 100. l. and that after the ship was robbed upon the trade on the sea , for which he brought the action for not satisfying : and the truth was , that the bargain was made beyond sea , and not in london . but in an action upon the case upon an assumpsit and the like , which is not local , the place is not material ( no more then in debt ) for he alledged that the said goods in the parish of s. dunstons in the east london , before they were set to land , or &c. were carried away by persons unknown , &c. and the action lies well in london , though they were perished upon the high sea . 34. h. 8. b. action upon the case . 107. 't was agreed , that an action upon the case doth not lie against the executors , upon the assumpsit of the testator , though they have assets . 37. h. 8. b. action upon the case . 4. the end . in an action upon the case for a thing which lies in feasans , as for burning of goods or deeds , and the like , not guilty is a good plea : contrary , for non feasons of a thing which he ought to do ; as to make or repair a bridge , house , park , pale , scouring a ditch , and the like , and doth it not , there not guilty is no plea. 2. e. 6. b. action upon the case . iii. action upon the case for calling the plaintiff false justice of peace , vel his similia , these words ( his similia ) were ordered to be struck out of the book by the court , for the incertainty . 4. e. 6. b. action upon the case . 112. action upon the case whereas the plaintiff was possessed of such goods , as of his proper goods , and lost them , and the defendant found them , and conver-them to his own use : the defendant said , that the plaintiff pledged them to him for 10. l. by reason of which he detrains them for the said 10. l. as t is lawfull for him , without that that he converted them to his own use , as &c. and a good plea by some . by others he must plead not guilty , and give this matter in evidence for the detainer . 4. e. 6. b. action upon the case . 113. t was agreed in the common-bench , ●hat if a man for marriage of his daughter , assumes to pay 20. l. a year easter , for four years , and fails two ●ars , that the plaintiff may have an a●●ion upon the case upon the promise ●r the non payment of the two years , ●●ough the other two years are not ●et come ; for this is in nature of cove●ant . 4. m. 1. b. action upon the case . ●08 . the end . action upon the statute . in an action upon the statute of 8. h. 6. of forcible entry . or in trespas upon 5. r. 2 , vbi ingressus non datur ●er legem , non ingressus est contra for●am statuti , is a good plea : but his free-hold is no plea , as t is said by sher●ood and others . 23. h. 8. b. action upon ●he statute . 40. in trespass upon 5. r. 2. to say that ●he place , &c. is the free-hold of i. n. ●nd hee by his commandment entred , is no plea , : for the action is given by the statute , and therefore ought to have a special answer , and not as in a general writ of trespass . 24. h. 8. b. action upon the statute . 15. see by fitz. justice , that a man may avow upon the land by the new statute and then the tenant shall not disclaim ● contrary , if he avow by the common law , and relinquish the statute . 28. h. 8. b. action upon the statute . 6. 't was said for law , that t is no plea in trespass upon the statute of 5. r. 2. for the defendant to say , that the place where is twenty acres which is parcel of the mannour of b. is his free-hold . for the defendant ought to entitle him to a lawfull entry : for a disseisor hath a free-hold , and yet ingressus est , ubi ingressus non datur per legem , in the time of h. 8. b. action upon the statute . 27. account . account lies not against disseisors , for then the disseisee shall avoid the discents at his pleasure : and also the defendant was never his receiver for to render account , for this cannot be without privity in law , or in deed ; as by assignment , or as guardian , or the like : or by pretence the defendant to the use of the plaintiff , and where the defendant claims to his own use , there the plea is true ; neither his receiver , nor his baily , to render account : 2 mar. 1. b. account 89. adjournment . the justices of assise may adjourn the assises upon every demurrer , and upon every dubious plea or verdict ; and upon every foraign plea , and to what place they will ; and adjournment may be upon certificate of the assises , as well as upon the assise . b. adjournment 28. administrators . debt is brought against the ordinary , who pending the writ , commits the administration to i. s. the first writ shal abate : for the ordinary is compellable to commit the administration , by statute , 34. h. 8. b. administrators 39. nota , per omnes legis peritos , and by those of the arches , that at the time of vacation of an archbishoprick , or bishoprick , the dean and chapter shall commit the administration , 36. h. 8. b. administrators 46. nota , where the ordinary commits the administration , he may revoke it , and commit it to another ( but mean acts done by the first administrator shall stand ) and so 't was put in ure between brown and shelton , for the goods of rawlins ; the administration was committed to brown , and revoked and committed to shelton : for 't is not an interest , but a power or authority ; and powers and authorities may be revoked ; contra of an interest certain . in the time of h. 8. b. administrators 33. the end . charles brandon duke of suffolk , had issue sonn by one venter , and daughter by another venter , and devised goods to the son , and dyes , and after the son dyes intestate , without wife and issue ; and the mother of the son who was of the second venter ( for the daughter was of the first venter ) took the administration by the statute ; which is , that the administration shall be committed to the next of kinn of the intestate . and upon great argument in the spirituall court , tam per legis peritos regni , quam per peritos legis civilis , the administration was revoked . and so see that the administration may be revoked ; and so 't was likewise in the case of brown and shelton before , of the goods of w. rawlin clerk , which was committed , to sir h. brown , who marryed the sister of the said rawlins , and after came w. s. and j. s. son of the wife of the said sir h. ( which wife was the mother of the said shelton by a former husband ) and reversed the first administration , and obtained the administration to them . and the said duke had issue frances by the french queen ; and after this wife dyed , he marryed the daughter of the lord willoughby , and had issue by her one henry , and dyed ; and after henry dyed without issue , and without wife , and the mother of the heir took the administration ; and after the said frances wife of the marquess of dorset sued , and reversed the administration , and obtained the administration to her self , though she were but sister of the half blood to the said henry , because that she is next of kinn to the said henry , for that henry had not any children ; for the mother is not next of kinn to her own son in this respect of this matter ; for it ought to goe by discent , and not by ascension , by the law of england , nor by the law civill . and the children are de sanguine patris & matris , sed frater & mater non sunt de sanguine puerorum . and by isidore , pater & mater & puer sun● una caro ; and therefore no degree is betwixt them ; contrary between brother & sister ; and the half blood is no impediment as to goods ( b. administrators 47. ) note , that in the argument of this case , 't was agreed by the justices , that the king is not intitled to the land of his ward , without office , though he hath but a chattel in it , yet it comes ratione tenurae , which is the seigniory and freehold in the king , 5 e. 6. b. office before , &c. 55. age. a man recovers rent and arrearages by assise , or if he recovers an annuity and arrearages of it in a writ of annuity , the defendant dyes , the plaintiff brings a scire facias against the heir , he shall not have his age of the arrearages , for they are reall , and parcell of the rent or annuity . but if the judgment be of arrearages and dammages , there he shall have his age ( b. age 50. ) and where he recovers in a writ of annuity , or assise , as before : or hath avowed for a rent , which is freehold , and recovers the arrearages without costs and damages , he shall not have an action of debt of that , but a scire facias , for t is real . but where he hath judgement of it , with costs and dammages which go together , so that that t is mixt with the personality , then lies a writ of debt against the heir , of the arrearages and dammages ( and this b. thinks in default of execution ) per curiam , 23. h. 8. b. debt , 212. & age 50. note , that of the land of the duchy of lancaster , and other lands which the king hath as duke , or the like , his age is material , and he may have his age as another common person may ; for he hath them as duke , not as king ( b. age 52. & 78. ) as if the king alien land , parcel of his dutchy of lancaster within age , there he may avoid it for non-age for the reason aforesaid : otherwise of land which he hath as king , for the king cannot be disabled by non-age , as a common person shall ( b. prerogative . 132. ) yet by the statute of 1. e. 4. ( which is a private act not printed , but inrolled in the dutchy chamber , by which king h. 6. was attainted of treason , and that all the lands of the said dutchy should be forfeited , and should be a dutchy separated and incorporated , &c. ) t is annexed to the crown : but by another private act , 1. h. 7. t is disannexed , and made as in the time of h. 4. 1. e. 6. b. age. 52. note , t was in a manner granted by all the justices in the common bench , that if a parson , prebend , or the like be within age of 21 years , and makes a lease of his benefice within age , that yet this shall binde him : for where he is admitted by the law of holy church to take it within age , so the common law inables him to demise his benefice within age . 4. mar. 1. b. age. 80. alienations . if the tenant of the king alien in fee without licence , and die , his heir within age , the king shall not have the ward , because that nothing is discended to him , and that the alienation is good , save the trespass to the king , which is but a fine by seiser . b. alienations 29. gard 85. but otherwise if the alienor were tenant in tail ; and if the alienation without licence be found by office , the king shall have the issues of the land from the time of the inquisition taken , and not before . ( b. alienations 26. in medio . ) but where the tenant dies , and his heir enters upon an office found for the king , of the dying seised of the ancestor , there the heir shall answer the profits taken by him before . 26. h. 8. b. intrusion 18. the end . t is said for law , that a fine for alienation is one years value of the land aliened . and the same law of a fine for intrusion upon the king. but the fine to have licence to alien , is but the third part of the yearly value of the land which shall be aliened : and for licence to alien in mortmain , the fine is the value of the land for three years . 31. h. 8. b. alienations . 29. the end if a man obtain licence to alien the mannor of d. and all his lands & tenements in d. he cannot alien by fine : for the fine shall be certain : so many acres of land , so many of meddow , so many of pasture , and the like : and the alienation ought not to vary from the licence . yet by b. t is otherwise used with an averment , that all is one . 32. h. 8. b. alienations . 30. note , if there be two joynt-tenants who hold of the king in capite , and one releases to the other all his right , this is no alienetion ; nor doth he need licence , or pardon of it : for he to whom the release is made , is in by the first feoffor , and not by him that released : nor shall he fine for such release : and so t is used in the chequer , that t is no alienation . but if three joynt tenants are , and the one releases to one of the others , there he is in of it by him that releases : contra , if he had released to all his compagnions : and where a man releases by fine to the tenant of the king , this is no alienation . otherwise of a fine sur conusans de droit com ceo , &c. for this is an estate made by conclusion . 37. h. 8. b. alienations 31. tenant of the king in capite cannot alien for term of life without licence : for it alters the freehold . time h. 8. b. alienations 22. the end . note , that for burgage tenure of the king , a man may alien without licence well enough . 6. e. 6. b. alienations 36. note , that a devise by testament was taken to be an alienation . 3. mar. 1. b. alienations 37. alien . see tit. denizen . note , by the whole court in the kings bench an alien may bring an action personal , and shall be answered without being disabled , because he is an alien born : otherwise in an action real ( and the same b. seems in an action mixt . ) and he may have a property , and buy and sell. 38. h. 8. b. denizen 10. nonability 40. t was said in the kings bench , that to say that the plaintiff is an alien born , judgement ; if he shall be answered , is no plea in an action personal , otherwise in an action real . yet this hath been in question after this time in the same court : and t was said that an alien born is no plea in trespass , if he doth not say further , that the plaintiff is of allegiance of one such a one , enemy to the king : for t is no plea in an action personal against an alien , that he is of the allegiance of such a prince , which is of amity with the king. 1. e. 6. b. nonability 62. if an alien born purchase , the king shall have it : but the purchase ought to be found by office : and so t was in the case of alien king : and b. seems that an information in the chequer , will not serve in this case . time , e. 6. b. denizen 17. the end . t was said in parliament , that if an alien born obtain a lease for years , that the king shall have it ; for he cannot have land in this realm , of no estate . 4. mar. 1. b. denizen 22. amendment . by fitzherbert , and the court ; where a writ of error was sued to remove a record out of the common bench , into the kings bench , betwixt an abbot and i. n. the warrant of attorney varied in the roll in the name of the abbot ; and t was amended after judgement : and if they had not amended it , they said , that those of the kings bench would have amended it . 23. h. 8. b. amendment 85. the end . note , that where a warrant of attorney varied from the name of the corporation of the party , and a writ of error was brought to those of the common bench , they amended it presently : and they said that those of the kings bench would have done the like . 24. h. 8. b. amendment 47. note , t was agreed by the kings learned councel , that the king may amend his declaration in another term , in omission , and the like : as where an information misrecites the statute , this may be amended ; for misrecital is the cause of demurrer : for if it be misrecited , then there is no such statute : but he cannot alter the matter , and change it utterly ; yet the same term he may . 4 eliz com. 243. by weston . 30. h. 8. b. amendment 80. appeal . note , by the justices of both benches , a man shall not have the plea in an appeal ; that the dead assaulted him , and that he killed him in his defence , but shall plead not guilty in manner and form , and shall give this matter in evidence : and the jurie is bound to take notice of it ; and if they finde it , he shall go acquitted in form aforesaid . nor he shall not have this for plea with a traverse of the murther : for the matter of the plea is murther . nor murther cannot be justified ; and when the matter of the plea is worth nothing , there a traverse the like : ( b. appeal , 122. corone . 1. ) the end . and where the jury acquits the defendant upon an indictment before the coroners , they ought to finde that he killed the man : and there they may say , that the same defendant killed him se defendendo : but upon an indictment before other justices , it suffices to say , not guilty only , without more . 37. h. 8. b. appeal , 122 ▪ the heir of a man killed shall have an appeal , as well of homicide of his ancestor , as of murther . 2. e. 6. b. appeal 124. note , if a woman who hath title of an appeal of the death of her husband , takes another husband ; he and the wife shall not have an appeal ; for the woman ought to have it sole : for the cause of an appeal is , that she wants her husband ; and the reason is , because the wife wanting a husband , is not so well able to live : and therefore when shee hath another husband , the appeal is determined : for the cause ceasing , the effect ceases . ( b. appeal , 109. ) as where a woman hath a quarentine , and she marries within the 40. daies , shee loses her quarentine . 1. mar. 1. b. appeal , 109. dower , 101 : appeal of death may be commenced before the coroner , and proces awarded to the exigent : but the plea shall not be determined before him . reading 113. b. appeal 62. the end . corone 82. apportionment . t is said that if i sell my horse , and the horse of w. n. to a. for ten pound , and w. n. retakes his horse , that a. shall render to me the entire ten pound : because a chattel cannot upon a contract be apportioned . 30. h. 8. b. apportionment . 7. if the kings tenant of four acres , alien one to the king : or if he hath two daughters , and dies : and the one aliens to the king , the rent shall be apportioned if it be severable : and this by the common law , by some . quaere , for the reading of fitzjames is otherwise , 32. h. 8. b. apportionment 23. before the statute of quia emptores terrarum , if the lord had purchased parcel of the land holden of him , his entire rent was extinct , though t was severable : yet now by the said statute it shall be apportioned , be it purchased by the lord , or by another : but this doth not help a rent charge : because the statute is onely for the loss of the chief lord. but of a rent service upon recovery of parcel , or of a discent of parcel , and the like , which are the acts of god , or of the law , there was an apportionment at the common law , contrary of his proper act , as purchase : because before the stat. aforesaid , it was of a rent service , as t is at this day of a rent charge , which is extinct by purchase of parcel of the land , reading b. apportionment . 28. arbitrement . debt upon an obligation : the defendant pleads the condition : if he shall stand to the award of i. and n. so that the award be made before such a day , and saies , that the award was not made by the day : the plaintiff may say , that they made such an award before the day , which the defendant in such a point ( and shew in certain in what ) hath broken : for he must shew the breach in some point certain : otherwise the action lies not : 31. h. 8. b. arbitrement 42. assets inter maines . assets in their hands . see tit. extinguishment . note , if executors plead fully administred in an action of debt , and give in evidence payment of legacies , the plaintiff may demur upon it ; for such administration is not allowable in law , before debts paid . 33. h. 8. b. assets inter maines 10. where a perquisite of a villain shall be assets : see tit. villeinage . assets per discent . assets by discent . in an action of debt against an heir upon an obligation of his ancestor , who pleaded nothing by discent ; and t was found that land discended to him , but not assets ; t was adjudged that the plaintiff should have execution of all his lands , as well of land purchased , as of land discended : and b. seems the reason to be for his false plea. 3. mar. 1. b. assets per discent 5. in the end . assignee . a man leases a house and land for years ; and the lessee covenants that he and his assignes will repair the house ; and after the lessee grants over his term , and the assignee doth not repair , an action of covenant lies against the assignee ; for this is a covenant which runs with the land : ( b. covenant 32. deputy 16. ) and also it lies clearly against the lessee after that he hath assigned over his term : and b. seems that if he bring several writs of covenant against both , that there is no remedy till he takes execution against the one : and then it seems to him , that if he sues against the other , he shall have an audita querela . 25. h. 8. b. covenant 32. assise . assise : the tenant pleads not attached by fifteen daies ; the bayliff was examined , who said that he attached him by the horse of a farmor which was a termor to the tenant of the land in plaint , which matter was recorded : and b. seems that t is no good attachment ; for the tenant cannot forfeit the beasts of his farmor : and an attachment ought to be made of such things which the tenant may forfeit by outlary . note , between dudly and leveson , for the mannor of parton , in the county of stafford . 31. h. 8. b. assise 480. note , by the justices in the common bench , that in an assise against two , the one takes the tenancy and pleads no wrong , and the other takes the tenancy without that , that the other hath any thing , and pleads in bar : there the plaintiff shall be compelled to chuse his tenant at his peril , as well as if both had pleaded in bar , and accepted the tenancy severally : and if it be found that he mis-elects his tenant , the writ shall abate , but he shall not be barred . and there when the demandant elects his tenant , and he pleads , there they shall be at issue , before that the tenancy shall be inquired , and then the tenancy shall be inquired first , and after the other issue . 6. e. 6. b. assise 384. assurances . note , that tenant in tail who levies a fine with proclamation , shall be bound , and his heirs of his body also after the proclamation made , and not before : so that if the tenant in tail die before all the proclamations made , this shall not binde the issue in tail ; and the proclamation cannot be made in shorter time then in four terms ( b. fine levies 109. assurances 6. ) but tenant in tail who is not party to the fine , shal not be so bound after the proclamations , but that he shall have five years to make his claim : and if he fails of them , and dies , his issue shall have other five years by the equity of the statute of w. 2. quod non habeat potestatem alienandi . yet t is said , if the first issue neglect the five years , by which he is barrable , and dies , his issue shall not have other five years ; for if the issue be once ba●rable by the fine , the tail is by this bound for ever : ( quaere ) and the statute saies , that it shall binde parties and p●i●●es : and therefore where tenant in tail is party to the fine , with proclamation , and his issue claims performam doni , the issue is privy : for he cannot convey to himself as heir in tail , but as of the body of his father , which is privity . but a fine with proclamation , may be confessed and avoided ; and then it shall not binde : for the statute is intended de finibus ritè levatis . and therefore he may say , that the parties to the fine had nothing tempore finis , &c. for if none of the parties had nothing tempore finis , then t is a fine by conclusion betwixt the parties : but all strangers may avoid it by the averment as afore . ( b. fines , levies , 109. ) and by the statute of 32. h. 8. fine with proclamation by cestui que use in tail , shall binde him and his heirs after proclamation made : and a fine with proclamation , the reversion or remainder in the king , and the conusor dies , the proclamation made t is no bar , nor discontinuance ; because that the reversion or remainder in the king , cannot be discontinued : therefore there the issue in tail may enter after the death of the tenant in tail. ( b. bar 97. assurances 6. ) and b. seems , that neither the statute of 32. h. 8. nor 4. h. 7. shall not binde the issue in tail , nor the reversion to the king by fine with proclamation , though that the proclamation be made : and yet the statute of 4. h. 7. wils that after proclamation made , it shall be a final end , and shall conclude as well privies , as strangers , except infants , fem coverts , and the like , &c : and the issue in tail is privy . yet b. thinks that the intent of the statute was not that the issue in tail , the reversion to the king should be bound : for by him after this statute , this was taken to be no discontinuance : and therefore it seems to him that it shall not binde the issue in tail , the reversion in the king. ( b. fines , levies 121. ) yet quaere , for the statute of 32. h. 8. which wils that the heir in tail shall be barred by fine ▪ with proclamation , after the proclamation made , hath an exception of those , of which the reversion , or remainder , is in the king , so that it shall not binde such issue in tail. b. assurances 6. the end . but otherwise t is of a recovery , and execution had by writ of entry in the post , with voucher by the common law , : for though that the reversion , or remainder be in the king , such recovery shall binde , and was a bar against the tenant in tail , and his issue presently ; but not against the king. but at this day by the statute of 34. & 35. h. 8. recovery against tenant in tail ; the remainder , or reversion in the king shall not binde the issue in tail , but that he may enter after the death of tenant in tail. 30. h. 8. b. bar 97. the end . assurances 6. note , that for assurance of land , that the heir should not sell , t was devised , that a man should make a feoffment in fee to two , to the use of himself for term of life without impeachment of wast , and after to the use of his son , and his heirs , until the son should assent and conclude to alien it , or any part of it ; or to charge or incumber it , and after imediately upon such consent and conclusion to the use of a. and his heirs , until as afore , and then &c. to the use of b. and his heirs , until , &c and so of more , &c. and by such assent and conclusion by the statute of uses . anno , 27. h. 8. c. 10. the other shall be in possession , &c. 38. h. 8. b. assurances 1. where men enter into an arbitrement , and every one is bound to the other in an obligation , or other such covenants , and are bound to perform it : and t is awarded that every one should release to the other all actions , & the like : there it ought to be expressed all actions before such a day , which shall be before the date of the obligation for otherwise the obligation of the award , or the last obligations to perform the covenants , shall be also released . regulae b. assurances 4. attaint . caveatur in every action triable by jury , of the quantity of the land , as where a man demands 200. acres , where they are but a hundred sixty or the like : and the title is for the demand , there if the jury finde that he deseised him of 200 acres , or the like , this is matter of attaint . and so where they finde him gulty in trespass or the like , of more trespasses then he did , or of excessive dammage , and the like . 24. h. 8. b. attaint 96. quaere by b. if an attaint doth not lie upon a verdict in an appeal of maihem at this day , by the statute of 23. h. 8. cap. 4. for this year t was doubted . 38. h. 8. b. attaint 10. the end . assise is brought against tenant by statute merchant , and against the conusor tenant of the free-hold , and the assise acquits the tenant by statute merchant , and attaints the other of disseisen : the tenant by statute merchant shall not have an attaint , nor the lord where land is recovered against him , and the heir , where he hath the heir in ward ; nor the termor , where land is recovered against him , and the lessor , because they lose not any free-hold : and because that they are acquitted by w. whorewood the kings attorney . yet by b. t is not reasonable where they are named , and lose their interest : yet it seems to him , that he that is acquitted shall not have an attaint ; but if they are found disseisors , they shall have an attaint by him . time , h. 8. b attaint 82. the end . note ; for law , where trespass of battery , goods carried away , or a writing broken ( which are transitory ) is done in one county , yet an action may be brought in an other . ( b. attaint 104. and so t was agreed in trespass in london , of breaking of at d. in london , where indeed d. was in the county of e. for these are not local . b. lieu. 65. ) and therefore in trespass transitory , the place is not issuable , nor traversable . no more then in trespass upon the case , upon a promise ; and these may be continued . ( b. traverse , &c. 283. ) and in those cases , the jury of another county may take conusance thereof , but is not bound to it : but if they take conusance , attaint lies ▪ not . otherwise of trespass of trees cut , or grass trod , which are local , and shall be brought in the proper county . 2. mar. 1. b. attaint 104. jurors 50. note ; t is said that upon an information for the king , which passes upon the issue tried , the king nor the informer shall not have an attaint : for the informer is not fully party . and when the defendant hath answered , the kings attorney replies for the king ; and after , no further mention of the informer : and therefore neither the one , nor the other shall have an attaint . 4. mar. 1. b. attaint . 127. where an attaint lies , where not . see tit. dammages . and tit. fanxifier . attornment . note ; that attornment may be made by tenants , to the lord in his court : to the steward in absence of the lord , or purchasor . but attornment to the servant of the purchasor out of court , and in absence of the purchasor , is not good : but by payment of one penny for every tenant to the servant of the purchasor ; and in his absence , in name of seisen of their several rents , is a good attornment : for a servant may receive rent for his master . quaere . if no rent then is due , nor the rent day come . 28. h. 8. b. attornment 40. t was agreed , that where land is fold by deed , indented and inrolled according to the statute of 27. h. 8. c. 10. there because the use is changed by the bargain and sale , by the said statute , and the buyer in possession ; and hath no means to compel the tenant to attorn ; there he may distrain , and avow without attornment . otherwise upon a grant by fine ; for there he may have a writ of por quae servitia . 30. h. 8. b. attornment 29. the end . note , that if a man hath common of pasture to a certain number ; or common of estovers to a certain number of carts and with grant them over ; they pass without attornment ; because they are not to be taken by the hands of the tenant , but by the mouth of beasts , and by cutting , and carrying . so see that when no attendancy nor payment is to be made by the tenant , there the thing passes without attornment . 31. h. 8. b. attornment . 59. see by whorewood the kings attorney ; where a man leases for forty years , and after leases the same land to another , to have from the end of the first term for twenty years , this needs no attornment : otherwise where he grants the reversion as afore , there ought to be attornment . ( quaere , and see after . ) and if a man leases for ten years , and after leases to another for twenty years , this is good for ten years without attornment : otherwise if there were a word of reversion . 37. h. 8. b. attornment . 41. a man leases land for twenty years , the lessee leases over for ten years , rendring rent , and after grants the reversion of the term , and rent to a stranger , this shall not pass without attornment , by reason of the attendancie of the rent : otherwise , if no rent were reserved upon the second lease for ten years , for then there is no attendancie to be made , nor action of waste , nor the like to be brought . for as b. seems , attornment is not necessary ; but to have avowry , or an action of waste . 2. e. 6. b. attornment . 45. see by mountague , chief justice , and townsend , that by a feoffment of a mannor , the services pass without attornment of the free-holders . but b. seems that the tenants ought to attorn . 4. e. 6. b. attornment 30. note ; if a man let a house , and 200 acres of land for term of life : and after grant the reversion to another , to have the said house , land , and tenements , a festo sancti micha●lis prox-post mortem vel determinationem interesse of tenant for life for twenty one years then next following : the tenant for life dies before attornment , yet the grant of the reversion is good , because that the words in the habendum of the house and land , is intended to be a lease ; and a rent was also reserved upon it , and so a good lease without attornment . by brown , sanders , and stamphord , justices . yet by b. chief justice , t is but a grant of a reversion , and no lease : but yet the grant is good without attornment ; because that t is to commence after the death of tenant for life , so that the tenant for life shall not be attending to the grantee , nor shall he avow upon him , nor have an action of waste , or the like : by judgment of the court. 3. mar. 1. b. attornment 60. leases 73. attorney . in these cases a man shall not make an attorney , except in special case . viz. attaint , premuniri , appeal , per quae servitia . quid juris clam . quem redd . reddit . nor in assigning of errors : nor at the plures in case of contempt : nor the tenant in a cessavit upon tender of arrearages . nor the pray' to be received in a pr. quod redd . nor in an assise ; nor in an attachment . nec contra finem levat : nor in any case where the defendant shall be imprisoned . audita querela . a man seised of 20. acres , is bound in a statute marchant ; and makes a feoffment of 15. to several persons , and execution is sued against one of them , he shall have an audita querela upon his surmise , to have the other feoffees to be contributory with him . but if execution be sued against the conusor himself , he shall not have such contribution : for this is upon his own act ( b. audita querela 39. yet if the conusor dies , and the conusee sues execution against the heir , he shall have contribution of the feoffee . so every of them shall have of the heir . 25. h. 8. b. audita querela 44. the end . averments . see tit. pleadings . note , where a man pleads a recovery by a strange name of the thing demanded ( b. averments 42. ) as if a precipe quod redd . be brought of the mannor of b. or the like , the tenant pleads a fine , recovery , or the like , of the mannor of g. he ought to aver that the one and the other , are one and the same mannor , not divers : contrary , if he pleads a fine , or recovery de predict . manerio de b. for this word ( predict . ) is in effect an averment that all is one . ( b. pleadings ▪ 143. ) and where a man pleads a recovery by a strange name of the parties , he ought to aver that the first person , and this person , are all one , and not divers . otherwise b. seems where he pleads it by this word predict . 33. h. 8. b. averments 24. t was said for law , that an averment is not necessary in an avowry . viz. & hoc parat . est verificare ; for t is in lieu of a declaration ; and the avowant is actor . 3 m. 1. b. averment 81. avowry . lord and tenant by fealty & 3 pence rent , the lord dies , his wife is endowed of the seigniory ; she may distrain for 1 peny , & the heir for 2 pence , & so now the land is charged with two distresses , where it was charged but with one before : but this is not inconvenient : for he shall pay no more rent then before . the same law where the lordship is divided by partition , between heirs females , and the like . 24. h. 8. b. distresse 59. avowry 139. if two copartners make partition , and give notice to the lord , he ought to make several avowries . and if a man sell his land by deed indented , inrolled within the half year according to the statute , the avowry is not changed , &c. without notice , no more then upon a fine . yet b. doubts of of a conusans de droit com . ceo. &c. but if a man recover against the tenant , or if the tenant is deseised , the disseisor dies seised , and his heir is in by discent , so that the entry of the disseisee is taken away , the avowry shall be changed without notice . the same law , if the tenant make a feoffment , and dies , the lord shall change his avowry without notice ; for nothing is discended to the heir of the feoffor . and where notice ●s necessary , it shall be done upon the land holden , with tender of the arrearages ; for otherwise the lord shall lose his arrearages , if he avows or accepts service of the feoffee , &c. before the arrearages paid , ideo caveatur inde . 29. h. 8. b. avowry 111. 146. in a replevin , if the defendant avows because that a. was lord , and was seised by the hands of b. then tenant , &c. of such servises , he may convey the estate of the said b. in the tenancy to the plaintiff in the replevin , by a que estate , without shewing how , but he cannot convey to himself of the said a. in the seigniory by a que estate , without shewing how ; for the seigniory is there in demand , and not the tenancy : 34 : h. 8. b. avowry 7. que estate 2. the end . note , that he which avows upon the land , as within his fee or seigniory , by the statute shall aleadge a seisen , as in other avowry ; and then shall conclude his avowry upon the land , as within his fee and seigniory : and in such avowry , every plaintiff in the replevin ( be he termor or other ) may have every answer to the avowry ; as to traverse the seisen , the tenure , and the like , which are a good answer in an avowry : or plead a release , or the like , as tenant of the free hold shall , though he be a stranger to the avowry ; for such avowry is not made upon any person certain ; therefore every one is a stranger to this avowry : and so the plaintiff may have every answer which is sufficient 34. h. 8. b. avowry 113. 't was agreed that to say , that the place where , &c. is 4. acres , which is , and was the time of the caption his freehold , for which he distrained , and took the beasts for dammage feasent , was a good avowrie . 4. e. 6. b. avowrie 122. 't was holden by the justices of both benches , that where a man holds by rent and knights service , and the lord and his ancestors have been alwaies seised of the rent , but not of the homage , escuage , nor of ward , yet if a ward falls , he shall have the wardship of the heir , for the seisen of the rent suffices to be seised of the tenure , as to this purpose . yet otherwise b. seems to make avowry . 7. e. 6. b. avowrie . 96. the end . ward , 69. note , that 't was agreed that at this day by the limitation of 32. h. 8. the avowry shall be made generally , as was used before : and if there were not seisin after this limitation , then the plaintiff in bar of the avowry may alleage it , and traverse the seisin after the limitation ( b. avowry 107. ) also where a man brings an action real , or mixt ; or makes avowry , or conusance , and issue is taken upon the seisin infra tempus statuti , and t is found against the demandant , plaintiff , or avowant ; this is peremptory by the same statute . 1. m. 1. b. peremptory 78. averment is not necessary in an avowry . see tit. averment . barre . where a fine with proclamation , or a recovery shall bar an estate tail ; where not , and where the reversion is in the king , with other good matter concerning fines . see tit. assurances . bastardie . note , that t was taken by the commons house of parliament , if a man marry his cosin within the degrees of marriage , who have issue , and are divorced in their lives , by this the espousals are avoided , and the issue is a bastard . otherwise , if the one die before divorce , there divorce had after shal not make the issue a bastard ; for the espousals are determined by death before , and not by the divorce . and a dead person cannot bring in his proofs ; for divorce after the death of the parties , is but ex officio , to inquire de peccatis , for a dead person cannot be cited nor summoned to it . 24 h. 8. b. bastardie . 44. d'arraignement 11. battel . t is said that if an appeal of murther be brought in the kings bench , the defendant joyns battel , it shall be before the justices of the kings bench , and not before the constable , and marshal . 5. m. 1. b. battail . the end 16. bill . 't was said , that a premunire shall be maintainable by bil in the kings bench , though that the party be not in custodia marescalli . ( b. bill . 1. ) and 't was common that many clerks were compelled to answer to bills there , who were not in custodia marescalli . 22. h. 8. b. premunire 1. cerciorari . t was agreed in chancery , that there is no certiorari in the register to remove a record out of a court into the common bench immediatly , but it shall be certified in the chancery by surmise , then to be sent into the common bench by mittimus . and indictments may be removed out of the countrey by cerciorari to the chancery , and may be sent to the justices of the kings bench by mittimus , and then they shall proceed upon it . 36. h. 8. b. certiorari 20. the end . certificate of the bishop . 't was holden that if the bishop certifies that such a person paid not his tenths , according to the form of the statute , which wills , that ipso facto , the benefice shall be void ; that in this case a man shall not have an averment contrary to the certificate . time h. 8. b. certificate devesque 31. the end . challenge . note by the exchequer , and both benches , where the parties are at issue in a plea of land , where the land lies in three or four hundreds , there if the juror hath land in any of the hundreds , or dwells in any of the hundreds , it suffices . 4. m. 1. b. challenge 216. in treason t is a good challenge to witnesses , to say that he was one of his accusers ( b. corone 219. ) and note , that by the statute of 33. h. 8. a peremptory challenge is ousted in case of high treason : yet by the said statute queen mary , t is enacted , that all tryals of treason shall be according to the order of the common law , and not otherwise . and therefore it seems that he may have a challenge peremptory , as at common law. s. 35. jurors . 4. m. 1. b. challenge 217. trials 151. the end . where a grant of the bishop , or charge by him , with the assent of the dean and chapter , shall binde the successor , and where not ? see tit. confirmation . charters of pardon . note , if a man be attained of murther , or felony by outlawry or otherwise , and the king pardons him all felonies , murthers , and executions eorundem , and outlawries , and waivings ; and sectam pacis . and a pardon and release of all forfeitures of lands and tenements ; and of goods and chattels , shall serve but for the life ; and for the land , if no office be thereof found . but it shall not serve for the goods without restitution or gift . for the king is intitled to them by the outlawry , without office : but the king is not intituled to the land , till office found . and if an office be found after , yet the pardon shall serve ; for it shall have relation to the judgement ▪ & then the mean pardon serves well ; contrary , where an office is found before the pardon granted ; for then the king is seised by the office , and there a release or pardon cannot give it ; but there ought to be a gift or grant. 29. h. 8. b. charters of pardon 52. note , if alienation without licence be pardoned by act of parliament , the party may enter without ouster l'main ; or amoveas manum . otherwise by another pardon , by letters pattents . 29. h. 8. b. charters of pardon 53. if intrusion by the heir , post mortem antecessoris be found by office , and after the king pardons it by act of parliament , or by letters pattents , yet the heir shall sue livery : for this is not restored to him by a pardon : but if the pardon were granted before office found , and at the making of the pardon , the heir is of full age , he shall retain the land , and the office found after the pardon shall not hurt him . 30. h. 8. b. charters of pardon 54. chattels . if lessee for years devise his term , or other his chattel or goods , by testament , to one for term of his life , the remainder over to another , and dies , and the devisee enters , and aliens not the term ▪ nor gives , or sels the chattel , and dies , there he in remainder shall have it : but if the first devisee had aliened , given , or sold it , there he in the remainder had been without remedie for it ( b. chattels 23. done 57. ) and so b. seems if they be forfeit in his life , he in remainder hath no remedy . 33. h. 8. b done. 57. the end . choice in action . thing in action . note , where the statute of 31. h. 8. gives to the king the possessions of abbies , and all rights of entries , actions , conditions , and the like , which the abbies might have had ; and that he shall be in possession without office , and that he shall be adjudged in actual and real possession of them , in such plight and sort as they were at the time of making of the statute . yet if an abbot were disseised of 4 acres of land , the king cannot grant it over before entry made by him in it , because t is a thing in action real , and not like to a thing in action personal or mixt , as debt ward , and the like , by some . and some è contra , by reason of these words , that the king shall be in possession . yet by b. this seems , that he shall be in such possession as the abbot was . s. of a thing of which the abbot had possession , the king hath of this actual possession : & of such of which the abbot had but a cause of entry , or right in action ; of these the king shall be vested of a title of entry , and title of action . but the thing to which he hath such cause of entry , or of action , is not for this in him in possession : and therefore cannot pass from the king by general words ; but b. seems , if the king recites the diseisen , and how the right and action thereof is given to him by the statute , and grants it specially that t is good . 33. h. 8. b. choice in action 14. 't was said for law , that the king may grant a thing in action , which is personal ; as debt , and dammages , and the like , or a thing mixt ; as the ward of body : but not a thing real , as an action of land , and the like , as rights , entries , actions , and the like , which abbots might have . ( and that the king shall have these by the statute of dissolution of abbies . 31. h. 8. ) these things in action the king cannot grant . yet by b. see if there be not words in this statute , to put the king in possession , though the abbot were put to his action . 33. h. 8. b. pattents 98. clergy . no man shall have his clergy but where his life is in jeopardie : and therefore not in petty larceny . and the bishop is ordinary : all priests , abbots , and others inferior to him , which demand clergy , or have clergy : and if the bishop hath his clergy , the metropolitan shall keep him , as his ordinary : and if the metropolitan offend , and hath his clergy , the king shall have him and keep him : the same is of laps . reading b. clergy 19. corone 183. note , that at this day bigamus shall have his clergy by the statute : but a man attainted of heresie shall not : otherwise of a man excommunicated : and a jew , nor turk shall not have their clergy : and a greek and roman , who use not our letters shall have their clergy , and shall stay till a book of letters of their countrey comes . ( b. clergie 20. ) and if a man who is captus oculis prayes his clergy , he shall have it if he can speak latine congruously . quaere , for he cannot be a priest , nor he cannot minister . casus b. clergie 21. a bastard shall have his clergy ; for he may be a priest by licence . casus b. clergie 22. colour . note , that colour ought to be matter in law , or doubtful to the lay people ; and shall be given to the plaintiff , and not to one who is mean in the conveyance : and shall not be given to a stranger who infeoffed the plaintiff : nor shall be given to the defendant : and shall not be given by a possession determined . s. where it appears in the pleading , that the possession is determined : but shall be given by an estate defeated : and where the defendant bindes the right of the plaintiff by feoffment with warranty , release , fine , recovery , disseisin , and re-entry , and the like , there needs not any colour . and he which claims no property in the thing , but takes it as a distress , and the like , shall not give colour . colour shall not be given but upon a plea in bar . b. colour 64. colour shall not be given but by him , by whom you commence your title , and not by a mean in the conveyance . he which pleads to the writ , shall not give colour . it behoves that colour be such , so that if it be true , that of such possession , the plaintiff or demandant may have their action . he which justifies as servant , and conveys title to his master , shall give colour : colour by possession in law , is good . regulae . commission . note , for law , that where a commission of the peace issues to i. n. and others ; and after i. n. is made knight . yet the commission remains for him . ( yet anno primo , e. 6. cap. 7. is a statute made , that making of the plaintiff knight , shall not abate the action , nor the commission in which such person is named . ) and where a man learned in the same law is put in commission , and after is made serjeant at law , yet he remains in authority by the same commission . and when a justice of the bench is made knight , yet he remains justice , and this commission shall serve him . 36. h. 8. b. commissions 22 : note , by coming of a commission of oyer and terminer , the commission of gaole delivery is not determined ; for the one stands with the other . otherwise , where the one commission is contrary to the other . as of a commission of the peace where there is a former commission thereof to others , this is contrary that every of them should be commissioners of one and the same thing , and both in force . and the commission of gaole delivery , is onely to deliver the gaole . commission of oyer and terminer , hath words ad inquirendam audiendam , & determinandam . but most commonly the justices of gaol delivery are also in the commission of the peace , and by this they indict , and after deliver the gaol as well of them , as of others . and note , that the justices of oyer and terminer , cannot by this authority arraign no prisoners , but those which are indicted before them : but contrary , if they have commission of gaol delivery also , for these both may be executed simul & semel 3. m. 1. b. commission 24. if a justice of the common bench be made justice of the kings bench , though that it be intended but pro illa vice : as t was of sir james dier this year ; yet this shall determine his pattent of the common bench , though he surrenders the pattent of the kings bench the next day : for the kings bench is the highest court : and if the common bench erre , this shall be controlled by the kings bench. and therefore a man cannot be judge of the one bench , and the other together to reverse his own judgement . and as often as a justice of the common bench , is made justice of the kings bench ( as it hath been often seen ) the commission of the common bench by this is determined : for the one court is within the controlment of the other : but a man may be a justice of the common bench , & chief baron of the exchequer together , & may be justice of the common bench , & justice in oyer , and terminer , or of gaol delivery together : for none of these courts hath controlment of the other . and if an incumbent of a benefice be made a bishop , the first benefice is void : for he which hath the office of soveraignty , cannot have the office of inferiour , by some of the justices . yet b. doubts ; for a justice de banco regis , may be a justice in oyer , or of oyer and terminer , or of peace , or of gaol delivery ; and yet if they err in their pleas in the oyer , or oyer and terminer , or in their proces , or outlawry before justice of peace , writ of error lies thereof before the king in his bench. but the pleas in the king bench are holden coram rege ubicunque fuerit in anglia , and so the kings bench , is a court removable : and by the statute the common pleas teneatur in loco certo , then t is contrary of the oath of the justice of the one court , and the other ; for the one is certain , and the other incertain . 5. m. 1. b. commissions 25. where a justice of peace is made knight , or takes other dignity , yet his authority shall remain . and so of a justice of the gommon bench made knight , his commission remains in force . 1. e. 6. c. 7. b. commission 4. if the king grant to a major and commonalty , and their successors to be justices of peace in their town , and after makes a commission of the peace to another there , yet the first commission shall remain in force ; because that t is a grant to them , and their successors , and so not revocable as a commission is . ( b. commission 5. ) if a new commission of the peace be proclaimed , or read in full county , the ancient commission of the peace is determined . and all the justices ought to take notice , and if they sit by the ancient commission , all they do is void . and if a commission be directed to a. and b. who are not in rerum natura , or are dead at the time of the teste , &c. the ancient commission remains in force , for this new commission is void . if a commission be directed to n. pro hac vice , this shall determine the ancient commission of these matters . and yet the new commissioners cannot sit but vnica vice . ( b. commission 6. ) if a commission be directed to hear and determine felonies , this shall determine the ancient commission of the peace , as to felonies , but not as to the peace : and so determined in part , in part not , ( b. commission 7. ) commission in eyer is made to the county of n. and proclamation there , this determins the commission of the peace . ( b. commission 8. ) commission of the peace is in the county of n. and the kings bench comes there , this shall not determine the commission of the peace : contrary , if they make proclamation of the coming of the kings bench ( b. commission 9. ) commission of the peace is made to 4. in the county of n. and after the king makes i. s. justice of peace there for term of his life ; the first commission is determined . ( b. commission 10. ) if justices sit by commission , and do not adjourn it , the commission is determined . and see a statute where new commissioners of gaol delivery , may sit upon the records of the ancient commission of the gaol , which is determined . and when a commission of oyer and terminer is determined , the records of that shall be sent into the kings bench ; but records of the justices of gaol delivery , shall remain with the custos rotulorum of the county . and the next justices of gaol delivery shall proceed upon them , upon judgement of death by the said statute . quaere , if they should proceed by the words to allowance of clergie , or sanctuary , it seems so , by the equity . b. commissions 11. conditions . debt upon an obligation , with a condition to perform all covenants contained in certain indentures ; the defendant cannot plead the condition , and reherse the covenants , and say generally that he hath performed all the covenants , without shewing how , by the prothonotaries , 20. h. 8. b. conditions 2. if a man devise 20. l. to w. s. to be paid in four years after his death , and dies , and after the devisee dies within the four years , yet the executor of the devisee shall have the money , or the rest of it by suit before the ordinary in the court spiritual ; for t is a duty by the testament , or devise . 24. h. 8. b. devise 27. 45. conditions 187. by fitz. if a man before the statute of tenures had made a gift of land to one in fee , for to repair a bridge , or for to keep such a castle , or for to marry yearly a poor virgine of s. this is a tenure , and not a condition ; and the donor may distrain , and make avowrie . but if a woman give land to a man for to marry her , this is a condition in effect , and no tenure , which no bodie denied . 24. h. 8. b. condition 188. tenures 53. if a man mortgage his land to w. n. upon condition that if the mortgager , and i. s. repay 100 l. by such a day , that he shall re-enter , and he dies before the day , but i. s. paies by the day , the condition is performed ; and this by reason of the death of the mortgager , notwithstanding that the payment were in the copulative ; otherwise , if it were not in the case of death , 30. h. 8. b. conditions 109. by many , if a man make a feoffment in fee , ad intentionem to perform his will , this is no condition , but a declaration of the purpose and will of the feoffer , and the heir cannot enter for non performance . 31. h. 8. b. conditions 191. if a man be bound in a bond to pay 20 l. the obligor in whose discharge the condition goes , ought to be ready at the place , &c. all the day , and the obligee may come any time of the day , 32. h. 8. b. conditions 192. a man gives land in tail , or leases it for life , or for years , rendring rent , with a condition of re-entry for default of payment , there if he leases part of the land to the donor , or lessor , or if the donor or lessor enter in part of the land , he cannot re-enter for the rent arrear after ; for the condition is wholly suspended ; for a condition cannot be apportioned nor divided . 33. h. 8. b. extinguishment 49. conditions 193. debt upon an obligation , to perform all covenants contained in certain indentures , t is no plea that he hath performed all the covenants generally , s. quod performavit omnes & singulas conventiones inindentura pred . specificat . ex parte sua perimplend . if they be in the affirmative ; but must shew in certain in every point how he hath performed them , ( b. condition 198. covenant 35. ) and where in a covenant the defendant saies , that the covenants are that he shall pay 10 l. by such a day , and infeoff him by the same day quas quidem conventiones idem defensoris bene perimplevit , this is no good plea ; for he must shew in certain how he hath performed it . 33. h. 8. b. covenants 35. the end . note for law , that proviso semper put on the part of the lesse upon the words of habendum , makes a condition ; otherwise of a proviso of the part of the lessor , as t is covenanted in the indenture , that the lessee shall make the reparations ; proviso semper , that the lessor shall finde the great timber , this is no condition . nor by some tis no condition when it comes amongst other covenants on the part of the lessee , as t is covenanted after the habendum , and after the reddendum , that the lessee shall scowre the ditches , or the like : proviso semper , that the lessee shall carry the dung from it to such a field ; this is no condition to forfeit the lease for not doing of it : contrary , if such proviso be put imediately after the habendum , which makes the estate ; or after the redendum . quaere , by b. conditions 195. 35. h. 8. if a man mortgage his land upon defeisance of repayment to re enter , and the bargain to be void : and the vendee leases the land to the vendor for ten years by indenture of defeisance ; and further grants to him , that if he paies 100 l. infra terminum dict . 10 annorum , that then the sale shall be void , &c. and the lessee surrenders the term , yet the tender of the 100 l. is good within the ten years ; because that the ten years is certain , though the lease is surrendred or forfeited . otherwise , if it were to repay infra terminum predict . without these words , ten years ; for in the one case the term , s. the lease is the limitation of payment , and in the other case the ten years , by whorewood in his reading in the lent. ( b. conditions 203. defeasans 18. ) the same law if b. holds certain land for term of ten years of a. and t is covenanted betwixt a. and b. that if b. pay 100 l. to a. within the said ten years , that then he shall be seised to the use of b. in fee , and b. surrenders his term to a. and after payes him 100 l. within the ten years , there b. shall have fee ; for the years are certain : otherwise , where t is covenanted , that if he payes 100 l. infra terminum predict . and he surrenders , and after payes the 100 l. this is nothing worth ; for the term is determined : but in the other case the ten years remain , notwithstanding the surrender . 35. h. 8. b. exposition , 44. t was holden clear in the kings bench that where m. and other two are bound to stand to the award of i. n. so that it be made and delivered by the arbitrators in writing to the parties before michaelmas , they make the award , and deliver it to one by michaelmas , and cannot finde the other by the day , this shall not binde the others to whom t was not delivered . and the reason b. seems ; because that in this case they might have made 3 parties , and have delivered to every party one . 37. h. 8. b. conditions 46. the end . t is said by the court in the kings bench : in debt upon an obligation to keep without dammage , s. harmless , where the defend . pleads that he hath saved him harmless , t is no plea without shewing how ; for he which pleads a discharge , or saving harmless , ought to plead it certain when he pleads in the affirmative . otherwise , where he pleads in the negative ; for if the plaintiff be not dempnified , he may plead quod non damnificatus est generally 37. h. 8. b. conditions 16. 198. in finibus . if a man be bound in an obligation to pay 10 l. to the obligee at paris beyond sea , at a certain day , if the obligor pay at another place , and the same day in england , and the other accepts it , t is good clearly . ( b. conditions 206. ) and t is said in debt upon an obligation to acquit & save without damage , quod non damnificatus est , is a good plea , for t is in the negative , and therefore good without shewing how , but where he pleads , that he hath kept him without dammage in the affirmative , he shall shew how . 38. h. 8. b. conditions . 93. the end . if a man let land for term of life upon condition , that if he doth not go to rome by such a day , that his estate shall be void , and the lessor grants the reversion over , the tenant attorns , and after he doth not go , yet t is not void till entire , by bromley chief justice : 2. m. 1. b. conditions . 245. the end . confess , and avoid . replevin , the defendant said that b. was seised in fee and leased to e. for 40 years , which e. granted his interest to the defendant . 38. h. 8. by which he was possessed , and distrained for damage feasant , the plaintiff said that the same e. 28. h. 8. granted his interest to him , he shall not traverse the grant. 38. for hee hath confessed and avoided it , by the eldest grant obtained . 2. e. 6. b. confess and avoid : 65. confirmation . bishop charges , or grants an office with the assent of the deane and chapter , and dyes , this is worth nothing , by some , for it ought to be confirmed by the dean and chapter ; and this fell out in the grant of the stewardship of the bishop of london , betwixt aldred fitzjames , and john edmunds of the middle temple , where the bishop granted the stewardship of his lands to a. f. by the assent of the dean and chapter , and died , by which the grantee lost the office , as t is said , because the dean and chapter had not confirmed it , yet more was in the grant of the bishop , as misnosmer , and the like , for the said a. f. was named etheldredus , where it should be aldredus , and so he was misnamed . also there was a default in the seale ( b. charge 58. confirmation . 30 ) and also the deed was quod sigillum nostrum apposuimus , which may bee referred to the bishop onely , and not to the bishop , dean and chapter : and therefore by more , to this day the grant was avoided for these causes , and not for the other cause ; and so a grant with assent of the dean and chapter , with all perfections is good . 33. h. 8. b. confirmation . 30. the end . if the bishop be patron , and the parson makes a lease or grant by deed , there the bishop patron , and the ordinary , and the dean and chapter ought to confirm , if the grant or lease shall be sure ; otherwise where a lay man is patron in fee , and he and the ordinary confirmes , this suffices without the dean and chapter , for in the first case , the bishop patron hath an interest in inheritance to the bishoprick . but in the other case , he hath but a judicial power , therefore it suffices that he who hath the power at the time , &c. confirmes , for t is a judicial act . but in the other case , it bindes the inheritance , which he hath in jure ecclesiae which he cannot do against his successor , without confirmation by the dean and chapter . ( 33. h. 8. b. confirmation . 21 : charge . 40. leases . 64. ) patet hic that the patron ought to have a fee simple , and this juri proprio , because of the dean and chapter , to be joyned with the bishop , where he is patron . b. charge 40. note , that if the king for him and his heires grants catalla felonum & fugitivorum , or the like , which lie in grant , and dies , the grantee needs no confirmation of the new king. but if it be a fair , or market , or the like , and t is abused or misused , as it may be , or if it be a judicial , or ministerial office or power , as to be a justice of peace , escheator , or the like , there he ought to have a confirmation of the new king ( b. confirmation . 19. & 29. ) yet b. seems that the grant of a thing which lies in grant , is good clearly , without these words , for him and his heires ; but of warranty , covenant , annuity , or the like , there he ought to make it for him and his heirs . 33. h. 8. b. confirmation . 19. conscience . if a man buyès land , and the vendor executes an estate to the vendee , habendum sibi imperpetuum , without words of heires , where the intent of the bargain is to pass a fee simple , and the vender upon request refuses to make other assurance , there lies a writ of subpaena . 32. h. 8. b. conscience 25. audely , chancellor of england held clearly that if a man sell his land before the statute of uses , this shall change the use of the fee simple . and the same law of a sale by indenture , by the statute of 27. h. 8. without words heires . time h. 8. b. conscience . 25. the end . continuances . note , that in the common recoveries by sufferance , for assurances , the tenant tenders issue , the demandant may imparle to a day in the same terme , and then the tenant is demandant , and retracts , and judgement is given for the demand : against him , and after the tenant over in value upon the vouchee , &c. regulae . 22. h. 7. b. continuances 69. contract . a man sells a lease of land , and certain cloath for 10 l. the contract is intire , and if the one of these were by defeasible title , yet the vendor shall have the intire summe , though the one part were devested from the vendee , for contract cannot be severed . 24. h. 8. b. contract 35. if a man be indebted to me upon contract , and after makes to me an obligation for the same debt , the contract by this is determined , for in debt upon the contract , t is a good plea , that he hath an obligation for the same debt . so if the obligation be made for parcell of the contract , which is intire . 3. h. 4. 17. but if a stranger makes an obligation to me , for the same debt , yet the contract remains , because that t is by another person , and both are now debtors ▪ 29. h. 8. b. contract 29. corone , crown . note , if a felon hath a pardon to plead , and pleads not guilty , he shall lose the advantage of his pardon , and shall not plead it after . 18. h. 8. b. corone . 199. note , that at the sessions at newgate , a man was judged to be hanged , and delivered to the sheriff to make execution , and after escapes , and flees to the church : and had the priviledg of it . 22. h. 8. b. corone . 1 10. the end . note , t was holden by all in the house of parliament , that if a man kill one who is attainted by premunire , this is no felony , for he is out of the protection of the king , which is , as if he were out of the kingdom , and power of the king. otherwise of him who is attainted of felony , and judged to death , the killing of him is felony . 24. h. 8. b. corone . 196. t is said , where a woman is arraigned , and adjudged to be hanged , or burnt , according to the crime , and because that she is with childe , execution is respited untill shee bee delivered , and now she is with childe again , because that once execution was spared for the same cause , now execution shall be commanded to be done : and the gaoler shall not be punished 28. h. 8. b. corone . 97. a man steals goods in one county , and flees with them into another , he may be indicted , or appealed in any of the counties , for t is felony in every of the counties , for felony alters not the property . 34 , h. 8. b. corone . 170. note , that if 12 come for to do robbery , affray , riot , or the like , which are unlawful acts , one of them enters into the house , and kills a man , or doth other unlawful act , all the others which came with him to do the unlawfull act are principals . the same law in the case of fines lord dacres , one of his company killed a man in hunting in a forrest , and the lord dacres , and the other hunters , as mantel , and others were principals , and were all hanged . 34. h. 8. b. corone . 171. a man shall not plead that the dead assaulted him , and in his own defence , &c. but not guilty in an appeal , and give it in evidence , and murder cannot be justified . see tit. appeal . note , by the justices , that t is felony to kill a man in justing , or where men play at sword and buckler , and the one kills the other , and the like notwithstanding the commandement of the king , for t was against law. time. h. 8. b. corone . 228. note , by all the justices , that if a man be indicted of felony , in the time of h. 8. the king dies , he shall be arraigned for it in the time of e. 6. but by some this indictment shall be removed by cerciorari from the antient custos rotulorum , and put to the new commissioners . 1. e. 6. b. corone . 177. note , that indictments and records , which are taken before justices of oyer and terminer , and not determined before their commission be ended , these shall be put into the kings bench to arraign the parties there . s. by cerciorari out of the chancerie , which shall be to commissioners of oyer and terminer , and after shall be sent into the kings bench by mittimus ( b. corone . 178. oyer and terminer . 2. ) but indictments taken before justices of gaol delivery , and not determined , shall be delivered to the clerk of the peace , or shall remain with the custos rotulorum of the county , where , &c. and when other justices of gaol delivery come there , they may proceed upon them upon judgement of death , and this by statute . and b. seems that they shall proceed by the equity of the words , to allowance of clergy or sanctuary ; and the like . 1. e. 6. b. corone . 178. note , that t was holden , that where a stable is near a house inheritable , as parcell of the house , and a man breaks it by night , to the intent to rob in it , t is felony , though he takes nothing , for t is burglary . 2. e. 6. b. corone . 179. burglary shall not be judged , but where there is breaking of a house by night . and by the justices , where the principall and accessarie are arraigned , and the principall hath his clergie , this shall not serve the accessarie , but he shall be arraigned and hanged , where both are found guilty . 4. e , 6. b. corone . 184. a man is indicted as accessary to a felony , and acquitted , and after is indicted of the same felony , as principal , he shall be arraigned and hanged , notwithstanding the acquittal as accessary . and so was thomas knightly first indicted and arraigned as accessary of i. s. and acquitted , and after was indicted of the same murder as principal , and arraigned of it again . 4. e. 6. b. corone . 185. a woman took the church for felony , and abjured the kingdome . 6. e. 6. b ▪ corone . 213. note , that 't was agreed by all the justices at serjeants inn in chancery lane 25 octob. 1556. as to the trial of treason , and misprison of treason , that by the statutes , 2 accusers or testes ought to be at the indictment , or the sayings and accusations in writing under their hands , or the testimony of others of the same accusation , which shall be read to the jury at the indictment ; and if the accusers are dead at the time of the indictment , yet it suffices if the accusation be there testifying it , for then there were two accusers . but for any treason de anno 25. e. 3 : there needs no accusers at the trial , because that 't is enacted by the statute of 2. m. 1. cap. 10. that all trials of treasons , shall be by the order of the common law onely , & non aliter . and the common trial by common law , is by jurie , and by witness , and by no accusers . and the same law of treason of coyning , that accusers need not at the arraignment , but at the indictment ut supra onely . but for all treasons done by the said act of 2. m. 1. there ought to be witnesses , or accusers , as well at the indictment , as at the arraignment , according to an article contained in the said statute , in fine . and for misprision of treason there ought to be witnesses , or accusers , as well upon the indictment , as upon the arraignment , by the statute of 1. e. 6. cap. 12. the end , for the said statute of q. mary , doth not restrain accusers at the trial , but only in cases of treason , and not for misprision . and t was agreed that petty treason ought to be tried as high treason , s. by accusers by indictment ; but at the trial there needs not accusers , and at this resolution , wer sir william portman chief justice , mr. hare master of the rolls , sir robert brook , sir david brook , sir humfrey brown , sir john whiddon , sir edward saunders , sir william stampforde , and master dalyson , justices , dyer serjant , and griffine , and cordell attorney and soliciter . and t was agreed , that counsellers who give evidence against traytors , are not accusers . and by the civill law , accusers are as parties , and not witnesses , for witnesses ought to be indifferent , and not come till they are called , but accusers offer themselves to accuse , for t is a good challenge to witnesses , to say , that he was one of his accusers . 4. m. 1. b. corone . 219 , 't was said for law , that a man cannot abjure for high treason . quaere of petty treason , for t is manifest in a chronicle in the time of h. 6. that a woman that killed her mistress abjured the realm . 5. m. 1. b. corone . 180. the end . manningt ' . and another were indicted of felony in the high way in the county of bedford , for robbery of one edward keble clerk with daggs , & the indictment and the body were removed into the kings bench , and there they were arraigned , and pleaded not guilty to the countrey , and were tried . but after a writ was sent with the body into the countrey with nisi prius to trie them in the county of bedford . and this is a common course , so to remove the body and the record out of the kings bench to the countrey again . 4. m. 1. b. corone . 230. a man takes church , and the coroner comes to him , and demands of him for what cause he does it , who said that he would be advised by 40. days before that he would declare his cause , the coroner may draw him out presently ; but if he will confess to him felony , he may remain there by 40 days , before that he abjures . otherwise where he takes sanctuary , as westm ' . knoll , and the like , for this may hold him for term of life , except in case where a statute changes it ( b. corone 180. sanctuary . 11. ) but if he will abjure within the 40 days , the coroner shall give him a certaine day to doe it . ( b. corone supra . ) none shall take priviledg of the church , except that he be in danger of his life ( b. corone . 181. ) nor none shall have the priviledg of sanctuary except he in periculo vitae . and note that sanctuary cannot have a lawful commencement , nisi pro vita hominis , as for treason , felony , or the like ; and not for debt , therefore where a grant , or prescription is to have sanctuary for debt , t is worth nothing , for t is against the law. but if his body were in execution , and he escapes , and comes to a sanctuary ordained for safeguard of the life of a man , he shall enjoy it , for by long imprisonment his life may be in jeopardy . and if the church be suspended for bloodshed , yet he which takes the church for felony , shall enjoy it by 40 daies ( b. sanctuary supra . ) there are two manner of sanctuaries . s. private , as westminster knoll , and the like . and general sanctuaries , as every church ( b. corone . 181. the end . ) abjuration for felony , discharges all felonies done before the abjuration . a man cannot abjure for petty larceny , but for such felonies for which he shall suffer death . lecture b. corone . 182. note , that these words ( quod pred . vitam & membra ) in a statute , are intended felony , without the word of felony in it . regula ( b. corone . 203. ) corporations . note , that the justices of the common bench accords in case of a corporation , that known by the one and the other , in a suite by a name known , is no plea for the plaintiff , for he ought to acknowledge his proper name . but if the defendant be named by the plaintiff by a name known , though the defendant be corporate , it suffices . yet quaere ; if there be not a diversity betwixt an action real , and an action personal . 25. h. 8. b. corporations . 82. by fitz. ●f the abbot and covent sel all the lands and the abby , yet the corporation remains quaere by b. of what he shall be abbot , for there is no church nor monastery . and by him quaere if the abbot die , if they s. the covent , may chuse another , the house being dissolved 32. h. 8. b , corporations . 78. see tit extinguishment . the king makes a duke or earl , and gives to him 20. l. of land , or the like , by the same name , so that the creation and the grant , is all by one and the same patent , yet t is good . and the same law of making a corporation and giving to them land by the same patent , and name . 2. e. 6. b. corporations . 89. costes . note , by spilman justice , that at common law , a man shall recover costs in a quare impedit : but otherwise , after the statute of westm. 2. cap. 5. because the statute gives great dammages in a quare impedit . 22. h. 8. b. costes . 25. note , where an action penal is given by statute , to recover a great summ by action of debt for ingrossing , or the like , there the plaintiff shall not recover costs nor dammages in this action of debt 35. h. 8. b. dammages 200. costs 32. t was said , that if a lessor brings debt against his lessee for years , for rent , and the plaintiff is nonsuit , or if the inquest pass against him , he shall render costs to the defendant by the stat. for a lease for years rendring rent , is a contract . 2. m. 1. b. costs 23. covenant . where an assignee shall be charged with the covenant of his grantor . see tit. assignee . plea of covenants perform generally , without shewing how , is no good plea , see tit. conditions . t is said by the justices , that a writ of covenant lies upon an indenture , without this word covenant and grant for him , his heirs and executors . 1 m. 1. b. covenant 38. the end . coverture . note , that a statute staple , nor deed enrolled , shall not be accepted of a fem covert , by the common law : contrary , by the custom in london of a deed enrolled ; for this shall binde in london as a fine at common law , ( b. coverture 59. 76. the end . ) nor a fine , statute , nor deed enrolled , shall not be suffered by an infant . 32. h. 8. b. coverture 59. the end . count. precipe quod reddat against tenant for life , who prays in aid of him in reversion , who appears gratis , and joyns in aid ; and the demandant counts de nono against the tenant , and the prayee , and they vouch the common voucher , and suffer recovery for assurance . and yet t is said , that the priee shall not have oyer , but of the count. cusus 22. h. 7. b. count 87. court baron . t was said that the lord of a mannor cannot hold court , nor do justice without two suitors : and if they die , or if that there be but one suitor , the mannor is determined ; for t is not a mannor without suitors . 23. h. 8. b. court baron 22. the end . if an understeward holds a court baron , and grants copy-holds to the tenants by copy of court roll , without authority of the lord , or high steward this is a good grant ; for in plena curia contrary if he doth it out of court , without such authority . yet the high steward may demise customary land by copy out of court by some . quaere thereof by b. if he hath not a special authority from the lord to demise . 2. e. 6. b. court baron 22. tenant by copie , 26. customs . information in the exchequer against a merchant for lading wine in a strange ship ; the defendant pleads the licence of the king made to i. s. to do it , which i. s. had granted his authority thereof to the defendant & quod habetur consuetudo inter mercatores per totam angliam : that one may assigne such a licence over to another , and that the assignee shall enjoy it , &c. to which t was demurred in law : and t was agreed for law , that a man cannot prescribe a custom per totam angliam : for if it be per totam angliam , this is the common law , and not a custom : contrary , if the custom had been pleaded to be in such a city or county , as gavelkinde , borrow-english , glocest. fee , and the like , 35. h. 8. b. customes 59. dammages . note in trespass local , that upon an inquest of office to enquire of dammages , the court may abridge , or increase them . but otherwise upon the principall , s. upon issue tryed betwixt party and party , ( but there it may encrease costs . ) for the party is at his attaint : but upon an inquest of office he cannot have an attaint , 34. h. 8. b. dammages 144. see tit. costs . default . if a woman be received in default of her husband , and after shee makes default , judgement shall be given upon default of the husband ; and no mention shall be made of the receit . time h. 8. b. default 85. demurrer . inquisition found that i. s. held certain land of the king , ut de honor suo gloucester , which is not in capite , upon which proces issued against w. s. who had intruded , &c. and to sue livery : and because that this tenure is not in capite , and therefore livery not due ; the party demurred upon the record ; for t is no cause of livery . and where a man declares upon a statute , and recites it otherwise then t is , or pleads it otherwise then t is , the other may demur upon it ; for no such law if it be misrecited . 32. h. 8. b. demurrer in law 25. denizen . see tit. alien note , for law , that where an alien born comes into england , and brings his son with who was born beyond sea , and is an alien as his father is , there the king by his letters pattents cannot make the son heir to his father , nor to any other : for he cannot alter his law by his letters pattents , nor otherwise , but by parliament ; for he cannot disinherit the right heir , nor disappoint the lord of his escheat : and the son of an alien , which son is born in england , he is english , and not an alien , 36. h. 8. b. denizen 9. deputie . t is said that a deputation of an office which lies in grant , ought to be by deed , and not by word , 28. h. 8. b. deputy 17. detinue . by shelley and others , if a man meddle with goods , as by trover of them , he shall be thereof charged , though that he deliver them over before action brought , 32. h. 8. b. detinue de biens 1. the end . debt . where debt lies , and where a scire facias ? see tit. age. debt upon indentures of covenants : where the defendant had covenanted to do many things , and the plaintiff the like , to do many other things , ad quas quidem conventiones per implendam uterque obligatur alteri in one hundred pound , and the one breaks covenant , by which the other brings debt , and the defendant pleads payment of ten pound to d. which was all to which he was bound : judgement if action , and no plea per curiam , because he did not shew thereof a deed , where the plaintiff declared upon the indenture , which is a deed , and yet otherwise in pleading of payment of rent reserved upon a lease for years , made by indentures : for there he may levy it by distress , and therefore an averment may come in ure . but otherwise where all rises by specialty , where it lies in payment . 25. h. 8. b. debt 173. debt upon an obligation with condition , where the condition is not broken , by which he is barred , he shall never sue this obligation again : for once barred est pro imperpetuo , 29. h. 8. b. debt 174. administrator of a lord brings an action of debt for relief , which fell tempore intestati , and the defendant pleaded in bar , and traversed the tenure , and so at issue . and therefore b. seems that the action lies clearly for him : for the defend . did not demur : so if it be brought by an executor of the lord for relief due to the testitor , rot. 5●9 : in the common bench. 32. h. 8. b. debt 193. relief 11. the ends . devise . not , that a fem covert with assent and will of her husband , may make her testament , and devise the goods of her husband , yet if the husband prohibit the probat of the testament of the wife after her death , then all is void : for the husband may countermand it : b. devise 34. the end . testament 21. the end . and a devise by the husband to his wife is good , though they are one and the same person in the law ; for the devise takes not effect till after the death of the husband , and then they are not one person , 24. h. 8. b devise 34 : t was agreed by all , that if a man wills that i. s. shall have in his land in date after the death of his wife , and dies , now the wife of the devisor by these words shall have the land for her life , by reason of the intent of the will. 29. h. 8. b devise 48. note , that in london a man may devise by testament to a common person , though the testament be not enrolled . but if he devises in mortmain he ought to be a citizen , and a freeman resident : and the testament o●ght to be enrolled at the next hustings . 30. h. 8. b. devise 28. a man devises to two & heredibus eorum , and dies ; and after one of the devisees dies , and the other survives , he shall not have the intire by survivor , but onely a moytie ; for this was the intent of the devisor : by audley chancellor of england , b. devise 29. and by b. there the end . if one devise to another in feodo simplic● , the devisee hath a fee simple . 30. h. 8. a man wills that his land devisable shall be sold by his executors , and makes four executors , and dies , all the executors ought to sell , for the trust is put joyntly in them . quaere , for b. seems , that if one or two die , that the three or two which survive , may sell ; for there is the plural number , executors : and death is the act of god ( b. devise 31. ) and by him where such will is made , and some of the executors refuse , and the other prove the testament , those , or he which proves the testament may sell by the statute , ( b. devise 29. 31. ) where t is expressed that t was doubted at common law , if the sale by one executor were good , or not ( b. devise 31. ) and by some , where a man wills that the land shall be sold post mortem i. s. by his executors , and makes four executors , and dies , and after two of the executors dies , and after i. s. dies , there the two executors that survive may sel , for the time is not com til now , 30. h. 8. b. devise 31. t was said that baldwin , shelley , and montague , justices , determined for law , that where a man hath feoffees to his use before the statute of uses made 27. h. 8. and after the same statute ; and also after the statute of 32. h. 8. of wills , he wills that his feoffees shall make an estate to w. n. and his heirs of his body , and dies , that this is a good will and devise ratione intentionis , &c. 38. h. 8. b. devise 48. the end . if a man devises his land to be sold by his executors , and dies , the heir enters , and after is deseised , yet the executors may sell , and the vendee may enter , b. devise 36. entre congeable . 134. the same law if the heir suffer a recovery or levies a fine . and the same law by some , where a man disseises the heir , & dies seised , and his heir enters , the executors shall sell , and by the vendee may enter ; for he hath no right , nor no action is given to him : for he hath but a title of entry by the sale , and therefore he may enter , for otherwise he hath not any remedy , by hales justice 1. e. 6. b. devise 36. agreed for good law , that the occupation of a chattel may be devised by way of remainder , but if the thing it self were devised to use , the remainder is void ; for a gift or devise of a chattel for an hour , is for ever ; and the donee , or devisee may give , sel , and dispose it , & the remainder depending upon it , is void , time h. 8. b , devise 13. the middle . where a man devises that w. o. shal have the occupation of his plate for term of his life , and if he dies , that it shal remain to i. s. this is a good remainder : for the first hath but the occupation , & the other after him shal have the property , 2. e. 6. b. devise 13. the end . note if a man hath issue 3. sons , and devises his lands : s. one part to the two of his sons in tail , and another part to the third son in tail , and that none of them sell any part , but that every one shal be heir to the other , & dies , that in this case if one dies without issue his part shall not revert to the eldest son ; but shall remain to the other son : for these words ( that every one shall be heir to the other ) implies a remainder ; because that t is a will , which shal be intended and adjudged according to the intent of the devisor . 7. e. 6. b. devise 38. done 44. a man devises his land to another , for to give , sell , or to do with it at his pleasure ; this is a fee-simple : for his intent shall be taken to give a fee-simple . 7. e. 6. b. devise 38. note , by bromley chief justice , and others ; where a man devises his land to a stranger for term of years , the remainder to his son in fee , and dies ; the son may waive the devise , and claim by discent , and yet he shall not avoid the term : no more then where a man leases for years , and dies , the lease is good : and yet the dying seised is good also to toll the entry , b. devise 41. and b. seems where the father devises to his son and heir in fee , that the heir may waive the devise , and take himself to the discent , ( ● . discent 4. ) contrary , where the father devises to his son in tail , the remainder to a stranger in fee , there the heir shall not claim in fee , nor waive the devise , for the loss and prejudice of him in remainder in fee. 2. m. 1. b. devise 41. tenant in tail of land devisable , discontinues in fee , and retakes in fee , and devises to a stranger in fee , and dies , the issue in tail is remitted ; for nothing is discended to him by reason of the devise , which tolls the discent , except that the devisee waives it . 4. m. 1. b. devise 49. remitter 52. divorce . what divorce may bastardize the issue ? what not ? see title bastardie . note , for law , that where the husband and wife are divorced where shee is an inheritrix ; yet mean acts executed shall not be reversed by the divorce ; as waste , receit of rents , taking of ward , presentment to a benefice , gift of goods of the wife , otherwise of inheritance , as if the husband had discontinued , or charged the land of his wife , cui ante divorcium lies . the same of a release of the husband , or manumission of villains , or the like . and if the husband and wife purchase joyntly , and are disseised , the husband releases , and after are divorced , the wife shall have the moytie , though there were not moyties before the divorce ; for the divorce converts it into moyties . 32. h. 8. b. deraignment 18. discent . if land be given for term of life , the remainder to the right heirs of w. n. which w. n. is attainted of felony , and dies , and after the tenant for life dies , the remainder shall not take effect , nor none shall have the land ; for he hath not heir ratione attincturae . and though all be a name of purchase , yet none can take it , but he which is heir , ( b. discent 59. done 42. ) and where land in gavelkinde is given to one for life , or in tail , the remainder to the right heirs of w. n. who hath issue 4. sons and dies , and after the tenant for life , or the donee dies , the eldest son shal have the land , for he is right heir at common law , & this is a name of purchase , which shall be ordered by the common law. but otherwise of discents to heires in gavil kinde , for then it shall goe to all the sons . 37. h. 8. b. discent , & done . 42. nosme . 6. note , that sir john hussey knight , enfeoffed certain persons in fee to the use of anne his wife , for terme of her life , and after to the use of the heirs males of his body , and for default of such issue , to the use of the heires males of the body of sir william hussey his father , and for default of such issue , to the use of his right heires , and after had issue william hussey the elder ; and after sir john was attainted of treason . 29. h. 8. and put to execution , and after anne died , and the said william hussey the son prayed an ouster l'main of the king. and by whorewood the kings attorney he shall have it , for this name heires males of the body , is but a name of purchase , and sir w. h. shall not have it as heir to sir john , but as purchaser . ( b. nosme . 1. livery 1. discent . 1. ) as if land is given to a man and his heires males of his body , and he hath issue 2 sons , the eldest hath issue a daughter , and the father , and the eldest son dies , the younger brother shal have the land , and yet he is not heir to his father . and the same law where land is given to a man , and to his heirs females of his body , and he hath a son and daughter , and dies , the daughter shall have the land , and not the son . ( b. nosme . 1. 40. ) and so where tenant in tail is attainted of treason before the statute of 26. h. 8. his son shall have the land , for he doth not claim onely as heir , but by the statute and per formam doni ( b. nosme . 1. ) yet some were of a contrary opinion , and took a diversity , where the gift is to the father himself , and where t is to the heires of his body by remainder ( b. nosme . 1. & 40. ) and therefore in 9. h. 6. if lands are given for term of life , the remainder to the heires females of the body of i. s. who is dead , and hath issue a son and daughter , and after the tenant for life dies , the daughter shal not have the land , for she is not heir : for by hare master of the rolls an antient apprentice , there is a difference betwixt a gift in possession to a man and his heires females , &c. and a gift to a stranger , the remainder to the heirs females of another , for there he ought to be heir indeed when the remainder falls , or otherwise the rem ' is void for ever . ( b. done. 61. ) for though that the case holds place in the two cases put by whorewood , this is because that the gift was once vested which was in the father , and therefore good law there , otherwise in the principall case , where the rem ' . is not vested . yet by some the opinion of whorewood is the better , for where land is given to a man and his wife for term of life , the rem ' to the heires males of the body of the man , this remainder cannot be vested in the life of the wife , for t is not a tail in the man , by reason of the estate of the wife ; yet , if he hath issue 2 sons , and the eldest hath issue a daughter and dies , the father and mother dies , the younger son shall have the land , as heir male , and yet he is not heir indeed ; the same law , if such gift were , the rem ' to the heirs females of the body of the man , who hath a son and daughter and dies , the daughter shall have the land though she is not heir ; the same law where land is given to w. n. for life , the remainder to i. s. for life , the remainder to the heires males of the body of the said w. n. who hath 2 sons , the eldest hath issue a daughter and dies , w. n. and i. s. die , the younger son shall have the land as heir male , yet he is not heir indeed , but his neece is heir to his father ; for t is not matter of the first vesting , nor of the remainder , for where the first estate for term of life is executed , the remainder over ut supra , the remainder may depend in abeyance quousque , &c. ut supra . but otherwise of a remainder to the right heires , for none can have that , but he which shall be heir indeed . ( b. nosme . 40. ) and therefore t was agreed , that the 2 remainders to the right heires of sir john hussey was forfeited by the attainder . 37. h. 8. b nosme . if land discends to the daughter within age , and after she is disseised , the disseisor dies and his heir enters , and after a son is born , he born shal avoid the discent , for he claims not as heir to his sister , nor was he in esse at the time of the discent . lecture . b. discent . 40. discontinuance of possession . recovery against tenant in tail , the reversion or remainder in the king in fee , shall binde the tenant in tail , and the issue in tail , but not the king. but now by the statute it shall not binde the issue in tail , but that he may enter . 32. h. 8. b. discontinuance of possession . 32. note , that t was agreed in the case betwixt the king and anthony lee knight , if the king tenant in tail of the gift of another makes a lease for years , or for life , and hath issue and dies , the issue may make another grant without reciting them ; for they are void by the death of the king tenant in tail , who granted , and the heir of the king shall avoid it , so that this shall not binde but during the life of the grantor , for a grant without warranty or livery , is no discontinuance , and the king upon his grant doth not make livery . and also every discontinuance is a wrong , which the king cannot do ; the same law if he had granted in fee , t is no discontinuance ; ( b. patents . 101. discontinuance of possession . 35. tail. 39. leases 61. ) and so see that the king may be tenant in tail , for when a man gives to the king in tail , he cannot have a greater estate then the donor will depart with to him . 38. h. 8. b. tail. 39. release no discontinuance . see tit. releases . discontinuance of proces . note , that a discontinuance puts the party to a new originall , but where the parol is without day , this may be revived by a re-summons or re-attachment , for the originall remains . regulae . b. discontinuance of proces . 43. dismes , tythes . t was said that if a parson demise his glebe to a lay man , there he shall pay tythes ; contrary of the parson himself , that reserves them in his proper hands . and that land first discharged of tythes , shall be ever discharged of them . yet if he which hath purchased a mannor and rectory , which is discharged of tythes , leases part of his demeanes , the lessor shall have tythes of that , because that he hath the parsonage . 32. h. 8. b dismes 17. disseisor . t was said for law , if a. leases the land of i. n. to me for years , rendring rent , the lessee enters , and payes the rent to the lessor , the lessor is a disseisor , for countervails a commandment to enter , and he which commands is a disseisor , which note by his void lease . 23. h. 8. b. disseis ' ▪ 77. distress . where land shall be charged with 2 distresses by dower of part , and so of partition . see tit. avowry . note , for law , that he which distrains beasts may put them into a close house , if he will feed them ; for the distress in pound overt , is but to the intent , that the owner may feed them . 33. h. 8. b. distress . 66. t was agreed for law by the justices , that if a man distrain without cause , the owner may make rescous , but if he impounds them , the owner cannnot justifie the breaking of the pound , and taking them out , for they are in custodia legis . 4. e 6 b. distress 74. rescous . 12. the end . done , gift . devisee for life of a chattell , the remainder over , he for life gives the chattell , whether this shall barr the remainder . see tit. chattells . t is said for law , that if a man gives omnia terras & tenementa sua in d by this leases for years do not pass , for these words lands and tenements shall be intended free hold at least . 37. h. 8. b. done. 41. the difference betwixt a gift in remainder , heredibus masculis de corpore & rectis heredibus . see tit. discent . t was granted by shelly justice , and others , that if the king give a chattell without deed , and the donee takes it by his commandment , t is good . 2. e. 6. b. done. 16. the middle . if a man gives or grants omnia bona sua , leases for years , nor award , shall not pass , for they are chattels reals . and b. seems that a grant of prox ' present . ecclesiae unica vice is a chattell , & non bona , for bona are goods moveable , living and dead , but not chattels . 4. e. 6. b. grants . 51. done. 43 : dower . a woman shall not be endowed of a rent reserved upon a lease of her husband for term of life , for the rent is not an inheritance , and t is determinable upon the death of the lessee , and yet the heir shall have it , for t is incident to the reversion . and where a man seised in fee , leases for years rendring rent , and afterwards takes wife and dies , the wife shall have dower of the land , but shall not have execution during the term of years , for elder title , &c. and she cannot be indowed of the rent for the cause aforesaid . 1. e. 6. b : dower : 89. note , by the justices , by the statute where a man makes his wife joynt purchaser with him after the coverture , of any estate of free-hold , except it be to him and his wife , and their heires in see simple , this is barr of dower , if she agree to the joynture post mortem viri , otherwise of fee simple , for such joynture is not spoken in the statute . nor a devise of land by the husband to the wife by testament , is no barr to dower , for this is a benevolence , and not a joynture . 6. e. 6. b. dower ▪ 69 ▪ dum non fuit compos mentis note , that if a judge or justice be of non sane memory , yet the fines , judgements , & other records which are before him , shal be good . but otherwise of the gift of an office or the like by him ; for this is matter in fact , and the others are matters of record ; for matters in fact may be avoided by non sane memory , otherwise of matter of record . 1. m. 1. b. dum non fuit compos mentis . 7. ejectione custod . t was said that a man shall have a writ de ejectione custodie of a rent , and this before seisin of it ; for seisin in law shall be thereof adjudged , by reason that he cannot receive it before the rent day . yet otherwise of land , for there he may enter ▪ 23 ▪ h ▪ 8 ▪ b. quare ejecit infra terminum . 5. enquest . note , betwixt the king and the bishop of rochester for treason , the bishop shall not have knights in his jury ▪ where knights ought to be returned , when a peer of the realm , as a bishop , and the like , is party ▪ yet quaere , if it were challenged . 27. h. 8. b. enquest . 100. t was holden in the common bench by the prothonatories , if a protection be cast at the day of nisi prius , and the justices take the jury de bene esse , and at the day in bank , the protection is allowed , now though the first ●aking is void , yet the inquest shall not be recharged by resummons , for when the inquest is once sworn , and give verdict , they shall never be sworn again upon this issue . 2. m. 1. b. enquest 86. entre congeable : lawfull entry tenant for term of life aliens to b. to have to him and his heires for term of life , of tenant for term of life , this is no forfeiture , for all is but the limitation of the estate . b. forfeiture of lands . 87. ) and if tenant for terme of life suffers a recovery , he in reversion cannot enter , but is put to his writ of entrie , ad terminum qui preteriit , or writ of right , and shall falsifie the recovery in it , if he hath cause . ( and if he will have it sure , the tenant for life ought to pray in aid of him in reversion , and if he joynes in aid , and both vouch over , then well upon recovery had , &c. as betwixt corbet and clifford in the countie of buck ' this year . ) but if tenant for life be impleaded , and prayes in aid of a stranger , he in reversion may enter , for this is a forfeiture . but if he doth not enter till the other hath recovered , then he cannot enter , but is put to his writ of entrie , ad terminum qui preteriit , vel ingres . ad communem legem , and shall falsifie the recovery there . 24. h. 8. b. entrecongeable . 115. fauxifier . 44. forfeiture of lands . 87. the end . cestuy que use in tail suffers a recovery against him upon a faint title before the statute of uses , and dies , the feoffees cannot falsifie it in an assise by way of entry , but shall have a writ of entry , ad terminum qui preteriit , or a writ of right , and shall falsifie it by this action . b. entre congeable . 123. fauxifier . 49. ) and if he leuies a fine with proclamation , and dies , if a stranger of his own head enters in name of the feoffees , or to their use within the 5 years , this shall avoid the ●ine though the feoffees did not command him ; for by this the freehold is in them till they disagree , or till another enters . 31. h , 8. b. entre congeable . 123. the end . t was doubted , if a recovery had against cestuy que use in tail , shall binde the heire in tail . but by hales just. by such recovery the entry of the feoffees seised to the use of the estate taile is taken away , but after the death cestuy que use , who suffered the recovery , the feoffees may have a writ of right , or writ of entrie , ad terminum qui preteriit in the post , or the like . and by some , there is no use in tail , but t is a fee simple conditional at the common law , as t was of a tail before the statute of w. 2. and this statute makes not mention but of gifts in tail , which is tails in possession . and therfore quaere , if the tail in use cannot be taken by the equity of it , yet t was doubted if the issues and the feoffees shall be bound after the death of cestuy que use , who suffered the recovery , by reason of those words in the statute of 1. r. 3. which wills that the recovery shall be good against the vendor , and his heires , claiming only as heir , and against all others , claiming onely to the use of the vendor and his heires , and this is intended by some of a fee simple , and in the case afore the issue in tail , claims as heir in tail in use . ( b. feoffements to uses . 56. the middle . ) yet see the statute of 32. h. 8. that a fine with proclamation levied , or to be levied by tenant in tail in possession , reversion , remainder , or in use , after proclamation had , shall binde those tenants of those tails and their heire for ever . and see that the same statute is as well pro temporibus preteritis , quam futuris . 30. h. 8. b. feoffements to uses . 57. the end . g. t. knight seised in tail to him and the heires males of his body , discontinues , and retakes to him and e. his wife , and to the heires of their two bodies , and had issue , t. and w. and died , and after e. his wife survived , and t. had issue e. nuptam t. w. and died , and after w. by covin of e. his mother , tenant in joynture , brings a formedon upon the elder tail against his mother , and she appeared the first day , and w. recovered by nihil dicit , and t. w. and e. his wife heir to g. enters by the statute of 11. h. 7. and the entry adjudged lawfull by the same statute , which wills such discontinuances , alienation , warranties , and recoveries shall be void ( b. entre congeable 140. judgement . 153. ) and it need not to say that the recovery was executed , for because t was void , it shal never be executed . and e. the heir averred that he is the same person to whom the reversion appertained , and shewed not how heir to it , and yet good by molineux , and hales justices , contra brown and mountague chief justice of the common bench. but all agreed that t was a recovery by covin , notwithstanding t was upon a true title . and good , notwithstanding he did not shew cause of covin . 32. h. 8. b. entre congeable . 140. collusion . 47. agreed for law , that if land escheat to the king , which is in lease for years , or charged with a rent charge , and office is found for the king of the escheat ( the lease or grant not found in the office ) the lessee cannot enter , nor the grantee cannot distrian , but if the king grant the land over , the lessee may enter , and the grantee may distraine . but a man which claims free hold in the land , cannot enter without traverse of the office , by b. 33. h. 8. b. entre congeable . 124. note , that t is ruled in the serjeants case , that where a common person leases lands for years , rendring rent with a clause of reentry , and after grants the reversion over , the tenant atturns , the grantee may reenter for condition broken , by the statute by express words . and the same law of the grantees of the king. e. 6. and all others heires to king h. 8. by the equitie of the said statute , which provides remedy for the patentees of the king. h. 8. and for grantees of common persons . 4. m. 1. b● entre congeable . 139. t was said that where the interest of the king is certain and determined , the party may enter , quaere by b. time. h. b. reseiser . 36. the end . error . 't was said in the kings bench , where a writ of error beares teste before the first judgement , and the record is certified in the bench , that 't is good ; and yet the writ saith , quod si judiciū reddit . fit , tunc record . & process . habeatis , &c. 5 e : 6. b : errour . escape . debt upon an escape , against the sheriffe , who said that before the escape the prisoner was condemned in the said condemnation , and in execution , ut in narratione , in the time of a former sheriffe , who suffered him to escape , and after re-took and imprisoned him , and was removed , and this defendant was made sheriffe , and after suffered him to escape ; judgement is , of this second escape you ought to have your action : and a good plea , for he hath confessed and avoided the plaint ; for when the prisoner first escaped , and the first sheriffe re-took and imprisoned him : this second imprisonment is no execution for the party , but the party is put to his action , for the escape against the first sheriffe , 5 e : 6. b : escape 45. escheate . foundership cannot escheate by death without heir , nor bee forfeited by attaindor of felony or treason ; for 't is a thing annexed to the blood , which cannot be divided , as 't was said , after the augmentation court took commencement ; for a man who is heir to another , cannot make another to be heir , time : h : 8. b : corodies 5. the end . note , by brown , hales & cooke , justices ; if there bee lord and tenant by fealty and rent , the tenant is disseised and dies without heir , the lord accepts the rent by the hands of the said disseisor , yet hee may enter for the escheate , or have a writ of escheate , and the receipt of the rent no barre ; for the disseisor is in by wrong : otherwise if he had allowed for it in a court of record , or had taken corporall service , as homage , &c. so of acceptance of rent by the hands of the heir of the disseisor , or of his feoffee , which are in by title , 7 e : 6. b : escheate 18. essoign , if the tenant in a praecipe quod redd : prayes the vjew by attorney ; his attorney shall bee essoyned upon the vjew : but if he himselfe prayes the vjew in proper person ; then per plures , none shall be essoyned upon the vjew but the tenant himself ; for after processe upon a voucher , he himself shall bee essoyned , and by consequence in like manner shall be upon the vjew . and note , that granting of an essoyn , whereon essoyn lyes not , is not error . contrary of denying of essoyn where it lyes , 33 h : 8. b : essoine 116. estates . the king gives land to i : s : & heredibus masculis suis ; and 't was adjudged by all the justices in the exchequer camber , that the grant is void ; because the king is deceived in his grant ; for it sounds in fee simple ; whereas it seems the king intended but an estate tail , which is not so expressed ; and therefore now he is but tenant at will. otherwise in case of a common person , 18 h : 8. b : patents 104 , estates 84. 't was said for law , that if a feoffment bee made to w : n : during the life of i : s : these words ( during the life of i : s : ) &c. shall be void ; for they are contrary to a fee. contrary of a feoffment in fee so long as pauls steeple shall stand , 21 h : 8. b : estates 50. a man gives land to two & heredibus , and doth not say suis ; this is no fee-simple : and 't was said that the reason is , because that two are named in the deed ; and therefore 't is incertain to which of them heredibus shall bee referred . but if there were but one in the deed , then it shall be referred to the one only . but in a devise 't was said by some , that the words afore are a fee-simple . contrary in a gift and feoffment ; for the one shall bee taken by intendment , the other not , 31 h : 8. b : estates 4. a man gives land to a husband and wife for terme of their lives , & diutius eorum vivent . the remainer to the heirs of their bodies , this is a taile executed , by reason of the immediate remainer , notwithstanding the words of the statute , quod voluntas donatoris in omnibus observetur , by all the justices , 35 h : 8. b : estates 78. by opinion in the kings bench , if a man deviseth his land to w : n : solvend ten pound to his executors , and dies , the devisee hath a fee-simple , by reason of the payment , without words , heredibus , or in perpetuum , and this shall be intended the intent of the devisor : the same law if a man sell his land to w : n : for twenty pound , this shall be intended a sale in fee-simple , without words , heirs , for conscience &c. & est equum & bonum , which is a ground in every law , 4 ed : 6. b. estates 78. estoppell . if a man hath liberties , rent , common , or the like , by prescription , and after takes a grant thereof of the king by patent , or of another by deede , this determines his prescription by conclusion ( b : prescription . 102. estoppell 210. ) for writing shall determine contracts and matter in fait , 33 h : 8. b : prescrip . 102. 't was agreed that a stranger to a fine or recovery , shall not pleade it for estoppell ; contra , if hee claim the same land under the fine or record , by those which were parties , or claims the same estate , or part of it , and that this estate continues , for then he is privy in the per : 36 h : 8. b : estoppell 216. the end . if two joyn-tenants are which hold of the king in chiefe , and the one releases to the other in fee , and after both respit homage in the exchequor ; by this , he which released hath gained the moity by conclusion , as it shall be where two joyne in suite of livery out of the hands of the king , where the one hath nothing , by the opinion of some : and the same of partition by two , where the one hath nothing , 37 h : 8. b : estoppell 218 , note that a man which leases by deede poll for yeeres , or by parol , may avoid this lease to say , that hee had nothing in the land , tempore dimissionis : contrary , upon a lease by indenture , for this is an estoppell 38 h : 8. b. estoppell 8. if a man indicted of extortion , or trespasse , puts himself upon the grace of the king , and makes a fine , and after the party sues him for it , by bill or writ , and he pleades not guilty , hee shall have the plea , and the making the fine to the king shall not estop him ; for there the entry is , quod petit se admitti per finem , and doth not confesse it precisely , and therefore no estoppell : yet b seemes to make the fine by protestation that hee is not guilty , and then 't is all cleere , time : h : 8. estoppell 82. a man pleads a pardon of the king , in the exchequer , for alienation , without license , where the land is not holden of the king in capite : this is an estoppell , to him to say after that , he doth not hold in capite , 7 ed : 6. b : estoppell 222. by hales and montague , if a man leases to n : his own land , by deed intended ; the indenture is no estoppell , but during the lease ; and not after , casus b : estoppell 221. estranger . a : is bound to b : in a 100. l. and b : makes a defesance to w : s : that if w : s : payes 40. l. that the obligation shall be void . this is worth nothing per opinionem ; because that a : that should plead it , is a stranger to the deed : but where two are bound to me , and i make a defesance to one ; this shall serve the other to plead , if he can shew it : as in trespas against two , a release to one shall serve the other , if he can shew it , 34 h : 8. b : estranger al fait 21. estray . if a man takes beasts as an estray , and keeps them three quarters of a yeer , and after they stray from him , and another happens on them ; the first lord which kept them for three quarters , cannot take them again , because that he had no property in them till hee had kept them a yeer and a day , and proclamation passed in the two next market towns , and two market dayes , the one in the one town , and the other in the other ; for the possession of the second seizor is good against him who hath no property , 33 h : 8. b : estray 11. executions . note , by fitz : and the court , if a man recover in a writ of annuity , he shall have a fierifacias of the arrearages incurred within the yeer , and a scire fac : after , as soon as the annuity is arrear , and never a writ of annuity again ; for 't is executory , and the same law of an action , and judgement upon composition , which is executory de tempore in tempus , and the like . and in every scire fac : in which he recovers after the first judgement , he shall have execution of the arrearages within the yeer , by fiere fac : for every one is founded upon the judgement , 23 h : 8. b : executions 119. scirefac : 213. by the whole court in the common-bench , if two are bound in an obligation conjunctim & divisim , the obligee impleads the one , and hath execution of his body ; and after impleads the other , and condemns him , hee may have execution against him also ; for the taking of the body is a good execution , but 't is no satisfaction ; and therefore hee may take the other also . but if the one satisfie the plaintiff , hee shall not have execution after ; and therefore this order , that the plaintiff upon an obligation shall have but one execution , is intended such execution which is a satisfaction , and where both are impleaded by one originall , by severall precipes , &c. 29 h : 8. b : execution 132. scire fac : upon recovery of debt and damages ; the defendant said , that once the plaintiff sued a capias ad satisfaciend . by which the sheriff had took his body , judgement , &c. and there 't is said , that a capias ad satisfaciend . is not of record before the retorn of it ; therefore no plea : yet b : seems the plea good by the taking of the body , though no writ bee returned , 37 h : 8. b : executions 6. executors . 't was noted by fitz : and others , that in an action of debt against an executor , 34 h : 6. upon an obligation of his testators , who pleaded not his deed , and found against him , the judgement by the record was , that the plaintiff should recover of the dead , if hee hath any ; and for that , the book at large , fol. 24. is reported further in these words ; and if he have not , then de bonis proprijs , which words are not in the record ; 't was cōmanded by them to mend the book ; for 't is contrary to the record , and so mis-reported , 23 h : 8. b : executors 22. a man makes two executors , and dyes ; the one executor makes an executor , and the other survives , and dyes intestate ; the executor of the executor shall not meddle ; for the power of his testator was determined by his death , and by the survivor of the other ; so that now the ordinary shall commit the administration of the goods of the executor which survived , & de bonis non administratis of the first testator , 32 h : 8. b : executors 149. a man makes a : and b : his executors , and wills that b : shall not meddle during the life of a : and good ; for he doth not restrain his intire power ; for he may make one executor of his goods in c : and another executor of his goods in d : and so he may divide the time ut supra , 32 h : 8. b : executors 155. a man hath a lease for yeers as executor b : and after purchases the reversion of the land in fee , the lease is extinct . but yet the lease shall be against the executor assets by whorewood and hales justices . ( b : extinguishment 54. leases 63. surrender 52. ) and if it shall bee extinct , b : seems to be a devastavit ad ultim : 4 e : 6. b : extinguishment 57. the end . exposition . the severall exposition of infra terminum 10. annorum & infra terminum predict : see tit : conditions . extinguishment . if the abbot and covent give all their lands and possessions to another in fee , yet the corporation remains by fitz : justice , 20 h : 8. b : extinguishment 35. lord and tenant ; the tenant is attainted of treason by act of parliament , and to forfeit all his lands ; and after he is pardoned , and restored , by another parliament , habend . sibi & heredibus , as if no such attainder , nor former act had been . or if the heir of him who was attainted , be restored by parliament in such form ; now the seigniory which was extinguished , is revived , and he shall hold of the common person as before ; and yet once the tenure was extinct by the forfeiture of the land to the king , 31 h : 8. b : extinguishment 47. revivings 8. tenures 70. lord and tenant ; the tenant holds by third three acres of land , the tenant infeoffs the lord in fee , of one acre ; the seigniory is extinct for the third part , and remains for the other two parts ; but if the tenant had let to the lord one acre for yeers , there the seigniory is suspended in the whole , during the term ; for the seigniory may be extinct in part , but not suspended in part , but for the intire , 32 h : 8. b : extinguishment 48. where a condition shall not be apportioned , but extinct , see tit : conditions . a man hath a lease for yeers as executor b. and after purchases the reversion of the land in fee , the lease is extinct ; but yet the lease shall be against the executor assets , by whorwood and hales justices . ( b : extinguishment 54. leases 63. surrender 52. ) and if it shall be extinct , b : seems to be a devastavit ad ultimum , extinguishment 57 the end . but where he hath it as executor , & there is a mean lease in reversion for years , and hee purchases the reversion in fee ; the first lease remains by reason of the mean remainder ( b : leases 63. ) and by hales , if a man leases to another for ten years , and after leases the same land to another for twenty years ; the first less●e purchases the reversion in fee ; yet the first lease is not extinct , because that the second lease , which is for twenty years , is mean betwixt the first lease and the fee-simple , which is an impediment of the extinguishment , 4 e : 6. extinguishment 57. where an action by entry and feoffment shall be extinguished , see tit : restor : al primer action . faits , deeds . note , if an action be sued upon a deed , bearing date at cane in normandy , 5 dat : apud cane , &c. that the plaintiffe shall count that the deed was made at cane in com : kanc : and good ; for the place is not traversable ( b : faits 95. the end ) and also where it truth it was written in cane , 't is suable in england , where it beares date at large , and at no place certaine : but if it bee ( dat : apud cane in normandy , &c. ) quaere if the action lyes , &c. time : h : 8. note , that 't was agreed by the justices , that this clause which comes after these words , in cujus rei , &c. sigillum apposui , &c. is not any part of the deede , though 't were written before the sealing and delivery , 1 m : 1. b : faits 72. faits inroll : deeds inrolled . note , that a deed of husband and wife shall not be inrolled in the common bench , except for the husband only , and not for the wife ; by reason of coverture : nor she shall not be bound with her husband in a statute-marchant , nor the like : but if they make a deed inrolled of land in london , and acknowledge it before the recorder and an alderman , and the wife examined ; this shall binde as a fine at common-law , by their custome , and not only as a deede , and it suffiseth without livery of seisin , 29 h : 8. b : faits inroll : 14. & 15. a man infeoffs the king by deede , and makes livery ; this is worth nothing , for the king shall not take but by matter of record : but if he inroll the deed , then 't is good to the king without livery , for the king takes not by livery , 29 h : 8. b. faits inroll : 16. feoffments 69. note , by the justices , that where two joyn-tenants are , the one aliens all his lands and tenements in d : after the statute of inrollments , and before the inrollment the other joyn-tenant dies , so that his moitie survives to the vendor , and after the vendor , within the halfe yeere , inrolls the deede ; yet nothing passes but the moitie , for the inrollment hath relation to the making and delivery of the deede , so that it shall give nothing but that which was sold by it at the time of delivery of the deede : and by more justices , where a man sells his land by deede indented to one , and after hee sells it by another indenture to another , and the last deede is first inrolled , and after the first deed is inrolled , within the halfe yeere , there the first vendee shall have the land , for it hath relation to make it the deed of the vendor , and to passe the land ab deliberatione facti ; for the statute is , that a free-hold , nor use of it shall not passe , nor change from one to another by bargain and sale only , except it bee by deed indented and inrolled within the halfe yeere ; ergo , if it bee by deede indented and inrolled within the halfe yeere it shall passe as the use might passe at common law , by sale of the land which was presently upon the sale , 6 e : 6. b : faits inroll : 9. fauxifier , falsefying . where he in reversion shall falsifie a recovery had against tenant for term of life , where not , see tit. entre congeable . where the feoffees may falsifie a recovery suffered by cesty que use in tayl ; where not , see tit : entre congeable . 't was holden that an attaint shall goe with the land , as a writ of error shall , time : h : 8. b : fauxifier 50. the end . faux imprisonment , false imprisonment . 't is said , that a man , as constable , cannot arrest another for an affray , after that the affray is past , without warrant : contrary , before the affray , and in the time of the affray &c. and the same law of a justice of peace , 38 h : 8. b : faux imprisonment 6. the end . faux judgement , false judgement . note , by fitz : for cleer law , that in a writ of falfe judgement in nullo est erratum is no plea ; for they joyn issue upon some matter in fait certain alledged by the party , and shall bee tryed by the country ; for 't is no record , contra , in error , 23 h : 8. b : faux judgement 17. fealtie . note , in the chequer , that if land descend to me , which is holden of i : s : by homage , and i doe to him homage ; and after other land descends to me by another ancestor , holden of him by homage , i shall doe fealty , but not homage again ; for i became to him his man before . and if both the tenements are holden of the king by homage ; he shall not respit both the homages in the exchequer ; but one homage only , 24 h : 8. b : fealty 8. note , in the exchequer , that a dean and chapter , and other bodies politique , shall not doe homage ; for this shall be done in person : and a corporation cannot appear in person , but by attorney ; and homage cannot be done by attorney , but only in person , 33 h : 8. b : fealty 15. feoffments . a man makes a feoffment of a house cum pertinentiis , nothing passes by these words cum pertin : but the garden , the curtilage , and close adjoyning to the house , and upon which the house is built , and no other land , though other land hath been occupied with the house , 23 h : 8. b : feoffments 53. note , by fitz james ch : justice , englefield just : and divers others , where a disseizor makes a feoffment for maintenance , and takes the profits , the feoffment is void by the stat : of 1 r : 2. ca : 9. as to a stranger which shall have an action , for he shall have it against the pernour of the profits ; but 't is not betwixt the feoffor and the feoffee . and also a man who vouches by such feoffment , one of the feoffees , the demandant , shall counter-plead by the same stat : because the feoffment was void . and b : seems that such feoffment shall not be a remitter in prejudice of a third person , 24 h : 8. b : feoffments 19. if a man makes a feoffment to four , and the one of the four makes a letter of attorney to i : n : for to take livery for him and his companions , who doth it accordingly ; nothing passes , but to him who made the letter of attorney only , 27 h : 8. b : feoffments 67. 't was said for law , that if a man leases land for ten years , and the same lessee lets it over to another for four years ; the lessor makes a feoffment to a stranger by sufferance of the second lessee ; this is a good feoffment without attornment of the first lessee , 28 h : 8. b : feoffments 68. 't is said , that a feoffment of a moity , is good , 31 h : 8. b : feoffments to uses 19. if a man makes a feofmēt of a house , ac omnia terras , tenemeta et hereditamēta eidem messuag : pertinen : aut cum eodem occupat : locat : aut dimiss : existen : by this the land used with the house shall passe , 32 h : 8. b : feoffments 53. the end . a man makes a deed of feoffment to another , and delivers the deed to him in the land , or upon the land ; this is a good feoffment by all the justices in the common-bench , 35 h : 8. b : feoffments 74. if a man bee seized of one acre of land in fee , and another is seized to his use in fee of another acre , and hee makes a feoffment of both acres , and livery of the acre which he hath in possession , by this the acre in use passes not , though he made the livery in the one in the name of both , for this is not his acre , but the acre of the feoffees , and the stat : saies that his feofment shall be good , but 't is no feoffment except hee makes livery in the same land : otherwise if livery were made in the land , in use , by reason of the stat : 37 h : 8. b : feoffments 77. feoffments to uses , 55. if a feoffment be made within the vjew , when this is pleaded ; 't is said that expresse mention shall be made in the pleading , that the land was within the vjew , time h : 8. b : feoffments 57. the end . feoffment is good of the land by deede , by livery of the deed within the vjew , so that the feoffee enters accordingly : but if the feoffor dies before the feoffee enters , then the land is discended to the heir of the feoffor , and the feoffment shall not take effect , time h : 8. b : feoffments 72. a man makes a feoffment by deed to twenty , and delivers the deed and seisin to one in the name of all , this is good to all ; but if hee infeoffs twenty without deed , and delivers seisin to one in the name of all , this is no feofment to any but to him who takes the livery , time h : 8. b : feoffments 72. note , that by the stat : of 1 r : 2. where a disseizor makes a feoffment , for maintenance , and takes the profits ; the feoffment is void by the stat : to all intents , lecture whorwood 35 h : 8. b. feoffments 19. feoffments to uses . by shelly just : where the father infeoffs his son and heir apparent , to the intent to defraud the lord of his ward , this feoffment was to the use of the father , during his life , and hee takes the profits during his life , and so see that uses were in antient times , 24 h : 8. b : feoffments to uses 20. the end . a man makes a feoffment in fee , to four , to his use , and the feoffees make a gift in tayle without consideration , to a stranger , who had not conusance of the first use , habend : in tayle , to the use of cestuy que use , and his heirs ; the tenant in tayle shall not be seised to the first use , but to his own use , for the stat : of westm : 2 cap : 1. wills , quod voluntas donatoris in omnibus observetur ; that a man ought to refer his will to the lawe , and not the lawe to his will : also none can bee seised to the use of another , but hee which may execute an estate to cestuy que use , which shall bee perfect in law , which tenant in tayle cannot doe ; for if hee executes an estate , his issue shall have a formedon ; and the best opinion that an abbot , mayor and commonalty , nor other corporations shall not bee seised to a use , for their capacitie is only to take to their own use : and also if the abbot execute an estate , the successor shall have a writ of entry sine assensu capituli : and those that are in the ●ost , as by escheate , mortmain , per●uisite of villeine , recovery , dower by the courtesie , and the like , are seised to their own use and to another use : and also the stat : of 1 r : 3. is , that all gifts , feoffments & grants of cestuy que use shall be good against all , &c. saving to all persons their rights and interests in tayl , as if this stat : had not been made ; and therefore tenant in tayl shall not bee seized to a use . and 't was agreed by the court , that the words in the end of the stat : of 1 r : 3. saving such right and interest to the tenant in tayl , &c. is taken tenant in tayl in possession ; and not tenant in tayl in use : for cestuy que use in tayl hath no right nor interest . and also here there is a tenure betwixt the donors and the donees , which is a consideration that the tenant in tayl shall be seized to his own use : and the same law of tenant for term of yeers , and tenant for life , their fealty is due ; and where a rent is reserved , there , though a use be ▪ expressed to the use of the donor , or lessor ; yet this is a consideration that the donee ▪ or lessee shall have it to his own use : and the same law where a man sells his land for 20. l. by indenture , and executes an estate to his own use ; this is a void limitation of the use : for the law by the consideration of money , makes the land to bee in the vendee . et opinio fuit , that a use was at common-law before the stat : of quia emptores terrarum , but uses were not common before the same stat : for upon every feofment before this stat : there was a tenure betwixt the feoffors and the feoffee ; which was consideration , that the feoffee shall be seized to his own use ; but after this stat : the feoffee shall hold de capitali domino , and there is no consideration betwixt the feoffor and the feoffee without mony paid , or other especiall matter declared , for which the feoffee shall be seized to his own use : for where the stat : of marlebr : is , that a feofment by the father , tenant in chivalry , made to his son by covin , shall not toll the lords ward , &c. in these cases the feoffor after such feofment takes the profits of the land all his life . and the same law by shelley of a feofment made by a woman to a man to marry her , the woman takes ●he profits after the esponsalls : quaere ●nde ; for this is an expresse consideration in it self . and by norwich , if a man deliver money to i : s : to buy land for him , and he buyes it for himself , & to his own use , this is to the use of the buyer , and to the use of him who delivered the mony ; and there is no other remedy but an action of deceipt , 14 h : 8. b : feofments to uses 40. note , if a feofment be made to the use of w n , for term of his life , & after to the use of i : s : and his heirs , their cestuy que use in remainer or reversion , may sell the remain or reversion in the life of w n , but hee cannot make a feoffment till after his ●eath , 25 h : 8. b : froffments to uses 44. 't is holden that if the feoffees seised to the use of an estate taile , or other use , are impleaded , and suffer the common recovery against them upon bargaine , this shall bind the feoffees and their heirs , and cestuy que use and his heirs , where the buyer and recoveror hath not conusance of the first use : and by fitz : it shall binde , though they had notice of the use ; for the feoffees have the feesimple : et per plures , if cestuy que use in tail● be vouched in a recovery , and so the recovery passes , it shall bind the tait● in use s : cestuy que use and his heirs ▪ and otherwise not ; and this b seem to be by the stat : which excepts tenant in taile , which is intended tenant i● taile in possession , and not cestuy que use in taile , for cestuy que use in tai●● is not tenant in taile , 29 h : 8. b ▪ recovery in value , 20. feoffments to uses , 56. feoffees in use make a lease for yeers rendring rent , to another who hath notice of the first use , yet the lease shall be only to the use of the lessee himselfe : and the same law per plures though no rent be reserved : and if a man makes a feofment , and annexes a schedule to the deed conteyning the use , hee cannot change the use after ; and so if hee expresses the use in the deed of feofment , but otherwise where hee declares the use by words of his will s : i will that my feoffees shall bee seized to such a use , there he may change this use , because by will , &c. and that if a feofment be made to the use of the feoffor in tail , & after he execute an estate to him in ●ee , the use of the estate taile is determined , 30 h : 8. b : feofments to uses , 47. if a : covenants with b : that when a : shall be enfeoffed , by b : of three acres of land in d : that then ●he said a and his heirs , and all others seized of the land of the said in s : shall be thereof seised to the use of the said b : and his heirs , there if a : makes a feofment of his land in s : and after b : enfeofs a : of the said three acres in d : there the feoffees of a : shall bee seised to the use of b : notwithstanding they had not notice of the use ; for the land is and was ●ound with the use aforesaid , to whose hands soever it shall come ; and 't is not like where a feoffe in use sells the land to one who had not notice of the first use ; for in this first case the use had not being till the feofment be made of the three acres , and then the use doth commence , 30 h : 8 b : feoffments to uses 50. 't was doubted if a recovery had against cestuy que use in taile , shall binde the heir in taile ; but by hales just : by such recovery the entry of the feoffees seised to the use of the estate taile is taken away , but after the death of cestuy que use who suffered the recovery ; the feoffees may have a writ of right , or writ of entry ad terminum qui preteriit in the post , or the like : and by some there is no use in taile , but 't is a fee-simple conditiona● at common law , as 't was of the taile before the stat : of w : 2. and this stat : makes no mention but of gifts in taile , which is taile in possession ; and therefore quaere , if the taile in use cannot be taken by the equity of it , ye● 't was doubted if the issues and the feoffees shall be bound after the death of cestuy que use , who suffered the recovery , by reason of those words in the stat : of 1 r : 3. which will that the recovery shall bee good against the vendor and his heirs , clayming only as heir , and against all others clayming only to the use of the vendor and his heirs ; and this is intended , by some , of a fee simple ▪ and in the case aforesaid the issue in taile claymeth as heir in taile in use , ( b : feofments to uses 56 , the middle ) yet see the stat : of 32 h : 8. that 〈◊〉 fine with proclamation , levyed or to be levyed by tenant in taile in possession , reversion , remainer , or in use , after proclamation had , shall binde ●hose tenants of those tayles and their heirs for ever : and see that the same ●tat : is as well for the time past , ●s to come , 30 h : 8. b. feofments to uses , 57. if covenants and agreements are ●onteined in indentures and not uses ; ●nd 't is covenanted by the indentures ●hat a : shall recover against b : his land in d : to the use of the recoveror ●nd his heirs , and to the uses of the covenants and agreements in the indentures ; there if he recovers , the re●overy shall be to the use of the recoveror and his heirs ; and not to the uses of the covenants and agreements in the indentures , where no uses are in the indentures . but otherwise , if uses are conteined in the indentures , ●nd 't is covenanted , that a : shall recover to the use of a : and his heirs , and to the uses in the indenture ; there the recovery shall goe according , and shall be executed by the stat : 32 h : 8. b : feoffments to uses 58. 't was agreed by all the justices , upon great deliberation , in the case of mantel esq : of the county of north : who was attainted with the lord dacres of the south , for the death of a man ( which see tit : corone . ) that where he at his marriage 31 h : 8. after the stat : of uses made , 27 h : 8. covenanted , that for a 100. l. and in consideration of marriage , that hee and his heirs , and all persons seized of his lands and tenements in h : shall bee thereof seized to the use of his wife for term of her life , and after to the heirs of his body by her ingendred , that this shall change the use well enough , and very good : and by this the land was saved , and was not forforfeited , 34 h : 8. b : feoffments to uses 16. the end . a man purchases land , and causes an estate to bee made to him and his wife , and to three others in fee , this shall bee taken to the use of the husband only ; and not to the use of the wife without speciall matter to induce it . and so see a woman may be seized to the use of her husband , and by him such feofment was , 3 h : 7. and intended as aforesaid , 34 h : 8. b : feoffments to uses 51. a man makes a feofment in fee to his use for term of life ; & that after his decease i n shall take the profits ; this makes a use in i n , contrary if he saies , that after his death his feoffees shall take the profits and deliver them to i n , this doth not make a use in i n : for he hath them not but by the hands of the feoffees , 36 h : 8. b : feoffments to uses , 52. a man cannot sell land to i s , to the use of the vendor , nor let land to him rendring rent , habend : to the use of the lessor , for this is contrary to law and reason , for he hath recompence for it : and by hales , a man cannot change a use by a covenant which is executed before , as to covenant to bee seised to the use of w s , because that w s is his cosin ; or because that w s before gave to him twenty pound , except the twenty pound was given to have the same land. but otherwise of a consideration , present or future , for the same purpose , as for one hundred pounds paid for the the land tempore commentionis , or to bee paid at a future day , or for to marry his daughter , or the like , 36 h : 8. b : feoffments to uses , 54. note , a recovery was suffered by graseley of the county of stafford , by advice of fitz serjeant and others , and he was only cestuy que use in tail , and after he died without issue , and his brother recovered the land in the chancery , for at this time 't was taken that a recovery against cestuy que use in taile , should not serve but for term of his life , by which 't is not but a grant of his estate , time h : 8. b : feoffments to uses 48. the end . by fitz just : if the feoffees to the use of an estate taile , sell the land to him that hath notice of the first use , yet the buyer shall not be seised to the first use , but to his own use , by reason of the bargaine and sale , for the feoffees have the fee simple , and therefore their sale is good , time h : 8. b : feoffments to uses 57. the middle . note , per plures , if a man makes a feofment in fee before the stat : of uses , or after this stat : to the use of w : and his heirs , till a : pay fourty pound to the said w , and then to the use of the said a , and his heirs , and after comes the stat : of uses and executes the estate in w , and after a paies to w the 40. l. there a is seised in fee , if he enters ; yet by some a shall not be seized in fee by the said payment , except that the feoffees enter : b doubts thereof , and therefore it seems to him best to enter in the name of the feoffees , and in his name , and then the one way or the other the entry shall be good , and shall make a to bee seised in fee ; and also see by b , that a man at this day may make a feoffment to a use , and that the use shall change from one to another by act ex post facto , by circumstance , as well as it should before the said statute , 6 e : 6. b : feofments to uses 30. 't was holden per plures in the chancery ; if a recovery bee had , in which cestuy que use in taile is vouched , and the demandant recovers , then this shall bind the issue , time e : 6. b : feofments to uses 56. the end . if a covenant bee by indenture , that the sonne of a shall marry the daughter of c , for which c gives to a a hundred pound , and for this a covenants with c , that if the marriage takes not effect , that a and his heirs shall bee seised of a hundred and fiftie acres in d , to the use of c and his heirs , quo usque a his heirs or executors repaies the hundred pound , and after c hath issue within age and dies , and after the marriage takes not effect by which the state is executed in the heir of c , by the statute of uses made 27 h : 8. notwithstanding that c was dead before the refusall of the marriage , for now the use and possession vests in the heirs of c , for that the indentures and covenants shall have relation to the making of the indentures , for these indentures binde the land with the use , which indentures were in the life of c : but by b : quaere if the heir of c shall bee in ward to the lord , for hee is heir , and yet a purchasor , as it seemes , 3 m : 1. b : feofments to uses . 59. gift of land for yeeres , or of a lease for yeeres to a use , is good ; notwithstanding the statute ; for the statute is intended to avoide gifts of chattells to uses for to defraude creditors only , and so is the preamble and intent of this statute , 3 m : 1. b : feofments to uses , 60. fines levies , fines levied . note , that 't was covenanted that a shall make to b his wife , daughter of i k , a joynture by fine , and the writ was brought by i k against a and b his wife , and they offered to acknowledg to i , to the intent that i should render to them , for life of b , and because b , the wife , was within age , therefore shee was drawne out and rejected : and then because that none can take the first estate by the fine , but those who shall be named in the writ of covenant ( but every stranger may take a remainder ) therefore the writ was made betweene i and a , only by which a acknowledged the tenements to bee the right of i , ut illa que , &c. and i granted and rendred it to the said a for terme of his life , without impeachment of waste , the remainder to the said b , his wife , for terme of her life , the remainder to the said a and his heirs , 30 h : 8. b : fines , levies , 108. fine with proclamation to bind tenant in tail and his issue , the time for to make proclamation , &c. see tit : assurances . if cestuy que use for term of life levies a fine with proclamation ; there none need to enter nor make claim within the five years , because that 't is but a grant of his estate , which is lawfull , and no forfeiture ; for hee hath nothing in the land ; nor hee cannot make a forfeiture of the use . the same law of a fine levyed by tenant for life in possession : yet b doubts thereof and thinks otherwise if hee levy it in fee ( b : feoffments to uses 48. fines levies 107. ) et per plures , if it be levyed by cestuy que use in tail , it shall bind him and his heirs ; but not cestuy que use in the reversion nor the feoffees after the death of the conusor , for the statute of 1 r : 3. is , that it shall bind him and his heirs and feoffees clayming onely to the same , which is not so here , quaere inde ; for b seems by the same statute , that tayl in possession is remedied by this statute ; but not tayl in use : for this seems to him to remain at common-law , as a fee-simple in use conditionall ; for 't is not a gift of the land ; yet quaere , for by him , by the equity of the statute of w : 2. of tayles , devises in tayl are taken ; yet this is in nature of a gift ; yet not at this day by the statute of 32 h : 8. fine with proclamation by cestuy que use in tayl , shall bind the tayl after proclamation , 30 h : 8. b : fines levyed 107. the end . note , that a deed inrolled in london , binds as a fine at common-law ( but not as a fine with proclamation ; ) and there need not livery of seisin upon such deed : and this is a discontinuance without livery , because that by the custome there ( which is reserved by divers parliaments ) it shall bind as a fine , 31 h : 8. b : fines levies 110. 't was granted for law , where two are of the same name ( as if there bee two r b ) and the one levies a fine of the others land ; there the other shall avoid it by plea , s : to say that there are two of the name ; and that the other r blevied the fine , and not this r b , 33 h : 8. b : fines levies 115. the end . note that if the writ of dedimus potestatem , to levie a fine doth not beare teste after the writ of covenant , 't is error ; for the dedimus potestatem saies , cum breve nostrum de conventione pendet betwixt a b and c d , &c. 35 h : 8. b : pines , levies , 116. note , that 't was devised to have a lease for yeeres to binde tenant in taile , that the tenant in taile and the lessee should acknowledge the tenements to bee the right of one a , a stranger , and that a should grant and render by the same fine to the lessee for sixtie yeeres , the remainder to the lessor and his heirs , and 't was with proclamation , which shall binde the taile after proclamation made ( and so see that the devise after will not serve for taile , but for fee simple , for hee which takes by fine , shall not bee concluded if hee bee an infant , or feme covert , or the issue in tail of the conusor : ) and in this case no rent can bee reserved ; for a was a stranger to the land , by which the lessee granted ten pound of rent , and extra terra : illa : with a clause of distresse during the yeeres or terme aforesaid to the lessor , 36 h : 8. b. fines , levies , 118. lease may be made by fine for term of yeeres rendring rent , and first the lessee to acknowledg the tenements to be the right of the lessor come ceo , &c. and then the other grant and render to him for terme of sixtie yeeres , rendring therefore yeerely ten pound per annum , &c. and with clause of distresse , time , h : 8. b : fines , levies , 106. note , by fitz just : that a fine levyed by a and b his wife , where the name of the wife is m , shall binde her by estoppell , and the tenant may plead that shee by the name of b : levyed the fine , and so 't was in ure by him , and 't was pleaded according , time h : 8. b : fines , levies , 117. note , by bromeley chiefe justice , and others , that a writ of error was brought in the kings bench , because a fine was acknowledged by dedimus potestatem , before one who was not a judge , abbot , knight nor sargeant : and for this cause 't is refused to admit any which is taken by such ; for the statute de finibus & attorn : gives power to none except to justices , abbot and knight ; quaere , by b : if a sarjeant at law , bee not taken as a justice by the equitie of the statute , time h : 8. b : fines , levies , 120. 't was granted that a fine may be levyed in a hamlet ; for if a scire fac : lyes upon a fine in a hamlet ( as it appears 8 e : 4. that it doth ) therefore a fine is well levyed there , 6 e : 6. b : fines levies 93. note , that 't was agreed by the justices , that a fine may be well levyed in a hamlet , and this , notwithstanding all the houses are decayed but one . the same of a writ of dower : and the same law of that which hath been a ville and no wis decaid ; yet the name of the ville remains , as old salisbury , which hath at this day burgesses of parliament , and the like , 7 e : 6. b : fines levies 91. forcible entry . hee which hath been seized peaceably by three yeeres , may retaine with force : but if a disseizor hath continued possession three yeers peaceably , and after the disseisee re-enters ( as he may lawfully ) and after the disseisor re-enters , hee cannot deteine with force , because that the first disseisin is determined by the entry of the disseisee , and the disseisee by this remitted , and this entry is a new disseisin : but if a man hath beene seised by good and just title by three yeeres , and after is disseised by wrong , and after hee re-enters , hee may retaine with force ; for he is remitted ▪ and in by his first title , by which hee first continued peaceably by three yeeres , per quosdam : for it seemes to them , by the proviso in the end of the statute , that this is good lawe in the last case , and stands well with the statute ; yet by some this is not law , therefore quaere 23 h : 8. b : forcible entry , 22. forfeiture of marriage . 't was said , if a man brings a writ of intrusion maritagio non satisfac : for the single value , and makes mention in the writ of tender of marriage to the heir , and that hee refused , &c. that the tender is not traversable , time h : 8. b : forfeiture of marriage 7. intrusion 23. in finibus . forfeiture de terre , &c. forfeiture of land , &c. what shall be a forfeiture of the estate of tenant for life , what not , see tit : entry congeable . richard fermor of l : was attainted in premunire , and his lands forfeited in fee in perpetuum , and not only for term of life : and so see 't is not only a forfeiture for life , as in an attaint ; for the one is by statute , the other by the common-law , 34 h : 8 , b : praemunire 19. the end , forfeiture 101. note , if a man bee attainted of treason by parliament ; by this his lands and goods are forfeited , without words of forfeiture of lands or goods in the act , 35 h : 8. b : forfeiture 99. foundership cannot escheate , nor be forfeited by attaindor of felony or treason , see tit : escheate . note , by hales justice cleerly , that ● cleark convict , shall lose his goods , ● e : 6. b : forfeiture 113. formedon . 't is said that if the issue in taile bee ●arred by judgement , by reason of warranty and assets discended , and af●er hee aliens the assets , and hath issue ●nd dies , the issue of the issue shall not ●ave a formedon of the first land tay●ed ; but if such thing happens before ●ee bee barred by judgement , the issue of the issue shall have a formedon , time h : 8. b. formedon 18. note , if the feoffees are infeoffed ●o the use of the feoffor , for terme of ●ife , and after to the use of a in taile , before the statute of 27 h : 8. of uses , and after the estates , in uses are ve●ted in possession by the same statute , and after the tenant for life dies , and ●he tenant in tayle enters , and discon●inues and dies , and the issue brings a formedon , upon this matter hee shall ●uppose the feoffor to be donor , and ●ot the feoffees , and the writ shall ●ee generall quod dedit , &c. but the declaration shall bee speciall and declare the whole matter , that the feoffor was seised in fee , and enfeoffed th● feoffees to uses ut supra , and shew the execution of the estates by th● statute of uses made 27 h : 8. briefly and not at large , and the seisin &c. and the death of tenant for life and tenant in taile & quod post mortem , &c. discend : jus , &c. 2 e : 6. b : formedon , 49. formedon upon a gift in fee to th● use of the feoffor and the heirs of hi● body , which is executed by the statute of uses 27 h : 8. and after th● feoffor aliens and dies , his issue shal● have a formedon that the feoffees 〈◊〉 derunt tenement : predict : to the father of the demandant , & discend● jus , &c. for it cannot bee suppose● that the feoffor gave to cestuy que us● which was himselfe ; for a man cannot give to himselfe : and hee sha● make a speciall declaration upon th● feoffment to the use of the taile : but where a makes a feoffment in fee , to three , to the use of a stranger and the heirs of his body , which is exempte● by the statute aforesaid , and after who was cestuy que use aliens in fee● and dyes ; there his issue shall have a formedon , and shall say that the feoffor gave to his father , and not the feoffees gave , and shall make a speciall declaration , 7 e : 6. b. formedon 46. generall briefe 14. note by bromeley chief justice , that the demandant ( in the case 2 e : 6. before ) may declare generallly if he will ; and if the tenant pleads ne dona pas , the demandant may reply and shew the speciall matter , as appears there , and conclude , & so he gave , &c. and good , 1 m : 1. b : formedon 49. the end . forme . note , that wood was put before pasture in a plaint of assize , and exception thereof taken , and yet good , though it be contrary to the register , time : e : 6. b : faux latin & forme 66. franke-marriage . note , that 't was said for law , that land cannot bee given in frank-marriage with a man who is cosin to the donor ; but it ought to be with a woman who is cosin to the donor . time : h : 8. b. frank-marrige 10. note , 't is said for law , that a gift in frank-marriage , the remainder to i n in fee , is not frank-marriage ; for warranty and acquittall is incident to frank-marriage , by reason of the reversion in the donor , which cannot be where the donor puts the remainder and fee to a stranger upon the same gift , time. h : 8. b : frank-marriage 11. garde , warde . if the kings tenant , alien in fee , without licence , and dyes , his heire within age , the king shall not have the ward , because that nothing is discended to him ; and that the alienation is good , save the trespass to the king , which is but a fine by seisure : 26 h. 8. b : alienations 29. garde 85. if the king hath an heir in ward , which is a woman , and marries her before the age of fourteen years ; there she shall be out of ward at fourteen years , and then may sue livery , for the two years to make sixteen years are not given , but to tender to her marriage , therefore when shee is married sooner , shee shall be out of custody at fourteen years , 28. h. 8. b. garde 86. livery 54. a man makes a feoffment before the statute of execution of uses , to the use of himself for term of his life , the remainder to w. in taile , the remainder to the right heires of the feoffor , the feoffor dyes , and w. dyes without issue , the right heir of the feoffor within age , he shall be in ward for the fee discended ; for the use of the fee-simple , was never out of the feoffor . and the same law where a man gives in taile , the remainder to the right heires of the donor , the fee is not out of him . otherwise , where a man makes a feoffment in fee upon condition to re-infeoffe him , and the feoffee gives to the feoffor for life , the remainder over in taile , the remainder to the right heirs of the feoffor , for there the fee , and the use of it was out of the feoffor ; & therefore he hath there a remainder and not a reversion , 32. h. 8. b. garde 93. where a man holds certain land of the king in soccage in capite , the king shall not have livery of more then the soccage land . the same where he holds of the king in knights service , and not in capite , the king shall not have more in ward , but onely that which is holden of him immediately , 32. h. 8. b. garde 97. note by all the justices of england , that a lord in knights service , by nonage of the heir , shall not ouste the grantee of wreck , or de proxima presentatione ; nor the termors which are in by the father of the heirs b , grants . 85. garde 66. lease 31. in finibus : so of a lease for term of life . 35. h. 8. b. garde 61 : the end : a man dyes seised of lands holden in knights service , his brother and heir within age , the lords seises the ward , the wife of the tenant privily with childe with a son , and after the wife is delivered , the brother is out of ward . but if the infant dye , the brother yet within age , there the brother shall be in ward again . and the same law where a daughter is heire , and after a son is born , the daughter is out of ward : and if the son dies without issue , the daughter within age , she shall be in ward again ; so see that one and the same person may be twice in ward by two several ancestors . but where the lord seises the son for ward for land to him descended from his father , and grants the marriage of him to another , and after other land holden in knights service , holden of the same lord descends to the same son from his mother , there b. seems that the lord shall not have the ward again , because he had him , and granted his marriage before , and the body is an intire thing ▪ 35. h. 8. b. garde 119. 't is granted by all the justices that the king shal not ouste the termor of his tenant , because he hath the heir of his tenant in ward by office found for him ; nor execution upon a statute merchant made against his tenant ; nor a rent charge granted by his tenant , nor a grant de prox . presentatione of an advouson . time h. 8. b. garde 44. if the son and heire of the kings tenant , or of another lord be made a knight in the life of his father , and after the father dies , the heir shall be in ward ; for otherwise the ancestor may procure his son within age to be made a knight by collusion , to the intent to defraud the lord of ward , which shal not be suffered . and so it fell out of the lord anth. brown of surrey , who was made knight in the time of his father , who died , the son within age , and t was holden he should be in ward , notwithstanding he was a knight ; wherefore he agreed with the king for his marriage : otherwise b. seemes where hee is in ward , and is made knight in ward , this shall put him out of ward , and by him the stat. which is , postquam haeres fuerit in custodiam cum ad aetatem pervenerit s. 21 , annorum , habeat hereditat . suam sine relevio , & sine fine : ita tamen quod si ipse , dum infra aetatem fuerit , fiat miles , nihilominus terra sua remaneat in custodia dominorum usque ad terminum supradict . is intended where he is made knight within age being in ward after the death of the ancestor , and not where he is made knight in the life of the ancestor . 2. e. 6. b. garde 42. & 72. 't was agreed for law in the common bench , that if the lord hath not been seized of homage within time of memory ; but hath been seised of rent , it suffices to have a writ of ward , and to count that he died in his homage ; for there is seisin of something , though it bee not of the intire services : and for this cause , and also for that the seizin is not traversable , but the tenure ; therefore the action lies without seisin of the homage , 6. e. 6. b. garde 122. the end . t was holden by the justices of both benches , that where a man holds by rent and knights service , and the lord and his ancestors have been alwaies seised of the rent , but not of the homage , escuage , nor of ward : yet if a ward fall , he shall have the ward of the heir , for the seisin of the rent suffices to be seised of the tenure , as to this purpose . yet otherwise b. seems to make avowry , 7. e. 6. b. avowry 96. the end . garde 69. where a use vests in the heir , as heir of his father , where the father was dead before ? whether the heir shall be in ward , or not : quaere , see tit. feoffments to uses . 3. m. 1. note that t was declared by the doctors of the civil law , that where an heir or other is married infra annos nubiles , and after disassents at the age of discretion , or after , before assent to the marriage , that this suffices : and the party may marry to another without divorce , or witnessing of it before the ordinary : but the ordinary may punish it per arbitrium judicis ; but the second espousals is good , as wel by the law of the kingdom , as by the law of the church , 5. m. 1. b. garde 124. ward and marriage is by the common law : and the father shall have the ward of his son or daughter , and heir apparent , before the king or other lord ; and soccage tenure by 20 years , and knight service after , b. garde 120. the end . if an estate be made to many and the heirs of one of them , and he which hath the fee dies , his heir within age , he shall be in ward by the statute of wills , notwithstanding the others survive which are tenants by the common law , casus b. garde . 100. garranties , warranties . if the husband & wife alien land of which she is dowable , there to have collateral warranty , t is good to have the warranty of the wife against her and her heirs ; and then if she hath issue by the husband , and she and the husband die , the warranty shall be collateral to the issues , because that the land came by the father , and not by the mother , 31. h. 8. b. garranties 79. note if the husband discontinues the right of his wife , and an ancestor collaterall of the wife releases with warranty and dies , to whom the wife is heir , and after the husband dies , the wife shall be barred in a cui in vita by this warranty , notwithstanding the coverture ; because that she is put to her action by the discontinuance ; for coverture cannot avoid warranty , but where the entry of the wife is lawful , which is not upon discontinuance . 33. h. 8. b. garranties 84. if a man saies in his warranty , et ego tenement a predict . cum pertinent . prefato a. b. the donee warrantizabo , aud doth not say , eg● & heredes mei , he himselfe shall warrant it , but his heir is not bound to warrant it ; because that ( heirs ) are not expressed in the warranty , 35. h. 8. b. garrenties 50. sir robert brudnel , late chief justice of the common bench , devised a warranty now in use , viz. that the warrantor for him and his heirs warrantizabit contra ipsum & heredes suos , and by this the feoffee shall rebut , but not vouch , casus b. garranties 30. the end . where upon a formedon upon use , there shall be a general writ , and special declaration ? see tit. formedon . general issue . in an assise or trespass , if a ●an entitles a stranger , and justifies by his commandment , his ought to be pleaded ; and not given in evidence upon nul tort . or not guilty pleaded . so of common rent service , rent charge , licence , and the like , these ought to be pleaded and not given in evidence upon a general issue . contrary of a lease of land for years upon not guilty pleaded , the defendant may give it in evidence ( b. general issue , 81. ) otherwise of a lease at will ; for this is as a licence , which may be countermanded , or determined at pleasure . and if a villen plead free , and of free estate he may give manumission in evidence ; for this is manumission indeed . but where he is manumitted by act in law , as a suit taken against him by his lord ; or an obligation made to him by his lord , or a lease for years , and the like , which are manumissions in law , of which the jury cannot discuss , and therefore these shall be pleaded , 25 h. 8. b. general issue ●2 . debt upon an escape in the exchequer against the sheriffs of london , for leting a man arrested by them by capias ad satisfaciendam , and ●n execution to escape : the defendants cannot say that he did not escape , and give in evidence that he was not arrested for the arrest is confessed , if he saies that he did not escape , 34. h. 8. b. general issue 89. grants . nota per plures just. & alios legis peritos , that where a man grants an office of bayliff , steward , receiver , parker , and the like ; and a fee certain for his labour onely , there the grantor may expulse such officers . but they shall have their fee , for t is but an office of charge . but where the steward , & parker have profits of courts , winde-falls , dear●kinnes , and the like casu●ll profits , t is said that they cannot be expulsed , and that of such offices they may have an assise . and t is said that t was so taken in the time of james hobert attorney of king henry the 7. and the officers may relinquish their offices when they will , but then their fee ceases . and whorewood attorney of king henry the 8. granted the cases aforesaid , 31. h. 8. b. grants , 134. t was said for law , that i may ouste my bayliff , receiver , and the like , giving to them their fee ; fo● it rests in charge , and no profit . b. doubts of the steward , for an assise lies of such ousters , 34. h. 8. b. grants 93. the end . what shall pass by a grant of omnia ●ona sua . see tit. done. a man possessed of a lease for term of fourty yeers , grants so many of them to ● . n. which shall be arrear tempore mor●is suae , and held void by hales just ▪ and others , for the incertainty , because it doth not appear how many shall be behinde at the time of his death : for the granter may live all the 40 yeers , and then nothing shall be arrear at his death , quare . ( b. grants 154. leases 66. ) ●ut such devise by testament is good , ( b. grants 154. ) and 't is not like where a man leases land for term of life , and four yeers over : this is certain , that his executors shall have four yeers after his death . ( b. leases 66. ) and also , if a man leases his land to have from his death for four yeers , 't is good : for this is certain ; and he hath authority to charge his own land. 7 e. 6. b. grants 155. a man grants omnia terras & tenementa sua in d. a lease for yeers shall not pass . contrary , if he grants omnes firmas suas , there by this a lease shall pass : for of this an ejectione firme lies , and by this he shall recover the term ; and therefore 't is a good word of grant. 7 e. 6. b. grants 155. hariots . t is said that for hariot-custom a man shall always seise ; and if it be esloigned , he may have detinue ▪ and for hariot-service esloigned , he may distrain● but not for hariot-custom . time. h. 8 ▪ b. hariots . 6. the end . heresie . note , that 't was agreed by all the justices , and by bake , learned in the law and chancellor of the exchequer ; and by h●re , learned in the law , and maste● of the rolls , that by the statute of hereticks and lollards , that if a heretick be convicted in presence of the sheriff , th● ordinary may commit him to the sam● sheriff ; and he ought to burn him , without having a writ de haeretico comburendo . but if the sheriff be absent , o● if the heretick shall be burnt in another county in which he is not convicted , ther● in these cases the writ de haeret . comburend . shall be awarded to that sheriff 〈◊〉 officer who shall make execution . and ●e said statute in the end wills , that the ●heriff shall be present at the convicti●● , if the bishop requires him . and ●erefore the use is that the ordinary shall ●ll the sheriff to be present at the con●tion . and so in the writ de haeret . ●mburend . in the nat. brin . that the ●●chbishop and his province in their con●●ation might and used to convict here●●ks by the common law , and to put 〈◊〉 to lay hands : and then the sheriffs writ de haeret ▪ comburend ▪ burnt them . ●t because that this was troublesome , to 〈◊〉 the convocation of all the province , was ordained by the statute aforesaid , ●hat every bishop in his diocess may ●●nvict a heretick , and after abjura●●n upon relapse , put him to lay hands be burnt . and b. seems that if the ●●retick will not abjure at the first con●●tion , that he may be burnt at the first ●●●nviction without abjuration . other●●e , if he will abjure : for then he shall 〈◊〉 be burnt the first time , but upon re●●se he shall be burnt . 2. m. 1. b. ●eresie . homage . see tit. fealty . ideot . brent of the county of s●●merset , who was presen●●ed for an ideot , cou●● write letters and acqui●tances , and the like ; an● therefore was adjudge● an unthrift , but no ideot . time. e. ideot 4. the end . imprisonment . 't was determined in parliament , th● imprisonment almost in all cases is but retain the offender till he hath made fine ; and therefore if he offers his fi●● he ought to be delivered presently ; 〈◊〉 the king cannot retain him in prison af●●● the fine tendered . 2 m. 1. b. imp●●sonment 100 the end . incident . court-baron is incident to a man●● and court of pipowders to a fayr ; a● 't was sed arguendo , that therefore lord of the mannor or fayr cannot gr●● over the court-baron , nor the court pipowders : or if they grant the m●● ●●or with the fayr , they cannot reserve ●●ch courts , for they are incident , &c. 9 h. 8. b. incidents 34. 't was said , that if a seigniory rests in ●omage , fealty , and rent , and a man ●●covers the rent ; by this is the homage ●●covered : for a precipe lies not of it . ●ime . h. 8. b. incidents 24. the ●●id . indictments . an indictment of death ought to com●rehend the day of the stroke , and day of 〈◊〉 death ; and the same law of poy●ning ; so that it may be known if he ●●ed of the same stroke or not . 24 h. 8. ● . indictments 41. by fitz just. a justice of record may 〈◊〉 indicted of taking of money , and other ●●ch falsity , but not of that which goes in ●●lsifying or defeating of the record , as 〈◊〉 say that he altered the record from ●respass into felony , and the like , which ●●lsifies the record . casus b. indict●ent 50. the end . intrusion . tenant in tayl of lands holden of 〈◊〉 king , aliens without license , which found by office , the king shall have 〈◊〉 issues of the land à tempore inquisiti●●nis capt . and not before . ( b. alienat●ons , 26. in medio . ) but where the t●●nant dies , and his● heir enters , upon off●●● found for the king of the dying seised the ancestor ; there the heir shall answ●● the profits taken by him before . 26 h. b. intrusion , 18. the end . note , where 't is found by office th● i. n. tenant of the king was seized , a● died seized , and that w. his heir intrude● and after by act of parliament the ki●● pardons all intrusions ; in this case the e●try and the offence is pardoned , but not 〈◊〉 issues and profits : for the escheat or sh●● be charged of this by way of accou●● whether he hath received them or not : 〈◊〉 when the office is of record , he ought receive them , except where 't is found the office that such a man took the pro●● thereof . but where the king pardo● where no office is found , the heir is ●●●charged as well of the issues and prof●● and also of livery as of intrusion , by r●●son of the pardon : for by this is p●●doned . and there though the office comes after which findes the intrusion of the heir , yet all is gone by the pardon ; and this shall serve , because all was pardoned before , to which the king was intitled of record , 33 h. 8. b. charters de pardon , 71. intrusion 21. issues returns 22. office shall have relation to the death of the ancestor , as to land descended to the heir of the kings tenant and as to intrusion . ( b. relation 18. the end . ) otherwise , as to alienation made by the kings tenant without license : this shall not relate before the finding of it . ( b. relation 18. intrusion 19. ) and such entry by purchase is not called intrusion , but a trespass ; and so are the words of the pardon thereof , quod pardonamus transgression ' praedict . &c. 33. h. 8. b. intrusion 19. joyntenants . if a lease be made to three of land at common law , for term of life , or for yeers habendum successivè , yet this is a ●oynt estate , and they shall hold in joynture , and successivè is void : but where the custom of copie-holds is , that this word successive shall hold place , this is good there by the custom . 30 h. 8. b. joyntenants 53. leases 54. if a man inf●offs two , upon condition that they shall infeoff w. n. before michael ' and the one dies , the other sole makes the feoffment ; this is good . the same law if two lease land rendring rent , and that if it bearrear by two months , and lawfully demanded by the said lessors , that they may re-enter , the one dies , and the other that survives demands it , and 't is not paid , he may re-enter . and the same law if the lease were made to two , with words that if it be arrear , and demanded of them two , &c. and the one dies , and the lessor demanded it of the other that survived , and he doth not pay , this is a good demand , and the lessor may re-enter . 33 h. 8. b. joyntenants 62. journeys accounts . grantee of a next presentation brings a q. impedit , and dies after the six months past , and his executors bring another q. impedit by journeys accounts , and by the justices it will not lie . see tit. q. impedit . judgement . a man recovers by default against an ●●fants , and the infant brings a writ of ●●rour , and reverses it for his non-age . ●therwise , if he had appeared , and lost 〈◊〉 plea , or by voucher , he shall not re●●rse it for non-age . b. 6 h. 8. saver de fault 50. if i have title by formedon , or cui vita , and enter , and the other recovers ●gainst me , i am remitted to my first acti●● : but if a man recovers against me by ●●lse title , by action tried , where i was by good title , i shall then have error , 〈◊〉 attaint , or a writ of right . 23 h. 8. ● . judgement 111. assise in com. b. the tenant pleads in ●●ar a recovery by assise by him against 〈◊〉 plaintiff of the same tenements in ●om . o. and this now plaintiff then ●●nant pleaded in bar by release of the ●ncestor of the plaintiff with warran●● , which was void by non-age : and ●his found for the plaintiff ▪ by which he ●ecovered , against this plaintiff judgement si , where he accepts the land to be in the country of o. now he shall be received to say , that it lies in the county 〈◊〉 b. and 't was said in the common bench● that though this land were then put 〈◊〉 vjew , the plaintiff shall not be bound 〈◊〉 the recovery : for it cannot be intended one and the same land. 25 h. 8. ● . judgement 62. assize of land in n. the defendan●● said that once before he brought an assiz● of the same land in h. against the sam● plaintiff , and these lands put in vjew ▪ and this now plaintiff then took the ●●nancie , and pleaded in bar , and said th● h. and n. are one and the same ville , an known by the one name and the other ▪ and that a. brought a formedon of th●● tenements , and pleaded certain , &c. an● recovered by action tried , and the esta●● of the plaintiff mean betwixt the title 〈◊〉 and his recovery , judgeme●● si of such an estate assize , &c. to wh●● the other said , that every of the said 〈◊〉 and n. were villes by themselves , and 〈◊〉 at issue : and 't was found that they we●● several villes , and the seisin and disseis●● by which 't was awarded that this tena●● then plaintiff should recover . and because that he hath recovered these sain● lands against the plaintiff himself in h. judgement si assise . and shelly just. held strongly , that this recovery of land in h. is no plea in an assise of land in n. and therefore the assise ought to be awarded : and so it seems to b. 25 h. 8. b. judgement 66. if a. infeoffs b. upon condition &c. to re-enter , there if a man impleads b. who vouches a. and so recovers ; or if a. re-enters upon b. without cause , and ●s impleaded and loses ; there in the one case , and the other , the condition is determined : for the land is recovered against him who made the condition . 26 h. 8. b. judgement 136. note , by bromley chief just. that a judgement , where there is no original , is void , ( as in an assise the plaintiff appears , and after makes a retraxit ; and after the justices of assize record an agreement betwixt them , in nature of a fine : this is void , and coram non judice , and shall not be executed , by reason that no original was pending , but was determined before by the retraxit . ) for without original they have not commission to hold plea ; and then they are not judges of this cause . 2 m. 1. b. judgement . 114. issues joyns , issues joyned . trespass upon the case , quod def . assumpsit deliberat . quer . 4 pannos laneos , and he pleads , quod assumpsit liberare 4 pannos lineos , without that qd . assumpsit modo & forma , and so at issue . and 't is found that he assumed to deliver 2 pannos laneos , sed non 4 ( so see that this issue , though that it comes in a traverse , doth not amount but to the general issue ) the pl. recovered dammages , for the 2 , and was barred and amercied for the rest . but otherwise 't is if the issue be ; if a. and b. infeoffed the tenant in a precipe quod reddat , necne , and 't is found that a. infeoffed him , but that a. and b. did not infeoff him , this is found against the tenant in toto , or against him who pleads such feoffment , which is so found , 32. h. 8. b. issues joyns . 80 , verdict 90. informed in the excheq . against a. b. for buying wools betwixt shearing time and the assumption , such a year of c. d. contra forma statuti , where 't is not cloth , nor he did not make thereof cloth nor yarn ; he sees that he did not buy of c. d. contra formam statut. propt . &c. and no issue ▪ for 't is not material nor traversable whether he bought of c. d. or of e. f. or of another , but whether he bought them contra formam statut. necne . and therefore the issue shall be that he did not buy modo & forma , &c. 33. h. 8. b. issues joyns . 81. negativa pregnans . 54. travers , per 367. in waste issue was taken if the defendant cut twenty oaks , there if the jury finde ten and not the rest , the plaintiff shall recover for the ten , and shall be amercied for the rest . 2 m. 1. b. issues joyns 80. the middle . issues returns ; issues returned . see tit. intrusion . jurisdiction . if the lord of a mannor claim the tythes of such lands in d. to finde a chaplain in d. and the parochians claim them also for the same purpose , 't is said for law , that the lay court shall have jurisdiction betwixt them , and not the spiritual court. 25 h. 8. b. jurisdiction 95. 't was said where a man pleads a plea in banco ultra mare , it shall be condemned at this day , because that it cannot be tried in england . 36 h. 8. b. jurisdiction 29. jurors . trial of a peer of the realm arraigned upon an indictment , and appeal diversity . see tit. trial , and tit. enquest . where jurors may take conusance and notice of a thing in another county . see tit. attaint . jury took a scroll of the plaintiff , which was not delivered to them in court , and passed for the plaintiff : and because that this matter appeared to the court by examination , therefore the plaintiff shall not have judgement . 3 m. 1. b. jurors 8. leet . note , for law , if a pain be put upon a man in a leet for to redress a nusance by a day sub poena 10 l. and after 't is presented that he did it not , and shall forfeit the pain ; this is a good presentment , and the pain shall not be otherwise affeered . and the lord shall have an action of debt clearly ; but he cannot distrain , and make avowry , except by prescription of usage to distrain and make avowry . 23 h. 8. b. leet 37. note , where the statute of magna charta cap. 25. saith , et visus de fran●hi-plegio tunc fiat ad illum terminum , st. michaelis , sine occasione ; this is ●●tended the leet of the tourne of the sheriff , and not other leets . 25 h. 8. b. leet 23 the end . leases . by fitz-james ch . just. englefield●ust ●ust , and many others , if tenant for life ●ases land for yeers , rendring rent , and ●●es , the lease is void , and then the rent is ●etermined . the same law of a parson . ●nd though the successor receives the rent , ●he lease is not good against him : for ●hen 't is void by the death of the lessor , 〈◊〉 cannot be perfected by no acceptance . b. leases 19. debt 122. ) otherwise 〈◊〉 seems of a lease for life made by a par●●● rendring rent and the successor accepts 〈◊〉 rent , this affirms the lease for life . 24 〈◊〉 . 8. b. leases 19. a man leases for ten yeers , and the ne● day leases the same land to another fo● twenty yeers : this is a good lease for th● last ten yeers of the second lease . 26 h. 8. b. leases 48. where a lease for 300 or 400 yee●● shall be mortm in . see tit. mortmain . a man leases a house cum pertin . ● land shall pass by these words cum per● contrary , if a man leases a house cu● omnibus terris eidem pertin . there 〈◊〉 lands to this used pass : and many gra●● are de omnibus terris in d. nuper m● nasterii de g. pertin . and especially● heavers that it hath pertained de tempor● &c. 31 h. 8. b. leases 55. if a parson of a church leases for 〈◊〉 and dies , the successor accepts fealty ; 〈◊〉 shall be bound by this during his 〈◊〉 contra upon a lease for yeers made 〈◊〉 him ; this shall not binde the successor 〈◊〉 acceptance of the rent : for 't was void 〈◊〉 the death of the lessor . 32 h. 8. 〈◊〉 dean 20. encumbent 18. leases 5● ▪ where a confirmation shall be by 〈◊〉 bishop , dean and chapt , of a lease 〈◊〉 by the parson . et contra . see tit. c●●●firmation . a man is a purchaser with his wife 〈◊〉 them and to the heirs of the husband ; 〈◊〉 after the husband leases for years and ●dies , the wife enters , this shall avoid the lease for her life ; but if she dies during the term , there the rest of the term is good to the lessee against the heir of the husband . and the same law of a rent-charge granted out of it : for the husband had thee fee-simple tempore , &c. and might well charge it . and note by all the justices , that the guardjan in knights service shall not ouste the termor of the ancestor of the heir . and the same law of the lord by escheat . 36 h. 8. b. leases 58. if a man leases for life to i. s. and the next day leases to w. d. for twenty yeers , the second lease is void , if it be not a grant of a reversion with attornment : for in law the free-hold is more worthy and perdurable then a lease for yeers . yet if the lessee for life dies within the term , the lease for yeers is good for the rest of the yeers to come . 37 h. 8. b. leases 48. the end . 't was agreed per plures , that where i. n. convenit & concessit to w. s. that he shall have 28 acres in d. for 20 yeers , that this was a good lease : for this word concessit is as strong as dimisit vel l●●avit . 37 h. 8. b. leases 60. king tenant in tayl makes a lease for yeers , or life , his issue may avoid it . see tit. discontinuance in possession . if a parson lets land for term of yeers rendring rent , and dies , the successor receives the rent , the lease is not good against him , for he hath not fee-simple . nor he cannot have a writ of right but juris utrum therefore the receipt of the rent by his successor , doth not affirm the lease ; for this was void by the death of the parson who leased . 38 h. 8. b. leases 18. the end . 't was holden by bromley just. and others , that if a man leases for 20 yeers , and the next day leases for 40 yeers , the second lease shall take effect for 40 yeers , s. after the twenty yeers past . time. h. 8. b. leases 35. the end . 't was agreed for law in the chancery by the justices , that if a lease for yeers be made by a bishop , that 't is not void , but voidable ; for he had a fee-simple . otherwise of such a lease by a parson ; this is void by his death : for he hath not the fee-simple , but 't is in abeyance . and the bishop may have a writ of right , or a writ of entry sine assensu capituli , where a parson shall have but a juris utrum . and therefore if the successor of a bishop , dean , prebend , and 〈◊〉 like , who have a fee and lease , and 〈◊〉 , accepts the rent , this affirms the lease 〈◊〉 be good . and otherwise of such ac●●ptance by the successor of a parson who ●ade such lease : for this lease is void ●resently . but if a chantry priest makes ● lease , his successor shall avoid it , not●ithstanding the predecessor had a fee , ●ecause that 't is donative , or presentative , ●nd then such lease is not perdurable , ex●ept it be confirmed by the patron in the 〈◊〉 case , and by the patron and ordina●y in the other case . 2 e. 6. b. leases ●3 . the end . a man leases for yeers , habendum post ●imissionem in factā to i. n. finitā , and 〈◊〉 truth i. n. hath no lease in it , there the lease commences immediately , by hales●ust ●ust . and many others . and by him if ● prebend makes a lease for 21 yeers by ●ndenture rendring the usual rent , this shall ●●inde the successor by the statute of lea●es : for where the statute saith , in jure ecclesiae , and the entry for a prebend est ●●isitus in jure prebende , yet it shal bind by the equity . 3 e. 6. b. leases 62. an executor hath a term and purchases the reversion in fee , whether the term be extinct , or no. see tit. extinguishment . tenant of the king in capite dies , and the heir before livery sued , makes a lease for yeers , 't is good , if no intrusion be found by office , and an office found after , which findes the dying seized , and no intrusion , hath not relation to th● death of the ancestor , but for the profits , and not to defeat the lease : for th● free-hold and inheritance remain in th● heir . but if intrusion be found , tunc nu●●lum accrescit ei liberum tenementum ▪ and then the lease , and dower of th● wife of the heir , are void . 5 e. 6. b. leases 57. a man possessed of a lease for 40 yeer● grants so many of them as shall be behin● at his death , 't is void . see tit. grants . note , by bromley and others justice 〈◊〉 if i let land to w. n. habendum 〈◊〉 100 l. be paid , and without livery ; th● 't is but a lease at will for the incertaint● but if he makes livery , the lessee sh● have it for life upon condition implied 〈◊〉 cease upon the 100 l. levied . 2 m. 1. ● leases 67. 't is said that bishops in the time 〈◊〉 e. 6. were not sacred , and therefore we 〈◊〉 not bishops , and therefore a lease 〈◊〉 yeers by such , and confirmed by the 〈◊〉 and chapter , shall not binde the success●●● for such never were bishops . contra of a bishop deprived who was bishop indeed at the time of the demise , and confirmation made , 2 m. 1. b. leases 68. what shall be said to be a lease in reversion , and what a grant of reversion ? see tit. attornment . 't was holden by all , if a man leases land to another till the lessee hath levy●d 20l , that 't is a good lease , notwithstanding the incertainty . 3 m. 1. b. leases 67. the end . 't was ruled in the serjants case , that if a man let land 4 ian. habend . for forty years , reddend , annuatim at mich. and easter 20. s. the tenant shall pay at easter and at mich. i. equales porciones , and the lessor shall not lose the rent at easter . 4. m. 1. b. leases 65. ley gager , law wager . detinue of a deed indented , where an obligation of a lease for term of years the defendant shall not wage his law , for this concerns land , and a chattel real . and so 't was late adjudged in the kings-bench 34. h. 8. b. ley gager 97. 't was said for law , that a man shall not wage his law in a quo minus . 35. h. 8. b. ley 102. quo minus 5. in finibus . licenses . 't was agreed , that if a bishop , de● and chapter give their land in fee with out license of the king , who is founder and is found so by office , the king shal● have the land. and another founde● may have a contra formam collationis and if he aliens sine assensu decani & capituli , then lies the writ de in● gressu sine assensu capituli . 36 h. 8 ▪ b. licenses 21. lieu , place . place is not material in actions transitory . see tit. attaint . where a recognizance is acknowledged in london before a justice of th● common bench , and certified in banco● and there ingrossed , a scire facias shal● be brought there directed to the sherif● of london , and not to the sheriff o● middlesex where the bench is , by all the prothonotaries of the common bench. 4 m. 1. b. lieu 85. limitations . note , that it seems cleer , that the new limitation , and also the ancient limitation extends to copie-hold , as well as to free-hold : for the statute is , that he shall not make prescription , title , nor claim , &c. and those who claim by copie , make prescription , title , and claim , &c. and also the plaints are in natura & forma brevis domini regis ad communem legem , &c. and those writs which now are brought at common law , are ruled by the new limitation , and therefore the plaints of copie-hold shall be of the same nature and form . 6 e. 6. b. limitations 2. livery . note , if the king hath a ward because of ward , and the first ward comes to full age , and sues livery , the other ward being within age , there the ward shall not sue livery , but ouster le maine ; for now the seigniory of his land is revived by the livery , so that he holds not of the king as afore , but of his immediate lord. but if the ward because of ward had been of full age before the first ward , he should sue livery● 25 h. 8. b. livery 47. where a woman out of ward by marriage shall sue livery at fourteen yeers . see tit. garde . he which holds land within the county palatine of lancaster of the king in knight service ▪ ut de ducato lancastr . shall sue livery . contra of him who holds land which lies out of the county palatine of the king in knight-service ▪ &c. 28 h. 8. b. livery 55. note , that general livery cannot be , but upon office found : but special livery may be without office , and without probation of age , but there he shall be bound to a rate and sum certain to be paid to the king. ( b. livery 56. ) and by b. ibidem 31. this cannot be claimed by the common law , as general livery may , but is at the will of the king. 28 h. 8. if the king purchases a mannor of which i. s. held in knight service , the tenant shall hold as he held before , and he shall not render livery nor primer seisin : for he holds not in capite , but holds , ut de manerio : and if his heir be in ward by reason of that , he shall have an ouster le maine at full age . ●nd 't is said , if the king after grant the ●annor to w. n. in fee , excepting the ●●rvices of i. s. now i. s. holds of the king , ●sof the person of the king , and yet he ●●all not hold in capite , but shall hold 〈◊〉 he held before , for the act of the king ●hall not prejudice the tenant . but if the ●ing give land to me in fee , tenend . mi●i & heredibus meis of the king , & c. ●nd expresses no certain services , i shall ●old in capite , for 't is of the person of ●●e king. and note that tenure in ca●ite , is of the person of the king. 29 h. ● . b. livery 57. tenures 61. extent of livery is the value of the ●and by half a year . but if he intrudes ●nd enters without livery , he shall pay the ●early value by experience of the ex●hequer . and where cestuy and use 〈◊〉 attainted of treason , and 't is enacted ●y parliamen , that he shall forfeit his ●and in possession , and in use , that ●here the king is but a purchaser , and ●herefore those who hold of him that was ●ttainted , shall not sue livery . quaere , ●f it be enacted that he shall forfeit it ●o the king , his heirs and successors . e●contra , if he had been sole seised , and ●ad been attainted by the common law , ●or there the king hath the land as king , and there those who held , & ● shall sue livery . and yet the statute ● si quis temerit de nobis de aliqua 〈◊〉 chaeta , ut de honore wallingford ▪ bose● &c. non faciet aliud servivum qua● fecit preantea . and therefore this ● intended of a common escheat . and a● so some honours are in capite , as pa● of peverel , and others . 29 h. 8. ● livery 58. the kings tenant leases for years an● dies , the heir shall sue livery notwith●standing the lease indures . and th● same where the father declares his wi● of the land for yeers and dies . 30 h ▪ 8. b. livery 59. if a man holds of the king before th● statute of uses , and infeoffs others 〈◊〉 his for term of life , the rem ' over in tai● the rem ' to his right heirs , and dies , an● after the tenant in tail dies without issue● the heir of the feoffer shall sue livery for the fee simple was never out of him and therefore it descends to his heir , an● if he hath it by descent , he shall sue livery . and the same law and for the sam● reason , if at this day a man gives in tail● the rem ' to his right heirs . otherwise b. 2. seems where a man makes a feoffment in fee in possession , and dismisses ●●mself of all , and retakes for term of 〈◊〉 , the rem ' in tail , the rem ' to his ●●ght heirs , and dies , and after the te●ant in tail dies without issue , there the ●●eir , who is right heir is a purchaser . ●nd if the king seises , he shall sue ●ister le main , and shall not be com●elled to sue livery ; but if the tenant 〈◊〉 tail had dyed without issue in the life ●f tenant for life , and after the tenant ●or life dies , there his heir shall sue livery , for the fee simple was vested in the tenant ●or life , by extinguishment of the mean ●em ' and therefore the fee simple descends . and note , livery is that the king ●hall have the value of the land by half ● year . and ouster le main is a writ ●o ouste the king of the land without a●y profit given to the king , 32 h. 8. b. livery 61. where a man holds certain land of the king in soccage in capite , the king shall ●ot have liberty of more then the soccage-land , 32 h. 8. b. garde 97. he which holds of the king in knight service and not in capite , shall not sue livery , because he holds not in capite , and there when the heir comes to full age , he shall have an ouster le main , for none can enter upon the king. but if he be of full age at the time of the death of his ancestor , then he shall render relief to the king and goe quite , as if he had holden of a common person . contra , of tenure in capite . 32 h. 8. b. livery 62. note , that the heir of him who holds of the king in capite in soccage shall not render primer seisin to the king for all his lands , but onely for those lands holden in soccage in capite . contrary of him who holds in knight service in capite , by the experience of the exchequer . and the heir which sues livery shall have in every county a several livery . and note that livery is where the heir hath been in ward , and comes to full age , he shall have livery extra manus regis . and primer seisin● is , where the heir is of full age at the time of the death of his ancestor , or where his tenant holds in soccage in capite , and dies , there the king shall have primer seisin of the land , which amounts to the like charge to the heir , as the livery is . 38 ▪ h. 8. b. livery 60. note that a man cannot sue livery in the chancery for land in wales , nor in a county palatine by experience . time h. 8. b. livery 63. if the heir of cestuy que use be of full age at the time of the death of his ancestor , the king shall not have primer seisin , for 't is not given by the stat. but onely the ward of land and body . and if a will were declared by cestuy que use , which is not performed during the nonage of the heir , there the king shall not have the land , but the heir at full age , shall prove his age , and shall goe quite by experience in the exchequer . casus b. livery 77. the middle . mainprise . if a man be arrested in london , and finds sureties to the plaintiff there , and after is dismissed in banco by writ of priviledge , and after a procedendo comes in the same suit to the court of london , this shall not revive the first mainprise , or suretiship , for once dismissed , and always dismissed . and 't is said that after a man hath found mainprise to a bill in the kings bench , and after is at issue or demurrer , and after is awarded to replead , and to make a new declaration , the mainprise is by this discharged . contrary , where they manuceperunt usque ad finem pliti , and where the original remains . 32 h. 8. b. mainprise 96. if a man be convicted of felony , and remains in prison , and after the king pardons him , there the justices of goal-delivery may bail him till the next sessions o● goal-delivery , so that he may then com● with his pardon , and plead it . 2 e. 6. b ▪ mainprise 94. maintenance . note , by all , where tenant in tayl , o● for term of life , is impleaded , he in rem● or reversion , may maintain , and give of his proper money to maintain for safeguard of his interest : for 't was agreed that he who hath an interest in the land may maintain to save it . 1 e. 6. b. maintenance 53. note , that upon the statute of buying titles , and to maintain that a man shal● not buy land , except the vendor hath been in possession , &c. by a yeer before , 't was agreed by mountague chief justice , and by all of serjeants inne in fleet-street , that if a man morgages his land , and redeems it , he may sell his land infra unum annum prox . &c. without danger of the state aforesaid : for so is the intendment of the statute : for the ancient statutes are , that none shall maintain ; and yet a ●an may maintain his cousin , and so of ●e like : for 't is not intended , but of un●wful maintenance ; and so of a preten●d title , and not of that which is clear ●itle . 6 e. 6. b. maintenance 38. mannor . a man cannot make a mannor at this ●ay , notwithstanding that he gives land 〈◊〉 many severally in tayl , to hold of him 〈◊〉 services , and suit of his court : for he ●ay make a tenure , but not a court : for ● court cannot be but by continuance cu●● contrarium memoria hominum non ●●sist it . and 't is said for law , that if a ●annor be , and all the free-tenures es●eat to the lord , but one , or if he pur●hases all but one , there after this the mannor is extinct : for there cannot be a mannor , except there be a court-baron 〈◊〉 it . and a court-baron cannot be ●olden but before suitors , and not before 〈◊〉 suitor : therefore one free-holder ●●ely cannot make a mannor . 33 h. 8. ● . comprise 31. mannor 5. misnosmer , misnamer . a statute was acknowledged by man in the name of i. s. de d. in co● e. butcher , and he was taken upon pr●cess , and said in avoydance of the statut● that he was always dwelling at s. a●● not at d. and was a husbandman , and n● a butcher ; and that i. s. of d. acknowledged the statute without this , that he the same person that acknowledged i● which plea was refused , for a great inconvenience that might fall upon it . 36 h. b. misnosmer 34. the end . monstrans de faits , shewing of deeds . see that he which pleads a deed record , or which declares upon a deed record , it behoves him to shew it : oyer of those is always to be had by 〈◊〉 which is charged by it . regulae monstrans 165. oyer de recordes 1● the end . mortdauncestor . by the best opinion in the comm●● bench , if two purchase jointly to them ● to the heires of one , and he which hath the fee dies , and after the other dies , the heir of the first shall not have a mortdauncestor ( and b. seems the reason to be , because the fee was not executed in possession , by reason of the survivor of the other , and t is in effect now but the discent of a reversion ) and the wife of him who had the fee , shall not have dower , and yet he might have forfeited the fee simple or given it by feoffement , but not by grant of the reversion . 12. e. 4. 2. and joyn the mise in a writ of right , for he in reversion , and the tenant for life may do it . quaere , if he may release it . 29. h. 8. b. mortdauncestor . 59. mortmain . lord and tenant , the tenant leases for life to i ▪ s. the remainder to an abbot and his successors , the lord need not to make claim , till the tenant for life be dead ; for if he will wave the remainder t is not mortmain . but of a grant of a reversion with attornment , t is otherwise . and if the tenant makes a feoffment in fee , to the use of a. for life , and after to the use of an abbot and his successors , there t is not mortmain , till the tenant for life in use dies , and he in remainder takes the profits . note that appropriation of an advowson without licence is mortmain . 25. h 8. b. mortmain . 37. if a man leases to an abbot and his successors , or to another religious person for a 100 years , and so from a 100. years to a 100 years , untill 300 years be incurred , this is one lease , and such lease is mortmain by the words of the statute de religiosis . 7 e ▪ 1● s. colore termini , for the said statute is , quod nullus emeret , vel sub colore donationis aut termini , aut ratione alterius tituli ab aliquo reciperi , aut arte vel ingenio sibi appropriare presumat , &c. and the same law o● a lease for 400 years , or the like , contrary , if a man leases for a 100 years , or the like , and covenants that he or his heirs at the end of a 100 years , will make another lease for another 100 years , and so further , this is not mortmain , for t is but one lease for a 100 years , and the rest is but a covenant , but in the first case , for that is for 300 years at first in effect , and all by one and the same deed , ( b. mortmain 30. leases 49. ) and 99 years is not mortmain . and also a lease for a 100 years is not mortmain by b. for t is a usual term . 29. h. 8. b. mortmain 30. by br. if an alienation in mortmain be , and the alienee is disseised , and the disseisor dies seised , his heir is in by discent , yet the lord may enter within the year , for he hath but onely a title of entry , and cannot have an action . but otherwise of him who hath right of entry , and may have an action . 1. e. 6. b. mortmain . 6. the end . negativa preignans ; see tit. issues joyns . non-ability . vvhere , and in what case a●● alien is disabled from bringing of an action , what not ? see tit alien . non est factum . note , that in debt upon an obligation made for usury , and the defendant pleads this matter , he shall conclude , and so the obligation is void judgement si action , and shall not conclude non est factum . 7. e. 6. b. non es● factum . 14. the end . nonsuit . note , that the king cannot be non-suited ; yet b. seems that he who tam pro domino rege , quam pro seipso sequitur may be nonsuited . 25. h. 8. b. non-suit . 68. note , when the parties in an action have demurred in judgement , and have a day over , there at that day the plaintiff may be demanded , and may be ●onsuited , as well as at a day given after issue joyned . 38. h. 8. b. nonsuit . 67. nontenure . where a man is barred by a false verdict , and brings an attaint against the first tenant , nontenure is no plea , for he is privy ; contrary of a stranger , as where the tenant infeoffs a stranger after . 19. h. 8. b. nontenure 6. in an attaint non tenure is no plea ●or a privy to the first action : contra●or ●or a stranger to the first action ( b. nontenure 16. ) and t is said that t is ●o plea in an attaint , to say that the plaintiff in the attaint hath entered ●fter the last continuance . 20. h. 8. b. nontenure 22. nontenure is no plea in waste . see tit. waste . nosme . name . what shall be a good name of purchase . see tit. discent . note , if a dutchess , or other such state marries with a gentleman or an esquire , she by this shal lose her dignity and name by which she was called before as in the case of the lady powes , and dutches of suffolk , the one espoused r. haward , and the other s. the dutches , adrjan stokes ; and therefore writs were abated in their cases ; for by the book of heralds ; quando mulier nobilis nupserit ignobili , desinit esse nobilis . 4. m. 1. b. brief ; 546. nosme . 69. notice . the patron shall take notice of every voidance of an advowson , except resignation , and of this the ordinary shall give him notice . lecture frowick . b. notice 27. office devant , &c. office before , &c. note , by those of the exchequer ; where a man is attainted by parliament , and all his lands to be forfeited ; and doth not say that they shall be in the king without office , there they are not in seisure of the king without office , for non constat of record what lands they are . 27. h. 8. b office devant 17. if the king grant land for term of life , & after the patentee dies , yet the king cannot grant it over till the death be found by office , & this by reason of the stat. that a grant before office shall be void . 29. h. 8. b. office devant ●6 . if an office finde the death of the kings tenant , and that his heir is of full age , and doth not say when , there it shall be intended that he is of full age , tempore captionis inquisitionis , but that he was within age tempore mortis tenentis , and therefore it ought to be expressed certain when he was of full age . 29. h. 8. b. office devant 58. note , that t is an antient course in the exchequer , that if it be found by office that i ▪ s. was seised in fee and died , sed de quo vel de quibus tenementa tenentur , ignorant ; that a commission shall issue to enquire of it certainly , de quo &c. and if it be found that of w. n. then the party shall have ouster l'main of the king. but if an office be found , quod tenetur de rege , sed per que servitia ignoratur , this is good for the king , and it shall be intended to be holden in capite per servitium militare , for the best shall be taken for the king. but now in these cases , a melius in quirendum shall be awarded by the statute 30. h. 8. b. office devant . 59 ▪ land was given by the king pro erectione collegii cardinalis eborum , and the colledg was not erected , and upon office found thereof , the king seised . time. h. 8. b. office. 4. the end . t was agreed by the justices , that the king is not intitled to the land of his ward without office , though he hath in it but a chattell , yet it comes ratione tenure , which is a seigniory and free hold in the king. 5. e. 6. b. office devant . 55. note , that of a chattell the king is in possession without office . and ●contra of land and of free hold , except of a term ; and sometimes he shall be in possession of inheritance without office ; yet the king shall not have the land of his ward without office , though he hath in it but a chattel ; for the ward comes by reason of the tenure , which is a seigniory and free hold in the king , and therefore a difference betwixt this , and a lease for years of a man outlawed : for if a man hath a term for years , or a ward , and is outlawed , this is in the king without office . lecture b. office devant . 60. officer . note , for law , if a man hath a fee of a lord , and after is made justice , this fee is not void by the law , but after the making of him justice , he is not to take any fee , but of the king ; and the same law of him who hath an office of steward , and after is made justice . et per plures where a man is a baily of a mannor by patent , and after is made steward of the same mannor by another patent , both patents are good ; for the suitors are judges , and not the baily . but per plures if a man be a forrester by patent , and after is made justice of the same forrest , the first patent is void . as where a parson is made a bishop , the parsonage is void , for he cannot be ordinary of himself , nor punish himself . and b accords that a man cannot be keeper of a forrest , and justice of the forrest , for the killing of the deer by the keeper , and the like , is a forfeiture of his office , which shall be adjudged by the justices of the forrest , and he cannot judge him ● self . but a man may be a steward of a forrest by patent , and justice of the same forrest by another patent , and both good , for both are judicial , and justices of the forrest may make a steward of the forrest . 29. h. 8. b. officer . 47. note , that the sheriff and escheator void their office by demise of the king , for they are made by patents , which are as a commission is , and therefore t is used at the demise of the king for to sue out new patents , as 't was this year . 1. m. 1. b. officer . 25. the end . obligation . if a. be bound to b : in 40. usum● . s. there i. s. may release the obligation , because that ( ad usum ) is expressed in the obligation . et econtra if this did not appear in the obligation . 36. h. 8. b. obligation 72. oyer of records , &c. see tit. monstrans de faits . oyer & terminer . t is said that if a commission of o●er and terminer expire or discontinue , ●hen the indictments and record shall ●e sent into the kings bench , and there they shall be finished ( see how tit. corone . ) 38. h. b. oyer & terminer . 1. the end . t was granted in the case of ben : smith upon the statute of 2. e : 6. cap : 24. of felony in one county , and accessary in another county ; that the justices of the kings bench are justices of oyer and terminer of felony , treasons , and the like , by the common law , and custom of the realm . 3. m. 1. b. oyer & terminer . 8. pain . t was adjudged in curia hospitii domini regis apud greenwich versus edmundum knivet militem , that he should be disinherited , imprisoned for ever , and his hands cut off , quia percussit quendam hominem ibidem , the king being there in his court. 33. h. 8. b. pain 16. the end : panell : t was agreed in the exchequer where 〈◊〉 jury is awarded de medietate lingue , where an alien is party , and the panel ●eturned , that the one of the denizens and the other of aliens shall be sworn , till they have 6 denizens , and 6 aliens sworn . the same law there , where the jury remains for default of jurors , there a tail shall be part of english , and part of aliens , and this if the party prayes it . but if he doth not pray it , b. seems t is error , except by the statute of jeofails it be holpen . 32. h. 8. and so by him where the panel is party , the party is not compellable to take the jury , except 6 of the one , and 6 of the other are sworn . 4. e. 6. b. panel 2. the end . parliament . if the king be intitled to the land of i. s. by forfeiture of treason , or felony , by act of parliament or office , by this all tenures are determined , as well of the king , as of all others . and there , if this land after be given to another , by another act of parliament saving to all others all their rights , interests , titles , rent-service , and the like , as if no such act had been , there the seigniories and the like shall not be revived , for no seigniorie was in esse at the time of the second act made . and here are not words of gift , nor reviving , but words of saving , which serves not but to save that which in esse at the time of the saving , &c. but such proviso in the first act would serve ; for this comes with the act which intitles the king. and where the king is intitled to land by office for escheat , and after t is enacted by parliament that the king shall enjoy it , saving to all others their seigniories , and the like , there such saving will not serve ( for the reason aforesaid ) for all was extinct before by the office , and nothing was in esse at the time of the saving ( which was in ure between the king and keckwich in the county of essex , where r. lost his seigniory ) but there ought to be words affirmative , that the lords shall have their seigniories . 27. h. 8. b. parliament 77. note by englefield justice , in the case between button and savage , that where a man hath title to land by a tail , and after the same land is given to him by parliament , that his heirs shall not be remitted ; for by the act of parliament all other titles are excluded for ever ; for this is a judgement of the parliament : and where the land is gi●en expresly to any person by name , by act of parliament , he , nor his heirs shall not have other estate then is gi●en by the act , but that that onely ●hall stand . ( b. parliament 73. remitter ●9 . the end . ) and the same law where ●he king had title in tail , and the ●and is given to him by parliament in ●ee , the tail is determined . so that ●●e heir shall not avoid leases made 〈◊〉 his father , nor charges , and the 〈◊〉 ; for the last statute bindes all for●er titles and estates not excepted . ●9 . h. 8. b. parliament . 73. if divers sessions are in one and the 〈…〉 parliament , and the signes not a 〈◊〉 till at last , there all is but one and 〈◊〉 same day , and all shall have relati●● to the first day of the first sessions , 〈◊〉 the first day and the last , all is but 〈◊〉 and the same parliament , and one 〈◊〉 the same day in law , except special ●●ntion be made in the act when it ●ll take force . but every sessions in which the king signes the bills , is a da● by it self , and a parliament by it self and shall not have other relation but to the same sessions . 33. h. 8. b. parlia●ment 86. relation 35. note , if a man in an action , or pleading alledges a statute , and mis-recite it in matter , or in year , day , or place the other may demurr generally , fo● there is no such statute , and then ther● is no such law , for every one that med●dles with it , ought to shew the la● truely . but in case of the king it ma● be amended , and this in another term contrary for a common person . 33. h ▪ 8. b. parliament 87. memorandum , that at the parli●●ment holden by adjournment h. th● year , t was admitted by the kings 〈◊〉 and so accepted , that if one burgess 〈◊〉 made major of a town which hath j●●●dicial jurisdiction , and another is 〈◊〉 that these are sufficient causes to ele● new ones , wherefore they did so 〈◊〉 the kings writ out of the chancer comprising this matter , which was a●●mitted and accepted in the commo● house of parliament . 38. h. 8. b. par●●●ament . 7. parnour , taker of the profits . an office is found after the death cestuy que use that he died seised , and the heir is in ward of the king , and after a recovery is had against the heir during the possession of the king as against the pernour of the profits , before the statute of uses 27. h. 8. the feoffees traverse the office , or sue an ouster l'main , this recovery shall binde the heir , but the recoverer cannot enter during the possession of the king. 29. h. 8. b. pernour 32 : a man cannot aver another pernour of the profits of other things , which are not in demand . b pernour 4. the middle . patents . the king gives land to i ▪ s. et heredibus masculis suis , the grant is void . see tit estates . if the king licences his tenant to alien his mannor of d : and he aliens it except one acre , the licence shall not serve it , for the king is not assertained of his tenant of all . and if i have a licence to impark 200 acres , and do it according , and after increase by other 10 acres , there this is not a park . 23. h. 8. b. patents . 76. if the king grants omnia terras & tenementa sua in d. this is a good grant these general words . 30. h. 8 : b. patents 95. the king gave to the earl of rutland in tail , and after intended to give to him in fee simple , and to extinct the tail , and t was doubted that the surrender of the letters . patents of the tail , and the cancelling of them , and of the inrollment and bill assigned , will not extinct the tail , for the tail executed may be averred without shewing the patent . and a formedon lies after the tail executep , without shewing the patent . and t was taken that t was not a good surety for the king , for his services to give the reversion , to to hold the reversion by such services when it vests , and to except the first services during the tail , for when the reversion is gone , the rent and services reserved upon the tail , are gone as wel in case of the king , as a common person . and therefore the devise was , that the king by a new patent , reciting the first patent , shall give the reversion , and the first rent and services to have in fee , to hold by such services , and rendring such rent , and by this the king shall have the new tenur presently , and the grantee shal not be charged with double services and rents during the tail , and t was agreed for law , that if a man loses his letters patents , he shall have a constat of the letters , patents out of the inrolment , and bill assigned , which remains in the chancery : and therefore b. seems that the inrolment shall not be cancelled ( b. patents 97 ) and t was agreed by whorewood the kings attorney , & optimos legis peritos , that if tenant in tail of the gift of the king surrenders his letters patents , this shal not extinct the tail , for the inrolment remains of record , out of which the issue in tail may have a constat , and recover the land , wherefore they made the devise aforesaid , viz ▪ that the king shall grant to the said earl tenant in tail the fee simple also , and then a recovery against him will barr the tail. otherwise the reversion being in the king ( b. surrenders 51. ) and t is said for law , if the king gives in fee , or in tail , or for life , the patentee leases for years , or grants , leases , or gives part of the land or of the interest to another , and after surrenders his patent , by which t is cancelled , this shall not prejudice the third person , that he shall lose his interest by it : for he may have a constat out of the enrolment which shall serve him . quaere inde , because a statute is made of it . and quaere if the common law shall not serve : for it appears in the book of entries fo . that a man pleaded a constat , 32. h. 8. b. pattents 79. the end . surrender 51. what thing in action the king may grant , what not ? see tit. choise in action . if the king grant a balywick , or sheriffwick to i. s. absque compotoreddend . the word absque compot . is worth nothing : for t is contrary to the nature of the thing granted , 36. h. 8. b. pattents 99. if conusance of plea be granted by the king , he ought to shew where ; as in guild-hall , or the like ; and before whom , as before his steward , &c. and the king may grant toll , fair , market , and the like : but not to have assise of fresh force , nor toll traverse , nor through toll , nor that the land shall be devisable , borrough-english gavelkinde , nor the like : for these are by custom , which cannot commence at this day by grant : for the king cannot make a law by his grant : and that by grant of conusance of pleas , he shall not hold plea of an assise , nor of a certificate of assise . and t is said for law , that a false consideration in letters patents shal not avoid them : as where the king for ten pound to him paid , gave such land , and the ten pound is not paid , the patent is not void , shall not be repealed : contrary of a patent granted upon a false surmise : as to falsifie that the land came to the king by attainder of i. s. which is not true , or the like . quaere , the diversity , 37. h. 8. b. patents 100. where the king , tenant in tail , cannot discontinue , or charge by grant , by patent , see tit. discontinuance de possession . note , that t was agreed , that where the king grants land which is in lease for tearm of years , of one who was attainted , or of an abby , and the like , that the grant is good without recital of the lease of him who was attainted , or of the abby : for he shall not recite any lease but leases of record , time h. 8. b. patents 93. t was granted in the case of thomas inglefield , knight , where the king receits , quod oum a. b. tenet manerium de b. protermino vitae suae de concessione nostra , &c. sciatis nos concessisse c. s. reversionem manerii predict , &c. habendum , &c. that this is a good grant. therefor b. seems that if the king mis-recites the date of the first letters patents , or the like , yet if he well recites the estate and the thing , and the name of the lessee , that then the grant of the reversion is good . for where the king takes notice of his tenant for term of life , and of his estate , and grants the reversion , he is not deceived in his grant , for he takes upon him notice of the former interest for life , and then the date of the first patent is not material . time h. 8. b. patents 96. by mervin justice , a constat is pleadable ; contrary of an inspeximus , for in the one case the patent remains , and in the other t is lost , and by b. in the book of entries a constat was pleaded , and aid granted of the king upon it . 1. e. 6. b. patents 97. the end . peace . a man is bound to the peace , and procures another to break , the peace , this is a forfeiture of his bond , as t was said time. h. 8. b. peace 20. peremptorie . a man recovers debt or damages and after brings thereof a scire fac ' the first return of nihil against the defendant is peremptory , if he makes default . 24. h. 8. b. peremptorie . 63. where a man brings an action real or mixt , or makes an avowry or conusans , and issue is taken upon the seisin infra tempus statuti , and t is found against the demandant , plaintiff , or avowant , this is peremptory by the same statute . 1. m. 1. b. peremptorie . 78. petition . t is held for law , if the king be intitled by double matter of record , as t is enacted by parliament , that i. s. shal be attainted of treason , or felony , and shall forfeit all his lands , and also an office is found thereof , there the party who hath right , cannot traverse , but is put to petition . and the same law if the king grant it over after the double matter of record found . 33. h. 8. b. petition . 35 , trovers de office 51. note , that petition was at common law , but traverse is by statute , lecture b. petition 41. travers de office 54. see tit. travers de office. pledges . a man gages his goods in pledge for 40 l. borrowed , and after the debtor is convicted in 100 l. in debt to another , these goods shall not be taken in execution till the 40 l. be paid : for the creditor hath an interest in them : and also goods taken for distress , cannot be taken in execution , 34. h. 8. b. pledges 28. pleadings . note that it is said for law , that he which pleads a recovery by default , ought to aver his title of his writ . and also that the defendant in the recovery was tenant of the free-hold die brevis : but if the recovery were by action tried , he needs not to take the one averment or the other . yet t was said , that in a quod ei deforce at he that pleads the recovery by defalt , need not aver the party tenant of the freehold tempore brevis sui , for t is proved that he was tenant tempore , &c. by the use of the quod ei deforceat , for this is the effect of this action ; because that the demandant in this action , lost by default in the first action : yet he shall aver the title of his writ . and he which pleads a recovery in a writ of waste by default , needs not to aver the party tenant ; for non tenure in this action is no plea. 24. h. 8. b. pleadings 6. he which pleads an entry for to defeat a collateral warranty , ought to aver that he entred in the life of the ancestor . and in dower if the tenant pleads a disseism by the husband , and the wife pleads a feoffment by i. n. to the husband , who after infeoffed the tenant , and after disseised him , she shal say that the feoffment of i. and the seisin of the husband , were during the coverture ; and he which derives an interest by lease from tenant for life , or in tail , ought to aver the life of the tenant for life , or in tail , 26. h. 8. b. pleadings 147. where a man ought to aver , that the one and the other are one , and not divers , see tit. averments . where a stranger to a deed may plead it , where not ? see tit. estranger . note , for law , that t is good pleading to say , that i. n. and w. n. were seised in dominico pro ut de feodo ad usum t. p. and his heirs , without shewing the commencement of the use● as to say , that a. was seised in fee , and infeoffed i. n. and w : n. ad usum t. p. &c. but a man cannot plead that a. b. was seised in tail without shewing the gift ; for the one is a particular estate , and not the other , 36 , h. 8. b. bleadings 160. plenartie : note , when there is no patron , a● where the patron is a priest and is admitted to this benifice himselfe . o● where my advowson is aliened in mortmain , and appropriated to 〈◊〉 house of religion , and the like : in these cases i. may have a quare impedit , and there plenarty by six month is no plea , 6. h. 8. b. plenartie 10. premunire . premunire by bil in the kings bench , see tit. bill . a prohibition lies often where a premunire lies not ; as of great trees , vel pro decimis , de ceptima parte , prohibition lies , and not a premunire ; for the nature of the action belongs to the spiritual court , but not the cause in this form . but where t is of a lay thing which never appertained to the spiritual court , of this a premunire ●ies . as of debt against executors upon a simple contract , or pro lesione fidei , upon a promise to pay 10 l. by such a day , 24. h. 8. b. premunire 16. where a man attainted in a premu●ire shall forfeit his lands in fee imperpetuum , see tit. forfeiture de ●erre , &c. prerogative : a man hath land in use ; of which , part is holden of a. by prioritie , and the rest of the king by posterity in knights service , and dies , the king shal have the ward of the body by his prorogative , and by the statute of 4. h. 7 ▪ which gives the ward of cestuy que us● where no will is declared ; and per pre●rogativam regis : yet otherwise t is sai● of land in use holden of a common per●son ; for the tenant in use dyed no● seised , and therefore out of the case o● prerogative for the land , 21. h. 8. b ▪ prerogative 29. note , by whorewood the kings attorney , and others : where an information is in the exchequer upon a pena● statute , and the defendant makes bar , and traverses the plea , that th● king is bound to stand to the first tra●verse , which tenders an issue , and can●not waive such issue tendered , and traverse the former matter of the plea , 〈◊〉 he may upon a traverse of an office , an● the like where the king is sole party and intitled by matter of record ; fo● upon the information there is no offic● found before : and also a subject is pa●●ty with the king for to recover th● moytie or the like , 34 : h. 8. b. prero●gative 116. shelley just. was precise that a gi●● of the king is good of chattels movea●bles without writing ; as of a horse● ●nd the like 35 : h. 8. b. praerogat : 60. ●nd 71. the ends . note by some , the king shall not ●ave a precipe quod redd . ( as a writ of escheat ) but his title shall be found 〈◊〉 office. time h. 8. b. praeroga●●ive 119. where the king shall have his age ? ●here not ? see tit. ag● ▪ t is said if an information be by a sub●ect for the king in the exchequer , and ●●e defendant pleads a bar , and traver●s the information , the king may tra●erse the matter of the bar if he will , ●nd is not bound to maintain the mat●er which is contained in the absque hoc ● . e. 6. b. praerogative 65. the end . the prerogative of the king is a ●reatise of the common law , and not ●●tute nor declaration by parliament . ●●d a mine of ore , or argent is to the ●wner of the soil . quaere , lecture b. ●raerog . 134. where the incumbent is made a bi●hop , the king shall present by his pre●ogative . see tit. presentation . prescription . where prescription shall be gone by acceptance of a grant of the thing , se● tit. estopel . t was said for law , that a custom● may be alledged where there is no person that can prescribe : as inhabitants cannot prescribe : but they may alledge a custom that the inhabitants may common in d. for the one goes with the place , and the other with the per●son , which person ought to be able 〈◊〉 prescribe ; for otherwise t is worth nothing , 2. m. 1. b. prescription , 100 the end . note , by the justices , that if a mangran● prox . presentationem to a. and aft●● before avoidance grants prox . presentationem ejusdem ecclesiae to b. the second grant is void : for this was gran●●ed over by the grantor before : and 〈◊〉 shall not have the second presentatio● for the grant doth not import it , 20. h 8. b. presentation 52. a man grants prox . presentationem and hath a wife and dies , the grant● shall have the first presentation , the he the second , and the wife for dowre th● third , 33. h. 8. b. presentation 55. note , by b. that the bishop of e●y said to him , that he saw a presentation in the time of e. 3. made by the ●aid king : that he presented to a be●ifice pro illa vice , which was of another patronage , by these words , ratione praerogative sue , which benefice voided by reason that the king had made the in●umbent of it a bishop , who was conse●rated : so that when a benefice becoms ●oid by making of an incumbent a bishop , the king shall present to all his ●ormer benefices pro illa vice , whosoe●er is patron of them , 4. m. 1. b. presentation 61. priviledge . note , when a record is removed out of a court of record , as london , &c. ●●to the kings bench , or into common ●ench , there they shall not proceed up●n the original which was in london : ●ut in the kings bench the party may ●d himself by bill of midd. brought ●ere against the party upon his appear●nce : and in the common bench to ●●ing an original retornable the same ●ay . 36. h. 8. b. priviledge 48. procedendo . if a man arrested in a franchise , sue● a writ of priviledge and removes the body and the cause , and after come● not to prove his cause of priviledge , the plaintiff in the franchise may have 〈◊〉 procedendo . and therefore b. seem● that there the first sureties remain : otherwise if it had been dismissed by allowance of the priviledge , for then h●● sureties are discharged . yet it seem● to him , that when they remove the body and the cause , they remove no sure●ties : but then there is not any recor● against them ; and then it seems tha● the priviledge being allowed , the sure●ties are discharged . otherwise whe●● the priviledge is not allowed ; for the● the prisoner and the cause was alwaie● remaining in the custodie of those of th● franchise . 31. h. 8. b. procedendo 1●● sureties 28. proclamation . note , that none can make proclama●tion but by authority of the king , 〈◊〉 majors and the like , who have priv●●ledge in cities and boroughs to do it , or have used it by custom . and sir edmund knightly , executor to sir william spencer , made proclamation in ●ertain market towns , that the creditors should come by a certain day , and claim and prove their debts , &c. due by the testator ; and because that he did it without authority , he was committed to the fleet , and put to a fine , 22. h. 8. b. proclam . 10. prohibition . t is agreed , that if a man be sued in the spiritual court , for tythes of seasonable wood , the partie grieved may make a suggestion in chancerie , or in the kings bench , that he is sued in the spiritual court for tythes of great trees , which pass the age of 20. years , by the name of sylva cedua , which is seasonable wood used to be cut , where indeed t is great trees , and pray a prohibition , and have it . and the same law where a man is sued in curia admiral ' for a thing done upon the sea , where indeed t was done upon the land , there upon a surmise that it was done upon the land , he shall have a prohibition . 31. h. 8. b. prohibition 17. property . t was agreed by the justices , that if a frenchman inhabit in england ; and after war is proclaimed betwixt england and france , none may take his goods , because that he was here before● but if a frenchman comes here after the war proclaimed , be it by his own good will , or by tempest ; or if he yeilds , and renders himself , or stands to his defence , every one may arrest him , and take his goods : and by this he hath a propertie in them , and the king shal● not have them : and so t was put in ur● the same year , betwixt the english and scotch ; and the king himself bough● divers prisoners and goods the sam● year when bullen was conquered of hi● proper subjects . 36. h. 8 , b. propertie and proprietate probanda 38 , the end . who shall have property in an estray● see tit. estray , quare impedit . by whorewood the kings attorney , clearly ; if two joynt tenants are , the one presents sole , and his clerk in●cted , the other is out of possession , ● 5. h. 8. b. quare imped . 52. the end . quare imped . by mark ogle , against ●arrison , clerk incumbent ; who was in ●y the presentation of the king : and ●herefore the writ was brought against ●im soly : and pending the writ of ●●are imped . the plaintiff dyed after the ● months past , who had but prox . pre●●tationem by grant , his executors ●ought another quare imped . by jour●es accounts , intending to have saved ●e matter by the journies . and 〈◊〉 the justices of the common bench , ●here the plaintiff dies , the executors ●all not have a writ by journies ac●●unts . ( and b. seems that where the plaintiff dies , none can have another writ by journies accounts . but contra in some cases where the defendant dies having the writ . ( b. journeies accounts 23 : quare imped . 58. ) and note by b. where the grantee de prox . presentatione brings a quare impedit as before , and dies , after the six moneths past pending the writ , and the executors bring another quare imped . by jornies accounts , and take a general writ , and count how that the grant was made to the testator , and he brought a quare imped . and dyed , and that they brough● this writ , and for that reason pertine● ad ipsos presentare , and the defendan● ipsos impedit , and then this imports tha● this is of a disturbance made to themselvs after the 6 months past , & the nth●● writ lies not ; for all ought to hav● been comprised in the writ , and cou●● specially and demand a writ to the b●●shop upon the presentation , and wr● of the testator , & quia non ideo mal● and nothing thereof comes in the ca● aforesaid , betwixt mark ogle , an● harriston , by b. 4. e. 6. b. quare in● ped 160. que estate , whose estate &c. t is said for law , that if a man recovers land against i : s● or disseises i. s. he may plead that he hath his estate , and yet he is in in the post , 31. h. 8. b : que estate 48. que estate in another person of the the tenancy without shewing how , not so in seigniory . see tit avowrie . t was agreed that a que estate shall not be allowed in one who is mean in the conveyance ; as to say that a. was seised in fee , and feoffed ● . whose estate c. hath , who infeoffed the defendant ; for the que estate shall be allowed onely in the defendant or tenant himself , s. whose estate the tenant hath , 1. e. 6. b. que estate 49. note that t was agreed by the justices , that a man cannot convey an interest by a que estate , of a particular estate , as tail for life or for years , without shewing how he hath this estate , be it of the part of the plaintiff , or defendant , 7. e. 6. b. que estate 31. quinzisme . t was agreed in the exchequer , that cities & boroughs shall pay at tenths , and uplands at fifteens , 34. h. 8. b. quinzisme , &c. 8. note by exposition of those of the exchequer , that tax and tallage is not other but tenth , fifteen , or other subsidie granted by parliament . and the fifteen is of the layitie , and the tenth is of the clergy , and is to be levyed of● their land. and the tenth and the fifteen of the layity , is of their goods : s. decimam partem bonorum in civitatibus & burg. et quinsesimam partem● bonorum of the layity in patria , which was levyed in ancient time upon their goods : s. of the beasts upon their lands , which was very troublesom . but now t is levyed secundum rat . terrarum suarum by verges of land , & other quantities ; so that now all know their certainty in every town and countrey throughout the realm . but t is yet levyed in some places upon their goods : but in most places upon their lands , which was granted by the barons . 34. h. 8. b. quinzisme 9. t was said for law , that a man shall not wage his law in a quo minus , 35. h. 8. b. ley. 102. quo minus 5. the ends . rationabile parte , &c. t was said for law , that the writ de rationabili parte bonorum is by the common law ; and that it hath been often put in ure , as a common law , and never demurred to : therefore b. seems that t is the common law , 31. h. 8 , e. rationabili parte 6. the end . recognizance . agreed for clear law in the chancery ; if a man acknowledge a statute staple , and after infeoffs the recognisee , & he makes a feoffment over , now the land is discharged ; for the feoffee is but a stranger . but if the cognisor repurchases the land , it shall be put in execution , and yet t was once dicharged , time e. 6. b. recognizance 9. the end . note , that it did appear by search of the records of the common bench , that the justices of the bench may take and record recognizance , as well out of term , as within term ; and as well in any county of england , as at westminster 4. m. 1. b. recognizance 20. note , that the king himself cannot take a recognizance ; for he cannot be judge himself , but ought to have a judge under him to take it . and none can take a recognizance , but a justice of record , or by commission : as the justices of the two benches , justice of peace , and the like : for a conservator of the peace , which is by the custom of the realm , cannot take surety of the peace by recognizance , but by obligation ; the same law of a constable , lecture b. recognizance 14 : record . a man shall not pleadia record , except it be in the same court where the record remains ; without shewing the record exemplified sub magno sigillo angliae , if it be denied : for it ought to come into the chancery by cerciorare , and there to be exemplified sub magno sigillo ; for if it be exemplified sub sigillo de communi banco , scaccario , or the like , these are but evidence to a jury . 22. h. 8. b. record . 65. 't is said that he that pleads a recovery in a writ of right in a court baron in barre of an assise before the justice of assise , he ought to shew it exemplified sub sigillo cancell . otherwise 't is no plea. but of a recod in the common bench , he may vouch it there , and have day to bring it in ; the same law by b. of any other court of record , yet otherwise in a court baron , for there 't is a recovery , but no record , for 't is not a court of record . time. h. 8. b. record . 66. the end . note that in the kings bench they have divers presidents , that in a writ of error upon a fine , the record it self shall be certified , so that no plures proclam . shall be made , for if nothing be removed but a transcript , they may proceed in the common-bench notwithstanding that , and if it be reversed , this makes an end of all : but if it be affirmed , then the record shall be sent into the common-bench by mittimus to be proclaimed and ingrossed 4. m. 1. b. record . 49. recovery in value . recovery against husband and wife , by writ of entry in the post where the wife is tenant in taile , and they vouch over , and so the demandant recovers against the husband and wife and they over in value , this shall binde the taile and the heir of the wife . 23. h. 8. b. recovery in value . 27. where a writ of entry in the post is against tenant for terme of life to bind the fee simple , he ought to pray in aide o● him in reversion , and then they to vouch upon the joynder , &c. and such recovery with voucher is used for to doc● the taile in ancient demesne upon a writ of right , and voucher over ; and this of freehold there . yet b. doubt of such recovery upon a plaint there o● land of base tenure , for this cannot be warranted , ideo quaere . 23. h. 8. b. recovery in value 27. the middle . note , that t' was taken , if my tenant for life vouches a stranger , who enters into the warranty , and cannot barre the demandant , by which the demandant recovers , and the tenant over in value , that this land recovered in value shall not go to me in reversion after the death of the tenant for life , nor the reversion of the land recovered in value , shall not be in me in the life of tenant for life , and so 't is holden at this day . 25. h. 8. b. recovery in value . 33. note , by some , where a writ of entry in the post is brought against a husband and wife , where the wifis tenant in taile , and they vouch overe and so the demandant recovers against the husband and wife , and they over in value ; if the wife tenant in taile dyes , and the husband survives , this shall not bind the issue in taile , for the recompence shall go to the survivor , and then it shall not bind the issue in taile . yet b. seems that this opinion is not law , for the recompence shall go , as the first land which was recovered should go . and voucher by husband and wife shall be intended for the interest of the wife . 25. h. 8. b. recovery in value . 27. the end . tenant for life , the remainder over , or tenant in taile the remainder over , is impleaded by a writ of entry in the post , and he vouches a stranger , the demandant recovers against the tenant , and the tenant over in value , this shall bind him in remainder by monntague just. and others , for the recompence shall go to him in remainder . but yet in the case of the lord zouch and stowell in the chancery , the law was determined otherwise by all the justices . b. seems the reason , because that when he vouches a stranger , the recompence shall not go to him in remainder ; contrary , if he vouches the donor or his heir who is privy . but after this day many put in●ure to bind the remainder . 27. h. 8. b. recovery in value . 28. recovery against feoffees seised to use in tailes . see tit feoffements to uses . 't is held , that where tenant for life is , the remainder over in tail , or for life ▪ and the tenant for life is impleaded , and vouches him in remainder who vouches over one who hath title of formedon , and so the recovery passes by voucher , there the issue of him who hath title of formedon may bring his formedon , and recover against the tenant for life , for the recompence supposed shall not go to the tenant for life , and therefore he may recover ; for his ancestor warranted but the remainder , and not the estate for terme of life , and therefore the tenant for life cannot bind him by the recovery , for he did not warrant to him . and therefore in such case the sure way is to make the tenant for life to pray in aide of him in remainder , and they to joyn and vouch him who hath title of formedon , and so to passe the recovery , for there the recompence shall go to both . 30. h. 8. b. recovery in value . 30. 't was agreed that if tenant in taile the reversion to the king , suffers a recovery , this shall bind him and his issue , but not the king by the common law . see now the statute of thereof that it shall not bind the issue . 33. h. 8. b. recovery in value . 31. taile . 41. the end . relation . where an office found for the king shall relate , where not . see tit. intrusion . of the relation of an act of parliament . see tit. parliament . note , that the attainder of treason by act of parliament , shall not have elder relation then to the first day of the parliament , except it be by speciall words that he shall forfeit his lands that he had such a day and after . 35. h. 8. b. relation . 43. 't is held for good law , that by attainder of felony by verdict , a man shall forfeit all his lands that he had the day of his felony done or ever after , for this shall have relation to the act , contra upon an attainder by out lawry ; for b. seems there that he shall not forfeit but those which he had , the time of the outlawry pronounced , or after , for outlawry hath not relation , as a verdict hath . time. h. 8. b. relation . 42. the end . relation of an inrolment : see tit. faitz inrol . releases . husband and wife purchase in fee , and after they lease for years by indenture , and after the husband releases to the lessee and his heirs , this is no discontinuance , and yet this gives a freehold to the lessee during the life of the husband ; per plures , without doubt : 29. h. 8. b. releases . 81. g. chancery was possessed of an indenture , and lost it , and i. s. found it , to whom the said g. c. released all actions and demands , and after the said i. s. gave the same indentrue to john tison , and after the said g. c. brought in action of detinue against the said i. t. who pleaded that the said i. s. found the indenture , and that the said g. c. released to the said i. s. all actions and demandes , and after the said i. s. gave the said indenture to the said i. t. judgment if action . and t' was agreed in the common bench , the case being of land demanded ibidem , that this is a good barre , and that the release of all demandes shall exclude the party of seisure of the thing and of his entry into the land , and of the property of the chattell which he had before . and it was moved in the kings bench , and they were of the same opinion , and said that the reason is , because that entry in land , and seisure of goods are demandes in law. 34. h. 8. b. releases . 90. relief , see tit. debt . remainder : see tit. discent : remitter . no remitter against an act of parliament . see tit. parliament . note a per curiam , if tenant in taile makes a feoffement to his use in fee before the statute of uses made , 27. h. 8. and dyes before the said stat●te , his heir within age , and after the statute is made before the full age of the heir , by which the heir is in possession by the statute , he shall not be remitted by it contrary of a discent after the satute for this shall be a remitter . 34. h. 8. b. remitter : 49 : if a man hath a tittle of entry , and not a right of entry , as by escheat mort●maine , assent by a woman to a ravisho●● and the like , and takes an estate of th● terretenant , he shall not be remited for he hath but a tittle . ( and a ma● cannot be remitted , but in respect o● a right before , as where a man is di●seised and takes an estate of the disseisor , he is remitted , for he had a right of entry before . ) and the same law where a man decaies his tenements , or converts land from tillage into pasture against the statute , and makes an estate for life to his lord , he shall have no other estate : for he had but a title of entry , and not a right of entry . quaere , for non adjudicatur . 34. h. 8. b. remitter 50. where a devise shall take away a discent , and will not remit : see tit : devise . repleder . t was in use in the kings bench , though that the jury be ready to pass there , if there be a jeofail aparent in the record , the inquest shall be discharged , 35. h. 8. b. repleder 54. rescous , see tit. distress . reservations . if a man leases his mannor except the wood , and underwood , by this the soile of the wood ▪ is excepted by baldwine , wine chief justice of the common-bench : fitz. justice , and knightly , and mart serjeants : contrary , spilman , and w. conigs ' just. 33. h. 8. b. reservations 39. restitution . a man is attainted of treason , the king may restore the heir to the land by his patent of grant , but he cannot make the heir to be heir of blood , nor to be restored to it without parliament : for this is in prejudice of others , 3. e. 6. b. restitution 37. restore al primer action . restored to the first action . if a man enters ▪ where his entry is not lawful , as the heir in tail after discontinuance , or the heir of a woman , or the woman her self after discontinuance , & the other upon whom he enters recovers against him , there they , s. the heir in tail , or the woman , or her heir , is restor'd to their first action of formedon , or , cui in vita yet , if such who enters where his entry is not lawfull , makes a feoffment , and the other upon whom he entered , recovers : now the first action is not restored to the issue in tail , nor to the woman , nor to her heir , by reason of the feoffment , which extincts right and action . but if he which so enters , makes a feoffment upon condition , and for the condition broken , re-enters before that he upon whom he entered hath recovered : and then he recovers after the re-entry made by the condition , there he which made the feoffnient upon condition , is restored to his first action : for the entry by the condition , extincts his feoffment , 23. h. 8. b. restore al primer action 5. retorne de avers . retorn of beasts . note by the opinion of the court , that if a man be nonsuited in a replevin , and a retorn is awarded : and the plaintiff brings a writ of second deliverance , and suffers it to be discontinued , retorn irreplegible shall be awarded , as well as if the plaintiff had been non suited in the writ of second deliverance , 17. h. 8. b. retorne de avers 37. second deliverance 15. revivings . see tit. extinguishments . riot . rout , and unlawful assembly . note , that riot is where three or more do an unlawfull act in deed , and execute it , as to beat a man , enter upon possession , or the like : unlawfull assemblie is , where a man assembles people to do an unlawful act , and doth not do it , nor execute it in deed . and rout is , where many assemble themselves for their own quarrel ; this is a rout , and against law , though it be not executed : as inhabitants of a town for to break down a hedge , wall , or the like , to have common there or to beat a man who hath done to them common displeasure , or the like , lecture b riots 5. sanctuary . see tit. corone . saver default , saving default . see tit. judgement . scire facias . of a thing executory ; a man shall have execution for ever by scire facias , see tit. execution . where debt lies , and where a scire facias . see tit. debt . where a scire facias upon a recognisance shall be brought ? see tit. lieu ' second deliverance . see tit. retorn de avers . seisin . if a man holds of the king , and holds other land of another lord , and dies , his heirs within age , who intrudes at his full age , and pays the rent to the other lord , this is a good seisin , and shall bind him after he hath sued livery : for the seigniory was not suspended by the possession of the king , but onely the distress : for after livery , the other lord may distrain for the arrearages due before , per optim . opinionem tune . see now the statute thereof , that the officers of the king shall render yearly the rent to the lord , and the heir shall not be charged with it by distress after upon livery sued , as he was at common law , 34. h. 8. b. seisin , 48. several precipe . t was agreed that a man may have debt and detinue by one and the same writ by several precipe , the one shall be debet , the other detinet , tim. h. 8. b. several precipe 5. the end . several tenancie . in an assise , several tenancy is no plea : and the same law in other actions ●here no land is demanded in certain , 24. h. 8. b. several tenancy 18. statute merchant . t was said for law , that if a man sues execution upon a statute merchant , or statute staple , and part of the land is extended nomine omnium terrarum , which is retorned according , and the party accepts it , he shall never have an extent , nor re-extent of the rest . and that upon a nihil retorned upon a testatum est , he may have proces in another county : for there the judgement shal be quod habeat exeontionem de terris quousque summa levitur . yet b. seems otherwise of such retorn of goods , 29. h. 8. b. statute merchant . 40 : note if a statute staple be extended , and so remains by seven years without deliberate made , yet he may have a deliberate at the end of 7 ▪ years , but he who hath the land delivered to him by liberate upon a statute cannot make a surrender conditional to the conusor , & enter for the condition broken , after the time of the extent incurred ; as land of 10 l. per an . is delivered in execution for 40l . this may incurre in 4. years , there the conusee by such condition , cannot enter after the four years incurred , for he ought to take the profits upon his extent presently . and he shal not hold over his time nisi in speciali casu , as where the land is surrounded with water , sudden tempest , or the like . and the judgement shall be quod teneat terram ut liberum tenementum suum quousque denarii leventur , 33. h. 8. b. statute merchant . 41. t is said for law , that if the conusor upon a statute staple hath a reversion , and grants it over , and after the tenant for life dies , this land shall not be put in execution : for the reversion was never extendable in the hands of the conusor , 33. h. 8. b. statute merchant . 44. the end . note , by * bromley , hales , and portman justices , and rich , who was first chancellor of england , & apprenticius curiam that if the conusee purchases parcel of the land after the statute acknowledged or recognised , this ●s no discharge of the statute against the conusor himself . but the feoffees of ●he conusor of other parcels , shall be ●here of discharged . but if the conusee ●ath the land delivered in execution , ●nd purchases parcel of the land of the conusor , this is a discharge of the in●ire statute . 36. h. 8. b. statute merchant . 42. t was said for law , that if the conusee upon a statute staple dies , and ●is executors sue execution in the name ●f the testator , as if he were in life , ●nd the sheriff takes the body in the ●ame of the testator , &c. yet this is ●ot execution for the executors , but ●hey may after have execution in their ●wn name ; for the first execution in ●he name of him that was dead before ●he teste of the writ , was void , and ●he body cannot remain to satisfie him who was dead before . nor the she●iff cannot deliver the land nor goods ●o him who is dead , juxta formam bre●is . and by b. in the book of en●ies , the executors of the conusee shall have execution upon a statute merchant , without scire facias , and this upon surmise as it seems to him . and if the conusor be retorned dead , yet execution shall proceed of his lands and tenements without scire fac ' against his heir : and the exten● and liberate shall be served imediatly . yet by b. no remedy appears there for the goods of the conusor ▪ when the conusor is dead , to have any execution of them . 36. h. 8. b. statute merchant . 43 : t is said if a writ of execution with extendi facias issues upon a statute merchant , that the writ ought to be retorned , and the land upon thi● delivered to the conusee by liberate inde . time h. 8. b. statute merchant . 32. the end . supercedias . t was holden for law , th●●● a writ of attaint a man shall ●ot have a supercedias for to ●isturb execution ; for the ●erdict shall be intended true ●ntill t is reversed , &c. and ●●at the register which gives 〈◊〉 supercedias there , is not law. contrary upon a writ 〈◊〉 error ; for it may be inten●ed that error is for the suit ●f the defendant , &c. 33. h. b. supercedias . 24. sureties . where sureties in london●●all ●●all remain after the action ●emoved ? & è contra . see tit. ●●ocedendo . affirmatur pro lege , that ●uretie of the peace is discharged by the death of the king , for t is to observe t● peace of that king , and when he dead , t is not his peace . 1 : m. 1. surety . 20. surrender . tenant for term of life surrenders him in reversion out of the land which he agrees , the free hold by th● is in him presently , and he is tena● to the action by precipe quod redd● without entry , but he shall not ha● trespass without entry . 31. h. 8. ● surrender . 50. where tail shall be extinct by su●●render of letters patents , where no● see tit patents . note in the case of culpeper tw● said that the king himself cannot r●●cord , or receive a surrender of land 〈◊〉 letters patents , made to him extr● curiam , but this ought to be befor● his chancellor or other justice to th● authorized . 2. e. 6. b. surrender . 53. th● end . if a man leases for years , the remainder over for years , and after the fir● termor grants his interest to the le●sor , this is no surrender by reason 〈◊〉 〈◊〉 mean interest of the term in re●●inder . and a termor makes his essor his executor and dies , this is no ●●rrender , for he hath this to another 〈◊〉 , contra whorewood inde . 2. e. 6. b. ●●rrender 52. note , where a man leases land for 〈◊〉 of years , the remainder over for 〈◊〉 , the remainder over in fee , or re●●rving the reversion , there he in remainder for term of life , may surren●er to him in reversion , or to him in remainder in fee , and the estate for ●erm of years is no impediment , for ●●ough it cannot give the possession of 〈◊〉 land , yet it gives the possession of 〈◊〉 free hold which is in the thing ●hich was surrendred . 3. m. 1. b. surrender . 55. suitor . t was said for law in the star-chamber , betwixt brown justice , and ●ion grocer of london , that a court 〈◊〉 may be holden before two sui●●rs , for the plurall number suffices ▪ ●ime . h. 8. b. suit. 17. tail. recovery upon voucher against tenant in tail , is a bar by reason of the recompence in value . and a recovery b● writ of entry in the post by single voucher doth give but the estate which the tenant in tail hath in possession tempor● recuperationis , so that if it were in o● another estate then the tail , there the tail is not bound against the heir . but the double voucher is to make the tenant in tail to discontinue , and to bring the writ of entry against the feoffee , and then the feoffee shall vouch the tenan● in tail , and he shal vouch over , and so shal lose ; and this shal binde all interests and tails that the vouchee had . 23. h 8. b. tail 32. tenant in tail hath issue and asiens with warranty , and leaves assets & dies , the issue cannot recover by formedon ; for the warranty and assets is a barr . and if the issue aliens the assets , yet he shall not have a formedon . but if he hath issue and dies , there the issue of the issue shal have a formedon , because that the assets is not discended to him . yet is said that if the issue upon whom the warranty and assets discended brings a formedon and is barred by judgement , and aliens the assets and dies , his issue shall not have a formedon , because that his father was barred by judgement . b. tail 33. and if the tenant in tail hath issue two sons , by divers venters , and discontinues , and dies , and an ancestor collateral of the eldest son releases with warranty , and dies without issue , and the eldest son dies without issue , before 〈◊〉 formedon brought , the younger son may recover by formedon ; for he is not heir to the warrantor , and his brother was not barred by judgement . yet b. doubts thereof ; for it seems to him that the discent of the collateral warranty extincts the tail , but if the eldest had been barred by judgement , then clearly the younger is gon also . 24. h. 8. b. tail 33. formedon 18. tenant in tail , the reversion to the king , suffers a recovery operatur●y ●y it . see tit. discontinuance de possession & recovery in value . if the king gives lands in tail by his letters patents , and after the donee surrenders his letters patents to the k. the tail by this is not extinct . 35. h. 8 b. tail 38. the king tenant in tail cannot discontinue by grant by patent . see tit. discontinuance de possession . tenant at will. note for law , that there is no tenant by sufferance , but he that first enters by authority and lawfully , as where a man leases for years , or for term of anothers life , and holds over his term after the term expired , or after the death of cestuy que vie . and tenant at will is , where a man leases his land to another at will ; for he who enters of his own head is a disseisor . time h. 8. b. tenant per copy . 15. the end . tenant by copy . note , that t was said for law , that tail may be of a copyhold , and that a formedon mayly of it in discender by protestation , in nature of a writ of formedon in discender at common law , and good by all the justices , for though that a formedon in discender was not given but by statute ; yet now this writ lies at common law and it shall be intended that this hath been a custome there de tempore , &c. and the demandant shall recover by advise of all the justices , 15 h : 8. b : tenant per copy 24. where a stuard , or under-stuard may let by copy , & e contra , see tit : court baron . note , that if a man leases a mannor for yeeres , in which are copy-holds , and after a copyholder dies , the termer of the mannor grants the land by copy for three lives , this is good ; for the custome through all england is , that the lord , for the time being , may demise by copy , &c. and this notwithstanding that hee is but durante bene placit . or at will. and 't is held that such tenant of a mannor cannot demise , reserving lesse rent then the ancient rent , but he ought to reserve the ancient rent , or more , quaere of that . tenant by sufferance , see tit : tenant at will. tender . 't is said for law , that upon a lease for yeers , rendring rent with re-entry the lessee ought to bee ready all the day and make attendance to offer it ; and it suffices for the lessor to come any time of the day , yet the entry is , that the one and the other attended the intire day , quaere inde 36 h : 8. b : conditions , 192. the end , entre congeable , 2. the end . note that 't was agreed in the serjeants case , that where a man leases land for yeeres , rendring rent , and for default of payment a re-entry , it suffices for the lessee to tender the rent upon the land , the last houre of the last day of the moneth , if the money may bee told in that time : and so it sufficeth for the lessor to demand it the same houre , 4 m : 1. b : tender , 41. if a man leases for yeeres rendring rent at michaelmasse , and other covenants , if hee bee bound in an obligation to pay the rent precisely , there hee shall seeke the lessor , but if hee be bound to perform the covenants , &c. the tender upon the land sufficeth ; for there the payment is of the nature of the rent reserved , contrary in the first case , 6 e : 6. b : tender , 20. tenures . what shall bee a tenure , and what a condition , see tit. conditions . what shall bee a tenure in capite of the king , what not , see tit. liverie . a man makes a feoffment of the moytie of his land , the lessee shall hold of the lord by the intyre services which the intire land was holden before , for the statute of quia emptores terrarum , tenend . pro particula , holds not place here ; for a moytie is not particula : the same lawe of a third part , and the like , which goes by the halfe and the whole ; contrary of an acre or of two acres in certain : and if a man holds two acres by a hauke , and makes a feoffment in fee of one acre ; the feoffee shall hold it by a hauke , and the feoffor shall hold the acre by another hauke , 29 h : 8. b : tenures 64. restitution by parliament revives a seigniory or tenure which was extinct by attainder of treason , by parliament , see tit. extinguishment . see in the exchequer 3 e : 3. ro : 2. 't was found that a man held of the king in knight service in capite , ut de honore suo de rayleghe , and 't was taken no tenure in capite , but a tenure of the honour ; and therefore his heir shall have ouster omaine of his other lands , which should not be if it had been in capite , for then the king shall have all in ward by his prerogative : yet otherwise 't is if the honour be annexed to the crown ; for then the honour is in capite . and 11 h : 7. the honour of rayleghe was annexed to the crown ; therefore now 't is in capite . and where the king gives land to hold of him by fealty , and 2 d. pro omnibus servitiis , this is socage in capite , for 't is of the person of the king , otherwise if it were to hold ut de manerio de r. 33. h : 8. b : tenures 94. 't is held , that if a man made a feoffment of land before the stat : of quia emptores terrarum to hold of him , and to make suit to his court ; this is good if he hath a court. but a man cannot commence a court by tenure made , where he had not a mannor before ; for there the services should be holden of his person ( b : tenures 34. ) and a man cannot make a mannor at this day , though that he gives land in tayl to hold of him , and by suit of his court ; for he cannot make a court ; for a court cannot be but by continuance . and so a man may make a tenure , but no mannor nor court ; for a mannor and court cannot be but by usage had de tempore cujus contrarium memoria hominum non existit . testament . testament by a feme covert of the assent of the husband , see tit : devise . a man devises his land to i s ; this shall be taken but for term of his life ; but if he saith paying a 100. l. to w n this shall be intended a fee-simple : and if he doth not pay it in his life , yet if his heir or executor pay it , that suffises ; quaere of his assignee , 29 h : 8. b : testament : 18. if a man holds three severall mannors of three severall lords in knight service , and every of them of equall value ; he cannot make his will of two of the mannors , leaving the third mannor to the heir ; but of two parts of every mannor ; for otherwise he shall prejudice the other two lords , 35 h : 8. b : testament : 19. note , by the doctors of the civill-law , and serjeants of the common-law ; if a man makes his testament , and names no executors , this is no testament ; but yet 't is a good will of the land in it , for those are not testamentary ; but in the first where executors want , yet the legacies shall be paid . but if it appears that he made part of the testament , and not the whole ; there the legacies shall not be paid . and where a man makes a testament and executors , and they refuse , yet the legacies shall be paid ; for there is no default in the testator ; and the testament shall be annexed to letters of administration , 37 h : 8. b : testament 20. note , for law by the chancellor of england and justices , that if the tenant who holds of the king in knight service in capite , gives all his land to a stranger , by act executed in his life , and dyes ; yet the king shall have the third part in ward , and shall have the heir in ward if he be within age : and if of full age , he shall have primer sesin of the third part , by vertue of that clause in the stat : saving to the king ward , primer sesin , livery , and the like , by which it appears that the intent of the act is , that the king shall have as much as if the tenant had made a will , and had dyed seized ; yet by all , after that the king is served of his duty of it , the gift is good to the donee against the heir , 2 e : 6. b : testament 24. note , that 't was adjudged betwixt vmpton and hyde , that the explanation of the statute of wills , is not to take effect only from the time of the explanation ; but the first stat : which is explaned shall be so taken ab initio : so that the wills of vmpton , gainesford and others which are excepted in the explanation , shall be taken good by the stat : of 32 h : 8. of wills which was explaned , 4 m : 1. b : testament : 26. testmoignes , witnesses . the age of witnesses in an aetate probanda , is 42 years , lecture b : testmoignes 30. the end . titles . note that a man shall make a good title in an assize to say , that i n was seized in fee to the use of t p , which t p infeoffed the plaintiff , who was seized and disseized , &c. without shewing what person made the feoffment to the use of t p , or how the use commenced , 36 h : 8. b : titles 61. travers of office. 't is said for law , that none can traverse , except he makes title to the same land in the premisses , or close of his traverse , 22 h : 8. b : traverse d' office 48. 't was found that i s dyed seized , by which w s his son comes , and saith that the said i s in his life was seized in fee , and infeoffed a b in fee , to the use of the said i s and his heirs , and dyed ; and after by the stat : of uses 27 h : 8. he was seized in possession without that that i s his father dyed seized pro ut , &c. and a good traverse : and a termor cannot traverse an office by the common-law , except it were found in the office , and then he might have a monstrans de droit , and ouster l'main the king , 29 h : 8. b : travers d' office 50. where a man shall have a petition , where traverse , see tit : petition . where the king hath no other title but by false office , there the party who can make title , may traverse as well against the king as against the party , if the king had granted it over ; but now this is helpt by stat : 33 h : 8. b : travers d' office 51. the end . where a tenure is found of the king ut de ducat : suo lancastrie , which in truth is false ; yet this need not to be traversed , for the king hath this duchy as duke , not as king ; and a man shall not be put to traverse but where the office is found for the king , ut pro rege angliae , for then he hath a prerogative , and as duke none , 1 e : 6. b : travers d' office 53. non-suit or relinquishing of a traverse is peremptory ; contra of non-suit in a petition ; and the judgement of traverse is no other , sed quod manus domini regis amoneantur , et quod possessio restituatur to him that traversed , lecture b : travorse d' office 54. travers by , &c. what thing shall be traversable , what not , see tit : issues joynes . action for making false clothes in bartholomew-fair , contrary to the stat : the other saith , that he made them well and truly at d in the county of f without that that he made them in bartholomew-fair in l , pro ut , &c. and a good plea , 35 h : 8. b : travers by , &c. 368. if in assize the tenant pleads that his father was seized in fee , and dyed by protestation seized : 't is said that the plaintiff may make title by a stranger , without that that the father of the tenant was seized in fee , &c. 38 h : 8. b : travers by , &c. 26. the end . information in the chequer : the defendant pleads a plea , and traverses a materiall point in the information , upon which they are at issue ; there the king cannot waive this issue , as he may in other cases where the king alone is party without an informor ut supra , by the kings attorney and ●thers learned in the law , 38 h : 8. b : travers by , &c. 369. tender not traversable in a writ of ●ntrusion , maritagio non satisfac : for the single value , see tit : forfeiture of marriage . trespas : the defendant said , that i n was seized in fee , and leased to him for twenty one years , and gave colour ; the plaintiff said , that his father was seized and dyed seized , &c. and ●he entred and was seized untill the trespas , absque hoc quod dictus j n aliquid habuit tempore dimissionis , and a bad traverse ; but he shall say without that that i n was seized in fee modo & forma pro ut , &c. in communebanco , 4 e : 6. b : travers per 372. assize . the tenant makes a barr by a stranger and gives colour : the plaintiff makes title by the same person by which the defendant made his barr , s : that i s was seized and gave in tayl to his father , who infeoffed w n who infeoffed the tenant , upon whom a b entred and infeoffed the grandfather of the plaintiff , whose heir he is in fee , who dyed seized , and the land discended to the plaintiff , & so he was in in his remitter , until by the defendant disseized : and in truth a b never entred , nor never infeoffed the grandfather ; and yet 't was held cleerly , that the tenant in his barr to the title , cannot traverse the feoffment of a b , but ought to traverse the dying seized of the grand-father of the plaintiff which remitted him , for this binds the entry of the tenant , and is the most notable thing in the title , 4 e : 6. b : travers per 154. trespas . the defendant said that i was seized , and infeoffed him , and gave colour ; the plaintiff may say , that h was seized and leased to i at will who gave to the defendant , and r re-entered and infeoffed the plaintiff ; he ought to say , without that that i was seized in fee modo & forma pro ut , &c. time : e : 6. b : travers per 217. the end . place not traversable , see tit : attaint , treason . a chaplaine had affixed an ancient seale to a patent of non-residenee , made by himselfe , of the part of the king , and was imprisoned in the fleet for it : and 't was holden misprision , and no treason , by the justices , and he escaped and was not put to death ; for 't was said , that because he did not counterfeit the kings seale , but tooke an ancient seale , this is not treason , 37 h : 8. b : treason , 3. the end , 5. note , that in january this yeere , h : howard earle of surrey , sonne and heir apparent of thomas duke of norfolke , was attainted of high treason , for joyning the armes of england before the conquest , and other armes after to his owne armes ; and other pretences against the prince ; and hee was tryed by knights and gentlemen , and not by lords ; nec per pares regni , because that hee was not earle by creation , but by nativity as heir apparent of a duke , which is no dignity in law , for if hee had beene of dignitie by creation , and lord of parliament , he should be tryed by his peeres , 38 h : 8. b. treason , 2. 't was agreed that for misprision of treason , or if a man knowing counterfeit money , and imports it out of ireland into england , and utters it in payment or the like , a man shall lose his goods for ever , and the profits of his land , for his life , and shall be imprisoned for term of life , 6 e : 6. b : treason 19. the end . note that it appeares by divers records and presidents that these words ( compas or imagine the death of the king ) are large words , for he that maliciously devises how the king shall come to death , by words or otherwise , and doth an act to explain it or the like , this is treason : and hee who intends to deprive the king , in this is intended the death of the king ; quaere of the depriving , for by b : a man may deprive and yet intend no death : and for this cause a statute was thereof made , time h : 8. & e : 6. and the detayner of a castle , fortresse or the like , against the king , is levying of warre against him , all which words ( levying of warre , and the others afore ) are in the statute of 25 e : 3. and adhering to the enemies of the king , ibm : ayding and strengthening them , 1 m : 1 b : treason , 24. 't was agreed in parliament that for misprision of treason , the fine used to bee the forfeiture of all his goods , and the profits of all his land for his life , and his body imprisoned ad voluntatem regis , for misprision is finable , 2 m : 1. b : treason , 25. the end . note , that if an alien borne of a countrey which is in amity and peace with this realme , comes into the realme with english traytors , and levies warre , this is treason in all ; contrary , if the country of the alien were in warre against england , for then the alien may bee killed by marshall lawe , 4 m : 1. b : treason , 32. trespas . note , that in the register amongst the writs of trespas , there are many writs of trespas , quare vi & armis equum suum apud d inventum cepit & effugavit , &c. and so see that if they be taken in a common , or other land which is not to the owner of the beasts , yet he shall have trespas vi et armis , but not quare clausum fregit , 3 m : 1. b : tenants , 421. tryall . peere of the realme shall bee tryed by his peeres , if hee bee arraigned upon an indictment ; contrary , if he be arraigned upon an appeale , for at the suite of parties he shall not be tryed by his peeres : and so was fines lord dacres of the south this yeere , and hanged for felony , for the death of a man who was found in his company at a hunting in sussex , 33 h : 8. b : jurors , 48. the end , tryalls , 142. note that in a court baron the tryall is by wager of law , but they may bee by jury ex assensu partium : and the maximes and generall customes of the realme , which is the common-law , shall bee tryed by the justices : and the same law of expositions of statutes ; and by the civill-law , the judges have the construction of statutes likewise : but particular customes shall not bee tried but per patriam , 33 h : 8. b : trialls , 143. note that a bishop is a peere of the realme , and shall bee tryed per pares suos upon an arraignment of a crime , and so put in use ; therefore knights shall be of the jury , and if not the panel shall be quashed ; yet see 27 h. 8. that the bishop of rochester was not tryed by his peers , 2 m. 1. b. trials 142. the end . variance quare impedit upon a grant de proximum presentatione granted to i : n. gentleman , and in the writ brought by i. n. this word [ gentleman ] is omitted , and the defend ' . demanded oyer of the deed , and had it , and the variance no matter ; for the action of quare impedit is founded upon the disturbance , and not upon the deed , as an action of debt is founded upon the obligation . 2 e. 6. b. variance 109. verdict . note , that the court of common bench would not permit a verdict at large in a writ of entry in nature of an assise : because t was a precipe quod reddat , at which b. admires : for it seemeth to him that upon every general issue a verdict at large may be given , 23 h. 8. b. verdict . 85. special verdict , where the issue is upon an absque hoc . see tit. issues , joynes . villeinage . if a villein comes to an executor , or to a bishop , parson or the like , in jure ecclesiae , and he purchases land , the executor enters , he shall not have it j●re proprio , but as executor , and it shall be assets . and if the bishop , or the parson enters , he shall not have it but in jure eccesiae , because that they had not the villein in jure proprio , but in another right : contrary , if they had had the villein jure proprio , 33. h. 8. b. villeinage 46. the king shall not have the villein of another in ward : and yet if there be an ideot , he shall have the villein of the other who is so ideot . quaere . and the king shall have the perquisite of a villein of another if he hath him as ideot . lecture b. villeinage 71. voucher , see b : tit. voucher . 84. vsury . note that where a man for 100l . sels his land upon condition , that if the vendor or his heirs repaies the summ citra festum pasche , or the like , tunc prox . futur . that then he may re-enter , this is not usury : for he may repay the day before , or any time before easter , and therefore he hath not any gain certain to receive any profits of the land : and the same law where a defeisance , or statute is made for the repayment citra tale festum : e contra , if the condition be that if the said vendor repays such a day , a year , or two years after , this is usury : for he is sure to have the lands and the rents , or profits this year , or these two years . and so where a defeisance , or statute is made for the repayment ad tale festum , which is a year or two after , 29. h. 8. b. vsury 1. if a man mortgages his land upon defeasance of repayment to re-enter , by which indenture the vendee leases the same land to the vendor for years , rendring rent : there if there be a conditition in the lease , that if the vendor repaies the summ before such a day , that then the lease shall be void : this is not usury . otherwise if it be to repay such a day certain , a year , or more after . 31. h. 8. b. vsury 2. vvaife . t was agreed , if a man be pursued as a felon , and he flees , and waives his own goods , they are forfeited , as if they had been goods stolne , 37. h. 8. b. estray 9. waste . t was said for law , that if a termot commits waste , and makes executors , and dies , the action of waste is gone : for it doth not lie against his executors 〈◊〉 for waste done by themselves , & not 〈◊〉 the waste of the testator : for t is a ●mmon trespass , which is an action ●●rsonal , and dies with the person . 23. ● . 8. b. waste 138. nontenure no plea in waste , see tit . leadings . t was agreed that beech of the age 〈◊〉 20 years , nor under 20 years , cannot 〈◊〉 cut by tenant for term of years , or ●erm of life : for they are of the nature 〈◊〉 timber , and may be timber , and by ●is way they shall never grow to be ●imber , time h. 8. b. waste 134. note by bromley chief justice : if a ●an doth waste in hedge-rows that ●●viron a pasture , nothing shall be reco●red but locum vastatum , s. the circuit ●f the root , and not the whole pasture ; ●nd by him and hales , justice : the cuting of beech of the age of ten or eight ears is waste , for they may be timber ●fter . and that where there is a wood , in which grows nothing but underwood ●he termor cannot cut all . contra , of ●nderwood , where beech , ash , and o●her principall trees grow amongst them ; for there he may cut all the underwood . and a termor may take beech , a● es , and the like , which are well sease● able , which have been used to be fel● every 20 , or 16 , 14 , or 12. yeare and by some at 26 , 27 , or 30 : years it be seisonable wood , which is calle● silvae cedua , 4. e. 6. b. waste 136. t was holden by the chief justice that the racing of a new frame , whic● was never covered , is not waste : bu● t was agreed , that if a house be ruino● for default of any covering at the time of the death of the lessor , and after th● tenant suffers it to be more ruinon that of this new ruin the heir sha● have an action of waste : for this waste which continues : for of the decay which came in the time of the hei● the heir shall have an action of waste è contra , of that which was in the life of his father , 2. m. 1. b. waste 117 the end . writ . t was in ure in debt against i. n. o● c. yeoman , alias dictus i. n. of c. for and heir of w. n. and charged him as heir , that the vvrit abated , because that he charges him as heir , and he ●t named heir in the premises , but in ●e alias dictus . so in debt against i. n. of c. yeoan , alias dictus i. n. of c. executor of the testament of w. p. and declares against him as executor , 24. h. 8. b. brief 418. note by fitz : and shelley justices , ●hat if a man pleads a plea which goes ●o the action of the writ , he may chuse ●o conclude to the writ , or to the acti●n . 26. h. 8. b. brief 405. 492. vvhere a writ brought in such a ●ame of dignity , which was lost by in●ermarriage , shall abate . see tit. nosme . finis . notes, typically marginal, from the original text notes for div a29656-e23330 3 h. 4. 4. by rede . 34 h. 8. ●38 3. h. 4. 4. by thirn . 19. h. 6. 42. 24. h. 8. 54 see tit. leases . see tit. leases . jay accords 11. h. 7. 17. 34 ▪ h. 6. 18. by brisot , 19. e. 4. 1. by catesby . 7 h. 8. c. 3. agrees newton 22 h. 6. 15. 11. h. 4 47. by hank . 30 h : 8. 127. 27 h. 8. 22. petty br. 28 h. 8. 85 3 m. 1. agrees . 2 e ▪ 6. and see 4 ▪ e. 6. after under this title . see 33 h 8 before . 2 mar. 1. 451. time , h : 8. 366. petty br. 5 m. 1. com. 182. 9 rep. 87. &c. pinchons case cont . see 33 h 8. before . see. 33 h 8. before . see 24 h. 8 after . 21 h. 8 : c : see 27 h : 8 : 26 : & 2 e : 4 : 6 : 31. e. 3. ca. 11. rast : administ . 1. 21 h : 8 : ca● . 5. rast : probat of test : 3. 27 h : 8. 26 by fitz. 4 h : 7. 14. by trema : see 5 e : 6 : after . 21 h : 8. c. 5 rast : administ : 1. 3 eliz. com : 229 : kirton agrees 43 e : 3 , 2 , 15. 4 el. com : 213. ●21 . cont. com. ibid : see the stat. com : 218. how seperated , see com : 219 : & 220. see this act , com. 214 , see 29 h. 8. see 33 h. 8. 8 e. 4. 4. by coke , stp. 84 : 8. e. 4. 4. by choke . see 29 h. 8. 46. e. 3 : 45 by persay . 40 e. 3. 41. by thoro stp. 30. cont . 33 h. 65. by wangf : lit. 68. 45 e : 3. 6. see 1 e. 6. next after . see dyer the begining . see 38 h. 8. before . see 5. mar. 1. after . see coke upon lit. see before . see coke upon litt. see 24. h. 8. after . see before 23 h. 8. 1 e 5. 7. by v●vi●or & ●●●tesby . see 6 , & 7 e. 6. com. 8● : see 33. h. 8. tit. parliament 1 m. 1 com 101. 4. e. 6. com. 12. 14 〈◊〉 . 2. by 〈…〉 e 4. 3 〈◊〉 . 1●1 . ● . m. 2. m. ● by the justices accord . st. 59 b. see 21 e 4. 78. by hussey . time h. 7. see st : 64. a. see 24. h. 8 tit. contr. see after . sir john fitz. james 8 h. 6 : 18. by newton b. arbitrement 18. 21 e 4. 21. by choke & nele . perk. 94 e 190. e. d. s. 79. 37 h. 6. 30 : by prisot : 2 h. 6. 16. per curiam 34 h. 6. 22. contra by wangf : 40 e : 3 : 15 : by belk : 〈…〉 〈◊〉 6. 2. westm 2 : ● : 1 : see ti● . fines levied : fitz : 142 : a : 3 ▪ h 8. 〈…〉 9 : 4 : h : 7 : cap. 24 : see cokes 1. book . 32 h. c. 36. see 32. h. 8 tit. discontinuance after . see 21. h. 7. 28. by brudnel . 1 e : 5 : 6 : by suliard : 1 : r : 3 : 3 : by hussey : 43 ass : 41 : see 24 h. 8. tit. action upon the case 39 h. 6. 8. by ashton 9 e. 4. 45. by choke . see 20 h. 7 5. com. 2. see 7 e. 6. see my lord cokes . rep. conc. lit. 39 h. 6. 24. c. 16. rast. inrolments . 2 c. 10. rast. uses 9. lit. 230. abr. of ass. 22. see 2 e. 6. after . see 2 e. 6. com. 379. see tit. leases see after . see 31. h. 8. before : lit. 125. & d. ● . 35 : & 9. e. 4. 33. contra . com. 145. & 152. see 37 h. 8 before . register 9. register 9. 45 e. 3. 17 13 h. 7. 22 by rede . 16 h. 7. 6. by keble . 5 e. 6. com 72. 9. h. 4. 4. by gas● . 36 h. 8. b. audita querale 2. the end . 48 e. 3. 5. by finch . 17 e. 2. b. suit 13. econt . see cokes rep : 21 e : 4 : 52 3 m : 1 : com : 150 : 3 m. 1. com. 163. 10 eliz. ibid. 342. 27 h. 8. c : 10. perk 131 : 39 h : 6. 25. by prisot : 37 h. 6. 33. by prisot . 7 e. 4 : 28. by choke . 2 e. 4. 6. 34 h. 6. 46. by prisot . 7 h. 4. 14 : by tillesley . see coke upon lit. wimbishes case , ●ime h : 8 : com : 21 h. 7 : 1● 21 e : ●15 : com : 269. see 6 e : 6 : tit : ward 32 h : 8 : c : 3 : limitation 3 : notes for div a29656-e29240 39. e. 3. 31. by thorp . 27 h. 6. 5. econt●a . notes for div a29656-e29540 44 e : 3. 28 accord : time e : 6 accords 26 h : 8 : c : time e : 6 : accord : see coke upon lit : note that these words ( executione eorundem ) are necessary , 6 e. 4. 4. by choke , see my lord coke . see 30. h : 8 : after : filpot 16. e. 4. 1 : accord : see 29 ▪ h : 8 : before & 33 h : 8. tit : intrusion . see time h : 8 : tit : devise . & cokes rep see 32 h. 8 after , & cokes rep 4 m. 1. com. 173 : see 33 h. 8 before , 2 h. 7. 8. by hussey : see cokes rep 1 e : 6 : c. 12 clergy 21. see cokes book . 35 h. 8. accord . see after . see tit. officer . see tit. officer . the same admitted 1 h. 7. 10 : d. s. 127. 29 h : 8. 116. petty br : see before : magna-charta . c. 11 : rast : common-pleas 1 : 36. h. 8. accord : before . marrow serjeant in the inner-temple upon the stat. of peace . 1. e. 6. c. 7. see after 1 e 6. tit. corone . see after 33 h. 8. & 37. h. 8. fineux agrees , 11 h 7. 12. & 12 h. 7 : 18 14 h : 8 : 10 by brudnel fitz : 205 : accord : 15 h : 7 : 2 : & 13 : d : s : 123 : see 27 : h : 8 : 15 : by knightly : 6 h : 7 : by bryan cont. perk : 163 : c : see cokes rep knights case : lillingstons . c damport● c : 20 h : 8 : 9 : 26 h : 8 : 5 : by engelf : 6 e : 4 : 5 : by rogers 27 h : 8 : 1 : 27 : see before 20 h : 8 : pleading of covenants performed see cokes rep : quaere : see my lord coke cheddingtons c. see coke lib. 8 97. 98. baspoles case dyer fol. 216. b. see 38. h 8. after . 4 h. 7. 12. by keble . 22 e. 4. 43. by catesby 35 h. 6. 11. per cur . 40 e 3. 20. m. 35 h. 8. b. cond . 18. the end 38 h 8 31. 6. h. 7. 6. by hussey . admitted 18. e. 4. 27. see before jay accords 11 h. 7. 17 34 h. 6. 18. by prisot . 19. e. 4. 1. by catesby . see before 37. h. 8. 21. h. 7. 12. cont . by frowick . 6. e 6. com. 135. 1. m 1. com. 142. see coke penants case . casus hill for the parsonage & glebe of stoke , super derne in com. salop . where the parson , patron , dean & chapter made the assurrnce b. charg 40. the end . see tit. leases . 1. r. 3. 4. see cokes rep. see time. h 8. after . 7. & 8. e. com. 302. see 4. e. 6. tit. estates . & 6. e. 6. faits inrolle 27. h. 8. cap. 16. rast. inrolments . see 30. h 8. tit. apportionment . & 12. h. 8. 18. see 33. h ▪ 8. t it prescription . 18. h. 7. 21. 24. fitz. 121. m. 9. e 4 ▪ 25 by genny & choke 50. 1. h. 6. 8. by babing . 22. h. 6. 56. by choke . 20. h. 6. 21. by newton 28. h 6. 4. 21. h. 7. 5. by cutler . a man pleads m ▪ 3. m. 1. cont . 11. h. 4. 41. by h●ls & firwith accord . st. 34. c. see 9. e. 4. 28 by neele . st. 13. d. see coke upon lit. s. d. s ▪ 134. 35. h. 6. 58. st. 13. c. st. 198 ▪ c. 23. ass. 2. 12. ass. 11. 4. h. 7. 5. by frowick . b. corone . 139. st. 182. c. 1. m. 1. com. 98. see coke . lib. see 33. h. 8. tit. triall . 11. h. 7. 20. accord . by fineux . 1. e. 3. 4. by borous . see 38. h. 8 tit. oyer & terminer . 44 e. 3. 43. accord . see tit. commission the end . 1. e. 6. cap. 7. clergy . sanctuary . see tit-commission the end . see cokes rep. st. 30. b. 3. h. 7. 12. by justices . see st. 47. h. & cokes 4. book . 5. & . 6. e. 6 cap. 11. rast. treason 23. st. 9. a. rast. treason 18. st. 116. lectura . w. n. time. h. 7. see st. 6. c. 1. e. 4. 7. mark. accord . 21. h. 6. 4. by newton . see 20. h 6. 29. see 10. h 8. 10. see coke lib. see 2. h. 7. 13. by keble . 9 h. 6. 32 by newton . 27. h. 6. 1● . t. 4. m. 1 accord . 23 h. 8. c. 15. rast. dam. 6. sta● . 1. 8. 19 h. 8. 19. see coke l. 19. mary portingtoes case . ●9 h. 8. see 30. h. 8. t it fines . see 33. h 8. tit. mannor . notes for div a29656-e35100 19 h. 6. 10. 27. h 8. 2. contra . 3. m 1. see tit . abridgment . 34 h. 6. 12. by moyle . 22 h. 6. 14. per. ●ur . see tit. livery . see 33 h ▪ 8. tit. parliam . see tit. restitution . and coke upon lit. the begining . 27 h. 8. 13. cont . by fitz. curia . 45 e. 3. 5 chetle accord . b. debt 126. the end accord . see coke l. & his lit. 9 h. 61. 13. by rolfe . the same case 34 h. 8. at s. albons lit. 37. n. b. 86. 13 h. 7. 17. by fineux . 3. m. 1. com . 158 ● h. 7. 10 d. s. 21. see 45 e. 3. 26. perk. 106. g. see coke upon lit. 21 h. 8. c. 4. rast. probat . of test. 3 see coke upon lit see coke upon lit & tit. mortmain . see 2. e. 6. after . & tit. chattels . see be●ore & t●t chat ▪ 19 h. 8 , 9 by norwich . fitz. & more see coke upon lit. see coke upon lit. 38. h. 8. b. discents 59. accord . vide infra see 26. h 8. 4. b. done. 61. see 32. h 8. tit. livery . see coke upon litt. litt. 5. litt. 169 3. e. com. 237. c. 13 rast ▪ treason 12. w. 2. c. 1. 9. h 6. 24. by ellerker . see coke upon litt. see before . b. nosme 1. whorwood . 35 h. 8. see tit. assurances , & . recovery in value . the like was agreed 37 h. 8. b. patents 101. see time h. 8. tit. patents . 4 ecom . 250. 2. 1. b. tail 39. & 4. ecom m 234. t. 25. h. 8. accord fitz. 179 g. see coke upon litt. see 4. e. 6. com. 68 by mountague , and coke upon litt. see tit. grants . see tit. prerogative . 37. h 6 10. by davers 26. h. 8. 8. cont . 7. h. 6. 3. by jane perk. 68. see coke upon lit. dower . perk. 67. perk. 69. 27. h. 8. c. 10. see vernons c. coke . l. see coke beverlies c. lib. notes for div a29656-e37900 14. h. 8. 23. by brudnel . see tit. tryall . 35. h. 6. 59. moil accord . see 21. h. 8. 1. fitz. & brook. accord . 12. h. 8. 7. n. b. 124. 4. h. 7. 2. 14. h. 7. 6. see coke . l. 23. h. 8. 39. 30. h. 8. 143. book at large . 1. h. 7. 22. 10. h. 7. 20. by keble 25. h. 8. 70. see 20. h. 8. after . see coke upon litt. see 29. h 8. 111. the book at large . and antea . see coke upon litt. 19. h. 8. 13. see fines levies . w. ● cap. 1. 1. r. 3. cap. 5. see before . 32. h. 8. cap. 36. the like case betwixt villiers and beamont was adjudged in the commō bench . t 4. m. 1. 4 e. 6. com 42 ▪ 11. h. 7. 20. rast discontinuance of proces . 1. 4. m. 1. com. 175. 32. h. 8. cap. 34. rast. com. 1. 4. e. 6. com. 34 ▪ 4. m. 1. com. 177. see coke upon litt. 10 e. 4. 11 by billing see cooke lib. 3. ridgways case . fitz. 144. c. fitz. 144. n. accord see cooke vpon lit. so of ayde prayer , 5 h. 7 , 8 , & 9. rast. 60. m 9. & 10 eliz. com. 335. lit. 6. & cook upon it . rast. 60. 27 h. 8. 27 27 h. 8 29 cont sec 24 h 8 tit entre congeable : & cook lib. 22 e 4. 16 by genney 4. e. 6 com ▪ 28. 20 h 6 36 by poroing . see cook lib. & his li● . ●o . 8. b. w●stm . 2. c. 1. rast. tail. 1. see 29 h. 8. tit. testament & cook upon lit. &c tit. conscience . 29. h. 8. see tit. contract . 30 h. 6. 2. by fortescue accord see cooke upon lit. estoppell . 33 h 6 7. by laken d. 8. 33. lit. 12. see cook 34 h. 6. 48. danby accord . see 5 h 7. 19 9 h. 6. 60. per cur. 9 h. 6. 60. by babington . see ●8 h. 8. before . see cook upon lit. jo. lit. 82. 14 h. 8. 10. by brudnell . hussey accord . 22 e. 47. eliot accord . 12 h. 8. 10. 11 h. 4. 34. by thirning 6 e. 6. com. 137. 2 h. 6. 9. cas . 6. 4 h. 7. 8. 45 e. 34 by thorpe 6 e. 4. 1. 7 e. 4. 9. by ch●ke . moile and ashton ●ccord . 39 h. 6. 45. 19 h 8 8. by fitz. see dyer . 19 h. 8. hales and whorewood accord . 2 e. b. surr. 52. the end see cook upon litt. jo. see tit. extinguishment see 32 h. 8. tit. corporation . see 27 h. 8. t it parliament . see tit. apportionment . lit. 48. 11 h. 7. 13. by davers accord . perk. 16. c. 2 e. 6. b. surr. 52. the end . see tit. executors and surrendor . notes for div a29656-e40730 48 e. 3. per accord see 34 h. 8. tit. action upon the case . 21 e. 474 per cur. see cooke upon lit. so . see 32. h. 8. tit. coverture . 7 e. 4. 5. by lit. see tit. fines , levies . 12 h. 4 21. see 37 h 6. 10 by davers . 4 eliz con. 213. & 242 27 h. 8. ca. 16. see tit. conscience . fitz 21. l. 9 e. 4 32. see 31 h 8. tit. leases 6 & 7 e. 6 com. 86. by hal●s just. 4 m. 1. com. 171. 6 & 7 e. 6. com. 85 3. m. 1. com. 168 27 h 6 2. 27 h 8. 23 by fitz. 21 h 6. counter-plea of voucher 3. see time. h. 8. after . lit. 67. 21 e. 4. 22 by r●de accord . see 31 h. 8. tit. leases . accord frow . 9 h. 7. 25. & 7 e. 4 20. 3. m. 1. com. 154 1 r. 3. ca. 4. 10 e. 4. 1. by choke see 27 h. 8 before 40. e. 3. 41 by finch 18 e 4. 12. by collow & townes . 1 r. 2 c 9. rast. feoffments 1. see 24 h. 8. before . see the next sect . prope finé . 33 h 6. 16. by prisot . see cook upon lit. west . 2. ca. 1. 27 h. 8. 10 by montague . see cook lib. 1. chudleighs case of the escheat , 14. h 8 8. by pollard : of the recovery , 4 e. 6. com 54. by halles . 1 r. 3. ca. 5. see 29 h. 8. after . 14 h. 8. 8. by br. just. perk. 103. c. litt. 29. perk. 103. d. see after . see dyer 5. m. fo . 155. westm. 3. ca. 2. rast. tenure 4. 45 e. 3. 15 by finch . perk. 103. b. cap. 6. see before . see cook lib. 20 h 6. 34 by wangf . 10 el. com. 350. see before time. h. 8 & after 30 h. 8. 1 r. 3. ca. 5. rast. uses 4. see before 19 h. 8. 1. accord . see 20 h. 7. 11. 14 h. 8 9. by pollard see 29 h. 8. before . 19 h 8 13 see before . westm. 2. ca. 1. 1 r. 3. ca. 5. 32 h. 8. ca. 36. see tit. fines . 27 h. 8. ca. 10. rast. uses 9. see 4 e. 6. com. 44. see 24 h. 8. before more held time m. 1. that a use may be well changed for a consid . past . see ● . 8. el. 309. cont . see mildmayes case cook lib. 7. & 8 el. com. 302. see 30 h. 8. before . see 29 h 8 & 5 e. 6. before . 27 h 8 ca. 10. see cook. lib. 1. chudleighs case see before 27 h 8 ca. 9 rast. uses 9. see cook lib. 1. shellies case . 8 h 7 ca. 4 rast. uses 6. h 38. h 8 accord be●ween w. roch. and radm. latharne , &c. see tit coverture . 10 h 7. 20. by keble . 27 h. 8. 20 fitz. accord . 1 r. 3. ca. 5. rast. uses 4. see tit. feoffments to uses . w. 2. ca. 1 32 h. 8. ca. 36. see tit. faits inroll 34 h 6. 19 by danby . see time. h. 8 after . see 36 h. 8. before . fitz 97. a. 8 e. 4. 6. per cur. see 6 e. 6. before . 8 e. 4. 6. per cur. 27 h. 6. 2. 22 h. 6. 18. 8 h. 6. ca. 9. fitz. 141. d. 4 h. 7. 11. by townes . st. 185. 20 e. 4. 5. by billing 40 e. 3. 42. see 24 h. 8. tit. tayl. this matter was in ure p. rot. 505. in the common bench betwixt jarveis demandant & brown tenant . see 7 e. 6. after . see 1 m. 1. after , & 7 e. 6. 4 e. 6. com. 59. by montague . see 2 e. 6. before . 3 m. 1. com. 169. see cook. lib. 7 e. 4. 12. cont . by moile and fitz. 172. h. litt. 4. accord . perk. 48. e. see 4 e 6. com. 14. by harris . fitz. 136. b. of the acquittall . see cook upon litt. notes for div a29656-e45770 see tit. intrusion . 27. h. 8. c. 10. see dyer h. 8. bockinghams . c. fitz. 25● c. see 38. h ▪ 8. tit. livery stp. 10. 13 5. h. 7 37 see 36. h 8. tit. leases . see time h. 8. after 5. h. 7. 37. by all . see 35. h. 8. before . 11. h. 6 , 7. by babing . see 15. e 4. 10. 6. el. com. 268. cōtra . and see cokes books . 6. el. con. 268. magna cart. ca. 3. rast. ca. 1. see cokes books , & 7. e 6. after . see 6 e. 6. before . see coks books . frowike lect. upon the stat . de praeroga tiva reg. 55. 33 h. 6. 32 h. 8. ca. 1 rast wils 1. see coke upon lit of the licence 4 e. 6. com . 14. by harris 12 h 8. 1 by brook lit. 45. see the act of this present parliament which in ables to plead the general issue & to give the special matter in evidence m. 5. e. 6 accord . see 34 n. 8. after . see 31 h. 8. before . see coke litt. and the rector of chedingtons case . accord . finch 46. e. 3. 31. 11 h. 4. 34 by hank . see 37 h. 8 tit. done. notes for div a29656-e47190 d. s. 76. 8 h. 7. 10. 7 e. 6. com. 96. 2 h. 4. c. 15 rast. heresie , 1. f. n. b. 269. notes for div a29656-e47440 see 33 h. 8 tit. mannor . ds. 11 8 h. 7. 5. by vav●our . 12 h. 7. 16. by yaxley . & 17. by tremaile . 12 e. 4. 9. by genny . 22 e. 4. 33. by suliard . ske cokes books . 39 h. 6. 25 by moile , & 44 e. 3. 19. p. cur. & perk. 24 cont . see cokes books . st. 21. d. fitz. 243. see tit. gard● , & 33 h. 8. after 8 e. 4 4 by choke stp. 84. see tit. leases . m. 4. m. 1. accord in casu mainwaring . see tit. leases . see 30 h. 8 tit. charters de pardon . see 26 h. 8. before . see tit. leases . see coke upon litt. & baldw. case , lib. 3. 41 e. 3. 18. by finch . 2 m. 1. accord b. judgment 147. the end . see after tit. restore al primer action . 44 e. 3. 45. cont . 23. ass ' 16. tr. 13. el. com. 394 cont . see 2. m. 1. after . 10. e. 4. 2. by litt. 24 h. 8. cap. see 32. h. 8. before . thorp accords , 41 e. 3. 4. m. 11. h. 4. 18. notes for div a29656-e49150 10 h. 7. 4. by keble . vavisour accord . 13. h. 7. 19. see coke , beechers case . magna chart. c. 15. 22 h. 8. 16 14 h. 8. 14 by brudne● 22 e. 4. 27. by wood , 4 e. 6. com. 30. 4 & 5. el. com. 264. see 32 h. 8. after , & coke lib. and tit. acceptance . see 37 h. 8. tit. attornment . m. 3. m. 1. accord . 23. h. 8. 31. 3. m. 1. com. 168. see 6. & 7 e. 6. com. 85. see 2 m. 1. com. 103. 11 e. 3. fitz. abbe ● . see before , and see tit . acceptance , and 38 h. 8 after . see 37 h. 8 after : and 35 h. 8 tit . garde . fitz : 142. c. cont . fitz : 198. f. accord . h. 1. e. 6. accord . see before . see 36 h. 8 before . admitted p. 1. e. 6. in chancery . see 32 h. 8 before , and tit. acceptance . 44 e. 3. 11 plur fitz : 5. contr . lit. 144. see 26 h. 8 and 37 h. 8 before . goosan abbot . 14. h. 8. 12. by carel. & 21 h. 7. 38. by lee. see before , and tit. acceptance . see coke upon lit. h. 1. m. 1. accord . see coke upon lit. 23 h. 8. ca. 1 h. 7. 17. see tit. intrusion . see 3 m. 1. after : contra . see coke upon litt. see 37 h. 6 26. see 2 m. 1 before , contra . 14 h. 8. 14 by brudnel . 4 & 5 e. 6. com. 70. 4 m. 1. com. 171 172. 8 h. 5. fitz. ley 66. litt. 145. 32 h. 8. ca. 2. limitation 3. see 13. e. 4. 10. 28 h. 6. 11 stp. 18. time. h. 8. after contra . 28 h. 6. 11. see after . see 33. h. 8. tit. tenures . and 3. e● . com. 241. 33 h. 6. 7. by brisot . 8 h. 7. 13. 13. h. 7. 11 by davers . see 30. h. 8. tit. office devant . &c. 3 el. com 243. by carus . see 31 h. 8. tit. alienation . & 32 h. 8. after . magna charta . cap. 31. ratt . tenures . stp. 13. see 37. h. 8. tit. discent sir john husseys case . see 29. h. 8. before , and 38 h. 8. after . f. n. b. 256. c. see 38. h. 8. after . see 33. h. 8. tit. fenuces . stp. 13. see 32. h. 8. tit. demurrer in law. stp. 13. 2. m. 1 com. 109. 2. el. com. 204 see 32. h. 8. before . stp. 13. 44. e. 3. 12. fitx . 257 l. see the extent of it . 32 , h. 8 , before , and 29. h ▪ 8. 28 h. 8. before contra . 27 h. 8. 4. mountague accord 4 h. 7. c. 17 rast. wards 20. notes for div a29656-e51610 see ●1 h. 8 tit. procedendo cont . 19 e. 4. 3. ascue & markham accord . 21 h. 6. 16. 14 ▪ h. 7. 2. by rede . see h. 6 & 7. e. 6. 33. 32 h. 8. ca. 9. see h. 6 & 7. e. 6. com. 88 , 89. see 35 h. 8 tit. tenures . see 23 h. 8 tit . court-baron , & time. h. 8 tit. suitor . see cokes books . see cokes rep. 8. h 4. 15. b. mortmain 11. 6. el. com. 273. 3. e ▪ 4. 13. by nele accord . 3. e ▪ 4. 13. by nele contra . 47. e. 3. 11. see . 1. e. 6. tis. devise . notes for div a29656-e52370 see cokes rep. whelpdales case ▪ entries ? 14. h. 8. 24. per cur. 28. h. 6. 8. & 4. e ▪ 4. 24 ▪ accord . see 20 h. 8. after . 29 h. 8. 2 ▪ see 19 h. 8. before . 14. h. 6. 2. see cokes rep. the countess of rutlands case : noble : by mariage loses her dignitie : in such case not noble by discent . fitz. 35. h. notes for div a29656-e52990 see 35. h ▪ 8. tit. forfeiture . st. 54. 18. h. 6. cap. 6. see 13. h. 7. 11. kings & fineux accord . 13. h. 7. 5 & 9. 26. h 8. 9. by bromley see 29. h 8. tit. livery . 2 ▪ e. 6. cap. 8. 3. e. com. 229. see after . see 5. e. 6. before . 39. h. 6. 5. by prisot . see. 5 m. 1. tit. commission . 10. h. 7. 7. by vavisor . 15. e. 4●3 . by brian . see coke rep. case of discontinuance . see billing , 2. e. 4. 2. notes for div a29656-e53780 see st. 38. c. see coke upon lit. & dyer econtra . 32. h. 8. cap. see 31. h 8. tit. extinguishment . 35. h. 6. 34. danby accord . see 34 h 8. tit. remitter . & dyer . h. 6 & 7. e. 6. com 79. per justiciarios . h. 6. & 7. e. 6. com 79 by hales just. see 32. h 8. tit. demurror in law. 6 , & 7. e. 6. com. 79. 84. 27. h. 8. cap. 10. rast , uses 4. 9. e 4. 24. 26. h. 8. 3. 8. 13. h. 7. 15. vavisor accord . see stp. 31. 4. e 6. com. 5. ècontra . see 35. h 8. tit. tail , contra . see 12. h 7. 12. by fisher. see 32. h 8. tit. discontinuance de possession . 4. e. 6. c. 4. 2. h 7. 13. by keble 37. h. 6. 27. by litt. abr ' of the ass. 56 9. h. 6. 27. by martin . 44. e. 3. 18. by thorp . fi●z . accord . 26. h. 8. 1. & 21. e 48. by hussey . 3. h. 7. 6. 11. e. 41. by litt. see coke rep. altonwoods case . time e. 6. accord . see 38 h 8. tit. discontinuance de possession . & cokes rep. 38. h. 6. 37. by danby . sec 32. h. 8. before . 8 e 4. 15. by danby . 3. h 7. 3. by keble 3. e. 4. 25. & 4. e 4. 25 see cokes rep. communalty of sadlers case & tit. traverss &c. 10. h. 6. 15. 4. e 4. 25. 22. e. 4. ●1 . accord 22 e. 4. 32. by brian . 36 h. 6. 29. 3 h. 7. 2. 4 e. 6. com. 46 19. h. 6. 74. 13 h. 8. 15. by wilby . see tit. titles . see 13. h. 8. fo . 13. by newd . & fo . 14. by brud . 33 h. 6. 12. see cand. 44 e. 3. 32. & d. s. 57. 104. 44. e. 3. 36. accord . see d. s. 106 & 8 e. 4. 13. by catesby that a prohibition lies . see 3 el. com 240 4. h. 7. ca. 17. pre. re. ca. 2. stp. 9. & 4. e. 6. com ▪ 59. by montague contra . see 38 h. 8. tit. traverse . see 6 & 7 e. 6. com 85. & 3. el. com . 263. 13 e. 4. 3 stp. 65. see 2 e. 6. tit. done. 34 h. 8. before . & 38. h. 8. tit. travers per &c. è contra . br. traverse per 207. praerogativa ▪ reg. see coke upon lit 15. h. 7. 7. contra per curiam , as i take it see 33. h 8. after . & dyer . see 20 h. 8. before . & dyer . see 4 m. 1 tit. commissions 41. e. 3. 5. accord see 11 h 4. 37. cont●a by hill. see 32 h 8. tit. mainprize contra . fitz. accord 43. h. notes for div a29656-e56950 contra p 36 h. 8. b. quare imped . 2. the end . by bromley and hales serjeants see coke upon lit. 14 h. 8. 3. by fitz james . see coke rep case of journies accounts . 39 h. 6. 24. by nedham h 2. e. 6. in banco regis accord . 37. h. 6. 32. by davers . 8 h. 5. fitz. ley. 66. notes for div a29656-e57580 f. n. b. 122. l. magna chart. ca. 18. rast. det . to the king 2. see 36. h. 8. tit. stat. marchant . 5 h. 7. 25 by town send . lecture 8. 19 e. 4 9 see 21 h. 7. 9. see 11. h. 7. 2. by fairfax . 1. h. 7. 20. contra . com. 265. 44. e. 3. 37. by knivet . see 25. h. 8. after . see 24. h. 8. tit. entre congeable . see. 27. h. 8. after . 5. e. 4. 2. contra . by haydon . see 25. h. 8 after see 23 h. 8. before . see 25 h. 8. before . see 25. h. 8. before . n. b. 148 see 24. h. 8. tit. entre . congeable . see 22. h. 8. tit. discontinuance de possession . 30. h. 6. 5. perk. 6 c. st. 192 a. 30. h. 6. 5 & st. 192 a. contra . perk. 6. b. see coke upon lit. see lit. sect. 508 509 accord . 6. h. 7. 15 see 29. h. 8. tit. parliament . 2. m. 1. com. 114. see dier . see cok upon lit. 4 h. 7. ca. 19. p. 7. e. 4. 1 acccord 46. e. 3. 22. fank . accord . see 14 h 8. by brudnel . see 32 h 8. tit. denizen & coke upon lit. see tit. judgement . see coke upon lit. 9. h 7. 25 fineaux accord . & thor. 41. e. 3. 18. 19. h. 8. 11. 6. & 7 e. 6. com . 82. notes for div a29656-e59510 13. h. 7. 15 33. h. 6. 35. by davers . st. 9. 26. h. 8. 8. by norw . 2 & 3. e. 6. ca. 8. ●1 . h. 6. 30 ass. 14. 26 h. 8. 7 by fitz. see 33 h. 8. after . 15 e. 4. 5 brjan accord . 7 h. 7. 12. accord . by the rereporter see 29 h 8. before 4 e. 6. com. 61 * 45 e. 3. 22. by finch . 13 h. 7. 22. by keble : see time e. 6. tit. recognisance . 11 h. 7. 4 , 5. e. 6. com . 72. liber intrac . fo . 5 h 7. 22 4 e. 6. com. 49 4. e. 6. com. 49. 1. h. 7. 1. & 1. e 3 3. 14. h. 8. 21. br. accord . see coke upon litt. see 4. e. 6. tit. extinguishment . perk. 115. h. see coke upon lit. see tit. court baron , & mannor . notes for div a29656-e60770 lit. 160. n. b. 143. 13. h. 7. 24. by townes . 10. h. 7. 8. vavi . sor accord . 2. m. 1. com 110. n. b. 144. & 48. e. 3. 9. by finch . contra . see time h 8. tit. formedon . see 32. h. 8. tit. patents . see 22. e 4. 38. by hussey . m. 26. h 8. accord in essex , & fitzh . in the dutchy chamber . lit. 16. 4. el. com . 233. westm. 2. cap. 1. rast. tail 1. see coke upon lit. & the 3. rep. see cook upon lit. and his rep. see 4 m. 1. contra . after . cooke upon lit. & cluns case in his rep 4. m. 1. com ●72 . 36 h. 8. before cont . 6 h 7. 3 see cooks 10 booke , cluns case perk. 129 d. westm. 3. ca. 2. rast. tenure 4. fitz. 235. a. 22 ▪ e. 4. 36. by catesby . see tit. livery . 11 h. 7. 18 by rede . westm. 2. ca. 2. rast tenure 4 see 33 h. 8 tit. mannor . 22 e. 3. 16 b. devise . 33. see 4 e. 6. tit. estates . see 24 h. 8. tit. conditions . see cook upon lit. 5 m. 1. com. 185 see cook upon lit. 32 h. 8. ca. 1. rast. wills 2. see h. 10. el. 32 h. 8. ca. 1 rast. wills 2. see tit. pleadings . 3 h. 7. 3. by keble stp. 63. 21 e. 4. 2. by noting stp. 62. see cook upon lit. 35 h 6. 61 laicon accord . 2 e. 6. ca. 8. see tit. age. 4 h. 6. 13. see 4 e. 6. after . see tit. prerogative . see 38. h. 8. before : and time e. 6. after . casus cooks and green. see 4 e. 6. before . see st. 3. b. see 33 h. 8 tit. triall . see 2 m 1 after ; and so 't was adjudged , m. 4. m. 1. st. 38. b. see st. fo . 1. e. fo . 2. h. and fo . 6. a. 1 e. 6. 12. rast. treason 18. see 6 e. 6. before . 34 h. 6. 28. 12 h. 8. 2. by brook. 10 e. 4 6. by lit. st. 152. a. see tit. corone , and treason . 12 h 7 ▪ 18 fineux accord . d. s. 14 , 15 6 and 7 e. 6. com. 82 d. s. 20. see 2 m. 1. com. 117. & 27 h 8 tit. enquest . notes for div a29656-e63880 4 e. 3. 23 by finc● contra in a formedon . 16. e. 3. fitz. verdict . 21. 3. m. 1. com. 92. 93 see cokes rep. d. s. 92. 7. el. com . 292 see coke upon lit. 3 el. com 235. see 29 h 8. before notes for div a29656-e64370 ● . 186. a 46. e. 3. 31. b. waste 48 n. b. 38. lit. accord . 10. e. 4. 1 see 4. e. 6. after . see coke upon lit see time h. 8. before . & 13. h. 7. 21. by brian . 48. e. 3. 25 finch accord . 10 h. 7. 215. see coke upon lit 30. h. 6. 5. see dier . prot. accord . 21. h. 6. 49. 34. h. 6. 8. by prisot cont . the art of rhetoric, with a discourse of the laws of england by thomas hobbes of malmesbury. art of rhetoric hobbes, thomas, 1588-1679. 1681 approx. 486 kb of xml-encoded text transcribed from 191 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2005-03 (eebo-tcp phase 1). a43971 wing h2212 estc r7393 12144591 ocm 12144591 54911 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a43971) transcribed from: (early english books online ; image set 54911) images scanned from microfilm: (early english books, 1641-1700 ; 106:10) the art of rhetoric, with a discourse of the laws of england by thomas hobbes of malmesbury. art of rhetoric hobbes, thomas, 1588-1679. [6], 168, 208 p. printed for william crooke ..., london : 1681. "a dialogue between a phylosopher and a student, of the common-laws of england" has separate collation. "the art of rhetorick plainly set forth, with pertinent examples" (p. [135]-168) has special t.p. reproduction of original in british library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng rhetoric -early works to 1800. oratory -early works to 1800. law -great britain -history. 2004-09 tcp assigned for keying and markup 2004-09 aptara keyed and coded from proquest page images 2004-10 judith siefring sampled and proofread 2004-10 judith siefring text and markup reviewed and edited 2005-01 pfs batch review (qc) and xml conversion the art of rhetoric , with a discourse of the laws of england . by thomas hobbes of malmesbury . dent vmbrae tenuem divi & sine pondere terram , spirantesque crocos & in urnâ perpetuum ver . london , printed for william crooke at the green dragon without temple-bar , 1681. to the reader . altho these pieces may appear fully to express their own real intrinsic value , as bearing the image and inscription of that great man mr. hobbes ; yet since common usage has rendred a preface to a book as necessary as a porch to a church , and that in all things some ceremonies cannot be avoided , mode and custom in this point is dutifully to be obeyed . that they are genuine , credible testimony might be produced ; did not the peculiar fineness of thought and expression , and a constant undaunted resolution of maintaining his own opinions sufficiently ascertain their author . besides which , they are now publish'd from his own true copies , an advantage which some of his works have wanted . the first of them , being an abridgement containing the most useful part of aristotle's rhetoric , was written some thirty years since . mr. hobbes in his book of humane nature had already describ'd man , with an exactness almost equal to the original draught of nature ; and in his elements of law , laid down the constitution of government , and shewn by what arm'd reason it is maintain'd . and having demonstrated in the state of nature , the primitive art of fighting to be the only medium whereby men procur'd their ends ; did in this design to shew what power in societies has succeeded to reign in its stead . i mean the art of speaking , which by use of common places of probability , and knowledge in the manners and passions of mankind , throu the working of belief is able to bring about whatsoever interest . how necessary this art is to that of politic , is clearly evident from that mighty force , whereby the eloquence of the ancient orators captivated the minds of the people . mr. hobbes chose to recommend by his translation the rhetoric of aristotle , as being the most accomplish'd work on that subject , which the world has yet seen , having been admir'd in all ages , and in particular highly approv'd by the father of the roman eloquence , a very competent judge . to this he thought fit to add some small matter relating to that part which concern's tropes and figures ; as also a short discovery of some little tricks of false and deceitful reasoning . the other piece is a discourse concerning the laws of england , and has been finish'd many years . herein he has endeavour'd to accommodate the general notions of his politic to the particular constitution of the english monarchy . a design of no small difficulty , wherein to have succeeded , deserves much honour ; to have perchance miscarryed , deserves easie pardon . it has had the good fortune to be much esteem'd by the greatest men of the profession of the law , and therefore may be presumed to contain somewhat excellent . however 't is not to be expected , that al men should submit to his opinions , yet 't is hoped none will be offended at the present publishing these papers , since they will not find here any new fantastic notions , but only such things as have been already asserted with strength of argument by himself , and other persons of eminent learning . to the public at least this benefit may accrue , that some able pen may undertake the controversie , being moved with the desire of that reputation , which will necessarily attend victory over so considerable an adversary . the whole art of rhetorick . book i. chap. i. that rhetorick is an art consisting not only in moving the passions of the judge ; but chiefly in proofs . and that this art is profitable . we see that all men naturally are able in some sort to accuse and excuse : some by chance ; but some by method . this method may be discovered : and to discover method is all one with teaching an art. if this art consisted in criminations only , and the skill to stir up the judges to anger , envy , fear , pity , or other affections ; a rhetorician in well ordered common-wealths and states , where it is forbidden to digress from the cause in hearing , could have nothing at all to say . for all these perversions of the judge are beside the question . and that which the pleader is to shew , and the judge to give sentence on , is this only : 't is so : or not so . the rest hath been decided already by the law-maker ; who judging of universals , and future things , could not be corrupted . besides , 't is an absurd thing , for a man to make crooked the ruler he means to use . it consisteth therefore chiefly in proofs ; which are inferences : and all inferences being syllogismes , a logician , if he would observe the difference between a plain syllogisme , and an enthymeme , ( which is a rhetoricall syllogisme , ) would make the best rhetorician . for all syllogismes and inferences belong properly to logick ; whether they infer truth or probability : and because without this art it would often come to pass , that evil men by the advantage of natural abilities , would carry an evil cause against a good ; it brings with it at least this profit , that making the pleaders even in skill , it leaves the odds only in the merit of the cause . besides , ordinarily those that are judges , are neither patient , nor capable of long scientifical proofs , drawn from the principles through many syllogisms ; and therefore had need to be instructed by the rhetoricall , and shorter way . lastly , it were ridiculous , to be ashamed of being vanquished in exercises of the body , and not to be ashamed of being inferior in the vertue of well expressing the mind . chap. ii. the definition of rhetorick . rhetorick , is that faculty , by which we understand what will serve our turn , concerning any subject to win belief in the hearer . of those things that beget belief ; some require not the help of art ; as witnesses , evidences , and the like , which we invent not , but make use of ; and some require art , and are invented by us . the belief that proceeds from our invention , comes partly from the behaviour of the speaker ; partly from the passions of the hearer : but especially from the proofs of what we alledge . proofs are , in rhetorick , either examples , or enthymemes , as in logick , inductions , or syllogisms . for an example is a short induction , and an enthymeme a short syllogisme ; out of which are left as superfluous , that which is supposed to be necessarily understood by the hearer ; to avoid prolixity , and not to consume the time of publick business needlesly . chap. iii. of the several kinds of orations : and of the principles of rhetorick . in all orations , the hearer does either hear only ; or judge also . if he hear only , that 's one kind of oration , and is called demonstrative . if he judg , he must judg either of that which is to come ; or of that which is past . if of that which is to come , ther 's another kind of oration , and is called deliberative . if of that which is past ; then 't is a third kind of oration , called judicial . so there are three kinds of orations ; demonstrative , judicial , deliberative . to which belong their proper times . to the demonstrative , the present ; to the judicial , the past ; and to the deliberative , the time to come . and their proper offices . to the deliberative , exhortation and dehortation . to the judicial , accusation and defence . and to the demonstrative , praising and dispraising . and their proper ends . to the deliberative , to prove a thing profitable , or vnprofitable . to the judicial , just , or vnjust . to the demonstrative , honourable , or dishonourable . the principles of rhetorick out of which enthymemes are to be drawn ; are the common opinions that men have concerning profitable , and vnprofitable ; just , and vnjust ; honourable , and dishonourable ; which are the points in the several kinds of orations questionable . for as in logick , where certain and infallible knowledg is the scope of our proof , the principles must be all infallible truths : so in rhetorick the principles must be common opinions , such as the judg is already possessed with : because the end of rhetorick is victory ; which consists in having gotten belief . and because nothing is profitable , vnprofitable , just , vnjust , honourable or dishonourable , but what has been done , or is to be done ; and nothing is to be done , that is not possible : and because there be degrees of profitable , vnprofitable , just , vnjust , honourable , and dishonourable ; an orator must be ready in other principles ; namely , of what is done and not done ; possible and not possible , to come and not to come , and what is greater , and what is lesser , both in general , and particularly applyed to the thing in question ; as what is more and less , generally ; and what is more profitable , and less profitable , &c. particularly . chap. iv. of the subject of deliberatives ; and the abilities that are required of him that will deliberate of business of state. in deliberatives there are to be considered the subject , wherein ; and the ends whereto the orator exhorteth , or from which he dehorteth . the subject is always something in our own power , the knowledg whereof belongs not to rhetorick , but for the most part to the politicks ; and may be referred in a manner to these five heads . 1. of levying of money . to which point he that will speak as he ought to do , ought to know before hand the revenue of the state , how much it is , and wherein it consisteth : and also how great are the necessary charges and expences of the same . this knowledge is gotten partly by a mans own experience , partly by relations , and accounts in writing . 2. of peace and war. concerning which the counsellor or deliberator , ought to know the strength of the commonwealth ; how much it both now is , and hereafter may be ; and wherein that power consisteth . which knowledge is gotten , partly by experience , and relations at home ; and partly by the sight of wars , and of their events abroad . 3. of the safeguard of the country . wherein he only is able to give counsell , that knows the forms , and number , and places of the garrisons . 4. of provision . wherein to speak well , it is necessary for a man to know what is sufficient to maintain the state ; what commodities they have at home growing ; what they must fetch in through need ; and what they may carry out through abundance . 5. of making laws . to which is necessary so much political , or civil philosophy , as to know what are the several kinds of governments ; and by what means , either from without or from within , each of those kinds is , preserved , or destroyed . and this knowledg is gotten , partly by observing the several governments in times past , by history ; and partly by observing the government of the times present in several nations , by travel . so that to him that will speak in a councell of state , there is necessary this ; history , sight of wars , travel , knowledge of the revenue , expences , forces , havens , garrisons , wares , and provisions in the state he lives in ; and what is needful for that state , either to export , or import . chap. v. of the ends which the orator in deliberatives , propoundeth , whereby to exhort , or dehort . an orator in exhorting always propoundeth felicity , or some part of felicity to be attained by the actions he exhorteth unto : and in dehortation the contrary . by felicity , is meant commonly , prosperity with vertue , or a continual content of the life with surety . and the parts of it are such things as we call good , in body , mind , or fortune ; such as these that follow . 1. nobility , which to a state or nation is , to have been antient inhabitants ; and to have had most antiently , and in most number , famous generals in the wars , or men famous for such things as fall under emulation . and to a private man , to have been descended lawfully of a family , which hath yielded most antiently , and in most number , men known to the world for vertue , riches , or any thing in general estimation . 2. many and good children . which is also publick and private . publick , when there is much youth in the state endued with vertue , ( namely , of the body , stature , beauty , strength , and dexterity : of the mind , valour , and temperance ) private , when a man hath many such children , both male and female . the vertues commonly respected in women , are of the body , beauty , and stature ; of the mind , temperance , and houswifery , without sordidness . 3. riches . which is , money , cattel , lands , houshold-stuffe ; with the power to dispose of them . 4. glory . which is , the reputation of vertue , or of the possession of such things as all , or most men , or wise men desire . 5. honour . which is the glory of benefiting , or being able to benefit others . to benefit others , is to contribute somewhat , not easily had , to another mans safety , or riches , the parts of honour are , sacrifices , monuments , rewards , dedication of places , precedence , sepulchres , statues , publick pensions , adorations , presents . 6. health . which is the being free from diseases , with strength to use the body . 7. beauty . which is to different ages different . to youth , strength of body , and sweetness of aspect . to full men , strength of body fit for the wars , and countenance sweet , with a mixture of terror . to old men , strength enough for necessary labours , with a countenance not displeasing . 8. strength . which is the ability to move any thing at pleasure of the mover . to move , is to pull , to put off , to lift , to thrust down , to press together . 9. stature . which is then just , when a man in heighth , breadth , and thickness of body doth so exceed the most , as nevertheless it be no hinderance to the quickness of his motion . 10. good old age. which is , that which comes late , and with the least trouble . 11. many and good friends . which is , to have many that will do for his sake that which they think will be for his good . 12. prosperity . which is , to have all , or the most , or the greatest of those goods which we attribute to fortune . 13. vertue . which is then to be defined , when we speak of praise . these are the grounds from whence we exhort . dehortation is from the contraries of these . chap. vi. of the colours or common opinions concerning good and evil. in deliberatives , the principles , or elements from whence we draw our proofs , are common opinions concerning good and evil. and these principles are either absolute , or comparative . and those that are absolute , are either disputable , or indisputable . the indisputable principles are such as these ; good , is that which we love for it self . and that , for which we love somewhat else . and that which all things desire . and that to every man which his reason dictates . and that , which when we have , we are well , or satisfied . and that which satisfies . and the cause or effect of any of these . and that which preserves any of these . and that which keeps off , or destroys the contrary of any of these . also to take the good , and reject the evil , is good. and to take the greater good , rather than the less ; and the lesser evil , rather than the greater . further , all vertues are good. and pleasure . and all things beautiful . and justice , valour , temperance , magnanimity , magnificence ; and other like habits . and health , beauty , strength , &c. and riches . and friends . and honour , and glory . and ability to say or do : also towardliness , will , and the like . and whatsoever art , or science . and life . and whatsoever is just. the disputable principles are such as follow . that is , good , whose contrary is evil . and whose contrary is good for our enemies . and whose contrary our enemies are glad of . and of which there cannot be too much . and upon which much labour and cost hath been bestowed . and that which many desire . and that which is praised . and that which even our enemies and evil men praise . and what good we prefer . and what we do advise . and that which is possible , is good ( to undertake . ) and that which is easie. and that which depends on our own will. and that which is proper for us to do . and what no man else can do . and whatsoever is extraordinary . and what is suitable . and that which wants a little of being at an end . and what we hope to master . and what we are fit for . and what evil men do not . and what we love to do . chap. vii . of the colours , or common opinions concerning good and evil , comparatively . the colours of good comparatively depend partly upon the following definitions of comparatives . 1. more , is so much , and somewhat besides . 2. less , is that , which and somewhat else is so much . 3. greater and more in number are said only comparatively to less , and fewer in number . 4. great and little , many and few , are taken comparatively to the most of the same kind . so that great and many , is that which exceeds ; little and few , is that which is exceeded by the most of the same kind . partly from the precedent definitions of good absolutely . common opinions concerning good. comparatively then are these . greater good is many , than fewer , or one of those many . and greater is the kind , in which the greatest is greater than the greatest of another kind . and greater is that good than another good , whose kind is greater than another's kind . and greater is that from which another good follows ; then the good which follows . and of two which exceed a third , greater is that which exceeds it most . and that which causes the greater good. and that which proceeds from a greater good. and greater is that which is chosen for it self , than that which is chosen from somwhat else . and the end greater than that which is not the end . and that which less needs other things , than that which more . and that which is independent , than that which is dependent of another . and the beginning , than not the beginning . [ seeing the beginning is a greater good , or evil , than that which is not the beginning ; and the end , than that which is not the end ; one may argue from this colour both ways : as leodamas against chabrias , would have the actor more to blame than the advisor ; and against callistratus , the advisor more than the actor . ] and the cause , than not the cause . and that which hath a greater beginning or cause . and the beginning , or cause of a greater good or evil. and that which is scarce , greater than that which is plentiful ; because harder to get . and that which is plentiful , than that which is scarce ; because oftner in use. and that which is easie , than that which is hard. and that whose contrary is greater . and that whose want is greater . and vertue than not vertue , a greater good. vice , than not vice , a greater evil. and greater good , or evil is that , the effects whereof are more honourable or more shameful . and the effects of greater vertues , or vices . and the excess whereof is more tolerable , a greater good. and those things which may with more honour be desir'd . and the desire of better things . and those things whereof the knowledg is better . and the knowledge of better things . and that which wise men prefer . and that which is in better men . and that which better men chuse . and that which is more , than that which is less delightful . and that which is more , than that which is less honourable . and that which we would have for our selves and friends , a greater good ; and the contrary a greater evil. and that which is lasting , than that which is not lasting . and that which is firm , than that which is not firm. and what many desire , than what few . and what the adversary , or judg confesseth to be greater , is greater . and common than not common . and not common than common . and what is more laudable . and that which is more honour'd , a greater good. and that which is more punish'd , a greater evil. and both good and evil divided than undivided , appear greater . and compounded than simple , appear greater . and that which is done with opportunity , age , place , time , means disadvantagious , greater than otherwise . and that which is natural , than that which is attained unto . and the same part of that which is great , than of that which is less . and that which is nearest to the end designed . and that which is good or evil to ones self , than that which is simply so . and possible , than not possible . and that which comes toward the end of our life . and that which we do really , than that which we do for shew . and that which we would be , rather than what we would seem to be . and that which is good for more purposes , is the greater good. and that which serves us in great necessity . and that which is joyned with less trouble . and that which is joyned with more delight . and of the two , that which added to a third , makes the whole the greater . and that which having , we are more sensible of . and in every thing , that which we most esteem . chap. viii . of the several kinds of governments . because hortation and dehortation concern the common-wealth , and are drawn from the elements of good and evil ; as we have spoken of them already in the abstract , so we must speak of them also in the concrete ; that is , of what is good or evil to each sort of common-wealth in special . the government of a common-wealth , is either democracy , or aristocracy , or oligarchy , or monarchy . democracy is that , wherein all men with equal right , are preferred to the highest magistracy by lot. aristocracy is that , wherein the highest magistrate is chosen out of those , that had the best education , according to what the laws prescribe for best . oligarchy is that , where the highest magistrate is chosen for wealth . monarchy is that , wherein one man hath the government of all ; which government , if he limit it by law , is called kingdom ; if by his own will , tyranny . the end of democracy , or the peoples government , is liberty . the end of oligarchy , is the riches of those that govern. the end of aristocracy , is good laws , and good ordering of the city . the end of monarchy , or kings , is the safety of the people , and conservation of his own authority . good therefore , in each sort of government is that which conduceth to these their ends . and because belief is not gotten only by proofs , but also from manners ; the manners of each sort of commonwealth ought to be well understood by him that undertaketh to perswade , or diswade in matter of state. their manners may be known by their designs ; and their designs by their ends ; and their ends by what we see them take pleasure in . but of this more accurately in the politicks . chap. ix . of the colours of honourable and dishonourable . in a demonstrative oration , the subject whereof is praise , or dispraise ; the proofs are to be drawn from the elements of honourable and dishonourable . in this place we anticipate the second way of getting belief ; which is from the manners of the speaker . for praise , whether it come in as the principal business , or upon the by , depends still upon the same principles . which are these . honourable , is that , which we love for it self , and is withal laudable . and that good , which pleaseth us only because 't is good. and vertue . vertue is the faculty of getting and preserving that which is good ; and the faculty of doing many , and great things well . the kinds of it are these ; 1. justice ; which is a vertue whereby every man obtains what by law is his . 2. fortitude ; which is a vertue by which a man carries himself honourably , and according to the laws , in time of danger . 3. temperance ; which is a vertue whereby a man governs himself in matter of pleasure according to the law. 4. liberality ; which is a vertue , by which we benefit others in matter of money . 5. magnanimity ; which is a vertue , by which a man is apt to do great benefits . 6. magnificence ; which is a vertue , by which a man is apt to be at great cost . 7. prudence ; which is an intellectual vertue , by which a man is able to deliberate well concerning any good leading to felicity . and honourable , are the causes and effects of things honourable . and the works of vertue . and the signs of vertue . and those actions , the reward whereof is honor. and the reward whereof is rather honor , than money . and that which we do not for our own sakes . and what we do for our countries good , neglecting our own . and those things are honourable , which good of themselves , are not so to the owner . and those things which happen to the dead , rather than to the living . and what we do for other men , especially for benefactors . and bestowing of benefits . and the contrary of those things we are ashamed of . and those things which men strive for earnestly , but without fear of adversary . and of the more honourable , and better men , the vertues are more honourable . and more honourable are the vertues that tend to other mens benefit , than those which tend to ones own . and honourable are those things which are just. and revenge is honourable . and victory . and honour . and monuments . and those things which happen not ot the living . and things that excell . and what none can do but we . and possessions we reap no profit by . and those things which are had in honour particularly in several places . and the signs of praise . and to have nothing of the servile , mercenary , or mechanick . and that which seems honourable ; namely such as follow . vices confining upon vertue . and the extreams of vertues . and what the auditors think honourable . and that which is in estimation . and that which is done according to custom . besides , in a demonstrative oration , the orator must shew , that he whom he praiseth , did what he praiseth unconstrainedly , and willingly . and he does so , who does the same often . praise , is speech , declaring the magnitude of a vertue , action , or work. but to praise the work from the vertue of the worker , is a circular proof . to magnifie , and to praise , differ in themselves , as felicity and vertue . for praise declares a mans vertue ; and magnifying declares his felicity . praise is a kind of inverted precept . for to say , do it because 't is good , is a precept . but to say , he is good because he did it , is praise . an orator in praising must also use the forms of amplification ; such as these : he was the first that did it . the only man that did it . the special man that did it . he did it with disadvantage of time . he did it with little help . he was the cause , that the law ordained rewards and honours for such actions . further , he that will praise a man , must compare him with others ; and his actions with the actions of others ; especially with such as are renowned . and amplification is more proper to a demonstrative oration , than to any other . for here the actions are confess'd ; and the orators part is only this , to contribute unto them magnitude and luster . chap. x. of accusation and defence , with the definition of injury . in a judicial oration , which consists in accusation and defence , the thing to be proved is , that injury has been done : and the heads from whence the proofs are to be drawn , are these three : 1. the causes that move to injury . 2. the persons apt to do injury . 3. the persons obnoxious , or apt to suffer injury . an injury is a voluntary offending of another man contrary to the law. voluntary is that which a man does with knowledg , and without compulsion . the causes of voluntary actions are intemperance , and a vicious disposition concerning things desirable . as the covetous man does against the law , out of an intemperate desire of money . all actions proceed either from the doers disposition , or not . those that proceed not from the doers disposition are such as he does by chance , by compulsion , or by natural necessity . those that proceed from the doers disposition , are such as he does by custom , or upon premeditation , or in anger , or out of intemperance . by chance are said to be done those things whereof neither the cause , nor the scope is evident ; and which are done neither orderly , nor always , nor most commonly after the same manner . by nature are said to be done those things , the causes whereof are in the doer ; and are done orderly , and always , or for the most part after the same manner . by compulsion are done those things , which are against the appetite , and ordination of the doer . by custome those actions are said to be done , the cause whereof is this , that the door has done them often . vpon premeditation are said to be done those things which are done for profit , as the end , or the way to the end. in anger are said to be done those things which are done with a purpose of revenge . out of intemperance are said to be done those things which are delightful . in sum , every voluntary action tends either to profit or pleasure . the colours of profitable are already set down . the colours of that which is pleasing follow next . chap. xi . of the colours , or common opinions concerning pleasure . pleasure is a sudden and sensible motion of the soul , towards that which is natural . grief is the contrary . pleasant therefore is that , which is the cause of such motion . and to return to ones own nature . and customes . and those things that are not violent . vnpleasant are those things , which proceed from necessity , as cares , study , contentions . the contrary whereof , ease , remission from labour and care : also play , rest , sleep , are pleasant . pleasant also is that , to which we have an appetite . also the appetites themselves , if they be sensual ; as thirst , hunger , and lust. also those things to which we have an appetite upon perswasion and reason . and those things we remember , whether they pleased , or displeased , than when they were present . and the things we hope for . and anger . and to be in love. and revenge . and victory . therefore also contentious games ; as tables , chess , dice , tennis , &c. and hunting . and suits in law. and honour and reputation amongst men in honour and reputation . and to love. and to be belov'd and respected . and to be admir'd . and to be flatter'd . and a flatterer : ( for he seems both to love and admire . ) and the same thing often . and change , or variety . and what we return to afresh . and to learn . and to admire . and to do good. and to receive good. and to help up again one that 's fallen . and to finish that which is unperfect . and imitation . and therefore the art of painting . and the art of carving images . and the art of poetry . and pictures and statues . and other mens dangers , so they be near . and to have escaped hardly . and things of a kind please one another . and every one himself . and ones own pleases him . and to bear sway. and to be thought wise. and to dwell upon that which he is good at . and ridiculous actions , sayings and persons . chap. xii . presumptions of injury drawn from the persons that do it : or common opinions concerning the aptitude of persons to do injury . of the causes which move to injury , namely , profit and pleasure , has been already spoken , chap. 6. 7. 11. it follows next to speak of the persons , that are apt to do injury . the doers of injury are . such as think they can do it . and such as think to be undiscover'd when they have done it . and such as think , though they be discover'd , they shall not be called in question for it . and such as think , though they be called in question for it , that their mulct will be less than their gain , which either themselves or their friends receive by the injury . able to do injury are . such as are eloquent . and such as are practis'd in business . and such as have skill in process . and such as have many friends . and rich men. and such as have rich friends ; or rich servants ; or rich partners . vndiscover'd when they have done it , are such are not apt to commit the crimes whereof they are accused : as feeble men , slaughter : poor , and not beautiful men , adultery . and such as one would think could not chuse but be discover'd . and such as do injuries , whereof there hath been no example . and such as have none , or many enemies . and such as can easily conceal what they do . and such as have some body to transfer the fault upon . they that do injury openly , are such , whose friends have been injured . and such as have the judges for friends . and such as can escape their tryal at law. and such as can put off their tryal . and such as can corrupt the judges . and such as can avoid the payment of their fine . and such as can defer the payment . and such as cannot pay at all . and such as by the injury get manifestly , much , and presently ; when the fine is uncertain , little , and to come . and such as get by the injury , money ; by the penalty , shame only . and such on the contrary , as get honour by the injury , and suffer the mulct of money only , or banishment , or the like . and such as have often escaped , or been undiscovered . and such as have often attempted in vain . and such as consider present pleasure , more than pain to come ; and so intemperate men are apt to do injury . and such as consider pleasure to come , more than present pain ; and so temperate men are apt to do injury . and such as may seem to have done it by fortune , nature , necessity , or custom ; and by error , rather than by injustice . and such as have means to get pardon . and such as want necessaries , as poor men : or unnecessaries , as rich men . and such as are of very good , or very bad reputation . chap. xiii . presumptions of injury drawn from the persons that suffer , and from the matter of the injury . of those that do injury , and why they do it , it hath been already spoken . now of the persons that suffer , and of the matter wherein they suffer , the common opinions are these : persons obnoxious to injury are , such as have the things that we want , either as necessary , or as delightful . and such as are far from us . and such as are at hand . and such as are unwary , and credulous . and such as are lazy . and such as are modest. and such as have swallowed many injuries . and such as we have injured often before . and such as never before . and such as are in our danger . and such as are ill belov'd generally . and such as are envyed . and our friends . and our enemies . and such as , wanting friends , have no great ability either in speech or action . and such as shall be losers by going to law : as strangers , and workmen . and such as have done the injuries they suffer . and such as have committed a crime , or would have done , or are about to do . and such as , by doing them an injury , we shall gratifie our friends or superiours . and such , whose friendship we have newly left , and accuse . and such as another would do the injury to , if we should not . and such as by injuring , we get greater means of doing good . the matters wherein men are obnoxious to injury are , those things wherein all , or most men use to deal unjustly . and those things which are easily hid , and put off into other hands , or altered . and those things which a man is ashamed to have suffered . and those things wherein prosecution of injury , may be thought a love of contention . chap. xiv . of those things which are necessary to be known for the definition of just and unjust . when the fact is evident , the next inquiry is , whether it be just , or vnjust . for the definition of just and vnjust , we must know what law is ; that is , what the law of nature , what the law of nations ; what the law civil , what written law , and what unwritten law is : and what persons , that is , what a publick person , or the city is ; and what a private person , or citizen is . vnjust in the opinion of all men , is that which is contrary to the law of nature . vnjust in the opinion of all men of those nations which traffick and come together , is that which is contrary to the law common to those nations . vnjust only in one common-wealth , is that which is contrary to the law civil , or law of that common-wealth . he that is accused to have done any thing against the publick , or a private person , is accused to do it either ignorantly , or unwillingly , or in anger , or upon premeditation . and because the defendant does many times confess the fact , but deny the unjustice ; as that he took , but did not steal ; and did , but not adultery ; it is necessary to know the definitions of theft , adultery , and all other crimes . what facts are contrary to the written laws , may be known by the laws themselves . besides written laws , whatsoever is just , proceeds from equity , or goodness . from goodness proceeds that which we are praised , or honoured for . from equity proceed those actions , which though the written law command not , yet being interpreted reasonably , and supplyed , seems to require at our hands . actions of equity are such as these . not too rigorously to punish errors , mischances , or injuries . to pardon the faults that adhere to mankind . and not to consider the law so much , as the law-makers mind ; and not the words so much , as the meaning of the law. and not to regard so much the fact , as the intention of the doer ; nor part of the fact , but the whole ; nor what the doer is , but what he has been always , or for the most part . and to remember better the good received , than the ill. and to endure injuries patiently . and to submit rather to the sentence of a judge , than of the sword. and to the sentence of an arbitrator , rather than of a judge . chap. xv. of the colours or common opinions concerning injuries , comparatively . common opinions concerning injuries comparatively , are such as these : greater is the injury which proceed from greater iniquity . and from which proceedeth greater dammage . and of which there is no revenge . and for which there is no remedy . and by occasion of which , he that hath received the injury , hath done some mischief to himself . he does the greater injury , that does it first , or alone , or with few : and he that does it often . greater injury is that , against which laws and penalties were first made . and that which is more brutal , or more approaching to the actions of beasts . and that which is done upon more premeditation . and by which more laws are broken . and which is done in the place of execution . and which is of greatest shame to him that receives the injury . and which is committed against well deservers . and which is committed against the unwritten law ; because good men should observe the law for justice , and not for fear of punishment . and which is committed against the written law ; because he that will do injury neglecting the penalty set down in the written law , is much more likely to transgress the unwritten law , where there is no penalty at all . chap. xvi . of proofs inartificial . of artificial proofs we have already spoken . inartificial proofs , which we invent not , but make use of , are of five sorts . 1. laws . and those are civil , or written law : the law or custom of nations : and the universal law of nature . 2. witness . and those are such as concern matter ; and such as concern manners . also , they be ancient , or present . 3. evidences , or writings . 4. question , or torture . 5. oaths . and those be either given , or taken , or both , or neither . for laws , we use them thus . when the written law makes against us , we appeal to the law of nature , alledging , that to be greatest justice , which is greatest equity . that the law of nature is immutable ; the written law mutable . that the written law is but seeming justice ; the law of nature very justice . and justice is among those things which are , and not which seem to be . that the judge ought to discern between true and adulterate justice . that they are better men that obey unwritten , than written laws . that the law against us does contradict some other law. and when the law has a double interpretation , that is , the true one , which makes for us . and that the cause of the law being abolished , the law is no more of validity . but when the written law makes for us , and equity for the adversary , we must alledge , that a man may use equity , not as a liberty to judg against the law ; but only as a security against being forsworn , when he knows not the law. that men seek not equity because 't is good simply , but because good for them . that it is the same thing not to make , and not to use the law. that as in other arts , and namely in physick , fallacies are pernitious ; so in a common-wealth 't is pernitious to use pretexts against the law. and that in common-wealths well instituted , to seem wiser than the laws , is prohibited . for witnesses , we must use them thus : when we have them not , we must stand for presumptions , and say , that in equity sentence ought to be given according to the most probability . that presumptions are the testimony of the things themselves , and cannot be bribed . that they cannot lye . when we have witnesses , against him that has them not , we must say , that presumptions , if they be false , cannot be punished . that if presumptions were enough , witnesses were superfluous . for writings , when they favour us ; we must say , that writings are private and particular laws ; and he that takes away the use of evidences , abolisheth the law. that since contracts and negotiations pass by writings , he that bars their use , dissolves humane society . against them , if they favour the adversary , we may say , that since laws do not bind , that are fraudulently made to pass , much less writings . and that the judge being to dispense justice , ought rather to consider what is just , than what is in the writing . that writings may be gotten by fraud or force ; but justice by neither . that the writing is repugnant to some law , civil , or natural ; or to justice ; or to honesty . that 't is repugnant to some other writing before , or after . that it crosses some commodity of the judge ( which must not be said directly , but implyed cunningly . ) for the torture , if the giving of it make for us , we must say , that 't is the only testimony that is certain . but if it make for the adversary , we may say . that men inforced by torture , speak as well that which is false , as that which is true . that they who can endure , conceal the truth ; and they who cannot , say that which is false to be delivered from pain . for oaths ; he that will not put his adversary to his oath , may alledge , that he makes no scruple to be forsworn . that by swearing , he will carry the cause ; which not swearing , he must lose . that he had rather trust his cause in the hand of the judge , than of the adversary . he that refuseth to take the oath , may say , that the matter is not worth so much . that if he had been an evil man , he had sworn , and carryed his cause . that to try it by swearing for a religious man against an irreligious , is as hard a match , as to set a weak man against a strong in combate . he that is willing to take the oath , may pretend . that he had rather trust himself , than his adversary ; and that 't is equal dealing for an irreligious man to give , and for a religious man to take the oath . that 't is his duty to take the oath , since he has required to have sworn judges . he that offers the oath may pretend , that he does piously commit his cause to the gods. that he makes his adversary himself judge . that 't were absurd for him not to swear , that has required the judges to be sworn . and of these are to be compounded the forms we are to use , when we would give , and not take the oath ; or take , and not give ; or both give and take ; or neither give nor take . but if one have sworn contrary to a former oath , he may pretend ; that he was forced . that he was deceived , and that neither of these is perjury , since perjury is voluntary . but if the adversary do so , he may say ; that he that stands not to what he hath sworn , subverteth humane society . and ( turning to the judge ) what reason have we to require , that you should be sworn , that judge our cause ; when we will not stand to that we swear our selves . and so much for proofs inartificial . book . ii. chap. i. the introduction . of belief proceeding from our invention , that part which consisteth in proof , is already spoken of . the other two parts follow ; whereof one ariseth from the manners of the speaker ; the other from the passions of the hearer . the principles , colours , or common opinions upon which a mans belief is gronnded concerning the manners of him that speaks , are to be had partly out of that which hath been said before concerning vertue , book . 1. chap. 9. partly out of those things which shall be said by and by , concerning the passions . for a man is believed either for his prudence , or for his probity , which are vertues ; or for good will : of which among the passions . the principles concerning belief , arising from the passion of the hearer , are to be gather'd from that which shall now be said of the several passions in order . in every one of which three things are to be considered . 1. first , how men are affected . 2. secondly , towards whom . 3. thirdly , for what . chap. ii. of anger . anger is desire of revenge , joyned with grief for that he , or some of his , is , or seems to be neglected . the object of anger is always some particular , or individual thing . in anger there is also pleasure proceeding from the imagination of revenge to come . to neglect , is to esteem little or nothing : and of three kinds . 1. contempt . 2. crossing . 3. contumely . contempt , is when a man thinks another of little worth in comparison to himself . crossing is the hinderance of another mans will without design to profit himself . contumely , is the disgracing of another for his own pastime . the common opinions concerning anger are therefore such as follow . they are easily angry that think they are neglected . that think they excell others ; as the rich with the poor ; the noble with the obscure , &c. and such as think they deserve well . and such as grieve to be hindered , opposed , or not assisted . and therefore sick men , poor men , lovers , and generally all that desire , and attain not , are angry with those that standing by , are not moved with their wants . and such as having expected good , find evil . those that men are angry with , are , such as mock , deride , or jest at them . and such as shew any kind of contumely , towards them . and such as despise those things which we spend most labour and study upon : and the more , by how much we seem the less advanced therein . and our friends , rather than those that are not our friends . and such as have honoured us , if they continue not . and such as requite not our courtesie . and such as follow contrary courses , i● they be our inferiors . and our friends , if they have said , or done us evil , or not good . and such as give not eare to our intreaty . and such as are joyful , or calm in our distress . and such as troubling us , are not themselves troubled . and such as willingly hear or see our disgraces . and such as neglect us in the presence of our competitors ; of those we admire of those we would have admire us ; of those we reverence , and of those that reverence us . and such as should help us , and neglect it . and such as are in jest , when we are in earnest . and such as forget us , or our names . an orator therefore must so frame his judg or auditor by his oration ; as to make him apt to anger : and then make his adversary appear such as men use to be angry withal . chap. iii. of reconciling , or pacifying anger . reconciliation is the appeasing of anger . those to whom men are easily reconciled , are , such as have not offended out of neglect . and such as have done it against their will. and such as wish done the contrary of what they have done . and such as have done as much to themselves . and such as confess and repent . and such as are humbled . and such as do seriously the same things , that they do seriously . and such as have done them more good heretofore , than now hurt . and such as sue to them for any thing . and such as are not insolent , nor mockers , nor slighters of others in their own disposition . and generally such as are of a contrary disposition to those , whom men are usually angry withal . and such as they fear or reverence . and such as reverence them . and such as have offended their anger . reconcilable are , such as are contrarily affected to those whom we have said before to be easily angry . and such as play , laugh , make merry , prosper , live in plenty ; and in sum , all that have no cause of grief . and such as have given their anger time . men lay down their anger for these causes . because they have gotten the victory . because the offender has suffered more than they meant to inflict . because they have been revenged of another . because they think they suffer justly . and because they think the revenge will not be felt , or not known that the revenge was theirs , and for such an injury . and because the offender is dead . whosoever therefore would asswage the anger of his auditor , must make himself appear such , as men use to be reconciled unto : and beget in his auditor such opinions , as make him reconcileable . chap. iv. of love and friends . to love , is to will well to another , and that for others , not for our own sake . a friend is he that loves , and he that is beloved . friends one to another , are they that naturally love one another . a friend therefore is he , that rejoyceth at anothers good. and that grieves at his hurt . and that wishes the same with us to a third , whether good , or hurt . and that is enemy or friend to the same man. we love them , that have done good to us , or ours ; especially if much , readily , or in season . that are our friends friends . that are our enemies enemies . that are liberal . that are valiant . that are just. and that we would have love us . and good companions . and such as can abide jests . and such as break jests . and such as praise us , especially for somewhat that we doubt of in our selves . and such as are neat . and such as upbraid us not with our vices , or with their own benefits . and such as quickly forget injuries . and such as least observe our errors . and such as are not of ill tongue . and those that are ignorant of our vices . and such as cross us not when we are busie , or angry . and such as are officious towards us . and those that are like us . and such as follow the same course or trade of life , where they impeach not one another . and such as labour for the same thing , when both may be satisfied . and such as are not ashamed to tell us freely their faults , so it be not in contempt of us , and the faults such , as the world , rather than their own consciences condemns . and such as are ashamed to tell us of their very faults . and such as we would have honour us , and not envie , but imitate us . and such as we would do good to , except with greater hurt to our selves . and such as continue their friendship to the dead . and such as speak their mind . and such as are not terrible . and such as we may rely on . the several kinds of friendship , are society , familiarity , consanguinity , affinity , &c. the things that beget love , are , the bestowing of benefits . gratis . vnasked . privately . chap. v. of enmity and hatred . the colours , or common opinions concerning hatred are to be taken from the contrary of those , which concern love and friendship . hatred differs from anger in this , that anger regards only what is done to ones self ; but hatred not . and in this , that anger regards particulars only ; the other universals also . and in this , that anger is curable , hatred not . and in this , that anger seeks the vexation , hatred the dammage of ones adversary . that with anger there is always joyned grief ; with hatred not always . that anger may at length be satiated , but hatred never . hence it appears how the judge or auditor may be made friend or enemy to us ; and how our adversary may be made appear friend or enemy to the judge ; and how we may answer to our adversary , that would make us appear enemies to him . chap. vi. of fear . fear is a trouble , or vexation of the mind , arising from the apprehension of an evil at hand , which may hurt or destroy . danger is the nearness of the evil feared . the things to be feared , are , such as have power to hurt . and the signs of will to do us hurt , as anger and hatred of powerful men . and injustice joyned with power . and valour provoked , joyned with power . and the fear of powerful men . the men that are to be feared , are , such as know our faults . and such as can do us injury . and such as think they are injured by us . and such as have done us injury . and our competitors in such things as cannot satisfie both . and such as are feared by more powerful men than we are . and such as have destroyed greater men than we are . and such as use to invade their inferiours . and men not passionate , but dissemblers , and crafty , are more to be feared than those that are hasty and free . the things especially to be feared , are , such , wherein if we err , the error cannot be repaired ; at least , not according to ours , but our adversaries pleasure . and such as admit either none , or not easie help . and such as being done , or about to be done to others , make us pitty them . they that fear not , are , such as expect not evil ; or not now ; or not this ; or not from these . and therefore men fear little in prosperity . and men fear little that think they have suffered already . an orator therefore that wouldput fear into the auditor , must let him see that he is obnoxious ; and that greater than he do suffer , and have suffer'd from those , and at those times they least thought . chap. vii . of assurance . assurance is hope , arising from an imagination that the help is near , or the evil afar off . the things therefore that beget assurance are , the remoteness of those things that are to be feared , and the nearness of their contraries . and the facility of great , or many helps or remedies . and neither to have done ; nor received injury . and to have no competitors or not great ones , or if great ones , at least friends ; such as we have obliged , or are obliged to . and that the danger is extended to more , or greater than us . assured , or confident , are , they that have oft escaped danger . and they to whom most things have succeeded well . and they that see their equals , or inferiours not afraid . and they that have wherewith to make themselves feared , as wealth , strength , &c. and such as have done others no wrong . and such as think themselves in good terms with god almighty . and such as think they will speed well , that are gone before . chap. viii . of shame . shame is a perturbation of the mind arising from the apprehension of evil , past , present , or to come , to the prejudice of a mans own , or his friends reputation . the things therefore which men are ashamed of are those actions which proceed from vice , as , to throw away ones arms ; to run away , signs of cowardliness . to deny that which is committed to ones trust , a sign of injustice . to have lyen with whom , where , and when we ought not , signs of intemperance . to make gain of small and base things ; not to help with money whom and how much we ought ; to receive help from meaner men ; to ask money at use from such as one thinks will borrow of him ; to borrow of him that expects payment of somewhat before lent ; and to redemand what one has lent , of him that one thinks will borrow more ; and so to praise , as one may be thought to ask ; signs of wretchedness . to praise one to his face ; to praise his vertues too much , and colour his vices ; signs of flattery . to be unable to indure such labours as men indure that are elder , tenderer , greater in quality , and of less strength than he , signs of effeminacy . to be beholden often to another ; and to upbraid those that are beholding to him , signs of pusillanimity . to speak and promise much of ones self more than his due , signs of arrogance . to want those things which ones equals , all , or most of them have attained to , is also a thing to be ashamed of . and to suffer things ignominious , as to serve about anothers person ; or to be imployed in his base actions . in actions of intemperance , whether willingly , or unwillingly committed ; there is shame in actions of force , only when they are done unwillingly . the men before whom we are ashamed , are such as we respect ; namely , those that admire us . and those whom we desire should admire us . and those whom we admire . those that contend with us for honour . those whose opinion we contemn not . and therefore men are most ashamed in the presence . of old and well bred men . of those we are always to live with . of those that are not guilty of the same fault . of those that do not easily pardon . and of those that are apt to reveal our faults ; such as are men injured , backbiters , scoffers , comick poets . and of those before whom we have had always good success . and of those who never asked any thing of us before . and of such as desire our friendship . and of our familiars , that know none of our crimes . and of such as will reveal our faults to any of those that are named before . but in the presence of such whose judgment most men despise , men are not ashamed . therefore we are ashamed also in the presence of those whom we reverence . and of those who are concerned in our own , or ancestors , or kinsfolks actions or misfortunes , if they be shameful . and of their rivals . and of those that are to live with them that know their disgrace . the common opinions concerning impudence are taken from the contrary of these . chap. ix . of grace , or favour . grace is that vertue , by which a man is said to do a good turn , or do service to a man in need ; not for his own but for his cause to whom he does it . great grace is when the need is great ; or when they are hard , or difficult things that are conferr'd , or when the time is seasonable , or when he that conferr's the favour is the only , or first man that did it . need , is a desire joyned with grief for the absence of the thing desired . grace therefore it is not , if it be not done to one that needs . whosoever therefore would prove that he has done a grace , or favour , must shew that he needeth it to whom it was done . grace it is not , which is done by chance . nor which is done by necessity . nor which has been requited . nor that which is done to ones enemy . nor that which is a trifle . nor that which is nought , if the giver know the fault . and in this manner a man may go over the praedicaments , and examine a benefit , whether it be a grace for being this , or for being so much , or for being such , or for being now , &c. chap. x. of pity , or compassion . pity is a perturbation of the mind , arising from the apprehension of hurt o● trouble to another that doth not deserve it , and which he thinks may happen to himself , or his . and because it appertains to pity , it think that he , or his may fall into the misery he pities in others , it follows that they be most compassionate , who have passed through misery . and old men. and weak men. and timorous men. and learned men. and such as have parents , wife , and children . and such as think there be honest men. and that they are iess compassionate . who are in great despair . who are in great prosperity . and they that are angry ; for they consider not . and they that are very confident ; for they also consider not . and they that are in the act of contumely ; for neither do these consider . and they that are astonished with fear . and they that think no man honest . the things to be pitied are , such as grieve , and withal hurt . such as destroy . and calamities of fortune , if they be great : as none or few friends , deformity , weakness , lameness , &c. and evil that arrives where good is expected . and after extream evil , a little good. and through a mans life to have no good offer it self ; or being offer'd , not to have been able to enjoy it . men to be pitied are , such as are known to us , unless they be so near to us , as their hurt be our own . and such as be of our own years . such as are like us in manners . such as are of the same , or like stock . and our equals in dignity . those that have lately suffer'd , or are shortly to suffer injury : and those that have the marks of injury past . and those that have the words or actions of them that be in present misery . chap. xi . of indignation . opposite in a manner to pity in good men , is indignation , which is grief for the prosperity of a man unworthy . with indignation there is always joyned a joy for the prosperity of a man worthy , as pity is always with contentment in the adversity of them that deserve it . in wicked men the opposite of pity is , envy ; as also the companion thereof , delight in the harm of others , which the greeks in one word have called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but of these in the next chapter . men conceive indignation against others , not for their vertues , as justice , &c. for these make men worthy ; and in indignation we think men unworthy . but for those goods which men indued with vertue , and noble men , and handsome men are worthy of . and for newly gotten power and riches , rather than for antient , and especially if by these he has gotten other goods , as by riches , command . the reason why we conceive greater indignation against new than antient riches , is , that the former seem to possess that which is none of theirs . but the antient seem to have but their own . for with common people , to have been so long , is to be so by right . and for the bestowing of goods incongruously : as when the arms of the most valiant achilles were bestowed on the most eloquent vlysses . and for the comparison of the inferiour in the same thing , as when one valiant is compared with a more valiant ; or whether absolutely superiour , as when a good scholer is compared with a good man. apt to indignation are , they that think themselves worthy of the greatest goods , and do possess them . and they that are good . and they that are ambitious . and such as think themselves deserve better what another possesseth , than he that hath it . least apt to indignation are , such as are of a poor , servile , and not ambitious nature . who they are , that rejoyce , or grieve not at the adversity of him that suffers worthily , and in what occasions , may be gathered from the contrary of what has been already said . whosoever therefore would turn away the compassion of the judge , he must make him apt to indignation ; and shew that his adversary is unworthy of the good , and worthy of the evil which happens to him . chap. xii . of envy . envy is grief , for the prosperity of such as our selves , arising not from any hurt that we , but from the good that they receive . such as our selves , i call those that are equal to us in blood , in age , in abilities , in glory , or in means . they are apt to envy , that are within a little of the highest . and those that are extraordinarily honoured for some quality that is singular in them , especially wisdom or good fortune . and such as would be thought wise . and such as catch at glory in every action . and men of poor spirits : for every thing appears great to them . the things which men envy in others are , such as bring glory . and goods of fortune . and such things as we desire for our selves . and things in the possession whereof we exceed others , or they us a little . obnoxious to envy are , men of our own time , of our own countrey , of our own age , and competitors of our glory . and therefore , those whom we strive with for honour . and those that covet the same things that we do . and those that get quickly , what we hardly obtain , or not at all . and those that attain unto , or do the things that turn to our reproach , not being done by us . and those that possess what we have possessed heretofore . so old and decayed men envy the young and lusty . and those that have bestowed little , are subject to be envyed by such as have bestowed much upon the same thing . from the contraries of these may be derived the principles concerning joy for other mens hurt . he therefore that would not have his enemy prevail , when he craves pity , or other favour ; must dispose the judge to envy ; and make his adversary appear such , as are above described , to be subject to the envy of others . chap. xiii . of emulation . emulation is grief arising from that our equals possess such goods as are had in honour , and whereof we are capable , but have them not ; not because they have them , but because not we also . no man therefore emulates another in things whereof himself is not capable . apt to emulate are , such as esteem themselves worthy of more than they have . and young and magnanimous men. and such as already possess the goods for which men are honoured : for they measure their worth by their having . and those that are esteemed worthy by others . and those whose ancestors , kindred , familiars , nation , city , have been eminent for some good , do emulate others for that good . objects of emulation are , for things ; vertues . and things whereby we may profit others . and things whereby we may please others . for persons , they that possess such things . and such as many desire to be friends or acquainted with , or like unto . and they whose praises flie abroad , the contrary of emulation is contempt . and they that emulate such as have the goods aforementioned , contemn such as have them not : and thence it is , that men who live happily enough , unless they have the goods which men honour , are nevertheless contemned . chap. xiv . of the manners of youth . of passions we have already spoken . we are next to speak of manners . manners are distinguished by passions ; habits , ages , and fortunes . what kind of manners proceed from passions , and from vertues and vices ( which are habits , ) hath been already shewed . there remains to be spoken of the manners , that are peculiar to several ages and fortunes . the ages are youth , middle-age , old age. and first of youth . young men are , violent in their desires . prompt to execute their desires . incontinent . inconstant , easily forsaking what they desired before . longing mightily , and soon satisfied . apt to anger , and in their anger violent : and ready to execute their anger with their hands . lovers of honour , and of victory more than money , as having not been yet in want. well natured , as having not been acquainted with much malice . full of hope , both because they have not yet been often frustrated , and because they have by natural heat that disposition that other ages have by wine ; youth being a kind of natural drunkenness . besides , hope is of the time to come , whereof youth hath much , but of the time past little . credulous , because not yet often deceived . easily deceived , because full of hope . valiant , because apt to anger and full of hope ; whereof this begets confidence , the other keeps off fear . bashful , because they estimate the honour of actions by the precepts of the law. magnanimous , because not yet dejected by the misfortunes of humane life . and lovers of honour more than of profit , because they live more by custom than by reason ; and by reason we acquire profit , but vertue by custom . lovers of their friends and companions . apt to err in the excese , rather than the defect , contrary to that precept of chilon , ne quid nimis ; for they overdo every thing : they love too much , and hate too much , because thinking themselves wise , they are obstinate in the opinion they have once delivered . doers of injury rather for contumely than for dammage . mercifull , because measuring others by their own innocence , they think them better than they be , and therefore less to merit what they suffer ; which is a cause of pity . and lovers of mirth , and by consequence such as love to jest at others . jesting is witty contumely . chap. xv. of the manners of old men. the manners of old men are in a manner the contraries of those of youth . they determine nothing : they do every thing less vehemently than is fit : they never say they know ; but to every thing they say , perhaps and peradventure ; which comes to pass from that having lived long , they have often mistaken and been deceived . they are peevish because they interpret every thing to the worst . and suspicious through incredulity , and incredulous by reason of their experience . they love and hate , as if they meant to continue in neither . are of poor spirits , as having been humbled by the chances of life . and covetous , as knowing how easie 't is to lose , and hard to get . and timorous , as having been cooled by years . and greedy of life : for good things seem greater by the want of them . and lovers of themselves out of pusilla●imity . and seek profit more than honour , because they love themselves ; and profit is among the goods that are not simply good , but good for ones self . and without bashfulness , because they despise seeming . and hope little ; knowing by experience that many times good counsel has been followed with ill event , and because also they be timorous . and live by memory rather than hope ; for memory is of the time past , whereof old men have good store . and are full of talk , because they delight in their memory . and vehement in their anger ; but not stout enough to execute it . they have weak , or no desires ; and thence seem temperate . they are slaves to gain . and live more by reason than custom ; because reason leads to profit , as custom to that which is honourable . and do injury to indammage , and not in contumely . and are merciful by compassion , or imagination of the same evils in themselves which is a kind of infirmity , and not humanity , as in young men , proceeding from a good opinion of those that suffer evil. and full of complaint , as thinking themselves not far from evil , because of their infirmity . seeing then every man loves such men , and their discourses , which are most agreeable to their own manners ; 't is not hard to collect , how the orator , and his oration may be made acceptable to the hearer , whether young or old. chap. xvi . of the manners of middle-aged men . the manners of middle-aged men , are between those of youth , and old men , and therefore , they neither dare , nor fear too much : but both as is fit . they neither believe all ; nor reject all ; but judge . they seek not only what is honourable , nor only what is profitable ; but both . they are neither covetous , nor prodigal ; but in the mean. they are neither easily angry ; nor yet stupid : but between both . they are valiant , and withal temperate . and in general , whatsoever is divided in youth , and old men : is compounded in middle-age . and whereof the excess , or defect is in youth or old men ; the mediocrity is in those of middle-age . middle-age for the body , i call the time from thirty to five and thirty years : for the mind , the nine and fortieth , or thereabouts . chap. xvii . of the manners of the nobility . of manners that proceed from the several ages we have already spoken . we are next to speak of those that rise from several fortunes . the manners of the nobility are , to be ambitious . to undervalue their ancestors equals . for the goods of fortune seem the more precious for their antiquity . nobility is the vertue of a stock . and generosity , is not to degenerate from the vertue of his stock . for as in plants ; so in the races of men , there is a certain progress ; and they grow better and better to a certain point ; and change , viz. subtil wits into madness ; and staid wits into stupidity and blockishness . chap. xviii . of the manners of the rich. rich men are contumelious , and proud. this they have from their riches . for seeing every thing may be had for money , having money , they think they have all that is good . and effeminate ; because they have wherewithal to subminister to their lust. and boasters of their wealth : and speak in high terms foolishly . for men willingly talk of what they love and admire ; and think others affect the same that they do : and the truth is , all sorts of men submit to the rich. and think themselves worthy to command , having that by which men attain command . and in general , they have the manners of fortunate fools . they do injury , with intention not to hurt , but to disgrace ; and partly also through incontinence . there is a difference between new and ancient riches : for they that are newly come to wealth have the same faults in a greater degree : for new riches are a kind of rudeness and apprentiship of riches . chap. xix . of the manners of men in power , and of such as prosper . the manners of men in power , are the same , or better than those of the rich. they have a greater sense of honour than the rich ; and their manners are more manly . they are more industrious than the rich : for power is sustained by industry . they are grave , but without austereness : for being in place conspicuous , they carry themselves the more modestly ; and have a kind of gentle and comely gravity , which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . when they do injuries , they do great ones . the manners of men that prosper , are compounded of the manners of the nobility , the rich , and those that are in power , for to some of these all prosperity appertains . prosperity in children , and goods of the body , make men desire to exceed others in the goods of fortune . men that prosper have this ill , to be more proud , and inconsiderate than others . and this good ; that they worship god , trusting in him , for that they find themselves to receive more good than proceeds from their industry . the manners of poor men , obscure men , men without power , and men in adversity , may be collected from the contrary of what has been said . chap. xx. common places or principles concerning what may be done , what has been done , and what shall be done ; or of fact possible , past and future . also of great and little. we have hitherto set down such principles as are peculiar to several kinds of orations . now we are to speak of such places as are common to them all ; as these , possible , done , or past , future , great , small . possible is that , the gontrary whereof is possible . and the like whereof is possible . and then which some harder thing is possible . and the beginning whereof is possible . and the end whereof is possible . and the usual consequent whereof is possible . and whatsoever we desire . and the beginning whereof is in the power of those whom we can either compell or perswade . and part whereof is possible . and part of the whole that is possible . and the general if a particular . and a particular if the general . and of relatives , if one , the other . and that which without art and industry is possible , is much more so with art and industry . and that which is possible to worse , weaker , and unskilfuller men , is much more so to better , stronger , and more skilful . the principles concerning impossible are the contraries of these . that has been done , then which a harder thing has been done. and the consequent whereof has been done . and that which being possible , he had a will to , and nothing hindered . and that which was possible , to him in his anger . and that which he longed to do . and that which was before upon the point of doing . and whose antecedent has been done ; or that , for which it uses to be done. and if that , for whose cause we do this , than this . the principles concerning not done are the contraries of these . that shall be done . which some man can , and means to do . and which some man can , and desires to do . and which is in the way , and upon the point to be done . and the antecedents whereof are past . and the motive whereof is past . of great and small , more and less , see chap. 7. book . 1. chap. xxi . of example , similitude , and fables . of the principles both general and special from whence proofs are to be drawn , has been already spoken . now follow the proofs themselves which are examples or enthymemes . an example is either an example properly so called ( as some action past : ) or a similitude ( which also is , called a parable : ) or a fable ( which contains some action feigned . ) an example properly so called , is this ; darius came not into greece , till he had first subdued aegypt . xerxes also conquered aegypt first ; then afterwards crossed the hellespont . we ought therefore to hinder the king of persia from conquering aegypt . a similitude , or parable , is such as followeth : they who choose their magistrates by lot , are like them that choose for their champions those on whom the lot shall fall , rather than those who have the greatest strength ; and for their pilot , not him that hath skill ; but him whose name is drawn out of the vrne . a fable is in this manner . the horse desiring to drive out the stag from his common such as are not manifest ; are either conclusions of enthymemes ; as he that 's wise will not suffer his children , &c. or else are enthymematical ; that is ; have in themselves the force of an enthymeme ; as mortal men ought not to carry immortal anger . a sentence not manifest , ought to be either inferr'd , or confirm'd . inferr'd thus . 't is not good to be effeminately minded , nor to be envyed by ones fellow citizens . a wise man therefore will not have his children over-learned . confirm'd thus . a wise man will not have his children over-learned , seeing too much learning both softens a mans mind , and procures him envy among his fellow citizens . if a reason be added to a manifest sentence let it be short . sentences become not every man ; but only old men , and such as be well versed in business . for to hear a young man speak sentencee , is ridiculous ; and to hear an ignorant man speak sentences , is absurd . sentences generally received , when they are for our purpose , ought not to be neglected , because they pass for truths . and yet they may be denyed , when any laudable custom , or humour may thereby be made appear in the denyer . the commodities of sentences , are two . one proceeding from the vanity of the hearer , who takes for true universally affirmed , that which he has found for true only in some particular ; and therefore a man ought to consider in every thing what opinion the hearer holds . another is , that sentences do discover the manners and disposition of the speaker ; so that if they be esteemed good sentences , he shall be esteemed a good man ; and if evil , an evil man. thus much of sentences , what they be ; of how many sorts ; how to be used ; whom they become ; and what is their profit . chap. xxiii . of the invention of enthymemes . seeing an enthymeme differs from a logical syllogisme , in that it neither concludes out of every thing , nor out of remote principles ; the places of it , from whence a man may argue ought to be certain , and determinate . and because whosoever makes a syllogisme rhetorical , or other , should know all , or the most part of that which is in question ; as , whosoever is to advise the athenians in the question , whether they are to make war or no , must know what their revenues be ; what , and what kind of power they have : and he that will praise them , must know their acts at salamis , marathon , &c. it will be necessary for a good speaker to have in readiness the choicest particulars of whatsoever he foresees he may speak of . he that is to speak ex tempore , must comprehend in his speech as much as he can of what is most proper in the matter in hand . proper , i call those things which are least common to others ; as , he that will praise achilles , is not to declare such things as are common both to him , and diomedes ; as that he was a prince , and warred against the trojans ; but such things as are proper only to achilles ; as that he killed hector and cygnus ; went to the war young , and voluntary . let this therefore be one general place , from that which is proper . chap. xxiv . of the places of enthymemes ostensive . forasmuch as enthymemes either infer truly , or seem only so to do ; and they which do infer indeed , be either ostensive ; or such as bring a man to some impossibility ; we will first set down the places of enthymemes ostensive . and ostensive enthymeme is , wherein a man concludes the question from somewhat granted . that enthymeme which brings a man to an impossibility , is an enthymeme wherein from that which the adversary maintaineth , we conclude that which is manifestly impossible . all places have been already set down in a manner in the precedent propositions of good , evil , just , vnjust , honourable and dishonourable : namely , they have been set down as applyed to particular subjects , or in concrete . here they are to be set down in another manner ; namely in the abstract or vniversal . the first place then let be from contraries , which in the concrete or particulars is exemplified thus . if intemperance be hurtful , temperance is profitable : and if intemperance be not hurtful ; neither is temperance profitable . another place may be from cognomination or affinity of words : as in this particular . if what is just be good ; then what is justly is well : but justly to die is not well : therefore not all that is just is good. a third from relatives ; as , this man has justly done , therefore the other has justly suffered . but this place sometimes deceives for a man may suffer justly , yet not from him . a fourth from comparison , three ways . from the great to the less ; as , he has stricken his father ; and therefore this man. from the less to the greater : as , the gods know not all things ; much less man. from equality : as , if captains be not always the worse esteemed for losing a victory ; why should sophisters ? another from the time : as philip to the thebans : if i had required to pass through your country with my army , before i had ●ayded you against the phocaeans , there is no doubt but you would have promised it me . it is absurd therefore to deny it me now , after i have trusted you : a sixth from what the adversary says of himself : as , iphicrates asked aristophon , whether he would take a bribe to betray the army : and he answering no ; what ( says he ) is it likely that iphicrates would betray the army ; and aristophon not ? this place would be ridiculous , where the defendant were not in much more estimation than the accuser . a seventh from the definition ; as that of socrates ; a spirit is either god , or the creature of god : and therefore he denies not that there is a god , that confesses there are spirits . an eighth from the distinction of an ambiguous word . a ninth from division : as , if all men do what they do for one of three causes , whereof two are impossible ; and the accuser charge not the defendant with the third ; it follows that he has not done it . a tenth from induction : as , at athens , at thebes , at sparta , &c. and therefore every where . an eleventh from authority , or precedent sentence ; as that of sappho , that death is evil , for that the gods have judged it so , in exempting themselves from mortality . a twelfth from the consequence : as , 't is not good to be envied ; therefore neither to be learned . 't is good to be wise , therefore also to be instructed . a thirteenth from two contrary consequences ; as , 't is not good to be an orator , because if he speak the truth , he shall displease men : if he speak falsely , he shall displease god. here is to be noted , that sometimes this argument may be retorted : as thus , if you speak truth , you shall please god ; if you speak untruth you shall please men ; therefore by all means be an orator . a fourteenth from the quality that men have to praise one thing , and approve another ▪ as , we ought not to war against the athenians upon no precedent injury ; for all men discommend injustice . again , we ought to war against the athenians ; for otherwise our liberty is at their mercy , that is , is no liberty : but the preservation of liberty is a thing that all men will approve . a fifteenth from proportion : as , seeing we naturalize strangers for their virtues , why should we not banish this stranger for his vices ? a sixteenth from the similitude of consequents : as , he that denies the immortality of the gods , is no worse than he that has written the generation of the gods. for the same consequence follows of both , that sometimes there are none . a seventeenth from that , that men change their mind : as , if when we were in banishment , we fought to recover our countrey , why should we not fight now to retain it ? an eighteenth from a fained end : as , that diomedes chose ulysses to go with him , not as more valiant than another ; but as one that would partake less of the glory . a nineteenth from the cause ; as if he would infer he did it from this , that he had cause to do it . a twentieth from that which is incredible , but true : as , that laws may need a law to mend them ; as well as fish bred in the salt water , may need salting . chap. xxv . of the places of enthymemes that lead to i●possibility . let the first place be from inspection 〈◊〉 times , actions , or words , either of the adversary , or of the speaker , or both. o● the adversary ; as , he says , he loves the people , and yet he was in the conspiracy of the thirty . of the speaker ; as , he says , i am contentious , and yet i never began suit. of both ; as he never conferr'd any thing to the benefit of the commonwealth , whereas i have ransomed divers citizens with mine own money . a second from shewing the cause of that which seemed amiss , and serves for men of good reputation that are accused ; as , the mother that was accused of incest for being seen imbracing her son , was absolved as soon as she made appear , that she imbraced him upon his arrival from far , by way of salutation . a third , from rendring of the cause ; as , leodamas . to whom it was objected , that he had , under the thirty tyrants , defaced the inscription ( which the people had set up in a pillar ) of his ignominy ; answered , he had not done it ; because it would have been more to his commodity to let it stand ; thereby to indear himself to the tyrants , by the testimony of the peoples hatred . a fourth from better counsel ; as , he might have done better for himself ; therefore he did not this . but this place deceives , when the better counsel comes to mind after the fact. a fifth , from the incompatibility of the things to be done ; as , they that did deliberate whether they should both mourn and sacrifice at the funeral of leucothea , were told , that if they thought her a goddess , they ought not to mourn ; and if they thought her a mortal , they ought not to sacrifice . a sixth ( which is proper to judicial orations ) from an inference of errour ; as , if he did it not , he was not wise , therefore he did it . enthymemes that lead to impossibility , please more than ostensive : for they compare , and put contraries together , whereby they are the better set off , and more conspicuous to the auditor . of all enthymemes , they be best , which we assent to as soon as hear . for such consent pleaseth us ; and makes us favourable to the speaker . chap. xxvi . of the places of seeming enthymemes . of seeming enthymemes , one place may be from the form of speaking ; as when a man has repeated divers sentences , he brings in his conclusion , as if it follow'd necessarily , though it do not . a second from an ambiguous word . a third from that which is true divided , to that which is false joyned ; as that of orestes , it was justice that i should revenge my fathers death , and it was justice my mother should die for killing my father , therefore i justly killed my mother . or from that which is true joyned , to that which is false divided ; as , one cup of wine , and one cup of wine , are hurtful ; therefore one cup of wine is hurtful . a fourth from amplification of the crime . for neither is the defendant likely to have committed the crime he amplifies ; nor does the accuser seem , when he is passionate , to want ground for his accusation . a fifth from signs ; as , when a man concludes the doing of the fact from the manner of his life . a sixth from that which comes by chance , as if from this , that the tyranny of hipparthus came to be overthrown from the love of aristogeiton to harmodius , a man should conclude , that in a free commonwealth loving of boyes were profitable . a seventh from the consequence , as banishment is to be desired , because a banish'd man has choice of places to dwell in . an eighth from making that the cause which is not ; as , in demosthenes his government , the war began ; therefore demosthenes governed well . with the peloponnesian war began the plague , therefore pericles that perswaded that war , did ill . a ninth from the omission of some circumstance , as , helen did what was lawful , when she ran away with paris , because she had her fathers consent to choose her own husband ; which was true only during the time that she had not chosen . a tenth , from that which is probable in some case , to that mhich is probable simply ; as , 't is probable , he fore-saw , that if he did it , he should be suspected ; therefore 't is probable he did it not . from this place one may infer both ways that he did it not . for if he be not likely to do it , it may be thought he did it not : again , if he were likely to do it , it may be thought he did it not , for this , that he knew he should be suspected . upon this place was grounded the art which was so much detested in protagor●● , of making the better cause seem the worse ▪ and the worse the better . chap. xxvii . of the wayes to answer the arguments of the adversary . an argument is answered by an opposite syllogisme , or by an objection . the places of opposite syllogismes are the same with the places of syllogismes , or enthymemes : for a rhetorical syllogisme is an enthymeme . the places of objections are four . first , from the same , as , to the adversary that proves love to be good by an enthymeme , may be objected , that no want is good , and yet love is want ; or particularly thus ; the love of myrrha to her father was not good . the second from contraries : as , if the adversary say , a good man does good to his friends , an objection might be made , that then an evil man will do also evil to his friends . the third from similitude : as thus , if the adversary say , all men that are injured , do hate those that have injured them , it may be objected , that then , all men that had received benefits should love their benefactors , that is to say , be grateful . the fourth from the authority of famous men ; as when a man shall say , that drunken men ought to be pardoned those acts they do in their drunkenness , because they know not what they do ; the objection may be , that pittacus was of another mind , that appointed for such acts a double punishment ; one for the act , another for the drunkenness . and forasmuch as all enthymemes are drawn from probability , or example , or from a sign fallible , or from a sign infallible : an enthymeme from probability may be confuted really , by shewing that for the most part it falls out otherwise ; but apparantly , or sophistically , by shewing only that it does not fall out so alwayes ; whereupon the judge thinks the probability not sufficient to ground his sentence upon . [ the reason whereof is this , that the judge , while he hears the fact proved probable , conceives it as true . for the understanding has no object but truth . and therefore by and by , when he shall hear an instance to the contrary ; and thereby find that he had no necessity to think it true , presently changes his opinion , and thinks it false , and consequently not so much as probable . for he cannot at one time think the same thing both probable and false : and he that says a thing is probable , the meaning is , he thinks it true , but finds not arguments enough to prove it . ] an enthymeme from a fallible sign , is answered , by shewing the sign to be fallible . an enthymeme from an example , is answered , as an enthymeme from probability ; really , by shewing more examples to the contrary ; apparently , if he bring examples enough to make it seem not necessary . if the adversary have more examples than we , we must make appear , that they are not applycable to the case . an enthymeme from an infallible sign , if the proposition be true , is unanswerable . chap. xxviii . amplification and extenuation are not common places . enthymemes by which arguments are answered , are the same with those by which the matter in question is proved , or disproved . objections are not enthymemes . the first , that amplification and extenuation are not common places , appears by this , that amplification , and extenuation do prove a fact to be great , or little ; and are therefore enthymemes , to be drawn from common places , and therefore are not the places themselves . the second , that enthymemes , by which arguments are answered , are of the same kind with those by which the matter in question is proved , is manifest by this , that these infer the opposite of what was proved by the other . the third , that an objection is no enthymeme , is apparent by this , that an objection is no more but an opinion , example , or other instance , produced to make appear , that the adversaries argument does not conclude . thus much of examples , sentences , enthymemes , and generally of all things that belong to argumentation ; from what places they may be drawn , or answered . there remains elocution , and disposition to be spoken of in the next book . book . iii. chap. i. of the original of elocution and pronuntiation . three things being necessary to an oration , namely proof , elocution and disposition ; we have done with the first , and shall speak of the other two in that which follows . as for action , or pronunciation , so much as is necessary for an orator , may be fetcht out of the book of the art of poetry , in which we have treated of the action of the stage . for tragedians were the first that invented such action , and that but of late ; and it consisteth in governing well the magnitude , tone , and measure of the voice ; a thing less subject to art , than is either proof , or elocution . and yet there have been rules delivered concerning it , as far forth as serve for poetry . but oratorical action has not been hitherto reduced to art. and orators in the beginning , when they saw that the poets in barren and feigned arguments , nevertheless attained great reputation ; supposing it had proceeded from the choice , or connexion of words , fell into a stile , by imitation of them , approaching to verse , and made choice of words . but when the poets changed their stile , and laid by all words that were not in common use , the orators did the same , and lighted at last upon words , and a government of the voice and measures proper to themselves . seeing therefore pronuntiation , or action are in some degree necessary also for an orator , the precepts thereof are to be fetcht from the art of poetry . [ in the mean time this may be one general rule . if the words , tone , greatness of the voice , gesture of the body and countenance , seem to proceed all from one passion , then 't is well pronounced . otherwise not . for when there appear more passions than one at once , the mind of the speaker appears unnatural and distracted . otherwise , as the mind of the speaker , so the mind of the hearer always . ] chap. ii. of the choise of words and epithets . the vertues of a word are two ; the first , that it be perspicuous ; the second , that it be decent ; that is , neither above , nor below the thing signified ; or , neither too humble , nor too fine . perspicuous are all words that be proper . fine words are those , that are borrowed , or translated from other significations ; of which in the art of poetry . the reason why borrowed words please , is this . men are affected with words , as they are with men , admiring in both that which is forreign and new. to make a poem graceful , many things help ; but few an oration . for to a poet it sufficieth with what words he can to set out his poem : but an orator must not only do that : but also seem not to do it : for else he will be thought to speak unnaturally , and not as he thinks ; and thereby be the less believed ; whereas belief is the scope of his oration . the words that an orator ought to use are of three sorts . proper ; such as are received ; and metaphors . words taken from forraign languages , words compounded , and words new coyned are seldom to be used . synonimaes belong to poets , and equivocal words to sophisters . an orator , if he use proper words , and received , and good metaphors , shall both make his oration beautiful , and not seem to intend it ; and shall speak perspicuously . for in a metaphor alone there is perspicuity , novity , and sweetness . concerning metaphors the rules are these . 1. he that will make the best of a thing , let him draw his metaphor from somewhat that is better . as for example , let him call a crime , an error . on the other side , when he would make the worst of it , let him draw his metaphor from somewhat worse , as , calling error , crime . 2. a metaphor ought not to be so far fetcht , as that the similitude may not easily appear . 3. a metaphor ought to be drawn from the noblest things , as the poets do that choose rather to say , rosy-finger'd ; then red finger'd aurora . in like manner the rule of epithets is , that he that will adorn , should use those of the better sort ; and he that will disgrace should use those of the worse : as simonides being to write an ode in honour of the victory gotten in a course by certain mules , being not well paid , called them by their name [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] that signifies their propinquity to asses : but having received a greater reward , stiles them the sons of swift footed coursers . chap. iii. of the things that make an oration flat . the things that make an oration flat , or insipide , are four . 1. words compounded ; [ and yet a man may compound a word , when the composition is necessary , for want of a simple word ; and easie , and seldom used . ] 2. forraign words . as for example , such as are newly derived from the latine ; which though they were proper among them whose tongue it is , are forraign in another language : and yet these may be used , so it be moderately . 3. long , impertinent , and often epithets , 4. metaphors , indecent , and obscure . obscure they are , when they are far fetcht . indecent when they are ridiculous , as in comedies ; or too grave , as in tragedies . chap. iv. of a similitude . a similitude differs from a metaphor only by such particles of comparison as these , as ; even as ; so ; even so , &c. a similitude therefore is a metaphor dilated ; and a metaphor is a similitude contracted into one word . a similitude does well in an oration , so it be not too frequent ; for 't is poetical . an example of a similitude , is this of pericles ; that said in his oration , that the baeotians were like to so many oaks in a wood , that did nothing but beat one another . chap. v. of the purity of language . four things are necessary to make language pure . 1. the right rendring of those particles which some antecedent particle does require : as to a not only , a not also ; and then they are rendered right , when they are not suspended too long . 2. the use of proper words , rather than circumlocutions , unless there be motive to make one do it of purpose . 3. that there be nothing of double construction , unless there be cause to do it of purpose . as the prophets ( of the heathen ) who speak in general terms , to the end they may the better maintain the truth of their prophesies ; which is easier maintained in generals , than in particulars . for 't is easier to divine , whether a number be even or odd , than how many ; and that a thing will be , than what it will be . 4. concordance of gender , number , and person ; as not to say him for her ; man for men ; hath for have . in summ ; a mans language ought to be easie for another to read , pronounce , and point . besides , to divers antecedents , let divers relatives , or one common to them all , be correspondent : as , he saw the colour ; he heard the sound ; or he perceived both colour and sound : but by no means , he heard or saw both . lastly , that which is to be interposed by parenthesis , let it be done quickly : as , i purposed , having spoken to him ( to this , and to this purpose ) afterward to be gone . for to put it off thus ; i resolved , after i had spoken to him , to be gone ; but the subject of my speech was to this and this purpose , is vi●●ous . chap. vi. of the amplitude and tenuity of language . a man shall add amplitude , or dignity to his language , but by such means as these . 1. by changing the name with the definition , as occasion shall serve . as , whe● the name shall be indecent , by using the definition ; or contrary . 2. by metaphors . 3. by using the plural number for the singular . 4. by privative epithets . chap. vii . of the convenience or decency of elocution . elocutions are made decent , 1. by speaking feelingly ; that is , with such passion as is fit for the matter he is in ; as angerly in matter of injury . 2. by speaking as becomes the person of the speaker ; as for a gentleman to speak eruditely . 3. by speaking proportionably to the matter ; as of great affairs to speak in a high ; and of mean , in a low stile . 4. by abstaining from compounded , and from out-landish words ; unless a man speak passionately , and have already moved , and , as it were , inebriated his hearers . or ironically . it confers also to perswasion very much , to use these ordinary forms of speaking , all men know ; 't is confessed by all ; no man will deny , and the like . for the hearer consents , surprized with the fear to be esteemed the only ignorant man. 't is good also , having used a word that signifies more than the matter requires , to abstain from the pronunciation and countenance that to such a word belongs ; that the disproportion between it and the matter may the less appear . and when a man has said too much , it will shew well to correct himself : for he will get belief by seeming to consider what he says . [ but in this a man must have a care not to be too precise in shewing of this consideration . for the oftentation of carefulness is an argument oftentimes of lying ; as may be observed in such as tell particularities not easily observed , when they would be thought to speak more precise truth than is required . ] chap. viii . of two sorts of stiles . there be two sorts of stiles . the one continued or to be comprehended at once ; the other divided , or distinguished by periods . the first sort was in use with ancient writers ; but is now out of date . an example of this stile is in the history of herodotus ; wherein there is no period till the end of the whole history . in the other kind of stile , that is distinguished by periods , a period is such a part as is perfect in it self ; and has such length , as may easily be comprehended by the understanding . this later kind is pleasant ; the former unpleasant , because this appears finite , the other infinite : in this the hearer has always somewhat set out , and terminated to him ; in the other he fore-sees no end , and has nothing finished to him : this may easily be committed to memory , because of the measure and cadence ( which is the cause that verses be easily remembred ; ) the other not . every sentence ought to end with the period , and nothing to be interposed . period is either simple , or divided into parts . simple is that which is indivisible ; as , i wonder you fear not their ends , whose actions you imitate . a period divided , is that which not only has perfection and length convenient : for respiration , but also parts . as , i wonder you are not afraid of their ends , seeing you imitate their actions : where in these words , i wonder you are not afraid of their ends , is one colon , or part ; and in these , seeing you imitate their actions , another : and both together make the period . the parts , or members , and periods of speech ought neither to be too long , nor too short . too long are they , which are produced beyond the expectation of the hearer . too short , are they that end before he expects it . those that be too long , leave the hearer behind , like him that walking , goes beyond the usual end of the walk , and thereby out-goes him that walks with him . they that be too short , make the hearer stumble ; for when he looks far before him , the end stops him before he be aware . a period that is divided into parts , is either divided only ; or has also an opposition of the parts one to another . divided only is such as this ; this the senate knows ; the consul sees ; and yet the man lives . a period with opposition of parts , called also antithesis , and the parts antitheta , is when contrary parts are put together ; or also joyned by a third . contrary parts are put together , as here , the one has obtained glory , the other riches ; both by my benefit . antitheta are therefore acceptable ; because not only the parts appear the better for the opposition ; but also for that they carry with them a certain appearance of that kind of enthymeme , which leads to impossibility . parts , or members of a period , are said to be equal , when they have altogether , or almost equal number of syllables . parts , or members of a period , are said to be like , when they begin , or end alike : and the more similitudes , and the greater equality there is of syllables , the more graceful is the period . chap. ix . of those things that grace an oration , and make it delightful . forasmuch as there is nothign more delightful to a man , than to find that he apprehends and learns easily ; it necessarily follows , that those words are most grateful to the ear , that make a man seem to see before his eyes the things signified . and therefore forraign words are unpleasant , because obscure ; and plain words , because too manifest , making us learn nothing new : but metaphors please ; for they beget in us by the genus , or by some common thing to that with another , a kind of science : as when an old man is called stubble ; a man suddainly learns that he grows up , flourisheth , and withers like grass , being put in mind of it by the qualities common to stubble , and to old men. that which a metaphor does , a similitude does the same ; but with less grace , because with more prolixity . such enthymemes are the most graceful , which neither are presently very manifest , nor yet very hard to be understood ; but are comprehended , while they are uttering , or presently after , though not understood before . the things that make a speech graceful , are these ; antitheta , metaphors , and animation . of anitheta , and antithesis hath been spoken in the precedent chapter . of metaphors the most graceful is that which is drawn from proportion . [ aristotle ( in the 12 chapter of his poetry ) defines a metaphor to be the translation of a name from one signification to another ; whereof he makes four kinds , 1. from the general to the particular , 2. from the particular to the general . 3. from one particular to another . 4. from proportion . ] a metaphor from proportion is such as this , a state without youth , is a year without a spring . animation is that expression which makes us seem to see the thing before our eyes ; as he that said , the athenians powred out their city into sicily , meaning , they sent thither the greatest army they could make ; and this is the greatest grace of an oration . if therefore in the same sentence there concur both metaphor , and this animation , and also antithesis , it cannot choose but be very graceful . that an oration is graced by metaphor , animation and antithesis , hath been said : but how 't is graced , is to be said in the next chapter . chap. x. in what manner an oration is graced by the things aforesaid . t is graced by animation , when the actions of living creatures are attributed to things without life ; as when the sword is said to devour . such metaphors as these come into a mans mind by the observation of things that have similitude and proportion one to another . and the more unlike , and unproportionable the things be otherwise , the more grace hath the metaphor . a metaphor without animation , adds grace then , when the hearer finds he learns somewhat by such use of the word . also paradoxes are graceful , so men inwardly do believe them : for they have in them somewhat like to those jests that are grounded upon the similitude of words , which have usually one sense , and in the present another ; and somewhat like to those jests which are grounded upon the deceiving of a mans expectation . and paragrams ; that is , allusions of words are graceful , if they be well placed ; and in periods not too long ; and with antithesis : for by these means the ambiguity is taken away . and the more of these ; namely , metaphor , animation , antithesis , equality of members a period hath , the more graceful it is . similitudes grace an oration , when they contain also a metaphor . and proverbs are graceful , because they are metaphors , or translations of words from one species to another . and hyperboles , because they also are metaphors : but they are youthful , and bewray vehemence ; and are used with most grace by them that be angry ; and for that cause are not comely in old men. chap. xi . of the difference between the stile to be used in writing , and the stile to be used in pleading . the stile that should be read ought to be more exact and accurate . but the stile of a pleader ought to be suted to action and pronuntiation . orations of them that plead , pass away with the hearing . but those that are written , men carry about them , and are considered at leasure ; and consequently must endure to be sifted and examined . written orations appear flat in pleading . and orations made for the barr , when the action is away , appear in reading insipide . in written orations repetition is justly condemned . but in pleadings , by the help of action , and by some change in the pleader , repetition becomes amplification . in written orations disjunctives do ill ; as , i came , i found him , i asked him : for they seem superfluous , and but one thing , because they are not distinguished by action . but in pleadings 't is amplification ; because that which is but one thing , is made to seem many . of pleadings , that which is judicial ought to be more accurate , than that which is before the people . and an oration to the people ought to be more accommodate to action , than a judicial . and of judicial orations , that ought to be more accurate , which is uttered to few judges ; and that ought to be more accommodate to action , which is uttered to many . as in a picture , the farther he stands off that beholds it , the less need there is that the colours be fine : so in orations , the farther the hearer stands off , the less need there is for his oration to be elegant . therefore demonstrative orations are most proper for writing , the end whereof is to be read. chap. xii . of the parts of an oration , and their order . the necessary parts of an oration are but two ; propositions , and proof ; which are as it were the probleme , and demonstration . the proposition is the explication , or opening of the matter to be proved . and proof is the demonstration of the matter propounded . to these necessary parts , are sometimes added two other , tho proeme and the epilogue , neither of which are any proof . so that in some , there be four parts of an oration ; the proeme , the proposition , or ( as others call it ) the narration , the proofs ( which contain confirmation , confutation , amplification , and diminution ; ) and the epilogue . chap. xiii . of the proem . the proem is the beginning of an oration , and , as it were , the preparing of the way before one enter into it . in some kinds of orations it resembles the prelude of musicians , who first play what they list , and afterwards the tune they intended . in other kinds it resembles the prologue of a play , that contains the argument . proems of the first sort , are most proper for demonstrative orations ; in which a man is free to fore-tell , or not , what points he will insist upon ; and for the most part 't is better not : because when a man has not obliged himself to a certain matter , digression will seem variety : but if he have ingaged himself , variety will be accounted digression . in demonstratives the matter of the proem consisteth in the praise or dispraise of some law or custom , or in exhortation , or dehortation ; or in something that serves to incline the hearer to the purpose . proems of the second kind are most proper for judicial orations . for as the prologue in a dramatick , and the exordium in an epique poem , setteth first in few words the argument of the poem : so in a judicial oration the orator ought to exhibit a model of his oration , that the mind of the hearer may not be suspended , and for want of fore-sight , err or wander . whatsoever else belongs to a proem , is drawn from one of these four ; from the speaker , from the adversary , from the hearer , or from the matter . from the speaker and adversary are drawn into proems such criminations and purgations as belong not to the cause . to the defendant 't is necessary in the proem to answer to the accusations of his adversary ; that those being cleared , he may have a more favourable entrance to the rest of his oration . but to the plaintife 't is better to cast his criminations all into the epilogue , that the judge may the more easily remember them . from the hearer and from the matter are drawn into the proem such things as serve to make the hearer favourable , or angry ; attentive , or nor attentive , as need shall require . and hearers use to be attentive to persons that are reputed good ; to things that are of great consequence , or that concern thomselves , or that are strange , or that delight . but to make the hearer attentive , is not the part of the proeme only , but of any other part of the oration , and rather of any other part , than of the proeme . for the hearer is every where more remiss than in the beginning . and therefore wheresoever there is need , the orator must make appear both the probity of his own person , and that the matter in hand is of great consequence ; or that it concerns the hearer ; or that it is new ; or that it is delightful . he that will have the hearer attentive to him , but not to the cause , must on the other side make it seem that the matter is a trifle , without relation to the hearer , common , and tedious . that the hearer may be favourable to the speaker , one of two things is required ; that he love him , or that he pity them . in demonstrative orations , he that praises shall have the hearer favourable if he think himself , or his own manners , or course of life , or any thing he loves , comprehended in the same praise . on the contrary , he that dispraises , shall be heard favourably , if the hearer find his enemies , or their courses , or any thing he hates , involv'd in the same dispraise . the proeme of a deliberative oration is taken from the same things , from which are taken the proemes of judicial orations . for the matter of a deliberative oration needeth not that natural proeme , by which is shewn what we are to speak of ; for that is already known : the proeme in these , being made only for the speakers , or adversaries sake ; or to make the matter appear great , or little , as one would have it , and is therefore to be taken from the persons of the plaintif or defendant ; or from the hearer , or from the matter , as in orations judicial . chap. xiv . places of crimination , and purgation . 1. one is from the removal of ill opinion in the hearer , imprinted in him by the adversary , or otherwise . 2. another from this , that the thing done is not hurtful , or not to him , or not so much , or not unjust , or not great , or not dishonourable . 3. a third from the recompence , as , i did him harm , but withal i did him honour . 4. a fourth from the excuse ; as , it was errour , mischance , or constraint . 5. a fifth from the intention ; as , one thing was done , another meant . 6. a sixth from the comprehension of the accuser ; as , what i have done , the accuser has done the same ; or his father , kinsman , or friend . 7. from the comprehension of those that are in reputation ; as , what i did , such , and such have done the same , who nevertheless are good men. 8. from comparison with such as have been falsly accused , or wrongfully suspected , and nevertheless found upright . 9. from recrimination ; as , the accuser is a man of ill life , and therefore not to be believed . 10. from that the judgment belongs to another place , or time ; as , i have already answered , or am to answer else-where to this matter . 11. from crimination of the crimination ; as , it serves only to ●e●vert indgment . 12. a twelfth , which is common both to crimination and purgation , and is taken from some sign ; as teucer is not to be believed , because his mother was priam's sister . on the other side , teucer is to be believed , because his father was priam's enemy . 13. a thirteenth , proper to crimination only , from praise and dispraise mixt ; as , to praise small things , and blame great ones ; or to praise in many words , and blame with effectual ones ; or to praise many things that are good , and then add one evil , but a great one . 14. a fourteenth , comming both to crimination and purgation , is taken from the interpretation of the fact : for he that purgeth himself interpreteth the fact always in the best sense ; and he that criminates , always in the worst ; as when vlysses said , diomedes chose him for his companion , as the most able of the grecians , to aid him in his exploit : but his adversary said , he chose him for his cowardize , as the most unlikely to share with him in the honour . chap. xv. of the narration . the narration is not always continued and of one piece ; but sometimes , as in demonstratives , interrupted , and dispersed through the whole oration . for there being in a narration something that falls not under art ; as namely , the actions themselves , which the orator inventeth not ; he must therefore bring in the narration of them where he best may . as for example , if being to praise a man , you would make a narration of all his acts immediately from the beginning , and without interruption , you will find it necessary afterwards to repeat the same acts again , while from some of them you praise his valour , and from others his wisdom ; whereby your oration shall have less variety , and shall less please . 't is not necessary always that the narration be short . the true measure of it must be taken from the matter that is to be laid open . in the narration , as oft as may be , 't is good to insert somewhat commendable in ones self , and blameable in ones adversary : as , i advised him , but he would take no counsel . in narrations , a man is to leave out whatsoever breeds compassion , indignation in the hearer besides the purpose ; as vlysses in homer , relating his travels to alcinous , to move compassion in him , is so long in it , that it consists of divers books : but when he comes home , tells the same to his wife in thirty verses , leaving out what might make her sad . the narration ought also to be in such words as argue the manners ; that is , some virtuous or vicious habit in him of whom we speak , although it be not exprest ; as , setting his arms a kenbold , he answered , &c. by which is insinuated the pride of him that so answered . in an oration a man does better to shew his affection than his judgment : this is , 't is better to say , i like this ; than to say , this is better . for by the one you would seem wise , by the other good . but favour follows goodness ; whereas wisdom procures envy . but if this affection seem incredible , then either a reason must be rendered , as did antigone . for when she had said , she loved her brother better than her husband , or children ; she added , for husband and children i may have more ; but another brother i cannot , my parents being both dead . or else a man must use this form of speaking ; i know this affection of mine seems strange to you ; but nevertheless it is such . for 't is not easily believed , that any man has a mind to do any thing that is not for his own good . besides in a narration , not only the actions themselves ; but the passions , and signs that accompany them , are to be discovered . and in his narration a man should make himself and his adversary be considered for such , and such , as soon , and as covertly as he can . a narration may have need sometimes not to be in the beginning . in deliberative orations ; that is , where soever the question is of things to come ; a narration , which is always of things past , has no place : and yet things past may be recounted , that men may deliberate better of the future : but that is not as narration , but proof ; for 't is example . there may also be narration in deliberatives in that part where crimination and praise come in : but that part is not deliberative , but demonstrative . chap. xvi . of proof , or confirmation , and refutation . proofs are to be applyed to something controverted . the controversie in judicial orations is , whether it has been done ; whether it has been hurtful ; whether the matter be so great , and whether it be just , or no. in a question of fact , one of the parties of necessity is faulty ( for ignorance of the fact is no excuse ) and therefore the fact is chiefly to be insisted on . in demonstratives , the fact for the most part is supposed : but the honour and profit of the fact are to be proved . in deliberatives , the question is , whether the thing be like to be , or likely to be so great ; or whether it be just ; or whether it be profitable . besides the application of the proof to the question , a man ought to observe , whether his adversary have lyed in any point without the cause . for 't is a sign he does the same in the cause . the proofs themselves are either examples , or enthymemes . a deliberative oration , because 't is of things to come , requireth rather examples , than enthymemes . but a judicial oration , being of things past , which have a necessity in them , and may be concluded syllogistically , requireth rather enthymemes . enthymemes ought not to come too thick together : for they hinder one anothers force by confounding the hearer . nor ought a man endeavour to prove every thing by enthymeme , least like some philosophers , he collect what is known , from what is less known . nor ought a man to use enthymemes , when he would move the hearer to some affection : for seeing divers motions do mutually destroy or weaken one another , he will lose either the enthymeme , or the affection that he would move . for the same reason , a man ought not to use enthymemes when he would express manners . but whether he would move affection , or insinuate his manners , he may withal use sentences . a deliberative oration is more difficult than a judicial , because 't is of the future , whereas a judicial is of that which is past , and that consequently may be known ; and because it has principles , namely the law ; and it is easier to prove from principles , than without . besides , a deliberative oration wants those helps of turning to the adversary , of speaking of himself ; of raising passion . he therefore that wants matter in a deliberative oration , let him bring in some person to praise or dispraise . and in demonstratives he that has nothing to say in commendation or discommendation of the principal party , let him praise or dispraise some body else , as his father , or kinsman , or the very vertues or vices themselves . he that wants not proofs , let him not only prove strongly , but also insinuate his manners : but he that has no proof , let him nevertheless insinuate his manners . for a good man is as acceptable , as an exact oration . of proofs , those that lead to an absurdity , please better than those that are direct or ostensive ; because from the comparison of contraries , namely , truth and falsity , the force of the syllogisme does the better appear . confutation is also a part of proof . and he that speaks first , puts it after his own proofs , unless the controversie contain many and different matters . and he that speaks last , puts it before . for 't is necessary to make way for his own oration , by removing the objections of him that spake before . for the mind abhors both the man , and his oration , that is damned before hand . if a man desire his manners should appear well , ( least speaking of himself he become odious , or troublesome , or obnoxious to obtrectation ; or speaking of another , he seem contumelious , or scurrilous ) let him introduce another person . last of all , least he cloy his hearer with enthymemes , let him vary them sometimes with sentences ; but such as have the same force . as here is an enthymeme . if it be then the best time to make peace when the best conditions of peace may be had , than the time is now , while our fortune is entire . and this is a sentence of equal force to it . wise men make peace , while their fortune is entire . chap. xvii . of interrogations , answers , and jests . the times wherein 't is fit to ask ones adversary a question are chiefly four . 1. the first is , when of two propositions that conclude an absurdity , he has already uttered one ; and we would by interrogation draw him to confess the other . 2. the second , when of two propositions that conclude an absurdity , one is manifest of it self , and the other likely to be fetch'd out by a question ; then the interrogation will be seasonable ; and the absurd conclusion is presently to be inferr'd , without adding that proposition which is manifest . 3. the third , when a man would make appear that his adversary does contradict himself . 4. the fourth , when a man would take from his adversary such shifts as these , in some sort 't is so ; in some sort 't is not so . out of these cases 't is not fit to interrogate . for he whose question succeeds not , is thought vanquished . to equivocal questions a man ought to answer fully , and not to be too brief . to interrogations which we fore-see tend to draw from us an answer , contrary to our purpose , we must , together with our answer , presently give an answer to the objection which is implyed in the question . and where the question exacteth an answer that concludeth against us , we must together with our answer presently distinguish . jests are dissolved by serious and grave discourse : and grave discourse is deluded by jests . the several kinds of jests are set down in the art of poetry . whereof one kind is ironia , and tends to please ones self . the other is scurrility , and tends to please others . the latter of these has in it a kind of baseness : the former may become a man of good breeding . chap. xviii . of the epilogue . the epilogue must consist of one of these four things . either of inclining the judg to favour his own , or disfavour the adversaries side : for then when all is said in the cause , is the best season to praise , or dispraise the parties . or of amplification or diminution . for when it appears what is good or evil , then is the time to shew how great , or how little that good or evil is . or in moving the judge to anger , love , or other passion . for when 't is manifest of what kind , and how great the good or evil is , then it will be opportune to excite the judge . or of repetition , that the judge may remember what has been said . repetition consisteth in the matter , and the manner . for the orator must shew , that he has performed what he promised in the beginning of his oration , and how : namely , by comparing his arguments one by one with his adversaries , repeating them in the same order they were spoken . finis . the art of rhetorick plainly set forth ; with pertinent examples for the more easie understanding and practice of the same . by tho. hobbes , of malmsbury . london . printed , for w. crook . 1681. the art of rhetorick . rhetorick is an art of speaking finely . it hath two parts . 1. garnishing of speech , called elocution . 2. garnishing of the manner of utterance called pronunciation . garnishing of speech is the first part of rhetorick , whereby the speech it self is beautified and made fine . it is either , 1. the fine manner of words , called a trope , or , 2. the fine shape or frame of speech , called a figure . the fine manner of words is a garnishing of speech , whereby one word is drawn from his first proper signification , to another ; as in this sentence : sin lyeth at the door : where sin is put for the punishment of sin adjoyned unto it : lyeth at the door signifieth at hand ; as that which lyeth at the door , is ready to be brought in . this changing of words was first found out by necessity , for the want of words ; afterward confirmed by delight , because such words are pleasant and gracious to the ear . therefore this change of signification must be shamefac'd , and , as it were , maidenly , that it may seem rather to be led by the hand to another signification , to be driven by force unto the same : yet sometimes this fine manner of speech swerveth from this perfection , and then it is , either 1. the abuse of this fine speech , called katachresis , or 2. the excess of this fineness , call'd hyperbole . be not too just , nor too wicked : which speech , although it seem very hard , yet it doth not , without some fineness of speech , utter thus much , that one seek not a righteousness beyond the law of god ; and that when none can live without all sin , yet that they take heed that sin bear not dominion over them , as , my tears are my meat day and night . those that hate me are mo in number , than the hairs of my head. both which do utter by an express of speech , a great sorrow , and a great number of enemies . the abuse of speech , is , when the change of speech is hard , strange , and unwonted , as in the first example . the excess of speech is , when the change of signification is very high and lofty , as in the second example , and ps. 6. 7. but the excellency , or fineness of words , or tropes , is most excellent , when divers are , shut up in one ; or , continued in many . an example of the first sort is in the 2 kings : i pray thee , let me have a double portion of thy spirit : where by spirit , is meant the gift of the spirit ; and by thy spirit , the gift of the spirit like to thine . the continuance of tropes , called an allegorie , is , when one kind of trope is so continued ; as , look with what kind of matter it be begun , with the same it be ended . so in the 23 psal. the care of god towards his church , is set forth in the words proper to a shepherd . so in the whole book of canticles , the sweet conference of christ and his church , is set down by the words proper to the husband and the wife . so old age is set down by this garnishing of speech , eccles. 12. 5 , 6. hitherto of the properties of a fine manner of words , called a trope . now the divers sorts do follow . they are those which note out , 1. no comparison , and are with some comparison ; or , 2. no respect of division , or some respect . the first is double : 1. the change of name , called a metonymie . 2. the mocking speech , called an ironie . the change of name , is where the name of a thing , is put for the name of a thing agreeing with it . it is double , 1. when the cause is put for the thing caused , and contrariwise , 2. when the thing to which any thing is adjoyned , is put for the thing adjoyned ; and contrariwise . the change of name of the cause , is when , either the name of the maker , or the name of the matter , is put for the thing made . of the maker , when the finder out , or the author of the thing , or the instrument whereby the thing is done , is put for the thing made . so moses is put for his writings : so love is put for liberality , or bestowing benefits , the fruit of love : so faith the cause , is put for religious serving of god , the thing caused . rom. 1. so the tongue , the instrument of speech , is put for the speech it self . rule thy tongue , james 3. of the matter : thou art dust , and to dust shalt thou return ; that is , one made of dust. now on the other side , when the thing caused , or the effect is put for any of these causes . so the gospel of god is called the power of god to salvation ; that is , the instrument of the power of god. so love is said to be bountiful ; because it causeth one to be bountiful . s. paul saith , the bread that we break , is it not in the communion of the body and blood of christ ? that is , an instrument of the communion of the body of christ. so , the body is said to be an earthly tabernacle : that is , a tabernacle made of earth . the change of name , or metonymie , where the subject , or that which hath any thing adjoyned , is put for the thing adjoyned , or adjoynt . so the place is put for those , or that in the place : set thine house in an order : that is , thy houshold matters . it shall be easier for sodom and gomorra : that is , the people in sodom and gomorra . so moses chair is put for the doctrine , taught in moses chair . so , all jericho and jerusalem came out : that is , all the men in jericho and jerusalem . so , before , sin was put for the punishment of sin : let his blood rest upon us and our children : that is the punishment which shall follow his death . so christ said , this is my body , that is , a sign or sacrament of my body . this wine is the new testament in my blood ; that is , a sign or seal of the new testament in my blood. so john saith , he saw the spirit descending in the likeness of a dove : that is , the sign of the spirit . on the other side , the adjunct is put for the thing to which it is adjoyned . as christ is called our hope . 1 tti. that is , on whom our hope did depend : so , we are justified by faith , that is , by christ , applyed by faith : so , love is the fulfilling of the law , that is , those things to which it is adjoyned . hope for the things hoped for , rom. 8. 28. so in the epist. to the eph. the dayes are evil : that is , the manner , conversation , and deeds of men in the dayes . hitherto of the metonymie , or change of name . now followeth the mocking speech , or ironie . chap. ii. the mocking trope is , when one contrary is signified by another , as god said , man is like to one of us . so christ saith , sleep on ; and yet by and by , arise , let us go : so paul saith , you are wise , and i am a fool. this trope is perceived , either by the contrariety of the matter , or the manner of utterance , or both : so elias said to the prophets of baal , cry a loud , &c. so the jews said unto christ ; hail , king of the jews . hitherto appertaineth the passing by a thing , which yet with a certain elegancy noteth it : so philemon , 19. that i say not , thou owest thy self unto me . hitherto of the fineness of words which respect no division . now followeth that which respecteth division , called synechdoche . a synechdoche is when the name of the whole is given to the part ; or the name of the part to the whole . and it is double ; 1. when the whole is put for the member , and contrarily . 2. when the general , or whole kind is put for the special , or contrarily . so s. john , not only for our sins , but for the sins of the whole world. so righteousness , a member of goodness , is put for all goodness : so unrighteousness , is put for all manner of sins . examples of the second sort , as these : so israel is put for those of juda sometimes : so nations for the heathen : a minister of christ , for an apostle of christ , rom. 1. a minister put for a distributer , rom. 12. on the other side , one sort or special is put for the whole sort , or general , in the examples following . in the lords prayer , bread , one help of life , is put for all helps : this day , one time , for all times : so solomon saith . the thing of the day in his day ; that is , the thing of the time , in his time . so sometimes less is spoken , and yet more is understood ; which is called diminution , or meiosis : as james saith , to him that knoweth how to do well , and doth not , it is sin : that is , a great sin . so our saviour christ saith , if they had not known , they had had no sin : that is , no such great sin as they have now . likewise the denial by comparison : so solomon saith , receive my words , and not silver : that is , my words rather than silver : so paul saith , i was sent to preach , and not to baptise : that is , not so much to baptise , as to preach . hitherto of the fineness of words , which note out no comparison . now followeth the fineness of words which noteth out comparison , called a metaphor . chap. iii. a metaphor is when the like is signified by the like : as 1 cor. the apostle saith , doctrine must be tryed by fire ; that is , the evidence of the word , spirit , trying doctrine , as fire doth metals . so christ is said to baptize with fire : where fire is put for the power of the holy ghost , purging as fire : so christ saith , none shall enter into the kingdom of god , but he that is born of the holy ghost and water : so paul calleth himself the father of the corinths , who said , that he begat them in christ : so he calleth timothy and titus his natural sons in the faith. hitherto of a trope , or garnishing of speech in one word , where the metaphor is most usual ; then the change of name ; then the synechdoche ; and last of all , the ironie . now followeth the fine frame or shape of speech ; called a figure . a figure is a garnishing of speech ; wherein the course of the same is changed from the more simple and plain manner of speaking , unto that which is more full of excellency and grace . for as in the fineness of words , or a trope , words are considered asunder by themselves : so in the fine shape or frame of speech or a figure , the apt and pleasant joyning together of many words is noted . the garnishing of the shape of speech or a figure , is garnishing of speech in words , or in a sentence . the garnishing of speech in words , called figura dictionis , is wherein the speech is garnished by the pleasant and sweet sound of words joyned together . this is either , 1. in the measure of sounds ; or 2. in the repetition of sounds . the measure of sounds is belonging either to , 1. poets , with us called rhymers ; or , 2. orators , with us called eloquent pleaders . the first is the measure of sounds by certain and continual spaces : and it is either , 1. rhyme ; or , 2. verse . rhyme is the first sort , containing a certain measure of syllables ending alike , and these in the mother tongues are most fit for psalms , songs , or sonnets . verses are the second sort , containing certain feet fitly placed . a foot is a measure framed by the length and shortness of syllables : for the several sorts whereof , as also of the verses of them , because we have no worthy examples in our english tongue , we judge the large handling of them should be more curious than necessary . the measure of sounds belonging to orators is that which , as it is not uncertain , so it differeth altogether from rhime and verse , and is very changeable with it self . therefore in that eloquent speech you must altogether leave rhime and verse , unless you alledge it for authority and pleasure . in the beginning of the sentence little care is to be had , in the middle least of all , and in the end chiefest regard is to be had , because the fall of the sentence is most marked , and therefore lest it fall out to be harsh and unpleasant both to the mind and ear , there must be most variety and change . now this change must not be above six syllables from the end , and that must be set down in feet of two syllables . and thus much of garnishing of speech by the measure of sounds , rather to give some taste of the same to the readers , than to draw any to the curious and unnecessary practise of it . now followeth the repeating of sounds . chap. iv. repetition of sounds is either of the like , or the vnlike sound . of the like , is either continued to the end of , or broken off from the same , or a diverse sentence . continued to the end of the same sentence is , when the same sound is repeated without any thing coming between , except a parenthesis ; that is , something put in , without the which , notwithstanding the sentence is full . and it is a joyning of the same sound , as rom. 1. as vnrighteousness , fornication , wickedness . and in the prayer of christ , my god , my god. from men by thine hand , o lord , from men , &c. psal. 17. continued in a diverse sentence is , either a redoubling , called anadyplosis ; or a pleasant climing , called clymax . redoubling is when the same sound is repeated in the end of the former sentence , and the beginning of the sentence following . as , psal. 9. 8. the lord also will be a refuge to the poor , a refuge , i say , in due time . psal. 81. 14. for this god is our god. but more plain in psal. 8. as we have heard , so have we seen in the city of our god. god will establish it for ever . a pleasant climing is a redoubling continued by divers degrees or steps of the same sounds : as rom. 8. 17. if we be children , we be heirs , even heirs of god , annexed with christ. rom. 8. 30. whom he predestinated , them also he called ; and whom he called , them also he justified ; and whom he justified , them also he glorified . also rom. 9. 14. 15. and hitherto of the same sound continued to the end . now followeth the same sound broken off . chap. v. the same sound broken off is a repetition of the same in the beginning ; or in the end . in the beginning it is called anaphora , a bringing of the same again ; as rom. 8. 38. nor death , nor life , nor angels , &c. nor any other creature shall be able to separate us &c. so likewise ephes. 4. 11. some to be apostles , some preachers , &c. so gal. nor jew , nor gentile , &c. so likewise hebr. 11. 1. 2. repetition of the same sound in the end is called epistrophe , a turning to the same sound in the end . so ezech. behold greater abominations than these . lament . 3. 41. let us lift up our hearts with our hands unto god in the heavens ; we have sinned , and have rebelled therefore thou hast not spared . when both of these are joyned together , it is called a coupling or symplote . as , 2 cor. 6. 4. to the 11. but in all things we approve our selves , as the ministers of god , in much patience , in afflictions , &c. see also 2 cor. 22. 23. hitherto of the repetitions in the same place . now of those that do interchange their place . they are either epanalepsis , which signifieth to take back ; or epanados which signifieth a turning to the same tune . the first is when the same sound is repeated in the beginning and the ending , as my son absolom , my son , 2 sam. 19. 1. epanados is when the same sound is repeated in the beginning and the middle , in the middle and the end , ezech. 35. 6. i will prepare thee unto blood , and blood shall pursue thee : except thou hate blood , even blood shall pursue thee . and 2 thes. 2. so that he that doth sit as god , in the temple of god , sheweth himself that he is god. hitherto of the repetition of those sounds which are like . now of those that are unlike . chap. vi. unlike a small changing of the name , as paronomasia . a small changing of the end or case , as polypto●on . a small change of name is , when a word by the change of one letter or syllable , the signification also is changed , as , patience , experience . rom. 5. 4. 19. we walk after the flesh , not war in the flesh . so by honour and dishonour , as unknown and yet known . a small changing of the end or case , is when words of the same beginning rebound by divers ends : christ being raised from the dead , dyeth no more , death hath no more power over him . he that doth righteousness is righteous . if ye know that he is righteous , know ye that he that doth righteously , is born of him . and of both these there are many in the scripture , but the translations cannot reach them . hitherto of the garnishing of the shape of speech in words . now followeth the garnishing of the shape of speech in a sentence . chap. vii . garnishing of the frame of speech in a sentence , is a garnishing of the shape of speech , or a figure ; which for the forcible moving of affections , doth after a sort beautifie the sense and very meaning of a sentence . because it hath in it a certain manly majesty , which far surpasseth the soft delicacy or dainties of the former figures . it is either the garnishing of speech alone ; or with others . the garnishing of speech alone , is when as the sentence is garnished without speech had to other . and it is either in regard of the matter ; or of the person . in regard of the matter , it is either 1. a crying out , called exclamation ; or 2. a pulling or calling back of himself , called revocation . a crying out or exclamation is the first , which is set forth by a word of calling out : sometimes of wonder , as , rom. 8. o the depth of the judgments of god! psal. 8. o lord , how excellent is thy name ! sometimes of pity ; also these words , behold , alas , oh , be signs of this figure : as , o jerusalem , jerusalem , which stonest the prophets . sometimes of desperation ; as , my sin is greater than can be forgiven . behold , thou drivest me out , &c. sometimes of wishing : as , o lord of hosts , how amiable are thy tabernacles ? sometimes of disdaining : as , rom. 7. in the end , o miserable wretch that i am , who shall deliver me from this body of sin ? sometimes of mocking : as they which said to our saviour christ , ah , thou that , &c. sometimes of cursing and detestation , as in david , let their table be made a snare , and bow down their back always . also when this figure is used in the end of a sentence , it is called a shooting out of the voice , or epiphonema ; as when the sins of jezabel were spoken against , this is added at the end , seemed it a little to her to do thus and thus . so after the high setting forth of the name of god , david shutteth up his praise with this : blessed be his glorious name , and let all the earth be filled with his glory . sometimes here is used a certain liberty of speech , wherein is a kind of secret crying out : as peter , act. 3. saith : ye men of israel , hear these words . and paul , 1 cor. 11. would to god you could suffer a little my foolishness , and indeed ye suffer me . thus much of crying out . now followeth the figure of calling back , or revocation . revocation is when any thing is called back , and it is as it were a cooling and quenching of the heat of the exclamation that went before . and this is either a correction of ones self , called epanorthrosis ; a holding of ones peace , called aposiopesis . epanorthrosis is correction , when something is called back that went before : as paul correcteth his doubtfulness of agrippa's belief , when he saith , believest thou king agrippa , i know thou believest . so , 1 cor. 15. i laboured more abundantly than they all , yet not i , &c. a keeping of silence or aposiopesis is , when the course of the sentence bygon is so stayed , as thereby some part of the sentence not being uttered , may be understood . so our saviour christ saith , my soul is heavy : what shall i say ? john 12. 27. thus much of a figure garnishing the speech alone in regard of the matter . now followeth the garnishing of the speech alone in regard of the person . chap. viii . garnishing of the speech alone in regard of the person is double . either in turning to the person , called apostrophe , or feigning of the person , called , prosopopoeia . apostrophe or turning to the person , is when the speech is turned to another person , than the speech appointed did intend or require . and this apostrophe or turning is diversly seen , according to the diversity of persons . sometimes it turneth to a mans person ; as david in the 6 psalm , where having gathered arguments of his safety , turneth hastily to the wicked , saying , away from me , all ye workers of iniquity , for the lord hath heard the voice of my petition . sometimes from a man to god , as ps. 3. david being dismayed with the number of his enemies , turneth himself to god , saying : but thou art my buckler , &c. sometimes to unreasonable creatures without sense . esai . 1. & esai . 20. 1. prosopopoeia or a feigning of the person , is whereby we do feign another person speaking in our speech ; and it is double ; imperfect , and perfect . imperfect is when the speech of another person is set down lightly and indirectly , as in the psal. 10. david , bringeth in the wicked , who say unto my soul , fly as the bird unto yonder hill . a perfect prosopopoeia is when the whole feigning of the person is set down in our speech , with a fit entring into the same , and a leaving it off . so wisd. pro. 8. where the entrance is in the first verses , her speech in the rest of the chapter . hitherto of the figures of sentences concerning one speaking alone . now follow the other , which concern the speeches of two . chap. ix . they which concern the speeches of two , are either in asking ; or in answering . that of asking , is either in deliberation ; or , in preventing an objection . deliberation is when we do ever now and then ask , as it were , reasons of our consultation , whereby the mind of the hearers wavering in doubt , doth set down some great thing . this deliberation is either in doubting ; or in communication . a doubting is a deliberating with our selves , as paul. 1. phil. 22. doubting whether it were better to dye than to live , he garnisheth his speech on this manner : for i am greatly in doubt on both sides , desiring to be loosed , and to be with christ , which is best of all : nevertheless , to abide in the flesh is more needful for you . communication is a deliberation with others . gal. 3. 1 , 2. o foolish galatians , who hath bewitched you , &c. and hitherto of the figure of speech between two , called deliberation . now followeth the figure of speech between two , called the preventing of an objection , or occupation . occupation is when we do bring an objection , and yield an answer unto it : therefore this speech between two in the first part , is called the setting down of the objection or occupation . in the latter part , an answering of the objection , or the subjection : as rom. 6. what shall we say then ? shall we continue still in sin that grace may abound ? in which words is set down the objection : the answering in these words , god forbid . and here this must be marked , that the objection is many times wanting , which must be wisely supplyed by considering the occasion and answer of it : as , 1 tim. 5. they will marry , having condemnation . now lest any might say , what , for marrying ? he answereth : no , for denying their first faith. hitherto of the figures of asking . now followeth the figures of answering . they are either in suffering of a deed , called permission ; or , granting of an argument , called concession . suffering of a deed or permission is , when mockingly we give liberty to any deed ; being never so filthy , as rev. let him that is filthy be filthy still . and 1 cor. 14. if any be ignorant , let him be ignorant . concession or granting of an argument is , when an argument is mockingly yielded unto , as , eccle. 11. rejoyce , o young man in thy youth , and let thy heart chear thee , &c. although the rules of sophistry be needless for them that be perfect in logick ; yet because the knowledge of them bringeth some profit to young beginners , both for the ready answering of the subtil arguments , and the better practising of logick and rhetorick , we have thought good to turn it into the english tongue . sophistry is the feigned art of enleches , or coloured reasons . a colourable reason , or elench , is a shew of reason to deceive withal . it is either when the deceit lyeth in the words ; or in the default of logick , called a sophism . in words is , either when the deceit lyeth in one word ; or in words joyned together . if it were , it should be , whosoever . in one word , is either the darkness of a word ; or , the doubtfulness of a word . the darkness of a word , or an insolencie deceiveth , when by a reason the meaning is not understood , whether the strangeness be through the oldness , newness , or swelling vanity of the words ; and of the last sort , is that spoken of in 2 pet. 2. 18. by this fallacie the papists conclude , the fathers to be on their side , for deserving by good works . whosoever saith mans merits are crowned , they say mans works do deserve . but the fathers say , mans merits are crowned . therefore the fathers say , mans works do deserve . where merits is an old word , put for any works done under the hope of reward whether it come by desart , or freedom of promise . doubtfulness of a word , likeness of name , is either called homonymia ; or by a trope or fineness of speech . the likeness of name , or homonymia , is when one word is given to signifie divers things : as , he that believeth shall be saved . the hypocrites to whom our saviour christ would not commit himself , believed , therefore they shall be saved . where faith doth note out both a justifying faith , and a dead faith. doubtfulness by a trope , is when a word is taken properly , which is meant figuratively , or contrarily : as , that which christ saith is true . christ saith that bread is his body . therefore it is true . where by body is meant the sign or sacrament of his body . unto the first , a perfect logician would answer , that the proposition is not an axiome necessarily true , according to the rule of truth , because of the doubtfulness of the old and new signification of merit . and if the word be far worn out of use , that it be not understood , then the answer must be , i understand it not , or put your axiome in plain words . to the second , he would answer , that the proposition or first part , is not according to the rule of righteousness , because the proper subject and adjunct are not joyned together : which hath justifying faith , or believing sincerely , shall be saved ; and then the assumption being in the same sense inferred , is false . unto the third he would answer , that the assumption is not necessarily true , because if the word body be taken properly , it is not then true that is set down : but if it be taken figuratively , it is true , and therefore would bid him make the assumption necessarily true , and then say , christ saith in proper words , it is my body ; and then it is false . hitherto of the fallacies in single words . now of those that are joyned together . it is either amphibolia , or the doubtfulness of speech : or , exposition , or unapt setting down of the reason . the first is , when there is doubtfulness in the frame of speech ; as thus , if any obey not our word by a letter , note him : where some refer by a letter , to the first part of the sentence , and some to the latter , where the signification of the word , and right pointing doth shew , that it must be referred to the first . the answer is , that the right and wise placing of the sentence is perverted . unapt setting down of the reason , is , when the parts of the question and the reasons intreated , is not set down in fit words : as , all sin is evil . every child of god doth sin . therefore every child of god is evil . here the answer according to logick , is that the assumption doth not take the argument out of the proposition , but putteth in another thing , and so it is no right frame of concluding , as appeareth by the definition of the assumption . hitherto of the deceits of reason which lye in words . now of the default of logick , called sophisme . it is either general , or special . the general are those which cannot be referred to any part of logick . they are either begging of the question , called the petition of the principle , or bragging of no proof . begging of the question is when nothing is brought to prove but the question , or that which is doubtful : as , that righteousness which is both by faith and works , doth justifie . but this righteousness , is inherent righteousness : ergo. here the proposition in effect is nothing but a question . if together with the blood of christ we must make perfect satisfaction for our sins , before we come to heaven . then there must be purgatory for them that die without perfection . but the first is so : ergo. where the argument they bring is as doubtful , and needeth as much proof as the question . the answer is this out of the definition of the syllogisme , that there is no new argument invented , therefore it cannot be a certain frame of concluding . bragging of no proof , is when that which is brought is too much , called redounding . it is either impertinent to another matter called heterogenium ; or a vain repetition , called tautologia . impertinent , or not to the purpose , is when any thing is brought for a proof , which is nothing near to the matter in hand , whereunto the common proverb giveth answer ; i ask you of cheese , you answer me of chalk . a vain repetition is , when the same thing in effect , though not in words , is repeated ; as they that after long time of prayer say , let us pray . and this fallacie our saviour christ condemneth in prayer , mat. 5. and this is a fault in method . special are those which may be referred to certain parts of logick , and they are of two sorts . such as are referred to the spring of reasons , called invention , or to judgment . those referred to invention are , when any thing is put for a reason , which is not , as no cause for a cause , no effect for an effect , and so of the rest . in the distribution this is a proper fallacie , when any thing simply or generally granted , thereby is inferred a certain respect or special not meant nor intended : as , he that saith , there are not seven sacraments , saith true . he that saith , there are only three , saith , there are not seven . therefore he that saith , there are three , saith true . the right answer is , that the proposition is not necessarily true , for there may be a way to say , there are not seven , and yet affirm an untruth . fallacies of judgment are those that are referred to the judgment of one sentence , or of more . of one sentence , either to the proprieties of an axiome ; or to the sorts . to the proprieties , as when a true is put for a false , and contrarily : and affirmative for a negative , and contrarily . so some take the words of saint john , i do not say concerning it , that you shall not pray , for no denyal ; when as it doth deny to pray for that sin . to the sorts are referred , either to the simple , or compound . the first when the general is taken for the special , and contrarily . so the papists by this fallacy do answer to that general saying of paul ; we are justified by faith without the works of the law. which they understand of works done before faith , when that was never called in doubt . the fallacies which are referred to a compound axiome , are those which are referred either to a disjoyned , or knitting axiome . to a disjoyned axiome when the parts indeed are not disjoyned : as , solomon was either a king , or did bear rule . to a knitting axiome is , when the parts are not necessarily knit together , 〈◊〉 if rome be one fire , the popes chair is burn● and hitherto of the first sort of fallacie referred to judgment . now followeth the second . and they be either those that are refer●red to a syllogisme ; or to method . and they again are general , and special general which are referred to the general properties of a syllogisme . it is either when all the parts are denyed or are particular . all parts denyed : as , no pope is a devil . no man is a devil . therefore . no man is a pope . and this must be answered , that it is no● according to the definition of a negativ● syllogisme , which must have always one affirmative . all particular : as , some unlawful thing must be suffered , 〈◊〉 namely that which cannot be taken away . the stews in some unlawful thing . therefore the stews must be suffered . this is answered by the definition of ● special syllogism , which is that hath one part general . the special are those which are simple , or compound . the simple is of two sorts . the first is more plain . the second less plain . more plain is when the assumption is denyed , or the question is not particular : as , every apostle may preach abroad : some apostle is not a pope , therefore some pope may not preach abroad . also , every pope is a lord : some pope may give an universal licence . therefore every lord may give an universal licence . less plain hath one fallacy in common , when the proposition is special . as , some player is a rogue : every vagabond is rogue , therefore every player is a vagabond . also , some player is a rogue : every vagabond is a player . therefore every player is a rogue . the fallacie of the first kind is when all the parts be affirmative : as , all pauls bishops were ordained for unity . all arch-bishops be ordained for unity . therefore all arch-bishops are pauls bishops . the fallacie of the second kind is when the assumption is denyed : as , every puritane is a christian. no lord bishop is a puritane , therefore no lord bishop is a christian. hitherto of the fallacies referred to a simple syllogism . now follow those which are referred to a compound , which are those which are referred either to the connexive , or to the disjoyned . of the first sort one is when the first part or antecedent is denyed , that the second or consequent may be so likewise : as , if any man have two benefices , he may escape unpunished at the bishops hands . but he may not have two benefices , therefore he may not escape unpunished at the bishops hands . the second part is affirmed , that the first may be so also . as , if every ignorant minister were put out of the church , and a preacher in his place , we should have good order . but we have good order , therefore every ignorant minister is put out of the church ; and a preacher in his place . of those referred to the disjoyned , the first is , when all the parts of the disjunction or proposition are not affirmed : as , every ignorant minister is to be allowed , or not . but he is not . therefore he is . the second kind is when the second part of the copulative negative axiome is denyed , that the first may be so ; as , a non-resident , is either a faithful , or unfaithful minister . but he is unfaithful , ergo , &c. and thus much of the fallacies in a syllogism . the fallacie in method is when , to deceive withal , the end is set in the beginning , the special before the general , good order be gone , confounded : and finally when darkness , length and hardness is laboured after . pinis . a dialogue between a phylosopher and a stvdent , of the common-laws of england . of the law of reason . law. what makes you say , that the study of the law is less rational , than the study of the mathematicks ? phylosoph . i say not that , for all study is rational , or nothing worth ; but i say that the great masters of the mathematicks do not so often err as the great professors of the law. law. if you had applyed your reason to the law , perhaps you would have been of another mind . ph. in whatsoever study , i examine whether my inference be rational , and have look't over the titles of the statutes from magna charta downward to this present time . i left not one unread , which i thought might concern my self , which was enough for me that meant not to plead for any but my self . but i did not much examine which of them was more , or less rational ; because i read them not to dispute , but to obey them , and saw in all of them sufficient reason for my obedience , and that the same reason , though the statutes themselves were chang'd , remained constant . i have also diligently read over littleton's book of tenures , with the commentaries thereupon of the renowned lawyer sir ed. coke , in which i confess i found great subtility , not of the law , but of inference from law , and especially from the law of humane nature , which is the law of reason : and i confess that it is truth which he sayes in the epilogue to his book ; that by arguments and reason in the law , a man shall sooner come to the certainty and knowledge of the law : and i agree with sir edw. coke , who upon that text farther ; that reason is the soul of the law , and upon sect . 138. nihil quod est rationi contrarium est licitum ; that is to say , nothing is law that is against reason : and that reason is the life of the law , nay the common law it self is nothing else but reason . and upon sect. 21. aequitas est perfecta quaedam ratio , quae jus scriptum interpretatur & emendat , nulla scriptura comprehensa , sed solus in vera ratione consistens . i. e. equity is a certain perfect reason that interpreteth and amendeth the law written , it self being unwritten , and consisting in nothing else but right reason . when i consider this , and find it to be true , and so evident as not to be denyed by any man of right sense , i find my own reason at a stand ; for it frustrates all the laws in the world : for upon this ground any man , of any law whatsoever may say it is against reason , and thereupon make a pretence for his disobedience . i pray you clear this passage , that we may proceed . la. i clear it thus out of sir edw. coke . i inst. sect. 138. that this is to be understood of an artificial perfection of reason gotten by long study , observation and experience , and not of every mans natural reason ; for nemo nascitur artifex . this legal reason is summa ratio ; and therefore if all the reason that is dispersed into so many several heads were united into one , yet could he not make such a law as the law of england is , because by so many successions of ages it hath been fined and refined by an infinite number of grave and learned men. ph. this does not clear the place , as being partly obscure , and partly untrue , that the reason which is the life of the law , should be not natural , but artificial i cannot conceive . i understand well enough , that the knowledge of the law is gotten by much study , as all other sciences are , which when they are studyed and obtained , it is still done by natural , and not by artificial reason . i grant you that the knowledge of the law is an art , but not that any art of one man , or of many how wise soever they be , or the work of one and more artificers , how perfect soever it be , is law. it is not wisdom , but authority that makes a law. obscure also are the words legal reason ; there is no reason in earthly creatures , but humane reason ; but i suppose that he means , that the reason of a judge , or of all the judges together ( without the king ) is that summa ratio , and the very law , which i deny , because none can make a law but he that hath the legislative power . that the law hath been fined by grave and learned men , meaning the professors of the law is manifestly untrue , for all the laws of england have been made by the kings of england , consulting with the nobility and commons in parliament , of which not one of twenty was a learned lawyer . law. you speak of the statute law , and i speak of the common law. ph. i speak generally of law. la. thus far i agree with you , that statute law taken away , there would not be left , either here , or any where , any law at all that would conduce to the peace of a nation ; yet equity , and reason which laws divine and eternal , which oblige all men at all times , and in all places , would still remain , but be obeyed by few : and though the breach of them be not punished in this world , yet they will be punished sufficiently in the world to come . sir edw. coke for drawing to the men of his own profession as much authority as lawfully he might , is not to be reprehended ; but to the gravity and learning of the judges they ought to have added in the making of laws , the authority of the king , which hath the soveraignty : for of these laws of reason , every subject that is in his wits , is bound to take notice at his peril , because reason is part of his nature , which he continually carryes about with him , and may read it , if he will. ph. 't is very true ; and upon this ground , if i pretend within a month , or two to make my self able to perform the office of a judge , you are not to think it arrogance ; for you are to allow to me , as well as to other men , my pretence to reason , which is the common law ( remember this that i may not need again to put you in mind , that reason is the common law ) and for statute law , seeing it is printed , and that there be indexes to point me to every matter contained in them , i think a man may profit in them very much in two months . law. but you will be but an ill pleader . ph. a pleader commonly thinks he ought to say all he can for the benefit of his client , and therefore has need of a faculty to wrest the sense of words from their true meaning ; and the faculty of rhetorick to seduce the jury , and sometimes the judge also , and many other arts , which i neither have , nor intend to study . la. but let the judge how good soever he thinks his reasoning , take heed that he depart not too much from the letter of the statute : for it is not without danger . ph. he may without danger recede from the letter , if he do not from the meaning and sense of the law , which may be by a learned man , ( such as judges commonly are ) easily found out by the preamble , the time when it was made , and the incommodities for which it was made : but i pray tell me , to what end were statute-laws ordained , seeing the law of reason ought to be applyed to every controversie that can arise . la. you are not ignorant of the force of an irregular appetite to riches , to power , and to sensual pleasures , how it masters the strongest reason , and is the root of disobedience , slaughter , fraud , hypocrisie , and all manner of evil habits ; and that the laws of man , though they can punish the fruits of them , which are evil actions , yet they cannot pluck up the roots that are in the heart . how can a man be indicted of avarice , envy , hypocrisie , or other vitious habit , till it be declared by some action , which a witness may take notice of ; the root remaining , new fruit will come forth till you be weary of punishing , and at last destroy all power that shall oppose it . ph. what hope then is there of a constant peace in any nation , or between one nation , and another ? la. you are not to expect such a peace between two nations , because there is no common power in this world to punish their injustice : mutual fear may keep them quiet for a time , but upon every visible advantage they will invade one another , and the most visible advantage is then , when the one nation is obedient to their king , and the other not ; but peace at home may then be expected durable , when the common people shall be made to see the benefit they shall receive by their obedience and adhaesion to their own soveraign , and the harm they must suffer by taking part with them , who by promises of reformation , or change of government deceive them . and this is properly to be done by divines , and from arguments not only from reason , but also from the holy scripture . ph. this that you say is true , but not very much to that i aim at by your conversation , which is to inform my self concerning the laws of england : therefore i ask you again , what is the end of statute-laws ? of soveraign power . la. i say then that the scope of all humane law is peace , and justice in every nation amongst themselves , and defence against forraign enemies . ph. but what is justice ? la. justice is giving to every man his own . ph. the definition is good , and yet 't is aristotles ; what is the definition agreed upon as a principle in the science of the common law ? la. the same with that of aristotle . ph. see you lawyers how much you are beholding to a philosopher , and 't is but reason , for the more general and noble science , and law of all the world is true philosophy , of which the common law of england is a very little part . la. 't is so , if you mean by philosophy nothing but the study of reason , as i think you do . ph. when you say that justice gives to every man his own , what mean you by his own ? how can that be given me which is my own already ? or , if it be not my own , how can justice make it mine ? la. without law every thing is in such sort every mans , as he may take , possess , and enjoy without wrong to any man , every thing , lands , beasts , fruits , and even the bodies of other men , if his reason tell him he cannot otherwise live securely : for the dictates of reason are little worth , if they tended not to the preservation and improvement of mens lives , seeing then without humane law all things would be common , and this community a cause of incroachment , envy , slaughter , and continual war of one upon another , the same law of reason dictates to mankind ( for their own preservation ) a distribution of lands , and goods , that each man may know what is proper to him , so as none other might pretend a right thereunto , or disturb him in the use of the same . this distribution is justice , and this properly is the same which we say is one owns : by which you may see the great necessity there was of statute laws , for preservation of all mankind . it is also a dictate of the law of reason , that statute laws are a necessary means of the safety and well being of man in the present world , and are to be obeyed by all subjects , as the law of reason ought to be obeyed , both by king and subjects , because it is the law of god. ph. all this is very rational ; but how can any laws secure one man from another ? when the greatest part of men are so unreasonable , and so partial to themselves as they are , and the laws of themselves are but a dead letter , which of it self is not able to compel a man to do otherwise than himself pleaseth , nor punish , or hurt him when he hath done a mischief . la. by the laws , i mean , laws living and armed : for you must suppose , that a nation that is subdued by war to an absolute submission of a conqueror , it may by the same arm that compelled it to submission , be compelled to obey his laws . also if a nation choose a man , or an assembly of men to govern them by laws , it must furnish him also with armed men and money , and all things necessary to his office , or else his laws will be of no force , and the nation remains , as before it was , in confusion . 't is not therefore the word of the law , but the power of a man that has the strength of a nation , that makes the laws effectual . it was not solon that made athenian laws ( though he devised them ) but the supream court of the people ; nor , the lawyers of rome that made the imperial law in justinian's time , but justinian himself . ph. we agree then in this , that in england it is the king that makes the laws , whosoever pens them , and in this , that the king cannot make his laws effectual , nor defend his people against their enemies , without a power to leavy souldiers , and consequently , that he may lawfully , as oft as he shall really think it necessary to raise an army ( which in some occasions be very great ) i say , raise it , and money to maintain it . i doubt not but you will allow this to be according to the law ( at least ) of reason . la. for my part i allow it . but you have heard how , in , and before the late troubles the people were of another mind . shall the king , said they , take from us what he please , upon pretence of a necessity whereof he makes himself the judg ? what worse condition can we be in from an enemy ! what can they take from us more than what they list ? ph. the people reason ill ; they do not know in what condition we were in the time of the conqueror , when it was a shame to be an english-man , who if he grumbled at the base offices he was put to by his norman masters , received no other answer but this , thou art but an english-man , nor can the people , nor any man that humors them in their disobedience , produce any example of a king that ever rais'd any excessive summ's , either by himself , or by the consent of his parliament , but when they had great need thereof ; nor can shew any reason that might move any of them so to do . the greatest complaint by them made against the unthriftiness of their kings was for the inriching now and then a favourite , which to the wealth of the kingdom was inconsiderable , and the complaint but envy . but in this point of raising souldiers , what is i pray you the statute law ? la. the last statute concerning it , is 13 car. 2. c. 6. by which the supream government command , and disposing of the militia of england is delivered to be , and always to have been the antient right of the kings of england : but there is also in the same act a proviso , that this shall not be construed for a declaration , that the king may transport his subjects , or compel them to march out of the kingdom , nor is it , on the contrary declared to be unlawful . ph. why is not that also determined ? la. i can imagine cause enough for it , though i may be deceiv'd . we love to have our king amongst us , and not be govern'd by deputies , either of our own , or another nation : but this i verily believe , that if a forraign enemy should either invade us , or put himself in t a readiness to invade either england , ireland , or scotland ( no parliament then sitting ) and the king send english souldiers thither , the parliament would give him thanks for it . the subjects of those kings who affect the glory , and imitate the actions of alexander the great , have not always the most comfortable lives , nor do such kings usually very long enjoy their conquests . they march to and fro perpetually , as upon a plank sustained only in the midst , and when one end rises , down goes the other . ph. 't is well . but where souldiers ( in the judgment of the kings conscience ) are indeed necessary , as in an insurrection , or rebellion at home ; how shall the kingdom be preserved without a considerable army ready , and in pay ? how shall money be rais'd for this army , especially when the want of publick treasure inviteth neighbour kings to incroach , and unruly subjects to rebel ? la i cannot tell . it is matter of polity , not of law ; but i know , that there be statutes express , whereby the king hath obliged himself never to levy money upon his subjects without the consent of his parliament . one of which statutes is . 25 ed. 1. c. 6. in these words , we have granted for us , and our heirs , as well to arch-bishops , bishops , abbots , and other folk of the holy church , as also earls , barons , and to all the commonalty of the land , that for no business from henceforth , we shall take such aids , taxes , or prizes , but by the common consent of the realm . there is also another statute of ed. 1. in these words , no taxes , or aid shall be taken or leveyed by us , or our heirs in our realm , without the good will , and assent of the arch-bishops , bishops , earls , barons , knights , burgesses , and other freemen of the land ; which statutes have been since that time confirmed by divers other kings , and lastly by the king that now reigneth . ph. all this i know , and am not satisfied . i am one of the common people , and one of that almost infinite number of men , for whose welfare kings , and other soveraigns were by god ordain'd : for god made kings for the people , and not people for kings . how shall i be defended from the domineering of proud and insolent strangers that speak another language , that scorn us , that seek to make us slaves ? or how shall i avoid the destruction that may arise from the cruelty of factions in a civil war , unless the king , to whom alone , you say , belongeth the right of levying , and disposing of the militia ; by which only it can be prevented , have ready money , upon all occasions , to arm and pay as many souldiers , as for the present defence , or the peace of the people shall be necessary ? shall not i , and you , and every man be undone ? tell me not of a parliament when there is no parliament sitting , or perhaps none in being , which may often happen ; and when there is a parliament if the speaking , and leading men should have a design to put down monarchy , as they had in the parliament which began to sit nov. 3. 1640. shall the king , who is to answer to god almighty for the safety of the people , and to that end is intrusted with the power to levy and dispose of the souldiery , be disabled to perform his office by virtue of these acts of parliament which you have cited ? if this be reason , 't is reason also that the people be abandoned , or left at liberty to kill one another , even to the last man ; if it be not reason , then you have granted it is not law. la. 't is true , if you mean recta ratio , but recta ratio which i grant to be law , as sir edw. coke says , 1 inst. sect. 138. is an artificial perfection of reason gotten by long study , observation , and experience , and not every mans natural reason ; for nemo nascitur artifex . this legal reason is summa ratio ; and therefore , if all the reason that is dispersed into so many several heads were united into one , yet could he not make such a law as the law of england is , because by many successions of ages it hath been fined and refin●d , by an infinite number of grave and learned men. and this is it he calls the common-law . ph. do you think this to be good doctrine ? though it be true , that no man is born with the use of reason , yet all men may grow up to it as well as lawyers ; and when they have applyed their reason to the laws ( which were laws before they studyed them , or else it was not law they studied ) may be as fit for , and capable of judicature as sir edw. coke himself , who whether he had more , or less use of reason , was not thereby a judge , but because the king made him so : and whereas he says , that a man who should have as much reason as is dispersed in so many several heads , could not make such a law as this law of england is ; if one should ask him who made the law of england ? would he say a succession of english lawyers , or judges made it , or rather a succession of kings ; and that upon their own reason , either solely , or with the advice of the lords and commons in parliament , without the judges , or other professors of the law ? you see therefore that the kings reason , be it more , or less , is that anima legis , that summa lex , whereof sir edw. coke speaketh , and not the reason , learning , or wisdom of the judges ; but you may see , that quite through his institutes of law , he often takes occasion to magnifie the learning of the lawyers , whom he perpetually termeth the sages of the parliament , or of the kings council : therefore unless you say otherwise , i say , that the kings reason , when it is publickly upon advice , and deliberation declar'd , is that anima legis , and that summa ratio , and that equity which all agree to be the law of reason , is all that is , or ever was law in england , since it became christian , besides the bible . la. are not the canons of the church part of the law of england , as also the imperial law used in the admiralty , and the customs of particular places , and the by-laws of corporations , and courts of judicature . ph. why not ? for they were all constituted by the kings of england ; and though the civil law used in the admiralty were at first the statutes of the roman empire , yet because they are in force by no other authority than that of the king , they are now the kings laws , and the kings statutes . the same we may say of the canons ; such of them as we have retained , made by the church of rome , have been no law , nor of any force in england , since the beginning of queen elizabeth's raign , but by virtue of the great seal of england . la. in the said statutes that restrain the levying of money without consent of parliament , is there any thing you can take exceptions to ? ph. no , i am satisfied that the kings that grant such liberties are bound to make them good , so far as it may be done without sin : but if a king find that by such a grant he be disabled to protect his subjects if he maintain his grant , he sins ; and therefore may , and ought to take no notice of the said grant : for such grants as by error , or false suggestion are gotten from him , are as the lawyers do confess , void and of no effect , and ought to be recalled . also the king ( as is on all hands confessed ) hath the charge lying upon him to protect his people against forraign enemies , and to keep the peace betwixt them within the kingdom ; if he do not his utmost endeavour to discharge himself thereof , he committeth a sin , which neither king , nor parliament can lawfully commit . la. no man i think will deny this : for if levying of money be necessary , it is a sin in the parliament to refuse , if unnecessary , it is a sin both in king and parliament to levy : but for all that it may be , and i think it is a sin in any one that hath the soveraign power , be he one man , or one assembly , being intrusted with the safety of a whole nation , if rashly , and relying upon his own natural sufficiency , he make war , or peace without consulting with such , as by their experience and employment abroad , and intelligence by letters , or other means have gotten the knowledge in some measure of the strength , advantages and designs of the enemy , and the manner and degree of the danger that may from thence arise . in like manner , in case of rebellion at home , if he consult not with of military condition , which if he do , then i think he may lawfully proceed to subdue all such enemies and rebels ; and that the souldiers ought to go on without inquiring whether they be within the country , or without : for who shall suppress rebellion , but he that hath right to levy , command , and dispose of the militia ? the last long parliament denied this . but why ? because by the major part of their votes the rebellion was raised with design to put down monarchy , and to that end maintained . ph. nor do i hereby lay any aspersion upon such grants of the king and his ancestors . those statutes are in themselves very good for the king and people , as creating some kind of difficulty , or such kings as for the glory of conquest might spend one part of their subjects lives and estates , in molesting other nations , and leave the rest to destroy themselves at home by factions . that which i here find fault with , is the wresting of those , and other such statutes to a binding of our kings from the use of their armies in the necessary defence of themselves and their people . the late long parliament that in 1648 , murdered their king ( a king that sought no greater glory upon earth , but to be indulgent to his people , and a pious defender of the church of england ) no sooner took upon them the soveraign power , then they levyed money upon the people at their own discretion . did any of their subjects dispute their power ? did they not send souldiers over the sea to subdue ireland , and others to fight against the dutch at sea , or made they any doubt but to be obeyed in all that they commanded , as a right absolutely due to the soveraign power in whomsoever it resides ? i say , not this as allowing their actions , but as a testimony from the mouths of those very men that denyed the same power to him , whom they acknowledged to have been their soveraign immediately before , which is a sufficient proof , that the people of england never doubted of the kings right to levy money for the maintenance of his armies , till they were abused in it by seditious teachers , and other prating men , on purpose to turn the state and church into popular government , where the most ignorant and boldest talkers do commonly obtain the best preferments ; again , when their new republick returned into monarchy by oliver , who durst deny him money upon any pretence of magna charta , or of these other acts of parliament which you have cited ? you may therefore think it good law , for all your books ; that the king of england may at all times , that he thinks in his conscience it will be necessar for the defence of his people , levy as many souldiers , and as much money as he please , and that himself is judge of the necessity . la. is there no body harkning at the door ? ph. what are you afraid of ? la. i mean to say the same that you say : but there be very many yet , that hold their former principles , whom , neither the calamities of the civil wars , nor their former pardon have throughly cur'd of their madness . ph. the common people never take notice of what they hear of this nature , but when they are set on by such as they think wise ; that is , by some sorts of preachers , or some that seem to be learned in the laws , and withal speak evil of the governors . but what if the king upon the sight , or apprehension of any great danger to his people ; as when their neighbours are born down with the current of a conquering enemy , should think his own people might be involved in the same misery , may he not levy , pay , and transport souldiers to help those weak neighbours by way of prevention , to save his own people and himself from servitude ? is that a sin ? la. first , if the war upon our neighbour be just , it may be question'd whether it be equity or no to assist them against the right . ph. for my part i make no question of that at all , unless the invader will , and can put me in security , that neither he , nor his successors shall make any advantage of the conquest of my neighbour , to do the same to me in time to come ; but there is no common power to bind them to the peace . la. secondly ; when such a thing shall happen , the parliament will not refuse to contribute freely to the safety of themselves , and the whole nation . ph. it may be so , and it may be not : for if a parliament then sit not , it must be called ; that requires 6 weeks time ; debating and collecting what is given requires as much , and in this time the opportunity perhaps is lost . besides , how many wretched souls have we heard to say in the late troubles ; what matter is it who gets the victory ? we can pay but what they please to demand , and so much we pay now : and this they will murmur , as they have ever done whosoever shall raign over them , as long as their coveteousness and ignorance hold together , which will be till dooms-day , if better order be not taken for their struction in their duty , both from reason and religion . la. for all this i find it somewhat hard , that a king should have right to take from his subjects , upon the pretence of necessity what he pleaseth . ph. i know what it is that troubles your conscience in this point . all men are troubled at the crossing of their wishes ; but it is our own fault . first , we wish impossibilities ; we would have our security against all the world , upon right of property , without paying for it : this is impossible . we may as well expect that fish , and fowl should boil , rost , and dish themselves , and come to the table ; and that grapes should squeeze themselves into our mouths , and have all other the contentments and ease which some pleasant men have related of the land of cocquam . secondly , there is no nation in the world where he , or they that have the soveraignty do not take what money they please , for defence of those respective nations , when they think it necessary for their safety . the late long parliament denyed this ; but why ? because there was a design amongst them to depose the king. thirdly , there is no example of any king of england that i have read of , that ever pretended any such necessity for levying of money , against his conscience . the greatest sounds that ever were levyed ( comparing the value of money , as it was at that time , with what now it is ) were levied by king edw. 3d. and king henry the 5th . kings of whom we glory now , and think their actions great ornaments to the english history . lastly , as to the enriching of now and then a favourite , it is neither sensible to the kingdom , nor is any treasure thereby conveyed out of the realm , but so spent as it falls down again upon the common people . to think that our condition being humane should be subject to no incommodity , were injuriously to quarrel with god almighty for our own faults ; for he hath done his part in annexing our own industry and obedience . la. i know not what to say . ph. if you allow this that i have said ; then , say that the people never were , shall be , or ought to be free from being taxed at the will of one or other ; being hindred that if civil war come , they must levy all they have , and that dearly , from the one , or from the other , or from both sides . say , that adhering to the king , their victory is an end of their trouble ; that adhering to his enemies there is no end ; for the war will continue by a perpetual subdivision , and when it ends , they will be in the same estate they were before . that they are often abused by men who to them seem wise , when then their wisdom is nothing else but envy to those that are in grace , and in profitable employments , and that those men do but abuse the common people to their own ends , that set up a private mans propriety against the publick safety . but say withal , that the king is subject to the laws of god , both written , and unwritten , and to no other ; and so was william the conqueror , whose right it all descended to our present king. la. as to the law of reason , which is equity , 't is sure enough there is but one legislator , which is god. ph. it followeth then that which you call the common-law , distinct from statute-law , is nothing else but the law of god. la. in some sense it is , but it is not gospel , but natural reason , and natural equity . ph. would you have every man to every other man alledge for law his own particular reason ? there is not amongst men an universal reason agreed upon in any nation , besides the reason of him that hath the soveraign power ; yet though his reason be but the reason of one man , yet it is set up to supply the place of that universal reason , which is expounded to us by our saviour in the gospel , and consequently our king is to us the legislator both of statute-law , and of common-law . la. yes , i know that the laws spiritual , which have been law in this kingdom since the abolishing of popery , are the kings laws , and those also that were made before ; for the canons of the church of rome were no laws , neither here , nor any where else without the popes temporal dominions , farther than kings , and states in their several dominions respectively did make them so . ph. i grant that . but you must grant also , that those spiritual laws legislators of the spiritual law ; and yet not all kings , and states make laws by consent of the lords and commons ; but our king here is so far bound to their assents , as he shall judge conducing to the good , and safety of his people ; for example , if the lords and commons should advise him to restore those laws spiritual , which in queen maries time were in force , i think the king were by the law of reason obliged , without the help of any other law of god , to neglect such advice . la. i grant you that the king is sole legislator , but with this restriction , that if he will not consult with the lords of parliament and hear the complaints , and informations of the commons , that are best acquainted with their own wants , he sinneth against god , though he cannot be compell'd to any thing by his subjects by arms , and force . ph. we are agreed upon that already , since therefore the king is sole legislator , i think it also reason he should be sole supream judge . la. there is no doubt of that ; for otherwise there would be no congruity of judgments with the laws . i grant also that he is the supream judge over all persons , and in all causes civil , and ecclesiastical within his own dominions , not only by act of parliament at this time , but that he has ever been so by the common-law : for the judges of both the benches have their offices by the kings letters patents , and so ( as to judicature ) have the bishops . also the lord chancellour hath his office by receiving from the king the great seal of england ; and to say all at once , there is no magistrate , or commissioner for publick business , neither of judicature , nor execution in state , or church , in peace , or war , but he is made so by authority from the king. ph. 't is true ; but perhaps you may ●●ink otherwise , when you read such acts of parliament , as say , that the king shall ●ave power and authority to do this , or that by virtue of that act , as eliz. c. 1. that your highness , your heirs , and successors , kings , or queens of this realm shall have ●●ll power and authority , by virtue of this act , by letters patents under the great seal of england to assign , &c. was it not this parliament that gave this authority to the queen ? la. for the statute in this clause is no more than ( as sir edw. coke useth to speak ) an affirmance of the common-law ; for she being head of the church of england might make commissioners for the de●iding of matters ecclesiastical , as freely ●s if she had been pope , who did you know pretend his right from the law of god. ph. we have hitherto spoken of laws without considering any thing of the na●ure and essence of a law ; and now unless we define the word law , we can go no ●arther without ambiguity , and fallacy , which will be but loss of time ; whereas , on the contrary , the agreement upon our words will enlighten all we have to say ●hereafter . la. i do not remember the definition of law in any statute . ph. i think so : for the statutes were made by authority , and not drawn from any other principles than the care of the safety of the people . statutes are not philosophy as is the common-law , and other disputable arts , but are commands , or prohibitions which ought to be obeyed , because assented to by submission made to the conqueror here in england , and to whosoever had the soveraign power in other common wealths ; so that the positive laws of all places are statutes . the definition of law was therefore unnecessary for the makers of statutes , though very necessary to them , whose work it is to teach the sence of the law. la. there is an accurate definition of a law in bracton , cited by sir edw. coke ( ) lex est sanctio justa , jubens honesta , & prohibens contraria . ph. that is to say , law is a just statute , commanding those things which are honest , and forbidding the contrary . from whence it followeth , that in all cases it must be the honesty , or dishonesty that makes the command a law , whereas you know that but for the law we could not ( as saith st. paul ) have known what is sin ; therefore this definition is no ground at all for any farther discourse of law. besides , you know the rule of honest , and dishonest refers to honour , and that it is justice only , and injustice that the law respecteth . but that which i most except against in this definition , is , that it supposes that a statute made by the soveraign power of a nation may be unjust . there may indeed in a statute law , made by men be found iniquity , but not injustice . la. this is somewhat subtil ; i pray deal plainly , what is the difference between injustice and iniquity ? ph. i pray you tell me first , what is the difference between a court of justice , and a court of equity ? la. a court of justice is that which hath cognizance of such causes as are to be ended by the possitive laws of the land ; and a court of equity in that , to which belong such causes as are to be determined by equity ; that is to say , by the law of reason . ph. you see then that the difference between injustice , and iniquity is this ; that injustice is the transgression of a statute-law , and iniquity the transgression of the law of reason , was nothing else but the law of reason , and that the judges of that law are courts of justice , because the breach of the statute-law is iniquity , and injustice also . but perhaps you mean by common-law , not the law it self , but the manner of proceeding in the law ( as to matter of fact ) by 12 men , freeholders , though those 12 men are no court of equity , nor of justice , because they determine not what is just or unjust , but only whether it be done , or not done ; and their judgment is nothing else but a confirmation of that which is properly the judgment of the witnesses ; for to speak exactly there cannot possibly be any judge of fact besides the witnesses . la. how would you have a law def●n'd ? ph. thus ; a law is the command of him , or them that have the soveraign power , given to those that be his or their subjects , declaring publickly , and plainly what every of them may do , and what they must forbear to do . la. seeing all judges in all courts ought to judge according to equity , which is the law of reason , a distinct court of equity seemeth to me to be unnecessary , and but a burthen to the people , since common-law , and equity are the same law. ph. it were so indeed ; if judges could not err , but since they may err , and that the king is not bound to any other law but that of equity , it belongs to him alone to give remedy to them that by the ignorance , or corruption of a judge shall suffer dammage . la. by your definition of a law , the kings proclamation under the great seal of england is a law ; for it is a command , and publick , and of the soveraign to his subjects . ph. why not ? if he think it necessary for the good of his subjects : for this is a maxim at the common-law alledged by sir edward coke himself . 1 inst. sect. 306. quando lex aliquid concedit , concedere videtur & id per quod devenitur ad illud . and you know out of the same author , that divers kings of ●ngland have often , to the petitions in parliament which they granted , annexed such exceptions as these , unless there be necessity , saving our regality ; which i think should be always understood , though they be not expressed ; and are understood so by common lawyers , who agree that the king may recall any grant wherein he was deceiv'd . la. again , whereas you make it of the essence of a law to be publickly and plainly declar'd to the people , i see no necessity for that . are not all subjects bound to take notice of all acts of parliament , when no act can pass without their consent ? ph. if you had said that no act could pass without their knowledge , then indeed they had been bound to take notice of them ; but none can have knowledge of them but the members of the houses of parliament , therefore the rest of the people are excus'd ; or else the knights of the shires should be bound to furnish people with a sufficient number of copies ( at the peoples charge ) of the acts of parliament at their return into the country ; that every man may resort to them , and by themselves , or friends take notice of what they are obliged to ; for otherwise it were impossible they should be obeyed : and that no man is bound to do a thing impossible is one of sir edw. cokes maxims at the common-law . i know that most of the statutes are printed , but it does not appear that every man is bound to buy the book of statutes , nor to search for them at westminster or at the tower , nor to understand the language wherein they are for the most part written . la. i grant it proceeds from their own faults ; but no man can be excused by the ignorance of the law of reason ; that is to say , by ignorance of the common-law , except children , mad-men , and idiots : but you exact such a notice of the statute-law , as is almost impossible . is it not enough that they in all places have a sufficient number of the poenal statutes ? ph. yes ; if they have those poenal statutes near them , but what reason can you give me why there should not be as many copies abroad of the statutes , as there be of the bible ? la. i think it were well that every man that can read had a statute-book ; for certainly no knowledge of those laws , by which mens lives and fortunes can be brought into danger , can be too much . i find a great fault in your definition of law ; which is , that every law either forbiddeth or commandeth something . 't is true that the moral-law is always a command or a prohibition , or at least implieth it ; but in the levitical-law , where it is said ; that he that stealeth a sheep shall restore four fold ; what command , or prohibition lyeth in these words ? ph. such sentences as that are not in themselves general , but judgments , nevertheless , there is in those words implied a commandment to the judge , to cause to be made a four-fold restitution . la. that 's right . ph. now define what justice is , and what actions , and men are to be called just. la. justice is the constant will of giving to every man his own ; that is to say , of giving to every man that which is his right , in such manner as to exclude the right of all men else to the same thing . a just action is that which is not against the law. a just man is he that hath a constant will to live justly ; if you require more , i doubt there will no man living be comprehended within the definition . ph. seeing then that a just action ( according to your definition ) is that which is not against the law ; it is manifest that before there was a law , there could be no injustice , and therefore laws are in their nature antecedent to justice and injustice , and you cannot deny but there must be law-makers , before there was any laws , and consequently before there was any justice , i speak of humane justice ; and that law-makers were before that which you call own , or property of goods , or lands distinguished by meum , tuum , alienum . la. that must be granted ; for without statute-laws , all men have right to all things ; and we have had experience when our laws were silenced by civil war , there was not a man , that of any goods could say assuredly they were his own . ph. you see then that no private man can claim a propriety in any lands , or other goods from any title , from any man , but the king , or them that have the soveraign power ; because it is in virtue of the soveraignty , that every man may not enter into , and possess what he pleaseth ; and consequently to deny the soveraign any thing necessary to the sustaining of his soveraign power , is to destroy the propriety he pretends to . the next thing i will ask you is , how you distinguish between law and right , or lex and jus. la. sir ed. coke in divers places makes lex and jus to be the same , and so lex communis , and jus communis to be all one ; nor do i find that he does in any places distinguish them . ph. then will i distinguish them , and make you judge whether my distinction be not necessary to be known by every author of the common law : for law obligeth me to do , or forbear the doing of something ; and therefore it lies upon me an obligation ; but my right is a liberty left me by the law to do any thing which the law forbids me not , and to leave undone any thing which the law commands me not . did sir ed. coke see no difference between being bound and being free ? la. i know not what he was , but he has not mention'd it , though a man may dispense with his own liberty , that cannot do so with the law. ph. but what are you better for your right , if a rebellious company at home , or an enemy from abroad take away the goods , or dispossess you of the lands you have a right to ? can you be defended , or repair'd , but by the strength and authority of the king ? what reason therefore can be given by a man that endeavours to preserve his propriety , why he should deny , or malignly contribute to the strength that should defend him , or repair him ? let us see now what your books say to this point , and other points of the right of soveraignty . bracton , the most authentick author of the common law , fol. 55. saith thus : ipse dominus rex habet omnia jura in manu suâ , est dei vicarius ; habet ea quae sunt pacis , habet etiam coercionem ut delinquentes puniat ; habet in potestate suâ leges ; nihil enim prodest jura condere , nisi sit qui jura tueatur . that is to say , our lord the king hath all right in his own hands ; is gods vicar ; he has all that concerns the peace ; he has the power to punish delinquents ; all the laws are in his power ; to make laws is to no purpose , unless there be some-body to make them obeyed . if bracton's law be reason , as i , and you think it is ; what temporal power is there which the king hath not ? seeing that at this day all the power spiritual which bracton allows the pope , is restored to the crown ; what is there that the king cannot do , excepting sin against the law of god ? the same bracton lib. 21. c. 8. saith thus ; si autem a rege petitur ( cum breve non curret contra ipsum ) locus erit supplicationi , quod factum suum corrigat , & emendet ; quod quidem si non fecerit , satis sufficit ad poenam , quod dominum expectet vltorem ; nemo quidem de factis ejus praesumat disputare , multo fortius contra factum ejus venire : that is to say , if any thing be demanded of the king ( seeing a writ lyeth not against him ) he is put to his petition , praying him to correct and amend his own fact ; which if he will not do , it is a sufficient penalty for him , that he is to expect a punishment from the lord : no man may presume to dispute of what he does , much less to resist him . you see by this , that this doctrine concerning the rights of soveraignty so much cryed down by the long parliament , is the antient common-law , and that the only bridle of the kings of england , ought to be the fear of god. and again bracton , c. 24. of the second book sayes , that the rights of the crown cannot be granted away ; ea vero quae jurisdictionis & pacis , & ea quae sunt justitiae & paci annexa , ad nullum pertinent , nisi ad coronam & dignitatem regiam , nec a corona separari possunt , nec a privata persona possideri . that is to say , those things which belong to jurisdiction and peace , and those things that are annexed to justice , and peace , appertain to none , but to the crown and dignity of the king , nor can be separated from the crown , nor be possest by a private person . again you 'l find in fleta ( a law-book written in the time of edw. 2. ) that liberties though granted by the king , if they tend to the hinderance of justice , or subversion of the regal power , were not to be used , nor allowed : for in that book c. 20. concerning articles of the crown , which the justices itinerant are to enquire of , the 54th article is this , you shall inquire de libertatibus concessis quae impediunt communem j●stitiam , & regiam potestatem subvertunt . now what is a greater hindrance to common justice , or a greater subversion of the regal power , than a liberty in subjects to hinder the king from raising money necessary to suppress , or prevent rebellions , which doth destroy justice , and subvert the power of the soveraignty ? moreover when a charter is granted by a king in these words , dedita & coram pro me & haeredibus meis . the grantor by the common-law ( as sir edw. coke sayes in his commentaries on littleton ) is to warrant his gift ; and i think it reason , especially if the gift be upon consideration of a price paid . suppose a forraign state should say claim to this kingdom ( 't is no matter as to the question i am putting , whether the claim be unjust ) how would you have the king to warrant to every free-holder in england the lands they hold of him by such a charter ? if he cannot levy money , their estates are lost , and so is the kings estate , and if the kings estate be gone , how can he repair the value due upon the warranty ? i know that the kings charters are not so meerly grants , as that they are not also laws ; but they are such laws as speak not to all the kings subjects in general , but only to his officers ; implicitly forbidding them to judge , or execute any thing contrary to the said grants . there be many men that are able judges of what is right reason , and what not ; when any of these shall know that a man has no superiour , nor peer in the kingdom , he will hardly be perswaded he can be bound by any law of the kingdom , or that he who is subject to none but god , can make a law upon himself , which he cannot also as easily abrogate , as he made it . the main argument , and that which so much taketh with the throng of people , proceedeth from a needless fear put into their minds by such men as mean to make use of their hands to their own ends ; for if ( say they ) the king may ( notwithstanding the law ) do what he please , and nothing to restrain him but the fear of punishment in the world to come , then ( in case there come a king that fears no such punishment ) he may take away from us , not only our lands , goods , and liberties , but our lives also if he will : and they say true ; but they have no reason to think he will , unless it be for his own profit , which cannot be ; for he loves his own power ; and what becomes of his power when his subjects are destroyed , or weakned , by whose multitude , and strength he enjoyes his power , and every one of his subjects his fortune ? and lastly , whereas they sometimes say the king is bound , not only to cause his laws to be observ'd , but also to observe them himself ; i think the king causing them to be observ'd is the same thing as observing them himself : for i never heard it taken for good law , that the king may be indicted , or appealed , or served with a writ , till the long parliament practised the contrary upon the good king charles , for which divers of them were executed , and the rest by this our present king pardoned . la. pardoned by the king and parliament . ph. by the king in parliament if you will , but not by the king , and parliament ; you cannot deny , but that the pardoning of injury , to the person that is injur'd , treason , and other offences against the peace , and against the right of the soveraign are injuries done to the king ; and therefore whosoever is pardoned any such offence , ought to acknowledge he ows his pardon to the king alone : but as to such murders , felonies , and other injuries as are done to any subject how mean soever , i think it great reason that the parties endammaged ought to have satisfaction before such pardon be allow'd . and in the death of a man , where restitution of life is impossible , what can any friend , heir , or other party that may appeal , require more than reasonable satisfaction some other way ? perhaps he will be content with nothing but life for life ; but that is revenge , and belongs to god , and under god to the king , and none else ; therefore if there be reasonable satisfaction tendred , the king , without sin ( i think ) may pardon him . i am sure , if the pardoning him be a sin , that neither king , nor parliament , nor any earthly power can do it . la. you see by this your own argument , that the act of oblivion , without a parliament could not have passed ; because , not only the king , but also most of the lords , and abundance of common people had received injuries ; which not being pardonable , but by their own assent , it was absolutely necessary that it should be done in parliament , and by the assent of the lords and commons . ph. i grant it ; but i pray you tell me now what is the difference between a general pardon , and an act of oblivion ? la. the word act of oblivion was never in our books before ; but i believe it is in yours . ph. in the state of athens long ago , for the abolishing of the civil war , there was an act agreed on ; that from that time forward , no man should be molested for any thing ( before that act done ) whatsoever without exception , which act the makers of it called an act of oblivion ; not that all injuries should be forgotten ( for then we could never have had the story ) but that they should not rise up in judgment against any man. and in imitation of this act the like was propounded ( though it took no effect ) upon the death of julius caesar , in the senate of rome . by such an act you may easily conceive that all accusations for offences past were absolutely dead , and buried , and yet we have no great reason to think , that the objecting one to another of the injuries pardoned , was any violation of those acts , except the same were so expressed in the act it self . la. it seems then that the act of oblivion was here no more , nor of other nature than a general pardon . of courts . ph. since you acknowledge that in all controversies , the judicature originally belongeth to the king , and seeing that no man is able in his own person to execute an office of so much business ; what order is taken for deciding of so many , and so various controversies ? la. there be divers sorts of controversies , some of which are concerning mens titles to lands , and goods ; and some goods are corporeal , and lands , money , cattel , corn , and the like , which may be handled , or seen ; and some incorporeal , as priviledges , liberties , dignities , offices , and many other good things , meer creatures of the law , and cannot be handled or seen : and both of these kinds are concerning meum , and tuum . others there are concerning crimes punishable divers wayes ; and amongst some of these , part of the punishment is some fine , or forfeiture to the king , and then it is called a plea of the crown , in case the king sue the party , otherwise it is but a private plea , which they call an appeal : and though upon judgment in an appeal the king shall have his forfeiture ; yet it cannot be called a plea of the crown , but when the crown pleadeth for it . there be also other controversies concerning the government of the church , in order to religion , and virtuous life . the offences both against the crown , and against the laws of the church are crimes ; but the offences of one subject against another , if they be not against the crown , the king pretendeth nothing in those pleas , but the reparation of his subjects injur'd . ph. a crime is an offence of any kind whatsoever , for which a penalty is ordain'd by the law of the land : but you must understand that dammages awarded to the party injur'd , has nothing common with the nature of a penalty , but is meerly a restitution , or satisfaction due to the party griev'd by the law of reason , and consequently is no more a punishment than is the paying of a debt . la. it seems by this definition of a crime you make no difference between a crime , and a sin . ph. all crimes are indeed sins , but not all sins crimes . a sin may be in the thought or secret purpose of a man , of which neither a judge , nor a witness , nor any man take notice ; but a crime is such a sin as consists in an action against the law , of which action he can be accused , and tryed by a judge , and be convinced , or cleared by witnesses . farther ; that which is no sin in it self , but indifferent , may be made sin by a positive law. as when the statute was in force ; that no man should wear silk in his hat , after the statute , such wearing of silk was a sin , which was not so before : nay sometimes an action that 's good in it self , by the statute law may be made a sin ; as if a statute should be made to forbid the giving of alms to a strong and sturdy beggar ; such alms after that law would be a sin , but not before : for then it was charity , the object whereof is not the strength , or other quality of the poor man , but his poverty . again , he that should have said in queen maries time , that the pope had no authority in england , should have been burnt at a stake ; but for saying the same in the time of queen elizabeth , should have been commended . you see by this , that many things are made crimes , and no crimes , which are not so in their own nature , but by diversity of law , made upon diversity of opinion , or of interest by them which have authority : and yet those things , whether good , or evil , will pass so with the vulgar ( if they hear them often with odious terms recited ) for hainous crimes in themselves , as many of those opinions , which are in themselves pious , and lawful , were heretofore by the popes interest therein called detestable heresie . again ; some controversies are of things done upon the sea , others of things done upon the land. there need by many courts to the deciding of so many kinds of controversies . what order is there taken for their distribution ? la. there be an extraordinary great number of courts in england ; first ; there be the kings courts both for law , and equity in matters temporal , which are the chancery , the kings-bench , the court of common-pleas , and for the kings revenue the court of the exchequer , and there be subjects courts by priviledge , as the court in london , and other priviledg'd places . and there be other courts of subjects , as the courts of landlords , called the court of barons , and the courts of sherifs . also the spiritual courts are the kings courts at this day , though heretofore they were the popes courts . and in the kings courts , some have their judicature by office , and some by commission , and some authority to hear , and determine , and some only to inquire , and to certifie into other courts . now for the distribution of what pleas every court may hold ; it is commonly held , that all the pleas of the crown , and of all offences contrary to the peace are to be holden in the kings bench , or by commissioners , for bracton saith ; sciendum est , quod si actiones sunt criminales , in curia domini regis debent determinari ; cum sit ibi poena c●rporalis infligenda , & hoc coram ipso rege , si tangat personam suam , sicut crimen laesae majestatis , vel coram justitiariis ad hoc specialiter assignatis . that is to say ; that if the plea be criminal , it ought to be determin'd in the court of our lord the king , because there they have power to inflict corporeal punishment , and if the crime be against his person , as the crime of treason , it ought to be determin'd before the king himself , or if it be against a private person , it ought to be determin'd by justices assigned ; that is to say , before commissioners . it seems by this , that heretofore kings did hear and determine pleas of treason against themselves , by their own persons ; but it has been otherwise a long time , and is now : for it is now the office of the lord steward of england in the tryal of a peer , to hold that plea by a commission especially for the same . in causes concerning meum , and tuum , the king may sue , either in the kings-bench , or in the court of common pleas , as it appears by fitzherbert in his natura brevium , at the writ of escheat . ph. a king perhaps will not sit to determine of causes of treason against his person , lest he should seem to make himself judge in his own cause ; but that it shall be judged by judges of his own making , can never be avoided , which is also one as if he were judge himself . la. to the kings-bench also ( i think ) belongeth the hearing , and determining of all manner of breaches of the peace whatsoever , saving alwayes to the king that he may do the same , when he pleaseth , by commissioners . in the time of henry the 3d , and edward the 1st , ( when bracton wrote ) the king did usually send down every seven years into the country commissioners called justices itinerant , to hear , and determine generally all causes temporal , both criminal , and civil , whose places have been now a long time supplyed by the justices of assize , with commissions of the peace of oyer , and terminer , and of goal-delivery . ph. but why may the king only sue in the kings-bench , or court of common-pleas , which he will , and no other person may do the same ? la. there is no statute to the contrary , but it seemeth to be the common-law ; for sir edw. coke , 4 inst. setteth down the jurisdiction of the kings-bench ; which ( he says ) has ; first , jurisdiction in all pleas of the crown . secondly , the correcting of all manner of errors of other justices , and judges , both of judgments and process ( except of the court of exchequer ) which he sayes , is to this court proprium quarto modo . thirdly ; that it has power to correct all misdemeanours extrajudicial tending to the breach of the peace , or oppression of the subjects , or raising of factions , controversies , debates , or any other manner of misgovernment . fourthly ; it may hold plea by writ out of the chancery of all trespasses done vi & armis . fifthly ; it hath power to hold plea by bill for debt , detinu , covenant , promise , and all other personal actions ; but of the jurisdiction of the kings-bench in actions real he says nothing ; save , that if a writ in a real action be abated by judgment in the court of common-pleas , and that the judgment be by a writ of error , reversed in the kings-bench , then the kings-bench may proceed upon the writ . ph. but how is the practice ? la. real actions are commonly decided , as well in the kings-bench , as in the court of common-pleas . ph. when the kng by authority in writing maketh a lord-chief-justice of the kings-bench ; does he not set down what he makes him for ? la. sir edw coke sets down the letters patents , whereby of antient time the lord chief-justice was constituted , wherein is expressed to what end he hath his office ; viz. pro conservatione nostra , & tranquilitatis regni nostri , & ad justitiam universis & singulis de regno nostro exhibendam , constituimus dilectum & fidelem nostrum p. b. justitiarium angliae , quamdiu nobis placuerit capitalem , &c. that is to say , for the preservation of our self , and of the peace of our realm , and for the doing of justice to all and singular our subjects , we have constituted our beloved and faithful p. b. during our pleasure , chief justice of england , &c. ph. methinks 't is very plain by these letters patents , that all causes temporal within the kingdom ( except the pleas that belong to the exchequer ) should be decidable by this lord-chief-justice . for as for causes criminal , and that concern the peace , it is granted him in these words , for the conservation of our self , and peace of the kingdom , wherein are contained all pleas criminal ; and , in the doing of justice to all and singular the kings subjects are comprehended all pleas civil . and as to the court of common-pleas , it is manifest it may hold all manner of civil-pleas ( except those of the exchequer ) by magna charta , cap. 11. so that all original writs concerning civil-pleas are returnable into either of the said courts ; but how is the lord-chief-justice made now ? la. by these words in their letters patents ; constituimus vos justitiarium nostrum capitalem ad placita coram nobis tenenda , durante beneplacito nostro . that is to say , we have made you our chief-justice to hold pleas before our self , during our pleasure . but this writ , though it be shorter , does not at all abridge the power they had by the former . and for the letters patents for the chief-justice of the common-pleas , they go thus , constituimus dilectum & fidelem , &c. capitalem justitiarium de communi banco , habendum , &c. quamdiu nobis placuerit , cum vadiis & foedis ab antiquo debitis & consuetis . id est , we have constituted our beloved and faithful , &c. chief-justice of the common-bench , to have , &c. during our pleasure , with the ways , and fees thereunto heretofore due , and usual . ph. i find in history , that there have been in england always a chancellour and a chief-justice of england , but of a court of common-pleas there is no mention before magna charta . common-pleas there were ever both here , and i think , in all nations ; for common-pleas and civil-pleas i take to be the same . la. before the statute of magna charta common-pleas ( as sir edw. coke granteth , 2 inst. p. 21. ) might have been holden in the kings-bench ; and that court being removeable at the kings will , the returns of writs were coram nobis ubicunque fuerimus in anglia ; whereby great trouble of jurors ensued , and great charges of the parties , and delay of justice ; and that for these causes it was ordain'd , that the common-pleas should not follow the king , but be held in a place certain . ph. here sir edw. coke declares his opinion , that no common-plea can be holden in the kings-bench , in that he says they might have been holden then . and yet this doth not amount to any probable proof , that there was any court of common-pleas in england before magna charta : for this statute being to ease the jurors , and lessen the charges of parties , and for the expedition of justice had been in vain , if there had been a court of common-pleas then standing ; for such a court was not necessarily to follow the king , as was the chancery , and the kings-bench . besides , unless the kings-bench , wheresoever it was , held plea of civil causes , the subject had not at all been eased by this statute : for supposing the king at york , had not the kings subjects about london , jurors , and parties as much trouble , and charge to go to york , as the people about york had before to go to london ? therefore i can by no means believe otherwise , then that the erection of the court of common-pleas was the effect of that statute of magna charta , cap. 11. and before that time not existent , though i think that for the multiplicity of suits in a great kingdom there was need of it . la. perhaps there was not so much need of it as you think : for in those times the laws , for the most part , were in setling , rather than setled ; and the old saxon laws concerning inheritances were then practised , by which laws speedy justice was executed by the kings writs , in the courts of barons , which were landlords to the rest of the freeholders , and suits of barons in county-courts , and but few suits in the kings courts , but when justice could not be had in those inferior courts ; but at this day there be more suits in the kings courts , than any one court can dispatch . ph. why should there be more suits now , than formerly ? for i believe this kingdom was as well peopled then as now . la. sir edw. coke , 4 inst. p. 76. assigneth for it six causes , 1. peace , 2. plenty , 3. the dissolution of religious houses , and dispersing of their lands among so many several persons , 4. the multitude of informers , 5. the number of concealers , 6. the multitude of attorneys . ph. i see sir edw. coke has no mind to lay any fault upon the men of his own profession ; and that he assigns for causes of the mischiefs , such things as would be mischief , and wickedness to amend ; for if peace , and plenty , be the cause of this evil , it cannot be removed but by war and beggery ; and the quarrels arising about the lands of religious persons cannot arise from the lands , but from the doubtfulness of the laws . and for informers they were authorised by statutes , to the execution of which statutes they are so necessary , as that their number cannot be too great , and if it be too great the fault is in the law it self . the number of concealers , are indeed a number of couseners , which the law may easily correct . and lastly for the multitude of attorneys , it is the fault of them that have the power to admit , or refuse them . for my part i believe that men at this day have better learn't the art of caviling against the words of a statute , than heretofore they had , and thereby encourage themselves , and others , to undertake suits upon little reason . also the variety and repugnancy of judgments of common-law do oftentimes put men to hope for victory in causes , whereof in reason they had no ground at all . also the ignorance of what is equity in their own causes , which equity not one man in a thousand ever studied , and the lawyers themselves seek not for their judgments in their own breasts , but in the precedents of former judges , as the antient judges sought the same , not in their own reason , but in the laws of the empire . another , and perhaps the greatest cause of multitude of suits is this , that for want of registring of conveyances of land , which might easily be done in the townships where the lands ly , a purchase cannot easily be had , which will not be litigious . lastly , i believe the coveteousness of lawyers was not so great in antient time , which was full of trouble , as they have been since in time of peace , wherein men have leisure to study fraud , and get employment from such men as can encourage to contention . and how ample a field they have to exercise this mystery in is manifest from this , that they have a power to scan and construe every word in a statute , charter , feofment , lease , or other deed , evidence , or testimony . but to return to the jurisdiction of this court of the kings-bench , where , as you say , it hath power to correct and amend the errors of all other judges , both in process , and in judgments ; cannot the judges of the common-pleas correct error in process in their own courts , without a writ of error from another court ? la. yes ; and there be many statutes which command them so to do . ph. when a writ of error is brought out of the kings-bench , be it either error in process , or in law , at whose charge is it to be done ? la. at the charge of the clyent . ph. i see no reason for that ; for the clyent is not in fault , who never begins a suit but by the advice of his council learned in the law , whom he pays for his council given . is not this the fault of his councellor ? nor when a judge in the common-pleas hath given an erroneous sentence , it is always likely that the judge of the kings-bench will reverse the judgment ( though there be no question , but as you may find in bracton , and other learned men , he has power to do it ) because being professors of the same common-law , they are perswaded , for the most part , to give the same judgments : for example ; if sir edw. coke in the last terme that he sate lord-chief-justice in the court of common-pleas , had given an erroneous judgment , that when he was removed , and made lord-chief-justice of the kings-bench , would therefore have reversed the said judgment , it is possi he might , but not very likely . and therefore i do believe there is some other power , by the king constituted , to reverse erroneous judgments , both in the kings-bench , and in the court of common-pleas . la. i think not ; for there is a statute to the contrary , made 4 o , hen. 4. cap. 23. in these words ; whereas , as well in plea real , as in plea personal , after judgment in the court of our lord the king , the parties be made to come upon grievous pain , sometimes before the king himself , sometimes before the kings council , and sometimes to the parliament to answer thereof anew , to the great impoverishing of the parties aforesaid , and to the subversion of the common-law of the land , it is ordained and established , that after judgment given in the court of our lord the king , the parties , and their heirs shall be there in peace , until the judgment be undone by attaint , or by error , if there be error , as hath been used by the laws in the times of the kings progenitors . ph. this statute is so far from being repugnant to that , i say , as it seemeth to me to have been made expresly to confirm the same : for the substance of the statu●e is , that there shall be no suit made by either of the parties for any thing adjudged , either in the kings-bench , or court of common-pleas , before the judgment be undone by error , or corruption prov'd ; and that this was the common-law before the making of this statute , which could not be , except there were ( before this statute ) some courts authorised to examine , and correct such errors as by the plaintiff should be assign'd . the inconvenience which by this statute was to be remedied was this , that often judgment given in the kings courts , by which are meant in this place the kings-bench , and court of common-pleas , the party against whom the judgment was given , did begin a new suit , and cause his adversary to come before the king himself ; here by the king himself must be understood the king in person ; for though in a writ by the words coram nobis is understood the kings-bench , yet in a statute it is never so ; nor is it strange , seeing in those days the king did usually sit in court with his council , to hear ( as sometimes king james ) and sometimes the same parties commenced their suit before the privy-council , though the king were absent ; and sometimes before the parliament the former judgment yet standing . for remedy whereof , it was ordained by this statute , that no man should renew his suit , till the former judgment was undone by attaint , or error ; which reversing of a judgment had been impossible , if there had been no court ( besides the aforesaid two courts ) wherein the errors might be assigned , examin'd , and judg'd ; for no court can be esteemed in law , or reason , a competent judge of its own errors . there was therefore before this statute some other court existent for the hearing of errors , and reversing of erroneous judgments . what court this was i enquire not yet , but i am sure it could not be either the parliament or the privy-council , or the court wherein the erroneous judgment was given . la. the doctor and student discourses of this statute , cap. 18. much otherwise than you do : for the author of that book saith , that against an erroneous judgment all remedy is by this statute taken away . and though neither reason , nor the office of a king , nor any law positive can prohibit the remedying of any injury , much less of an unjust sentence , yet he shows many statutes , wherein a mans conscience ought to prevail above the law. ph. upon what ground can he pretend , that all remedy in this case is by this statute prohibited ? la. he says it is thereby enacted , that judgment given by the kings courts shall not be examin'd in the chancery , parliament , nor elsewhere . ph. is there any mention of chancery in this act ? it cannot be examin'd before the king and his council , nor before the parliament , but you see that before the statute it was examin'd somewhere , and that this statute will have it examin'd there again . and seeing the chancery was altogether the highest office of judicature in the kingdom for matter of equity , and that the chancery is not here forbidden to examine the judgments of all other courts , at least it is not taken from it by this statute . but what cases are there in this chapter of the doctor and student , by which it can be made probable , that when law , and conscience , or law and equity seem to oppugne one another , the written law should be preferr'd ? la. if the defendant wage his law in an action of debt brought upon a true debt , the plaintiff hath no means to come to his debt by way of compulsion , neither by subpoena , nor otherwise , and yet the defendant is bound in conscience to pay him . ph. here is no preferring that , i see , of the law above conscience , or equity ; for the plaintiff in this case loseth not his debt for want either of law , or equity , but for want of proof ; for neither law , nor equity can give a man his right , unless he prove it . la. also if the grand-jury in attaint affirm a false verdict given by the petty-jury , there is no farther remedy , but the conscience of the party . ph. here again the want of proof is the want of remedy ; for if he can prove that the verdict given was false , the king can give him remedy such way as himself shall think best , and ought to do it , in case the party shall find surety , if the same verdict be again affirmed , to satisfie his adversary for the dammage , and vexation he puts him to . la. but there is a statute made since ; viz. 27 eliz. c. 8. by which that statute of hen. 4. 23. is in part taken away ; for by that statute erroneous judgments given in the kings-bench , are by a writ of error to be examin'd in the exchequer-chamber , before the justices of the common-bench , and the barons of the exchequer , and by the preamble of this act it appears , that erroneous judgments are only to be reform'd by the high court of parliament . ph. but here is no mention , that the judgments given in the court of common-pleas should be brought in to be examin'd in the exchequer-chamber , why therefore may not the court of chancery examin●● judgment given in the court of common-pleas ? la. you deny not but , by the antient law of england , the kings-bench may examine the judgment given in the court of common-pleas . ph. 't is true ; but why may not also the court of chancery do the same , especially if the fault of the judgment be against equity , and not against the letter of the law ? la. there is no necessity of that ; for the same court may examine both the letter and the equity of the statute . ph. you see by this , that the jurisdiction of courts cannot easily be distinguished , but by the king himself in his parliament . the lawyers themselves cannot do it ; for you see what contention there is between courts , as well as between particular men. and whereas you say , that law of 4 ▪ hen. 4. 23. is by that of 27 eliz. cap. 8. taken away , i do not find it so . i find indeed a diversity of opinion between the makers of the former and the latter statute , in the preamble of the latter and conclusion of the former . the preamble of the latter is ; forasmuch as erroneous judgments given in the court called the kings-bench , are only to be reformed in the high court of parliament , and the conclusion of the former is , that the contrary was law in the times of the kings progenitors . these are no parts of those laws , but opinions only concerning the antient custom in that case , arising from the different opinions of the lawyers in those different times , neither commanding , nor forbidding any thing ; though of the statutes themselves , the one forbids that such pleas be brought before the parliament , the other forbids it not : but yet if after the act of hen. 4. such a plea had been brought before the parliament , the parliament might have heard , and determin'd it : for the statute forbids not that ! nor can any law have the force to hinder the law of any jurisdiction whatsoever they please to take upon them , seeing it is a court of the king and of all the people together , both lords , and commons . la. though it be , yet seeing the king ( as sir edw. coke affirms , 4 inst. p. 71. ) hath committed all his power judicial , some to one court , and some to another , so as if any man would render himself to the judgment of the king , in such case where the king hath committed all his power judicial to others , such a render should be to no effect . and p. 73. he saith farther ; that in this court the kings of this realm have sitten on the high bench , and the judges of that court on the lower bench , at his feet ; but judicature belongeth only to the judges of that court , and in his presence they answer all motions . ph. i cannot believe that sir edw. coke , how much soever he desir'd to advance the authority of himself , and other justices of the common-law , could mean that the king in the kings-bench sate as a spectator only , and might not have answered all motions , which his judges answer'd , if he had seen cause for it : for he knew that the king was supream judge then in all causes temporal , and is now in all causes both temporal , and ecclesiastical ; and that there is an exceeding great penalty ordained by the laws for them that shall deny it . but sir edw. coke as he had ( you see ) in many places before , hath put a fallacy upon himself , by not distinguishing between committing , and transferring . he that transferreth his power , hath deprived himself of it , but he that committeth it to another to be exercised in his name , and under him , is still in the possession of the same power . and therefore if a man render himself ; that is to say , appealeth to the king from any judge whatsoever , the king may receive his appeal ; and it shall be effectual . la. besides these 2 courts , the kings-bench for pleas of the crown , and the court of common-pleas for causes civil , according to the common-law of england , there is another court of justice , that hath jurisdiction in causes both civil , and criminal , and is as antient a court , at least as the court of common pleas , and this is the court of the lord admiral , but the proceedings therein are according to the laws of the roman empire , and the causes to be determin'd there are such as arise upon the marine sea : for so it is ordain'd by divers statutes , and confirm'd by many precedents . ph. as for the statutes they are always law , and reason also ; for they are made by the assent of all the kingdom , but precedents are judgments one contrary to another ; i mean divers men , in divers ages , upon the same case give divers judgments . therefore i will ask your opinion once more concerning any judgments besides those of the king , as to their validity in law. but what is the difference between the proceedings of the court of admiralty , and the court of common-law ? la. one is , that the court of admiralty proceedeth by two witnesses , without any either grand-jury , to indict , or petty to convict , and the judge giveth sentence according to the laws imperial , which of old time were in force in all this part of europe , and now are laws , not by the will of any other emperor or forraign power , but by the will of the kings of england that have given them force in their own dominions ; the reason whereof seems to be , that the causes that arise at sea are very often between us , and people of other nations , such as are governed for the most part by the self same laws imperial . ph. how can it precisely enough be determin'd at sea , especially near the mouth of a very great river , whether it be upon the sea , or within the land ? for the rivers also are , as well as their banks , within , or a part of one country or other . la. truly the question is difficult , and there have been many suits about it , wherein the question has been , whose jurisdiction it is in . ph. nor do i see how it can be decided , but by the king himself , in case it be not declar'd in the lord admirals letters patents . la. but though there be in the letters patents a power given to hold plea in some certain cases ; to any of the statutes concerning the admiralty the justices of the common-law may send a prohibition to that court , to proceed in the plea , though it be with a non-obstante of any statute . ph. methinks that that should be against the right of the crown , which cannot be taken from it by any subject : for that argument of sir edw. coke's , that the king has given away all his judicial power , is worth nothing ; because ( as i have said before ) he cannot give away the essential rights of his crown , and because by a non-obstante he declares he is not deceived in his grant. la. but you may see by the precedents alledged by sir edw. coke , the contrary has been perpetually practised . ph. i see not that perpetually ; for who can tell , but there may have been given other judgments in such cases , which have either been not preserv'd in the records , or else by sir edw. coke ( because they were against his opinion ) not alledged : for this is possible , though you will not grant it to be very likely ; therefore i insist only upon this , that no record of a judgment is a law , save only to the party pleading , until he can by law reverse the former judgment . and as to the proceeding without juries by two sufficient witnesses , i do not see what harm can proceed from it to the common-wealth , nor consequently any just quarrel that the justice of the common-law can have against their proceedings in the admiralty : for the proof of a fact in both courts lyeth meerly on the witnesses , and the difference is no more , but that in the imperial-law , the judge of the court judgeth of the testimony of the witnesses , and the jury doth in a court of common-law . besides , if a court of common-law should chance to incroach upon the jurisdiction of the admiral , may not he send a prohibition to the court of common-law to forbid their proceeding ? i pray you tell me what reason there is for the one , more than for the other ? la. i know none but long custom ; for i think it was never done . ph. the highest ordinary court in england is the court of chancery , wherein the lord chancellour , or otherwise keeper of the great seal is the only judge . this court is very antient , as appears by sir edw. coke , 4 inst. p. 87. where he nameth the chancellors of king edgar , king etheldred , king edmund , and king edward the confessor . his office is given to him without letters patents by the kings delivery to him of the great seal of england , and whosoever hath the keeping of the great seal of england hath the same , and the whole jurisdiction that the lord chancellour ever had by the statute of 5 eliz. cap. 18. wherein it is declar'd , that such is , and always has been the common-law . and sir edw. coke says , he has his name of chancellour from the highest point of his jurisdiction ; viz. a cancellando ; that is , from cancelling the kings letters patents , by drawing strokes through it like a lattice . ph. very pretty . it is well enough known that cancellarius was a great officer under the roman empire , whereof this island was once a member , and that the office came into this kingdom , either with , or in imitation of the roman government . also it was long after the time of the 12 caesars , that this officer was created in the state of rome . for till after septimius severus his time , the emperors did diligently enough take cognizance of causes and complaints for judgments given in the courts of the praetors , which were in rome the same that the judges of the common-law are here ; but by the continual civil wars in after-times for the choosing of emperors , that diligence by little and little ceased ; and afterwards ( as i have read in a very good author of the roman civil law ) the number of complaints being much increased , and being more than the emperor could dispatch , he appointed an officer as his clerk , to receive all such petitions ; and that this clerk caused a partition to be made in a room convenient , in which partition-wall , at the heighth of a mans reach , he placed at convenient distances certain bars ; so that when a suitor came to deliver his petition to the clerk , who was sometimes absent , he had no more to do , but to throw in his petition between those bars , which in latin are called properly cancelli ; not that any certain form of those bars , or any bars at all were necessary ; for they might have been thrown over , though the whole space had been left open ; but because they were cancelli , the clerk attendant , and keeping his office there , was called cancellarius : and any court bar may properly enough be called cancelli , which does not signifie a lattice ; for that is but a meer conjecture grounded upon no history nor grammar , but taken up at first ( as is likely ) by some boy that could find no other word in the dictionary for a lattice but cancelli . the office of this chancellour was at first but to breviate the matter of the petitions , for the easing of the emperor , but complaints encreasing daily , they were too many , considering other businesses more necessary for the emperor to determine , and this caused the emperor to commit the determination of them to the chancellor again ; what reason doth sir edw. coke alledge to prove , that the highest point of the chancellors jurisdiction is to cancel his masters letters patents , after they were sealed with his masters seal ; unless he hold plea concerning the validity of them , or of his masters meaning in them , or of the surreptitious getting of them , or of the abusing of them , which are all causes of equity ? also , seeing the chancellor hath his office only by the delivery of the great seal , without any instruction , or limitation of the process in his court to be used ; it is manifest , that in all causes whereof he has the hearing , he may proceed by such manner of hearing , and examining of witnesses ( with jury , or without jury ) as he shall think fittest for the exactness , expedition and equity of the decrees . and therefore , if he think the custome of proceeding by jury , according to the custome of england in courts of common-law , tend more to equity ( which is the scope of all the judges in the world , or ought to be ) he ought to use that method , or if he think better of another proceeding , he may use it , if it be not forbidden by a statute . la. as for this reasoning of yours i think it well enough ; but there ought to be had also a reverend respect to customs not unreasonable ; and therefore , i think , sir edw. coke says not amiss ; that in such cases , where the chancellor will proceed by the rule of the common-law , he ought to deliver the record in the kings-bench ; and also it is necessary for the lord chancellor to take care of not exceeding as it is limited by statutes . ph. what are the statutes by which his jurisdiction is limited ? i know that by the 27 eliz. cap. 8. he cannot reverse a judgment given in the kings-bench for debt , detinue , &c. nor before the statute could he ever by virtue of his office , reverse a judgment in pleas of the crown , given by the kings-bench that hath the cognizance of such pleas , nor need he ; for the judges themselves , when they think there is need to relieve a man opprest by ill witnesses , or power of great men prevailing on the jury , or by error of the jury , though it be in case of felony , may stay the execution , and inform the king , who will in equity relieve him . as to the regard we ought to have to custome , we will consider of it afterward . la. first in a parliament holden the 13th of rich. 2. the commons petitioned the king , that neither the chancellor , nor other chancellor do make any order against the common-law , nor that any judgment be given without due process of law. ph. this is no unreasonable petition ; for the common-law is nothing else but equity : and by this statute it appears , that the chancellors , before that statute , made bolder with the courts of common law , than they did afterward ; but it does not appear that common-law in this statute signifies any thing else , but generally the law temporal of the realm , nor was this statute ever printed , that such as i might take notice of it ; but whether it be a statute or not , i know not , till you tell me what the parliament answer'd to this petition . la. the kings answer was , the wages heretofore shall stand , so as the kings royalty be saved . ph. this is slatly against sir edw. coke , concerning the chancery . la. in another parliament , 17 rich. 2. it is enacted , at the petition of the commons ; that forasmuch as people were compelled to come before the kings council , or in chancery , by writs grounded upon untrue suggestions , that the chancellor for the time being , presently after such suggestions , be duly found , and proved untrue , shall have power to ordain , and award dammages , according to his discretion , to him which is so travelled unduly , as is aforesaid . ph. by this statute it appears , that when a complaint is made in chancery upon undue suggestions , the chancellor shall have the examination of the said suggestions , and as he may avoid dammages when the suggestions are untrue , so he may also proceed by process to the detemining of the cause , whether it be real , or personal , so it be not criminal . la. also the commons petitioned in a parliament of 2 hen. 4. not printed ; that no writs , nor privy-seals be sued out of chancery , exchequer , or other places to any man to appear at a day , upon a pain , either before the king and his council , or in any other place , contrary to the ordinary course of common-law . ph. what answer was given to this petition by the king ? la. that such writs should not be granted without necessity . ph. here again you see the king may deny , or grant any petitions in parliament , either as he thinks it necessary , as in this place , or as he thinks it prejudicial , or not prejudicial to his royalty , as in the answer of the former petition , which is a sufficient proof , that no part of his legislative power , or any other essential part of royalty can be taken from him by a statute . now seeing it is granted , that equity is the same thing with the law of reason , and seeing sir edw. coke , 1 inst. sect. 21. defines equity to be a certain reason comprehended in no writing , but consisting only in right reason , which interpreteth and amendeth the written-law ; i would fain know to what end there should be any other court of equity at all , either before the chancellor or any other person , besides the judges of the civil , or common-pleas ? nay i am sure you can alledge none but this , that there was a necessity of a higher court of equity , than the courts of common-law , to remedy the errors in judgment given by the justices of inferior courts , and the errors in chancery were irrevocable , except by parliament , or by special commission appointed thereunto by the king. la. but sir edw. coke says , that seeing matters of fact by the common-law are tryable by a jury of 12 men , this court should not draw the matter ad aliud examen ; i. e. to another kind of examination , viz. by deposition of witnesses , which should be but evidence to a jury . ph. to the deposition of witnesses any more or less , then to evidence to the lord-chancellor ? 't is not therefore another kind of examination ; nor is a jury more capable of duly examining witnesses than a lord-chancellor . besides , seeing all courts are bound to judge according to equity , and that all judges in a case of equity , may sometimes be deceiv'd , what harm is there to any man , or to the state , if there be a subordination of judges in equity , as well as of judges in common-law ? seeing it is provided by an act of parliament to avoid vexation , that subpoenas shall not be granted , till surety be found to satisfie the party so grieved and vexed for his dammages and expences , if so be the matter may not be made good which is contained in the bill . la. there is another statute of 31 hen. 6. cap. 2. wherein there is a proviso cited by sir edw. coke in these words ; provided , that no matter determinable by the laws of the realm , shall be by the said act determined in other form , then after the course of the same law in the kings courts having the determination of the same law. ph. this law was made but for seven years , and never continued by any other parliament , and the motive of this law was the great riots , extortions , oppressions , &c. used during the time of the insurrection of john cade , and the indictments and condemnations wrongfully had by this usurped authority ; and thereupon the parliament ordained , that for 7 years following no man should disobey any of the kings writs under the great seal , or should refuse to appear upon proclamation before the kings council , or in the chancery , to answer to riots , extortions , &c. for the first time he should lose , &c. wherein there is nothing at all concerning the jurisdiction of the chancery , or any other court , but an extraordinary power given to the chancery , and to the kings privy-council , to determine of those crimes which were not before that time tryable , but only by the kings-bench , or special commission : for the act was made expresly for the punishment of a great multitude of crimes committed by those that had acted by the said cade's authority ; to which act the proviso was added , which is here mention'd , that the proceeds in those courts of chancery , and of the kings council should be such , as should be used in the courts , to which the said courts , before this act was made , do belong . that is to say , such causes as were criminal , should be after the order of the kings-bench , and such causes as were not criminal , but only against equity , should be tryed after the manner of the chancery , or in some cases according to the proceedings in the exchequer . i wonder why sir edw. coke should cite a statute ( as this is ) above two hundred years before expir'd , and other two petitions ; as if they were statutes , when they were not passed by the king ; unless he did it on purpose to diminish ( as he endeavours to do throughout his institutes ) the kings authority , or to insinuate his own opinions among the people for the law of the land : for that also he endeavours by inserting latin sentences , both in his text , and in the margin , as if they were principles of the law of reason , without any authority of antient lawyers , or any certainty of reason in themselves , to make men believe they are the very grounds of the law of england . now as to the authority you ascribe to custome , i deny that any custome of its own nature , can amount to the authority of a law : for if the custom be unreasonable , you must with all other lawyers confess that it is no law , but ought to be abolished ; and if the custom be reasonable , it is not the custom , but the equity that makes it law. for what need is there to make reason law by any custom how long soever when the law of reason is eternal ? besides , you cannot find in any statute ( though lex & consuetudo be often mentioned as things to be followed by the judges in their judgments ) that consuetudines , that is to say , customs , or usages did imply any long continuance of former time ; but that it signified such use , and custom of proceeding , as was then immediately in being before the making of such statute . nor shall you find in any statute the word common-law , which may not be there well interpreted for any of the laws of england temporal ; for it is not the singularity of process used in any court ; that can distinguish it so as to make it a different law from the law of the whole nation . la. if all courts were ( as you think ) courts of equity , would it not be incommodious to the common-wealth ? ph. i think not ; unless perhaps you may say , that seeing the judges , whether they have many , or few causes to be heard before them , have but the same wages from the king , they may be too much inclin'd to put off the causes they use to hear ( for the easing of themselves ) to some other court ; to the delay of justice , and dammage of the parties suing . la. you are very much deceiv'd in that ; for on contrary the contention between the courts for jurisdiction , is of who shall have most causes brought before them . ph. i cry you mercy , i smelt not that . la. seeing also all judges ought to give their sentence according to equity ; if it should chance that a written law should be against the law of reason , which is equity , i cannot imagine in that case how any judgment can be righteous . ph. it cannot be that a written law should be against reason : for nothing is more reasonable than that every man should obey the law , which he hath himself assented to ; but that is not always the law which is signified by grammatical construction of the letter , but that which the legislator thereby intended should be in force ; which intention , i confess , is a very hard matter many times to pick out of the words of the statute , and requires great ability of understanding , and greater meditations , and considerations of such conjuncture of occasions , and incommodities as needed a new law for a remedy ; for there is scarce any thing so clearly written , that when the cause thereof is forgotten , may not be wrested by an ignorant grammarian , or a cavilling logician , to the injury , oppression , or perhaps destruction of an honest man. and for this reason , the judges deserve that honour and profit they enjoy ; since the determination of what particular causes every particular court should have cognizance , is a thing not yet sufficiently explained , and is in it self so difficult , as that the sages of the law themselves ( the reason sir edw. coke will leave to law it self ) are not yet agreed upon it ; how is it possible for a man that is no professed , or no profound lawyer , to take notice in what court he may lawfully begin his suit , or give council in it to his client ? la. i confess that no man can be bound to take notice of the jurisdiction of courts , till all the courts be agreed upon it amongst themselves ; but what rule to give judgment by a judge can have , so as never to contradict the law written , nor displease his legislator i understand not . ph. i think he may avoid both , if he take care by his sentence , that he neither punish an innocent , nor deprive him of his ●ammages due from one that maliciously ●●eth him without reasonable cause , which ●o the most of rational men , and unbiassed ●s not , in my opinion , very difficult . and though a judge should ( as all men may do ) erre in his judgment , yet there is always such power in the laws of england , as may content the parties , either in the chancery , or by commissioners of their own choosing , authorized by the king ; for every man ●s bound to acquiesce in the sentence of the judges he chooseth . la. in what cases can the true construction of the letter be contrary to the meaning of the lawmaker ? ph. very many , whereof sir edw. coke nameth 3 , fraud , accident , and breach of confidence ; but there be many more ; for there be a very great many reasonable exceptions almost to every general rule , which the makers of the rule could not foresee ; and very many words in every statute , especially long ones , that are , as to grammar , of ambiguous signification , and yet to them that know well , to what end the statute was made , perspicuous enough ; and many connections of doubtful reference , which by a grammarian may be cavill'd at , though the intention of the lawmaker be never so perspicuous . and these are the difficulties which the judges ought to master , and can do it in respect of their ability for which they are chosen , as well as can be hoped for ; and yet there are other men can do the same , or else the judges places could not be from time to time supplyed . the bishops commonly are the most able and rational men , and obliged by their profession to study equity , because it is the law of god , and are therefore capable of being judges in a court of equity . they are the men that teach the people what is sin ; that is to say , they are the doctors in cases of conscience . what reason then can you shew me , why it is unfit , and hurtful to the common-wealth , that a bishop should be a chancellor , as they were most often before the time of hen. 8. and since that time once in the raign of king james ? la. but sir ed. says , that soon after that a chancellor was made , which was no professor of the law , he finds in the rolls of the parliament a grievous complaint by the whole body of the realm , and a petition that the most wise and able men within the realm might be chosen chancellors . ph. that petition was reasonable , but it does not say which are abler men , the judges of the common law , or the bishops . la. that is not the great question as to the ability of a judge ; both of one , and the other there are able men in their own way ; but when a judge of equity has need , almost in every case , to consider as well the statute-law , as the law of reason , he cannot perform his office perfectly , unless he be also ready in the statutes . ph. i see no great need he has to be ready in the statutes ; in the hearing of a cause do the judges of the common-law inform the council at the bar what the statute is , or the council the judges ? la. the council inform the judges . ph. why may they not as well inform the chancellor ? unless you will say , that a bishop understands not as well as a lawyer what is sense , when he hears it read in english. no ; no ; both the one , and the other are able enough , but to be able enough is not enough ; when , not the difficulty of the case only , but also the passion of the judge is to be conquer'd . i forgot to tell you of the statute of the 36 edw. 3. cap. 9. that if any person think himself grieved contrary to any of the articles above written , or others contained in divers statutes , will come to the chancery , or any for him , and thereof make his complaint , he shall presently there have remedy by force of the said articles , and statutes , without elsewhere pursuing to have remedy . by the words of this statute it is very apparent , in my opinion , that the chancery may hold plea upon the complaint of the party grieved , in any case tryable at the common-law , because the party shall have present remedy in that court , by force of this act , without pursuing for remedy elsewhere . la. yes ; but sir edw. coke answers this objection , 4 inst. p. 82. in this manner . these words , says he , he shall have remedy , signifie no more but that he shall have presently there a remedial writ grounded upon those statutes to give him remedy at the common-law . ph. very like sir edw. coke thought as soon as the party had his writ , he had his remedy , though he kept the writ in his pocket , without pursuing his complaint elsewhere ; or else he thought , that in the common-bench was not elsewhere than in the chancery . la. then there is the court of — ph. let us stop here ; for this which you have said satisfies me , that seek no more than to distinguish between justice , and equity ; and from it i conclude , that justice fulfils the law , and equity interprets the law ; and amends the judgments given upon the same law : wherein i depart not much from the definition of equity , cited in sir edw. coke , 1 inst. sect. 21. viz. equity is a certain perfect reason that interpreteth , and amendeth the law written ; though i construe it a little otherwise than he would have done ; for no one can mend a law but he that can make it , and therefore i say not it amends the law , but the judgments only when they are erroneous . and now let us consider of crimes in particular ( the pleas whereof are commonly called the pleas of the crown ) and of the punishments belonging to them ; and first of the highest crime of all which is high treason . tell me what is high treason . of crimes capital . la. the first statute that declareth what is high treason , is the statute of the 25 edw. 3. in these words . whereas divers opinions have been before this time , in what case treason shall be said , and in what not ; the king , at the request of the lords , and of the commons , hath made declaration in the manner as hereafter follows ; that is to say , when a man doth compass , or imagine the death of our lord the king , of our lady the queen , or of their eldest son and heir ; or if a man doth violate the kings companion , or the kings eldest daughter unmarried , or the wife of the kings eldest son and heir ; or if a man do levy war against our lord the king in his realm , or be adherent to the kings enemies in his realm , giving to them aid , and comfort in the realm , or elsewhere , and thereof be provably attainted by open deed , by people of their condition . and if a man counterfeit the kings great , or privy-seal , or his money . and if a man bring false money into this realm counterfeit to the money of england , as the money called lushburgh , or other like to the said money of england , knowing the money to be false , to merchandize , and make payment in deceit of our said lord the king , and of his people . and if a man slay the chancellor , treasurer , or the kings justices of the one bench , or the other , justices in eyre , or justices of assises , and all other justices assigned to hear , and determine , being in their places , and doing their offices . and is to be understood in the cases above rehearsed , that that ought to be adjudged treason , which extends to our royal lord the king , and his royal majesty , and of such treason the forfeiture of the escheats pertains to our lord the king , as well the lands and tenements holden of others as himself . and moreover there is another manner of treason ; that is to say , when a servant slayeth his master , or a wife her husband ; or when a man secular , or religious slayeth his prelate , to whom he oweth faith , and obedience ; and of such treason the escheats ought to pertain to every lord of his own fee. and because many other like cases of treason may happen in time to come , which a man cannot think , nor declare at this present time , it is accorded , that if any case supposed treason , which is not above specified , doth happen before any justices , the justices shall tarry without giving any judgment of the treason till the cause be shewed , and declared before the king and his parliament , whether it ought to be adjudged treason , or other felony . ph. i desir'd to understand what treason is , wherein no enumeration of facts can give me satisfaction . treason is a crime of it self , malum in se , and therefore a crime at the common-law , and high treason the highest crime at the common-law that can be : and therefore not the statute only , but reason without a statute makes it a crime . and this appears by the preamble , where it is intimated , that all men , though of divers opinions did condemn it by the name of treason , though they knew not what treason meant , but were forced to request the king to determine it . that which i desire to know is , how treason might have been defined without the statute , by a man that has no other faculty to make a definition of it , than by meer natural reason . la. when none of the lawyers have done it , you are not to expect that i should undertake it on such a sudden . ph. you know that salus populi is suprema lex ; that is to say , the safety of the people , is the highest law ; and that the safety of the people of a kingdom consisteth in the safety of the king , and of the strength necessary to defend his people , both against forraign enemies , and rebellious subjects . and from this i infer , that to compass ( that is ) to design the death of the then present king , was high treason before the making of this statute , as being a designing of a civil war , and the destruction of the people . 2. that the design to kill the kings wife , or to violate her chastity , as also to violate the chastity of the kings heir apparent , or of his eldest daughter unmarryed , as tending to the destruction of the certainty of the kings issue , and by consequence by raising of contentions about the crown , and destruction of the people in succeeding time by civil war , was therefore high treason before this statute . 3. that to levy war against the king within the realm , and aiding the kings enemies , either within , or without the realm , are tending to the kings destruction , or disherison , and was high treason , before this statute by the common-law . 4. that counterfeiting the principal seals of the kingdom , by which the king governeth his people , tendeth to the confusion of government , and consequently to the destruction of the people , and was therefore treason before the statute . 5. if a souldier design the killing of his general , or other officer in time of battel , or a captain hover doubtfully with his troops , with intention to gain the favour of him that shall chance to get the victory , it tendeth to the destruction both of king , and people , whether the king be present , or absent , and was high treason before the statute . 6. if any man had imprisoned the kings person , he had made him incapable of defending his people , and was therefore high treason before the statute . 7. if any man had , with design to raise rebellion against the king , written , or by words advisedly uttered , denyed the king regnant to be their lawful king , he that wrought , preached , or spoke such words , living then under the protection of the kings laws , it had been high treason before the statute for the reasons aforesaid . and perhaps there may be some other cases upon this statute , which i cannot presently think upon ; but the killing of a justice , or other officer as is determin'd by the statute , is not otherwise high treason , but by the statute . and to distinguish that which is treason by the common-law , from all other inferior crimes ; we are to consider , that if such high treason should take effect , it would destroy all laws at once ; and being done by a subject , 't is a return to hostility by treachery ; and consequently , such as are traytors may by the law of reason be dealt withal , as ignoble and treacherous enemies ; but the greatest of other crimes , for the most part ; are breaches of one only , or at least of very few laws . la. whether this you say be true , or false , the law is now unquestionable by a statute made in 1 and 2 of queen mary , whereby there is nothing to be esteemed treason , besides those few offences specially mentioned in the act of 25 ed. 3. ph. amongst these great crimes the greatest is that which is committed by one that has been trusted , and loved by him whose death he so designeth : for a man cannot well take heed of those , whom he thinks he hath obliged , whereas an open enemy gives a man warning before he acteth . and this it is for which the statute hath declared , that it is another kind of treason , when a servant killeth his master , or mistress , or a wife killeth her husband , or a clerk killeth his prelate ; and i should think it petty treason also , though it be not within the words of the statute ; when a tenant in fee , that holdeth by homage , and fealty , shall kill the lord of his fee ; for fealty is an oath of allegiance to the lord of the fee ; saving he may not keep his oath in any thing sworn to , if it be against the king. for homage , as it is expressed in a statute of 17 edw. 2. is the greatest submission that is possible to be made to one man by another ; for the tenant shall hold his hands together between the hands of his landlord , and shall say thus ; i become your man from this day forth for life , for member and for worldly honour , and shall owe that my faith for the lands that i shall hold of you , saving the faith that i owe unto our soveraign lord the king , and to many other lords : which homage , if made to the king , is equivalent to a promise of simple obedience , and if made to another lord , there is nothing excepted but the allegiance to the king ; and that which is called fealty , is but the same confirmed by an oath . la. but sir edw. coke , 4 inst. p. 11. denies that a traytor is in legal understanding the kings enemy ; for enemies ( saith he ) be those that be out of the allegiance of the king ; and his reason is ; because , if a subject joyn with a forraign enemy , and come into england with him , and be taken prisoner here , he shall not be ransomed , or proceeded with as an enemy shall , but he shall be taken as a traytor to the king. whereas an enemy coming in open hostility , and taken , shall either be executed by martial-law , or ransomed ; for he cannot be indicted of treason , for that he never was in the protection and ligeance of the king , and the indictment of the treason saith , contra ligeantiam suam debitam . ph. this is not an argument worthy of the meanest lawyer . did sir edw. coke . think it is possible for a king lawfully to kill a man , by what death soever without an indictment , when it is manifestly proved he was his open enemy ? indictment is a form of accusation peculiar to england , by the command of some king of england , and retained still , and therefore a law to this country of england ; but if it were not lawful to put a man to death otherwise than by an indictment no enemy could be put to death at all in other nations , because they proceed not , as we do , by indictment . again , when an open enemy is taken and put to death by judgment of martial-law ; it is not the law of the general or council of war , that an enemy shall be thus proceeded with , but the law of the king contained in their commissions ; such as from time to time the kings have thought fit , in whose will it always resteth , whether an open enemy , when he is taken , shall be put to death , or no , and by what death ; and whether he shall be ransomed , or no , and at what price ? then for the nature of treason by rebellion ; is it not a return to hostility ? what else does rebellion signifie ? william the conqueror subdued this kingdom ; some he killed ; some upon promise of future obedience he took to mercy , and they became his subjects , and swore allegiance to him ; if therefore they renew the war against him , are they not again open enemies ; or if any of them lurking under his laws , seek occasion thereby to kill him , secretly , and come to be known , may he not be proceeded against as an enemy , who though he had not committed what he design'd , yet had certainly a hostile design ? did not the long parliament declare all those for enemies to the state that opposed their proceedings against the late king ? but sir edw. coke does seldom well distinguish when there are two divers names for one and the same thing ; though one contain the other , he makes them always different , as if it could not be that one and the same man should be both an enemy , and a traytor . but now let us come to his comment upon this statute ; the statute says ( as it is printed in english ) when a man doth compass , or imagine the death of our lord the king , &c. what is the meaning of the word compassing , or imagining ? la. on this place sir edw. coke says , that before the making of this act , voluntas reputabatur pro facto , the will was taken for the deed. and so saith bracton , spectatur voluntas , & non exitus ; & nihil interest utrum quis occidat , aut causam praebeat ; that is to say , the cause of the killing : now sir edw. coke says , this was the law before the statute ; and that to be a cause of the killing , is to declare the same by some open deed tending to the execution of his intent , or which might be cause of death . ph. is there any english-man can understand , that to cause the death of a man , and to declare the same is all one thing ? and if this were so , and that such was the common-law before the statute , by what words in the statute is it taken away ? la. it is not taken away , but the manner how it must be prov'd is thus determin'd , that it must be prov'd by some open deed , as providing of weapons , powder , poyson , assaying of armour , sending of letters , &c. ph. but what is the crime it self which this statute maketh treason ? for as i understand the words , to compass , or imagine the kings death , &c. the compassing ( as it is in the english ) is the only thing which is made high treason ; so that not only the killing , but the design is made high treason ; or as it is in the french record , fait compasser ; that is to say , the causing of others to compass , or design the kings death is high treason ; and the words par overt fait , are not added as a specification of any treason , or other crime , but only of the proof that is requir'd by the law. seeing then the crime is the design and purpose to kill the king , or cause him to be killed , and lyeth hidden in the breast of him that is accused ; what other proof can there be had of it than words spoken or written . and therefore if there be sufficient witness , that he by words declared , that he had such a design , there can be no question , but that he is comprehended within this statute : sir edw. coke doth not deny , but that if he confess this design , either by word , or writing , but that he is within the statute . as for that common saying , that bare words may make a heretick , but not a traytor , which sir edw. coke on this occasion maketh use of , they are to little purpose ; seeing that this statute maketh not the words high treason , but the intention , whereof the words are but a testimony : and that common-saying is false as it is generally pronounced ; for there were divers statutes made afterwards , though now expir'd , which made bare words to be treason without any other deed : as , 1 el. cap. 6. & 13. el. cap. 1. if a man should publickly preach , that the king were an usurper , or that the right of the crown belonged to any other than the king that reigned , there is no doubt but it were treason , not only within this statute of e. 3. but also within the statute of 1 ed. 6. c. 12. which are both still in force . la. not only so ; but if a subject should counsel any other man to kill the king , queen , or heir apparent to the crown , it would at this day be judged high treason ; and yet it is no more than bare words . in the third year of king james , henry garnet , a jesuit-priest , to whom some of the gun-powder traytors had revealed their design by way of confession , gave them absolution , without any caution taken for their desisting from their purpose , or other provision against the danger , was therefore condemned , and executed as a traytor , though such absolution were nothing else but bare words . also i find in the reports of sir john davis , attorney-general for ireland ; that in the time of king henry the 6th , a man was condemned of treason , for saying the king was a natural fool , and unfit to govern ; but yet this clause in the statute of edw. 3. viz. that the compassing there mentioned ought to be proved by some overt act , was by the framers of the statute , not without great wisdom , and providence inserted : for as sir edw. coke very well observeth , when witnesses are examin'd concerning words only , they never or very rarely agree precisely about the words they swear to . ph. i deny not but that it was wisely enough done . but the question is not here of the treason ( which is either fact , or design ) but of the proof , which , when it is doubtful , is to be judged by a jury of 12 lawful men : now whether think you is it a better proof of a mans intention to kill , that he declares that same with his own mouth , so as it may be witnessed , or that he provide weapons , powder , poyson , or assay arms ? if he utter his design by words , the jury has no more to do than to consider the legallity of the vvitnesses , the harmony of their testimonies , or whether the words were spoken advisedly ? for they might have been uttered in a disputation for exercise only , or when he that spake them had not the use of reason , nor perhaps any design , or wish at all towards the execution of what he talked of : but how a jury from providing , or buying of armour , or buying of gun-powder , or from any other overt act , not treason in it self , can infer a design of murdering the king , unless there appear some words also , signifying to what end he made such provision , i cannot easily conceive . therefore as the jury on the whole matter vvords and deeds shall ground their judgment concerning design , or not design , so , in reason , they ought to give verdict . but to come to the treason of counterfeiting the great , or privy-seal , seeing there are so many ways for a cheating fellow to make use of these seals , to the cousening of the king , and his people ; why are not all such abuses high-treason , as well as the making of a false seal ? la. so they are : for sir edw. coke produceth a record of one that was drawn , and hang'd for taking the great seal from an expir'd patent , and fastning it to a counterfeit commission to gather money : but he approveth not the judgment , because it is the judgment for petty treason ; also because the jury did not find him guilty of the offence laid in the indictment , which was the counterfeiting of the great-seal , but found the special matter , for which the offender was drawn , and hang'd . ph. seeing this crime of taking the great seal from one vvriting , and fastning it to another was not found high treason by the jury , nor could be found upon special matter to be the other kind of treason mentioned in the same statute ; what ground had either the jury to find it treason , or the judge to pronounce sentence upon it ? la. i cannot tell . sir edw. coke seems to think it a false record ; for hereupon he saith by way of admonition to the reader , that hereby it appeareth how dangerous it is to report a case by the ear. ph. true ; but he does not make it apparent , that this case was untruly reported , but on the contrary confesseth , that he had perused the same record ; and a man may ( if it may be done without proof of the falsity ) make the same objection to any record whatsoever . for my part , seeing this crime produced the same mischief that ariseth from counterfeiting , i think it reason to understand it as within the statute : and for the difference between the punishments ( which are both of them capital ) i thing it is not worthy to be stood upon ; seeing death , which is , vltimum supplicium , is a satisfaction to the law ; as sir edw. coke himself hath in another place affirm'd . but let us now proceed to other crimes . la. appendent to this is another crime called misprision of treason ; which is the concealing of it by any man that knows it ; and it is called misprision from the french mespriser , which signifies to contemn , or undervalue ; for it is no small crime in any subject , so little to take to heart a known danger to the kings person , and consequently , to the whole kingdom , as not to discover not only what he knows , but also what he suspecteth of the same , that the truth therefore may be examin'd . but for such discovery , tho the thing prove false , the discoverer shall not , as i think , be taken for a false accuser ; if for what he directly affirms , he produce a reasonable proof , and some probability for his suspition ; for else the concealment will seem justifiable by the interest , which is to every man allowed in the preservation of himself from pain and dammage . ph. this i consent to . la. all other crimes meerly temporal are comprehended under felony , or trespass . ph. what is the meaning of the word felony ? does it signifie any thing that is in its own nature a crime , or that only which is made a crime by some statute ? for i remember some statutes that make it felony to transport horses , and some other things out of the kingdom ; which transportation before such statutes made , and after the repealing of the same , was no greater crime than any other usual traffick of a merchant . la. sir edw. coke derives the word felony from the latin word fel , the gall of a living creature , and accordingly defines felony to be an act done animo felleo ; that is to say , a bitter a cruel act. ph. etymologies are no definitions , and yet when they are true they give much light towards the finding out of a definition ; but this of sir edw. coke's carries with it very little of probability ; for there be many things made felony by the statute-law , that proceed not from any bitterness of mind at all , and many that proceed from the contrary . la. this is matter for a critick , to be pickt out of the knowledge of history and forraign languages , and you may perhaps know more of it than i do . ph. all that i , or , i think , any other can say in this matter will amount to no more than a reasonable conjecture , insufficient to sustain any point of controversie in law. the word is not to be found in any of the old saxon laws , set forth by mr. lambert , nor in any statute printed before that of magna charta ; there it is found . now magna charta was made in the time of hen. the 3d , grand-child to hen. the 2d , duke of anjou , a french-man born , and bred in the heart of france , whose language might very well retain many words of his ancestors the german-franks , as ours doth of the german-saxons ; as also many words of the language of the gaules , as the gaules did retain many words of the greek colonie planted at marseilles . but certain it is the french lawyers at this day use the word felon , just as our lawyers use the same ; whereas the common people of france use the word filou in the same sence ; but filou signifieth not the man that hath committed such an act , as they call felony ; but the man that maketh it his trade to maintain himself by the breaking and contemning of all laws generally ; and comprehendeth all those unruly people called cheaters , cut-purses , pick-locks , catch-cloaks , coyners of false money , forgers , thieves , robbers , murderers , and whosoever make use of iniquity on land , or sea , as a trading , or living . the greeks upon the coast of asia , where homer liv'd , were they that planted the colony of marseilles ; they had a word that signified the same with felon , which was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , filetes , and this filetes of homer signifies properly the same that a felon signifies with us : and therefore homer makes apollo to call mercury 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , fileteen , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; i insist not upon the truth of this etymologie ; but it is certainly more rational than the animus felleus of sir edw. coke . and for the matter it self it is manifest enough , that which we now call murder , robbery , theft , and other practices of felons , are the same that we call felony , and crimes in their own nature without the help of statute . nor is it the manner of punishment that distinguisheth the nature of one crime from another ; but the mind of the offender and the mischief he intendeth , considered together with the circumstances of person , time , and place . la. of felonies , the crime is murder . ph. and what is murder ? la. murder is the killing of a man upon malice forethought , as by a weapon , or by poyson , or any way , if it be done , upon antecedent meditation , or thus , murder is the killing of a man in cold blood. ph. i think there is a good definition of murder set down by statute , 52 hen. 3. cap. 25. in these words : murder from henceforth shall not be judged before our justices , where it is found misfortune only , but it shall take place in such as are slain by felony . and sir edw. coke interpreting this statute , 2 inst. p. 148. saith ; that the mischief before this statute was , that he that killed a man by misfortune , as by doing any act that was not against law , and yet against his intent , if the death of a man ensued , this was adjudged murder . but i find no proof that he alledgeth , nor find i any such law amongst the laws of the saxons , set forth by mr. lambert . for the word , it is ( as sir edw. coke noteth ) old saxon , and amongst them it signified no more than a man slain in the field , or other place , the author of his death not known . and according hereunto , bracton , who lived in the time of magna charta , defineth it fol. 134 , thus ; murder is the secret killing of a man , when none besides the killer , and his companions saw , or knew it ; so that it was not known who did it , nor fresh-suit could be made after the doer ; therefore every such killing was called murder before it could be known whether it could be by felony , or not : for a man may be found dead that kills himself , or was lawfully kill'd by another . this name of murder came to be the more horrid , when it was secretly done , for that it made every man to consider of their own danger , and him that saw the dead body to boggle at it , as a horse will do at a dead horse ; and to prevent the same they had laws in force to amerce the hundred where it was done , in a sum defined by law to be the price of his life : for in those dayes the lives of all sorts of men were valued by money ; and the value set down in their written laws . and therefore sir edw. coke was mistaken in that he thought that killing a man by misfortune before the statute of marlebridge was adjudged murder , and those secret murders were abominated by the people , for that they were lyable to so great a pecuniary punishment for suffering the malefactor to escape . but this grievance was by canutus , when he reign'd , soon eased : for he made a law , that the countrey in this case , should not be charged , unless he were an english-man that was so slain ; but if he were a french-man ( under which name were comprehended all forraigners , and especially the normans ) though the slayer escaped , the county was not to be amerced . and this law , though it were very hard , and chargeable when an english-man was so slain , for his friend to prove he was an english-man , and also unreasonable to deny the justice to a stranger ; yet was it not repealed till the 14th of king ed. the 3d. by this you see that murder is distinguished from homicide by the statute-laws , and not by any common-law without the statute ; and that it is comprehended under the general name of felony . la. and so also is petit treason , and i think so is high treason also ; for in the abovesaid statute in the 25 ed. 3d. concerning treasons there is this clause . and because that many other like cases of treason , may happen in time to come , which a man cannot think , or declare at the present time ; it is accorded , that if any other case , supposed treason which is not above specified , doth happen before any the justices , the justices shall tarry without any going to judgment of the treason , till the cause be shewed , and declared before the king and his parliament whether it be treason , or other felony ; which thereby shews that the king and parliament thought that treason was one of the sorts of felony . ph. and so think i. la. but sir edw. coke denies it to be so at this day ; for 1 inst. sect. 745. at the word felony , he saith ; that in antient time this word felony was of so large an extent , as that it included high treason — but afterwards it was resolved , that in the kings pardon , or charter , this word felony should extend only to common felonies — and at this day , under the word felony by law is included petit treason , murder , homicide , burning of houses , burglary , robbery , rape , &c. chance-medley , se defendendo , and petit larceny . ph. he says it was resolv'd , but by whom ? la. by the justices of assize in the time of hen. 4. as it seems in the margin . ph. have justices of assize any power by their commission to alter the language of the land , and the received sence of words ? or in the question in what case felony shall be said , it is referred to the judges to determine ; as in the question in what case treason shall be said it is referred by the statute of edw. the 3d. to the parliament ? i think not ; and yet perhaps they may be disobliged to disallow a pardon of treason , when mentioning all felonies it nameth not treason , nor specifies it by any description of the fact. la. another kind of homicide there is simply called so , or by the name of manslaughter , and is not murder , and that is when a man kills another man upon suddain quarrel , during the heat of blood. ph. if two meeting in the street chance to strive who shall go nearest to the wall , and thereupon fighting , one of them kills the other , i believe verily he that first drew his sword did it of malice forethought , though not long forethought ; but whether it be felony or no , it may be doubted . it is true , that the harm done is the same as if it had been done by felony ; but the wickedness of the intention was nothing near so great . and supposing it had been done by felony , then 't is manifest by the statute of marlebridge , that it was very murder . and when a man for a word , or a trifle shall draw his sword , and kill another man , can any man imagine that there was not some precedent malice ? la. 't is very likely there was malice more or less , and therefore the law hath ordained for it a punishment equal to that of murder , saving that the offender shall have the benefit of his clergy . ph. the benefit of clergy comes in upon another account , and importeth not any extenuation of the crime ; for it is but a relick of the old usurped papal priviledge , which is now by many statutes so pared off , as to spread but to few offences , and is become a legal kind of conveying mercy , not only to the clergy , but also to the laity . la. the work of a judge you see is very difficult , and requires a man that hath a faculty of well distinguishing of dissimilitudes of such cases as common judgments think to be the same . a small circumstance may make a great alteration , which a man that cannot well discern , ought not to take upon him the office of a judge . ph. you say very well ; for if judges were to follow one anothers judgments in precedent cases , all the justice in the world would at length depend upon the sentence of a few learned , or unlearned , ignorant men , and have nothing at all to do with the study of reason . la. a third kind of homicide is when a man kills another , either by misfortune , or in a necessary defence of himself , or of the king , or of his laws ; for such killing is neither felony , nor crime , saving ( as sir edw. coke says , 4. inst. p. 56. ) that if the act that a man is a doing when he kills another man be unlawful , then it is murder . as if a. meaneth to steal a deer in the park of b. shooteth at the deer , and by the glance of the arrow killeth a boy that is hidden in a bush ; this is murder , for that the act was unlawful ; but if the owner of the park had done the like , shooting at his own deer , it had been by misadventure , and no felony . ph. this is not so distinguished by any statute , but is the commonly only of sir ed. coke . i believe not a word of it . if a boy be robbing an apple-tree , and falling thence upon a man that stands under it , and breaks his neck , but by the same chance saveth his own life , sir edw. coke , it seems , will have him hanged for it , as if he had fallen of prepensed malice . all that can be called crime in this business is but a simple trespass , to the dammage perhaps of sixpence or a shilling . i confess the trespass was an offence against the law , but the falling was none , nor was it by the trespass , but by the falling that the man was slain ; and as he ought to be quit of the killing , so he ought to make restitution for the trespass . but i believe the cause of sir edw. coke's mistake was his not well understanding of bracton , whom he cites in the margin : for 1206 he saith thus : sed hic erit distinguendum , utrum quis dederit operam rei licitae , vel illicitae ; si illicitae , ut si bapidem projiciebat quis versus locum per quem consueverunt homines transitum facere , vel dum insequitur equum , vel bovem , & aliquis ab equo , vel a bove percussus fuerit , & hujusmodi , hoc imputatur ei , i. e. but here we are to distinguish whether a man be upon a lawful , or unlawful business ; if an unlawful , as he that throws a stone into a place , where men use to pass ; or if he chase a horse , or an ox , and thereby the man be stricken by the horse , or the ox , this shall be imputed to him : and it is most reasonable : for the doing of such an unlawful act as is here meant , is a sufficient argument of a felonious purpose , or at least a hope to kill some body , or other , and he cared not whom ; which is worse than to design the death of a certain adversary , which nevertheless is murder . also on the contrary , though the business a man is doing be lawful , and it chanceth sometimes that a man be slain thereby ; yet may such killing be felony . for if a car-man drive his cart through cheapside in a throng of people , and thereby he kill a man ; though he bare him no malice , yet because he saw there was very great danger , it may reasonably be inferr'd , that he meant to adventure the killing of some body , or other , though not of him that was kill'd . la. he is a felon also that killeth himself voluntarily , and is called , not only by common lawyers , but also in divers statute-laws , felo de se. ph. and 't is well so : for names imposed by statutes are equivalent to definitions ; but i conceive not how any man can bear animum felleum , or so much malice towards himself , as to hurt himself voluntarily , much less to kill himself ; for naturally , and necessarily the intention of every man aimeth at somewhat , which is good to himself , and tendeth to his preservation : and therefore , methinks , if he kill himself , it is to be presumed that he is not compos mentis , but by some inward torment or apprehension of somewhat worse than death , distracted . la. nay , unless he be compos mentis he is not felo de se ( as sir edw. coke saith , 4 inst. p. 54. ) and therefore he cannot be judged a felo de se , unless it be first proved he was compos mentis . ph. how can that be proved of a man dead ; especially if it cannot be proved by any witness , that a little before his death he spake as other men used to do . this is a hard place ; and before you take it for common-law it had need to be clear'd . la. i 'le think on 't . there 's a statute of 3 hen. 7. c. 14. which makes it felony in any of the kings houshold-servants under the degree of a lord , to compass the death of any of the kings privy-council . the words are these ; that from henceforth the steward , treasurer , and controuler of the kings house for that time being , or one of them , have full authority and power , to inquire by 12 sad men , and discreet persons of the chequer-roll of the king 's honourable houshold . if any servant , admitted to his servant sworn , and his name put into the chequer-roll , whatsoever he be serving in any manner , office , or room , reputed , had , or taken under the state of a lord , make any confederacies , compassings , conspiracies , or imaginations with any person to destroy , or murder the king , or any lord of this realm , or any other person sworn to the kings council , steward , treasurer , or controuler of the kings house . and if such misdoers shall be found guilty by confession , or otherwise , that the said offence shall be judged felony . ph. it appears by this statute , that not only the compassing the death ( as you say ) of a privy-councellor , but also of any lord of this realm is felony ; if it be done by any of the kings houshold servants that is not a lord. la. no ; sir edw. coke upon these words , any lord of this realm , or other person sworn of the kings council infers 4 inst. p. 38. that is to be understood of such a lord only as is a privy-councellor . ph. for barring of the lords of parliament from this priviledge , he strains this statute a little farther ( in my opinion ) than it reacheth of it self . but how are such felonies to be tryed ? la. the indictment is to be found , before the steward , treasurer , and controuler of the kings house , or one of them , by 12 of the kings houshold servants . the petit jury for the tryal must be 12 other of the kings servants , and the judges are again the steward , treasurer , and controuler of the kings house , or 2 of them ; and yet i see that these men are not usually great students of the law. ph. you may hereby be assur'd , that either the king and parliament were very much overseen in choosing such officers perpetually for the time being , to be judges in a tryal at the common-law , or else that sir edw. coke presumes too much , to appropriate all the judicature , both in law , and equity , to the common-lawyers ; as if neither lay-persons , men of honour , nor any of the lords spiritual , who are the most versed in the examination of equity , and cases of conscience , when they hear the statutes read , and pleaded , were unfit to judge of the intention and meaning of the same . i know , that neither such great persons , nor bishops have ordinarily so much spare time from their ordinary employment as to be so skilful as to plead causes at the bar ; but certainly they are , especially the bishops , the best able to judge of matters of reason ; that is to say ( by sir edw. coke's confession ) of matters ( except of blood ) at the common-law . la. another sort of felony , though without man-slaughter , is robbery ; and by sir edw. coke , 4 inst. p. 68. defined thus , robbery by the common-law is a felony committed by a violent assault upon the person of another , by putting him in fear , and taking away from him his money , or other goods of any value whatsoever . ph. robbery is not distinguished from theft by any statute . latrocinium comprehendeth them both , and both are felony , and both punished with death . and therefore to distinguish them aright is the work of reason only . and the first difference which is obvious to all men , is , that robbery is committed by force , or terror , of which neither is in theft ; for theft is a secret act , and that which is taken by violence , or terror , either from his person , or in his presence is still robbery ; but if it be taken secretly , whether it be by day , or night from his person , or from his fold , or from his pasture , then it is called theft . 't is force and fraud only that distinguisheth between theft , and robbery , both which are by the pravity only of the intention , felony , in their nature . but there be so many evasions of the law found out by evil men , that i know not in this predicament of felony how to place them : for suppose i go secretly by day , or night , into another mans field of wheat ripe , and standing , and loading my cart with it i carry it away ; is it theft , or robbery ? la. neither ; it is but trespass : but if you first lay down the wheat you have cut , and then throw it into your cart , and carry it away , then it is felony . ph. why so ? la. sir edw. coke tells you the reason of it , 4 inst. p. 107. for he defineth theft to be by the common-law a felonious , and fraudulent taking and carrying away by any man , or woman , of the meer personal goods of another , not from the person , nor by night in the house of the owner . from this definition he argues thus , p. 109. any kind of corn , or grain growing upon the ground is a personal chattel , and the executors of the owner shall have them , though they be not severed ; but yet no larceny can be committed of them , because they are annexed to the realty : so it is of grass standing on the ground , or of apples , or of any fruit upon the trees , &c. so it is of a box , or chest of charters , no larceny can be committed of them , because the charters concern the realty , and the box , or chest , though it be of great value , yet shall it be of the same nature the charters are of . omne magis dignum trahit ad se minus . ph. is this definition drawn out of any statute , or is it in bracton , or littleton , or any other writer upon the science of the laws ? la. no ; it is his own ; and you may observe by the logick-sentences dispersed through his works , that he was a logician sufficient enough to make a definition . ph. but if his definitions must be the rule of law ; what is there that he may not make felony , or not felony , at his pleasure ? but seeing it is not statute-law that he says , it must be very perfect reason , or else no law at all ; and to me it seems so far from reason as i think it ridiculous . but let us examine it . there can ( says he ) be no larceny of corn , grass , or fruits that are growing , that is to say , they cannot be stolen ; but why ? because they concern the realty ; that is , because they concern the land. 't is true that the land cannot be stolen , nor the right of a mans tenure ; but corn , and trees , and fruit , though growing , may be cut down , and carryed away secretly , and feloniously , in contempt , and despight of the law. and are they not then stolen ? and is there any act which is feloniously committed , that is not more than trespass ? can any man doubt of it that understands the english tongue ? 't is true , that if a man pretend a right to the land , and on that pretence take the fruits thereof by way of taking possession of his own , it is no more than a trespass , unless he conceal the taking of them ; for in that one case , he but puts the man that was in possession before to exhibit his complaint , which purpose is not felonious , but lawful ; for nothing makes a distinction between felony , and not felony , but the purpose . i have heard that if a man slander another with stealing of a tree standing , there lies no action for it , and that upon this ground , to steal a standing tree is impossible ; and that the cause of the impossibility is , that a man's free-hold cannot be stolen ; which is a very obvious fallacy ; for free-hold signifieth , not only the tenement , but also the tenure ; and though it be true that a tenure cannot be stolen , yet every man sees the standing trees , and corn , may easily be stolen ; and so far forth as trees , &c. are part of the freehold , so far forth also they are personal goods ; for whatsoever is freehold is inheritance , and descendeth to the heir , and nothing can descend to the executors , but what is meerly personal . and though a box , or case of evidences are to descend to the heir , yet unless you can shew me positive law to the contrary , they shall be taken into the executors hands , to be delivered to the heir . besides , how unconscionable a thing is it , that he that steals a shillings worth of wood ; which the wind hath blown down , or which lyeth rotten on the ground , should be hang'd for it , and he that takes a tree worth 20 or 40 shillings , should answer only for the dammage ? la. 't is somewhat hard , but it has been so practised time out of mind . then follows sodomy , and rape , both of them felonies . ph. i know that , and that of the former he justly says it is detestable , being in a manner an apostacie from humane nature : but in neither of them is there any thing of animus felleus . the statutes which make them felony are exposed to all mens reading ; but because sir edw. coke's commentaries upon them are more diligent and accurate than to be free from all uncleanness , let us leap over them both , observing only by the way , that he leaves an evasion for an impotent offender , though his design be the same , and pursued to the utmost of his power . la. two other great felonies are breaking , and burning of houses , neither of which are defin'd by any statute . the former of them is by sir edw. coke . 4 inst. p. 63. defined thus : burglary is by the common-law , the breaking and entring into the mansion-house of another , in the night with intent to kill some reasonable creature , or to commit some other felony within the same , whether his intent be executed , or not ; and defineth night to be then , when one man cannot know anothers face by day-light : and for the parts of a mansion-house he reckoneth all houses that belong to housekeeping , as barns , stables , dary-houses , buttery , kitchin , chambers , &c. but breaking of a house by day , though felony , and punished as burglary , is not within the statute . ph. i have nothing to say against his interpretations here , but i like not that any private man should presume to determine , whether such , or such a fact done be within the words of a statute , or not , where it belongs only to a jury of 12 men to declare in their verdict , whether the fact laid open before them be burglary , robbery , theft , or other felony ; for this is to give a leading judgment to the jury , who ought not to consider any private lawyers institutes , but the statutes themselves pleaded before them for directions . la. burning , as he defines it , p. 66. is a felony at the common-law committed by any that maliciously and voluntarily in the night , or day , burneth the house of another : and hereupon infers , if a man sets fire to the house , and it takes not , that then it is not within the statute . ph. if a man should secretly , and maliciously lay a quantity of gun-powder under another mans house , sufficient to blow it up , and set a train of powder in it , and set fire to the train , and some accident hinder the effect , is not this burning ? or what is it ? what crime ? it is neither treason , nor murder , nor burglary , nor robbery , nor theft , nor ( no dammage being made ) any trespass , nor contrary to any statute . and yet ( seeing the common-law is the law of reason ) it is a sin , and such a sin as a man may be accused of , and convicted , and consequently a crime committed of malice prepensed ; shall he not then be punished for the attempt ? i grant you that a judge has no warrant from any statute-law , common-law , or commission to appoint the punishment , but surely the king has power to punish him ( on this side of life or member ) as he please ; and with the assent of parliament ( if not without ) to make the crime for the future capital . la. i know not . besides these crimes there is conjuration , witch-craft , sorcery and inchantment , which are capital by the statute , 1 of king james , cap. 12. ph. but i desire not to discourse of that subject ; for though without doubt there is some great wickedness signified by those crimes ; yet i have ever found my self too dull to conceive the nature of them , or how the devil hath power to do many things which witches have been accused of . let us now come to crimes not capital . la. shall we pass over the crime of heresie , which sir edw. coke ranketh before murder , but the consideration of it will be somewhat long . ph. let us defer it till the afternoon . of heresie . la. concerning heresie , sir edw. coke , 4 inst. p. 39. says , that 5 things fall into consideration . 1. who be the judges of heresie . 2. what shall be judged heresie . 3. what is the judgment upon a man convicted of heresie . 4. what the law alloweth him to save his life . 5. what he shall forfeit by judgment against him . ph. the principal thing to be considered , which is the heresie it self , he leaveth out ; viz. what it is , in what fact , or words it consisteth , what law it violateth , statute-law , or the law of reason . the cause why he omitteth it , may perhaps be this ; that it was not only out of his profession , but also out of his other learning . murder , robbery , theft , &c. every man knoweth to be evil , and are crimes defined by the statute-law , so that any man may avoid them , if he will. but who can be sure to avoid heresie , if he but dare to give an account of his faith , unless he know beforehand what it is ? la. in the preamble of the statute of the 2d , hen. 4. cap. 15. heresie is laid down , as a preaching or writing of such doctrine , as is contrary to the determination of holy church . ph. then it is heresie at this day to preach , or write against worshipping of saints , or the infallibility of the church of rome , or any other determination of the same church : for holy-church , at that time , was understood to be the church of rome , and now with us the holy-church i understand to be the church of england ; and the opinions in that statute are now , and were then the true christian faith. also the same statute of hen. 4. declareth , by the same preamble , that the church of england had never been troubled with heresie . la. but that statute is repeal'd . ph. then also is that declaration , or definition of heresie repeal'd . la. what , say you , is heresie ? ph. i say heresie is a singularity of doctrine , or opinion contrary to the doctrine of another man , or men , and the word properly signifies the doctrine of a sect , which doctrine is taken upon trust of some man of reputation for wisdom , that was the first author of the same . if you will understand the truth hereof , you are to read the histories and other writings of the antient greeks , whose word it is , which writings are extant in these days , and easie to be had . wherein you will find , that in , and a little before the time of alexander the great ; there lived in greece many excellent wits , that employed their time in search of the truth in all manner of sciences worthy of their labour , and which to their great honour and applause published their writings ; some concerning justice , laws , and government , some concerning good , and evil manners , some concerning the causes of things natural , and of events discernable by sense ; and some of all these subjects . and of the authors of these , the principal were pythagoras , plato , zeno , epicurus and aristotle , men of deep and laborious meditation , and such as did not get their bread by their philosophy , but were able to live of their own , and were in honour with princes , and other great personages . but these men , though above the rest in wisdom , yet their doctrine in many points did disagree ; whereby it came to pass , that such men as studied their writings , inclined , some to pythagoras , some to plato , some to aristotle , some to zeno , and some to epicurus . but philosophy it self was then so much in fashion , as that every rich man endeavour'd to have his children educated in the doctrine of some , or other of these philosophers , which were for their wisdom so much renown'd . now those that followed pythagoras , were called pythagoreans ; those that followed plato , academicks ; those that followed zeno , stoicks ; those that followed epicurus , epicureans , and those that followed aristotle , peripateticks , which are the names of heresie in greek , which signifies no more but taking of an opinion ; and the said pythagoreans , academicks , stoicks , peripateticks , &c. were termed by the names of so many several heresies . all men ( you know ) are subject to error , and the ways of error very different ; and therefore 't is no wonder if these wise , and diligent searchers of the truth did , notwithstanding their excellent parts , differ in many points amongst themselves . but this laudable custom of great , wealthy persons to have their children at any price to learn philosophy , suggested to many idle and needy fellows , an easie and compendious way of maintenance ; which was to teach the philosophy , some of plato , some of aristotle , &c. whose books to that end they read over , but without capacity , or much endeavour to examine the reasons of their doctrines , taking only the conclusions , as they lay ; and setting up with this , they soon professed themselves philosophers , and got to be the school-masters to the youth of greece ; but by competition for such employment , they hated and reviled one another with all the bitter terms they could invent ; and very often , when upon occasion they were in civil company , fell first to disputation , and then to blows , to the great trouble of the company , and their own shame . yet amongst all their reproachful words the name of heretick came never in , because they were all equally hereticks , their doctrine not being theirs , but taken upon trust from the aforesaid authors . so that though we find heresie often mentioned in lucian , and other heathen authors , yet we shall not find in any of them haereticus for a heretick . and this disorder among the philosophers continued a long time in greece , and infecting also the romans , was at the greatest in the times of the apostles , and in the primitive church , till the time of the nicene council , and somewhat after . but at last the authority of the stoicks and epicureans was not much esteemed , only plato's and aristotle's philosophy were much in credit ; plato's with the better sort , that founded their doctrine upon the conceptions and ideas of things , and aristotle's with those that reasoned only from the names of things , according to the scale of the categories : nevertheless there were always , though not new sects of philosophy , yet new opinions continually arising . la. but how came the word heretick to be a reproach ? ph. stay a little . after the death of our saviour his apostles , and his disciples , as you know , dispersed themselves into several parts of the world to preach the gospel , and converted much people , especially in asia the less , in greece and italy , where they constituted many churches ; and as they travelled from place to place , left bishops to teach and direct those their converts , and to appoint presbyters under them to assist them therein , and to confirm them by setting forth the life , and miracles of our saviour , as they had receiv'd it from the writings of the apostles and evangelists ; whereby ( and not by the authority of plato , or aristotle , or any other philosopher ) they were to be instructed . now you cannot doubt but that among so many heathens converted in the time of the apostles , there were men of all professions , and dispositions , and some that had never thought of philosophy at all , but were intent upon their fortunes , or their pleasures ; and some that had a greater , some a lesser use of reason ; and some that had studied philosophy , but professed it not , which were commonly the men of the better rank ; and some had professed it only for their better abstinence , and had it not farther , than readily to talk and wrangle ; and some were christians in good earnest , and others but counterfeit , intending to make use of the charity of those that were sincere christians , which in those times was very great . tell me now of these sorts of christians which was the most likely to afford the fittest men to propagate the faith by preaching , and writing , or publick or private disputation ; that is to say , who were fittest to be made presbyters and bishops ? la. certainly those who ( caeteris paribus ) could make the best use of aristotle's rhetorick , and logick . ph. and who were the most prone to innovation ? la. they that were most confident of aristotle's , and plato's ( their former masters ) natural philosophy : for they would be the aptest to wrest the writings of the apostles , and all scriptures to the doctrine in which their reputation was engag'd . ph. and from such bishops and priests , and other sectaries it was , that heresie , amongst the christians , first came to be a reproach : for no sooner had one of them preached , or published any doctrine that displeased , either the most , or the most leading men of the rest , but it became such a quarrel as not to be decided , but by a council of the bishops in the province where they lived ; wherein he that would not submit to the general decree , was called an heretick , as one that would not reliquish the philosophy of his sect ; the rest of the council gave themselves the name of catholicks , and to their church , the name of catholick church . and thus came up the opposite terms of catholick and heretick . la. i understand how it came to be a reproach , but not how it follows that every opinion condemned by a church that is , or calls it self catholick , must needs be an error , or a sin. the church of england denies that consequence , and that doctrine as they hold cannot be proved to be erroneous , but by the scripture , which cannot err ; but the church , being but men , may both err , and sin. ph. in this case we must consider also that error , in it's own nature , is no sin : for it is impossible for a man to err on purpose , he cannot have an intention to err ; and nothing is sin , unless there be a sinful intention ; much less are such errors sins , as neither hurt the common-wealth , nor any private man , nor are against any law positive , or natural ; such errors as were those for which men were burnt in the time when the pope had the government of this church . la. since you have told me how herefie came to be a name , tell me also how it came to be a crime ? and what were the heresies that first were made crimes ? ph. since the christian church could declare , and none else , what doctrine were heresies , but had no power to make statutes for the punishment of hereticks before they had a christian king ; it is manifest that heresie could not be made a crime before the first christian emperor , which was constantine the great . in his time one arius a priest of alexandria in dispute with his bishop , publickly denyed the divinity of christ , and maintained it afterwards in the pulpit , which was the cause of a sedition , and much blood shed , both of citizens , and souldiers in that city . for the preventing of the like for the time to come , the emperor called a general council of bishops to the city of nice , who being met , he exhorted them to agree upon a confession of the christian faith , promising whatsoever they agreed on he would cause to be observed . la. by the way , the emperor ( i think ) was here a little too indifferent . ph. in this council was established so much of the creed we now use , and call the nicene creed , as reacheth to the words , i believe in the holy ghost . the rest was established by the 3 general councils next succeeding . by the words of which creed almost all the heresies then in being , and especially the doctrine of arius , were condemn'd : so that now all doctrines published by writing , or by word , and repugnant to this confession of the first four general councils , and contained in the nicene creed were , by the imperial law forbidding them , made crimes ; such as are that of arius denying the divinity of christ ; that of eutiches denying the 2 natures of christ ; that of the nestorians denying the divinity of the holy ghost ; that of the anthropomorphites , that of the manichees , that of the anabaptists , and many other . la. what punishment had arius ? ph. at the first for refusing to subscribe , he was deprived and banished ; but afterwards having satisfied the emperor concerning his future obedience ( for the emperor caused his confession to be made , not for the regard of truth of doctrine , but for the preserving of the peace , especially among his christian souldiers , by whose valour he had gotten the empire , and by the same was to preserve it ) he was received again into grace , but dyed before he could repossess his benefice . but after the time of those councils , the imperial law made the punishment for heresie to be capital , though the manner of the death was left to the praefects in their several jurisdictions ; and thus it continued till somewhat after the time of the emperor frederick barbarossa , and the papacy having gotten the upper hand of the emperor , brought in the use of burning both hereticks , and apostates ; and the popes from time to time made heresie of many other points of doctrine , ( as they saw it conduce to the setting up of the chair above the throne ) besides those determined in the nicene creed , and brought in the use of burning ; and according to this papal-law there was an apostate burnt at oxford in the time of william the conqueror for turning jew . but of a heretick burnt in england there is no mention made till after the statute of 2 hen. 4. whereby some followers of wiclif ( called lollards ) were afterwards burned , and that for such doctrines , as by the church of england , ever since the first year of queen el. have been approved for godly doctrines , and no doubt were godly then ; and so you see how many have been burnt for godliness . la. 't was not well done ; but 't is no wonder we read of no hereticks before the time of h. 4. for in the preamble to that statute it is intimated , that before those lollards there never was any heresie in england . ph. i think so too ; for we have been the tamest nation to the pope of all the world. but what statutes concerning heresie have there been made since ? la. the statute of 2 h. 5. c. 7. which adds to the burning the forfeiture of lands , and goods , and then no more till the 25 h. 8. c. 14. which confirms the two former and giveth some new rules concerning how they shall be proceeded with . but by the statute of 1 ed. 6. cap. 12. all acts of parliament formerly made to punish any manner of doctrine concerning religion are repeal'd . for therein it is ordain'd , after divers acts specified ; that all and every other act , or acts of parliament concerning doctrine , or matters of religion , and all , and every branch , article , sentence and matter , pains and forfeitures contained , mentioned , or any wise declared in the same acts of parliament or statutes shall be from henceforth repealed , utterly void , and of none effect . so that in the time of king ed. 6. not only all punishments of heresie were taken away , but also the nature of it was changed , to what originally it was , a private opinion . again in 12 phil. and ma. those former statutes of 2 h. 4. cap. 15. 2 h. 5. cap. 17. 25. h. 8. cap. 14. are revived , and the branch of 1 ed. 6. cap. 12. touching doctrine ( though not specially named ) seemeth to be this , that the same statute confirmeth the statute of 25 ed. 3. concerning treasons . lastly , in the first year of queen eliz. cap. 1. the aforesaid statutes of queen mary are taken away , and thereby the statute of 1 ed. cap. 12. revived ; so as there was no statute left for the punishment of hereticks . but queen eliz. by the advice of her parliament gave a commission ( which was called the high-commission ) to certain persons ( amongst whom were very many of the bishops ) to declare what should be heresie for the future ; but with a restraint , that they should judge nothing to be heresie , but what had been so declared in the first four general councils . ph. from this which you have shewed me , i think we may proceed to the examination of the learned sir edw. coke concerning heresie . in his chapter of heresie , 3 inst. p. 40. he himself confesseth , that no statute against heresie stood then in force : when in the 9th year of king james , bartholomew legat was burnt for arianism , and that from the authority of the act of 2 hen. 4. cap. 15. and other acts cited in the margin , it may be gather'd , that the diocesan hath the jurisdiction of heresie . this i say is not true : for as to acts of parliament it is manifest , that from acts repealed ; that is to say , from things that have no being , there can be gathered nothing . and as to the other authorities in the margin , fitzherbert , and the doctor and student , they say no more than what was law in the time when they writ ; that is , when the popes usurped authority was here obeyed : but if they had written this in the time of king ed. 6. or queen elizabeth , sir edw. coke might as well have cited his own authority , as theirs ; for their opinions had no more the force of laws than his . then he cites this precedent of legat , and another of hammond in the time of queen elizabeth ; but precedents prove only what was done , and not what was well done . vvhat jurisdiction could the diocesan then have of heresie , when by the statute of ed. 6. cap. 12. then in force , there was no heresie , and all punishment for opinions forbidden : for heresie is a doctrine contrary to the determination of the church , but then the church had not determined any thing at all concerning heresie . la. but seeing the high commissioners had power to correct , and amend heresies , they must have power to cite such as were accused of heresie , to appear before them , or else they could not execute their commission . ph. if they had first made , and published a declaration of what articles they made heresie , that when one man heard another speak against their declaration , he might thereof inform the commissioners , then indeed they had had power to cite , and imprison the person accus'd ; but before they had known what should be heresie ; how was it possible that one man should accuse another ? and before he be accused , how can he be cited ? la. perhaps it was taken for granted , that whatsoever was contrary to any of the 4 first general councils , was to be judged heresie . ph. that granted , yet i see not how one man might accuse another ' ere the better for those councils . for not one man of ten thousand had ever read them , nor were they ever published in english , that a man might avoid offending against them , nor perhaps are they extant ; nor if those that we have printed in latin are the very acts of the councils ( which is yet much disputed amongst divines ) do i think it fit they were put in the vulgar tongues . but it is not likely that the makers of the statutes had any purpose to make heresie of whatsoever was repugnant to those 4 general councils : for if they had , i believe the anabaptists , of which there was great plenty , in those times , would one time or other have been question'd upon this article of the nicene creed , i believe one baptism for the remission of sins ; nor was the commission it self for a long time after registred , that men might in such uncertainty take heed and abstain ( for their better safety ) from speaking of religion any thing at all . but by what law was this heretick legat burnt ? i grant he was an arian , and his heresie contrary to the determination of the church of england , in the highest points of christianity ; but seeing there was no statute-law to burn him , and no penalty forbidden , by what law , by what authority was he burn't ? la. that this legat was accused of heresie , was no fault of the high commissioners , but when he was accused , it had been a fault in them not to have examin'd him , or having examin'd him , and found him an arian , not to have judged him so , or not to have certified him so . all this they did , and this was all that belonged unto them ; they medled not with his burning , but left him to the secular power to do with him what they pleased . ph. your justification of the commissioners is nothing to the question ; the question is by what law he was burn't , the spiritual-law gives no sentence of temporal punishment , and sir edw. coke confesseth that , he could not be burned , and burning forbidden by statute-law . by what law then was he burned ? la. by the common-law . ph. what 's that ? it is not custom ; for before the time of henry the 4th , there was no such custom in england ; for if there had , yet those laws that came after were but confirmations of the customs , and therefore the repealing of those laws was a repealing of the custom . for when king ed. the 6th , and queen eliz. abolished those statutes , they abolished all pains , and consequently , burning , or else they had abolished nothing . and if you will say he was burn't by the law of reason , you must tell me how there can be proportion between doctrine and burning ; there can be no equality , nor majority , nor minority assigned between them . the proportion that is between them , is the proportion of the mischief which the doctrine maketh , to the mischief to be inflicted on the doctor ; and this is to be measur'd only by him that hath the charge of governing the people , and consequently , the punishing of offences can be determined by none but by the king , and that , if it extend to life or member , with the assent of parliament . la. he does not draw any argument for it from reason , but alledgeth for it this judgment executed upon legat , and a story out of hollingshed , and stow : but i know that neither history , nor precedent will pass with you for law. and though there be a writ de haeretico comburendo in the register ( as you may read in fitzherbert ) grounded upon the statutes of 2 h. 4. cap. 15. and 2 h. 5. cap. 7. yet seeing those statutes are void , you will say the vvrit is also void . ph. yes indeed will i. besides this , i understand not how that is true that he saith ; that the diocesan hath jurisdiction of heresie , and that so it was put in ure in all queen elizabeths reign ; whereas by the statute it is manifest , that all jurisdiction spiritual , was given under the queen , to the high commissioners , how then could any one diocesan have any part thereof without deputation from them , which by their letters patents they could not grant , nor was it reasonable they should : for the trust was not committed to the bishops only , but also to divers lay-persons , who might have an eye upon their proceedings , lest they should incroach upon the power temporal . but at this day there is neither statute , nor any law to punish doctrine , but the ordinary power ecclesiastical , and that according to the canons of the church of england , only authorized by the king , the high commission being long since abolished . therefore let us come now to such causes criminal , as are not capital . of praemunire . la. the greatest offence not capital is that which is done against the statute of provisoes . ph. you have need to expound this . la. this crime is not unlike to that for which a man is outlawed , when he will not come in and submit himself to the law ; saving that in outlawries there is a long process to precede it ; and he that is outlawed , is put out of the protection of the law. but for the offence against the statute of provisors ( which is called praemunire facias from the words in the original vvrit ) if the offender submit not himself to the law within the space of 2 months after notice , he is presently an outlaw : and this punishment ( if not capital ) is equivalent to capital : for he lives secretly at the mercy of those that know where he is , and cannot without the like peril to themselves , but discover him . and it has been much disputed before the time of queen elizabeth , whether he might not be lawfully killed by any man that would , as one might kill a vvolf : it is like the punishment amongst the old romans of being barred the use of fire and vvater , and like the great excommunication in the papacy , when a man might not eat , or drink with the offender without incurring the like penalty . ph. certainly the offence for which this punishment was first ordained , was some abominable crime , or of extraordinary mischief . la. so it was : for the pope , you know , from long before the conquest , incroached every day upon the power temporal . vvhatsoever could be made to seem to be in ordine ad spiritualia was in every common-wealth claimed , and haled to the jurisdiction of the pope : and for that end in every country he had his court ecclesiastical , and there was scarce any cause temporal , which he could not , by one shift or other , hook into his jurisdiction , in such sort as to have it tryed in his own courts at rome , or in france , or in england it self . by which means the kings laws were not regarded , judgments given in the kings courts were avoided , and presentations to bishopricks , abbies , and other benefices ( founded , and endowed by the kings , and nobility of england ) were bestowed by the pope upon strangers , or such ( as with money in their purses ) could travel to rome , to provide themselves of such benefices . and suitably hereunto , when there was a question about a tythe , or a vvill , though the point were meerly temporal , yet the popes court here would fetch them in , or else one of the parties would appeal to rome . against these injuries of the roman church , and to maintain the right and dignity of the crown of england , ed. 1. made a statute concerning provisors ( that is , such as provide themselves with benefices here from rome ) for in the 25th year of his reign he ordained in a full parliament that the right of election of bishops , and right of advowsans , and presentations belonged to himself , and to the nobility that were the founders of such bishopricks , abbies , and other benefices . and he enacted farther , that if any clerk , which he , or any of his subjects should present , should be disturbed by any such provisor that such provisor , or disturber should be attached by his body , and if convicted , lye in prison till he were ransomed at the kings will , and had satisfied the party griev'd , renouced his title , and sound sureties not to sue for it any farther ; and that if they could not be found , then exigents should go forth to outlawrie , and the profits of the benefice in the mean time be taken into the kings hands . and the same statute is confirmed in the 27th year of king ed. the 3d , which statute alloweth to these provisors six weeks day to appear , but if they appear before they be outlaw'd , they shall be received to make answer , but if they render not themselves , they shall forfeit all their lands , goods , and chattels , besides that they stand outlaw'd . the same law is confirmed again by 16 rich. 2d . cap. 5. in which is added ( because these provisors obtained sometimes from the pope , that such english bishops as according to the law were instituted , and inducted by the kings presentees should be excommunicated ) that for this also both they , and the receivers and publishers of such papal process , and the procurers should have the same punishment . ph. let me see the statute it self of 27 ed. 3. la. it lies there before you set down verbatim by sir edw. coke himself , both in english , and french. ph. 't is well , we are now to consider what it means , and whether it be well , or ill interpreted by sir edw. coke . and first it appeareth by the preamble ( which sir edw. coke acknowledgeth to be the best interpreter of the statute ) that this statute was made against the incroachments only of the church of rome , upon the right of the king , and other patrons to collate bishopricks and other benefices within the realm of england , and against the power of the courts spiritual , to hold plea of controversies determinable in any of the courts of the king , or to reverse any judgment there given , as being things that tend to the disherison of the king , and destruction of the common-law of the realm always used . put the case now that a man had procur'd the pope to reverse a decree in chancery , had he been within the danger of premunire ? la. yes certainly ; or if the judgment had been given in the court of the lord admiral , or in any other kings court whatsoever , either of law , or equity ; for courts of equity are most properly courts of the common-law of england , because equity , and common-law ( as sir ed. coke says ) are all one . ph. then the word common-law is not in this preamble restrained to such courts only where the tryal is by juries , but comprehends all the kings temporal courts , if not also the courts of those subjects that are lords of great mannors . la. 't is very likely , yet i think it will not by every man be granted . ph. the statute also says ; that they who draw men out of the realm in plea , whereof the cognizance pertaineth to the kings court , or of things whereof judgment is given in the kings court , are within the cases of premunire . but what if one man draw another to lambeth in plea , whereof judgment is already given at westminster . is he by this clause involv'd in a premunire ? la. yes : for though it be not out of the realm , yet it is within the meaning of the statute , because the popes court , not the kings court , was then perhaps at lambeth . ph. but in sir edw. coke's time the kings court was at lambeth , and not the popes . la. you know well enough , that the spiritual-court has no power to hold pleas of common-law . ph. i do so ; but i know not for what cause any simple man that mistakes his right court , should be out of the kings protection , lose his inheritance , and all his goods personal , and real ; and if taken , be kept in prison all his life . this statute cannot be by sir edw. cokes torture made to say it . besides , such men are ignorant in what courts they are to seek their remedy : and it is a custom confirmed by perpetual usage , that such ignorant men should be guided by their council at law. it is manifest therefore , that the makers of the statute intended not to prohibit men from their suing for their right , neither in the chancery , nor in the admiralty , nor in any other court , except the ecclesiastical courts , which had their jurisdiction from the church of rome . again , where the statute says , which do sue in any other court , or defeat a judgment in the kings court , what is the meaning of another court ? another court than what ? is it here meant the kings-bench , or court of common-pleas ? does a premunire lye for every man that sues in chancery , for that which might be remedied in the court of common-pleas ? or can a premunire lye by this statute against the lord chancellor ? the statute lays it only on the party that sueth , not upon the judge which holdeth the plea. nor could it be laid neither by this statute , nor by the statute of 16 rich. 2. upon the judges , which were then punishable only by the popes authority . seeing then the party suing has a just excuse upon the council of his lawyer ; and the temporal judge , and the lawyer both are out of the statute , the punishment of the premunire can light upon no body . la. but sir edw. coke in this same chapter bringeth two precedents to prove , that though the spiritual-courts in england be now the kings courts , yet whosoever sueth in them for any thing tryable by the common-law , shall fall into a premunire . one is , that whereas in the 22d of hen. 8. all the clergy of england in a convocation by publick instrument acknowledged the king to be supream head of the church of england ; yet after this , viz. 24 of h. 8. this statute was in force . ph. why not ? a convocation of the clergy could not alter the right of supremacie ; their courts were still the popes courts . the other precedent in the 25th of hen. 8. of the bishop of norwich may have the same answer , for the king was not declared head of the church by act of parliament , till the 26th year of his reign . if he had not mistrusted his own law , he would not have laid hold on so weak a proof as these precedents . and as to the sentence of premunire upon the bishop of norwich , neither doth this statute , nor that other of r. 2. warrant it ; he was sentenced for threatning to excommunicate a man which had sued another before the mayor : but this statute forbids not that , but forbids the bringing in , or publishing of excommunications , or other process from rome , or any other place . before the 26 hen. 8. there is no question , but that for a suit in the spiritual court here in a temporal cause , there lay a premunire ; and if perhaps some judge . or other hath since that time judged otherwise , his judgment was erroneous . la. nay but by the statute of 16. rich. 2. cap. 5. it appeareth to the contrary , as sir edw. coke here will shew you . the effect ( saith he ) of the statute of rich. 2. is ; that if any pursue , or cause to be pursued in the court of rome , or elsewhere any thing which toucheth the king , against him , his crown , or regality , or his realm , they , their notaries , &c. shall be out of the kings protection . ph. i pray you let me know the very words of the statutes as they ly . la. presently . the words are , if any man purchase , or pursue , or cause to be purchased , or pursued in the court of rome , or elsewhere , any such translations , processes and sentences of excommunication , bulls , instruments , or any other things whatsoever , which touch the king , against him , his crown , and his regality , or his realm , as is aforesaid , &c. ph. if a man bring a plea of common-law into the spiritual court , which is now the kings court , and the judge of this spiritual court hold plea thereof : by what construction can you draw it within the compass of the words you have now read . to sue for my right in the kings court , is no pursuing of translations of bishopricks made , or procur'd in the court of rome , or any place else , but only in the court of the king , nor is this the suit against the king , nor his crown , nor his regality , nor his realm , but the contrary . why then is it a premunire ? no. he that brings in , or setteth out a writing in any place whatsoever , wherein is contained , that the king hath so given away his jurisdiction , as that if a subject be condemned falsly , his submission to the kings judgment is of none effect ; or that the king upon no necessity whatsoever can , out of parliament time raise money for the defence of the kingdom , is , in my opinion , much more within the statute of provisors , than they which begin suit for a temporal matter in a court spiritual . but what argument has he for this law of his ( since the statute law fails him ) from the law of reason . la. he says they are called courts , either because they proceed by the rules of other laws , as by the canon , or civil law , or by other tryals than the common law doth warrant : for the tryals warranted by the law of england for matter of fact , is by verdict of 12 men before the judges of the common law , in matters pertaining to the common law , and not upon examination of witnesses , as in the court of equity ; so that alia curia is either that which is govern'd per aliam legem , or which draweth the party ad aliud examen . for if — ph. stop there . let us consider of this you have read , for the tryal warranted by the law of england , is by verdict of 12 men. what means he here by the law of england ? does it not warrant the tryals in chancery , and in the court of admiralty by witnesses ? la. by the law of england he means the law used in the kings bench ; that is to say , the common-law . ph. this is just as if he had said , that these two courts did warrant their own way of tryal ; but other courts not so , but were warranted by the king only , the courts of common law were vvarrants to themselves : you see that alia curia is this way ill expounded . in the courts of common law all tryals are by 12 men , who are judges of the fact ; and the fact known and prov'd , the judges are to pronounce the law ; but in the spiritual court , the admiralty , and in all the courts of equity there is but one judge , both of fact , and of law ; this is all the difference . if this difference be intended by the statute by alia curia , there would be a premunire for suing in a court , being not the kings court : the kings bench , and court of common pleas may also be different kinds of courts , because the process is different ; but 't is plain that this statute doth not distinguish courts otherwise than into the courts of the king , and into the courts of the forraign states , and princes . and seeing you stand upon the name of a jury for the distinguishing of courts , what difference do you find between the tryals at the common-law , and the tryals in other courts ? you know that in tryals of fact naturally , and through all the world the witnesses are judges , and it is impossible to be otherwise . what then in england can a jury judge of , except it be of the sufficiency of the testimony . the justices have nothing to judge of , nor do , but after the fact is proved , to declare the law , which is not judgment , but jurisdiction . again , though the tryal be in chancery , or in the court of civil law , 1. the witnesses are still judges of the fact , and he that hath the commission to hear the cause hath both the parts ; that is to say , of a jury to judge of the testimony , and of a justice to declare the law. in this , i say , lyes all the difference , which is indeed enough to make a dispute ( as the world goes ) about jurisdiction : but seeing it tends neither to the disherison of the king , nor of the people , nor to the subversion of the law of reason , i. e. of common-law , nor to the subversion of justice , nor to any harm of the realm , without some of which these statutes are not broken , it cannot be a premunire . la. let me read on . for if the freehold inheritances , goods and chattels , debts and duties , wherein the king and subject have right and property by the common-law , should be judged per aliam legem , or be drawn ad aliud examen , the 3 mischiefs afore exprest , would follow ; viz. the destruction of the king , and his crown , the disherison of his people , and the undoing and destruction of the common-law always used . ph. that is to say , of the law of reason . from hence it follows , that where there are no juries , and where there are different laws from ours ; that is to say , in all the world besides , neither king , nor people have any inheritance , nor goods , nor any law of reason . i will examine his doctrine concerning cases criminal no farther . he no where defineth a crime , that we may know what it is : an odious name sufficeth him to make a crime of any thing . he hath put heresie among the most odious crimes , not knowing what it signifies ; and upon no other cause , but because the church of rome ( to make their usurped power the more terrible ) had made it by long preaching against it , and cruelty shown towards many godly , and learned men of this , and other reformed churches , appear to common people a thing detestable . he puts it in as a plea of the crown in the time of queen elizabeth , whereas in her time there was no doctrine heresie ; but justice stamford leaves it out , because when heresie was a crime , it was a plea of the mitre . i see also in this catalogue of causes criminal , he inserteth costly feeding , costly apparel , and costly building , though they were contrary to no statute . 't is true , that by evil circumstances they become sins ; but these sins belong to the judgment of the pastors spiritual . a justice of the temporal law ( seeing the intention only makes them sins ) cannot judge whether they be sins or no , unless he have power to take confessions . also he makes flattery of the king to be a crime . how could he know when one man had flattered another ? he meant therefore that it was a crime to please the king : and accordingly he citeth divers calamities of such as had been in times past in great favour of the kings they serv'd ; as the favourites of hen. 3. ed. 2. rich. 2. hen. 6. which favourites were some imprisoned , some banished , and some put to death by the same rebels that imprisoned , banished , and put to death the same king , upon no better ground than the earl of strafford , the arch-bishop of canterbury , and king charles the first by the rebels of that time . empson , and dudley were no favourites of hen. the 7th , but spunges , which king hen. the 8th did well squeeze . cardinal woolsey was indeed for divers years a favourite of hen. the 8th , but fell into disgrace , not for flattering the king , but for not flattering him in the business of divorce from queen katharine . you see his reasoning here , see also his passion in the words following . we will for some causes descend no lower , qui eorum vestigiis insistunt , eorum exitus perhorrescant , this is put in for the favourite ( that then was ) of king james . but let us give over this , and speak of the legal punishments to these crimes belonging . of punishments . and in the first place i desire to know who it is that hath the power , for an offence committed to define , and appoint the special manner of punishment ; for suppose you are not of the opinion of the stoicks in old time , that all faults are equal , and that there ought to be the same punishment for killing a man , and for killing a hen. la. the manner of punishment in all crimes whatsoever is to be determined by the common-law . that is to say , if it be a statute that determins it , then the judgment must be according to the statute ; if it be not specified by the statute , then the custome in such cases is to be followed : but if the case be new , i know not why the judge may not determine it according to reason . ph. but according to whose reason ? if you mean the natural reason of this , or that judge authorized by the king to have cognisance of the cause , there being as many several reasons , as there are several men , the punishment of all crimes will be uncertain , and none of them ever grow up to make a custome . therefore a punishment certain can never be assigned , if it have its beginning from the natural reasons of deputed judges , no , nor from the natural of the supream judge : for if the law of reason did determine punishments , then for the same offences there should be through all the world , and in all times the same punishments ; because the law of reason is immutable and eternal . la. if the natural reason neither of the king , nor of any else be able to prescribe a punishment , how can there be any lawful punishment at all ? ph. why not ? for i think that in this very difference between the rational faculties of particular men , lyeth the true and perfect reason that maketh every punishment certain . for , but give the authority of defining punishments to any man whatsoever , and let that man define them , and right reason has defin'd them . suppose the definition be both made , and made known before the offence committed : for such authority is to trump in card-playing , save that in matter of government , when nothing else is turn'd up , clubs are trump . therefore seeing every man knoweth by his own reason what actions are against the law of reason , and knoweth what punishments are by this authority for every evil action ordained ; it is manifest reason , that for breaking the known laws , he should suffer the known punishments . now the person to whom this authority of defining punishments is given , can be no other in any place of the world , but the same person that hath the soveraign power , be it one man , or one assembly of men : for it were in vain to give it to any person that had not the power of the militia to cause it to be executed ; for no less power can do it , when many offenders be united and combin'd to defend one another . there was a case put to king david by nathan , of a rich man that had many sheep , and of a poor man that had but one , which was a tame lamb : the rich man had a stranger in his house , for whose entertainment ( to spare his own sheep ) he took away the poor mans lamb. upon this case the king gave judgment , surely the man that hath done this shall die . what think you of this ? was it a royal , or tyrannical judgment ? la. i will not contradict the canons of the church of england , which acknowledgeth the king of england , within his own dominions hath the same rights , which the good kings of israel had in theirs , nor deny king david to have been one of those good kings : but to punish with death without a precedent law , will seem but a harsh proceeding with us , who unwillingly hear of arbitrary laws , much less of arbitrary punishments , unless we were sure that all our kings would be as good as david . i will only ask you by what authority the clergy may take upon them to determine , or make a canon concerning the power of their own king , or to distinguish between the right of a good , and an evil king. ph. it is not the clergy that maketh their canons to be law , but it is the king that doth it by the great seal of england ; and it is the king that giveth them power to teach their doctrines , in that , that he authoriseth them publickly to teach and preach the doctrine of christ and his apostles , according to the scriptures , wherein this doctrine is perspicuously contained . but if they had derogated from the royal power in any of their doctrines published , then certainly they had been too blame ; nay , i believe that had been more within the statute of premunire of 16 rich. 2. c. 5. than any judge of a court of equity for holding pleas of common law. i cite not this precedent of king david , as approving the breach of the great charter , or justifying the punishment with loss of life , or member of every man that shall offend the king ; but to shew you that before the charter was granted , in all cases where the punishments were not prescribed , it was the king only that could prescribe them ; and that no deputed judge could punish an offender , but by force of some statute , or by the words of some commission , and not ex officio . they might for a contempt of their courts , because it is a contempt of the king , imprison a man , during the kings pleasure , or fine him to the king , according to the greatness of the offence : but all this amounteth to no more , than to leave him to the kings judgment . as for cutting off of ears , and for the pillory , and the like corporal punishments usually inflicted heretofore in the star-chamber , they were warranted by the statute of hen. 7. that giveth them power to punish sometimes by discretion . and generally it is a rule of reason , that every judge of crimes , in case the positive law appoint no punishment , and he have no other command from the king ; then to consult the king before he pronounce sentence of any irreparable dammage on the offender : for otherwise he doth not pronounce the law , which is his office to do , but makes the law , which is the office of the king. and from this you may collect , that the custome of punishing such and such a crime , in such and such a manner , hath not the force of law in it self , but from an assured presumption , that the original of the custome was the judgment of some former king. and for this cause the judges ought not to run up for the customs by which they are warranted to the time of the saxon kings , nor to the time of the conquest : for the most immediate , antecedent precedents are the fairest warrants of their judgments , as the most recent laws have commonly the greatest vigor , as being fresh in the memory of all men , and tacitly confirmed ( because not disapprov'd ) by the soveraign legislator . what can be said against this ? la. sir edw. coke 3 inst. p. 210. in the chapter of judgments and executions saith , that of judgments some are by the common-law , some by statute-law , and some by custome ; wherein he distinguisheth common-law , both from statute-law and from custome . ph. but you know , that in other places he makes the common-law , and the law of reason to be all one , as indeed they are , when by it is meant the kings reason ; and then his meaning in this distinction must be , that there be judgments by reason without statute-law , and judgments neither by statute-law , nor by reason , but by custome without reason ; for if a custome be reasonable , then , both he , and other learned lawyers say , it is common-law ; and if unreasonable , no law at all . la. i believe sir edw. coke's meaning was no other than yours in this point , but that he inserted the word custom , because there be not many that can distinguish between customs reasonable and unreasonable . ph. but custom , so far forth as it hath the force of a law , hath more of the nature of a statute , than of the law of reason , especially where the question is not of lands , and goods , but of punishments , which are to be defined only by authority . now to come to particulars : what punishment is due by law for high treason ? la. to be drawn upon a hurdle from the prison to the gallows , and there to be hanged by the neck , and laid upon the ground alive , and have his bowels taken out , and burnt , whilst he is yet living ; to have his head cut off , his body to be divided into four parts , and his head , and quarters to be placed as the king shall assign . ph. seeing a judge ought to give judgment according to the law , and that this judgment is not appointed by any statute , how does sir edw. coke warrant it by reason , or how by custom ? la. only thus , reason it is , that his body , lands , goods , posterity , &c. should be torn , pulled asunder , and destroy'd , that intended to destroy the majesty of government . ph. see how he avoids the saying the majesty of the king. but does not this reason make as much for punishing a traytor as metius suffetius , in old time , was executed by tullus hostilius king of rome , or as ravillac , not many years ago in france , who were torn in pieces by four horses , as it does for drawing , hanging , and quartering ? la. i think it does . but he confirms it also in the same chapter , by holy scripture . thus joab for treason , 1 kings 2. 28. was drawn from the horns of the altar ; that 's proof for drawing upon a hurdle . esth. 2. 22. bithan for treason was hang'd ; there 's for hanging . acts. 1. 18. judas hanged himself , and his bowels were poured out ; there 's for hanging , and embowelling alive . 2 sam. 18. 14. joab pierced absalom's heart ; that 's proof for pulling out a traytors heart . 2 sam. 20. 22. sheba the son of bichri had his head cut off ; which is proof that a traytors head ought to be cut off . 2 sam. 4. 12. they slew baanah and rechab , and hung up their heads over the pool of hebron ; this is for setting up of quarters . and lastly for forfeiture of lands , and goods , psal. 109. v. 9. 10. &c. let their children be driven out , and beg , and other men make spoil of their labours , and let their memory be blotted out of the land. ph. learnedly said ; and no record is to be kept of the judgment . also the punishments divided between those traytors must be joyn'd in one judgment for a traytor here . la. he meant none of this , but intended ( his hand being in ) to shew his reading , or his chaplains in the bible . ph. seeing then for the specifying of the punishment in case of treason , he brings no argument from natural reason ; that is to say , from the common law ; and that it is manifest that it is not the general custom of the land , the same being rarely , or never executed upon any peer of the realm , and that the king may remit the whole penalty , if he will ; it follows , that the specifying of the punishment depends meerly upon the authority of the king. but this is certain , that no judge ought to give other judgment , than has been usually given , and approv'd either by a statute , or by consent express or implyed , of the soveraign power ; for otherwise it is not the judgment of the law , but of a man subject to the law. la. in petit treason the judgment is , to be drawn to the place of execution , and hang'd by the neck , or if it be a woman , to be drawn and burnt . ph. can you imagine that this so nice a distinction can have any other foundation than the wit of a private man ? la. sir edw. coke upon this place says , that she ought not to be beheaded , or hanged . ph. no , not by the judge , who ought to give no other judgment than the statute , or the king appoints , nor the sheriff to make other execution than the judge pronounceth ; unless he have a special warrant from the king. and this i should have thought he had meant , had he not said before , that the king had given away all his right of judicature to his courts of justice . la. the judgment for felony is — ph. heresie is before felony in the catalogue of the pleas of the crown . la. he has omitted the judgment against a heretick , because ( i think ) no jury confin'd heresie , nor no judge temporal did ever pronounce judgment upon it : for the statute of 2 h. 5. c. 7. was , that the bishop having convicted any man of heresie , should deliver him to the sheriff , and that the sheriff should believe the bishop . the sheriff therefore was bound by the statute of 2 h. 4. after he was delivered to him , to burn him ; but that statute being repeal'd , the sheriff could not burn him , without a writ de heretico comburendo , and therefore the sheriff burnt legat 9. king james by that writ , which was granted by the judges of the common-law at that time , and in that writ the judgment is expressed . ph. this is strange reasoning ; when sir edw. coke knew , and confessed , that the statutes upon which the writ de heretico comburendo was grounded , were all repeal'd , how could he think the writ it self could be in force ? or that the statute which repealeth the statutes for burning hereticks was not made with an intent to forbid such burning ? it is manifest he understood not his books of common-law : for in the time of hen. 4. and hen. 5. the word of the bishop was the sheriff's warrant , and there was need of no such writ ; nor could he till the 25 hen. 8. when those statutes were repeal'd , and a writ made for that purpose , and put into the register , which writ fitzherbert cites in the end of his natura brevium . again , in the later end of the reign of queen elizabeth was published a correct register of original and judicial writs , and the writ de haeretico comburendo left out , because that statute of 25 h. 8. and all statutes against hereticks were repeal'd , and burning forbidden . and whereas he citeth for the granting of this writ , 9. jac. the lord chief justice , the lord chief baron , and two justices of the common-pleas , it is , as to all , but the lord chief against the law ; for neither the judges of common-pleas , nor of the exchequer can hold pleas of the crown ( without special commission ) and if they cannot hold plea , they cannot condemn . la. the punishment for felony is , that the felon be hang'd by the neck till he be dead . and to prove that it ought to be so , he cites a sentence ( from whence i know not ) quod non licet felonem pro felonia decollare . ph. it is not indeed lawful for the sheriff of his own head to do it , or to do otherwise than is commanded in the judgment , nor for the judge to give any other judgment , than according to statute-law , or the usage consented to by the king , but this hinders not the king from altering his law concerning judgments , if he see good cause . la. the king may do so , if he please : and sir edw. coke tells you how he altered particular judgments in case of felony , and sheweth , that judgment being given upon a lord in parliament , that he should be hang'd , he was nevertheless beheaded ; and that another lord had the like judgment for another felony , and was not hang'd , but beheaded ; and withal he shews you the inconveniency of such proceeding , because ( saith he ) if hanging might be altered to beheading , by the same reason it might be altered to burning , stoning to death , &c. ph. perhaps there might be inconveniency in it ; but 't is more than i see , or he shews , nor did there happen any inconveniency from the execution he citeth : besides he granteth , that death being ultimum supplicium is a satisfaction to the law. but what is all this to the purpose , when it belongeth not to consider such inconveniencies of government but to the king and parliament ? or who from the authority of a deputed judge can derive a power to censure the actions of a king that hath deputed him ? la. for the death of a man by misfortune , there is ( he saith ) no express judgment , nor for killing a man in ones own defence ; but he saith , that the law hath in both cases given judgment , that he that so killeth a man shall forfeit all his goods and chattels , debts and duties . ph. if we consider what sir edw. coke saith , 1 inst. sect. 745. at the word felony , these judgments are very favourable : for there he saith , that killing of a man by chance-medley , or se defendendo is felony . his words are ; wherefore by the law at this day , under the word felony in commissions , &c. is included petit treason , murder , homicide , burning of houses , burglary , robbery , rape , &c. chance-medley , and se defendendo . but if we consider only the intent of him that killeth a man by misfortune , or in his own defence , the same judgments will be thought both cruel , and sinful judgments . and how they can be felony at this day cannot be understood , unless there be a statute to make them so . for the statute of 25 h. 3. cap. 25. the words whereof , murder from henceforth shall not be judged before our justices , where it is found misfortune only ; but it shall take place in such as are slain by felony , and not otherwise , make it manifest , if they be felonies , they must also be murders , unless they have been made felonies by some latter statute . la. there is no such latter statute , nor is it to say in commission ; nor can a commission , or any thing but another statute make a thing felony , that was not so before . ph. see what it is for a man to distinguish felony into several sorts , before he understands the general name of felony what it meaneth ; but that a man , for killing another man by misfortune only , without any evil purpose , should forfeit all his goods and chartels , debts and duties , is a very hard judgment , unless perhaps they were to be given to the kindred of the man slain , by way of amends for dammage . but the law is not that . is it the common-law ( which is the law of reason ) that justifies this judgment , or the statute-law ? it cannot be the law of reason , if the case be meer misfortune . if a man be upon his apple-tree , to gather his apples , and by ill fortune fall down , and lighting on the head of another man kill him , and by good fortune saves himself ; shall he for this mischance be punished with the forfeiture of his goods to the king ? does the law of reason warrant this ? he should ( you 'l say ) have look'd to his feet ; that 's true , but so should he that was under have look'd up to the tree . therefore in this case the law of reason ( as i think ) dictates , that they ought each of them to bear his own misfortune . la. in this case i agree with you . ph. but this case is the true case of meer misfortune , and a sufficient reprehension of the opinion of sir edw. coke . la. but what if this had hapned to be done by one that had been stealing apples upon the tree of another man ? then ( as sir edw. coke says , 3 inst. p , 56. ) it had been murder . ph. there is indeed great need of good distinction in a case of killing by misfortune ; but in this case the unlawfulness of stealing apples cannot make it murder , unless the falling it self be unlawful . it must be a voluntary unlawful act that causeth the death , or else it is no murder by the law of reason : now the death of the man that was under the tree proceeded not from that , that the apples were not his that fell , but from the fall . but if a man shoot with a bow or a gun at another man's deer , and by misfortune kill a man , such shooting being both voluntary , and unlawful , and also the immediate cause of the mans death , may be drawn perhaps well enough sometimes to murder by a judge of the common-law . so likewise if a man shoot an arrow over a house , and by chance kill a man in the street , there is no doubt but by the law of reason it is murder , for though he meant no malice to the man slain , yet it is manifest , that he cared not whom he slew . in this difficulty of finding out what it is that the law of reason dictates , who is it that must decide the question ? la. in the case of misfortune , i think it belongs to the jury ; for it is matter of fact only : but when it is doubtful whether the action from which the misfortune came , were lawful , or unlawful , it is to be judged by the judge . ph. but if the unlawfulness of the action ( as the stealing of the apples ) did not cause the death of the man , then the stealing , be it , trespass , or felony , ought to be punished alone , as the law requireth . la. but for killing of a man se defendendo , the jury ( as sir edw. coke here says ) shall not in their verdict say it was se defendendo , but shall declare the manner of the fact in special , and clear it to the judge , to consider how it is to be called , whether se defendendo , manslaughter , or murder . ph. one would think so ; for it is not often within the capacity of a jury to distinguish the signification of the different and hard names which are given by lawyers to the killing of a man ; as murder and felony , which neither the laws , nor the makers of the laws have yet defined . the witnesses say , that thus and thus the person did , but not that it was murder or felony ; no more can the jury say , who ought to say nothing but what they hear from the witnesses , or from the prisoner . nor ought the judge to ground his sentence upon any thing else , besides the special matter found , which according as it is contrary , or not contrary to the statute , ought to be pronounced . la. but i have told you , that when the jury has found misfortune , or se defendendo , there is no judgment at all to be given , and the party is to be pardoned of course , saving that he shall forfeit his goods and chattells , debts and duties to the king. ph. but i understand not how there can be a crime for which there is no judgment , nor how any punishment can be inflicted without a precedent judgment , nor upon what ground the sheriff can seize the goods of any man , till it be judged that they be forfeited . i know that sir edw. coke saith , that in the judgment of hanging , the judgment of forfeiture is implyed , which i understand not ; though i understand well enough , that the sheriff by his office may seize the goods of a felon convicted ; much less do i conceive how the forfeiture of goods can be implyed in a no-judgment , nor do i conceive , that when the jury has found the special manner of the fact to be such , as is really no other than se defendendo , and consequently , no fault at all , why he should have any punishment at all . can you shew me any reason for it ? la. the reason lies in the custom . ph. you know that unreasonable customs are not law , but ought to be abolished ; and what custom is there more unreasonable than that a man should be punished without a fault ? la. then see the statute of 24 hen. 8. cap. 5. ph. i find here , that at the making of this statute there was a question amongst the lawyers , in case one man should kill another that attempted feloniously to rob , or murder him in , or near any common high-way , court-way , horse-way , or foot-way , or in his mansion , messuage , or dwelling-place ; whether for the death of such a man one shall forfeit his goods and chattells , as a man should do for killing another by chance-medley , or in his own defence . this is the preamble , and penned as well as sir edw. coke could have wished ; but this statute does not determine that a man should forfeit his goods for killing a man se defendendo , or for killing him by misfortune ; but supposeth it only upon the opinion of the lawyers that then were . the body of the statute is , that if a man be indicted , or appealed for the death of such person so attempting as aforesaid , and the same by verdict be so found and tryed , he shall not forfeit any thing , but shall be discharged as if he had been found not guilty . you see the statute , now consider thereby in the case of killing se defendendo . frst , if a man kill another in his own defence , it is manifest , that the man slain did either attempt to rob , or to kill , or to wound him ; for else it was not done in his own defence . if then it were done in the street , or near the street as in a tavern , he forfeits nothing because the street is a high-way . so likewise it is to be said of all other common-ways . in what place therefore can a man kill another in his own defence , but that this statute will discharge him of the forfeiture ? la. but the statute says the attempt must be felonious . ph. when a man assaults me with a knife , sword , club , or other mortal weapon ; does any law forbid me to defend my self , or command me to stay so long as to know whether he have a felonious intent , or no ? therefore by this statute , in case it be found se defendendo , the forfeiture is discharged , if it be found otherwise , it is capital . if we read the statute of glocester , cap. 9. i think it will take away the difficulty : for by that statute , in case it be found by the countrey , that he did it in his own defence , or by misfortune , then by the report of the justices to the king , the king shall take him to his grace , if it please him . from whence it followeth ; first , that it was then thought law , that the jury may give the general verdict of se defendendo , which sir edw. coke denies . secondly , that the judge ought to report especial matter to the king. thirdly , that the king may take him to his grace , if he please , and consequently , that his goods are not to be seiz'd , till the king ( after the report of the judge heard ) give the sheriff command to do it . fourthly , that the general verdict of the king hinders not the king , but that he may judge of it upon the special matter , for it often happens that an ill-disposed person provokes a man with words , or otherwise on purpose to make him draw his sword , that he may kill him , and pretend it done in his own defence ; which appearing , the king may , without any offence to god , punish him as the cause shall require . lastly ( contrary to the doctrine of sir edw. coke ) he may in his own person be judge in the case , and annul the verdict of the jury , which a deputed judge cannot do . la. there be some cases wherein a man , though by the jury he be found not guilty , shall nevertheless forfeit his goods and chattells to the king. for example ; a man is slain , and one a. hating b. giveth out that it was b. that slew him : b. hearing thereof , fearing if he be tryed for it , that through the great power of a. and others that seek his hurt , he should be condemned , flieth , and afterwards is taken , and tryed ; and upon sufficient evidence is by the jury found not guilty ; yet because he fled he shall forfeit his goods and chattels , notwithstanding there be no such judgment given by the judge , nor appointed by any statute , but the law it self authoriseth the sheriff to seize them to the use of the king. ph. i see no reason ( which is common-law ) for it , and am sure it is grounded upon no statute . la. see sir edw. coke , inst. 1. sect. 709. and read . ph. if a man that is innocent be accus'd of felony , and for fear flieth for the same ; albeit that he be judicially acquitted of the felony , yet if it be found that he fled for the same , he shall ( notwithstanding his innocence ) forfeit all his goods and chattells , debts and duties . o unchristian , and abominable doctrine ! which also he in his own words following contradicteth : for ( saith he ) as to the forfeiture of them , the law will admit no proof against the presumption of the law grounded upon his flight , and so it is in many other cases : but that the general rule is , quod stabitur praesumptioni , donec probetur in contrarium , but you see it hath many exceptions . this general rule contradicts what he said before ; for there can be no exceptions to a general rule in law , that is not expresly made an exception by some statute , and to a general rule of equity there can be no exception at all . from the power of punishing , let us proceed to the power of pardoning . la. touching the power of pardoning , sir edw. coke says , 3 inst. p. 236. that no man shall obtain charter of pardon out of parliament , and cites for it the statute of 2 ed. 3. cap. 2. and says farther , that accordingly in a parliament roll it is said , that for the peace of the land it would help , that no pardon were granted but by parliament . ph. what lawful power would he have left to the king , that thus disableth him to practice mercy ? in the statute which he citeth , to prove that the king ought not to grant charters of pardon , but in parliament there are no such words , as any man may see ; for that statute is in print ; and that which he says is in the parliament roll , is but a wish of he tells not whom , and not a law ; and 't is strange that a private wish should be inroll'd amongst acts of parliament . if a man do you an injury , to whom ( think you ) belongeth the right of pardoning it ? la. doubtless to me alone , if to me alone be done that injury ; and to the king alone , if to him alone be done the injury ; and to both together , if the injury be done to both . ph. what part then has any man in the granting of a pardon , but the king and the party wrong'd . if you offend no member of either house , why should you ask their pardon . it is possible that a man may deserve a pardon ; or he may be such a one sometimes as the defence of the kingdom hath need of ; may not the king pardon him , though there be no parliament then sitting ? sir edw. coke's law is too general in this point , and i believe , if he had thought on 't , he would have excepted some persons , if not all the kings children , and his heir apparent ; and yet they are all his subjects , and subject to the law as other men. la. but if the king shall grant pardons of murder and felony , of his own head , there would be very little safety for any man , either out of his house , or in it , either by night , or by day : and for that very cause there have been many good statutes provided , which forbid the justices to allow of such pardons as do not specially name the crime . ph. those statutes , i confess , are reasonable , and very profitable , which forbid the judge to pardon murders , but what statute is there that forbids the king to do it ? there is a statute of 13 rich. 2. c. 1. wherein the king promiseth not to pardon murder , but there is in it a clause for the saving of the kings regality . from which may be inferr'd , that the king did not grant away that power , when he thought good to use it for the common-wealth . such statutes are not laws to the king , but to his judges , and though the judges be commanded by the king not to allow pardons in many cases , yet if the king by writing command the judges to allow them , they ought to do it . i think , if the king think in his conscience it be for the good of the common-wealth , he sinneth not in it ; but i hold not that the king may pardon him without sin , if any other man be damnified by the crime committed , unless he cause reparation to be made , as far as the party offending can do it : and howsoever be it sin , or not sin , there is no power in england that may resist him , or speak evil of him lawfully . la. sir edw. coke denies not that ; and upon that ground it is that the king , he says , may pardon high treason ; for there can be no high treason , but against the king. ph. that 's well ; therefore he confesseth , that whatsoever the offence be , the king may pardon so much of it as is an injury to himself , and that by his own right , without breach of any law positive , or natural , or of any grant , if his conscience tell him that it be not to the dammage of the common-wealth ; and you know that to judge of what is good or evil to the common-wealth , belongeth to the king only . now tell me what it is which is said to be pardoned ? la. what can it be but only the offence ? if a man hath done a murder and be pardoned for the same , is it not the murder that is pardoned ? ph. nay , by your favour , if a man be pardoned for murder or any other offence , it is the man that is pardoned , the murder still remains murder . but what is pardon ? la. pardon ( as sir edw. coke says , 3 inst. p. 233 ) is deriv'd of per and dono , and signifies throughly to remit . ph. if the king remit the murder and not pardon the man that did it , what does the remission serve for ? la. you know well enough that when we say a murder , or any thing else is pardoned , all english-men understand thereby , that the punishment due to the offence is the thing remitted . ph. but for our understanding of one another , you ought to have said so at first . i understand now , that to pardon murder or felony is throughly to save the offender from all the punishment due unto him by the law for his offence . la. not so ; for sir edw. coke in the same chapter , p. 238. saith thus : a man commits felony , and is attainted thereof , or is abjur'd ; the king pardoneth the felony without any mention of the attainder or abjuration , the pardon is void . ph. what is it to be attainted ? la. to be attainted is , that his blood be held in law as stained and corrupted ; so that no inheritance can descend from him to his children , or to any that make claim by him . ph. is this attaint a part of the crime , or of the punishment ? la. it cannot be a part of the crime , because it is none of his own act ; 't is therefore a part of the punishment , viz. a disherison of the offender . ph. if it be a part of the punishment due , and yet not pardoned together with the rest ; then a pardon is not a through remitting of the punishment as sir edw. coke says it is . and what is abjuration ? la. when a clerk heretofore was convicted of felony , he might have saved his life by abjuring the realm ; that is , by departing the realm within a certain time appointed , and taking an oath never to return . but at this day all statutes for abjuration are repeal'd . ph. that also is a punishment , and by a pardon of the felony pardoned , unless a statute be in force to the contrary . there is also somewhat in the statute of 13 rich. 2. c. 1. concerning the allowance of charters of pardons , which i understand not well . the words are these ; no charter of pardon for henceforth shall be allowed before our justices for murder , or for the death of a man by awayt , or malice prepens'd , treason , or rape of a woman , unless the same be specified in the same charter , for i think it follows thence , that if the king say in his charter , that he pardoneth the murder , then he breaketh not the statute , because he specifies the offence ; or if he saith , he pardoneth the killing by awayt , or of malice prepensed , he breaketh not the statute , he specifies the offence . also if he say so much as that the judge cannot doubt of the kings meaning to pardon him , i think the judge ought to allow it , because the statute saveth the kings liberty and regality in that point ; that is to say , the power to pardon him , such as are these words , notwithstanding any statute to the contrary , are sufficient to cause the charter to be allowed : for these words make it manifest , that the charter was not granted upon surprise , but to maintain and claim the kings liberty and power to shew mercy , when he seeth cause . the like meaning have these words perdonavimus omnimodam interfectionem ; that is to say , we have pardoned the killing in what manner soever it was done . but here we must remember that the king cannot pardon , without sin , any dammage thereby done to another man , unless he causes satisfaction to be made , as far as possibly the offender can , but is not bound to satisfie mens thirst of revenge ; for all revenge ought to proceed from god , and under god from the king. now ( besides in charters ) how are these offences specified ? la. they are specified by their names , as treason , petit treason , murder , rape , felony , and the like . ph. petit treason is felony , murder is felony , so is rape , robbery and theft , and ( as sir edw. coke says ) petit larceny is felony ; now if in a parliament-pardon , or in a coronation-pardon all felonies be pardoned ; whether is petit larceny pardoned , or not ? la. yes certainly it is pardoned . ph. and yet you see it is not specified , and yet it is a crime that hath less in it of the nature of felony , than there is in robbery . do not therefore rape , robbery , theft , pass under the pardon of all felonies ? la. i think they are all pardoned by the words of the statute , but those that are by the same statute excepted ; so that specification is needful only in charters of pardon , but in general pardons not so . for the statute 13 rich. 2. cap. 1. forbids not the allowance of parliament-pardons , or coronation-pardons , and therefore the offences pardoned need not be specified , but may pass under the general word of all felonies . nor is it likely that the members of the parliament who drew up their own pardons , did not mean to make them as comprehensive as they could : and yet sir edw. coke , 2 inst. sect. 745. at the word felony , seemeth to be of another mind ; for piracy is one species of felony , and yet when certain english-men had committed piracy in the last year of queen elizabeth , and came home into england , in the beginning of the reign of king james , trusting to his coronation-pardon of all felonies ; they were indicted ( sir edw. coke was then attorney general ) of the piracy before commissioners according to the statute of 28 h. 8. and being found guilty were hang'd . the reason he alledgeth for it is , that it ought to have been specified by the name of piracy in the pardon , and therefore the pardon was not to be allowed . ph. why ought it to have been specified more than any other felony ? he should therefore have drawn his argument from the law of reason . la. also he does that ; for the tryal ( he says ) was by the common-law , and before commissioners not in the court of the lord admiral , by the civil-law , therefore he says it was an offence whereof the common-law could not take notice because it could not be tryed by twelve men. ph. if the common-law could not , or ought not to take notice of such offences , how could the offenders be tryed by twelve men , and found guilty , and hang'd , as they were ? if the common-law take no notice of piracy , what other offence was it for which they were hang'd ? is piracy two felonies , for one of which a man shall be hang'd by the civil-law , and for the other by the common-law ? truly i never read weaker reasoning in any author of the law of england , than in sir edw. coke's institutes , how well soever he could plead . la. though i have heard him much reprehended by others , as well as by you ; yet there be many excellent things , both for subtility , and for truth in these his institutes . ph. no better things than other lawyers have that write of the law , as of a science : his citing of aristotle , and of homer , and of other books which are commonly read to gown-men , do , in my opinion , but weaken his authority , for any man may do it by a servant ; but seeing the whole scene of that time is gone and past , let us proceed to somewhat else . wherein doth an act of oblivion differ from a parliament-pardon ? la. this word act of oblivion was never in our law-books before the 12 car. 2. c. 11. and i wish it may never come again ; but from whence it came you may better know perhaps than i. ph. the first , and only act of oblivion that ever passed into a law , in any state that i have read of , was that amnestia , or oblivion of all quarrels between any of the citizens of athens , at any time before that act , without all exception of crime , or person . the occasion whereof was this . the lacedemonians having totally subdued the athenians , entred into the city of athens , and ordained that the people should choose thirty men of their own city to have the soveraign power over them . these being chosen behav'd themselves so outragiously , as caused a sedition , in which the citizens on both sides were daily slain . there was then a discreet person that propounded to each of the parties this proposition , that every man should return to his own , and forget all that was past ; which proposition was made , by consent on both sides , into a publick act , which for that cause was called an oblivion . upon the like disorder hapning in rome by the murder of julius caesar , the like act was propounded by cicero , and indeed passed , but was within few days after broken again by marcus antonius . in imitation of this act was made the act of 12 car. 2. c. 11. la. by this it seems , that the act of oblivion made by king charles , was no other than a parliament-pardon , because it containeth a great number of exceptions , as the other parliament-pardons do , and the act of athens did not . ph. but yet there is a difference between the late act of oblivion made here , and an ordinary parliament-pardon : for concerning a fault pardoned in parliament by a general word , a suit in law may arise about this , whether the offender be signified by the word , or not , as whether the pardon of all felonies , be a pardon of piracy , or not : for you see by sir edw. coke's reports , that notwithstanding a pardon of felony , a sea felony ( when he was attourney general ) was not pardoned . but by the late act of oblivion , which pardoned all manner of offences committed in the late civil war , no question could arise concerning crimes excepted . first , because no man can by law accuse another man of a fact , which by law is to be forgotten . secondly , because all crimes may be alledged , as proceeding from the licentiousness of the time , and from the silence of the law occasion'd by the civil war , and consequently ( unless the offenders person also were excepted , or unless the crime were committed before the war began ) are within the pardon . la. truly i think you say right : for if nothing had been pardoned , but what was done by occasion of the war , the raising of the war it self had not been pardoned . ph. i have done with crimes and punishments , let us come now to the laws of meum and tuum . la. we must then examine the statutes . ph. we must so , what they command and forbid , but not dispute of their justice : for the law of reason commands that every one observe the law which he hath assented to , and obey the person to whom he hath promised obedience and fidelity . then let us consider next the commentaries of sir edw. coke upon magna charta , and other statutes . ph. for the understanding of magna charta , it will be very necessary to run up into antient times , as far as history will give us leave , and consider not only the customs of our ancestors the saxons , but also the law of nature ( the most antient of all laws ) concerning the original of government , and acquisition of property , and concerning courts of judicature . and first , it is evident , that dominion , government , and laws , are far more antient than history , or any other writing , and that the beginning of all dominion amongst men was in families ; in which , first , the father of the family by the law of nature was absolute lord of his wife and children . secondly , made what laws amongst them he pleased . thirdly , was judge of all their controversies . fourthly , was not obliged by any law of man to follow any counsel , but his own . fifthly , what land soever the lord sat down upon , and made use of for his own , and his families benefit , was his propriety by the law of first-possession , in case it was void of inhabitants before , or by the law of war , in case they conquer'd it . in this conquest what enemies they took and saved were their servants : also such men as wanting possessions of lands , but furnished with arts necessary for mans life , came to dwell in the family for protection , became their subjects , and submitted themselves to the laws of the family : and all this is consonant , not only to the law of nature , but also to the practice of mankind set forth in history sacred , and praphane . la. do you think it lawful for a lord that is the soveraign ruler of his family , to make war upon another like soveraign lord , and dispossess him of his lands ? ph. it is lawful , or not lawful according to the intention of him that does it . for , first , being a soveraign ruler , he is not subject to any law of man ; and as to the law of god , where the intention is justifiable , the action is so also . the intention may be lawful in divers cases by the right of nature ; one of those cases is , when he is constrained to it by the necessity of subsisting . so the children of israel , besides that their leaders , moses and joshua had an immediate command from god to dispossess the canaanites , had also a just pretence to do what they did from the right of nature , which they had to preserve their lives , being unable otherwise to subsist . and as their preservation , so also is their security a just pretence of invading those whom they have just cause to fear , unless sufficient caution be given to take away their fear , which caution ( for any thing i can yet conceive ) is utterly impossible . necessity , and security are the principal justifications , before god , of beginning war. injuries receiv'd justifie a war defensive ; but for reparable injuries , if reparation be tendred , all invasion upon that title is iniquity . if you need examples , either from scripture , or other history concerning this right of nature in making war , you are able enough from your own reading , to find them out at your leisure . la. whereas you say , that the lands so won by the soveraign lord of a family , are his in propriety , you deny ( methinks ) all property to the subjects , how much soever any of them hath contributed to the victory . ph. i do so , nor do i see any reason to the contrary : for the subjects , whether they come into the family , have no title at all to demand any part of the land , or any thing else but security , to which also they are bound to contribute their whole strength , and , if need be , their whole fortunes : for it cannot be supposed that any one man can protect all the rest with his own single strength : and for the practice , it is manifest in all conquests , the land of the vanquished is in the sole power of the victor , and at his disposal . did not joshua and the high-priest divide the land of canaan in such sort among the tribes of israel , as they pleased ? did not the roman and graecian princes and states according to their own discretion , send out the colonies to inhabit such provinces as they had conquered ? is there at this day among the turks any inheritor of land , besides the sultan ? and was not all the land in england once in the hands of william the conqueror ? sir edw. coke himself confesses it ; therefore it is an universal truth , that all conquer'd lands , presently after victory , are the lands of him that conquer'd them . la. but you know that all soveraigns are said to have a double capacity ; viz. a natural capacity , as he is a man , and a a politick capacity , as a king. in his politick capacity i grant you , that king william the conqueror was the proper , and only owner once of all the land in england , but not in his natural capacity . ph. if he had them in his politick capacity , then they were so his own as not to dispose of any part thereof , but only to the benefit of his people , and that must be either by his own , or by the peoples discretion ; that is , by act of parliament . but where do you find that the conqueror disposed of his lands ( as he did some to english-men , some to french-men , and some to normans ) to be holden by divers tenures , as knight-service , soccage , &c. by act of parliament ? or that he ever called a parliament to have the assent of the lords and commons of england in disposing of those lands he had taken from them ? or for retaining of such and such lands in his own hands by the name of forrests for his own recreation , or magnificence ? you have heard perhaps that some lawyers , or other men reputed wise and good patriots have given out , that all the lands which the kings of england have possessed , have been given them by the people , to the end that they should therewith defray the charges of their wars , and pay the wages of their ministers , and that those lands were gained by the peoples money ; for that was pretended in the late civil war , when they took from the king his town of kingston upon hull ; but i know you do not think that the pretence was just . it cannot therefore be denyed but that land which king william the conqueror gave away to english-men and others , and which they now hold by his letters patents , and other conveyances , were properly , and really his own , or else the titles of them that now hold them must be invalid . la. i assent . as you have shewed me the beginning of monarchies , so let me hear your opinion concerning their growth . ph. great monarchies have proceeded from small families . first , by war , wherein the victor not only enlarged his territory , but also the number and riches of his subjects . as for other forms of common-wealths , they have been enlarged otherways . first , by a voluntary conjunction of many lords of families into one great aristocracie . secondly , by rebellion proceeded first , anarchy , and from anarchy proceeded any form that the calamities of them that lived therein did prompt them to ; whether it were that they chose an hereditary king , or an elective king for life , or that they agreed upon a council of certain persons ( which is aristocracy ) or a council of the whole people to have the soveraign power , which is democracy . after the first manner which is by war , grew up all the greatest kingdoms in the world , viz. the aegyptian , assyrian , persian and the macedonian monarchy ; and so did the great kingdoms of england , france , and spain . the second manner was the original of the venetian aristocracy , by the third way which is rebellion , grew up in divers great monarchies , perpetually changing from one form to another ; as in rome rebellion against kings produced democracy , upon which the senate usurped under sylla , and the people again upon the senate under marius , and the emperor usurped upon the people under caesar and his successors . la. do you think the distinction between natural and politick capacity is insignificant ? ph. no ; if the soveraign power be in an assembly of men , that assembly , whether it be aristocratical , or democratical , may possess lands , but it is in their politick capacity , because no natural man has any right to those lands , or any part of them , in the same manner they can command an act by plurality of commands , but the command of any one of them is of no effect . but when the soveraign power is in one man , the natural and politick capacity are in the same person , and as to possession of lands undistinguishable : but as to the acts and commands , they may be well distinguished in this manner . whatsoever a monarch does command , or do by consent of the people of his kingdom , may properly be said to be done in his politick capacity ; and whatsoever he commands by word of mouth only , or by letters signed with his hand , or sealed with any of his private seals is done in his natural capacity : nevertheless , his publick commands , though they be made in his politick capacity , have their original from his natural capacity . for in the making of laws ( which necessarily requires his assent ) his assent is natural : also those acts which are done by the king previously to the passing of them under the great seal of england , either by word of mouth , or warrant under his signet , or privy seal , are done in his natural capacity ; but when they have past the seal of england , they are to be taken as done in his politick capacity . la. i think verily your distinction is good : for natural capacity , and politick capacity signifie no more than private and publick right . therefore leaving this argument let us consider in the next place , as far as history will permit , what were the laws and customs of our ancestors . ph. the saxons , as also all the rest of germany not conquer'd by the roman emperors , nor compelled to use the imperial laws , were a savage and heathen people , living only by war and rapine ; and as some learned men in the roman antiquities affirm , had their name of germans from that their ancient trade of life , as if germans and hommes de guerre were all one . their rule over their family , servants and subjects was absolute , their laws no other than natural equity ; written law they had little , or none , and very few there were in the time of the caesars that could write , or read . the right to the government was either paternal , or by conquest , or by marriages . their succession to lands was determined by the pleasure of the master of the family , by gift , or deed in his life time ; and what land they disposed not of in their life time , descended after their death to their heirs . the heir was the eldest son ; the issue of the eldest son failing , they descended to the younger sons in their order , and for want of sons , to the daughters joyntly , as to one heir , or to be divided amongst them , and so to descend to their heirs in the same manner : and children failing , the uncle by the fathers , or mothers side ( according as the lands had been the fathers or the mothers ) succeeded to the inheritance , and so continually to the next of blood . and this was a natural descent , because naturally the nearer in blood , the nearer in kindness , and was held for the law of nature , not only amongst the germans , but also in most nations before they had a written law. the right of government , which is called jus regni descended in the same manner , except only that after the sons , it came to the eldest daughter first , and her heirs ; the reason whereof was , that government is indivisible . and this law continues still in england . la. seeing all the land which any soveraign lord possessed , was his own in propriety ; how came a subject to have a propriety in their lands ? ph. there be two sorts of propriety . one is , when a man holds his land from the gift of god only , which lands civilians call allodial which in a kingdom no man can have but the king. the other is when a man holds his land from another man as given him , in respect of service and obedience to that man , as a fee. the first kind of propriety is absolute , the other is in a manner conditional , because given for some service to be done unto the giver . the first kind of propriety excludes the right of all others ; the second excludes the right of all other subjects to the same land , but not the right of the soveraign , when the common good of the people shall require the use thereof . la. when those kings had thus parted with their lands , what was left them for the maintenance of their wars , either offensive , or defensive ; or for the maintenance of the royal family in such manner as not only becomes the dignity of a soveraign king , but is also necessary to keep his person and people from contempt . ph. they have means enough ; and besides what they gave their subjects , had much land remaining in their own hands afforrested for their recreation : for you know very well that a great part of the land of england was given for military service to the great men of the realm , who were for the most part of the kings kindred , or great favourites , much more land than they had need of for their own maintenance ; but so charged with one , or many souldiers , according to the quantity of land given , as there could be no want of souldiers , at all times , ready to resist an invading enemy : which souldiers those lords were bound to furnish , for a time certain , at their own charges . you know also , that the whole land was divided into hundreds , and those again into decennaries ; in which decennaries all men even to children of 12 years of age , were bound to take the oath of allegiance : and you are to believe , that those men that hold their land by the service of husbandry , were all bound with their bodies , and fortunes to defend the kingdom against invaders by the law of nature : and so also such as they called villains , and held their land by baser drudgery , were obliged to defend the kingdom to the utmost of their power . nay , women , and children in such a necessity are bound to do such service as they can , that is to say , to bring weapons and victuals to them that fight , and to dig : but those that hold their land by service military , have lying upon them a greater obligation : for read and observe the form of doing homage , according as it is set down in the statute of 17 edw. 2. which you doubt not , was in use before that time , and before the conquest . la. i become your man for life , for member and for worldly honour , and shall owe you my faith for the lands that i hold of you . ph. i pray you expound it . la. i think it is as much , as if you should say , i promise you to be at your command ; to perform with the hazard of my life , limbs and all my fortune , as i have charged my self to the reception of the lands you have given me , and to be ever faithful to you . this is the form of homage done to the king immediately ; but when one subject holdeth land of another by the like military service , then there is an exception added ; viz. saving the faith i owe to the king. ph. did he not also take an oath ? la. yes ; which is called the oath of fealty ; i shall be to you both faithful , and lawfully shall do such customs and services , as my duty is to you at the terms assigned ; so help me god , and all his saints . but both these services , and the services of husbandry were quickly after turned into rents , payable either in money , as in england ; or in corn , or other victuals , as in scotland and france . when the service was military , the tenant was for the most part bound to serve the king in his wars with one , or more persons , according to the yearly value of the land he held . ph. were they bound to find horse-men , or foot-men ? la. i do not find any law that requires any man , in respect of his tenancie , to serve on horseback . ph. was the tenant bound , in case he were called , to serve in person ? la. i think he was so in the beginning : for when lands were given for service military , and the tenant dying left his son and heir , the lord had the custody both of body and lands till the heir was twenty one years old ; and the reason thereof was , that the heir till that age of twenty one years , was presum'd to be unable to serve the king in his wars , which reason had been insufficient , if the heir had been bound to go to the wars in person . which ( methinks ) should ever hold for law , unless by some other law it come to be altered . these services together with other rights , as wardships first , possession of his tenants inheritance , licenses for alienation , felons goods , felons lands , if they were holden of the king , and the first years profit of the lands , of whomsoever they were holden , forfeitures , amercements , and many other aids could not but amount to a very great yearly revenue . add to this all that which the king might reasonably have imposed upon artificers and tradesmen ( for all men , whom the king protecteth , ought to contribute towards their own protection ) and consider then whether the kings of those times had not means enough , and to spare ( if god were not their enemy ) to defend their people against forreign enemies , and also to compell them to keep the peace amongst themselves . ph. and so had had the succeeding kings if they had never given their rights away , and their subjects always kept their oaths , and promises . in what manner proceeded those ancient saxons , and other nations of germany , especially the northern parts , to the making of their laws ? la. sir edw. coke out of divers saxon laws , gathered and published in saxon and latine by mr. lambert , inferreth , that the saxon kings , for the making of their laws , called together the lords and commons , in such manner as is used at this day in england . but by those laws of the saxons published by mr. lambert , it appeareth , that the kings called together the bishops , and a great part of the wisest and discreetest men of the realm , and made laws by their advice . ph. i think so ; for there is no king in the world , being of ripe years and sound mind , that made any law otherwise ; for it concerns them in their own interest to make such laws as the people can endure , and may keep them without impatience , and live in strength and courage to defend their king and countrey , against their potent neighbours . but how was it discerned , and by whom was it determined , who were those wisest and discreetest men ? it is a hard matter to know who is wisest in our times . we know well enough who chooseth a knight of the shire , and what towns are to send burgesses to the parliament , therefore if it were determined also in those dayes , who those wise men should be , then , i confess , that the parliaments of the old saxons , and the parliaments of england since are the same thing , and sir edw. coke is in the right . tell me therefore , if you can , when those towns which now send burgesses to the parliament , began to do so , and upon what cause one town had this priviledge , and another town , though much more populous , had not . la. at what time began this custom i cannot tell ; but i am sure it is more ancient than the city of salisbury ; because there come two burgesses to parliament for a place near to it , called old sarum , which ( as i rid in sight of it ) if i should tell a stranger that knew not what the word burgess meant , he would think were a couple of rabbets , the place looketh so like a long cony-borough . and yet a good argument may be drawn from thence , that the townsmen of every town were the electors of their own burgesses , and judges of their discretion ; and that the law , whether they be discreet or not , will suppose them to be discreet till the contrary be apparent . therefore where it is said , that the king called together the more discreet men of his realm ; it must be understood of such elections as are now in use : by which it is manifest , that those great and general moots assembled by the old saxon kings , were of the same nature with the parliaments assembled since the conquest . ph. i think your reason is good : for i cannot conceive , how the king , or any other but the inhabitants of the boroughs themselves , can take notice of the discretion , or sufficiency of those they were to send to the parliament . and for the antiquity of the burgess-towns , since it is not mentioned in any history , or certain record now extant , it is free for any man to propound his conjecture . you know , that this land was invaded by the saxons at several times , and conquered by pieces in several wars ; so that there were in england many kings at once , and every of them had his parliament , and therefore according as there were more , or fewer walled towns within each kings dominion , his parliament had the more , or fewer burgesses : but when all these lesser kingdoms were joyned into one , then to that one parliament came burgesses from all the burroughs of england . and this perhaps may be the reason , why there be so many more such burroughs in the west , than in any other part of the kingdom ; the west being more populous , and also more obnoxious to invaders , and for that cause having greater store of towns fortified . this i think may be the original of that priviledge which some towns have to send burgesses to the parliament , and others have not . la. the conjecture is not improbable , and for want of greater certainty , may be allowed . but seeing it is commonly receiv'd , that for the making of a law , there ought to be had the assent of the lords spiritual and temporal ; whom do you account in the parliaments of the old saxons for lords temporal , and whom for lords spiritual ? for the book called the mode of holding parliaments , agreeth punctually with the manner of holding them at this day , and was written ( as sir edw. coke says ) in the time of the saxons , and before the conquest . ph. mr. selden ( a greater antiquary than sir edw. coke ) in the last edition of his book of titles of honour says , that that book called the mode , &c. was not written till about the time of rich. 2. and seems to me to prove it . but howsoever that be , it is apparent by the saxon laws set forth by mr. lambert , that there were always called to the parliament , certain great persons called aldermen , alias earls ; and so you have a house of lords , and a house of commons . also you will find in the same place , that after the saxons had received the faith of christ , those bishops that were amongst them , were always at the great mootes , in which they made their laws . thus you have a perfect english parliament , saving that the name of barons was not amongst them , as being a french title , which came in with the conqueror . finis . notes, typically marginal, from the original text notes for div a43971-e39520 the king is the supream judge . pleadings in some remarkable cases before the supreme courts of scotland since the year 1661 to which the decisions are subjoyn'd. mackenzie, george, sir, 1636-1691. 1673 approx. 476 kb of xml-encoded text transcribed from 125 1-bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : 2004-08 (eebo-tcp phase 1). a50746 wing m192 estc r27547 09955337 ocm 09955337 44377 this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons 0 1.0 universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase 1, no. a50746) transcribed from: (early english books online ; image set 44377) images scanned from microfilm: (early english books, 1641-1700 ; 1363:3) pleadings in some remarkable cases before the supreme courts of scotland since the year 1661 to which the decisions are subjoyn'd. mackenzie, george, sir, 1636-1691. [7], 232, [5] p. printed by george swintoun, james glen, and thomas brown, edinburgh : 1673. attributed by wing to george mackenzie. reproduction of original in the cambridge university library. created by converting tcp files to tei p5 using tcp2tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between 1473 and 1700 available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the 25,363 texts created during phase 1 of the project have been released into the public domain as of 1 january 2015. anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level 4 of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf-8 unicode or text strings within braces); or lossless xml (tei p5, characters represented either as utf-8 unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng pleading -scotland. law reports, digests, etc. -scotland. 2004-03 tcp assigned for keying and markup 2004-04 apex covantage keyed and coded from proquest page images 2004-06 melanie sanders sampled and proofread 2004-06 melanie sanders text and markup reviewed and edited 2004-07 pfs batch review (qc) and xml conversion pleadings , in some remarkable cases , before the supreme courts of scotland , since the year , 1661. to which , the decisions are subjoyn'd . cicero in brut. nulla res tantum ad bene dicendum prodest , quantum scriptio . edinburgh , printed by george swintoun , james glen , and thomas brown : anno dom. 1673. the authors reflections upon these pleadings . few men can expect praise by writing in this age , wherein every man almost doth think himself roo'd of that praise which is given to others , and wherein he is thought to want wit , who will allow others to have any . former ages railed against such as wrote ill , but ours against such as write well ; they were sometimes so unjust , as not to reward merit ; but we are so malitious as to persecute it : thus we can neither want new books , nor deserve them ; and it hath been well observed , that it would seem now , that none but mad men write or censure . this i say , not to regrate my own fate , which hath been kind to my writings beyond my merit and expectation ; and though it had not , yet i am secure , by want of that merit which can raise envy : but i say it to regrate , that this should have stopt so many ingenious and learned men in our profession , from illuminating our law , and from informing our country-men . the laws of other nations are opprest , but ours is starv'd . this made me adventure to write these few sheets , and i wish that censure which is so much feared by others , might blunt all its edge upon me ; and that i might , like that noble roman , by leaping into this gulf , secure my countrey against this plague . this way of writing hath been very happy amongst strangers , and was not minded hitherto by us , and what way of writing is preferable to that , which hath been successfull , and yet is new ? but my design in choosing this way of writing , was to inform strangers as to our way of bleading in scotland , to form to my self a stile , and to give me an easinesse in pleading ; for since that is my dayly employment , it should be my greatest care , nihil tantum ad bene dicendum prodest , quantum scriptio , sayes cicero , the greatest master of that art. i had , by pleading whilst i was yet very young , wrapt my self into errors ; which could not be reform'd in the croud and noise of businesse , and therefore i resolved to employ some serious and solitary hours for my own recovery ; and that i might obliege my self to the greater exactnesse , i resolved to print what i wrote , hoping , that thus the fear of censure would over awe my lazinesse : by printing them , i likewise design to know my enemies , and my faults , such as censure maliciously will inform me of the one , and such as censure justly will instruct me in the other . i designed at first , to have printed many moe , but i thereafter considered , that if these pleased not , they were too many , and if they did please , it was easie to add : and i resolve to correct in the last , what shall be found to be justly censurable in the first . in three of those pleadings , ( viz 2. 3. 7. ) i have mingled with my own arguments , the arguments of such as pleaded with me ; in the rest , i have used only my own ; those three i wrote to be patterns , because they were not particularly mine ; those which are particularly my own , i wrote for my own divertisement , and if they bear any proportion to their fellows , they may not only satisfie the world to which they go , but ( which is it may be harder ) the author from whom they came . i have been oft asked two contrary questions ; one was , how i diverted my self , during all our six vacant moneths ? and by others , how my employment gave me leisure to write ? to answer both at once , i conceive that a man in two afternoons of each vacant week , may write twice more then ever i sent to the presse ; and he must be very busie , who hath not these to spare . when i was too young , to write in my own profession , my love to my countrey tempted me to write moral philosophy , and to adventure on a play and poem ; but now that i find , that our countrey-men could be happy enough in these , if their inclinations were not lesse then their ablities , i have abandoned those employments , and the spring of my age being past , it is fit those blossomes should ripen into fruit. i promised formerly , never to appear in print , save in my own employment ; to which promise i have , these five years last by past , been very faithfull ; and this being my first essay in it , some allowance is due to a beginner . i must confesse , that many in this kingdom could have exceeded my poor endeavours , but it were unreasonable for any man , to refuse to fight for his countrey , because another could fight better . and i rather conclude , that others need not be discouraged , though i meet with no applause ; whereas , if any be allowed me , their greater parts may expect a greater measure of fame ; and as i have been very kind to all my countrey-mens productions , so i shall be extreamly pleased to see my self out-done in my countreys service . i designed to let strangers know how we plead in scotland , and therefore it was not fit , that i should have used here the english language . i love to speak as i think , and to write as i speak . no man should be vain , because he can injure the merit of a book ; for the meanest rogue may burn a city , or kill a hero ; whereas he could never have built the one , nor equalled the other . and i confesse , that an ordinary wit may discover faults in a better author then i pretend to be : for the writer being intent upon all , cannot lay out all that industry upon every line , which amalicious critick can ; who ( like the wasp ) fastens still upon the sore : but a greater wit then they said , ubi plurima nitent in carmine , non ego paucis offendor maculis — malice likewise and observation can easilier fix upon a printed pleading , then upon what flyes away from a current speaker : and a discourse , animated by the voice and action of a gracefull and sprightly orator , will supply very much of that force and beauty , which a cold and indifferent reader will require in what comes from the press . i am not concerned in the reception of this book , my cares end with the printing : and thoughts in an innocent breast , are as secure as men are , when storms grumble and roar about the strong castle where they are lodged . few ever displeased , and none ever pleased all . such as censure too severely those sheets , are either of my own profession , or not ; those who are not , may fear to be thought ignorant ; those who are , to be thought emulous . but having now confined all my recreations to my own employment , if i cannot please others , i will at least improve my self . but it would ●bate very much the passion of authors and criticks , of advocats and clients , if all would seriously weigh my beloved verse , hi motus animorum , atque haec certamina tanta , pulveris exigui jactu compressa quiescent . the contents . what eloquence is fit for the bar. an essay . page . 1 a pleading translated out of french , to inform such as understand not that language , of the way of pleading there . 20 the authors answer to the former pleading , there being no answer to it extant in the french , ( with additions , pag. penult . ) 26 how far a man may use his own , though to the prejudice of his neighbours . 34 whether a clause prohibiting to sell , will prejudge creditors . 40 whether tax'd-wards be lyable to recognition . 52 how far the borrower in commodato aestimato , is lyable , if the thing be lost , vi majore . 62 how fury , and lucid intervals may be prov'd . 69 in what case a sentence may be reduced , by a reprobator of the depositions of the witnesses whereupon the sentence was founded , and by what probation sentences may be reprobated . 78 how far a disposition , made by a man , in favours of his lady , of his whole estate , is reduceable , as done in lecto aegritudinis . 91 how far restitutions by way of justice , are prejudged by acts of indempnity . 104 how far a person unjustly forfeited and restored , may repeat annual-rents from the intrometters . 113 whether ships taken after they have carryed contraband goods , can be declared prize , ( with additions , pag. last . ) 120 whether it be free to all the lieges to trade with forreigners , or if this priviledge be only competent to burghs-royal . 131 whether a novo damus secures against preceeding casualities . 144 whether a contract entered into by a minor , who averr'd himself to be major , and swore never to reduce , be revocable . 153 against forfeitures in absence . 164 whether passive complyance in publick rebellions , be punishable as treason . 172 for maevia , accused of witchcraft . 185 for titius , accused before the secret council for beating his wife . 198 how far minors may be punished for crimes . 2. whether complices may be pursued before the principal party be found guilty . 3. whether socius criminis may be received awitnesse in riots and lesser crimes . 207 an answer to some reasons printed in england , against the overture of bringing into that kingdom , such registers as are used in scotland . 221 errata . pag. 3. lin . 21. for silogisticè , read sylogisticè . pag. 8. lin . 17. for i●terta , read i●certa . pag. ibid. lin , 27. for animated by gain , read animated by conscience , pag. 9. lin . 14. for effectation , read affectation . pag. ibid. lin . ibid. dele the word all . pag 25. lin . 5. read 〈◊〉 meer mommeries . pag. 46. lin . 4. for lib. c , read lib. eodem . pag. 47. lin . 10. read not ●ailzies . pag. ibid. lin . 20. for petitus , read penitus . pag. 65. lin . 5. read fortui●●s . pag. 75. lin . 23. for quem , read quam . pag. 96. lin . 10. for effect , read , affect . pag. 109. lin . 20. for ressamen , read residuam . pag. 122. lin . 30. read must not be lawfull . pag. 151. for by the donator for gifts of e●cheats and non-entries , did take place according to the latter , read of gifts of escheat and non-entries , which were restricted according to the latter . pag. 174. lin . 17. for againg , read against . pag. 187. lin . 15. read so cruel a revenge . read still violated , for violat ; confiscated , for confiscat ; necessary , for necessar ; ordinary , for ordinar , and the like . what eloquence is fit for the bar. an essay . eloquence is that art , by which the orator at once convinces , and pleases his hearers ; and by which he gains same , and obedience . monarchs govern our estates , but the orator governs our wills , and inclinations ; the souldier may conquer our lands , but the orator our reason ; and whilst these owe their empire to multitudes of men , and accidents , he do's alone share in the glory of his conquest . amongst all such who stand rivals for this great honour , the advocat seems to have the fairest pretentions ; for a courtiour may by eloquence , charm a lady , he may raily , and say nothing with a bon grace : a preacher may in his retirement , sorm a discourse , which after much premeditation , meets with no opposition ; but the advocat must upon subjects infinitely various , make present replyes to what he did not expect . we come to church convinc'd of every thing our preacher is to say , we are the converts of his theme , and not of his discourse : but at the barr , justice do's oftimes side so equally , that a thousand times the hearers do confess themselves still convinc'd by the last speaker . what can the world bestow above what it allowes the advocat , as the reward of his noble pains ? what is so desireable , as to be a sanctuary to such as are afflicted , to pull the innocent from the clawes of his accuser , to gain bread for the hungry , and to bring the guilty to a scaffold ? what is so noble as to be depended upon by such as are in prosperity ( for client and depender , are the same in all languages ) to be complemented by such as are beautifull , and admir'd by such as are learned ? and if he design to flatter his vanity , would it not charm him to see a crouded audience , stand in a profound silence , with countenances which do mark longing , and reverence , to see every man look with amazement upon his neighbour , and all upon the speaker ; whilst he makes his learned judges , bow under the weight of his well exprest arguments ; and when the discourse is ended , to have all who see him salute him with respect as he passes by , and the city choose him for the subject of their kind discourses ? some divines and philosophers have oftimes prov'd so injust to the law it self , as to think it too dull and flat a science to affoord such subtile reflections , as could be the foundation of an accurat debate : to whom i design modestly to return no other answer , then that men cannot judge well what they do not throughly understand . thus common eyes discover no difference betwixt the starrs , though to judicious and learn'd persons , they appear in their distinct classes : i wish they would consider , how much the actions of men differ , how many circumstances attend every one of these , and how they are varied by these circumstances ; if 24 letters can by their several conjunctions , make up such a swarm of words , certainly thousands of statutes , customs , and cases , must affoord much room for new and subtile conclusions ; especially since these have been subtiliz'd and cultivat for many ages , by the finest spirits of the world , who have been drawn to prefer this to all other employments , and to refine themselves to all imaginable hight in it , by the joynt hopes of glory , applause , preferment , money and emulation : — stimulos dedit aemulavirtus . i doubt not but there are many , who will think that eloquence is not allowable at the barr , since those who are to be convinced there , are old and reverend judges , whose severe judgments are not to be moved by a pleasing discourse , but by solid reason , old age being little taken with those flourishes , which it cannot practise : and that though where passions are to be excited , as they are by the pulpit , and theater , or where states-men endeavour to reclaim a mutinous multitude , there , eloquence is not only allowable , but necessary ( eloquence being the true key of the passions ) yet , since no passions are allowed in judging , and the object of that excellent science , being truth , and not humor , eloquence should not be allowed in discourses there : and i imagine it will be objected to me , that at the first institution of our senat , it was appointed by an act of sederunt , that all argunning ( which term was us'd in that age for arguing ) should be silogisticé , and not rhetoricé . to which my answer is , that eloquence do's not only consist in trops , figures , and such extrinsick ornaments , whereby our fancy is more gratified , then our judgement , and our discourse is rather painted then strengthned ; but when i mean that an advocat should be eloquent , i design thereby , that he should know how to enliven his discourse with expressions suitable to the subject he treats ; that he should choose terms that are significant , and which seem full of the thing which they are to express , and so lodge his reasons handsomly ; though when his subject looses him from the strict terms of a statute , or authority , and that he is to debate upon probable theams , to enquire into publick utility , or to enforce or answer presumptive arguments , he may use a more florid and elegant stile : his great design is to conciliat favour to his clients cause ; and sure , caeteris paribus , even the learnedst and most severe judges , love to be handsomly informed , and he must be very just , who is not somewhat bribed by charming expressions . but that the greatest part , of judges are taken with that bait , is most undenyable ; and as in mariages we find , that even those who desire rich portions , are yet pleased to have a beautiful mistris , and the severest man alive will be content to abate somewhat of the portion to gratifie his fancy ; so , i am sure that a papinian or ulpian , would , when the scales seem to stand even , encline to that side upon which eloquence stands . eloquence raises the attention of a judge , and makes him follow the speaker closely , so that nothing which he sayes in favour of his client passeth unregarded ; whereas another may say what is very reasonable , and which if it were notic'd , might weigh much ; and yet the judge who is not allured to hear attentively , may easily miss it . i may likewayes add , that eloquence thaws ( like the sun ) the speaker himself , who when he is warm and pleas'd , will thereby have his invention stirr'd up , and his memory and all his faculties opened ; by which many excellent and apposite reasons may be suggested to him ; as we see the earth ( when warm'd ) casts up many new and profitable fruits and herbs , as well as flowers ; whereas , we may dayly observe , that a stiff and cold pleader do's omit oftimes , even what he knowes . by the same eloquence also , the hearers being warm'd and thaw'd have their judgements thereby open'd , and doe receive more easily impressions of what is spoke ; and i conceive eloquence the fitter for advocats , that others think it should be banish'd as that which may bryb and corrupt judges : and methinks it should be pardon'd some little dangerousness that way , since it pleases so much another ; nor can i think but that providence has ordain'd it for the barr , to soften , and sweeten humours , which would els by constant sticking at meer law , become too rigid and severe ; and to divert and ease the spirits both of judges , and advocats , which are too much upon the rack , and bended for the service of their countrey . as to our act of sederunt , which appointed , that all pleading should be sylogisticè , i need not reflect upon the ignorance of those times , which was very excuseable amongst us , since it did at that time blind even italy and france , who do now smile with pity upon the customs and productions of their countrey-men in that age : but i conceive , that our session having been at first constitute of an equal number of church-men and laicks , and the president being an ecclesiastick , these church-men having the advantage of learning and authority , did form that act of sederunt according to their own breeding , by which they were tyed in their theology-schools to debate by syllogismes ; but after-ages having found this upon experience to be very unfit and pedantick , they did not only suffer that act to run in desuetude , but allow'd of this auguster and more splendid manner of debating , which is now used . and therefore i conclude , that not only is that way not warranted by the authority of that act , but that it has the less preference because of that act ; for , if that act had not been made , we might have been induc'd to believe that such a way might take ; but now since experience has reform'd us from it , and since even the authority of a statute could not maintain it , we must think it was not fit nor suitable , as indeed it is not , if we consider these few remarks . all sciences have an expression which is suitable to them ; the mathematicks require demonstration , and discover themselves to the eye : medicine , and natural philosophy require experiments ; logick , metaphysick ( and alas now theology ) must wrestle by syllogismes ; but the law argues by a discourse , free , and unconfined , like those who debate from its principles . it is the nature of a syllogisme to have the subsumption in the second proposition ; but in pleading , the matter of fact must come first , for it stands in the state of the case , and therefore though it be proper for lybells ( which are but a sylogisme ) yet it suits not with a defence : and it were very ridiculous , and impossible , to wrap up a long story , many circumstances , presumptions and probabilities in a syllogisme ; and oftimes there are many defences propon'd and joyned together . the most ordinar and most allow'd way of arguing in law is by similies , instances and parallels , and it is improper to drive those into syllogismes : but he will best confute this way of arguing by syllogismes , who will sit down and plead any of the causes i have set down in a syllogistick way , which if any man do , i shall renounce pleading , except he take syllogistick debating in a very large sense ; as for instance , in kenedies case , the pursuer behov'd to say , he who is guilty of forging writes , should be hang'd ; but so it is , kennedy has done so ; ergo , the defender behoved to deny the minor , and then the pursuer behov'd to say , he who is burden'd with such and such presumptions , is guilty of falshood ; but kennedy is guilty of these ; and there he behov'd to insist upon all the indirect articles or presumptions : but how should the defender answer all these by a distinguo ? or if this way were introduced , how little would this shorten debates ? and are any creatures alive so litigious as some divines , and philosophers , who debate only by syllogismes ? and so little do syllogismes contribute to clear a debate , that both in their schools , and books , such as use syllogismes must leave that way , and enlarge themselves by discourses , when the debate growes warm , and intricat . every man in pleading , gratifies his own genious , and some of all kind find equall success , and applause ; but it has been oft debated , whether pointed and short pleading , wherein the speaker singles out a point , and presses it , or full and opulent pleading , wherein the speaker omitts nothing which may prove advantagious , be preferable : each side has its examples , and patrons . the full and copious way pleases me ; for i not only find that to have been used by demosthenes , and cicero , but plinius assures us , that it was used by caesar and pompey . at first no man was stinted amongst the romans in his pleading , and when they were confined by pompey , qui primus fraena imposuit eloquentiae , the pursuer was allow'd two hours , and the defender three ; but this being found thereafter too narrow ; celicius did allow the pursuer six houres , and the defender nine : nor can a pleader be interrupted in france ( where pleading is in its greatest perfection ) though he speak three full dayes ; and if it be a fault , it is peccatum felicis ingenij , the error of great witts , whereas short pleading is common to such as pretend to be great spirits , and to such as really are meer dunses . such as use to say much can contract their discourses , but few who are used to say little , could say much , though they were willing ; and copious pleading is called ordinarily a fault , by such as have not the wit to commit that crime themselves . we see that in nature , the largest bodies are ordinarily strongest , the largest fruits most desired ; and many stroaks do best drive in the wedge . nature has produc'd many things for meer ornaments ; and god has in his scriptures , us'd eloquence and rhetorick on many occasions . but there are two arguments which have determined me to this choice , the first is , that a short pleader may leave things unclear , and so wrong his client ; whereas a full pleader can only burden too much his hearers , and so wrong only himself . a narrow , and starved discourse , is like those slender and small costed bodies , which allow not sufficient room for the noble parts to exercise their functions , non enim amputata oratio , & abscissa , sedlata , magnifica , excelsa , tonat , fulgurat et omnia evertit . the next is , that even where there is but one judge , it is uncertain which of all the arguments will convince him , but where there are many , as with us , it is very well known to such as discourse in privat with them , upon what has been pleaded , that some fix upon one argument , some upon another : the best lawyers differ oft in opinion upon debatable points , and it is great vanity for any pleader to think , that he can certainly know what will take , and what not ; this was really not an appologie for my error , but the motive of my choice , and i find it to have been formerly used by plinius the younger , ( the greatest pleader of his age , and whose epistles do of all other books best inform us how to plead ) this great man in his 20 epistle tells us , that regulus said to him , tu omnia quae in causa putas exequenda , ego jugulum statim video , hunc premo , respondi , posse fieri , ut genu esset , aut tibia , ubi ille jugulum putaret , at ego qui jugulum perspicere non possum omnia pertento . but i will not with him adde , neque enim minus imperspicua , interta fallaciaque sunt judicum ingenia ; quam tempestatum , terrarumque adjiciam quod me docuit usus , magister egregius , aliud alios movet , varia sunt hominum judicia , variae voluntates , inde qui eandem causam simul audierunt , interdum idem , saepe diversum , sed ex diversis animi motibus sentiunt , our colledge of justice is but one body , in which the senators are the judicative faculty , and the advocats the inventive ; and as the judgement is too rash , when it concludes before the invention has represented to it all that can be said pro , and con , even so judges should not decide till the advocat ( who is animated by gain , applause , and custom to find out , all can be said ) do first lay open all the reasons , and inconveniences which he has in his retirements prepar'd : from which also i conclude , that seing the advocats are in place of the invention , that those advocats who have the fertilest nvention , are most fitted for that excellent employment . when i prefer copious pleading , i design not to commend such as are full , but of tautologies , and repetitions , who moe periods , then arguments , and who , providing they find many words , care not much how to choose them . i love a discourse which is beautiful , but not painted ; rich but not luxurious ; harmonious but not canting . i am not for many replyes , duplyes , and triplyes , but for one , or two strong , full and clear discourses , and to lengthen those , by streaching out those unnecessar plyes into one just measure . nor do i love long pleading in the utter-house , where new decisions are not to be made , but where the old should be follow'd ; and where the multitude of attenders do require a speedy dispatch , and in the inner-house it is only to be practised where the cause is new , and fertile , and when the judges desire a full information ; for it is most unfit to vex an unwilling judge , who will think all that he loves not to hear , meer effectation , and vanity : but envy must not want its objections , and where it finds not a fault , it makes one out of the next vertue ; when a man pleads fully , it terms that luxuriency , and when he pleads shortly , it will have that pass for ignorance , or lazinesse : and so inconsistent are backbite●s not only with the truth , but in what themselves invent , that i have heard one and the same pleader , blam'd for a too luxurient pleader by some , and for a lazie pleader by others , because in the inner-house he used the full allowance , and in the utter-house he thought it impertinent to make speeches , where a short defence is only necessary ; for either the point there is clear , as ordinarily it is , and then it is absurd to enforce a principle ; or it is dubious , and then he gets the lords answer , and may be full in his information ; and why should pains be taken to vex a lord with debate who is not to decide ? far be it from me to prescribe magisterially , a form of pleading to others , but i love to tell freely my own opinion , and if others did so too , we should shortly , from comparing notes , come to know what method were most allowable . in pleading amongst the ancients , and yet amongst the french , there was still a preface , and epilogue . amongst them , he who spoke first , endeavoured to establish his own opinion , and to anticipat what he thought might be urg'd by his adversars ; but with us the pursuer relates only the cause , which he is only allow'd to adorn with a pertinent representation of such circumstances , as may best , either astruct the justice of his own pursute , or obviat unnecessary objections in his opponent , but without mentioning any thing pro , or con , in jure . andyet i have heard the case so prudently stated , as that thereby the defender was precluded from many defences he design'd to propone ; for amongst able pleaders , most of what is debated , arises from a difference rather in fact , then law ; and it is a great affront for one to plead , in law , a long discourse , which the other will grant to be all true , when the discourse is ended : and yet i have heard some concede all was said , and seem to difference the present case from the case pleaded , when indeed there was none , but when this was done meerly to evite a discourse which could not be answered . after the pursuer has stated his pursute , and enlarg'd himself upon all the favourable circumstances which we call the merits of the cause , the defender propones his defence , but urges it little , till he know if it be contraverted ; but if the relevancy of the defence be contraverted by the replyer , in a full discourse , then the duplyer makes a sull answer , and ordinarily these terminat the debate , and after that the discourses become too thin and subtile , and the judges weary , albeit some causes because of their intricacy , or of new emergents , require moe returns . in these replyes , or duplyes , our custom allowes a short preface upon solemn occasions , in which the rule seems to be , that these prefaces should not be too general and such as are applicable to any debate ; as when the speaker excuses his own weaknesse or recommends justice to the judges , or such common places ; but it should run upon some general principle , which though it be not a concluding argument , yet tends much to clear that which is the subject of the debate : as in the french pleading i have translated , the pleader being to inforce that a civil death purifies the condition , si sine liberis decesserit , he begins with a preface , which shewes , that the law has a great empire over nature , and plyes its events to its civil designes ; whereas i being to plead the contrair , i do insist to clear in generall , that matters of fact , escape the regulation of law , and that law is ty'd to observe nature . the discourse it self do's consist of these arguments , whereby the defender maintains his defence , or of these answers by which the pursuer elids those arguments ; and to range them appositly into their own places ( so that such arguments as have contingency , may be set together ) is a mark of a clear , and distinct wit : and when arguments are so rang'd , each of them adds strength to another , and they look like men well marshal'd into distinct troops ; whereas arguments stragling out of that place where they ought to have been placed , seem unpleasant , and irregular , and will hardly be expected where they are ; for instance , in pleading against the viscount of stormont , all the arguments which can be press'd , are either such as endeavour to prove , that the clause of stormonts infeftment is contrary to the nature of dominium or commerce , and after that the pleader had past first dominium , and then commerce , to return to those arguments , which arise from the nature of dominium , were irregular ; for that were to return to show what he had forgot . and from this i conclude in reason , that all arguments founded upon that same general principle , should be pleaded together , and in the ordering of these generalls , i would choose to begin with those which clear best either matter of fact , or which tend most to illuminat the subject of the discourse ; and thus the controversie in stormonts case , being , whether the proprietor of tailzied lands , may alienat these lands if he be prohibit to alienat by the first disponer , or at least if they may be comprys'd from him ; the first classe of arguments to be urg'd , should be these which tend to prove , that this prohibition is inconsistent with the nature of dominium , and propriety , for these clear best the nature of propriety which is the chief subject of the debate . he who answers , uses with us , to repeat the arguments which he is to answer all with one breath ; before he begin to make distinct answers to them ; and this proceeds as i conceive , from the aristotelick way of arguing in the schools , wherein he who maintains the thesis proposed , must repeat the argument , before he answer it : this method i love not , for it consumes unnecessarily much time , and sure it wearies judges to hear the same argument twice , yea thrice , repeated ; for first , the enforcer do's repeat them , then the answerer do's repeat them , both generally at the entry of his discourse ; and therafter he must repeat each argument when he is to make a special answer ; and i should think it much more natural to repeat and answer each argument a part , ordinarily the answerer follows in his answers the method of the proponer ; yet sometimes he chooses rather to classe the arguments as he pleases , and to answer accordingly . if the defender design to answer the arguments brought against his defence , and to adde new ones to astruct the reasonableness of his pursuit , he uses first to urge his own arguments , and then to answer what is alleadg'd for the defender . whether the strongest , or weakest arguments or answers should be first insisted on , was much debated amongst ancient orators ; some thought the weakest should be first urg'd , because the judges were then freshest , and might possibly by weariness slight what was delay'd : others thought fit to leave with the judges the strongest arguments , that they might be fresh with them when they were to decide : this i think is arbitrary , and they are but weak judges , who do not weigh all equally ; but i think it adviseable for a young pleader , to urge the strongest arguments first , that he may thereby conciliat favour to himself , and raise the attention of his judges , and in all cases where the cause seems unfavourable the strongest arguments are first to be used , for the same reason , and there seems little reason to leave the strongest arguments last , if the cause be not presently to be decided : but where many answers are to be made to one argument , the weakest is ordinarily first made and as it were overlye , but the strongest is reserved last , because it is most to be insisted upon : and i think it most natural to urge the weakest arguments first , because our discourse should like our selves , and like our studies , grow from strength , to strength , and from less to more , but sometimes one argument grows from another , and then there is no place to doubt , and alwayes the most mysterious argument is to be left last , because it is to be presumed , that then the cause is best understood , and mysterious arguments come to be most in season , when judges have fully master'd the case . the epilogue with us is ordinarily , in respect whereof the defence ought to be admitted , or repell'd , &c. but in some solemn cases , the pleader may recapitulat shortly his strongest arguments , or may urge the favour and merits of the cause ; and i should love to press this merit rather here then in the preface ; for favour is but an accessory of justice , and the consequent should not preceed its cause . action , was of old one of the chief ornaments of speech , under which was comprehended , gesture , and voice , all which were accomodated to the orators design , when they spoke to multitudes of ignorant people , to whom , tears or ejaculations pleaded more , then reason did ; for that they understood better , as more obvious to that sense by which they were govern'd : but now the world is become too wise to be taken by the eyes , albeit i confesse these adde grace , though not force . with us , action is possibly too violent , which i ascribe both to the violent temper of our nation , prefervidum scotorum ingenium , and to the way of our debate , for fire sparkles ordinarily from the collision of two bodies , one against another , some debate for interest only , some for honour , but advocats for both ; yet hardly can he raise passion in others , who shows it not himself ; and all men presume , that he who is very serious , and earnest to convince others , is the convert of his own argument . i confess , that passion do's disorder very much the kindled speaker , and that he can hardly clear well his discourse who is himself perturb'd , and we know the design of an angry man no more , then we can see clearly the bottom of troubled waters : and therefore it were very advisable , that hot and cholerick spirits , should calm themselves before they adventure to enter upon a serious debate ; but such as are bashfull are the better to be warm'd , and to loose prudently , a little of their indiscreet modesty ; melancholick persons likewayes who are ready to loose themselves in their wandering thoughts , need to be a little fretted , for thereby they become intent , and finding themselves somewhat piqu'd , they are gather'd into their subject . he who fears to be interrupted , will ordinarily stammer , for he will be more busie in thinking upon the being interrupted , then upon what he is to say ; and there , passion do's well also , seeing then he considers nothing but what he is speaking . railing , is of all other qualities , the worst in a pleader , for it makes men judge that his cause needs it , when he rails against his adverse client , and that he finds himself worsted , when he rails against his adverse advocat : but some times he is obliged to found upon matters of fact , which though they have much of reflection in them , yet are necessar truths ; and sometime the law by which he pleads , obleidges him to terms , which may seem rude to strangers , and in both these cases , not to be severe , were prevarication ; though i have known advocats very innocently condemn'd for calling the late times rebellion , and such as were forfeited traitors , though in that they spoke their art , and were not obliged to speak their thoughts : and there are few clients , who when they loose the cause do not discharge a great part of their fury , upon these advocats by whom they conceiv'd themselves overthrown . too subtile speading convinces few , because few understand it , and it is applauded by few , because few can reach to the practice of it ; and in young men it may be interpret to be but affectation , or notionalnesse , though in such as have by long practice establisht their own reputation , it gains glory . many citations also are to be avoided by all in pleading ( though they are necessar in writing ) especially in young men , for in these they are thought but common place-wit ; and yet young men do most use that way , because they think thereby to supply their own want of authority ; and because they know notmany parallel cases , and are not yet so intimatly acquaint with their subject , as to draw arguments out of its retired intrails . many parentheses are to be avoided , for they interrupt the threed of the discourse , and make it knotty , and mysterious , though these weeds grow ordinarily in the richest soil ; and are the effects of a luxuriant invention . frequent repetition of the ordinar compellations , such as my lord chancellor , or my lord president , are to be likewayes shunn'd . before i propose what phrase , or stile is fit for a pleader , it is fit to tell that the two usual stiles known by distinct names , are the laconick or short sententious stile , and the asiatick , or profuse and copious stile ; the first was used by the old roman legislators , as is clear by reading the digests ; but when the empire was transfer'd to constantinople in asia , the empire changed its stile with its seat ; and we find that profluvium asiaticum in the codex , and novels . yet all the grecian and roman pleaders , even in their purity , us'd a full copious stile , as is clear by demosthenes , cicero , and others , and though legislators or judges should use the laconick , yea the other must still reign at the barr. a barrister likewayes should rather study not to want words then to stick at the choosing fine ones , and the generality of hearers are more displeased at a gap , or breach in a discourse , then can be recompens'd by a multitude of these fine words or sentences which occasioned these gaps , whilst the speaker waited for these delicat words which he found after that stop ; and as i have known many admir'd for a fluent speaking of pittifull stuff , so i have known others loose the reputation of orators by studying in their greener years too much finenesse ; and i would advise my friends who begin to speak , first to study fluency , and when they are arriv'd at a consistency there , they may easily refine the large stock they have laid together . many who are not friends to the barr , inveigh much at the canting terms which they say is us'd there ; but these do not consider , that every science has its particular terms , and it were pedantry to substitute others in their place ; and as a man looks ridiculously in a womans habit , or a woman when attir'd like a man ; a souldiour under a gown , or a church-man in buff ; so it is as ridiculous to hear a member of parliament or a councellor speak of affairs in terms of hunting , as it is for a lawyer to speak in his terms of other things ; and i laugh as much to hear gentlemen speak in their canting terms of hunting , hauking , dauncing , as they can do to hear me speak in the idiom of my trade : and to speak like a gentleman at the barr , is to speak like a pedant ; pedantry being nothing , but a transplanting of terms from what they were fit for , to that to which they are most unfit , and i love equally ill , to hear civil law spoke to in the terms of a stile-book , or accidental latin , ( as is most ordinar ) as to hear the genuin words of our municipal law , forc'd to expresse the phrases of the civil law and doctors . it may seem a paradox to others , but to me it appears undenyable , that the scottish idiom of the brittish tongue is more fit for pleading , then either the english idiom , or the french tongue ; for certainly a pleader must use a brisk , smart , and quick way of speaking , whereas the english who are a grave nation , use a too slow and grave pronunciation , and the french a too soft and effeminat one . and therefore , i think the english is fit for harranguing , the french for complementing , but the scots for pleading . our pronunciation , is like our selves , firy , abrupt , sprightly , and bold ; their greatest wits being employ'd at court , have indeed enricht very much their language as to conversation , but all ours bending themselves to study the law , the chief science in repute with us , hath much smooth'd our language , as to pleading : and when i compare our law with the law of england , i perceive that our law favours more pleading then theirs does , for their statutes and decisions are so full and authoritative , that , scarce any case admits pleading , but ( like a hare kill'd in the seat ) it is immediatly surprys'd by a decision , or statute . nor can i enough admire , why some of the wanton english , undervalue so much our idiom , since that of our gentry differs little from theirs , nor do our commons speak so rudely , as these of yorkshire : as to the words wherein the difference lyes , ours are for the most part , old french words , borrowed during the old league betwixt our nations , as cannel , for cinnamon ; and servit , for napkin ; and a thousand of the like stamp ; and if the french tongue be at least equal to the english , i see not why ours should be worse then it . sometimes also our firy temper has made us for hast , expresse several words into one , as stour , for dust in motion ; sturdy , for an extraordinar giddiness , &c. but generally , words significant ex instituto , and therefore , one word is hardly better then another ; their language is invented by courtiers and may be softer , but ours by learn'd men , and men of businesse , and so must be more massie and significant : and for our pronunciation , beside what i said formerly of its being more fitted to the complexion of our people , then the english accent is ; i cannot but remember them , that the scots are thought the nation under heaven , who do with most ease learn to pronounce best , the french , spanish , and other forraign languages , and all nations acknowledge that they speak the latin with the most intelligible accent , for which no other reason can be given , but that our accent is natural , and has nothing , at least little in it that is peculiar . i say not this to asperse the english , they are a nation i honour , but to reprove the petulancy , and mallice of some amongst them who think they do their country good service , when they reproach ours . — nec sua dona quisque recuset . i know that eloquence is thought to have declin'd from cicero's time , and it has so indeed , if with pedants , we make cicero the standart , for nothing can be straighter then its square ; but i conceive that the world do's like particular men , grow wiser and learneder , as it grows old ; but of all things eloquence should improve most , because of all things it rypens most by practice ; experience discovers daily more , and more of the humour of such whom we are to convince ; and the better we know them , we can convince them the easier . by experience also we learn to know , what forms , and sounds please most , and every pleader and orator adds some new inventions to that of the last age , and if one being added to twenty make twenty a greater number , then the eloquence of this age , being added to that of the former , must make this age more eloquent then the last . but i know such as envy the orators of the present age , do still endeavour to mortifie them , by admiring such as are dead , who in their time met with the same measure ; death also removes men from being our rivals , and so from being envy'd by us ; yet we should remember , that even cicero , and demosthenes did complain of the same in their age , though they far exceeded their predecessours . some may think that the eloquence of rome , and others behov'd to be higher then ours , because the multitude were in these common-wealths absolutely govern'd by it , and the greatness of their reward for eloquence , exceeding ours , their eloquence behov'd to do so too . but i am formally contrary , for since our judges are wiser , and more learn'd then the commons , there must goe more art to convictions now , then was requisite then , and though we have not kings , nor common-wealths to defend , as those ostimes had , who pleaded in the roman senat ; yet we may show as much eloquence upon lesser occasions , as one may cut finer figures upon steel , then upon gold ; it is the intricacy of the case , and not the greatness of the pryze , which makes the value of the pleading , and generous spirits are more animated by difficulty , then gain . we have also moe laws , parallels , and citations to beautify our discourse , then they had , and want none of their topicks ; so that though our spirits did not equal theirs , yet in our pleadings we could not but exceed them . nor do i value much the opinion of those , who think the spirits of such as liv'd in common-wealths were greater , because freer then ours , who live under monarchies , and being sub●ects to none , they had greater confidence then we can have . this is but a fancy , invented by such as live under that form of government : but i have not seen any switzer , or hollander , so eloquent as the english , or french ; and it enlivens me more to see kings , and courts , then to see these busie , and mechanick nations : nor can i think any spirit can excell much in any one thing , where equality is design'd , and where all such as offer to rise above the vulgar , are carefully deprest , and sunk down to a level , as they are under common-wealths . for my own part , i pretend to no bayes ; but shall think my self happy , in wanting , as the fame , so the envy which attends eloquence : and i think my own imperfections sufficiently repay'd by fate , in that it has reserv'd me for an age , wherein i heard , and dayly hear , my collegues plead so charmingly , that my pleasure do's equal their honour . a pleading translated out of french , to inform such as understand not that language of the way of pleading there . an estate in land being dispon'd to a woman , and another being substitute , in case she should die without children of her own body ; she being condemn'd for incest , and burnt only in effigie , the question is , whether by that civil death , the condition be purified , as well as if she were naturally dead , and if the person substitute hath by that civil death , right to the estate , without waiting for her natural death . in favours of the person thus substitute , it was pleaded . albeit matters of fact do depend intirely upon nature , and cannot submit themselves to the authority of politick laws , eaquae sunt facti , nulla constitutione infecta fieri possunt ; yet law considers them only in so far as they are necessar and usefull for humane society , and upon that account forces this maxim to suffer many exceptions . thus bonae fidei possessor , is per actionem publicianam , made to have right by an imaginary and fictitious possession , to that which he never really possessed . jus postliminii , makes us believe him who is a prisoner of war , never to have been taken prisoner . and lex cornelia doth presume , that these who did test whilst they were captives , did dye in the city to which they belonged , though they dyed really abroad in their captivity . all which instances prove , that the law doth not subject it self blindly to nature , but that it can ply matters of fact to its own designs , and can by an innocent cheat , adjust them to publick utility and advantage . this foundation being thus establish'd , let us examine this condition ( if she dye without children ) and let us try if it be so bound up to a matter of fact , as that it cannot submit it self to the just and politick fictions of the law. it is certain , that albeit all conditions be ordinarily meer matters of fact , yet this condition which depends entirely upon the intention of the testator , must owe its form to his will ; and seing he did fix his first desires and designs upon this woman and her heirs , and did call the person substitute for whom i plead , but in the third place , not to suspend and differr his liberality , but to obliege my client to wait , because she and her heirs did preceed them in the order of his inclinations : therefore , when death or fortune do state her and her heirs in such a condition , that neither of them can expect the succession , there is no doubt but his will doth immediatly transport the effects of his liberality to the person substitute , since the persons who should preceed them , are by the law removed out of the way . nor was it the intention of the testator to enrich the fisk any more , then if he had adjected a condition relating nothing to the purpose , veluti , si navis ex asia venerit . from this likewayes it follows , that as succession is one of the wayes whereby we acquire in law civil rights which depend upon the law , and which the law doth not allow to any but to its own citizens , qui habent testamenti factionem passivam ; so this condition , si sine liberis decesserit , is not so entirely and absolutely a matter of fact , but that law and fact are therein mixed together ; and therefore , albeit the death of the first heir without children , is regularly understood according to the proper and natural signification of natural death , yet lawyers have extended this to civil death , and have purifi'd the condition by deportation and other kinds of civil death . as is clear , l. ex facto , 17. § ex facto , ff : ad senatusc . trebel . ex facto tractatum memini , rogaverat quaedam mulier filium suum , ut si sine liberis decessisset restitueret haereditatem fratri suo , is postea deportatus , in insulam liberos susceperat ; quaerebatur igitur , an fidei commissi conditio deficisset , nos igitur hoc dicemus , conceptos quidem ante deportationem , licet postea edantur efficere , ut conditio deficiat : post deportationem vero susceptos , quasi ab alio , non prodesse , maxime cum etiam bona cum sua quodammodo causa fisco sint vindicanda . this woman is condemn'd to be burn'd and strangl'd , she had no children , and can expect no divorce ; her flight has not only banish'd her out of the kingdom , but that sentence that has reveng'd her crime on her memory , and picture , has rendered her servam penae , the unfortunat prey of an unfamous gibbet ; how can she then but be repute dead , seeing she is expung'd out of the number of subjects ? and how can that law which has execute and kill'd her , belye so far its own authority as to believe her alive , after it has taken so much pains to make us believe she is dead ? and after her civil death , how can it conserve for her a faculty of bearing children , which may fulfill a civil condition ? i confess that deportation is not still compar'd to natural death , and that the liberty which a banish'd man carry's with him to a forraign countrey , do's preserve for him all the advantages of the law of nations , ita ut ea quae juris civilis sunt , non habeat , quae vero juris gentium sunt habeat , l. 17. ff . de penis . but on the contrary , since the being a slave devests man of his humanity , and ranks him amongst beasts , l. 2. § . 2. ff . ad l. aquil . the law can no more consider him , but as a piece of moveables , living and animated , as a reasonable tool belonging to his master ; so that having no head , nor will , but his masters , therefore if the law allow him to fulfill any condition , that is upon his masters consideration , and not his own . a person condemn'd is the slave of his punishment , servus penae , magis enim penae quam fisci servus est , l. 12. ff . de jure fisci : and therefore , the law reputes him dead , since that gibbet to which it tyes him can communicat nothing to him , but a cruel death , and consequently he can fulfill no condition , l. 17. § . si quis rogatus ad senatusctrebel . si quis rogatus fuerit filiis suis , vel cui ex his voluerit restituere haereditatem papinianus , l. 8. responsorum etiam deportato ei tribuit eligendi facultatem ; cui liber factus fidei commissum restitui velit , sed si servus penae fuerit constitutus , nullo ante concepto filio , jam parere conditioni non poterit decessisseque sine liberis videtur ; sed cum decedit electionem illam quam papinianus deportato dedit , huic dari non opportet . law imitats nature , and uses the same authority over a man , as he is sociable , that nature exercises over him , as he is natural : and hence it is , that the law governs and ●egulats societies for its own advantage , and as it can beget children , and people families by adoptions ; so by the same power it can cut off unnecessary members from families by exhereditations , and can kill them by condemnatory sentences , servus penae in omni jure , verè ac semper similis est mortuo : cujac . obser . l. 3. cap. 10. law then may justly bury a criminal in the unfamous sepulchre of a cruel servitude , which takes from him his civil life with his liberty , and can tye him to a long death and excessive torment , which may draw out his torture to a very long continuance , and make him , as petronius speaks , pass but for the pitiful vision , and horrid shadow of his own person . we must then confess , that that sentence which confiscats his body and goods , doth at the same time confiscat his person and liberty . it is the sentence which kills him , and his natural death following thereafter doth but execute that sentence ; and as we say , that a robber has kill'd a passenger when he gave him the mortal wounds , though he did not then dye , tunc occidisti cum vulnerabas , l. si ita ff . ad l. aquil . so by the same reason , the judge doth kill a criminal the very moment that he pronounces the sentence , and he truly dyes by the sentence , and not by the execution , l. 29. ff . de pen. qui ultimo supplicio damnantur statim & civitatem , & libertatem perdunt , itaque prae-occupat hic casus mortem , & nonnunquam longum tempus occupat , quod accidit in personis eorum , qui ad bestias damnantur , saepe etiam adeo servari solent post damnationem , ut ex his in alios quaestio habeatur . and as the authority of the law may beget a citizen before his birth , and receive a posthume into the common-wealth before he come out of the womb , post humus pro nato habetur : so its empire may take away the life a long time before a man die . it may preveen his death , and chase him out of the world before death overtake him , which is likewayes confirmed per l. si quis 6. § . sed & si quis ff . de injust . sed & si quis fuerit capite damnatus , vel ad bestias , vel ad gladium ; vel alia pena quae vitam adimit , testamentum ejus irritum fiet , non-tunc cum consumptus est , sed cum sententiam passus est , nam penae servus efficitur . let us now see if this way of reasoning drawn from the roman customs , can be brought home to our french practique . lawyers who designed to found the principles of their true philosophy , upon maxims , real , solid , and constant , were too clear-sighted to force their lawes to discharge their revenge upon an image , and an apparition , to take the shadow for the body , and in supposing the name of a criminal for his person , thereby to challenge their judges of want of power and precipitancy ; and therefore they did not allow , that a person who is absent should be condemn'd , and that the law should in vain spend its thunder upon those whom it could not reach : l. 1. ff . de requirend : reis . since then the law of the romans , could not condemn capitally a criminal who was contumacious , it was easie to them to believe that a prisoner who was present and fetter'd , did instantly receive that death to which he was condemn'd . but since our statutes ordain a painted and imaginary execution , either our statutes and customs must confess their weakness , and quite these as a meer mumries , or els they must necessarily obliege us to believe these appearances to be realities , and essay to verifie these civil lyes , in forcing us to believe that these painted executions are real ; that the originals of those infamous pictures are no more alive , and that res judicata pro veritate habetur . if the power of a roman pretor was sufficient to beget a child in spight of truth , and nature it self , plane si denuntiante muliere , negaverit ex se esse pregnantem , tametsi custodes non miserit , non evitabit quominus quaeratur , an ex eo mulier pregnans sit , quae causa si fuerit acta apud judicem , & pronuntiaverit cum de hoc agetur , quod ex eo pregnans fuerit nec ne in ea causa esse ut agnoscere debeat , sive filius non fuit sive fuit , esse suum , l. 1. § : ult . ff . de agnosc . liber . or may force a mother to disown her child , which is really hers ; sive contra pronuntiatum fuerit , non fore suum , quamvis suus fuerit , placet enim ejus rei judicem jus facere , l. seq . ff . eod . by much more reason , may a general law and custom universally receiv'd , force subjects so far to obey their judges , as to believe that a woman strangled and burnt has lost her life upon the scaffold , where she has been so publickly and tragically executed . it is then more just to presume , that this woman who is condemn'd is dead without children , and that her execution has purify'd the condition , then that the pursuer should attend her death , should search out her wandering person , which lurks under so much shame , and pursue her in her flight and banishment through countries , which are either unknown , or in enmity with ours ; and therefore i conclude , that it is most just to put the pursuer in possession of the estate . i have essayed thus to answer the former pleading , because there is no answer to it extant in the french , and because such cases may with us frequently occurr . the greatest glory of art is , that it can imitate nature ; and every thing which forces nature , is hated by men , as folly and affectation ; but amongst all those arts which follow nature , law is the chief , for it being the chief product of reason , it endeavours most to resemble nature , reason and nature being in man the same thing vary'd under diverse expressions , and reason being mans nature . and thence it is , that the law plyes all its constitutions to the several degrees of nature , and observes it exactly before it begin to form a statute relating to it , propter naturam statuitur aliter , quam statueretur alias , gl . ad . l. julianus , ff . si quis omissa causa ; though it appoints that consent should obleidge , yet it excepts minors , because of the frailty of their nature ; though it appoints murder to infer death , yet it pardons such as are idiots , or furious ; it doth in dubious cases prefer that interpretation which is most suitable to the nature of the thing contraverted , it presumes illud inesse , quod ex natura rei inesse debet : and it has very well ordain'd , that ea quae dari impossibilia sunt , vel quae in rerum natura non sunt , pro non adjectis habentur , l. 135. ff . de reg . jur . since then there is nothing so unnatural as to force us to believe , that a person who is really alive , is truly dead , and that the children which a woman may bring forth shall not be her children ; i see not with what appearance of successe the substitutes can in this case aspire to the succession now craved . nature has a fixt beeing , and men know what it determines by consulting their own breasts , and think themselves happy under the protection of what is sure , and determin'd ; but if it were allow'd that law might vary , and that lawyers might invent such fictions as these , and by them impose upon others , who not being of their profession could not follow all their subtilties , and windings ; then law should become a burden , and be esteem'd an illusion . and i imagine i hear those amongst whom this woman lives , laugh at this discourse , which would force them to believe that she is dead ; and i am sure that any country-clown may refute it , by presenting the woman , as one refuted a wise philosopher , who maintain'd , that there was no motion , without any other argument , then by walking up and down . the question then being , whether the condition , si sine liberis decesserit , is purified by a civil death , and if immediatly after she is burnt in effigie , she can be said , sine liberis decessisse , so that the person substitute may immediatly succeed , and exclude any children she shall thereafter bear , or if the substitute must attend her natural death . that the substitute cannot succeed immediatly after her being burnt , but that any future children would seclude him , so that a natural only , and not a civil death , purifies the condition , is contended by these reasons ; first , the question being , whether this condition , si sine liberis decesserit , respects natural , or civil death ; we must interpret the word death , so as that we follow the more genuine and natural signification ; and i am sure , the ordinary and genuine interpretation of death , is a natural and not a civil death . 2. if we look to the meaning of the disponer , which is the next rule to be 〈◊〉 in the interpretation of dubious and equivocal words , we will find , that it is hardly imaginable , that the disponer dream'd of a civil death ; and it is most certain , that any man , especially who was not a lawyer , would never have figur'd a civil death ; nor is it deny'd , for fictio is mens legis , non disponentis . but how unsuitable were it to natural equity and the principles of law , that the will of the disponer should not regulat what is dispon'd ? or why should the law dispose upon what it did not bestow ? 3. words are to be explain'd in a disponers will , as the disponer would probably have explain'd them himself , if the meaning had been contraverted at the time of making the disposition ; but so it is , that if it had been proposed to the disponer , whether the children of the woman institute should be cut off , in case their mother should commit a crime ? it is probable that he would not have punished poor infants , for a guilt to which they were not accessory ; and the law was never more generous , then when it said , non competere beneficium inofficiosi testamenti post-humis , cum exhaeredationis causam comittere nequeant , nec debent alieno odio praegravari , l. 33. § . 1. c. de inoff . test . nor is it imaginable , that the testator would have taken from them what he designed , because they sell , without their own guilt , in a condition , which made that which was but liberality to become charity : and since he designed this for their mother and them , to supply their wants , it is not imaginable he would have taken it from them , when their wants were greatest . the children would likewise still continue to be nearer to the disponer , then the substitute , nam jur a sanguinis nullo jure civili adimi possunt ; and since the blood-relation gave at first the rise to that nomination , it is probable , that the effect would not be taken away whilst the cause continued . 4. if she can have children after her being burnt in effigie , she cannot be said decessisse sine liberis , upon her being burnt in effigie ; but i subsume that she may have children , and such too as the law would acknowledge to be children : for by the 22. nov. cap. 8. marriage is declar'd still to subsist , notwithstanding of any interveening criminal sentence , for though by the old law , condemn'd persons pro nullis habebantur , and so the marriage was dissolved , yet by that excellent constitution this was abrogat , si enim ex decreto judiciali , in metallum aliquis , aut vir , aut mulier , dari jussus esset , servitus quidem erat & ab antiquis legislatoribus sancita & ex supplicio illata , separabatur vero matrimonium , supplicio possidente damnatum , sibique servientem . nos autem hoc remittimus , & nullum ab initio bene natorum ex supplicio permittimus fieri servum , neque enim mutamus nos formam liberam in servilem statum , maneat igitur matrimonium hoc nihil tali decreto laesum . since then her husband continued to be so still , and that the law would acknowledge the children to be hers , would not the law contradict it self , if it should say that she died without children , and yet should acknowledge that these were her children ? 5. post-humus pro jam nato habetur , ubi de ejus commodo agitur ; and therefore , by the same reason of justice and equity , the law should be so far from presuming , that there can be no children born after the mother is condemned , that if she shall bear any , it should rather presume them to be already born , to the end they may not be prejudged of the succession which would be otherwise due to them ; and if posthumus habetur pro jam nato , ubi agitur de ejus commodo , much more should he be presumed natus , ubi agitur de damno vitando ; for we are much more favourable in damno vitando , quam lucro captando . 6. by the roman law , auth bona damnatorum , c. de bon . prescript . the goods of condemn'd persons were not confiscat in prejudice of the ascendents , or descendents , to the third degree , except only in the case of lese-majestie . if then the crime be not able to seclude children , it follows necessarily , that children quo ad their succession , are in the same case as if the crime had not been committed , and if the mother had committed no crime , here there had been no place either for the substitute , or for this question . it is just that delict a s●●s debent 〈◊〉 authores ; and that since punishment is only justified by the preceeding guilt , that the punishment should not exceed the guilt , and that the right designed for the children by the first disponer , should not be taken away from them by the mothers fault : this were also to adde affliction to the afflicted , to make poor infants loose with their mother , their patrimony , and to impoverish them most , at an occasion , when to give them were charity . i confesse that law sometimes doth recede from nature , and invents pretty fictions , as in the cases propos'd of jus postliminij , adoptionis , and legis corneliae ; but it doth so , very sparingly ; nor are these fictions ever allow'd , except where they are introduc'd by an expresse law ; for the law thought it not reasonable to allow every judge or lawyer a liberty to coin his own caprice into a fiction , lest so , unreasonable fictions might be introduc'd , and lest the people might be ignorant of what they were to follow . since then the pursuer founds his strongest argument upon this as a priviledged fiction , he must instruct that this fiction is founded upon expresse law , and even in these fictions , law neyer inverts nature , but rather seconds it , and it makes not nature bow to these , but these to nature ; and amongst many other instances , this is clear by adoptions , wherein the younger cannot adopt the elder , because it were against nature saith the law , that the younger should be father to the elder , inst. de adopt . § . 4. minorem natu majorem non posse adoptare placet , adoptio enim naturam imitatur , & pro monstro est , ut major sit filius quam pater . and i may by the same reason say , that it were monstruous to imagine , that she who may really labour in child-birth , and who really may give suck cannot bring forth a child , but is dead ; and that the law should not own as children , these whom the church owns as such . and in these fictions which are allow'd , we will find upon exact inquiry , that law has not designed to overturn nature , but only has made bold by these fictions to dispense with some of its own solemnities , as is clear by the law cornelia , wherein the romans did by that legal fiction imagine , that he who died in prison amongst the enemies in a forreign countrey , died at rome , and at freedom , meerly that they might by that fiction render valid the testament of him who was a prisoner , for the honour of their common-wealth ; and whose testament could not have subsisted without this fiction , seing none but a free citizen could amongst them make a testament . since then there is no need of such a fiction as this , and since there is no expresse law introducing it specifically in this case , there is no reason that it should be allowed to take away the benefit of the disposition from the person substitute , which it gave not . nihil tam naturale ( sayes the law ) quam eo genere quidque dissolvere quo colligatum est , l. 35. ff . de reg . jur . since then the children owe not their succession here to the civil law , but to the will of the disponer , the law should not by its fictions , take away what was not at first the effect of its liberality . in the cases where the law allow's fictions , it allow's them only for to strengthen natural equity , and not to overturn it , and by the definition given of it , it is said to be indubitatae falsitatis pro veritate assumptio , in casu possibili , & ex justa causa proveniens , ad inducendum juris effectum equitati naturali non repugnantem . jason . ad l. si is ff . de usu-cap : upon which definition no subsumption can be founded here , for not only is not this in casu possibili , because it is impossible , that a person can be both dead and alive at once , and that children should be , and not be , verum est , neque pacta , neque stipulationes , factum posse tollere , quod vero impossibile est , neque pacto , neque stipulatione potest comprehendi , l. 32. ff . de reg . jur . but it is also repugnant to justice and equity , that the estate destinat by the disponer to his blood-relations should be taken from them , and given otherwise then he would have bestowed it himself ; and though the law doth sometimes in favours of children , obliege us to believe , that the child that is in the mothers womb is born , there is some foundation for imposing that upon us , since there is a child extant though not born ; yet it never uses that liberty in punishing poor infants , and to condemn them before it can know them , or that they have transgressed . in answer to the second classe of arguments , i do confesse , that it is true , that all civil rights should perish by a criminal sentence , and that in sensu civili , pro nullo habebatur damnatus ; but it is as true , that ea quae sunt juris naturalis were not thereby taken away , quod attinet ad jus civile , servi pro nullis habentur , non tamen et jure naturali , quia quod ad jus naturale attinet omnes homines aequales sunt , l. 32. ff . de reg . jur . but so it is , that to bear children is in her no effect of the civil law , but of the law of nature , and the children to be procreat by her , will be her children by the law of nature ; so that since she can bear children , she can yet fulfill the condition of the institution ; nor can she be debarr'd from that by being serva penae , at least her children cannot , seing they are not condemned by her sentence : condemnatory sentences take only from the person condemned what may belong to the fisk , for it substitutes the fisk in place of the person condemned , but it takes not from him what cannot belong to the fisk . ea sola deportationis sententia aufert , quae ad fiscum perveniunt ; but so it is , that it was never designed , that the fisk should succeed in place of the person to whom the disposition was made , as is acknowledged by the substitute who now craves preference ; and if the fisk would be preferr'd to the womans children , much more would he be preferr'd to their substitutes , who succed only to them . and the reason of the decision , l. ex . facto . ff . ad . sc. trebel . is not founded in odium of the children , but of the fisk , maxime cum etiam bona , cum sua causa fisco sunt vindicanda . but the solid answer to that , and all these other laws , is , that by the old roman law , damnatus erat servus penae , & servus penae parere conditioni non p●terat , & pro nullo habebatur ; and therefore , by that law , parere conditioni non poterat , as is clear by the law cited : but justinian did abrogat that amongst many other unreasonable fictions , and by nov . 22. cap. 8. this servitus penae is clearly abrogated , and therefore since the foundation of the decision is taken away , the decision can now no longer take place , and by all the laws in christendom , those servitudes are now abrogated ; and our blessed saviour has by his coming to the world , set mankind at liberty in all respects , and we can be slaves to nothing now , but to our vices . nor doth the law look upon a person condemned , as a dead person , in all respects , which is the third great foundation of all that is pleaded against my client ; for it allowes her to propone her just defences , and it would punish him who kill'd her upon a privat revenge ; it would acknowledge her children to be lawfull , and untill she be really dead , her husband could not marry another : for though the law , to deterr men from committing crimes , doth oftimes raise its terrors by civil fictions , yet it is the nature of these civil fictions , that they cannot be strech't de persona in personam ; though then it will not allow such to be thought still alive who are struck with it's thunder , yet this fiction reaches only to the offender , in so far as concerns her civil capacities , and the punishment of her guilt ; and therefore seing the blood is not tainted by this sentence , she not being here condemn'd for treason , which is the only crime that taints the blood , her children , though born after the sentence , would still succeed to her , and since they would be acknowledged to be her children , she cannot be said decessisse sine liberis : which is the condition upon which the substitute craves to be prefer'd . the parliament of burgundy found , that a natural death could only purifie this condition , si sine liberis decesserit . for haining , against the fishers upon tweed . first pleading . how far a man may use his own , though to the prejudice of his neighbours . haining being prejudged by a lake which overflowed his ground , and which by its nearness to his house , did , as is ordinar for standing waters , impair very much the health of his family : he did therefore open the said lake , whose waters being received by whitticker , did at last run with whitticker into tweed . the fishers upon that river , pretending that the water which came from that lake , did kill their salmond , and occasion their leaving the river , do crave that haining may be ordain'd to close up that passage . this being the state of the case , it was alledged for haining , that since men had receded from that first community , which seem'd to be establish'd amongst them by nature , the law made it its great task , to secure every man in the free and absolute exercise of his property , and did allow him to use his own as he thought fit , and whatever did lessen this power and liberty , is by the common law term'd a servitude , or slavery : nor can a servitude be imposed upon a man without his own consent , and suitably to this principle , every man may raise his own house as high as he pleases , though he should thereby obscure the lights of his neighbours house : or if i should abstract from my neighbours ponds , that water which formerly run into them from my lands , the law doth not think him prejudged , nor me oblieged to prefer his conveniency to my own inclinations , as is clear by l. 26. ff . de damno infect . for as that law very well observes , he is not prejudged who looses a benefit which flow'd from him who was no way tyed to bestow it , l. 26. ff . de dam. infect . proculus ait , cum quis jure quid in suo faceret quamvis promisisset damni infecti vicino , non tamen eum teneri ea stipulatione : veluti si juxta mea adificia habeas aedificia , eaque jure tuo altius tollas , aut si in vicino tuo agro cuniculo , vel fossa aquam meam avoces . quamvis enim & hic aquam mihi abducas , & illic luminibus officias , tamen ex ea stipulatione actionem mihi non competere : scil . quia non debeat videri is damnum facere , qui eo veluti lucro quo adhuc utebatur , prohibetur : multumque interesse utrum damnum quis faciat , an lucro , quod adhuc faciebat , uti prohibeatur . and if i dig a well in my own house , which may cut off those passages whereby water was conveyed to my neighbours well , one of the greatest lawyers has upon this case , resolved , that my neighbour will not prevail against me ; for , saith he , no man can be said to be wrong'd by what i do upon my own ground , for in that i use but my own right ; l. 24. § 12. ff . cod . in domo mea puteum aperio quo aperto venae putei tui praecisae sunt , an tenear ? ait trebatius , me non teneri damni infecti , neque enim existimari operis mei vitio damnum tibi dari , in eare , in qua jure meo usus sum : where the gloss observes , that in suo quod quisque fecerit , in damnum vicini id non animo nocendi facere presumitur . and if by a wall or fence upon my land , the water was kept from overflowing my neighbours land , i may throw down my own fence , though my neighbours land be thereby overflowed , l. 17. ff . de aqua pluvia ; and therefore , seing the ground doth belong to haining , and that the fishers of tweed have no servitude upon him , he may use his own as he pleases , especially seing he doth not immediatly send his water into tweed , but into another rivolet , which carryes it very far before it doth disgorge there . so that if the fishers upon tweed did prevail against haining , they might likewise prevail against all , from whose ground any moss-water runs into tweed , though at fifty miles distance ; and they may forbid all the towns from which any water runs into tweed , to throw in any excrements , or any water employed in dying , lest it prejudge their salmond-fishing ; whereas , alteri prodesse , ad liberalitatem , non ad justitiam pertinet . it is ( my lords ) referr'd to your consideration , that publick rivers have been very wisely by providence , spread up and down the world , to be easie , and natural vehicles for conveying away to the sea , ( that great receptacle of all things that are unnecessar ) excrements , and other noxious things , which would otherwayes have very much prejudg'd mankind ; and that they may the better perform this office , providence has bestow'd upon rivers , a purifying and cleansing quality , so that after a little time , and a very short course , all that is thrown in there , doth happily loose their noxius nature , which is washt off by the streams by which they are carryed . rivers are natures high-wayes by water , and we may as well forbid to carry any thing which smells ill , upon our high-wayes by land , as we may forbid to throw in stinking waters into our rivers . the proper use of rivers is , that they should be portable , and fit for navigation , or for transporting things from on place into another ; and salmond-fishing is but an accidental casuality , and therefore the only interdicts , or prohibitions propon'd by the law , relating to publick rivers are , ne quid in flumine ripave ejus fiat , quo pejus navigetur , tit . 12. lib. 43. and , ut in flumine publico navigare liceat , tit . 14. ff . eod . lib. but in rivers that are not navigable , the law has forbidden nothing , but that their course and natural current be not alter'd , ne quid in flumine publico fiat , quo aliter fluat aqua , atque uti priore estate fluxit , tit . 13. ibidem . so that since the law doth not forbid the throwing in any thing into publick rivers , it doth allow it ; for it is free for every man to do what the law doth not prohibit , and if upon such capricius suggestions , as these , men were to be restrain'd from using their own , no man should ever adventure to drain his land , to open coal-sinks , or lead-mines , or to seek out any minerals whatsoever , whose waters are of all other the most pestilentious , because after he had bestowed a great deal of expense , he might be forc'd to desist , for satisfying the jealousie , or imagination of melancholy , or avaritious neighbours . and if this pursute find a favourable hearing , malice and envy will make use of it , as a fair occasion whereby to disturb all successfull , and thriving undertakers . but your lordships may see , that the world , both learn'd and unlearn'd , have hitherto believ'd , that such a pursute as this would not be sustain'd , in that though interest and malice did prompt men to such pursutes , yet not one such as this has ever been intented , for ought i could ever read , save once at grenoble , where an advocat did pursue a smith to transport his forge from the chief-street , because it did by its noise disturb not only him , but the people who frequented that street ; from which pursute the smith was absolv'd , as expilly observes in his pleading . yet , my lords , the fishers upon tweed want not some apparent reasons which give colour to the pursute ; and it is urg'd for them , that no man is so master of his own , but that the common-wealth has still an interest with him in it , and law being invented to protect the interest of societies , as well as to secure the property of privat persons , therefore though every privat man inclines to satisfie his own humour , and advantage , in the use of what is his own , yet it is the interest of the common-wealth , that he do not abuse his own property ; and therefore it is , that the law doth interdict prodigalls ; nor will the law suffer that a man use his own in emulationem alterius , . l. 3. ff . de . oper . pub . and a man is said to do any thing in emulationem alterius , when others looses more by what is done , then the proprietar can gain : as in this case , though quilibet potest facere in suo , yet non potest immittere in alienum , which is their case ; and all the arguments brought for haining do not meet , seing they only prove , that a man may use what is his own as he pleases , ubi nihil immittit in alienum ; as is clear by the instances given , of throwing down his own wall , or the digging up a well in his own land , which differs very much from our case , wherein haining doth pour in his poysenous water into the river of tweed . that men are restrain'd for the good of the common-wealth in the use of their own property , is very clear from many instances in our law , as men are discharg'd by acts of parliament to burn mures , to kill smolts ; the way and manner of fishing upon lochleven is prescribed to the heretors , by act of parliament , and men are forbidden to steep lint by publick acts likewayes . likeas , the common law will not suffer men so to use water running through their own land , as that they may thereby prejudge milns belonging to their neighbours , which use to go by that water , and whatever may be alleadged in favours of any innovation in running waters , yet lakes being appointed by nature , seem to have from nature a fix'd beeing ; nor should they be opened to the prejudice of others , contrary to their nature . these objections may , ( my lords ) be thus satisfied . to the first , it is answer'd , that the only two restrictions put upon men in the free exercise of their own , are , ne in alterius emulationem fiat , vel materiam seditionis prebeat , as is clear by the foresaid , l. 3. ff . de oper . pub . neither of which can be subsumed in this case . and when the law considers what is done in emulationem alterius , it acknowledges , illud non factum esse in emulationem alterius , quod factum est principaliter ut agenti profit , & non ut alteri noceat , l. fluminum 5. ffin . ff . de dam. infect . and the gloss formerly cited upon that law determines , that animus nocendi is not presum'd , if any other cause can be assigned : and in this case , haining can ascribe his opening this lake , to the prejudice it did to his land , and to his health , whereas it cannot be alleadg'd , that he ever exprest any malice against the fishers upon tweed , many of whom are his own relations . as to the instances given , wherein the law doth restrict the free use of property , the principle is not deny'd , but it is misapply'd . for the law only bounds the proprietars power in some cases , wherein his loss may be otherwayes supplied ; as in mureburn , and killing of smolts at such a season of the year , and in steeping lint in running waters , which may be as commodiously done in standing pooles ; but these pursuers crave this lake to be stopt at all times , nor is there an apparent reason here as there , this pursuit being sounded only upon a conjectural prejudice , and in these cases , the prohibition is made necessar by the generality , and frequency of occurrences , and yet though so circumstantiated , there is still a publick law necessar . and when a publick law discharges the free exercise of property , it ordains him in whose favours the prohibition is , to refound his expences who is prohibited : nor is the common-wealth here prejudg'd so much by this , as it would be by the contrare , for thereby all coal-heughs , lead-mines , and the winning of other minerals would be discharg'd ; whereas it is uncertain if this water chaseth away the salmond , which are at best but a casuality , and which will go but from tweed to other rivers in scotland , for they cannot stay in the sea. salmond-fishing is but an accident to rivers , but there being the common porters is their natural use . thus ( my lords ) you see that we contend for what is natural to rivers , they for what is but casual ; we are founded upon the nature and priviledge of property , they upon meer conjectures . the lords enclin'd to sustain hainings defence ; but before answer , they granted commission for examining upon the place , what prejudice was done . for the viscount of stormont , against the creditors of the earl of annandail . second pleading . whether a clause prohibiting to sell , will prejudge creditors . the deceast viscount of stormont , having by his majesties favour , and his own industry , acquired the lordship of scoon , he did tailie the same to mungo viscount of stormont , and the heirs-male of his body ; which failing , to john earl of annandail , and the heirs-male of his body ; which failing , to andrew lord balvaird , and the heirs-male of his body ; and to prepetnat his own memory , as the reward of his industry , he did cause insert this provision in the charter and seasine , viz. that it should not be lawfull to the said mungo , to dispone , or wodset any of the saids lands so tailied , or to do any deed whereby the saids lands might be evicted or apprised from them , without the consent of all the persons contained in that tailzie , or their heirs ; which if they contraveened , that they should , ipso facto , loose all right or title to the saids lands , and the right should accress to the next heir . the late earl of annandail , having very profusely and unnecessarily , spent not only his own estate , but likewayes contracted debts , for which the lordship of scoon is apprised , this viscount of stormont , as immediat heir of tailzie , craves that it may be declared , that the right to the said lordship of scoon is devolved upon him by the forsaid contravention , and that he should enjoy the said estate , free from any debts contracted by the earl of annandail . though this pursuit appears clearly to be founded upon the express will of the first disponer , who as he might not have disponed , so might have qualified his disposition with any conditions he thought fit ; and albeit such clauses as these tend effectually to preserve illustrious families , yet the creditors of the late earl of annandail do alledge , that though this his contracting of debt may furnish action against the earl of annandails heirs , for any prejudice they can sustain by his contraveening the foresaid provision , and though by vertue of this pactum de non alienando , all the persons in the tailzie were bound up from selling the saids lands ; yet no paction , nor provision could annull debts , which were bona fide lent by them , to a person who stood in the fee. which defence they urge by many specious reasons ; as first , that there is nothing so contrary to the nature of domintum , and property , as that he who is proprietar should not have the free exercise of his right and property , which free exercise consists in the liberty to alienat , and to make use of what is his own , for defraying his just debt , and answering his necessar occasions ; and they pretend , that it were most absurd and inconvenient , that a person should be raised to the title and dignity of a noble-man , and should be confest by the law , to have an absolute right to an estate , and yet that though he were captive in the turkish gallies , he should not be able to raise money for redeeming himself from that bondage ; and which seems yet more repugnant to the inclination , and interest of the disponer , that if a fine were imposed with assurance , that if the fine were not payed , the estate should forfeit , yet the proprietar behoved idly to stand , and see the estate sink . and though an advantagious occasion offered of buying his own superiority , his multers , or any such advantage ; yet the heir of tailzie could not raise money for that use , nay nor for alimenting himself , if the rents perish'd by war , or other accidents . this is to have , and not to have an estate , a paralitick property , and an useless right . to allow , that such a clause in a charter , might annull all the debts contracted by him to whom it is granted , were to destroy and ruine commerce , which is the very soul of a common-wealth , and which by how much it is incumbred by unexpected clauses , is by so much impared and burdened . commerce doth oftimes require speedier returns , and dispatch , then can allow a serious consideration , of all the securities and evidents of those , with whom we deal ; neither are these alwayes ready to be produced , nor doth the law in what relates to commerce , consider all that a lender may do for securing himself , but what is ordinarily done ; and it is most certain , that the most exact men do not enquire into the securities of those with whom they contract in lending money ; and though something may be pleaded in favours of ordinary clauses , which either law , customes , or decisions have allowed , yet it were extraordinarily prejudicial to commerce , to make a man forfeit his sum , because he did not guard against pactum de non contrabendo debitum , a paction as unsuitable to the nature of propriety , as unusal in this kingdom : and though the legislators do in some places allow such pactions as these , as is clear in lege majoratus in spain , yet they are made tollerable there , because being introduced by a publick law , they are universally known , and he who contracts with persons so prohibited there , forfeits his sum , because he neglects a publick law , and not because he contemns the privat prohibition of a disponer . nor are such pactions as these to be so severely observed , as necessar for preserving noble families , and so fit for our kingdom , which subsists by these ; for if the nature of propriety were to be alter'd , in so high a measure , as it is by this paction , it could in justice only be altered by a publick law , wherein the estates of parliament ( who are with us only judges of what is convenient for the nation in general ) might declare , that it were fit to turn such a paction as this into a law : and since for so many ages , the parliament has not thought this fit , nor have privat families ever introduced any such pactions till now , we must either judge , that these are not fit for privat families , or that those understood not their own interest . as to strict law , whereupon this pursute is only founded , the creditors do represent , that though lawyers have allow'd pactum de non alienando , yet they have extended it no further , then to annull dispositions made contrary thereto ; but they never stretch'd it so far , as to annull all debts contracted by the person prohibited to dispone , l. ea lege , c. de condict . ob . caus . dat . 2. though they allow'd these prohibitions , quando inductae erant à lege , à judice , aut à testatore per ultimam voluntatem ; yet they did not allow so much favour to prohibitions , which are only founded super pactis viventium , as is clear by craig . l. primo diages . 15. omnes terrae , ( inquit ille ) in feudum dari possunt , nisi quae à lege , judice , aut testatore in ultima voluntate dari prohibentur . 3. lawyers do not allow , that such prohibitions as these , though resolutively conceived , should absolutely annull all alienations made by the person prohibited , except the prohibiter reserve some dominium and property to himself in the thing dispon'd , by vertue of which reservation , he has power to quarrel all deeds done , and the person to whom he dispones is because of that reservation , not so absolutely in the fee , or property , as that his disposition should be unquarrellable ; as is clear by bartol . and baldus , both ad l. sancimus . cod. de reb . alien . non alienand . where they conclude , quod si is cui promissum est , de non alienando reservavit sibi jus aliquod in re , hypothecae , vel dominij , impeditur translatio , aliter non , & etiamsi pactum adhibitum sit in ipsa traditione , & cum pacto resolutivo , tamen non impedit dominij translationem , sed illo casu alienans tenetur tantum ad interesse . and therefore , seing the disponer reserved no right to himself , but that the late earl of annandail was fully in the fee , it were against the principles even of strict law , that debts contracted by him should be annull'd , as contrary to the prohibition . 4. when a person is prohibited to alienat , that prohibition is still restricted to voluntar and unnecessar alienations , the design of the disponer being to curb such of his successors , as should be luxurious , but not to bind them up when frugal , in occasions that are necessary and advantagious ; and the law is content to own such pactions , in odium of such as have fed the luxury , or prey'd upon the simplicity of those with whom they contracted , without any design to vex commerce , or to preclude those successours from being relieved in their honourable and necessar occasions . prohibita alienatione , tantum voluntariae prohibitae censentur , non vero necessariae , necessitas enim legem non patitur , as reiters observes , tract . de alien . cap. 6. sec. 4. which may be further clear , per l. 5. ff . de pet . haered . & l. 69. § . 1. ff . de legat . 2. and suitably to this , though in our law ward-lands recognise if they be voluntarily dispon'd without the consent of the superiour , yet he is allowed to sell the less half of his lands without the superiours consent , which is allowed by the law to relieve his necessities ; and though he cannot voluntarily alienat the greater half , yet all the few may be apprysed from him by his creditors , for satisfaction of his just debt . and therefore , seing the late earl of annandail was known to be a judicious person , and to have lived very soberly , and that these debts can be instructed to have been contracted for relieving him out of the necessities unto which he was thrown by the iniquity of the times , and his constant adhereing to his majesty ; it is by these creditors pretended , that these debts cannot be annull'd , as contrary to that prohibition , which they neither did , nor were oblieged to know . and since our law has thought , that inhibitions and interdictions should be published , and registrat for putting the subjects in mala fide , it can never allow , that such clauses as these which are neither published , nor registrat , should produce the same effect . to these arguments , they add , that god almighty has oftimes testified his displeasure against such clauses , whereby , his providence is insolently bounded by vain man , who endeavours to build himself a babel against heaven ; and by which clauses likewise , man will endeavour to perpetuat his own memory here , and call his land to all ages by his own name , against the express advice which the scripture gives . i do confess , ( my lords ) that those specious pretences , especially when prest with so much zeal , and eloquence , may make impressions upon such as are not intimatly acquaint with the principles of law ; but i hope , where we have such judges as your lordships , there can be little hazard from such objections : but before i endeavour to satisfie these , i crave leave to lay out before your lordships , those grounds whereupon my client founds his pursute . it is an uncontraverted , and first principle of law , that quilibet est dominus , & arbiter rei suae , and therefore may dispose upon his own as he thinks fit ; nor can any thing less then a law bound the exercise of this power ; and every man being judge of his own conveniency , lawyers do very properly term the conditions adjected by a disponer , leges contractus , and the feudalists call the conditions under which a few is dispon'd , leges feudi ; feuda ( saith zasius ) à pactis contra naturam suam sunt transmutata , pacto praegravante naturam feudi : and albeit our law has defer'd very much to equity , and to the principles of the civil law ; yet privat transactions betwixt parties , are not to be limited by those : but pactions are to be observed amongst them in their full extent , as is ordain'd with us by an act of sederunt , 1573. law may be receded from by privat pactions ; and therefore , much more must privat pactions bind where they are contrary to no express law : and since pactum in refamiliari aequipollet juri publico , reg. maj. lib. 3. cap. 10. & lib. c. cap. 31. it necessarily followes , that as a law or decision might have establish'd their pactions , de non alienando , & non contrahendo debitum , which is acknowledged by the creditors themselves , that a condition insert in a charter may do the same as effectually : and if the pretence of publick equity and commerce , might alter the destination of a disponer , or mutual pactions of privat persons , what uncertainty would this occasion in humane affaires ? or who could be secure , that the transaction he made , should hold ? for there are few men who do not differ in their conceptions about publick commerce ; this were to unhinge all privat pactions , which persons had at first suited to their own necessities , and inclinations , and to make judges who should be ty'd to a fixed rule , unrestrain'd arbiters , over the affairs and fortunes of the people : for they might , almost in all cases , recede from privat transactions , upon pretext that they are contrary to publick good , equity , or commerce . but if any conditions adjected by disponers are to be observed , surely those which are adjected in a free gift and donation are most to be observed ; and it is certainly contrary to reason , that he who needs not dispone his own land except he please , may not dispone it as he pleaseth . as the law hath been very tender of the interests of all proprietars , so of all others , it hath been most tender of those rights , whereby men have declared how their will should be obey'd , and their memory perpetuated after their death . law designing thereby at once to encourage men to be frugal , because they may know that what they have gain'd by their industry , shall be disposed of according to their will ; and to comfort men against death , because they may know that their will shall be as exactly execute , as if they themselves were still alive , uti quisque de re sua legassit , it a jus esto . the law in all contracts , considers most , what was the design of the contracters , and when any thing is dispon'd for a particular cause , when that cause fails , the disposition falls as causa data , causa non sequuta , & si ea lege donavi , defectus causae impulsivae resolutionem contractus inducit , quia ea lege donavi cum alias non essem donaturus , l. cum te . c. de pact . inter empt . that such pactions as these are very lawful , and ordinary , is clear both from the civil , and feudal law. for by the civil law , though there were tailzies , yet the romans had their fideicommissa , which did very much resemble them , and by which the person cujus fidei res erat commissa , could neither dispone nor impignorat ; and if he did dispone or impignorat , that person in whose favour the fidei commissum was granted , might not only pursue the disponer for damnage and interest , but might likewise annull what was done contrary to the trust , as is clear , l. fin . cod . de reb . alien . non alienand . sancimus , sive lex alienationem inhibuerit , sive testator , hoc fecerit , sive pactio contrahentium hoc admiserit , non solum dominii alienationem , vel mancipiorum manumissionem esse prohibendam , sed etiam usus fructus dationem , vel hypothecam , vel pignoris nexum petitus prohiberi ; similique modo , & servitutes minime imponi , nec emphytenseos contractum , nisi in his tantummodo casibus , in quibus constitutionum auctorit as vel testatoris voluntas , vel pactionum tenor qui alienationem interdixit , aliquid tale fieri permiserit . these clauses , de non alienando , & non contrahendo debitum , are most allowable by the feudal law , where such tailzies are called feuda gentilitia , & feuda ex pacti providentia ; yea , and by the feudal law , it was not in the power of him to whom it was first disponed , to alienat or affect the few , either in prejudice of the superiour , or of him who was next to succeed : and what is more ordinar with us , then such obligations in contracts of marriage ? sir thomas hope is of opinion , that a right granted to a man and his heirs , secluding assignayes , could not be comprised by a creditor ; and sure that exclusion is not so valid , as a clause irritant and resolutive , which is actus maxime explicitus & geminatus . from these principles , there do arise very natural answers to the alledgeances proponed for the defenders ; for whereas it is contended , that such restraints as these are inconsistent with property , it is answered , that there is nothing more ordinar then to qualifie propriety , as appears clearly by the nature fidei-commissi , pacti gentilitii , and very many other instances ; and even in our law , ward-lands cannot be disponed upon without the consent of the superiour ; and it is more contrary to the nature of property and dominium , that a man cannot dispone upon what is absolutely his own , under what restrictions and qualifications he pleases , then that he who hath only a qualified dominium , should be in a capacity to dispone absolutely , upon what was not absolutely his own . that maxim whereupon we found , that quilibet est moderator & arbiter rei suae , has no exception exprest in it ; whereas the definition of dominium insisted upon by them , which is , that it is jus de re sua libere disponendi , has an exception adjected to it , which is , nisi quis lege prohibeatur ; under which word lex , the doctors alwayes comprehend pactum , and to prevent all mistake , some do expresly say , nisi quis lege vel pacto prohibeatur : so that in vain do they found upon the nature of dominium , since the very definition of it doth contradict what is alledged . to the second difficulty , bearing that these clauses are destructive of commerce ; it is answered , that the liberty of disponing upon our own , as we think fit , doth more nearly concern us , then the liberty of commerce ; especially in this kingdom , which stands more by ancient families , then by merchants ; and therefore seing these clauses tend necessarily to perpetuat families , and the other doth only tend to the better being of trade , we ought to prefer the pursute to the defence . and to what purpose shall we gain an estate by commerce , when we cannot secure it by such clauses ? nor are these clauses destructive of commerce , as is alledged , more then inhibitions or interdictions , and it is easier to read a charter , then to try the registers ; and england and spain , which are more interested in commerce then we , have by allowing such clauses , evidently declared , that they think them not absolutely inconsistent with commerce . but the truth is , real rights are not the foundation of commerce ; for commerce is maintain'd upon the stock of personal trust , and the main thing which traffiquers relye upon , is the personal trust which is amongst them , and not the consideration of any real rights . i do not conceive my self oblieged to take much notice of the creditors being in bona fide to contract with the earl of annandail ; for if annandail had no power to burden that estate , their bona fides could not give it him ; nor could a creditor apprise from him that to which he had no right , no more then i can comprise one mans estate , for another mans debt : and if annandail had only given a back-bond , declaring that the estate was only in his person by way of trust , the creditors could not have apprised it for their debt , though they might likewayes have alledged that they were in bona fide to lend . for , the law considers only bona fides , where those who alledged the bona fides , did exact diligence , which these creditors cannot alledge ; for if these creditors did not at all call for annandails rights to scoon , they cannot be said to have laid out their money in contemplation of those rights , but in contemplation of his other estate , or upon the account of a personal trust ; or if they did call for those rights , they might have very clearly seen his prohibition , and consequenly would have been secured against lending upon the faith of this estate . whereas it is urged , that such prohibitions as these , are only allowed , when they are introduc'd by testament , by a law , or by a judge ; but not when they are introduced by contracts or dispositions inter vivos , it is answer'd , that if it be allowable the one way , it should be the other ; for the design is rather more deliberat in a disposition , then in a latter-will : for the one uses to be an act of health , and the other of sickness , and the one is as contrary to commerce as the other is : and if any weight be laid upon the favour allow'd by the law to ultima voluntas , upon the accout of consoling the testator in obeying what he designs , this favour is equally communicable to both , for in both there is a designation made of the way and manner of succession , in which a dying man is as much concerned , when he makes a designation by a disposition , as when he makes it by a testament ; and therefore , les substitutions contractuelles ont les mesmes . effects en france , que les testamentaires , dans la prohibition d'aliener , as lowet observes , tit . 5. num . 9. and for which he cites many decisions ; and where he observes very judiciously , that the reason why the roman law did not allow these substitutions , and prohibitions in contracts , as it did in testaments , was , because testaments was the only way amongst them of disponing upon estates , and of making substitutions , and fidei-commissa ; to make which was not allow'd by contracts , quia auferebant testandi liberam facultatem , which subtilty is not now allow'd in this age : for on the contrary , tailzies and contracts of marriage , are now the ordinary wayes of disponing estates , and if men might alter such destinations of contracts , such as do contract with them would be in a hard condition . nor is there more weight in that part of the alledgeance , which bears , that those prohibitions do only annull deeds done in favours of him who has reserved some right in his own person ; for tailzies with such prohibitions , do imply a reservation in favours of those who are to succeed , and the tailzie is in that case but a right of trust to the behoof of the family ; and the provision in their favours is equipollent to a reservation . the design of both is the same , and therefore they should both operat the same effect . discourage not , ( my lords ) such as love to be frugal , because they hope their estate may remain with their posterity ; encourage not such as resolve to shake loose , by their prodigality , what was establish'd by their wise predecessours : by favouring the creditors defences , you will but gratifie the prodigality of heirs , or the laziness of creditors ; whereas , by sustaining my clients pursute , you will secure us as to our own pactions , and as to your decisions ; you will perpetuat noble families , and bound the luxury of such as are to succeed . the lords sustain'd the pursute , and repell'd the defences propon'd for the oreditors . for the lady carnagie and her lord , against the lord cranburn . third pleading . whether tax'd-wards be lyable to recognition . my lord chancellor , the late earl of dirletoun having no children , besides two daughters , and having an estate consisting of lands in scotland and england , did very judiciously at first resolve to marry one of them in scotland , and the other in england ; and in pursuance of this design , he bestowed elizabeth the eldest , upon william earl of lanerick , secretary of scotland , brother to duke hamiltoun , but which was more , a person admir'd for his heroick vertues , and whose alliance was courted at any rate , by the most eminent families of both kingdoms . the younger of these daughters , named diana , was match'd thereafter to the lord cranburn ; and as the earl of lanerick could not but have justly expected all , or at least the far greatest share of that estate , so the lord cranburn could scarce have expected thereafter any thing above an ordinar portion : yet , such is the capriciousness of old men , that the earl of dirletoun did , in anno , 1649. by the impressions of some who were inveterat enemies to the family of hamiltoun , dispone the lands of innerweek , fenton , &c. failing heirs-male of his own body , to iames cecil his grand-child , and the heirs-male of his body . his majesty finding , that the said estate was most illegally dispon'd to iames cecil , without his consent as superiour , they holding ward of him , and that he had thereby defrauded the just expectations of so worthy a person as the earl of lanerick , and so the lands recogniz'd by the said disposition , did gift the saids lands to the lord bargeny , for the behoof of the earl of lanerick ; upon which gift of recognition , there is now a declarator pursued by the lady carnagie , eldest daughter to the said earl of lanerick , who thereafter became duke of hamiltoun , wherein she craves , that it may be declar'd by you , that she has the only right to these lands . there are very many defences propon'd for the lord cranburn , which i shall endeavour thus to satisfie . the first is , recognition has only place in feudo recto & proprio , whereas these lands hold tax'd-ward , in which manner of holding , all the casualities are taxed to a very inconsiderable sum , which sum is designed to be the only advantage that shall accress to the superiour : and the reason why ward lands recognize when they are sold without the superiours consent , is , because the superiour having so great interest in the lands which hold by simple ward , as to have the ward and marriage of the vassal , the law did therefore obliege him not to alienat that land , without the superiours consent ; which reason ceaseth , where the ward is tax'd , the superiours interest becoming very inconsiderable by the tax : nor can it be imagin'd , but that the superiour , having dispensed with the great casualities of ward and marriage , has consequently dispensed with the said restraint , cui datur majus , datur minus , praesertim ubi minus inhaeret majori & est ejus accessorium . for satisfying which difficulties , your lordships will be pleas'd to consider , that our law appoints all ward-lands to recognize , if sold without the superiours consent , and makes no distinction betwixt simple and tax'd-ward ; the general is founded upon express law , and there is no express warrand for excepting tax'd-ward . 2. seing these lands could not have been fold before they were tax'd , by what warrand can they be sold since they were tax'd ? seing though the casualities of ward and marriage were tax'd , and thereby these casualities expresly remitted , except in so far as they are tax'd ; yet there is no power granted to sell , without the superiours consent : nor is that priviledge remitted by the superiour , et fendum alteratum in una qualitate , non intelligitur alteratum in aliis & actus agentium non operantur ultra concessa . 3. the power of selling without the consent of the superiour , is different from the casualities of ward and marriage , which are here only tax'd ; for fewholdings are oft-times burdened with this restraint , and this restraint was of old taken off expresly by warrands under the quarter-seal , without taxing the other casualities ; so that this priviledge differs from these , and the one cannot be comprehended under the other . the second defence is , that by the feudal law , recognition ob alienationem feudi est crimen , & delictum feudale , against which error , etiam probabilis ignorantia excusat ; as is clear , lib. 2. tit . 31. the words are , quod enim dicitur alinatione feudum aperiri domino , intelligendum est cum à scientibus alienatum est beneficium , which are the words of the said law : whereupon , socinus , reg . 153. though he do give it as a rule , that emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit , conform to the civil law , l. ffinal . c. de jure emphyteutico , he subjoyns these words , fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam ; and accordingly , craig , de recognitione , lib. 3. diages . 3. and in the case of disclamation , lib 3. diages . 5. layes down for an undoubted principle , that ignorantia crassa excusat feudalia delicta . and here , the subject of the question is not in jure , & in thesi , whether ward-lands should recognosce ; but in facto , & hypothesi , his right being of the nature , and in the terms foresaid , he might dispone without hazard , as to which , an error in him , who was an illiterat man was very excusable , especially having consulted peritiores , and having been assur'd by very eminent lawyers , that there was no hazard in disponing those lands , without the superiours consent , they holding tax'd-ward , which was sufficient to have defended him in feudo amittendo . to which it is answered , that ignorance of the law excuses no man ; and the case having been at best dubious , the vassal should not have hazarded upon what the law might construct to be a disowning of his superiour ; and since every man is oblieged to know the nature of his own few , the law doth presume , that every man doth know it , nam quod inesse debet , inesse presumitur ; and therefore , craig doth very well conclude , pag. 344. tit . de recognitione , that ignorantiam , pretendens vix audiendus est , cum sit crassa ignorantia , feudi sui conditionem ignorare : and though he observes there , that excusabitur , qui feudum suum non militare credidit , cum militare est ; yet , that cannot be extended to this case , wherein the vassal certainly knew that his few held ward : and though the law sometimes doth excuse a vassal , who had reason to doubt the condition of his own few , because of some mysterious clause , or because he was a singular successor , and had not recovered the writes of the few as to which he transgressed , or was necessitate to do the deed , for which he was challenged , by poverty , or such other occasions ; yet , that in the general , ignorance did not excuse delicta feudalia , is very clear by the opinion of the learnedest feudalists , laur. silv. de . feud . recog . quest . 60. praepos . in cap. 1. § . praeterea de prohib . feud . alienat . and in our law , it was never found , that ignorance did defend against recognition , the falling of an escheit , disclamation , &c. and if the superiour were oblieg'd to prove the vassals knowledge , it were impossible ever he could prevail in any pursute ; knowledge being a latent act of the mind , which can never be proven but by oath ; and to refer knowledge to the oath of the vassal , were not only to frustrate the superiour , but to tempt the vassal to commit perjury ; and albeit the feudal law did allow the vassal to purge his guilt , by deponing in some cases upon his design , yet that was only allow'd in cases where the external act was of its own nature indifferent , such as the speaking of contumelious words , that were to receive their genuine interpretation from the design of the speaker ; and that did never take place in clear acts , such as this is , wherein the vassal hath sold his few without the consent of the superiour . the thrid defence was , that where there is no contempt , there can be no recognition ; but so it is , that as the presumption of contempt is taken off by the constant tenor of the earl of dirletouns respect for his master , the king ; so the disposition is given to be holden of the king , and that implyes as much , as if it had been expresly provided , that the alienation should be null , if the superiour should not consent and confirm the same ; and such an express provision should have certainly , in the opinion of all feudalists , defended against recognitions . to this it is answered , first , that the clause , si dominus meus consenserit , doth not defend against recognition , though exprest , verbis geminatis , & pregnantibus ; and unless it be resolutively conceived , bearing that it shall not be valid alias , nec alio modo , and although all these cautions be adhibit , yet many feudalists are clear , that this will not defend against recognition , where the person to whom the few is disponed attains to possession , as cranburn here did ; for they think , that in that case it is but protestatio contraria facto , & plus valet , quod agitur quam quod simulate concipitur : and if this were sustain'd to defend against recognition , no few should ever recognize , for the vassal should still defraud his superiour of any advantage , by inserting a clause si dominus consenserit ; upon which considerations , your lordships predecessours have , by a decision the 16. of february , 1631. found , that lands may recognise notwithstanding of this condition . 2. the disponing of lands to be holden of the superiour , is not equivalent to the clause , si dominus consenserit ; for the disponing lands to be holden of the superiour , prov●nit non ex facto vassali , sed ex natura feudi , & ex stilo ; all fews being given in scotland , to be holden either of the superiour or the disponer , à me , vel de me , as shall best please the receiver ; so that the disponing the lands to be holden of the superiour , doth not shew any clear design the vassal had to require the superiours consent , and consequently cannot defend against recognition . to fortifie this point , it is urged by the defender , that where there is no prejudice to the superiour , there can be no recognition ; and there is no prejudice to the superiour in this case , seing the superiours prejudice is either upon the account , that the vassal redditur pauperior , or that the disponing without the superiours consent obtiudes upon the superiour a stranger ex al ena familia & inimica ; whereas in this case , the disponer was not pauperior , having reserved his own liferent , and in effect , the bee it self , and power to burden the same , and contract debt , and alter the tailzie , and dispose of the estate notwithstanding of the same ; and the lord cranburn cannot be said to be a stranger , being descended of the earl himself , and being his grand-child . to this it is answered , that in law , all such persons as are not alioqui successuri , sunt extranei ex tenore investiturae , and by two express decisions related by p. spotswood and hope , it was found , that dispositions made to the brother or grand-child did infer recognition , though they were likewayes ex familia , nec licet ( saith craig , pag. 345. ) vassalo anum ex liberis suis eligere , sed vel naturae , vel juris ordo sequendus , vel domini electioni res est permittenda . the fourth alledgeance was , that only perfecta translatio domini , can infer recognition ; whereas the sasine here is null , because it is given to be holden of the superiour , and sasines of that nature are intrinsically null , quo ad omnes effectus , except the superiour confirm the same . to this it is answered , that si vassalus fecit omne quod in se erat , to alienat the few without the consent of the superiour , that alienation will infer recognition , though the alienation was null otherwayes , as is clear by craig , pag. 344. quod si traditionem vassalus fecerit , ea tamen sit invalida & nulla exempli causa si chartam dederit , de fundi alienatione tenendam de domino superiore , quam sasina sequatur . et dominus superior neque confirmaverit , neque ratam habuerit , videtur hanc alienationem nihil periculi secum trahere , cum conditionalis videatur & sub hac conditione contracta , si dominus ratam habuerit , aut confirmaverit , quae conditio , cum non evenit & alienatio nulla sit ex defectu consensus superioris , & paria sunt in jure omnino non fieri , & non jure fieri ; sed profecto in hoc casu puto etiam feudum domino aperiri , nam quandocunque vassalus id omne fecit & exequutus est , quod in se erat , licet factum illud de jure non teneat , tamen quatenus in se est , domini mutationem se velle testificatus est fidemque fregit : in hoc etiam casu a feudo cadet , licet alienatio nulla sit . suitable to which , baldus has very well observed , that licet alienatio sit nulla , ob vitium litigiosi feudum tamen fit caducum , quia in prohibitis non requiritur juris effectus , quod enim prohibitum est effectum sortiri nequit ; and if only effectual alienations could infer recognition , it could never be inferred ; for all alienations , to which the superiour doth not consent , are null , and by the act of parliament , 1633. all seasines of ward-lands granted to be holden few , are declar'd null , and yet are declar'd to be the ground of recognition . and whereas it is alledged , that craig , pag. 344. relates the case betwixt mackenzie and bain , in which it was found , that lands did not recognise , because not registrat within fourty dayes . it is answered , that there the vassal non fecit omne quod in se erat , not having registrat the sasine timeously , and so the tradition was compleat ; nor did the person to whom it was disponed possesse in the case cited , the land disponed , as cranburn did in this : and by the opinion of rosenthal , capite . 9. conclus . 4. feudum ( inquit ille ) absque domini consensu aperitur etiamsi alienatio ex alia aliqua causa forte omissa solennitate legis aut statuti , aut simili , esset nulla modo possessio vera & actu tradita sit nam doctores in hac materia considerant prejudicium ipsius domini magis in traditione reiquam in alienatione . vide curtium , jun. de feudis , pag. 4. num . 85. whereas it is alledged , that the sasine is null , as given upon a general letter of atturney out of the chancellary , nor are general mandats sufficient in prejudicialibus , and that this sasine was given to a minor , who was extreamly laes'd . to both these , the former answers are oppon'd , wherein i have endeavoured to prove , that the alienation may be null , and yet may infer recognition ; our law considers not minority , as to casualities competent to the superiour , as is clear in the cases of non-entry and rebellion : and since the act of the disponer , is that which only infers recognition , it imports not what the condition of the person was to whom it was granted . it is also pretended , that the sasine is null , as being actus legittimus qui non recipit aiem , nec conditionem , l. 77. ff . de regjuris ; for since executione actus statim perficitur , its inconsistent that actus should be perfectus , & exequutus , and yet should be suspended upon a condition , as this sasine is , which bears , failing heirs-male of the earl of dirletouns body . to this it s answered , that this sasine cannot be call'd actus legittimus , that being ordinarily a term appropriat to judicial acts , whereas there is nothing more ordinar then that sasines should be conditional , as we see in sasines , given upon warrandise lands , and in sasines following upon wodsets ; nor is it denied that sasines may bear resolutive conditions , and if so , why not other conditions , these being of all others most severe ? nor have any lawyers written upon this subject , who have not divided sasines in puram & conditionatam . the fifth alledgeance was , that there can be no recognition where the vassal had power to dispone , and the earl of dirletoun had by his charter , power to dispone ; for these lands are disponed in his charter haeredibus & assignatis , which implies potestatem alienandi , which the defenders learn'd advoc●●s do found upon tit . 48. lib. 2. feud . si quis enim ea lege alicui feudum dederit ut ipse , & sui haeredes , & quibus dederint habeant qui sic accepit poterit vendere , vel alienare sine consensu domini ; for which likewayes they cite craig , dicta . diag . 3. clarus , hottoman and other feudalists . to this it is answered , that this general clause haeredibus & assignatis , is only meer stile , and the word assignatis is used here improperly , as it is used in bonds , in which a man binds himself , his he●●s and assignayes , whereas it is impossible for a man to bind his assignayes . argumentum a stilo is not still probative , especially in this age , wherein stiles are become too laxe , and in our eldest stiles , there is a luxuriancy , which deserves rather to be corrected , then allowed ; thus inhibitions forbid us to alienat moveables , and single escheits give right to reversions , albeit our law reprobats our stile in both these ; and this clause was not designed to import a liberty to alienat , for els there could be no recognition in scotland , seing all charters bear that clause , and such as have that clause have oftimes been found to recognise , & generales clausulae non extenduntur ad illicitum : and that by the feudal law , the word assignatis is not equivalent to quibus dederit , is clear ; seing the feudalists use no such term as assignati ; and in our law haeredibus legittimis , & assignatis , must not be interpreted as if it were equivalent to quibus dederit , but to that clause used by doctors , quibus legittime dederit ; and all feudalists are positive , that the clause quibus legittime dederit , implies necessarily that the superiours consent is still necessar . likeas , generalis clausula non extenditur ad prohibita ubi fieri potest congrua interpretatio ; but so it is , that the word assignati may be understood of comprisers , or of such to whom the vassal should dispone the lesser half of the few : so that when a few is granted haeredibus , & assignatis , it is lawfull for creditors to comprise that few , or for the vassal to dispone any part thereof , not extending to the half ; but that clause can never import , that it should be lawfull for him to dispone the whole , without the superiours consent , that being an interpretation which the parties themselves never designed ; and priviledges which are inherent in the nature of a few , ( as this is ) are never understood to be discharged , except where they are discharged expresly . the defender , my lords , hath told you , that he propones all these defences jointly , which may discover to you , how frail his own advocats judge these defences to be : arguments which are weak , being join'd , may by their mutual assistance plead pitty , but they can never astruct the proponers right , no more then many cyphers can make a number , nor many uncertainties a certainty : this is a shift which eloquence , not law , has invented , and may prevail with arbiters , but should seldom convince judges . the lords found , that these lands , though holding only taxt-ward , did recognize ; and repell'd also all the other defences . for alexander carmichael , against the town of aberbrothock . fourth pleading . how far the borrower in commodato estimato , is lyable , if the thing be lost , vi majore . when the town of dundee was so fortified , that its inhabitants had reason to expect security to the ships which lay under their walls , either by way of defence , or capitulation ; the town of arbroth did crave the lend of some cannons from alexander carmichael : but because the said alexander , as a burgess in dundee , might have expected from the foresaid garrison , or from his being able to sail his armed ship where he pleas'd , perfect security to his guns , he therefore refused to lend the same , till patrick wallace and other privat burgesses of arbroth should estimat the guns , and oblidge themselves to re-deliver the saids guns free from all skaith , harm , or danger , or els to pay the sum of 500. l. as the price agreed upon : and that in respect he foresaw , that the guns were not only lyable to great danger , ex sua natura , but likewayes because arbroth was a naked town , wanting walls , men , and skill ; and albeit the town of arbroth did owe to the saids guns the resistance they made to cromwels ships in three several attaques , wherein if they had wanted guns , there town had been burnt , yet so unjust are the saids patrick wallace , and others , that when the foresaid liquid sum is charg'd for , they suspend upon this reason , viz. that this contract is commodatum , & commodatarius non praestat casus fortuitos : but so it is , they subsume , that these guns were lost casu fortuito , in so far as the defenders endeavour'd to carry them to dundee ; but being beat in by cromwels ships , they were forc'd to bury them in sands , out of which they were raised and taken by those enemies . to which it was answered , that though in commodato simplici , commodatarius non praest●t casus fortuitos , yet in commodato estimato , it is otherwayes , which is most clear from l. 5. § . 3. ff . commodato , the words whereof are , et si forte res aestimata data sit , omne periculum praestandum ab eo , qui aestimationem se praestaturum receperit ; which holds not only in commodato , but in all other contracts , where any thing is estimat , as is clear in the general , by l. 1. § . 1. ff . de estimatoria , estimatio autem periculum facit ejus qui suscepit , aut igitur rem ipsam incorruptam debet reddere , aut estimationem de qua convenit : many instances of which general may be given in several contracts , but it shall satisfie me to name dos estimata , wherein it is very clear , that the valuing of things delivered , did obliege the receiver to re-deliver either the thing valu'd or its price , though the thing valued did perish casu fortuito , as is clear , l. 10. ff . de jur . dot . plerumque ( inquit ulpianus ) interest viri res non esse estimatas , ideo ne periculum earum ad cum pertineat maxime si animalia in dotem acceperit , vel vestem qua mulier utitur , eveniet enim si estimata sint & mulier attrivit ut nihilominus maritus earum estimationem praestet : which is also most clear , l. 10. § . 6. ff . de jur . dot . and if at any time the law relax any thing of this alledged severity , in favours of him who receives the thing valued , it is upon the account that the thing valued was delivered for the use and advantage , not of him who received it , but of him by whom it was entrusted ; as if in our case , my clients had entreated the citizens of arbroth to receive their guns , and had valued them at the delivery ; the law in that case , would not have burdened the receivers with the loss , where they gave no occasion to the lend ; but in the case where the thing valued was lent at the desire of the citizens of arbroth , and for their advantage , without any possible advantage for the lenders , in that case , which is our present case , the law doth in express words tye the receivers to re-deliver either the thing lent , or the estimation , l. 17. § . 1. ff . de estimatoria ; si margarita tibi estimata dedero ut eadem mihi adferes , aut pretium eorum , deinde haec perierint ante venditionem , cujus periculum sit ? et ait labeo quod & pomponius scripsit , si quidem ego te venditorem rogavi meum esse periculum , si tu me tuum , si neuter nostrum sed duntaxat consensimus teneri te hactenus ut dolum & culpam mihi praestes . nor can this be well doubted , if we consider the nature of estimation or valuing , and the design of these who enter into such contracts , by their estimating the thing lent . all lawyers and others are of the opinion , that commodatum becomes by estimation , anomolum & irregulare , and the estimation were to no purpose if it did not bind the receiver of the lend to more then what would follow , ex natura commodati simplicis ; and therefore , seing commodatarius was here liable ex culpa levissima from the nature of the contract , because the lend was given only for the advantage of the lender : it must necessarily be infer'd , that the receiver of an lend that is valued and esteemed must be furder liable , els there would be no difference betwixt a thing lent simply , and lent after it is valu'd , and consequently , the valuing before lending should operat nothing ; so that seing in an ordinar lend , the receiver would be liable in culpam levissimam , the receiver must be liable in casus fortuitos , where the thing lent is estimat before lend●ng , there being no case ultra culpam levissimam praeter casus fortuitos . 2. the lender did secure himself by a bond and the foresaid obligation , to restore the price , if the thing lent were not free of skaith , hurt or damnage . 3. if there was any thing ambiguous in this case , yet the clause behoved to be extended , ad casus fortuitus , and that must be thought to be the meaning of the parties from the following rules , whereby ambiguous contracts are to be interpret , viz. first , a write is alwaies to be interpret against the subscriber , who should impute to himself , that he did not clear what he intended , and it were unreasonable that his obscurity should be a snare to another person , scriptura semper est interpretanda contra proferentem . 2. that in reason should be constitute to be the meaning of the write , which if it had been treated of , had certainly been condescended to by all parties : but so it is , that if at the time of the lending of the saids guns , the lender had refused to lend them upon any other terms , then that he should have been secur'd against all events ; it is not to be imagined , that the borrowers would have hazarded their lives and fortunes , and the honour both of their country and town , for the hazard of 500 pound ; and it is as improbable , that the lenders would have given the guns , they being stated under all the circumstances above narrated . 3. it may appear both from the circumstance of time , and the nature of the thing lent , that they foresaw the risk these lent guns were like to run ; for none but idiots would not have foreseen the same : and it were against reason to think , that a man would secure himself against an open and seen hazard , especially being to lend them to persons who behov'd to buy others , if they had not got the lend of those , and who would have bought these guns , if the lender would have sold them , and if they had been sold , the buyers had run all risks . to this it was replyed , that first commodatum estimatum was only so called , when the lender did estimate the thing lent , and did take the commodatarius only oblieged to restore not the thing lent simply , but either the thing or value , at the option of the receiver , as was clear , because the receiver might have oppon'd compensation against the lender , when he was pursuing for the thing lent , or might make use of the thing lent as he pleased , which was not our case ; because the receivers of the guns could not have retained the same , or have rejected compensation against the lender , though the lend had been damnified ; but it was in the option of the lender to have call'd either for the guns , or the estimation , and this estimation and value was agreed upon , to the end that the value might be repeated , if the guns were lost through negligence , or deterioration , but not if they were lost vi majore , or casu fortuito . 2. by the expresse words of the bond , the value is only to be restored in case the guns be damnified , but there is no provision made against their being lost , nor can that be presumed to be the meaning of the parties , because ille presumitur sensus verborum qui est rei gerendae aptior , and casus fortuitus is very contrary to the nature of commodatum . 3. this is not only casus fortuitus , but insolitus , to which no contract is ever extended , and this case of the cannons being taken out of the sands , could never have been foreseen , seing it is absolutely extrinsick , both to the use of cannons , and to the ordinar hazards of cannons ; and it was unusual and ominous for a scots man to provide against their being over-run by the usurpers . 4. these guns had been lost , if the lender had retained them , seing the usurpers , after the taking in of dundee , made prize of all their ships and guns . to which it was duplied , that the former law was oppon'd , bearing that the receiver commodati estimati in general suscipit omne periculum , and that is properly commodatum estimatum ubi intervenit taxatio pretii : and though there may be such a commodatum estimatum as is mentioned in the reply , yet , that omne commodatum estimatum is of that nature is denied , and seing the answer is founded upon an express and general law , it cannot be taken away but by a law as express , clearing , that there is no commodatm estimatum but in the case instanced in the reply . likeas the interpreters , and particularly faber , ad h. l. give instances of commodatum estimatum , in the case where the thing estimat is to be restored , and estmatio in general produces that effect of transferring the hazard as will appear , per l. 1. 〈◊〉 . 1. ff . de estimatoria ; by which it is likewayes clear , that if the thing it self be not given back , the estimation must be delivered , and that the estimation extends not only ad deteriorationem , sed etiam ad interitum . likeas in the general , estimatio is called a kind of vendition , as is clear by calvin , in his lexicon upon that word , and the citations there adduced ; and in venditions , the receiver undergoeth all hazard , and therefore he should run the same hazard in commodato estimato . as to the second , it is answer'd , that he who is oblieged to deliver any thing free from all hurt and damnage , is much more oblieged to deliver back the thing it self , for it is probable , that he who guarded against the lesse danger , would guard against the greater . whereas it is alledged , that this must be the meaning of the parties , the former rules are oppon'd , and it is added , that this case could never be called casus insolitus , nor fortuitus , in respect that is casus fortuitus which the skillfulest or wisest man could not foresee ; but so it is , every wise or prudent man might have , and could not but foresee this ; and the brokard rei gerendae aptior is only extended to regular contracts , but not to irregular contracts as this is , wherein it is confest , by both parties , that they intended to transgress the ordinar rules and nature of commodatum estimatum , and to wrest the nature of this contract to their particular case ; and certainly , sensus aptior rei gerendae at that time was , that the lender , who might have secured his own guns , and who was not oblieged to lend them , did design to secure himself against all hazards , when he caused estimat his guns ; else , why should he have caused estimat them ? and to the third , where it is alledged , that the raising of guns out of sand is not the hazard which guns ordinarily run ; it is answered , that the burying and sinking of cannons is very ordinar ; but it being foreseen in general , that these guns might perish by the usurpers , and in that quarrel , that was sufficient , though every particular circumstance was not foreseen : for if the guns had been stollen away by night , or had been taken in the return , certainly the receiver would have been lyable ; and yet that is not a more ordinar way of lossing guns , then this now instanced . to the fourth , bearing , that those cannons had been lost however ; it is answered , that the charger is not oblieged to debate what hazard they would have run , he having secured himself by a bond , as said is , and that might be aswell alledged in venditions , and yet none ever alledged , that the buyer did not run all hazards of the thing bought , and was not oblieged to pay the price , because the seller would have lost the thing sold , if it had remained with him : but the truth is , the skipper , nor no burgess of dundee wants any of those guns which were aboard in their ships at that time ; and it is probable , that though the ship and goods had been taken from this pursuer , he had none to blame but these defenders , who by borrowing his goods , dissabled him to venture to sea with his ship : nor can it be imagin'd , that the burying of goods in presence of the whole town , and leaving their carriages open to the usurpers , was exact diligence ; nor did ever the receivers , after the guns were taken away , either inform the chargers that they might do diligence , or make application to the usurpers for restitution , as dundee , st. johnstoun , crail , and other towns did ; and wherein they prevail'd so , that these defenders are not only lyable ad casus fortuitus ex natura commodati estimati , but for not doing exact diligence , ex natura commodati proprii . the lords found , that the borrowers were not lyable to pay the price , since the cannons were lost casu fortuito , & vi majore . for sir thomas stewart of gairntully , against sir william stewart of innernytie . fifth pleading . how fury and lucid intervals may be proven . the deceast sir william stewart , finding his daughter jean fit enough to marry , did provide her to a portion of twenty thousand merks ; in which , though he substitute sir william her brother and others , yet your lordships did , by a solemn decision find , that she remained still in the fee , and might have disponed , notwithstanding of the quality of the substitution , and therefore you did sustain a right and assignation made by her in favours of sir thomas her brother . sir william resolving rather to hazard the honour of his family and sister , then the loss of the sum ; did at last alledge , that the assignation was not valid , seing his said sister was furious , both before and after the granting of that right : whereas sir thomas , in maintenance both of his sisters honour , and of the right made by her to him , did contend , that she had dilucid intervals , and at the time when the disposition was granted , she was sanae mentis ; for proving of which , mutual probation was allowed to both parties , and the testimonies having been published , it is now alledged for sir william , that albeit your lordships had found that his sister was in fee , when the case was at first debated , without relation to the condition in which she was when she made the said right ; yet , though the substitution was found by your lordships not to be a sufficient ground to take from her the power of disponing , it behoved at least to qualifie the said power , as that she should not be allowed to dispone upon that sum expresly against the fathers destination , except she were proven to be a person of an entirely sound judgement ; and it behoved to be thought , that the father perceiving the frailty of her wit and spirit , did only design she should have an aliment during her life , but that after her decease , the sum provided should descend to the person substitute by himself . 2. furiosity is a disease which so disorders the judgement , that those who labour under it are in law accounted unfit to make any right , or to adhibit any consent ; and fury being once proven , is still presumed to continue : so that it being proven that this gentlewoman was once furious , in so far as she tore her cloaths , and did beat them who attended her , it must be presumed that this fury did continue , except this were taken off by a most pregnant probation , wherein she could be proven , not only to have done acts of folly during the time that she was about the compleating of that right , but that she had for a long time , both before and after , enjoyed not only adumbratam quietem , but an entire soundness of judgement , neither tainted with , nor clouded by that fury , which did formerly incapacitat her to make the right that is now quarreled . for all lawyers , and particularly zaccke●s , do distinguish betwixt a madness , which hath only remissionem , sed-non intermissionem , where simplicity continues when the fury ceases , and that fury which doth sometime totally recede : in the first of which they require , that the persons quorum furor est intervallatus , do not only actus sapienti convenientes , sed etiam actus sapientis , and that they shew not only a present madnesse , but that they testifie by a long tract of continued recipiscence , a sagacity , which proves that they are fully returned to the vigour of their judgement , and which is able to take off the presumption which lyes against them , that semel suribundus , semper furibundus prasumitur . whereas , in the case here contraverted , it s prov'd , that the said jean was at best of a very weak judgement , never able to converse with others , nor to administrate her own affairs ; and at the time she made the disposition , there is nothing proven which could have demonstrate her to have been in such a lucid interval , as might have sustained the act she was then doing , she having discours'd to no man at that time , nor so much as read the disposition , which no wise person would have omitted , and having contradicted her fathers express will , without gratifying any of her other relations . but before any distinct answer can be return'd to the former representation , your lordships will be pleased to consider , that the two greatest priviledges of mankind are , that by nature he is a reasonable creature , and that by law he may freely dispone upon what is his own ; whereas , this unnatural brother , designs to rob his sisters memory of both these allowances , and by denying her every thing that is fit for a reasonable creature , burdens himself to prove her a brute . somewhat is due to the modesty of her sex , more to the being dead , ( that great sanctuary against all malice ) but most of all is due to the name of a sister ; and therefore , seing by how much the danger is great , that may result from the probation , by so much the probation ought to be the more concluding and pregnant : it doth necessarily follow , that the probation to be deduced in this case , ought to be most conclusive , seing it tends to take away the greatest priviledges which were competent to the defunct , either by law or nature . and albeit our law allows not the depositions of witnesses , to prove in cases exceeding one hundred pounds ; yet , by this method , dispositions of the greatest consequence may be enervat , upon the depositions of witnesses , and that just law not only disappointed , but cheated : and what danger are we exposed to , when two fellows may , by their assertions , prove us to be mad , after our death , and thereby disfame our memories , and alter our destinations ? the settlement whereof , is the most serious earthly satisfaction which we have in that last agonie . it is very remarkable , that law puts a difference betwixt fatuity and furiosity . fatuous persons , whom we call idiots , are these who want spirit enough , tardi , bardi , moriones , maccarones , qui inopia caloris & spirituum laborant : but furious persons are such , as have too much heat and spirit ; and our law hath placed a distinction betwixt these two ; for though neither idiotry nor furiosity can regulariter be proven , otherwayes then by the cognition of an inquest upon b●ieves rais'd out of the chancellary , as is clear by craig , and by the 66. act. 8. p. j. 3. which inquest must consist of fifteen neighbours , who knew the person who is alledg'd to be furious or idiot , and who must call for that person before them , and examine her ; so zealous our law hath been for our honour , and so jealous of witnesses . yet , sometimes it hath permitted open and notorious fury to be proven after the death of the furious person , as in the case cited ; but no instance can be given , wherein fatuity or idiotry , was ever sustained to be proven after the idiots death : which was most reasonable , for idiotry consisting in the want of wit and judgment , which habitude is not subject to the senses , but must be inferred by conference and consequences , therefore it should not be sustained upon the depositions of witnesses simply , but upon the knowledge of an inquest , who are in our law both judges and witnesses , and are in quality and prudence , above witnesses . and if a person can count their ten fingers , they are not accounted idiots , nor fatuous ; for , fatui sunt ( as zackeus observes ) illi tantum qui omni ratiocinatione & judicio carent . so that this gentlewoman cannot be proven to have been fatuous , being now dead ; but though she were alive , and that the probation led might be legally receiv'd , yet she cannot upon that probation , be said to be fatuous , seing it is proven , that she gave money to buy necessars , that she came to table , went to church , convers'd with neighbours , and ask'd for her friends at strangers who had seen them , and that she carry'd her self ordinarily as other gentlewomen did , or ought to have done . lawyers sometimes speak of imbecillitas & debilitas judicii eorum quae sensum aliquem habent , licet diminutum ; and such are by all lawyers allowed to marry , and make testaments , &c. as is observed by gomez . resol . tom . 1. c. 6. grass . in § test●m . quest . 21. and thus it was decided , 27. octob. 1627. in frizland , as sand. lib. 2. def. 2. relates ; and this at worst is our case : for all that can be alledged against this unfortunat gentlewoman , is , that she was of a slow and dull humour , as melancholians are , these hypocondriack vapours being to their spirits , what storms are to the sea , which though they disturb them for a while , yet cannot they hinder them from returning fully to their former calm . before i come to clear , that she was not furious , your lordships will be pleas'd to know , that furor is defined to be dementia cum ferocia & horrenda actionum vehementia ; fromanus , de jure furiosorum , p. 6. in law he is said , omni intellectu carere , l. 14. ff . de officio , presid . qui nec scire nec discernere potest , l. 9. ff . de acq . haered . qui caret affectu , l. 7. § . 9. quib . ex caus . in possess . qui caret omni judicio , l. 12. § . 2. ff . de judici . and because prudence is qualitas quae inesse debet , ideo nemo praesumitur furiosus , sed potius sanae mentis ; and two witnesses , deponing de sana mente , are preferred and believed more then a hundred who depone upon fury , menoch . lib. 6. presumpt . 45. lawyers divide fury , in continuum , ubi animus continua mentis agitatione semper accenditur & interpolatum , seu intervallatum , qui dilucida habet intervalla , quorum furor habet indicias , & quos morbus non sine laxamento aggreditur , l. 9. c. qui test . facere poss . & quos furor stimulis suis variatis vicibus accendit , l. 6. c. de contr . empt . in whom fury is but an ague : madnesse is but a disease in the one , but it is the temperament and the complexion of the other ; in the one the judgment is but darken'd as by an eclipse ; but in the other , it lyes like the cimmerians under a constant night . that this was not a continued fury , is clearly proven ; for the depositions bear , that she was only seiz'd with these fits that troubled her , twice or thrice in a year , and that at other times she had , non solum remissionem , seu adumbratam quietem , sed etiam intermissionem & recipiscentiam integram , for they depone , at other times she was as well as gentlewomen are , or ought to be . that which is contended then is only , that the lucid intervals are not clearly proven , at least it is not proven that she at the time of the subscribing that assignation , and for a considerable time before and after , was in a lucid interval ; but the contrary will , i hope , appear from these positions . first , by the probation it will appear , that she was never mad and furious ; for she at no time wanted all sense and judgement , albeit she was at sometimes opprest with an overflowing and abounding melancholy , which distemper differs clearly from madnesse , as zackeus observes very well , lib. 2. quest . 9. melancholici ( saith he ) sunt timidi & merentes vel ridiculi ; furiosi vero in perpetuo mo●u audaces , ac praecipites . and it will appear from the probation , that she went to table , to the church , and to all societies , which is not allowed to mad people ; that in her fits , she did only laugh and sing , and when she did begin to talk idlie , the least sign would have made her recover her self , which is a clear sign of melancholy , but no wayes of madness . and the father , who best knew the condition of his own daughter , was so far from thinking her mad ( as is pretended ) that he left her a considerable portion , which implyes not only a liberty , but an invitation to marry : whereas if he had thought her mad , doubtlesse he had only left her an aliment , but no portion , and would have recommended , that she should not marry ; for what father desires to have his family disgraced , by giving out a mad daughter ? and the physitian also depones , that she was only troubled with a melancholy ; which humour , though when it boils over , will occasion great distempers , yet , that stock of vapours being spent , the brain returns , or rather continues , in its natural and exact temper . 2. the witnesses who depone can give no such account of their causa scientiae , as can infer madnesse , for she being , as they confess , alwayes removed to her chamber , when her distemper did shew its first twilights , they could not exactly know that habit of the minde , that is necessar to be known in such cases ; whereas , the causa scientiae they give is , that they heard her commonly repute mad : and one depones , that passing by her chamber-door , he saw her laugh and sing , and heard her talk idly , which was too transient a way to know the nature of a distemper , which the law ordains to be known by conference , and frequent conversation . 3. albeit in law , semel furiosus semper praesumitur in furore perstitisse , yet when lucid intervals are once proven , as is very clearly proven here , quod actum erat , potius praesumitur in dilucido intervallo , quem in furore gestum , si actus ita gestus fuerit , ut nullum stultitiae signum appareat . this mascard . gives for a rule , conclus . 826. and there he cites , afflicit . decis . 143. jason . ad . l. furiosum , c. qui testamentum facere possunt ; and covarr . de sponsal . part 2. cap. 2. and thus the roman senat decided of old in testamento tuditani , cited by val. max. lib. 7. cap. 8. so that albeit where the intervals are not proven , it is requisit , that actus sapientis , and the condition of the person before and after for a considerable time , be proven , to make the act appear to be wisely done ; yet , where the lucid interval is proven , actus sapienti conveniens for the precise time is sufficient , for els the proving prior lucid intervals should be unnecessar , seing though prior lucid intervals were not proven , yet it would be sufficient , that the act were actus sapientis , for that per se is exclusive of madness . 4. the nottar doth assert in the assignation , that at the time she was of a sound judgement , upon which certainly he would have depon'd , had he been alive , so that he is now a proving witnesse : and froman . p. 81. thinks the nottars assertion in such a case of great moment . but above all , that which convinces me is , that sir thomas being interrogat upon his oath , whether he believ'd she was then of a sound judgment , doth depone affirmative , and though this be only an oath of calumny , yet it is equivalent to an oath of verity , nor do they differ ; nor could an oath of verity be more express , and so not more proving . and whereas it is contended , that this act was of its own nature , rather a sign of madness , then of prudence ; seing she did not read over the assignation which she subscrib'd , and seing she oblieged her self therein , not to marry without her fathers consent , and that she therein altered that destination made by her father : it is answered , that at the time of her subscribing that paper , she desired that a nottar might subscribe for her , because she could not write ; and when the nottar told her that she behov'd to subscribe her self , else the paper would be null , she called for it then and subscribed the same , which shew that she could reason and deduce consequences , and that she desired earnestly to have her brother sir thomas secure of what she did ; and albeit women can ( because of there sex and imployments ) show but little sagacity ; yet in this she discovered actus sapientis , as well as sapienti conveniens . and albeit it be not proven , that the paper was not read over , yet since the contrary is not proven , it must be presumed to have been done , per argumentm à solitis . and seing sir thomas was the eldest brother , and had entertained both her and her mother , it was most reasonable that she should have left him her estate , being the stock of the family ; and she being bred up in a kindness for him by their mother , whose choice she was oblieged to approve , being then in one family with them , and her only parent . and it was most just , that her eldest brother coming in place of her father , she should have taken his advice in her marriage : which advice was not in law binding , nor would she have fallen from the right of her provision , though she had refused his advice ; so that in this , she honoured her brother , and pleased her mother , without prejudging her self . secure then ( my lords ) in this precedent , our names against infamy , and our estates against the lubricity of witnesses , and arbitrariness of judges ; and give not occasion to witnesses in one act , to perjure themselves , and ruine us and our posterity : and gratifie not the avarice of a brother , who digs up the ashes of his defunct sister , to find that sacrilegious prey which he hunts after ; but let him see by your sentence , as an earnest of gods just judgement , what he deserves who calls his brother a fool , much more , who for money takes pains to prove his sister such . this case was submitted to the lords , and the sum was divided equally by them , as arbiters . for the laird of miltoun , against the lady miltoun , november , 1669. sixth pleading . in what case a sentence may be reduc'd , by a reprobator of the depositions of the witnesses whereupon the sentence was founded , and by what probation sentences may be reprobated . i tremble ( my lord ) to think , that the fortunes of the best of his majesties subjects , should be , by the fatal necessity of our law , laid open to the malice and avarice of the meanest , and worst witnesses : and though we know , there be thousands who would hazard their own damnation ; to satisfie either their revenge or avarice ; yet if any two of these witnesses , should conspire to satisfie their designs , either by deponing that which is absolutely false , or by concealing what is really true , to the ruine of our lives or estates , it is pretended , that our law hath invented no civil remedy . this ( my lord ) were to make the law authorize the robbing of innocents , and to suffer no man to possesse his fortune , longer then two rascalls pleases ; wherefore , it is my design , to vindicat both our law , and my own client , and to show that your lordships justice is appointed as a city of refuge , and that you can , by your reprobators , defend us against their depositions . but because this subject hath been but very unfrequently and darkly handled amongst us , albeit it have in it very much both of intricacy and concernment ; i hope your lordships will allow me so much more of time ; and seing ex facto jus oritur , i shall , to the end the point of law may be the better understood , thus open to you the matter of fact. the deceast laird of miltoun did match himself in a second marriage to this lady , to whom he did , with the greatest part of his estate , give his chief house in jointure ; and after his decease , she having married john maxwell her present husband , they did take as much pains to destroy the house , as the law oblieges them to take in preserving it : which abuses did put a necessity upon sir john whitefoord my client , to whom the estate belongs , as son and heir to the deceast miltoun , to buy the said maxwells right , which he had to her jointure jure mariti ; and after that her husband and she had received a sufficient price for it , they did enter upon an unworthy design , of retaining both the land and the price ; and in order thereto , it was plotted , that the husband maxwell should go off the the countrey , and that this lady his wife should pursue a divorce against him , as having committed adultery ; during the dependance of which process before the commissars , finding , that the reduction of this right ( which fell in consequence of the reduction of the jus mariti ) was chiefly aim'd at , miltoun offer'd to appear , and object against the witnesses , who were led to prove the husbands adultery , and which witnesses were persons known to be of very torn and unsound fame , and very lyable to all impressions ; but he was not admitted : whereupon he rais'd reduction of the commissars decreet before your lordships , upon several reasons ; two whereof were , 1. that the lady had brib'd the witnesses . 2. that she had suggested to them what they should depone , instructing them what faces and cloaths these women had ; which reasons your lordships found not competent by way of reduction , but by way of reprobator . when this reprobator was , in obedience to your ordinance rais'd , it was alledg'd , that there could be no reprobator now pursued , since it was not protested for , at the time when the witnesses were led ; but this was repell'd , both because your lordships had reserved a reprobator already , which was equivalent to a protestation ; and because the grounds of this reprobator are but lately emergent , since the receiving of the witnesses , and were not then known . and as durandus , that learn'd practitian observes , tit . de reprob . testium , num . 2. quod si actor paratus sit jurare , quod ad hoc , ex malitia non procedit , vel quod post publicationem , didicit id quod nunc objicit , tunc auditur sine protestatione ; and cites for this , cap. presentium extra de test . the lady finding her self in hazard to loss both her jointure and reputation by the event of this pursute , she now alledges , that these grounds of reprobator are not relevant , nor receivable ; 1. because when witnesses are sworn they are purg'd of partial counsel , of the receipt or expectation of good deed ; so that this being res hactenus jurata , it cannot be thereafter search'd into by him who referr'd the same to oath , & detulit juramentum ; nam dum detulit , transegit . 2. though the corrupter or suggester may be punish'd paena falsi , yet the sentence pronounced upon these depositions , can never be reduced . 3. if this were allow'd , there should be no end of pleas , sed lites essent immortales ; for the first witnesses might be reprobated by other witnesses , and these by others , and these by others ; & sic daretur progressus in infinitum . 4. though corruption were receivable , yet it were only probable by the oath of him who obtain'd the decreet . before i come to make particular answers to the difficulties proposed , i shall remember your lordships in the general , that probation being defined by lawyers to be , fidem facere iudici , to convince the judge of what is alledged , probation by witnesses is no infallible , but only a presumptive probation ; for it is founded upon no other warrand , then that it is presumable , that two dis-interested persons will not , by loosing of their own souls , gain any thing for a third party ; so that this kind of probation seems rather to be introduc'd by necessity , then choice . and albeit at first , when the fear of a deity did sway the world , and before men had absolutely lost their primitive innocence , and in place of it had learn'd those cheats and falshoods , which have grown up with time ; that probation seem'd to be very well founded , and two witnesses were sufficient in all cases : yet , lawyers finding infidelity daily to grow , have accordingly daily lessened their esteem of that proof ; so that the civil law did begin to require sometimes five , sometimes seven witnesses : our old predecessors establish'd assizes of fifteen sworn neighbours , who because they were both judges and witnesses , had liberty to allow as much of the deposition of witnesses , as they thought fit ; and thereafter , upon furder experience , it is statute with us , that no witnesses can be received in cases above a hundered pounds : and in holland , italie , and several other countries , the deposition of witnesses cannot prove a crime , and are made no further use of , then to subject to the torture , the person against whom they are led . lawyers have likewise , as a furder check upon these depositions , even in these cases when they are necessar , ordain'd the punishment of perjury to be severe , ob vindictam publicam , and allow'd an action of reprobator for redressing of the parties wrong'd , suitable to the two wrongs which witnesses comm●t in their false testimonies ; in the one whereof they prejudge the common-wealth by the example , and by the other , the privat party , in the deposition it self . reprobator is by lawyers defined to be , an action , whereby the judge rescinds a former sentence , because of the falsenesse of the deposition , or because of the corruption of the witnesses . and the deposition of every witness hath in it two parts , viz. initialia testimoniorum , & dicta testium : initialia testimoniorum , are , the previous circumstances premised by the practique to the depositions , whereof the chief are , whether the party be married ? of what age they are ? where they dwell ? &c. which would be very impertinent interrogators , if the law did not intend to make use of these , as marks , whereby to try the faith and trust of the deponers . there are likewise other interrogators , which , though they be used as initialia , yet certainly are essentialia , and grounds of reprobator , though the witnesses do not at all depone upon them ; such as , whether the party hath suggested to them what they should answer ? or hath corrupted them ? yet , the parties use ordinarily to depone , if they get good deed , or were instructed . the dicta testium are the body or matter of the depositions , which relate principally to the thing contraverted ; and albeit some lawyers dispute , whether the depositions of the witnesses can be reprobate quoad dicta testium ? because the witnesses are there contestes , and when two of them agree in one , to reprobat these were in effect to overturn a formall probation ; yet in initialibus they are not contestes , but every one depones singly upon what concerns himself , and is likewayes concern'd himself in what he there depones ; so that in these , both singularity and interest derogat very much from the truth of what is depon'd ; and in this case , i intend not to quarrel the dicta testium , but the initialia testimoniorum . these grounds being laid down , my answer to the first difficulty is , that the first defence , wherein it is contended , that the witnesses having been interrogat , whether they were brybed or instructed ? and having denyed the same upon oath , their depositions cannot be now reprobated , upon the heads of suggestion or corruption , is most irrelevant , for these reasons ; 1. the party against whom the witnesses are led , hath no time allow'd him to enquire what the witnesses are , who are to be led , and though he have relevant objections , v g. if he be inform'd , that they are instructed or corrupted , he must instantly verifie these objections , els they are not receivable ; so that to deny him the liberty of causing the judge purge the witnesses , by their oath , of any suspition , were in effect to take from the party his greatest security ; and sure , no person would desire that purgation , if he thought that he would be thereby cut off from the benefit of reprobator . 2. if this were allow'd , it were easie to cut off all reprobators ; for the leader of the witnesses might still cause purge them , and oftimes the judge doth it , ex proprio motu ; neither is it marked in the deposition , whether the witnesse is purg'd by the judge at the desire of the pursuer or defender , but singly , that he being interrogat , depon'd , &c. so that in this case the person , against whom the witnesses are led , should be prejudg'd without any act of his own . 3. though a witness have purg'd himself of partial counsel , yet if he depone falsly , he may be pursued by him , against whom he depon'd , for perjury ; ergo , it is much more competent to the person , to pursue reprobator in that case ; for reprobator being but a civil action , is far lesse dangerous . 4. juramentum purgationis is not juramentum decisivum , and is taken , as lawyers say , non ad finalem decisionem , sed ad majorem cautelam , and being introduc'd for the advantage of the party against whom the witnesse is led , it were most unjust that it should be detorted to his prejudice . 5. a witnesse who purges himself of partial counsel , is but unicus testis , and depones upon his own innocence , and consequently doth not prove ; and it were most unjust , that he should in that case be better believ'd , then two famous witnesses omni exceptione majores , and who depone upon his prevarication ; and if this priviledge were given to an oath of purgation , it would tempt men to le 〈…〉 debauch'd witnesses , and them , when they are led , to depone arbitrarily ; knowing that they can by their own oath , clear themselves of any thing that might be objected against them , and that the oath which they give , cannot only secure the party for whom they depone , but themselves against all hazard . and lastly , lawyers who have treated very largely of this subject , have made no such distinction as this , but on the contrair , by doubting only , whether dicta testium can be reprobat , because the witnesses there are contestes , as said is ; they clearly insinuat , that in all cases , where the witnesses are not contestes , their depositions may be reprobat . to the second defence , wherein it is contended , that the effect of a reprobator is not to reduce civilly the sentence , nam sententia semel lata pro veritate habetur ; but that the only effect of it would be , to punish the parties corrupters , or the witnesses corrupted , by a criminal sentence . to this it is answered , that the alledgance is contrary to the grounds of all law , and to the opinion of all lawyers . 1. a reprobator is in their opinion , species revisionis ; as is clear by farin . durandus , practica ferarien . and many others , and revisio , in the dialect of lawyers , is the same thing that reduction is with us . 2. seing witnesses wrong both the common-wealth by the example , and the privat party by the deposition , and since it is very just , that every wrong should have a suitable remedy , and seing the prejudice done by the example , is only remedied by the criminal action ; it is necessar , that the party laes'd should be assisted by a civil reduction : and it seems very unjust , that the witnesses should be punish'd criminally , and that it should be acknowledged , that the party was wronged by the flase witnesses , and that yet the losse should not be repair'd . 3. per l. 33. ff . de re judicata ( which i may call the fundamental law of reprobators ) it is clear , that both a civil and a criminal remedy are granted : the one , in these words , rem severe vindica , and the other , in these words , in integrum restitue . the law it self runs thus , hadrianus aditus per libellum à julio tarentino , & judicante eo , falsis testimoniis , conspiratione adversariorum , testibus paecunia corruptis , religionem judicis circumventam esse , in integrum causam restituendam ; in haec verba rescripsit , exemplum libelli dati mihi à julio tarentino , mitti tibi jussi , tu , si tibi probavaris , conspiratione adversariorum , & testibus paecunia corruptis , oppressum se , & rem severe vindica ; & si quae à judice , tam malo exemplo circumscripto judicata sunt , in integrum restitue . which is likewise confirm'd , per l. si quis c. de adult . et ita voluerunt alexander , consil . 148. & lud. bologn . consil . 5. and by our practique , sentences have been reduc'd , and the party repon'd , when the depositions whereupon the sentence proceeded , were convell'd by a reprobator : clear instances whereof are to be seen , the 23. of june , 1633. and 22. of december , 1635. and upon the 5. of march , 1624. in an action of reprobator rais'd against a divorce , it was found , that the offering to corrupt one of the witnesses , was sufficient to reduce the decreet of divorce : whereas , here it is offered to be proven , that both the witnesses were corrupted , and if the deposition could not be quarreled in order to a civil effect , there needed no reprobator at all ; for the criminal action of perjury would reach the other effect , and the lords of session , before whom reprobators are intented , would not be at all judges competent . 4. this opinion , both of the civil and of our law , is founded upon very just principles ; for the sentence being in that case founded upon the depositions , these being removed , the other should fall in consequence , nam sublata causa , tollitur effectus ; and therefore , lawyers say , that testes reprobati pro non testibus habentur , durand . ibid. and to allow a decreet after witnesses were reprobat , were in effect , to allow a decreet without probation . 5. when a decreet is founded upon a writ , if that writ be found false , the sentence is reduced ; as is clear by the whole title , cod. si falsis instrumenmentis , &c. and therefore , much more should decreets be reduced , depending upon the depositions of witnesses which are reprobat , there being at least eadem paritas rationis . as to the third difficulty proposed , which is , that this would progredi in infinitum , and there should be no end of plea's , which objection is propon'd by abbas , ad cap. proposuisti de probat : it is answered , that this argument , if it prove any thing , will p●ove that no perjury should be pursu'd , nor proven ; becau●e , it is urg'd in this case , it may be urg'd there likewise , that these witnesses who prove the perjury , may be proven perjur'd by others , and these by others ; and by the same argument also , we should have no assises of error , because , if a first assise may be tri'd for error , why not that assise by another , &c. but this difficulty is easily sav'd , for reprobators should not be sustain'd in all cases , and it is only remedium extraordinarium ex nobili officio proveniens , and should only be granted , when the reason of rep●obator is found most relevant , and is offered to be proven by witnesses omni exceptione majores ; and to deny it in that case , were great injustice . as for instance , if i should offer to prove , that albeit it were proven by two fellows , that i married bertha in paris such a day , whereas i offered me to prove , that the same day i pleaded before your lordships in this house , and which were notour to all your number , were it not unjust to refuse to reduce a sentence , which were founded upon that first probation ? it is most groundlesly alledged in the last place , that though corruption of witnesses were allowed to be reprobated , by an action of reprobator intented before a decision in the principal cause ; yet no reprobator could be pursu'd , after a decreit obta●n'd in the principal cause ; for els no singular successor could be secure , since his right might still be reduced or reprobated by w●tnesses , and so sentences could be no sufficient security to such as were assigned to them ; as also , post publicata testimonia & sententiam , the losser of the cause should still intent reprobator , knowing what the witnesses depon'd ; at least the corruption of the witnesses , should not be then probable any other way , then by the oaths of the corrupter himself . to which it is answered , that reprobators are in law allow'd , aswell post sententiam , quam durante primo processu , as is clear by farinacius and others ; and there is no hazard of the publication of the testimonies , because the question is not , whether the testimonies & dicta testium can be reprobated ? for that is not here contended , but whether the initialia can be reprobated , which initialia use to be interrogat in presence of the parties , and so there is no hazard of publication there : nor did ever any lawyer alledge , that corruption was only probable by the corrupters oath , and this were most unreasonable , as will appear from these arguments , 1. corruption is facti and falleth under sense , and therefore is of its own nature probable by witnesses . 2. corruption could cast or set a witness , before he were examined , and co casu would be probable by witnesses , why not then after he has depon'd ? for by our law , as by the civil , noviter provenientia ad notitiam & emergentia , are receivable and probable , eodem modo & ordine , as they ought to have been , if they had been sooner known ; and seing all objections against witnesses , are only receivable with us , if they be presently proven , it were unjust not to admit emergent objections or proofs . 3. this were to make witnesses most licentious and arbitrary , for the parties may give , and the witnesses take bribes , sub spe impunitatis , if they knew that they could not be found out , but by their own confession , and in effect this were to allow perjury , and to invite men to it . 4 it is most presumable , that these who have brib'd , will perjure , and so their oaths cannot be believ'd ; and therefore , the law must either declare , that corruption is no ground of reprobator , els that it is probable by other witnesses , and media probandi , then the oaths of the bribe●s , or bribed . it was never denied , but that a decreet obtain'd by collusion of advocats or clerks , might be reduc'd , upon full probation of the collusion by the oaths of those advocats or clerks , else any of these by compearing , or omitting a defence , might bind one hundred thousand pounds upon any of the lieges : and since it is confest , that the civil law and the doctors do in this case allow probation by witnesses , i see not why our law should not admit it . they were as zealous for the authority of sentences , as we are , and perjury is more frequent now then of old ; and though our law doth not allow probation by witnesses , in cases above one hundred pounds , yet that law was only made to regulate the original probation of debts in the first instance , but not the reprobating sentences . and it were against reason and justice , that a decreet that was obtained upon the depositions of witnesses , should not likewise be quarrelable upon the depositions of other witnesses proving corruption , these reprobating witnesses being above exception , and such persons as the judges may think fit to admit , whose choice will in this case , cut off the hazard of a processus in infinitum : seing it is not probable , that judges will allow any such persons , as may endanger the interest of him against whom they are led , this power can be no where more securely depositat , then in this illustrious senat , whose frailty is much less to be jealous'd , then is that of witnesses ; and though the constitution of a debt cannot be prov'd by witnesses , where there is no other probation ; yet it follows not , that a decreet founded upon a matter of fact , and upon the depositions of witnesses , may not be taken away or reprobated by other witnesses : for , though where debt is lawfully constitute , it cannot be taken away by witnesses , yet the case here contraverted is , whether the debt was lawfully constitute ? and the alledgeances are corruption , alibi and other matters of fact ; and though a decreet has interveen'd , yet that doth not so alter the nature of the thing , as to make it leave to be a matter of fact , and the defences emergent , since the decreet and matters of fact are still probable by witnesses . it is unjust , that what was first purchased by witnesses , should not be tryed by the depositions of witnesses , eum debet sequi incommodum , quem sequitur commodum ; & nihil est tam naturale , quam unumquodque eodem modo resolvi , quo colligatum est . and as when i pursue upon a false bond , the falshood of that bond is to be tryed by witnesses , our law doth not force the defender to refer the truth of the debt , or of the matters of fact , to the oath of the pursuer : even so , when a man is pursued upon a decreet , which is obtain ▪ d upon false grounds or corruption , why should our law force me to refer the truth to the pursuers oath ? sure , if ever reprobator was granted , it ought to be in this case ; wherein my client offers to prove , that this lady ( whose sex i am loth to wrong in her person ) did bribe these witnesses , and instructed them verbatim what they should depone ; this is offered to be proven , not only by their own confession , but by the deposition of many , who are more numerous , and more famous , though their own confession proves them to be vaccillant , and faithless rascalls , and who though they should not be believ'd in any case , yet ought to be believed as well in this retraction , as in their first deposition , and who can enervat , though they cannot astruct , their own testimonies ; and this probation ought to be received , against the deposition of two villains , who stand condemned by common fame , which is sufficient to hinder them from being witnesses omni exceptione majores , and are condemned by the k●●k-session for keeping baudy-houses , wherein they have shak'd off that fear of god , which is the ground of the faith we give to witnesses , and have learned by pimping persons , to pimp plea's . i am here in defence of a marriage , quae est causa maxime favorabilis , and the dissolution whereof requires a probation per testes omni exceptione majores ; and it is very probable , that a woman who is so impatient in those holy bands , and so malitious against her own husband , as to asperse him with every thing that may lessen his reputation with your lordships , would not spare to have dealt so with the witnesses , as might best effectuat her designs , knowing that if she prevail'd not , she behoved to return to the society of a husband , whom she had so highly disoblieged , to misse the enjoyment of that jointure , which she so ardently expected ; and to be justly branded , for having so malitiously and causelesly defam'd so sacred a relation . the lords sustain'd the reasons of reprobator to be proven by witnesses , omni exceptione majores . for the lord balmerinoch , against the lady coupar , feb. 1670. seventh pleading . how far a disposition , made by a man , in favours of his lady , of his whole estate , is reduceable , as done in lecto aegritudinis . my clients ( my lord chancellor ) this day , are not the lord balmerinoch only , but all such as either may be heirs , or husbands ; and by how much greater there estates are , by so much the more they are concern'd in this discourse : wherein i design to assist them when they are upon death-bed , which is an occasion , at which not only their wit and memory leave them , but wherein they are oft deserted by all other friends , besides these who design to prey upon them . and i am so zealous in this service , that i cannot detain my self any longer , from opening to you the matter of fact in this cause , which may be saved by its very merits , if ever any was . the case ( my lord ) stands thus . the late lord cupar had , by his fathers kindnesse , and out of the estate of the family , a considerable fortune bestowed upon him , and what addition it has receiv'd since , is rather the product of so considerable a stock , then of that lords industry : so that he having died without heirs , this estate should have return'd to the family , not only by a legall succession , but by the rules of gratitude . yet having in a second marriage , at the age of threescore and ten , married a lady , by whom he got no great fortune , she induc'd him to dispone his whole estate , honours and title in her favours , and in favours of the children to be procreat betwixt her and any other husband ( the first bribe was ever given by a dying husband , to invite a wise to a second marriage , and though a brother may raise up seed , yet we never hear , that a woman rais'd up seed to her husband ) of which disposition , there is a reduction rais'd by the lord balmerinoch , who is nephew to the defunct , and should have been his heir , wherein he quarrels this disposition , as made upon death-bed by the lord coupar , after contracting of that sickness , whereof he died , and as done in prejudice of him as appearand heir . my lord , i know , that legis est jubere , non suadere , and that omnium quae fecerunt majores nostri , non est reddenda ratio ; yet , this law , or rather ancient custom , whereby persons upon death-bed can do nothing in prejudice of their heirs , can justifie it self equally well , by reason and authority . the reasons inductive of this excellent law , are first , that after men are sick , their judgements grow frail with their bodies ; and the soul of man wants not only then , the pure ministry of well-disposed organs , but is likewise disordered by the infection of the languishing body ; wherefore the law observes , lib. 2. reg. maj. cap. 18. vers . 9. quod si quis in infirmitate positus , quasi ad mortem , terram suam destribuere caeperit , quod in sanitate facere noluit , praesumitur hoc fecisse ex fervore animi potius , quam ex mentis deliberatione . which presumption seems to be very well founded ; for it is not imaginable , that any man who is reasonable , would pull down his own house ; and nature and reason being the same thing varied under different expressions , he who overturns the one , cannot be sound in the other . the second reason is , because men ordinarily upon death-bed , being surpris'd with the approach of death , and terrified with the prospect of what follows it , do so little value the affairs of this world , which they begin now to find so little able to repay their criminal pains and love , that to evite the importunity of such assistants , as are like vultures , busie about the carrion upon such occasions , they are content to ransome time and quiet , with the carelesse losse of their estate ; and who would not buy time then at a dear rate ? so that this law is the great fence of our sick-bed , as well as of our infirm judgments . the third reason is , the great respect our law bears to ancient and noble families , who are the corner-stones of the kingdom , to whose valour , our law has oft ow'd its protection , and so could not refuse it s to them . and sure , if either the importunity of mothers , for their younger children , or of wives for themselves , could be successful , the heirs would succeed to a heavy and empty title : and upon this consideration , the parliament did lately refuse to allow parents the power of providing their younger children to small portions , upon death-bed . i know also , that some adde , as an original reason for this law , the avarice of monks , and church-men , who perswaded men to wodset for themselves rooms in heaven , with great donatives to pious uses ; to restrain which excesse , venice and other kingdoms have taxt the value of what can be so bestow'd . and albeit the restriction imposed by this law , may seem destructive of dominium , which is jus disponendi , and that by the law of the 12. table , ut rei suae quisque legassit ita jus esto ; so that this seems to want all foundation either in common , feudal , or the laws of other nations . yet , if we examine , we will find dominium is in very many moe cases then this , and in more favourable , restricted by all laws ; and that quaerela inofficiosi testamenti , is sounded upon the same reason with this law ; and that by the laws of spain and flanders , ( so great is the favour of noble families ) noblemen cannot at any time dispone their estates , but must transmit to their posterity , what ever lands they got from their predecessors . but though no nation joyned with us in this law , this should rather induce us to maintain it , as being truly a scots law ; and we must be so charitable to our predecessors , as to believe , that they would not without very cogent motives , have restricted their own power of disponing , and have receded from the custom of all other nations ; and we should be as carefull of our fundamental lawes , as the spainiards are of their privat estates . and of all persons , against whose importunity the law should guard us , sure our wives are the chief , for they have the nearest , and frequentest accesses , the most prevailing charms and arguments , and of all creatures women are most importunat , and are most dangerous when disoblieged ; wherefore the law hath wisely forbidden all donations betwixt man and wife , fearing in this , mutual love and hatred , though in modesty , it hath only exprest the first . and sure if this donation should subsist , every woman would think her self affronted , as well as impoverished , if she could not elicit a disposition from her husband , of some part of his estate . and to what condition should a poor man be reduc'd , and with what inconveniences urg'd , when he behoved either to disobliege his wife , or ruine his heir , and to load his fame or his estate . so that the lord coupar hath in this , prejudg'd husbands and heirs , and hath violated & jus parentale , & maritale . it is alledged for the lady , that the reason is not relevantly libelled , seing we do not condescend upon a form'd disease , under which the lord coupar labou●ed the time of the disposition , and of which disease he thereafter died : nor is tenderness and infi●mity sufficient of it self , to m●intain this reason of reduction , especially in old men , whose age is a continual infirmity , and yet is not by lawyers called a sickness , sickness being a preternatural , whereas age is a natural infirmity . and this law being mainly founded upon the presumption , that these who are upon death-bed , have their judgments and memories so clouded , and disordered by the sickness which presseth them , that they are either altogether disabled from doing affairs , or at least from doing them judiciously , and according to the rules of reason : therefore such a disease should be condescended on , as influences the judgment , and incapacitats the disponer to understand his own affairs . whereas it were absurd that old men who keep the house , should be generally interdicted , meerly because they come not abroad , and are somewhat tender , albeit they be otherwise very ripe and mature in their judgment , as ordinarly old men are , nature having bestowed prudence upon them , in exchange of that bodily vigour , which remains with those who are young : and it were unreasonable , that if any person were a little tender , and had not occasion thereafter to come abroad , that a disposition made by him should ex eo capite be reduced , albeit it cannot be qualified that he died of that disease . wherefore our law having restricted the power of heretors so far , that as they cannot dispone their estate upon death bed , in prejudice of their heirs , it hath most justly appointed , that the disease wherewith they are insected should be condescended upon ; to the end it may be known , whether it could influence the judgment or not , or whether or not the disponer died of that disease : and in all the decisions which concern cases of this natu●e , it is remarkable , that the disease is still condescended upon . likeas , by the 18. cap. lib. 2. reg. maj. the reason whereupon this law is founded , is said to be , quia tunc posset in modico contingenti ejus haereditatem destribuere , si hoc permitteretur , ei qui fervore passionis instant is , & memoriam , & rationem amittit . to which it is reply'd , that it is libel'd in the reason of reduction , that the lord coupa● disponer had contracted a sickness , before he had granted the disposition , which is all is necessar ; and it were most absurd , to th●nk that the pursuer should be necessitat to condescend upon a particular disease , and design it by a name : for this were to make two physitians absolutely necessar in all diseases , since none are presumed to know the names and natures of diseases but they ; and there is sometimes such a complication of diseases , and new diseases do so often creep in amongst mankind , that hardly even a physitian can design them exactly by a particular name . and it is very observable , that when the name of a disease is condescended upon in any decisions , it is not by the pursuer , but by the defender , who condescends upon the same , for clearing either that the disease was not mortal , or that it did not effect the brains . but yet when we consider these decisions , we will find , that if the person had been proven to have been once sick , the disposition is still reduced , though the disease be not proven to be such as could affect the brain . thus a disposition was reduced , albeit it was offered to be proven , that the disponer was mentis compos , february , 1622. robertson against fleeming ; and that he did his affairs , and sat at table as at other times : nor is it requisit the disease be morbus sonticus , pen. july , 1635. and 7. july , 1629. the alledgeance of judicij minime vaccillant is was also repell'd , and a provision was not sustain'd made to a child , though the father had only a palsie in his side , and liv'd 28. months , july , 1627. and this is most reasonable , because the soundness of the judgment being that which is not subjected to the senses of witnesses , they cannot properly cognosce thereupon , and they would in that case be rather judges , then witnesses . for if it were otherwise , servants who are the only ord●nar witnesses that are present , would have it left arbitrary to them , to make the disposition valid or not , as they thought fit , and they m●ght depone very boldly , because without hazard , since in such guessings as these , they might assume to themselves a very great liberty ; and thus though the law thought it fit , not to put it in the power of the heretor , to prejudge his heir upon death-bed , by dispositions , your lordships should by your decision , put it in the power of servants to prejudge them , by their depositions . and if it were necessar to prove , that their judgment was disordered by the sickness , then this law had been absolutely unnecessar , for whatever disposition is made by any person , whatever condition he be in as to health , yet if he be not sanae mentis , it is still reduceable ; and as unsoundness of judgement without sicknesse in that case , were sufficient , so the law hath made sicknesse without unsoundness of judgment , to be sufficient in this . for , to the end there might be nothing arbitrary in this case , where the greatest of the subjects ( such as are the nobility ) are concerned in their greatest interest , which is the disposition of their old heretage ; the law hath appointed , that if the person be once sick who dispon'd , the proving that sicknesse without any thing els , shall be sufficient for reducing that deed , except it can be proven , that the person who granted the disposition went thereafter to kirk and mercat ; to which none go , till they be intirely recovered , and fit for businesse , these being places , wherein sound men are still presumed to be serious , because these places are not fit for recreation , and so not fit for such as are sick , and which are acts that falls under sense ; and so may be deponed upon by witnesses , and are acts exposed to the view of very many : and the heir cannot be thereby prejudged , by either the want of witnesses , or by being tyed to the deposition of domestick , packed witnesses ; for such only are usually admitted to v●sit the defunct ( and so are only the persons who can be witnesses ) by these , who had him so much in their power , as to elicite such dispositions from him . the defender ( my lord ) finding her self straitned by this debate , joyns , to her former defence , another , which is , that going to kirk and mercat are not absolutely necess●r qualifications of health ; but it is sufficient if the defunct might have gone to either of these , or did equivalent de ●s , whereby it might have been known that he had recovered his health , for that is the scope and design why the others are condescended upon ; and it were unreasonable , that the going down a stair within burgh , and the buying of an apple at a crame , should be a greater sign of health , then the riding of a journey : so that going to kirk and mercat may be supplyed by equivalent acts ; and the lord coupar did equivalent acts , for evidencing that he was in health , at , and after the granting of the disposition , in so far as he rose from , and did go to his bed at his ordinar times , did come to table , entertain strangers , wait upon them without doors to their horses , sell his corns , take in his accounts , and writ long letters all with his own hand ; in which letters , he shew a former design he had to make that disposition . likeas , former letters can be produced long prior to his sicknesse , wherein he shew'd his design ; whereas your lordships have by former decisions found , that equipolent acts were sufficient , as in the case betwixt sym and grahame , in anno , 1647. wherein it was found , that the writing of the disposition of a sheet and a half of paper , all with the disponers own hand , was sufficient to sustain the same , and to defend against the reason of reduction upon death-bed : and in february , 1668. in the action pargillis against pargillis , it was found , that the riding on horse-back , though the disponer was proven to be sick , and that he was supported upon his horse , were sufficient qualifications of health ; and if the going to kirk and mercat were still requisit , the lieges could never be in tuto when a disposition is made to them , seing very many men , who are in perfect health , do oft die suddenly , before they have occasion to go to kirk and mercat , and when the persons to whom the dispositions are made , cannot suspect there is any need of their going there . but though kirk and mercat were requisit , yet it can be proven that the lord coupar went to both ; and albeit he was supported , yet that was only in a piece of the way , which was rough , and at which he used to be supported at other times , when he was in health , and was therein supported now , not because of the sicknesse , but because of the way . to which it is replyed , 1. that the law and continual decisions having fixt upon kirk and mercat , as indicia sanitatis , no other acts can be sustain'd as equivalent ; for , where the law requires solemnities , such as these are , solennia non possunt per aequipolentia adimplere ; thus earth and stone being required as symbolls in sasines , three oyesses at mercat-croces , &c. acts equipolent to these would not be sustain'd ; and the law having appointed that a child should be heard cry , to the end marriage may not be dissolved , though the woman die within year and day , the law sustains not that the child was a lively child , or might have cryed ; for , saith that law , it was fit that some certain sign should be fix'd upon , to prevent the arbitrarinesse of witnesses : and seeing it would not be sustain'd to elide the reply of kirk and mercat , and the alledgeance of health founded thereupon , that the defunct was not in health , though he went not to kirk and mercat ; so the reason of reduction founded upon sicknesse , because he went to kirk and mercat , ought not to be elided , by alledging that the defender was in health , though he went not to kirk or mercat ; and if equivalent acts were sustain'd , this law might be easily eluded , and the effect of it would become altogether arbitrary . 2. the acts condescended on , are not equivalent signes of health , to the going to kirk and mercat ; 1. because these acts of going to kirk and mercat , are fixt upon by a long tract of decisions , and so are solennia jure recepta ; but these other acts are not such as have been found equivalent by any former decision : but on the contrar , acts of more adjusted equipolency then these , have been repelled , when propon'd to take off the reason of death-bed ; and thus in the foresaid decision , february , 1. 1622. it was alledg'd that the disponer was able to go to kirk and mercat , and that he went about his affaires within doors , and came to his own table , as formerly . and though it was alledg'd upon the penult . june , 1639. that the granter of that disposition then quarrel'd , and which was made upon most deliberat grounds , was able to mannage his own affaires as formerly , having only a palsie in one arm , which did not affect the judgement . and the 1. july , 1637. it was alledg'd , that the disponer who had granted a bond of provision to his own son , had no disease which could be impedimentum rebus agendis , and that he lived 28. months thereafter , and went about his affairs , yet all these condescensions upon health were repelled , though the time of surviving were much longer there then here , the case of the granting of the disposition much more favourable ( and indeed , none can be lesse then this defenders case ) and the persons who did dispone , of a much greater consistency both of health and spirit , then the lord couper , who was known to have needed little sicknesse , and much lesse importunity and design , was used in this case , to make him do acts both irregular , and unwarrantable . as to the decision , sym against grahame , it is answered , that it was proven there , that the defunct went upon his own feet to the apothecaries shop , and to his physitians house , which implyes necessarily in edinburgh , a going thorow the mercat , whereby the law is satisfied , and a publick act was done , which might be proven by unsuspect witnesses . and as to pargillis case , the disposition there , was made in favours of a grand-child , with whose mother the grand-father had promis'd the estate at the contracting of the marriage , he having been party-contracter for her , though that promise was not insert in the contract ; likeas , the disponer went to the ground of the lands unsupported , and gave the sasine himself : and albeit he rode to the mercat , because he was goutish , which is the only disease that was proven , and which is in the opinion of the physitians , rather a pain , then a disease ; yet he went to the mercat unsupported from his lodging . 3. all these acts condescended on were done at several times , and might have been very easily done singly , by a person who was sick , and none of them are such acts as require health both of body and mind , as doth the going to kirk or mercat , nor did they require the coming abroad to open air , which is the severe tryal of health ; and all these acts were transacted intra privatos parietes , and so subject to suggestion , and collusion , the witnesses being such as were under the power of the defender , who did elicit the disposition , and the appearand heir being absent , and very remote , as is ordinar in such cases : whereas the going to kirk and mercat , are acts wherein the appearand heir may hear a conjunct probation , and wherein though the witnesses to be led for the defender , design to prevaricat , yet the fear of being control'd by a multitude , would hinder them to adventure upon the deponing an untruth . 4. all the acts condescended on seem to be done ex affectata diligentia , & affectata diligentia pro negligentia habetur , nor can any acts be esteemed equivalent , except they were such , as clearly evidence , that if he had design'd to have gone to kirk and mercat , he could have done the same ; whereas in this case , when the defunct design'd to go to kirk or mercat unsupported , as law requires , he could not perform the same , but behoved to be supported as said is , by which it clearly appeares , he did not any acts that were equ●polent . to his actual going abroad to the kirk or mercat , i make no answer , since our law requires his going unsupported , which cannot be alledged in this case ; for as going to kirk and mercat , is an exception which takes off the reason of death-bed , so the being supported elides the exception of going to kirk and mercat . and so unfavourable have their reductions alwayes been in our law , that the pursuer offering to prove supported , is preferred to the defender , who offers to prove unsupportable , as was found , 27. july , 1629. albeit regulariter the defender is preferred to prove his own defence ; not needs the pursuer debate from what cause the supportation proceeded , for it cannot be known to witnesses upon what account he was supported , and that might have proceeded from infirmity , as well as from the ruggednesse of the way : and so this law would in its execution and application , return still to be arbitrary , if witnesses or judges might guess at the occasion of the supportation . but without debate , the pursuer contends that this priviledge of eliding a reduction ex capite lecti , being only competent to the going to kirk and mercat unsupported ; he who is supported , gains not the priviledge , because he fulfills not all the qualities , and it is very well known , that the way is ordinary calsay , and that the house and mercat are not distant three pair , and the lord coupar used ordinarily to walk there unsupported ; so that when he took support , especially at a time when he designed so much to go unsupported , it shewes convincingly , that his infirmity , though not himself , remained still disobedient to all their designes , and though they could force him to dispone , yet they could not force him to be sound ; and your lordships may easily judge , that these who were at so much pains to make this disposition subsist , were not wanting to use all indeavours for carrying him over this last difficulty , so that this support proceeded not from chance , but from necessity . seing then your lordships have been so rigid observers of the law , in prejudice of poor children , and poor relicts , who were unprovided , i hope you will not prostitute it in favours of a stranger who had formerly gotten all the defuncts estate in jointure : reward not thus the importunity of wives , and bryb not avaritious persons to trouble us at a time , when we shall think all time too short , to be imployed in the service of him , whom we have so much , and so often offended ; and take not from us in one decision , the protection of the law , when our judgments are frail , the quiet of our souls when we are sick , and the love of our successors when we are dead . the lords reduc'd the disposition . for the countesse of forth , &c. against e. c. eighth pleading . how far restitutions by way of justice , are prejudged by acts of indempnity . i might stand in the next degree of guilt , to those who forfeited the earl of bramford , if i thought that his merit , or your lordships loyalty needed , that i should urge much the favour of his case : he was a person who carried the honour of our nation , as far and as high as could be expected , from the happiest subject in much better times : for after that his merit , arm'd meerly by his own valour , had rais'd him to be a general in sweden , he was chosen general in england , in a war , wherein all his nation were suspected , and did there , actions worthy of our praise , and their wonder . but whilst he had refus'd to draw a sword against his country-men , even whilst they were rebels , they forfeited him , for fighting in a kingdom , over which they had no jurisdiction , and forfeited him by his majesties lawes , and at the pursute of his majesties advocat , when he was hazarding his life for his majesty , by his own command , and in his own presence ; and the very day after he had gain'd that battel for him , which if prosecuted according to that brave generals advice , might have secured to him , that just power , which those rebels were scruing out of his hands . the earl of forth being with his majesty , restor'd to his own , his lady and daughter pursue such as intrometted with his estate , and insist now against e. c. who for being general to the then estates , got 40000 pounds out of the estate of the earl of forth , which was a part of that sum , which was due to his lordship upon an heritable security , by the earl of errol and his cautioners . in which debate , if i use terms which may seem indiscreet and zealous , i must be paroned , since i shall use none but what are forc'd upon me by that act of parliament by which i plead , since e. c. is a person to whom i wish much success in every thing , save this debat , and to whom my respects are above jealousie . it is alledged for e. c. that though such as are restored against forfeitures , by way of justice , may by vertue of their restitution , repeat all that is extant of their estate , yet they cannot repeat what money belonged to them ; for money being res fungibilis , and naturally subject to consumption , it passeth from hand to hand , without bearing any impressa , whereby such as intromet with it , may know how it came , and whose it was : nor doth the nullity of a title in the first obtainer , infer repetition of money from such as derive a right from them , as may be clear'd in many instances , for if money had been payed to one , who obtain'd an unjust sentence from the late usurpers , yet they would not be liable in repetition , after that sentence were revived and declared null . if one should serve himself heir unjustly , and as heir assign a sum to one of his debitors , though his service were thereafter reduc'd , as unjust , yet could not his assignay be oblieged to restore what he recovered by vertue of that assignation . if the exchequer should presently gift an escheat , though the escheat , and horning whereupon it proceeded , were thereafter reduc'd , yet a sum payed by vertue of that gift , when standing , could not be repeated , and if this principle were not sustain'd , all commerce would be destroyed ; and though e. c. his title be now ●educ'd , yet it was valid the time of his intromission , which is sufficient to astruct his bona fides : and lawye●s , even in introm●ssions with money , which was at fi●st ●obbed , consider only vim illam quae intervenit tempore numerationis ; whereas here , though the est●tes did most unwarrantably and rapinously forfeit the earl of forth , yet his money being brough● in to the publick t●easure , and confounded with their ca●h , it ceas'd to be his , and became theirs ; and therefo●e , e. c. being creditor to them , as he might have taken any precept justly from them , payable out of their treasure , so might he have taken p●ecepts upon his estate , which ceas'd to be his : nor can the earl of forth be said to be a loser by e. c. seing the estates for the time would have brought it in , and converted it to their own use , in which case , forth would not have go● repetition against the persons to whom it were payed . to these grounds , it is ( my lords ) replyed ●or the earl of forth , that there is a difference stated in law , betw●xt restitutions by way o● grace , and restitutions by way o● ju●t●ce ; in restitutions by way of grace , the guilt remains though the punishment be remitted , and the person forfeited is restored , not to his innocence , but to his estate , and therefore he recovers only what ●s extant of his estate . but in rest●tutions by way of justice , the sentence forfeiting is declar'd never to have been a sentence , and therefore , it can never be susta●n'd as a warrand to an● 〈◊〉 , sed comparatur juri postliminii & fingitur nunquam 〈◊〉 〈◊〉 , & tantum restituit 〈◊〉 quan●um abstuli● injus●●ia . and 〈◊〉 , not only what is extant , but all that belonge● 〈◊〉 〈◊〉 there is resto●ed . but sentences fo●●e●t●ng may be 〈◊〉 〈◊〉 , as b 〈…〉 s obse●ves , 〈◊〉 , d 〈…〉 med . 〈◊〉 ▪ into 〈◊〉 , as though they were ●njust , y●t every p 〈…〉 t person was not ob●●ege● to know the injustice o● the ●or●eiture : as if a man had been forfeited in a justice-court for murder under trust , or a landed-man for theft ; against which sentences , though the person forfeited were restored , yet it might seem hard , that such as intrometted by vertue of warrands or assignations from the estate , should be forc'd to restore all they received ; but others may be forfeited , as the earl of forth was , by vertue of sentences , which were no sooner pronounced , then they became treason , by an execrable inversion , not in the pannel , but in the pronouncers , and were not only treason of their own nature , but behoved to be acknowledged treasonable by all such as heard of them , and such sure was that sentence pronounc'd against the earl of forth ; which was against the fundamental laws of this and all nations , and which is declared by the act of parliament restoring him , to have been , at the time it was pronounc'd , an act of rebellion , and an invasion upon his majesties royal prerogative . this being the state of this restitution , it is , my lords , answer'd to the defence , that it is defective in the aplication of all its parts ; for , that this money was not res fungibilis , appears , because the law distinguishes all estates in mobilia ( quae sunt fungibilia ) immobilia , & nomina debitorum . nomina debitorum are bonds due to the creditor , which are of a middle nature , betwixt movables and immovables , and these fall certainly under restitution by way of justice , even according to the defenders own principles , for they bear the n●me and impressa of him to whom they belong , and so the intrometter is warned to bewar of them : and that this money crav'd here to be repeated was such , is very clear , for it was due upon ●n heretable bond to the earl of forth , by the earl of errol and h●s cautioners , and came never in , nor was confounded with the publick treasure ; for e. c. got a precept upon ●t , before the publick obtain'd a sentence for it , and got a w 〈…〉 nd for that specifick sum owing by that bond to the earl of forth , and got payment of it from the earl of forths de 〈…〉 s , 〈◊〉 debitors to him : so far did just heaven allow this hast to be its own punishment . as to the second member of the defence , which is founded upon his bona fides , to intromet with the sum for payment of a debt due to him , ( he having been general at that time ) from an authority then in being ; it is reply'd , that bona fides in the intrometter , doth not extinguish and take away the right of the true proprietar , nam quod meum est , sine facto meo à me auferri nequit . and lawyers determine , that to denude a man of his property , there must be some fact of his , either se obligando , or delinquendo , neither of which can be alledged in this case ; and if the earl of forth was never denuded , then calendar could have no right ; for , duo non possunt esse domini in solidum unius & ejusdem rei , which maxim holds still in specibus & nominibus debitorum , for though sometimes it may fail in numerat money , the dominion whereof is , for the good of commerce , sometimes transmitted by simple numeration ; yet it never fails in specibus , seu corporibus : and that money due by bond , is not of the nature of pecunia numerata , is clear from l. si certus ff . de legat . 1. and if a robber take away may cloak , and give it to a stranger , yet i would per rei vindicationem get it back , notwithstanding of the defenders bona fides ; but here there was no bona fides , seing e. c. was oblieg'd to know , that the earl of forth was injustly forfeited , and that the act of parliament , against which there is no disputing , has declar'd it to have been treason ; and if e. c. were pursued for opposing his majesty at that time , or for concurring to the forfeiting of the earl of forth , he could not defend himself otherwayes , then by the act of indempnity : ergo , in the case of restitution of forths estate , which is excepted from the act of indempnity , that warrand proceeding upon forfeiture , cannot defend him ; for how is it imaginable , that his bona fides , which could not defend him against the losse of his own estate , shall be able to defend him against the restoring of forths , to which he had aliunde no right ? there is no bona fides , but where it is founded upon a title , et ubi non subest titulus , ibi non est admittenda bona fides ; but so it is , that e. c. his title , viz. the forfeiture of the earl of forth , is declar'd by parliament , never to have been a title : but e. c. who was a member of that parliament which forfeited the earl of forth , and general of that army which defended them , is in the same case , as if two robbers had taken a bond from a free liege , and had given it to one of their own society , who was at least a spectator ; in which it is most certain , that the free liege so robbed , would recover payment from him who intrometted . by this unwarrantable intromission with the earl of forths money , e. c. became his debitor , and the supervenient act of indempnity could no more defend e. c. against this , then it could against his other debts . indempnities are design'd to secure against the princes pursutes , who gave them , but not to ruine innocents , else were these indempnities , acts of injustice , not of clemency . si criminaliter caeptum judicium interventu indulgentiae scriptum est , habes tamen ressamen indagationem , & potes de fide scripturae civiliter quaeri , l. 9. c. ad l. cornel. de fals . amnesties are but general remissions , and so cannot be stronger as to all crimes , then a particular remission is as to one : but so it is , that a particular remission can only dispense with the princes interest ; nor doth it cut off the pursutes of privat persons , as the former law observes very well ; and the emperor in another law tells us , nec in cujusquam injuriam beneficia tribuere moris nostri est , l. 4. c. de emancip . libero . from these grounds , your lordships have an easie and just prospect of the answers which may be made to the instances adduced ; for we are not in the case of such as obtain gifts from the present exchequer , nor rights from heirs once lawfully serv'd : for the jurisdiction whereby these rights are establish'd , are not funditus taken away , nor were the singular successors oblieged to know the sentences , whereupon their rights were founded , to have been null , as e. c. was in this case ; nor can this prejudge commerce , except among such as are oblieged to know the grounds of their commerce to have been unwarrantable , and rapines and violence sunt extra commercium , which is so far from being an absurdity , that it is an advantage ; for this may help to stop all commerce amongst rebels and usurpers , and to loose these cords by which they are tyed : and from this , i beg leave to represent to your lordships , that by this decision you will do more to hinder rebellion , and to encourage loyalty , then armies can do ; for since no man will hazard hanging and damnation by rebellion , without he be baited to it , by the certain expectation of a prey ; so , if rebels find , that they can never be secure of any prey so obtain'd , they will certainly neither be so eager to have such as are loyal forfeited , nor so desirous to settle upon themselves , estates so rob'd . as to that principle , that whatever defect was in the title here , yet there was none in the numeration of the money , and defects in the numeration are only objected against singular successors ; it is answered , that vis est vitium reale , & afficit rem ipsam licet transierit per mille manus . and this original sin insects the whole issue , for the states could not transmit a better right then they had themselves , nemo potest tribueri alteri plus juris , quam ipse in se habet : and plin. lib. 3. epist. 9. informs us , that caecilius classicus having robb'd the province which he commanded , and having payed his creditors with the sums extorted , pecuniae quas creditoribus solverat , sunt revecatae . but though this might be alledged where there remains still some colourable title in the author , and where the singular successour was not oblieged to know the defect , yet in this case it can never be pretended by e. c. whose right is funditus taken away , and who was at the time the mony was assign'd , or was nume● at to him , oblieged to know that defect in his right , which is now the ground of this restitution . i shall not trouble your lordships , with answering those objections , founded upon the earl of forths ratifying and homologating his own forfeiture , by giving in a petition , 1647. when he was content to accept back his heretage , without these sums ; for it is known , that petition was not sign'd by himself , nor did he ever appear before those usurpers ; and what was done by his friends , cannot bind him , especially whilst that usurpation continu'd , under which he first suffered ; nor to the act , 1662. wherein some intrometters are declared free , for that act was only conditional , and upon provision that his majesty should pay the earl of forths successors 15000 pounds sterling , out of the fines , which condition was never purified , and i wish it had , for that was much better then what is here expected : these grounds are such , upon which none but such as are ready to drown would fasten : but , my lords , if i needed to prepossesse you with what the parliament designed in this restitution , i might easily clear , that they design'd these intrometters should be lyable ; for when duke hamiltoun and the earl of errol were absolv'd as the immediat debitors , it is very well known , that they were absolv'd upon expresse provision , that they should deliver to the earl of forths successors , such papers as might prove the int●omission of these defenders , which had been unnecessar if the intrometters had not been liable , and the reason why these debitors were absolved had been groundlesse , if intrometters had not been liable . but to what purpose should the parliament have restor'd forth , if they had not design'd the intrometters should be liable ? for the parliament knew , that there was nothing else , which could have been reach'd by this restitution , except these moneys now pursued for , and so their justice had proved an a●y and empty fanfara , bringing nothing with it but the occasion of certain spending , upon an uncertain expectation : to avoid all which debate , the parliament have expresly ordain'd the first debitors to produce these papers , for proving against these intrometters , who are hereby declared lyable ; which words are so expresse , that they preclude all cavil , as well as difficulty . this being the nature of our pursute , and these the answers to any pretended difficulties , it is humbly recommended to your lordships , to give a testimony of your hatred against those violent courses formerly practised , and to teach posterity what such invasions may expect . i know well , that no man has deserv'd better of his majesty , then e. c. hath of late ; and i hope , that when you have decided against him , he will heartily acquiesce to your sentence , as a furder proof of his sincere loyalty , nec tollitur peccatum , nisi restituatur oblatum . i confesse , that he did not yield to those impressions , till they had overcome the whole nation , and that nothing but the perswasion of his being then employed in the service of his conscience and countrey , could have with-drawn him from the service of his prince : but this can plead no further , then that his prince should pardon these escapes , not that he should reward them , especially to the prejudice of his faithful friends . the lords sustain'd the pursute , and repell'd the defences . a debate in favours of the earl of forth , against e. c. ninth pleading . how far a person unjustly forfeited and restored , may repeat annual-rents from the intrometters . if i were not ( my lord chancellor ) very confident of the justice of my own cause , and of your lordships learning , as well as integrity ; i should be somewhat jealous , that the learn'd discourse you have heard , in favours of my l. c. might leave some impression . but , my lord , i think it impossible that any , beside those unjust judges who forfeited the earl of forth of his principal sum , would again forfeit him of his annual-rents ; nor do i imagine , that even those would have done it , if they had not been distemper'd by their own feaverish zeal , and that national fury : so that if your lordships should folow their example , you should share their guilt , but want their excuse . it is ( my lord ) now alledg'd , that e. c. is not liable in payment of annual-rent to the earl of forths successours , because money is of its own nature res sterilis , and in law bears not naturally annual-rent ; and therefore an intromettor , though predo , though male fidei possessor , is not liable for annual-rent , for no man is oblieged to improve another mans money : and by the civil law , ( which was more ready to give annual-rents then ours ) in corporibus ex quibus fructus naturaliter proveniebant malae fidei possessor , was liable in fructus productos , but in corporibus quae non producebant fructus de sua natura , nec predo , nec latro tenebatur in fructus ; and though a person who impropriated publick money was punishable , ratione repetundarum vel ex residuis , and so was there most unfavorable , of all intrometters , yet he was not liable in usuras ; nor by our law are annual-rents ever due , sed ex lege , vel ex pacto , neither of which can be alledged in our case ; and the act of indempnity hath made intrometters with publick money liable in repetition , and though their intromission be most unwarrantable , yet are they not made liable by that act in annual-rents . likeas , though these moneys due to the earl of forth , did at first bear annual-rent , yet they being once uplifted , became a sum lying in cash , which e. c. was not oblieg'd to re-imploy upon annual-rents , and by the act , 1662. whereby his majesty was to repay the earl of forth , he was only to be repayed of his principal sum , but not of his annual-rent . to which , ( my lord ) it is answered for the earl of forth , that since your lordships have found e. c. his title to have been unjust , we must debate now against him tanquam , at least , male fidei possessorem ; for the act of parliament has declared this forfeiture an invasion upon his majesties prerogative , and you have by your sentence , found it not to be shelter'd under the act of indempnity . let us therefore , in the first place , consider that the law never design'd to favour oppressors , nor suffer the innocent to be prejudged ; it never design'd that men should enrich themselves by their guilt , and be rewarded for their violence . and since the fear of punishment is scarcely able to restrain that wickedness , to which we are naturally prone ; it were absurd to highten our vitiousnesse by rewards ; whereas , if malae fidei possessores should not be lyable to repay annual-rents , they should be enrich'd by their oppression , and should be baired to commit violence , and to maintain themselves in it ; for they should be sure lucrari ( at least ) usuras rei , per vim & injuste ademptae . and therefore , my lords , though the law makes a distinction etiam in malae fidei possessore , inter corpora , ex quibus fructus naturaliter proveniunt , & corpora sterilia ? yet , they do not this upon design to favour vitious or violent intrometters , but in order to the several wayes of taxing the restoration of the person injured ; for , where the bodies unjustly intrometed with bear fruits , they ordain the fruits to be restor'd , but where they bear not naturally fruits , the law doth not ordain the intrometters to be free , but to be lyable in damnum & interesse , & in omnem causam ; this the law defines to be all the advantage could have arisen out of the thing intrometted with : this being an uncontraverted principle , i humbly conceive , e. c. should be lyable to these annual-rents acclaimed , and that upon these three considerations . first , this sum intrometted with by e. c. was a sum bearing annual-rent ; and therefore , forth being restored by way of justice , he ought to be put in the same case he was in before the forfeiture : and if the money were now lying unuplifted , forth would be preferred to e. c. quoad these annual-rents , which clears , that they were never due to e. c. and if they were not his , he ought to restore them . the forfeiture is declared to be no warrant , and so , though e. c. were in the same condition as a stranger is , who intrometts with another strangers money without a warrant , yet sure he would be lyable in annual-rents , if he intrometted with a sum bearing annual-rent ; much more then ought he to be lyable , who hath intrometted with a sum , which was unjustly and predoinously intrometted with . for here , e. c. is in the same case , as if a man had broke my house , and had taken away my bonds with blank assignations lying beside me , and had uplifted for many years , the annual-rents of these sums ; or if a man had , upon a false token , taken up my moneys which bear annual-rent ; in which cases it is most undenyable , that the vitious intrometter , would be lyable in re-payment of the annual-rents ; and to invert one of the defenders own instances , it is not imaginable , if any should uplift a sum belonging to a person lately forfeited , and which did bear annual-rent , that the exchequer would not exact annual-rent from the intrometter . i might hear urge likewayes , that a minors money intrometted with , bears annual-rent by the civil law and ours ; and it is most clear , that pinguius succuritur restituto , per modum justitiae quam minori , as bossius well observes , tit . de remed , just . num . 3. & . jason . ad l. gallus ff . de liber . & postlim . for , as they are equal , in that neither did consent to the intromission , so he who is forfeited for his countrey , deserveth more favour then a minor doth ; and many things are in law allowed ob bonum rei-publicae , but we are not here in the case of corpus sterile , for money bearing annual-rent is not corpus ex sua natura sterile , but habet fructus ex se facillimè provenientis ; usura est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu partus pecuniae , and should rather be restor'd then fructus prediales ought to be , for in these the intrometter bestow'd his industry , but here annual-rent doth grow very easily : and that annual-rent is due , even where it was at first sterilis , is clear from § . quid si l. item veniunt ff . de haered . petit . quid si post venditam haereditatem hic ipse res venient , fructusque earum , sed si forte tales fuerunt , quae vel steriles erant , vel tempore periturae & hae distractae sunt vero pretio , tunc potest petitor eligere ut sibi pretia & usura praestentur . upon which law , the doctors observe , that malae fidei possessor tenetur rem ipsam restituere , si extet , vel pretium & usuras , si non extet : but much more , where money bearing annual-rent is ●ntrometted with , for there the proper damnum & interesse is annual-rent , and our law calls annual-rent the interest of money : so that though the money had been sterile , yet the vitious intiometter would have been lyable in damnum & interesse , and the damnage and interest of money is annual-rent : nor is this money of the nature of that money , which the law makes sterilis , for here was an heretable bond bearing annual-rent , nomen debitoris , and which in our law is not accounted inter mobilia , and such a bond pro feudo habetur ; nor can it be ever said , that this heretable security was lawfully loosed , no requisition having ever been made . another ground i go upon is , that malae fidei possessor ; tenetur non solum in fructus perceptos , sed in percipiendos , l. sed & partus ff . quod metus causa ; where the law determines , that when any thing is vi , vel metu taken , partus ancillarum & fetus pecorum , & fructus restitui , & omnem causam opportet ; nec solum eos qui percepti sunt , verum si plus ego percipere potui & per metum impeditus sum hoc quoque praestabit . and when lawyers consider fructus illos percipiendos qui sunt restituendi à malae fidei possessore , which they call fructus civiles , they define them with bartolus , ad l. ex diverso ff . de rei vindicat . to be vel quos petitor percepisset , si ei possidere licuisset , vel quos possessor quo alius diligentior non est , percipere potuisset . according to which characters ( worthy of their wonderful author ) these annual-rents are to be restored upon both accounts ; for they might have been uplifted by the earl of forth , if this forfeiture and intromission had not interveen'd , and by e. c. had he continued these sums for after-years , as in the beginning , in the cautioners hands , or if he had re-imployed them in other hands upon the first termes ; and if he , studying either his own gain or convenience , has inverted the primitive use of forths money , should either his gain or humour prejudge forth ? incuria sua in rebus alienis nocere non debet . and copus parisiensis doth excellently observe , that sicut ille qui culpa desit possidere pro possessore habetur , ita & ille qui fructus percipere potuit pro percipiente habetur , si culpa ua desiit non possidere , what can be more solid , or plain , though e. c. had not employed them upon land , whereof he has reaped the f●uits constantly , since they were so imployed ? if a man be violently ejected out of a miln which was grinding , a coal-heugh , or salt pan which was going , he would certainly be restored , not only to his coal-heughs or salt-pan , but to all that they might have yielded ; much more then ought he to be restored to his annual-rent , which was a more sure product then these . and whereas it is pretended , that an intrometter , though wanting a just title , is not oblieged to improve the money so intrometted with by him , and so cannot be lyable to pay annual-rents for it ; it is to this answered , that though he be not oblieged to improve them , yet he should be lyable , if he altered the natural improvement of them : this would not be allowable in bonae fidei possessore , much lesse ought it to be indulged in malae fidei possessore ; and though the intrometter in crimine repetundarum , be not lyable in usuras , yet he is lyable in quadruplum , which much exceeds these , and would also be lyable in usuras , if he intrometted with publick money bearing annual-rent , which is our case . and whereas it is pretended , that annual-rent is in our law only due , ex lege , aut ex pacto ; it is answered , that annual-rent is here due , & ex lege , & ex pacto ; ex lege , because in restitutions ex justitia , the party ought to be restored in integrum , cum omni causa , in which annual-rent is included : & ex pacto , because c. hath given his bond to secure the debitors , as to all damnage or interest they could sustain . the third principle i fix upon is , that e. c. gave his bond to relieve the earl of kinnoul and errols cautioners , of all damnage and interest they could sustain by paying these moneys to him ; and therefore , seing they are now absolved by the parliament , upon express provision , that they should make out the intromission of such to whom they payed the money ; it follows by an infallible inference , that they are lyable to the earl of forth for what damnage he sustain'd , and he by this sentence , is surrogat in their vice ; and e. c. having given this bond , should have alwayes lookt upon this money , as that which he was moe wayes then one tyed to improve , and should have known , that this talent was not to have been la●d up . i will not burden your lordships , with satisfying the clamours rais'd against the rigidity of this pursute . it is not craved , that the king would bestow e. c. his estate upon forth , but that forth should be restored to his own , e. c. his life and fortune being at his majesties disposal , as excepted from the act of indempnity : the ransom craved , is only to restore the earl of forths estate . we desire not e. c. should be made poor by his crime , and it were unwarrantable to desire that he should be enriched by it , especially when his being enrich'd will necessarily starve them , who had never any requital for their loyalty , save this act of justice . forths lady and family have been forced to borrow money at dear rates ( as all starving people do ) to supply their want of these annual-rents , and if they be not restor'd to these , they are still to be beggars , for the principal will not pay their debts ; and so they must wander the indigent instances of their princes unkindnesse , and countries injustice , whilst their oppressors do warmly possesse their estates , as the reward of their opposition to his majesty . not decided in jure . for bartholomew parkman , against captain allan . tenth pleading . whether ships taken after they have carryed contraband-goods , can be declared prize . my client is , i confesse , ( my lords ) taken as an enemy to his majesty in this war , but it is by a privateer , , who makes all rich ships so ; his ship is adjudg'd prize , but it is by the sentence of a judge , who having the tenth of all ships as his share , was too much interested to release her when she was taken : but our law being jealous of that court upon that account , has allow'd a remedy by your justice , against what injustice they could commit ; and when we are concern'd with strangers , and to let forreigners know what justice our country dispenses , it was fit that they should have entrusted the decision to your illustrious bench , whose sentences may convince , if not satisfie , even such as are loosers by them . the sentence adjudging that ship prize , is by the admiral , founded upon these two grounds , first , that his maj●sty has , by his declaration ordain'd , that all ships which were sail'd by his m●jesties enemies the hollanders , should be seiz'd upon as prizes , and this ship was sail'd by hollanders , at least three of them were of that nation . the second ground was , that he carry'd contraband-goods for supplying his majesties enemies , viz stock-fish , and tar ; and though he was not taken with these contraband-goods , yet he was taken with that salt which was the return of these , having loaded in salt as the product of these goods . my client has rais'd a reduction of this decreet , as injust , and reclaimes against it upon these reasons . as to the first reason of adjudication , bearing , that the ship was sail'd with three hollanders , he alledges that the swede being an allye , was not oblieg'd to take notice of the king of englands proclamation of war , which is indeed lex belli , quoad his own subjects , and may warrand them in what they do against the hollanders , who are declar'd enemies ; but no lawes made by him can tye allyes , furder then is consented to by express treaties amongst them : and it were injust , that because the king of britain designs to make war with holland , that therefore it shall not be free for swede to use any hollanders in their service , especially since without hollanders , it is impossible to them to manage their trade ; and were it not injust , that all the swedes , spainiards or others , who had employed the hollanders before the war to sail their ships , and had rely'd upon their service , should be forced immediatly , upon declaring a war , to lay aside all trade ; and if it were injust for any in britain to take prisoner a hollander , who serv'd a swede in england , much more injust it is to take their ship and themselves as prize , because they were serv'd at sea by hollanders : nor is it advantageous for the interest of england , that this glosse should be put upon the proclamation , since it is englands interest , that the hollanders should all desert their countrey , and serve abroad amongst strangers ; whereas , by this glosse , they would be forc'd to stay at home , since none else could employ them ; and this will extreamly gratifie holland , who commands under severe pains , by publick placats , that none of their subjects , especially sea-men , should serve abroad . it is also humbly represented to your lordships , that some of the three who are hollanders are only young boyes , who have no constant domicile , but serve where they can have employment , and servants are , by the laws of oleroon ( which are now the lex rhodia of europ ) accounted inhabitants of that place where they serve ; and we consider not domicilium originis in servis , for they in all senses , and amongst all nations , follow the domicile of their master , else the power of masters would be much impair'd , and commerce much entangled . likeas , it is fully proven , that these men were not employed upon design by my client , but were hired by him upon the death of such as serv'd him when he was in denmark and holland , which necessity is sufficient to defend subjects , and much more allies ; nor is it imaginable that a swede , who is not concern'd in the war , should , if his men die in holland or denmark , lye idle there and loss his trade , and stay from his countrey , because he cannot employ his majesties enemies , nor would england allow this , if they were allies , and the swedes only concern'd in the war : and though in a former case , your lordships adjudg'd a ship called the castle of riga , because sail'd by hollanders , yet the greatest part of the sailers were hollanders in that case , who might , because of their number , have commanded the ship and taken her to holland , or have with her fought against his majesties ships , and have made them prize , when they were secure . nor doth it follow , that because his majesty in his treaty with spain , has allow'd the flandrians a liberty to sail with hollanders , that therefore it must be regularly lawfull to sail with hollanders ; for the design of that was not so much to allow the flandrians to sail with hollanders , as to secure them against seizures , upon the presumption of their speaking dutch , because of the vicinity of their language , sayes the treaty ; and if this had not been granted to the flandrians , all their ships might have been brought in , upon pretext that they were sail'd with hollanders . the second reason of reduction , upon which my client craves to rescind that pretended adjudication , is , that though he had carryed in stock-fish and tar to his majesties enemies , yet except he had been taken when he was actually carrying these contraband-goods , his being taken with the return of these goods was no sufficient ground of seizure , which i shall endeavour to evince by many reasons ; first , that by no law , stock-fish nor tar can be call'd contraband , seing contraband-goods are only such as are determined to be such by an express treaty , or by the general custom of nations ; neither are contraband-goods still the same everywhere , but are by private treaties with allyes , establish'd to be such , in respect of such termes as are agreed upon betwixt them ; and generally these are only counted contraband-goods quoad allyes , which have no use in the place to which they are carryed , but for carrying on , and maintaining the war ; and seing the reason why contraband-goods are prohibited , is only that allies may not assist in the war against the confedetats , it is therefore very consonant to reason , that the law should only interpret those goods to be contraband , which serve p●operly , and immediatly for maintaining the war , and tar cannot be call'd such , seing it serves more for peace , then war ; and though an naval war cannot be carryed on without tar , yet tar cannot be said to be contraband , no more then cloath , stuffs , linning , or such things , can be call'd contraband , seing a war cannot be carry'd on without these : and if we look to the treaty betwixt the crowns of britain and sweden , we will find , that tar is not enumerat in that article , wherein it is declared what goods can be accounted contraband , and in such special articles as these , inclusio unius est exclusio alterius , especially where it appears to be designed by both parties , that their subjects should be inform'd , what should be lookt upon as contraband ; and it was very fit that their subjects should have been inform'd expresly , else that treaty could but prove a snare ; and if we look narrowly unto the nature of the particulars there enumerat , we will find , that there is nothing there expressed to be contraband , but what is only and immediatly usefull for the war ; and there is no general in all that article , but only instrumenta bellica , which cannot be extended to tar , whithout an evident wresting of the word . 2. though by an expresse article , the carrying in victuals to enemies be discharg'd as contraband-goods , and that under the word of comeatus , yet victual is only declared to be contraband , in case it be carry'd to any of the enemies cities when they are besieg'd , si civitas sit obsessa ( saith grotius ) which restriction was very reasonable , for then the carrying in that victual was the relieving and the maintaining of an enemies town against the faith of the league ; for there , he who doth feed , doth defend : and though pesh . relates , that the dantzickers did confiscat , in anno , 1458. sixteen sail of lubeckers for carrying victual to the enemies , yet he forgets to tell whether the enemies were besieg'd , but he expresly relates , that there , the carrying in victual was expresly prohibited . neither was there any such considerable quantity of these stock-fish carryed in here , as might shew any design of assisting the hollanders by victuals , seing it was carryed in a very small quantity , and might have been necessar for the pursuers own company ; and if they had design'd to have carryed these as commodities , they had carry'd them in greater abundance ; and tar is the product of sweden , and so commerce in it is necessar for them . and whereas it is contended , that the ship had formerly carried enemies goods , and consequently had transgressed that article of the treaty , whereby bona hostiam tuto advehere non licet ; it is answered , that if they had been taken carrying these enemies goods , the goods could have been confiscat , but not the ship ; it being very clear by the law of all nations , that it is lawfull even for allies to fraught their ships to strangers , in order to civil commerce , and that to hinder this liberty , is a breach of the law of nations , as is very clear by the constitutions of several nations , printed lately at venice , where amongst other articles , it is determined , si & navis & merces hostium sint , fieri ea capientium , si vero navis sit pacem colentium merces autem hostium ( which is our case ) cogi posse ab his qui bellum gerant navem ut merces eas in aliquem portum deferat , qui sit suarum partium ita tamen ut vecturae pretium nautae solvat . since then by the law of nations , the skipper behoved to have had this fraught pay'd , though he had been taken carrying enemies goods , it were against all sense and reason , that his ship could have been confiscat for carrying them : and camden in the year , 1597. tells us , that pole did , by their ambassador complain , that the law of nations was violat , in that the english had in their war with spain , challenged their natives for carrying their goods to spain . and serviens relates a decision , 12. december , 1592. wherein some hamburgers were declared free , though they were taken carrying corns and other commodities to spain , and because they were allies ; for the parliament of paris thought , that allies deserved better then others . if we consider the treaty with sweden we will find , that ships carrying contraband-goods are only to be seiz'd on , si deprehendantur , which ( like all words in treaties amongst princes ) must be taken in augustiori sensu ; nor suits it with the generosity of kings to take little airy advantages of one another , and to debate like pedantick formulists , who ensnare one another , in thin cob-webs , as spiders do flees : but in no sense can these words si deprehendantur , be extended to the ships being taken in any former voyage , for els they had been superfluous and impertinent , since no ship can be adjudg'd , except she be taken in some voyage : the genuine interpretation of words is , interpretari secundum subjectam materiam ; and therefore , since these words are insert in a treaty , wherein his majesty is to indulge favours to the swedes , they must be in reason so interpret , as that they may be a favour ; and there is no favour indulg'd here , if these words be not taxative , and if they declare not any ship free , which is not seiz'd carrying contraband the time of the seizure . by our law it has been very wisely provided , that we should use strangers in our admiral court , as they use us in their countrey , act 24. ia. 1. par. 9. and it is offered to be proven , by the law of sweden , tar is not esteem'd contraband , nor can ships be declared prize , for what they carryed in a former voyage ; and since our natives would complain of such usage in sweden , let them not meet with it in scotland ; which is very suitable to that excellent title , in the digests , quod quisque juris in alterum statuerit , ut ipse eodem jure utatur : by the law also of england , ( as judge jenkins reports , in a return to your lordships commission ) no ship is confiscated upon this ground . be pleased ( my lords ) to consider , what great prejudices would arise to trade , if ships might be seiz'd , upon pretext that they carryed contraband in a former voyage ; for by that allowance , all ships might be seiz'd upon , since this pretext might lye against all , and every poor merchant might be left a prey to the ravenous privateers , who might force them to ransome themselves from the very hazard of a seizure : in which case , whatever were the event of the confiscation , yet still their time and expense would be lost , and their secrets and papers would be made open ; which is so great a prejudice to merchants , that by the rhodian law , secreta 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non licebat introspicere , & introspicientibus ultimum supplicum irrogabatur . it was likewise very fit , that the swede , and all princes should tye the privateers to a probation that fell under sense , and such is the having contraband-goods presently aboard , & ubi constare potest de corpore delicti , and not lay poor merchants open to the hazard of the testimonies of two rogues , who being tempted by malice or avarice , might depone falsly , that the ship carryed contraband-goods formerly : in which they might the freelier transgresse , because they could not be control'd ; whereas no such falshood is to be fear'd , if only actual carrying can confiscat a ship ; since there , the existence of the goods precludes all possibility of error or falshood . were it not also very absurd , to seize a ship which possibly carryed contraband in a former voyage , and thereby ruine a great many merchants who were the present fraughters of her , and who neither did nor could know what she had carryed formerly ? and yet , she being seiz'd , their voyage would be broke , and their fortunes ruined . or , if another skipper or owners had bought her from the first offender , were it not injust to seize the ship ? and yet the ship were prize , if this opinion could take place ; this were to pnnish ignorance , and commerce requires more latitude , then such principles can allow . it is , i preceive , urg'd for this opinion , that the commissions granted now , and of old , bear expresly a power to take ships which have carryed enemies goods ; and there is a commission produced , in anno , 1628. of this tennor , together with two decisions of our admiralty to the same effect , neither of which are concluding ; for strangers and allyes are not obliegd to take notice of privat commissions , which are not leges belli promulg●●ae ; these may warrand against damnage and interest , but not against restitution ; and as to the decisions , they are founded upon other grounds also . it is also urged , that the carrying contraband being a crime against the prince or state who make the war , there is jus quaesitum to them , by the very commission of the crime , though the defender be not then actually deprehended ; as we see in other crimes , which are punishable , though the offenders be not actually deprehended : but to this it is answered , that princes may otherwayes use their own subjects , then they should be allowed to use strangers ; the having offended is sufficient in the one case , but actually offending is necessary in the other , for els our king might at any time , even after the war , seize upon one of these ships , because ( forsooth ) there was jus once perfectè quaesitum to him by the very offence , which is too absurd a consequence to be allowed : and albeit all that was done in the course of the war , be ordinarily caveated by the subsequent treaties , as to the nations who were ingaged in the war , yet allies being secured by no such treaties , their subjects might still be lyable to seizures , and hazards of this nature , which were both injust and inconvenient . consider that there is a difference betwixt such allies , as are tyed in a league offensive and defensive , and such as only enter in a treaty for their own advantage , as swede has now done : the first are oblieged to assist , and therefore , all correspondence in them were a breach , but in the other it is not so , and in them that maxim holds , that cuilibet licet uti jure suo , modo hoc non fecerit principaliter in aemulationem alterius : though all this traffique that is alledg'd were true , yet it clearly appears , that the great design of my client , was not to serve the dutch , but to maintain their own poor families , in a way which the severest lawyers could justifie . remember how little swede is oblieged to holland , who kept them lately from conquering denmark ; so that it is improbable they would have serv'd them , upon design to promote their war. remember how much our countrey-men were honoured lately by their great king , who preferr'd two of them to be generals , and thirty two to be collonels at once in his armies : and i must likewise remember your lordships , that the probation in such cases is very suspicious ; for there , a mans whole estate depends upon two mean fellows , and such two , as are under the impressions of their enemies , and who may expect at least their liberty as a bribe , and that their depositions come to us by an interpreter ; so that though he did not mistake them ( as he may ) yet the trust resolves at most in his single assertion , who is but one man , and who by being the ordinary servant of that court , is much to be suspected ; and therefore , your lordships may call for the witnesses , declare their persons free , and thereafter examine them . let us not be more cruel then the sea , and more mercilesse then storms , and after that these poor men have escaped those , it were inhumane that they should shipwrack upon our laws , which were to them , like hid rocks , upon which there stood no known beacon . figure to your selves ( my lords ) how these poor mens longing wives , send dayly their languishing looks into the ocean , as they can , to find them , or how the creditors , who advanced necessars for their aliment , expect payment from their return ; and how it must prevent the starving of their poor babes , whose craving apetites and cryes , do probably now astonish their indigent mothers ; it is those you punish , and not only our appealers : and how would we use enemies , who had murdered our country-men , when we thus use our allies . we alledge , that this is ( my lords ) a case wherein justice will allow some respect of persons ; and since politick advantages have given their first form and being to this law and proclamation , whereupon this seizure is said to be founded , consider , i intreat you , how inconvenient it were to disobliege by a decision , the king of sewden , whom your royal master , who understands best the advantages of this crown , has taken pains to obliege by a treaty , and how hard were it , if upon your decision , that prince should be forced to grant letters of marque , or lay an arrest upon all the vessels of our nation trading there , by which the innocent might be opprest for the guilty , many might losse for the gain of few , and the present unity of the two crowns might be dissolved , by a sentence of your court. the lords jointly sustain'd the adjudication , notwithstanding of this debate . for the burghs of regality , against the burghs-royal . eleventh pleading . whether it be free to all the lieges to trade with forreigners , or if this priviledge be only competent to burghs-royal . may it please your grace , since freedom , is one of the greatest blessings , and pleasures of mankind , those laws which design to abridge or lessen it , must be very unsupportable , and unfavourable ; except they bring other advantages , which in exchange of this bondage , can either convince our reason , or gratifie our interest . but if we consider the laws here founded on , whereby it is pretended , that none but the indwellers of burghs-royal can trade with forreigners , we will find , that these laws are so far from being advantagious , either to the publick , or to privat persons , that they are a great bondage on the one , and a great impediment to the other . the pursuers who desire to lessen the freedom of trade , are the sixth part only of scotland , who desire to retrench the priviledges of the other five parts , and the priviledge wherein they desire to retrench us , is our freedom , the very words of the priviledge they crave are , that we should be declared unfree-men , and unfree-men imports , slaves , in all languages ; and in reality , not to have liberty to export our own commodities , is to be slaves to such as may stop us , for in so far as they may stop us , they are our masters . that they are destructive to every mans interest , appears from the restraint they lay upon his inclinations , and upon his property ; as to his inclinations , they are very much restrained , in so far as though any of the lieges did never so ardently desire to trade , and though his breeding , and the situation of the place where he liv'd , did favour extreamly therein his inclinations , yet , except he live constantly in a burgh-royal , he cannot trade . they lay likewise a restraint upon his property , because though the situation of his estate be very advantagious for trading , and his estate consist in money , yet can he not imploy that money in trade , which is the natural use of it ; and thus in effect , these acts tend to enslave both our inclinations and our estates . nor do they lesse prejudge the publick interest , as will clearly appear by these considerations ; 1. by this priviledge , five parts of six in the kingdom , are debarr'd from trading ; whereas it is a known maxim in all nations , that the moe traders , the richer allwayes is the kingdom ; and upon this consideration , the english and french , have invited all their gentry to trade , by declaring , that merchandising shall be no derogation from their nobility and honour . 2. the more money be imployed upon trade , and the lesse upon annual-rent , the kingdom is alwayes the richer , for though privat parties may gain by annual-rent , yet the publick stock of the nation is not thereby improved , the one half gains there from another , but neither from forreigners ; and if all except burgesses be debarr'd from trade , then the money of five parts of the nation must lye idle , or els must be lent to merchants , which is not ordinar ; and to force us to lend , were unjust . 3. by this , the places in scotland fittest for trading , are kept bound up from using the natural advantages of their situation , to the great prejudice , of the nation , as we see in many instances , and particularly in lews and burroughstounesse , to keep which from being burghs , the burghs have spent a great deal of money . 4. this has ruin'd many little towns , who because they were debarr'd from all priviledge of trading , were forc'd to get themselves erected in burghs-royal , and after that they were erected , were forc'd to be at the expenses of keeping prisons , being magistrats , sending commissioners to parliaments , making publick entertainments , and so did ruine themselves without any advantage to the countrey : and by this , the number of burroughs are so far encreased , that it is a shame to see such mean creatures as some of them , sent to our conventions and parliaments , who , notwithstanding they want both fortunes and breeding , yet must sit as the great legislators of the kingdom , and must have a decisive voice , in what concerns the lives , fortunes , and honour of the greatest peers in it . i design not by this to disparage all burroughs , for most are represented by most qualified persons ; but to tax these laws , which have forc'd many little towns , either to send none , or to send such as are unfit . 5. all the countrey is ill serv'd , for in some shires , there are but very mean burghs , and in these burghs , merchants yet meaner , and if these want credit , to buy and carry out our native commodities , they must lye upon the owners hands , and the countrey wanting necessar returns , such as salt , iron and timber , must buy from very remote places . 6. if two or three merchants in better towns conspire , not to buy or sell , but at rates agreed upon amongst themselves , then the poor countrey must be at their devotion , and this were to grant monopolies , not only in one place , but in every shire , not only as to superfluous commodities , ( as use is , when monopolies are granted ) but as to all , and even the most necessar commodities ; after this , no man shall dare buy a skin , wine or sugar , but a burgesse , and which is yet harder , this will furnish a pretext to burghs to oppresse all such as they envy , under the notion of unfree traders . 7. his majesties customes will be thereby much impair'd , for the fewer traders be , the lesse will be both exported , and imported , and whatever lessens export and import , lessens doubly his majesties customs , of the which those are two hands . 8. other nations , who understand trade in its perfection , such as holland , do allow all their subjects to trade without difference , and it is a maxim amongst them , that many hands and many purses , make a rich trade . and it imports not to say , that their common-wealth differs from ours in its constitutions , and that they have vent for their commodities all over europe , whereas our vent is no larger then our consumption ; for whatever difference be in our fundamental constitutions , yet in the matter of trade , they are still the universal standart : and sure , it is the advantage of our countrey , even in order to our consumption , to have the priviledge of trade , in necessar commodities extended to all , for the moe importers be , we will get our necessar commodities at a lower rate , and the moe exporters be , our corns , fishes , &c. will give the greater rates , and those are the two great advantages of a kingdom . i confesse ( may it please your grace ) that the erecting of societies , as to some trades , and at sometimes , is necessar , but the ordinar rule extends there , no furder , then that trading to remote nations , and in rich commodities , should at first have some priviledges as to their erections , for else , privat stocks would not be able to compasse it ; but even as to these , when the trade is once secured , and becomes easie , and managable , then these priviledges cease , with the cause from which they had their origine : and therefore it is , that albeit trade with forreigners seem'd at first above the reach of our first traders , when to sail to spain , seem'd as har'd as an east-india voyage now doth , then trade needed some priviledges ; yet now , when experience and encrease of money has lessened those difficulties , i conceive the priviledges should expire . it is known , that the bishop of glasgow gave only his burgh then liberty to trade into the shire of argyl , and that the burgh of edinburgh had a special priviledge of old , to trade in the isles : but that now they need these , will not be debated even by themselves . i confesse , that all incorporations in a common-wealth ought to have different designs , and different priviledges suitable to these designs , as is pretended ; but it can by no clear inference be deduced from this , that the sole liberty of trading in all commodities with forreigners , should belong to burghs , but only that they should have some staple-goods , wherein they only may trade . and we are content to allow them , the exporting and importing of what is superfluous , such as wine , silks , spyces , &c. let all , even countrey-men , have the export and import of what is necessar for their own station and employments , let them export corns , cattel , &c. since the having these commodities signifies nothing without power to sell them , and the liberty of importing timber , iron salt , and these other commodities , without which they cannot live in their own station . and whereas it is pretended , that they are content we should export the natural product of our own countrey , providing we bring home money only for them , it is conceived , that this concession destroyes what is conceded , for if unfree-men can only bring home money , then free-men and burgesses may easily undersell them , for few abroad buy them with ready money , and money is the dearest of all returns ; so that these who barter commodities for what they export , may sell much sooner , and cheaper , if they bring home nothing in return of what they export ; for export by it self , without import , occasions great losse , and the advantages of merchandizing is ordinarily in the returns . whereas it is contended , that the lesse diffuse trade be , it prospers so much the better , for it may be easier govern'd according to the just rules . and our old law appointed wisely , that none but worshipfull men , and men of considerable stocks should trade abroad , that thereby poor people , by running over seas , might not by their necessity of selling , or want of skill , low the prices of what they exported , and buy unskillfully at high rates what they imported ; and that to defend trade against this dishonour and prejudices , guildries were appointed in burghs to supervise the conduct of merchants , and restrain abuses , which burghs of regality and barrony wanted , and so were lyable to many escapes . to this it is answered , that though at first , these rules were necessary , yet now when trade is raised to some consistency , this necessity fails with its occasions ; for there are no where poorer traders , then within burghs , to which ordinarily the meanest and poorest amongst the people retire , when they cannot live elsewhere , and when they are once setled there , they , because of the easie conveniences of trading , do indiscreetly run upon it ; whereas , none who live either in burgh of regality , barrony , or in the countrey , will be tempted to adventure upon trade , except they have considerable stocks , and be secure of a full vent . and without debating what was the design of our legislators , in erecting guildries , yet we now find by experience ( which is a much surer guide then project ) that guildries have conduced so little to advance trade , that they tend rather to secure the monopoly , which they at first procur'd , and to establish by mutual compacts , those exorbitant prices for commodities , which are now exacted : and if deaconries amongst malt-men and others , were discharged , to prevent combinations , i see not why guildries , which are but deaconries amongst merchants , should not be discharged for the same reason . but ( may it please your grace ) the great refuge against these convincing reasons , is , that these might have been urg'd , in jure constituendo , but not in jure constituto , for reasoning ends , where law begins , & omnium quae fecerunt majores nostri , non est reddenda ratio . but this may , i humbly conceive , be easily answered , if we consider , 1. that laws are mortal like their makers , and they who would bind up their reason to a constant adhering to what was once made a statute , behov'd to renounce that reason by which they should be govern'd , and leave off to be reasonable men , that they might be lawyers : and therefore it is , that because legislators might take an untrue prospect of future events , lawyers have determin'd , that where laws never grew unto observance , they did really never become laws , the being once observed is one of the greatest essentials of a law , statuta usu non recepta , nec observata , pro non factis reputantur , voet. de statut . cap. 2. sect. 12. arg . l. 1. § . 9. c. cad . toll . & alex. consil . 6. vol. 1. and if the not observance of laws for ten years after they were made , is in the opinion of lawyers , sufficient to repudiat them , much more ought they to be rejected , after they have for many hundreds of years , languished in a constant contempt ; for els they are but like these idols , of which the scripture tells us , that they had eyes , and saw not , ears and heard not , and feet but could not walk : and if we consider these laws , we will find , that even authority of parliament which can do all things in scotland , has not been able to maintain them in those ; for these statutes oftimes begin , that for asmuch , as there had been diverse acts of parliament , made in favours of the royal-burghs , ordaining they should have the only benefit of sailing abroad , &c. yet these laws have not been in observance , therefore , &c. as is very clear by the narrative of the 152. act , 12. parl. i. 6. and why should the act have been renewed so oft , if the former had been observed ? and if in spight of all these acts , the subjects could never be brought to compliance with them , why should we offer so much violence to our native countrey , as to force upon them that from which they have so much aversion ? if acts which have been strengthened by obedience and observation , may be repell'd bydesuetude , and a contrary custome , how much more may desuetude overcome acts which are not yet arrived at their due strength , and perfection ? 2. though these acts had been once in observance , yet they are now antiquated by desuetude and non-observance : that desuetude may antiquat and abrogat laws , is very clear from reading our acts of parliament , of which the full half are in desuetude , and are only considered now by us as matters of antiquity , as roman medulls , or old histories : and particularly , can the burghs-royal deny , but most of these acts limiting their trade and government , are gone in desuetude , as that officers within burgh should not be continued from year to year , i. 3. par. 5. act 29. they should not sail in winter , nor oftner then twice in the year to flanders , i. 5. par. 4. act 30. nor should they sail , except they be worshipfull men , and have at least three serplaiths of wool , or half a last of goods , i. 3. par. 2. act. 13. i. 2. par. 14. act. 168. frustra opem legis implorant , qui in legem peccant : and it were injust , that they should obliege others to obey , what they will not submit to . and that the acts whereupon the priviledges now craved , are founded , are gone in desuetude , appears very convincingly , from the constant practice of all the corners in the nation , not by single , or clandestine acts , but openly , upon all occasions , and in all places , and ages , even under the neighbouring observation of whole fleeces , and of all their succeeding serieses of magistrats : have not musselburgh , and borroughstounnesse near edinburgh , hamiltoun near glasgow , the greatest burghs of this kingdom , exercised this freedom which is now contraverted ? and though they made frequent applications to your lordships , yet till now was their never a decreet in foro in their favours , and decreets in a●sence , are rather founded upon the omissions of the defender , then the justice of the pursute . so that it appears clearly , that the magistrats have been ashamed to crave , the judges unwilling to allow , and the people stiffly refractory from submitting to the priviledges here crav'd to be declared . to this it is replyed for these burghs-royal , that desuetude cannot abbrogat laws under monarchies , though it could under common-wealths , nec potest tacitus populi consensus abrogare , quod expressus populi consensus non introduxit , l. 32. ff . de . leg . nam cum ipsae leges nulla ratione nos teneant quam quod judicio populi sint receptae , merito & ea quae populus sine ullo scripto probavit , tenebunt omnes . 2. though desuetude might abrogat such laws as respect only privat rights , yet the people by breaking penall statutes , cannot by repeated transgression , secure themselves against laws made for restraining their insolencies ; else by frequent usury , or attending conventicles , these delicts might passe in desuetude , and by the acts founded upon , the half of the offenders goods are declared to belong to his majesty , and these laws are in effect penal statutes . 3. where laws may run in desuetude , it is required , that the desuetude or contrary consuetude , be founded upon clear and open deeds , and not upon clandestine or precarious acts , as in this case , wherein all the trade with forreigners , to which these burghs-royal or of barrony can pretend , was either carry'd on under the name of free burgesses , or was tollerated by the neighbouring burghs-royal . 4. it is requisit , that the consuetude which is oppos'd to law , be judicio contradictorio vallata , which cannot be alleadg'd in this case , where not only no decreet can be instanced , finding these laws to be abrogated , but where there are decreets produced conform thereto . to the first of which it is answered , that though those laws seem to respect a common-wealth , yet it is generally received now , that a contrary desuetude may abrogat even laws introduced by monarchs , and that the taciturnity or connivance of the prince , is equivalent to a consent . thus perez , tit . quae sit long . consuet . sunt qui scientiam principis desiderant , quia in illum omnis potestas condendi juris translata , ego tamen existimo sufficere , ne princeps contradicat : and for this he cites , c. 1. de constitut . de 6. where a consuetude is sustained to abrogat law , though the pope ( who is a soveraign prince in his own dominions ) did not expresly allow it , dummodo sit rationabilis , & legittime praescripta ; and with us , do not our old laws die out by desuetude ? and do not new consuetudes dayly spring up , without any other warrand , then meer reason , and prescription : but in our case , his majes●y has so far allowed this custom , and has so far contributed with it to the abrogation of these laws , that he has under his own royal hand , granted many signatures in favours of burghs of regality and barrony , allowing them to trade with forreigners , and extending their priviledges as far as those of burghs-royal ; which signatures are pass'd in his exchequer , and authorized with his seal , which states this consuetude in a very different case from consuetudes which may abrogat penal statutes , or such publick laws as are made against conventicles ; the one his majesty opposes , in the other he concurrs . and this likewise answers that other objection , founded upon the clandestinnesse of these acts , for what act can be more publick , then these which passe his majesties hand , the publick judicatures , and common seals ; and as to extrajudicial acts contrary to the laws , they have been too many and universal to be latent ; but it is offered to be proven , that burghs-royal and burghs of barrony , have been in use openly and avowedly to drive on this trade , which they endeavour to maintain . and whereas it is alledged , that consuetudinis non vilis est authoritas , verum non usque adeo sui valitura monento , ut aut legem vincat , aut rationem , l. 2. c. quae sit long . consuet . to this some lawyers answer , that though it cannot over-power a law , whilst the law stands , yet it can abrogat and make the law fall , cont. ad dict . l. and others interpret so this law , as that they extend it only to a growing and unripe consuetude , which cannot indeed abrogat a law , that has not fully lost its vigor , as cujac . and others affirm . as to the fourth objection , it is answered , that a contrary consuetude can abrogat a law , sine judicio contradictorio ; for , judicium contradictorium is not that which abrogats the law , but only finds that the law is thereby abrogat , and it doth not strengthen , but declare the consuetude ; and the lords of session , by refusing frequently to declare this priviledge , have therein done what was equivalent to a judicium contradictorium ; and if this be not sustain'd , then the burghs-royal may crave , that all the lieges may be debarr'd from tapping wine , spices or other things , absolutely necessar for the accommodation of travellers ; for , the selling of those is as expresly prohibited by the laws founded on , as is the trading with forreigners : nor is the consuetude whereby these are abrogat , any otherwayes firmata judicio contradictorio , then this is ; and though the burghs-royal declare , that they insist not at this time to have their priviledges quoad these extended , yet certainly when they have prevail'd in the one , they will crave the other . and what an absurd thing were it , that all travellers behoved either to lye in burghs-royal , or to want that accommodation which is necessar , or to buy it at exorbitant rates ; and that not so much as a candle or penny-point should be sold , for the conveniency of the countrey , outwith a burgh-royal . i may likewise represent to your grace and lordships , that his majesty is not only , because the author , therefore the absolute arbiter of this priviledge , and may dispose upon what he hath given ; but that likewise by the 26. act of the 3. session of his majesties first par. it is declared , that his majesty has the sole prerogative , of ordering and disposing trade with forreigners ; and therefore , since his m●j●sty has granted to all burghs of regality , and many bu●ghs o● barrony , as full liberty in trading with forreigners , ●s h●●●th granted to any burghs-royal , i see not who in law can dispute this privledge with them ; at least , how the burghs-royal can in gratitude debate the extent of a priviledge with their prince , who at first gave it . nor can these concessions , in favours of burghs of regality and barrony be alledged to be subreptitious , as is pretended , since they are not only past in the ordinary way , but are frequently past , & actus geminatus facit actum censeri non esse subreptitium ; but likewise , after it hath been represented to his majesty from the burghs-royal , and their agents in court , that this concession was contrary to the priviledges granted to them by the parliament , notwithstanding of all this , his majesties predecessors and himself have still continued to grant these concessions . and that the burghs of regality and barrony have enjoyed this priviledge of traffique and merchandizing , is very clear by the 29. act , 11. par. i. 6. wherein it is declared , that for somuch as divers burghs of barrony and regality were in use to exerce the trade and traffique of merchandize ; therefore , that priviledge and freedom shall be continued to them . it hath been oft inculcat , that this priviledge granted to the burghs-royal , of the sole trade with forreigners , is not the meer effects of his majesties favour , and is not only founded upon the parliaments concession , but that it is granted to them , upon the account they pay the sixth part of all the publick impositions of this kingdom , which makes their contributions within burgh to rise so high , that if they had not this priviledge to ballance that inconvenience , they would not be able to ease the countrey , by paying so great a proportion : and if burgesses within burgh had no special priviledge above others , they would not live within burgh ; for , it were unreasonable to imagine , that when they might trade as well elsewhere as within burgh , that yet they would continue to live there , under great burdens , and without any priviledges . to this it is answered , that the 111. act of parliament , i. 6. par. 11. whereby it is declared , that their part of all general taxations shall extend to the sixth part allanerly , bears no such quality ; nor do the acts of parliament bear any such onerous cause ; but the true reason of their bearing the sixth part of the kingdoms burdens , is , because they are intrinsecally the sixth part of the kingdom , if we look either to the number , or riches of their inhabitants : and if the burghs-royal were accounted the sixth part of scotland , under the reign of king iames the first , how much more great a proportion are they able to bear now , when the burghs are six times more numerous , and each particular burgh six times more rich and populous , then they then were ? their riches have encreased with our luxury , and the luxury of our age doth far exceed what it was in that kings time ; so that since now the nobility and gentry only toil to get money , to buy from burgesses what they import from forreign countries , i conceive those burghs may easily bear a sixth of our burdens , since once a year they get in all our stock . and to any thinking man , it may easily appear , that all the money in scotland doth once a year circulat and passe thorow the hands of citizens : for money serves only either to pay our annual-rents , or buy us necessars ; and that which is payed for annual-rents , is by the receivers given out to others , to satisfie their present necessities , and all is ultimatly employed for food or rayment , and little money is bestowed upon food or rayment in scotland , except only within burgh . since then this priviledge doth divide scotland in two parts , since equity in it seems to oppose law , and since both parties pretend to national advantages : i shall humbly move , that if this illustrious senat be unwilling to interpose in so universal a difference , that this debate should be transmitted by them to the parliament which is the full representative of all the kingdom , and the natural judge of equity and convenience . the session referr'd this case to the parliament , who extended this priviledge to all the lieges . for the earl of northesk , against my lord treasurer-depute . twelfth pleading . whether a novo damus secures against preceeding casualities . my lord president , it is one of the chief advantages of our nation , in this age , that we live under a prince , who covets more the hearts of his subjects , then their estates ; and who loves rather to see his laws obey'd , then to have his advocat prevail : what measure then can his fisk expect , when in general , all lawyers have even under tyrants delivered , as their opinion , semper contra fiscum in dubio est respondendum ? and since flattery or fear may encline some , to favour the princes interest too much ; it is fit , that judges should be jealous of the●● own spirits in such cases , and should bend them , rather to the other side , that they may fix at last in a straightnesse . the case propos'd is , whether the novo damus not expressing the casuality of marriage specially , but all casualities in genera● doth by our law , ●e●end against the marriage ? that i● 〈◊〉 . i presse for my client , upon these grounds f●●st a n 〈…〉 〈◊〉 is that , which the feud●lists , call re●●va●● feudi , and 〈◊〉 feudi doth import , liberationem ab om 〈…〉 caducitate ; nay , the very nature of a disposition or alienation doth imply , a liberation from any burden , with which the disponer could affect it , else he should alienat and yet retain , give and not give ; and therefore , by the civil law , he who dispon'd land , was interpreted to have dispon'd it tanquam optimum maximum , free from all the disponer could lay to its charge . if any person should dispone his land to me , and should thereafter crave a ward or marriage , as due out of these lands tanquam debitum fundi ; certainly it would be an absurd pursute , and i would be absolv'd ; nay , if a superior enter me to my lands , eo ipso , i am free from all preceeding casualities ; nor did ever a vassal take discharges at his entry of any former casualities , but his entry was alwayes judg'd sufficient ; why then should not his majesties vassals be in the same condition ? for since this is clear in other vassals ex natura feudi , there being no statute in their favours , it must be due to all vassals ; for , à quatenus ad omne valet consequentia ; and that which is natural to few's , must be inherent in all few's . the design of a novo damus is , to secure the receiver against nullities ; the law thought to set this as a march-stone , and let not us remove it . the stile of a novo damus in our law , which is equivalent to expresse law , is very exactly adapted to this design , as may appear by all its clauses ; for , when his majesty de novo dat , that chartor must be equivalent to an original disposition ; and sure , if these lands had belonged to his majesty , and if he had disponed them , that original right would secure the receiver , against all his majesty could crave out of these lands , except in so far , as he did exp●●sly reserve at the making of the disposition ; nor do i see , 〈◊〉 reservations of former rights were necessar in dispositions , if these rights were rese●v'd without them , and if they were not cut off by the alienation it self . but , not only doth this novo damus dispone in favours of my client , the land out of which these casualities are sought , but it dispones them , cum omni jure , & titulo , interesse & jurisclameo ; tam petitorio quam possessorio , quae nos , aut predicessores , aut successores nostri , habuimus , habemus , vel quovis modo habere possumus , in , & ad , dictas terras . what can be more expresse ? for if his majesty had any claim to , or right in , these lands , any manner of way , he here dispones it , and transfers his right , in , and to my client ; if his majesty have any right at all , it must be vel jus , vel interesse , vel jurisclameum , and if it be either of those , it is dispon'd : but lest it might be pretended , that this clause extended only to secure the property ( which is not its only effect . as i shall clear hereafter ) therefore , the stile of a novo damus bears omne jus , non solum quoad aliquam ejus partem , sed & ad omnes census , firmas , & proficua , ratione wardae , purpresturae , foris facturae , non introitus , eschetae , &c. vel quocunque alio jure , vel titulo : from which general clause , i draw these inferences ; first , that this general clause must seclude his majesty , since tantum valet genus quoad omnia , quantum species quoad specialia , bald. consil 1. lib. 3. gemin . consil . 65. & l. si duo ff . de administ . tut . and therefore , since a special gift of this marriage would have secluded the king or his donator , a general concession must do the same , especially since this general was designed to secure against all , in respect particulars could not be remembred ; even as we see in general discharges , or renunciations , which are as valid quoad all , as any particular discharge can be , as to a special debt or deed ; and since this general discharge of all former casualities , is so oft repeated , and represented under so many various terms , which can signifie nothing , if they did not expresse the exuberant will and inclination of the prince , to denude himself , and secure his vassal , aginst all former casualities , as well marriage as others : and this clause is equivalent to that clause spoken of by the doctors , quovis modo vacet , which comprehends omnem modum vacandi , & omnes formas excogitabiles renunciationis , cap. consil . 14. 2. general clauses subjoyn'd to specials enumerat , must be extended at least to all such specialities , as are of the nature of the specialities enumerat ; for , the subjoyning a general to specials , is designed to supply the not enumeration of other specialities which are homogeneous , clausula generalis quae sequitur casus speciales enumeratos , extenditur ad similia specificatis , socin . consil . 316. but so it is , that the casuality of a marriage is of the same nature , with many casualities he especifically exprest , such as ward , non-entry , escheat , &c. to which the superior having right in the same way as he has to marriages , it is presumed , he would discharge it in the same way with them . 3. general gifts must be extended to such particulars , as probably the granter would have gifted if they had been exprest ; but so it is , that it is beyond all doubt , but , that his majesty , if he had been asked , whether he was content to dispone and gift the marriage , he would have consented very freely to gift the marriage , as well as the other casualities , this marriage must therefore passe under the general ; and how can it be thought , that he who granted all other casualities , would have refused this ? or what speciality was there in this casuality , which might have occasioned this refusal ? nam geineralis clausula idem operatur , quod specialis , ubi non subest ratio diversitatis , curt. consil . 19 and upon this ground it is statute , that general clauses in remissions , shall be extended to all crimes of lesse gravity , then the chief crime which is exprest , act. 62. i. 4. par. 6. and if great crimes can be taken away by general clauses , sure it cannot be denyed in civil casualities , which are of their own nature easier pardon'd , and of lesse consequence : and by that act , it is clear , that the general clause was extended formerly to all , even greater crimes then the crime specified ; a●d if a statute was nece●sar there , it is much more necessar here , els the general clause cannot be restricted . sure he who granted the property , would not stick at a casuality , he who granted the greater , would not stick at the lesser ; he who granted so many casualities , would not stick at one ; he who granted all the others of that same nature , would allow this to passe with its fellows ; and he who granted ward , which is the cause of marriage , would not have refused , to grant the marriage , which is but an effect and consequent of that ward : and this leads me into another argument , upon which i lay very much weight ; his majesty has here gifted omnia proficua & devorias quae contigerunt ratione wardae ; but so it is , that marriage is a casuality proficuum & devoria ; which falls by reason of ward-holding : and so contingit ratione wardae ; for , ward here is taken not as a naked casuality , but as a holding , and therefore it is , that when by the stile of a novo damus , all casualities are enumerated , marriage only is not specified in the old signatures , because that casualitiy was still lookt upon , as comprehended under the general , omnia proficua ratione wardae . not only do many general terms of this novo damus secure against this and all other casualities , but his majesty in his concession , expresses all the wayes of transmission , whereby these casualities could be given by him to his vassal , viz. renuntiando , transferendo , & extradonando eadem , cum omni actione & instantia : and in contemplation of this right , his majesty has a considerable composition in exchequer , which makes this to be not only a gift , but a bargain , not only meer law , but equity . to ballance these reasons , it is represented for his majesty , and his donator , that all his majesties concessions are gratuitous , and must not be too largely extended , for what compositions are payed , are rather payed as fees to his majesties officers and attenders , then as a price , and these are too low , and unproportionat , to what is given , to deserve that name . 2. that his majesty cannot be prejudg'd by the negligence of his officers , and what he passes in favours of his vassals , deserve a far other construction , then what is done by other superiours ; and though general clauses may carry away casualities from them , because it is presum'd , that they have leisure to ponder every word , in any right they grant , yet his majesty being loaded with the weighty affairs of the nation , cannot vaick to so exact observations ; and therefore it was thought fit , that the negligence of his officers , nor the importunity of parties , should not prejudge him . 3. that the gift of a ward , per se , would not carry the casuality of marriage , if it were not exprest ; ergo , marriage could not be comprehended , under the casuality of ward which is here exprest . 4. that general clauses are in many cases but error stili , and are restricted by the decisions of all our courts ; thus though the stile of a gift of escheat , doth dispone all moveables which the rebel had , or shall acquire ; yet , these gifts are restricted by our decisions , to what the rebel had , the time of his rebellion , or should acquire within a year after the rebellion : though gifts of ward and marriage bear , ay and till the entry of the next lawfull heir , yet these gifts are restricted to three terms non-entries , subsequent to the ward ; and though gifts granted do bear relief , yet they would not carry a right to the relief . 5. that the design of a novo damus is to secure the property , but not to transmitt a right to any casualities not exprest ; and thus the king might , notwithstanding of a novo damus crave bygone few duties ; nor would it debar his majesty from craving taxt-wards or marriages , as was decided in the case betwixt his majesties advocat , and pierstoun , where it was found , by the exchequer , that marriage was not comprehended under the novo damus , because it was not exprest . i am not , my lords , willing to lessen his majesties fa●ours to his subjects , who were not worthy of them , if they undervalued them ; and therefore , i beg leave rather to magnifie them so far , as to think , that they should not be interpret so narrowly , as to bear a proportion to our deserts , ( for the favours of princes cannot , like his whom they represent , be merited ) but so augustly and opulently , as may bear a proportion to the greatnesse of him who dispenses them , as clarus and all the feudalists observe ; and if the word can admit a large interpretation , the grants of princes ought to have it : so , that since these general clauses would carry all casualities in gifts granted by privat superiors , much more ought this to be allowed in augustioribus principum concessionibus , especially in discharges granted by them of all former incumberances , which being of the nature of indempnities , ought like them to be interpret all possible wayes to defend the poor vassal . nor do i deny , but the negligence of his majesties officers should not prejudge his interest , yet , gifts granted cannot be called negligence ; for the one is an omission , and the other a commission ; the one is a privation , and the other a positive act ; the design of that statute was to defend his majesty against the omission of his officers , such as the suffering his rights to prescrive , or omitting to propone defences for him ; and the words of the act 14. par. 16. ja. 6. are , that in the pursuing or defending any of his actions or causes , the negligence of his officers omitting any exception , reply , &c. shall not prejudge him . but god forbid that every gift granted by his majesty , and past by his exchequer , might be thereafter questioned , because a sufficient composition was not payed , or that it was not founded upon a sufficient cause ; for else , all our signatures and rights might be questioned ; this were to unhinge all our securities , and to endanger all his majesties officers ; but how can what is past his royal hand , be thought to be past by the negligence of his officers ? and how impertinent were it , for his officers alwayes to stop what his majesty commands ? i confesse , that the gift of a ward per se , would not carry marriage ; but if his majesty did grant omnia proficua ratione wardae contingentia , though in a single gift , i think it would give right to the casuality of marriage ; and yet , that case would not be so strong as ours ; for in single gifts , it is proper to expresse casualities dispon'd , but in a novo aamus it is otherwise ; for the design there , is by the enumeration of all special casualities , and by subjoining a general to these , thereby to secure against all these casualities . to what is founded upon the errors , that are in many of our stiles , i need only answer , that regulariter stilus aequipollet juri , & pro lege habetur , l. si quando c de injur . bart. in l. peritos ff . de excus . tut . and therefore , though as laws may be abrogated or restricted , so stiles are subject to the same frailty ; yet , unlesse it can be made appear , that these stiles are restricted by the constant current of decisions , or by some expresse laws , certainly , stile must rule us : stiles are the product of common consent , and are introduced after much experience , by such as understand ; they are to lawyers , what the cart is to geographers , or the compass to sea-men ; and this is so far from being convell'd , that it is established by the instances adduced , by the donator for gifts of escheats and non-entries , did take place according to the latter , till they were restricted by expresse acts of exchequer : and sure these acts had been needlesse , if the stile had not been binding , before these statutes drawn backwards , but having a future obligation only , every man knew how to compone or transact for them accordingly . as to the instance of reliefs , by-gone few-duties , taxtduties of ward and marriage ( which was pierstons case ) it is clear , that the reason why these passe not under general gifts is , because they are liquid , and so cannot be compon'd for , in exchequer , as hope well observes , for these are no contingencies ; and since the law gives right to any thing in a signature , because it is compounded for ; therefore , in justice these things cannot be comprehended in a signature , which are not compounded for . we have likewise an expresse act of parliament , appointing that reliefs should not be compounded for , which draws out these from the common objection , and states reliefs in a case far different from ours . and though it be much urg'd , that his majesty having taxt the casuality of ward and marriage in this gift , it is most presumable , that he would have exprest the casuality of marriage , if he had designed to have transmitted it , since that casuality was then under consideration : yet , this is but a remote conjecture , and must cede to the stronger presumptions urg'd in the contrair ; and since the signature is not drawn by his majesties order , but by the vassal , the presumption ceases ; and it is more presumable , that the vassal would have exprest this casuality , had he thought it necessar : and whatever might be urg'd , if this casuality of marriage had been exprest , but had been delet ; yet there can be little difficulty , where the signature was presented without it , and where the vassal rested upon the general clause . all the lawyers of our nation have advised , that this novo damus did seclude marriage , though not e●prest ; all the people have esteem'd so , and upon that esteem , they have bought and sold accordingly , rights carrying such a novo damus ; so that whatever may be done as to the future , yet since so many have compon'd with his majesty for such gifts , in contemplation they carryed all casualities , and that so many have given considerable sums to such as had compon'd for them , upon that consideration ; since this opinion was so old and universal , and since ignorance in it ( if it be an error ) was so invincible , being warranted by the advice of the ablest lawyers ; i cannot see how in law quoad preterita it can be otherwise interpret , whatever fate it may have for the future . the lord found , that a right granted by the king , with a novo damus , did not only secure the property , but secluded all casualities that were exprest ; but that it did not defend against casualities which were not exprest . for john johnstoun , againstjames hamiltoun . xiii . pleading . whether a contract entered into by a minor , who averr'd himself to be major , and swore never to reduce , be revocable . the law might seem a severe master , if it only impos'd upon us what we were to obey , and exacted from us an intire submission to what it did command : but in recompence of our submissions , it returns us its protection , it doth supply want of strength in the weak , when they are ingaged against the strong ; want of wit in the simple , when they are ingaged against the subtile ; and want of age in minors , who would otherwayes be very easily circumveened : it appoints its judges to be their tutors , and whilst such as rely upon their own wit , may be circumveened , they are by its assistance plac'd beyond all hazard . amongst those other minors , who dayly come to crave from you , the reduction of what they did in their minority , none was ever more favourable then my client , he being a person , who because of the lownesse of his parts , and meannesse of his breeding , is like to continue very long a minor. and if sharpnesse , & malitia , can in some cases forestal majority , and almost meet it half way , certainly want of wit and ordinar sagacity , should extend the priviledge of minority . the person by whom he is laes'd being his own kinsman , and one in whom he confided very much , pleads likewise for a more liberal reparation , and the same principle which makes murder under trust to be treason , should likewise make the lesion here to be more easily reparable , and should not only weaken the defences , but should likewise be a sufficient ground to repell such as were of themselves relevant : and the lesion here , is not one of these small injuries , but is a great and considerable losse , wherein the minor has not only been induced to sell his land , though the law appoints , that a minors land should not be sold , but by the authority of a judge ; but to sell his fathers heretage , transmitted to him by a long series of ancestors , and to sell it too without the consent of his curators , who are the only persons who should defend and supply his infirmity . against these reasons , it is debated for the defender , that though minors have great priviledges allow'd them in law , yet many causes may occurre , wherein it were unjust to proportion exactly the prices of what they sell , with the ordinar prices of what is sold ; and the same equity whereupon their priviledge is founded , may make such exactnesse , not only to appear to be , but really , to be rigour . as if a minor should , to free him from the gallies , obliege himself to sell land at an easie purchase , to one of his countrey-men , who were then in a forreign country with him , and from whom he could only expect money , and which money being to be bestowed upon merchandize in these countreys , might produce far greater advantage to the merchant , then the land could ; which , and many other instances , may clearly evince , that if minors had not some way whereby they might secure such as would contract with them , the law would secure them , but as it doth prisoners , and which was designed to keep them free , would take their freedom from them ; and therefore , the law has introduc'd , that minors being in confinio majoritatis , may subjoyn an oath to their contracts ; which oath is , because of its divine character , and of the reverence that 's due to that great god , who is called upon as witnesse in it , by all christian lawyers declared to be sufficient to fix and corroborat the contract to which it is subjoyn'd . for , the law of god oblieging every man to observe what he has sworn , even though to his prejudice , it were unfit that the laws of men should be more binding than those . likeas , by the common law , l. 1. c. si adversus venditionem , an oath confirming vendition is declared binding , nullam te esse contraversiam moturum , neque perjurij me auctorem tibi futurum sperare debuisti . and authent . sacramenta puberum , doth expresly tell us , that sacramenta puberum sponte facta , super contradictibus rerum suarum non retractandis , inviolabiter custodiantur . which is likewise observed by our law , the last of february , 1637. and by a late decision , 10. february , 1672. mr. george wauch contra bailie of dunraggat . but not only has this minor oblieged himself upon oath , not to revocke , but he hath likewise declar'd upon oath in the same bond , that he was major , and majority being that which cannot be known by the eye , and there being no liquid and present proof of a minors age , the law should have prejudg'd commerce very much , if it had not allow'd that a minor asserting himself to be a major , should notwithstanding be restor'd against his own declaration : for by this , not only should minors be disabled from getting money to do their necessar affairs , but likewise majors behov'd still to wait till they should get an exact probation of their age ; which probation is very difficult with us , where there are no certain registers ; and consequently , majors might , because the probation of their majority could not be presently instructed , be very much prejudged , and sometime the probation of age , being that which cannot appear convincingly to the sight ; and that being a case , wherein such as contract with minors might be cheated , it was very just , that since the law designed only to assist minors that were cheated , that it should not give the same priviledge to such minors as cheat others , by asserting themselves to be majors , l. 2. si min. se major . dixerit . si is qui minorem nunc se esse adseverat , fallaci majoris aetatis mandacio to deceperit , cum juxta statuta juris , errantibus non etiam fallentibus minoribus publicajura , subveniant , in integrum restituti non debet . and since dioclesian , who was not only no christian , but a persecuter of them , did bear such respect to an oath , what respect ought it to have from christian judges , who if they suffer this oath to have no effect , are the occasion that the name of god is taken in vain ? minors may be punish'd for perjury , falshood , and cheating , and therefore , it followes necessarily , that they may much more be bound by oaths ; for it were injust to punish them for perjury , if they understand not perfectly the strength and efficacy of an oath , and if they do understand that , there is no reason to absolve them from it : and if it can bind them to severe and corporal punishments ; it can bind them much more to the performance of civil contracts . nor can it be deny'd , but that our law respects so much an oath ; and finds it so obligator , that deeds done by women in favours of strangers , stante matrimonio are null , though ratified by an oath , as was decided 18. february , 1663. brisband contra douglas ; at which time , the lords were of opinion , that all obligations which are ipso jure null , such as obligations made by women stante matrimonio , and by minors having tutors and curators , but without their consent , are still null , though they be ratified by an oath : and if this be true , as is acknowledged , they contend , that there is no reason why all contracts entred into by minors should not be valid , for the obligation of an oath lyes in the hazard of perjury , and in the religious respect which lawyers have to oaths ; and in point of conscience , what difference is there betwixt contracts ipso jure null , or such as are not so ? god takes no notice of such subtile differences , and since the oath is the same in both , why should it not produce the same effect ? it is the oath which in this case oblieges , and therefore , though the contract were null , yet the oath still binds , and subsists , though annext to an null contract , even as a null contract may be ratified , or homologated . and that contracts upon oath , do bind minors , though they have curators , and though they subscribe without their consent , is maintain'd by most famous lawyers , as andreolus , contravers . 202. est enim haec opinio ( inquit ille ) fundata in religione juramenti , quae semper militat , sive minor habeat curatorem , sive non , & censequenter cum religio juramenti , & odium perjurii in utroque militat casu , in utroque etiam debet manere effectus . other lawyers assure us , that juramentum minorem , representat majorem , and therefore , since majors are bound , and minors swearing are majors in the construction and interpretation of law , minors swearing should be also tyed by these contracts . nay some have said , that juramentum fingit minorem non habere curatorem . bald & corn. ad auth . sacramenta pub . and according to the canon law ( which craig sayes , we follow in what concerns our consciences ) juramentum semper est servandum , quotiescunque potest servari sine dispendio salutis aeternae . it is likewise alledged for him , that minoribus deceptis , non decipientibus est succurendum ; because there , the want of wit , which is the ground of restitution , ceases ; and it were also unjust , that this remedy should be abused against the design of the legislator ; nor should the minor have the protection of that law , which he has offended : but so it is , that its offered to be proven here , that the minor was a person traffiquing upon his own account , and such cannot be restored , fortia de restit . min. part . quaest . 23. how dangerous were it , if such as were merchants , and common traders , should be repon'd ? for then , who should contract with them , or how could innocent people be secured ? that same necessity and publick interest , which introduced the priviledges of minority , has likewise introduced many other priviledges in favours of commerce ; and since it were disadvantageous to debar minors from trading , it were unreasonable to state them in a condition , in which their trade would be ineffectual ; for who would bargain with them , or bestow trust upon them , if their transactions could be rescinded upon the pretext of minority ? it is ( say they ) to be presumed , that experience and art ( learned by them whilst they were practisers ) doth supply the imbecillity of their greener years , and since by learning and art , such as are very young do outstrip very far such as are of riper years , and attain to very much exactnesse in the subtilest sciences , why may not application refine them also to a sufficient consistency in merchandizing , in which there are no such mysterious points ? upon which account , even our law has introduced , that advocats , nottars , and others in publick offices , cannot revock what they do in their minority , as was decided , 19. july . 1636. if , say they , the minor was forced to sell his heretage , it was to redeem his person from prison , and freedom is preferable to heretage , because liberty can please without heretage , but heretage signifies nothing to one who wants liberty ; and for this heretage my client gave out his money , by which he had raised himself to a considerable fortune , and being forced by want of this money to quite his trade , he did loose hope of gaining a greater estate , then that which the other sold : but this he did to prefer his friend to his hopes , and so this frendship and relation which the pursuer would make the foundation of a cheat , was indeed the foundation of this favour , and the law presumes , that his cousen would not have cheated him . notwithstanding of all which plausible representations , i humbly conceive , that the minor my client ought not to be tyed by this oath ; and that what i debate in his favours may be the better understood , your lordships will be pleased to consider , that all civil polish'd nations , have in effect resigned so far their liberty to their legislators , that these in their contracts , are to be ruled by those in their statutes : and god almighty is more concerned in the oeconomy and government of the world , then in the observation of privat oaths ; and therefore , we must consider more the force of a law , then of an oath ; and if privat oaths amongst parties could derogat from publick laws , then the publick laws should be absolutely evacuat , and remain as the empty shadowes of what they ought to have been . and from this i infer , that since the law has thought fit to declare all deeds done without the consent of tutors and curators to be null , that no deed done by any minor having curators , can bind him , except he be authoriz'd by their consent . and from the same principle , i likewise infer , that the former distinction made in law , betwixt such deeds as are ipso jure null , and such as are not ipso jure null , but are only reduceable , is so far reasonable , in relation to this contraversie , that though deeds that are ipso jure null be not reduceable , if they be not confirmed by an oath , yet deeds that are ipso jure null , are reducable though sworn ; for in case the deed be ipso jure null , it is reprobated by law , and so is no deed in the construction of law ; and if it be no deed , it cannot be confirmed by an oath , for a confirmation presupposes a pre-existing deed , sed non entis nullae sunt qualitatis nec accidentia ; and so this oath wants here a basis upon which it can be fixt . 2. it were unfit , that what the law has expresly condemned , it should allow others to evite , for it should thus cheat it self out of its own authority , by such indirect courses , et quod directè fieri non licet , nec per ambages fieri licet . in vain were laws to be made , if every privat man might enervat its force , and evite its sanction by such subterfuges ; this were to invite men to break and scorn laws , to allow them to tear off their own yoak , and to place every privat man above the legislator . for , as oaths exacted by magistrats obliege not , when they are contrair to the laws of god ; so the oaths of privat persons obliege not , when they are expresly contrair to the laws of our rulers , who are gods upon earth . and as vows are declared null by god himself , if given by a maid without the consent of her father , so should oaths for the same reason not obliege such as have curators , for these are the parents in law. 3. no oath can be vinculum iniquitatis , the tye of injustice ; but so it is , that where a deed is declared null by the law , that deed is in so far injust ; and to allow a deed that is injust because it is sworn , were to establish injustice by an oath , and to put it in the power of every privat person , to alter the nature of things , and to make that just which is injust . 4. this would disappoint the cares and pains of the civil magistrat ; for , his design being to secure our posterity , because of the imbecillity of their judgment , that would be absolutely eluded , and poor minors would by that same want of judgement and sagacity , for which their deeds are reduceable , be induced to swear , and so the remedy will become effectual , nam eadem facilitate ju●ant qua contrahunt . and since minors cannot be oblieged in their minority , because of their imbecillity , oaths should not bind them , except it could supply that ; and since the law has given them curators , it is just the deeds done by these minors should not be respected in law , since the forms prescribed by law are not observed , nor the reason satisfied whereon it is founded . 5. this would open a door to perjury , for such as could not cheat minors , because of their lesse age , would cheat them by their oaths ; and thus , oaths which should not be given but upon solemn and extraordinary occasions , would become cheap , and would be taken in every ale-house , administrat by every nottar or his servant , and the best of tyes would oftimes be us'd in the most sinfull occasions : and how can such oaths as these obliege , since they want all the three qualities of an oath , and for which , oaths are declared in scripture to be obligator ? and these are , that they should be in truth , in judgement , and in righteousnesse . i know , that every man may renunce what is his own interest , but this maxime holds only where men understand their own interest , but not in minors , who want that ripenesse of judgment , by which their renunciations are sustain'd . and that the oath is obligatory , though not the contract , is but a meer quible , for there is no action arising in common law from an oath , qua tale , bart. ad l. si quis c. de fidejuss . imol. ad c. cum contingat de jure-jur . such an oath oblieges in conscience , but not in law , and though it be the substance in the one , it is but an accident in the other . i need not debate here , that the authentick sacramenta puberum , ascribes only this cogency to oaths which are given tactis sacrosanctis evangeliis , which though it may seem but a solemnity , yet has great force with it , in my opinion ; for solemnities do raise up the attention , and obliege more the swearer to advert to what he is promising : and if witnesses and others come to age , need these advertisments , much more do minors need them , since they are oft overtaken by inadvertence . and as this caution seems not to have been unnecessarily adjected by that excellent law ; so seraphinus and others have required necessarily , that solemnity in such oaths as these , antiqui quo major esset jurisjurandi religio , plerasque adinvenerunt ceremonias , quae jurantibus terrorem ac formidinem incuterent , ann. robert. pag. 188. and swearing by touching somewhat that was sacred , was very old . virgil. tango aras mediosque ignes & numina testor . justin. also , l. 22. relates , that agathocles swore a confederacy with the carthaginians , expositis tactisque ignibus cereis : and by all our old evidents it is clear , that swearing upon the bible or altar , was used in all extraordinar cases . and for the same reason , oaths in writ have been oft-times little respected by lawyers , because the writ is oft-times not read nor considered , and passeth by too transiently to have all the force which a solemn and judicial oath deserves , vid. bart. and l. qui jurasse , ff . de jure-jur . & fachin . contrav . lib. 3. cap. 8. so that we should either not seek the benefit of these laws , else we should make use of the forms and ceremonies which they prescribe . as to the assertory oath , by which the minor swore that he was major , it is answered , that such oaths ought not to be respected furder then as the above-cited laws declare , which is , that these oaths ought to be believ'd , except the contrair can be proven by writ , and that the truth and strength of this probation cannot be taken off , and enervat by witnesses , for a writ is a more binding , and concluding probation then witnesses , who may be mistaken , or may be corrupted . si tamen in instrumento per sacramenti religionem majorem te esse adseverasti , non ignor are debes , exclusum tibi esse in integrum restrictions beneficium , nisi palam , & evidenter ex instrumentorum probatione , per non testium depositiones te fuisse minorem ostenderis . but here it is offered to be proven , by the register of the church-session where my client was baptized , that he was minor the time of the transaction , and by this your lordships may see , how dangerous it were to make such oaths as these binding , and how easily minors may be induced , not only to bind , but to damn themselves , and how little this person deserves , who was the occasion and sollicitour of the perjury : were not this to baffle that sacred tye , by which princes bind their subjects to a secure obedience , by which judges obliege men to reveal the truth , and by which every privat man is secure , when he referreth to his adversars oath , the truth of what is contraverted amongst them . nor can the defender maintain this contract , as entered into by my client , who was a merchant by his profession , since though that may defend such as contract with him , in things relating naturally to his commerce , yet that should not be extended to such contracts as these , wherein my client is bound to sell his heretage at too low a rate , et quae ex necessitate per modum privilegii introducuntur , ultra casus necessarios non extenduntur . lands are not the subject matter of that traffique which the law doth priviledge ; but on the contrar , lands is not allowed to be sold , without the consent and sentence of a judge : nay , and even these qui veniam aetatis à principe obtinuerunt , will be restored against the prejudice sustained by them in selling their heretage , l. 3. c. de his qui veniam aetat . albeit no man could impeterare veniam aetatis , till he was past eighteen , and was proven to be prudent and frugal , l. 2. c. eod . which is all that can be alledged against this minor. nor should our law respect much confinium majoritatis , since they have shortened too much the years of minority , in making it end at twenty one ; whereas , the romans and others who were sooner ripe , and more sagacious then we , extended minority to twenty five : and since our times are more cheating then theirs , it was fit that our minority should have been longer then theirs . but however , both of us agree , that minorennitas computanda est de momento in momentum . to conclude then ( my lords ) sure that opinion in all contraversies should be followed , which may do good , and can do no harm ; and that is to be reprobated , which can do harm , and is not necessar towards the doing what is just . but so it is , that not to restore a minor in such cases as these , may , and will necessarily destroy all minors , who may be over-reached , and cannot be repon'd , because of such oaths ; whereas , such as contract with them , can suffer nothing by such reductions ; for , either the minors with whom they contract , are laes'd , and then they will not be restor'd , and therefore , such as contract with them cannot be prejudg'd : but if they can make it appear that they are prejudged , it will necessarily follow , that the minor is not laes'd , and so the contract will not be lyable to reduction ; and thus these oaths will infallibly prove to be either unnecessar , or unjust . this cause came not to a debate . against forfeitures in absence . xiv . pleading . my lord chancellour , we have subjected to our consideration , an overture , which ought to be seconded by very convincing arguments , before we pass it into a law , seing it innovats a custom , which is as old as our kingdom , and older then our positive laws . and customes , like men , may be thought to have had excellent constitutions , when they last long ; and this act , if past , seems to infer the greatest hazard upon the two highest of our concerns , for such are our lives and fortunes . the old inviolable custom of scotland was , that no probation could be led against absents , either in treason , or any other crime , in any court , save the parliament ; but the only certification in all criminal letters , was the being denunced fugitives ( or out-law'd as the english speak ) which custom hath maintained it self for many hundreds of years , by its own reasonablenesse , without the necessity of being fenced with any other authority : and albeit the parliament did reserve to themselves , a liberty to proceed against traitours , in case of absence , yet they never granted that to any other court ; whereby it clearly appears , that our predecessors have thought that power incommunicable to all such as were not legislators , that procedure being rather a priviledged transgression , then an execution of the law. but it is now craved by this act , that in case of perduellion , and rising in armes against the prince , it shall be lawfull to the justices to lead probation against absents , and forfeit them accordingly ; which seems to me most inconvenient , for these reasons . 1. because the stiles in all courts are equivalent to fundamentals , and by an expresse act of parliament with us , stiles are not to be altered : but so it is , there is no stile in the justice court , bearing any other certification against absents , but the being denunced fugitives . 2. there was never any instances of it since the foundation of the justice court , and a negative practique being so old and uniform as this , is most binding , especially where all the conveniences , reasons and advantages which are now prest , were then obvious ; our predecessors were sure as loyal as we , and let us not be more cruel then they were . 3. the old custom was founded upon most convincing reasons ; for when persons are proceeded against in absence , they want the benefit of exculpation , for proving those just defences which are of so great consequence to them , and their posterity ; such as are , that though they were present upon the place , yet they were taken prisoners , and carried there , and were only going loose upon parroll , or fell accidentally amongst those rebells , who had gathered themselves together , or went there by a command from some of his majesties officers , for reclaiming those who were in armes , with many other defences which ( the party being absent ) none can know , and though known , none dare propone , it being a maxime in our law , that none dare propone any thing to defend one , who being pursued for treason is absent . another great disadvantage , under which these will fall who are pursued in absence , will be , that such witnesses may be received against them , as are lyable to just exceptions , and whom they would decline , if they were present ; which objections likewayes , none know , nor dare propone ; and it is likewayes very well known , that there are many witnesses , who will depone upon suggestion , very many things which they durst not assert , if they were confronted with the party against whom they were to depone , being sometimes overawed , and sometimes through pitty driven to speak only truth , when they look upon his countenance who is to live , or die by their depositions . upon which accompt , confrontation of witnesses and parties hath , in the civil law , been used as a successful remedy , and in ours the witnesses are ordain'd to look upon the pannells face when they depone . and albeit it may seem , that there is little hazard of a probation , where the case is so notour , as that of rising in armes ; yet , the mistake lyes in this , that though the rising in armes be notour , it may be it is not notour who were present , and the persons may be doubtfull , though not the thing it self . a third great inconvenience is , that whereas those who are present may by interrogators , restrict , or explain , what seem'd disadvantageous in the deposition of such as depone against them , they will by this innovation , forfeit this advantage amongst other losses . 4. no other nation receives concluding probation against absents ; many instances whereof might be given , but i shall satisfie my self with that of freisland , cited by sand. lib. 5. def . 2. praxis nostra habet ut criminosus si fuga se substraxerit , ad instantiam procuratoris generalis citetur , & si praefixa die non comparet , fiducialiter bona in contumaciae paenam annotantur : which is exactly our custom ; and by the civil law , tantum annotabantur bona rei non comparentis , ita ut si post annum venerit , & satis dederit de stando juri , ea recuperat si non , bona perdit non tamen de delicto habetur pro confesso , l. 1. & gloss . l. pen. & fin . ff . de requiren . reis . which title begins thus , divi-fratres rescripserunt ne quis absens puniatur , & hoc jure utimur , ne absentes damnentur . and hottoman tells us , that majestatis crimen in foro apud suum praetorem , perduellio vero à populo romano comitiis centuriatis in campo martis judicabatur ; which was much more reasonable , then our present overture , seing the greater the crime is , it should be the more solemnly , and slowly judg'd : from which procedure of the romans in perduellion , it seems our old practique of judging only absents in the matter of treason by a parliament hath taken its origine , for comitiae centuriae was to them , what a parliament is to us . i might here likewayes , alledge the authority of mathaeus , the learnedst civilian who ever wrote upon that subject , tit . 2. num . 6. whose words are , denique cum leges vetant absentem damnari , crimen perduellionis non excipiunt erit igitur & hic observandum , quod in aliis crimintbus , ut absens requirendus adnotetur , & bona obsignentur , publicentur denique , si intra annum non responderit . l. absentem , 5. c. de poems . l. absentem . 6. c. de accusat . l. ult . d. de requir . vel abs . damn . nam quanquam perduellio gravissimum crimen est , videndum tamen ne in occasionem sevitiae atque calumnie habeatur ; & pag. 371. dicit math. falsum esse absentem in hoc crimine posse damnari , nec ullo juris loco excipi crimen majestatis . dicitque supradictam extravagantem constitutionem , nullam authoritatem obtinere apud interpretes juris civilis . 5. by the 90. act. parl. 11. ia. 6. it is most justly statute , that all the probation should be led in presence of the pannal , and the assyze , which showes clearly , that our law hath been alwayes jealous of probation led in absence , and that probation is only to be led in presence . this innovation is recommended to us upon these reasons ; 1. that these who are contumacious , and flee from justice , should be in no better condition then those who appear , and they cannot complain of any of the foresaid disadvantages , seing these are occasioned by their own absence and fault . to which it is answered , that a person who is pursued for treason may be absent , not upon the accompt of any guilt , but because the citation never came to his knowledge ; as if he be at the time abroad in forraign countryes , where citations at the mercat-crosse of edinburgh , and peer and shore of leith ( which is all our law allowes ) seldom reach ; and sometimes the persons summoned , may be either sick , or in prison , and not be able to appear , or being lyable to other accusations , or fearing rather the present influence of some enemies , then their own guilt , dare not . for though treason , as the most comprehensive of all other crimes to us , be of all others most abominated , when proven ; yet , of all other crimes , most innocents are , by either malice or design oftest ensnared , upon pretext rather , then by the guilt of treason . for , as lipsius observes of the times wherein tacitus wrote , fraequentatae tunc temporis accusationes majestatis , unicum crimen eorum qui crimine vacabant . tertullian in his apol . sayes , non licere indefensos omnino damnari , & à carolo magno institutu est , lib. 7. cap. 145. ne quis absens in causa capitali damnetur . plutarch in alcibiades life , makes alcibiades to have given this prudent answer , to one who challenged him for not appearing to defend himself , cetera ( inquit ) omnia libenter , sed de capite meo , ne matri quidem , ne forte is , pro albo atrum calculum imprudenter injiciat . notat . & liberius pontifex romanus constantio imperatori , judicem non posse , absente reo , de crimine ejus judicare , nisi aut iniquus judex sit , aut privato odio saevit . hist. tripart . l. 5. cap. 16. seneca saith , lib. 6. de beneficiis , cap. 38. quantum existimes tormentum , etiamsi servatus fuero trepidasse , etiamsi absolutus fuero , causam dixisse . and as cicero very well observes , these who are accused before any judge for life , consider oftner what that judge may do , then what in justice he ought to do , oratione pro quintio . and thus we find , that athanasius and chrysostom would not appear at councils , to which they were cited , albeit they feared their judges more then their guilt , niceph. lib. 8. c. 49. it were therefore very hard in any of these cases , to forfeit an absent of his property , seing in these , innocence and absence are very compatible . nor doth his majesty suffer great losse by this , as is urged ; for if he who is pursued for treason compear not , he is denunced fugitive , and by that denunciation , his majesty possesses his whole estate , till he die , or compear ; and after death , he may be forfeit . the second argument is , by the 69. act. par. 6. ia. 5. traitours may be forfeit after their death , in which case they are absent , and want all the advantages above related . but to this the answer is , that the law is so just , and mercifull , that after a person is denunced fugitive in the case of treason , it allowes him all the dayes of his life to purge his contumacy , by appearing to reclaim his innocence ; and it never dispaires of the one , till the other be elapsed : and when it proceeds against any man to forfeiture after his death , it ordains the nearest of kin to be called to exculpat him , by proponing defences , or objections against the witnesses , and for doing every thing els which is usual in such cases , or which might have been done by the defunct himself , whereas he who is pursued in his own lifetime , cannot defend after that manner , as said is . after death likewayes , death it self , which is the greatest half of the punishment , is over , and there is not so great hazard , as there is in his case , who is forfeit dureing life , who is by that sentence ( without any possibility of hearing ) execute immediatly upon his being apprehended . after death also , malice , and design ordinarily ceases , so that the errors or prejudices of either pursuer or witnesse are not so much to be feared . the third argument is , that probation may perish in the mean time , if it cannot be received till after death . to which it is answered , 1. that this argument , aut nihil , aut nimium probat ; for , upon this account , pursutes should be sustain'd for all other absents , this prejudice being common to all : but , 2. it is safer , that a just probation should perish , then that a suspected one should be received ; and this one inconven●ence should not weigh down the many , which are laid in the ballance of the other side . parliaments are ordinar , and necessa●y a●t●r publick rebellions , wherein that horrid crime may receive its legal , as well as its just punishment ; or if they meet not , this may be otherwayes remedied ; for , probation may be led ad futuram rei memoriam , though the party be absent , reserving to him all his other defences , by which the kings right may be preserved , and the lieges rights not prejudged , and of all probations , that can least perish , which is to be led in the case of publick rising in armes . the fourth argument is , that the civil law admits forfeiture in absence , in the case of perduellion ( for so the common law names that kind of treason which is committed against the prince , or state ) and our criminal law being founded upon the civil law , ought in this , as in most other cases , to be squared by it . to which my answer is , that there is no warrand for that assertion from the law of the romans ; for , by that law , bona tantum annotabantur , as hath been said , in place whereof , banna hodie locum obtinent , which is equivalent to our denunciations . but because citations of the civil law , would resemble pedantry too much , i shall recommend to such as doubt this , the 16. verse , 25. chap. of the acts , where festus , a great roman lawyer , sure , ( as all their presidents of the provinces were ) tells us , that it is not the manner of the romans to deliver any man to die , before he who is the accused , have the accuser face to face , and be heard to defend himself concerning the crime laid against him . i confesse , that forfeiture in absence is allowed per extravag . henrici septimi ( and it is well called an extravagant constitution ) but that is accompted no part of the civil law , and if we follow its model , we ought to allow forfeiture in absence in all points of treason , as this doth ; and even that constitution acknowledges , that this was not allowed by the romans , and if it had , this constitution had been unnecessar , as it is now unreasonable . and i remember , that app. alex. in his third book of the civil warrs , relates an eloquent harrangue made by lucius piso , in favous of antonius , maintaining , that no person who is absent could be condemned , though upon probation , which was accordingly found by the roman senate . and though our parliaments use to proceed against absents , in case of treason ; yet , that is so seldom , and solemnly done , that there is little hazard to the pannals , and every man hath still some friends in so great a number , who may defend him ; nor is it probable that the parliament , who are the great curators of the common-wealth , and who are so much entrusted by us , as to have reposed upon them the legislative power , will prejudge any privat party ; remembering it may be their case one day , which is now the pannals : and that being a supream court , is not stinted to follow a probation which is suspect , though privat assizers might , for fear of an assize of error ; which makes a vast difference and disparity of reason . let us then ( my lord ) consult , the interest of our posterity , which is a generous kind of self-defence : for the italian proverb observes well , that it is better to live in countries which are barren , then in countries where there are rigid laws . let us guard against what is cruel , as we wish what is just ; and let us lawfully be carefull now of these our lives ; and fortunes , of which we have been too often unnecessarily anxious . god himself would not condemne adam , till he heard him , and though he knew the sins of sodom , and gomorrah , he would not pronunce sentence against them , till he went down and saw their abominations . let us not then make snares in place of laws , and whilest we study only to punish such as are traitors , let us not hazard the innocence of such as are loyal subjects . the learned reasons adduc'd for this overture , and the opinion of the session , prevail'd against this discourse ; and the parliament did ordain , that absents might be proceeded against in the justice-court , for publick rising in armes . for the late marquess of argyl , immediatly before his case was advised . xv. pleading . whether passive complyance in publick rebellions , be punishable as treason . my lord chancellor , i wish it may be the last misfortune of my noble client , that he should be now abandoned to the patronage of so weak a pleader as i am , whose unripenesse both in years and experience , may , and will take from me that confidence , and from your lordships that respect , which were requisit in an affair of this import . in our former debate , which is now closed , we contended from the principles of strict and municipal law : but here i shall endeavour to perswade your lordships , from the principles of equity , reason , conveniency and the custom of nations ; which is the more proper way of debate before a parliament , who make laws , but are not tyed by them , and who in making laws , consider what is fit and equitable , and then ordain what shall be law and justice ; and if your lordships consider strict law in this case , it were in vain for the loyalest subjects , who liv'd in these three kingdoms during those late confusions and rebellions , to defend his own actions by that rule : for , since intercommuning with traitors , concealing of treason , and acknowledging their authority , are by strict law , in regular times , undenyable acts of treason , i am no more to debate abstractly my clients innocence as to these , for who amongst us did not share in that guilt ? all did pay sesse , all did raise summonds in the protectors name , we were all forc'd to be the idle witnesses of their treasons ; and therefore , i shall only contend , that in such irregular times as these were , wherein law it self was banisht with our prince , meer compliance can amount to no crime in him , and that as to this he lyes under no singular guilt ; especially , seing his majesty has , by a letter under his royal hand , declar'd , that he will not have his advocat insist against him , for what was done by him , or any els , preceeding the year , 1651. ( in which time he was only an eminent actor ) having retired himself from all publick imployments under cromwels usurpation , being known for nothing all that time , but a sufferer , and being forc'd by self preservation to do those things for which he is now accused , which being undenyably acknowledged by all the nation , cannot but recommend these few particulars , which i am now to offer for him . complyance ( as the very word imports ) is only a passive connivance , et praesupponit crimen in suo esse hactenus constitutum ; and in law , when a multitude offend ( as in our case ) the contrivers , and such as were most active , are , and should only be punish'd , detrahendum est severitati ubi multorum hominum strages jacet : and therefore , this noble person being acknowledged to be none of the first plotters , nor having been singular amongst that vast multitude of complyers , cannot be brought in amongst such as ought to be punished . for , albeit where many may commit a crime , there the multitude of offenders should highten the punishment ; yet , where the crime is already commited collectively by a multitude , there the number of offenders takes off the guilt , and in such cases , none should be punished ( saith aflictus ) but in flagranti & recenti crimine ( or with rid hand , as our law terms it ) dum durat crimen , nec sine quorundam nece extingui potest seditio , or where the renewing of the crime is justly to be feared ; for punishments being of their own nature inflicted , not for what is past ( seing that cannot be remeeded ) but for example in the future , certainly where the rebellion is extinguished , and needs no more be feared , as in our case , ( god be praised ) it were cruelty to punish ordinar complyers . it is remarkable , that in the 13. 14. 15. acts of the 5. parliament of queen mary , such scots-men as did ride with english-men , even where her majesties authority stood in its integrity , are ordain'd only to be lyable for what skaith they did to scots men who served the country , and that they being charged , to leave assurance with english-men , and disobeying , should have no action againg true scots-men for any wrong done to them . if then such lenity was us'd , and such commiseration extended , to such as were involved in a publick opposition to lawfull and standing authority , and in a compliance with the english , who were at that time , born and sworn enemies both to this crown , and countrey ; what may such expect as complyed only when no visible authority was able to protect such , who were forc'd to comply , not out of any design to defend usurpation , but rather out of a design to preserve themselves for doing his majesty furder service ? and as in the body-natural , the ordinar rules of physick take no place , when there is a violent and universal conflagration of humors ; so the ordinar rules of law should have as little place in the body-politick , when a whole nation have run themselves head-long into a common distraction . to which purpose i cannot but represent to your lordship , that excellent law , made in the reign of henry the seventh of england , and with consent of that excellent prince , wherein it was enacted , that no subject should be guilty of treason , for obeying one who was called king , though known to be an usurper , because the people do there not rebell , but submit . necessity may likewise be adduc'd for extenuating this complyance , which is therefore said to have no law , because it is punished by none ; without complying at that time , no man could entertain his dear wife , or sweet children , this only kept men from starving , by it only men could preserve their ancient estates , and satisfie their debts , which in honour and conscience they were bound to pay , and without it , so eminent a person as the marquess of argyl , and so much eyed by these rebells , could not otherwise secure his life against the snares were dayly laid for it ; and so this complyance did in effect resolve in a self-defence , which inculpata tutela , seing it can exempt a man from murder , and these other crimes that are contrair to the law of nature , it should much more defend against the crime of treason , which is only punished , because it is destructive to the government of our superiours , and statutes of our country ; and since crimes are only punishable , because they destroy society and commerce , how can this complyance be punished , which was necessar for both these ? mans will is naturally so frail , and man because of that frailty so miserable a creature , that to punish even where his will is straight , were to add affliction to the afflicted , the want of this will defend mad men against paricide , and the degrees of this distinguisheth slaughter from murder ; and in the acts of parliament whereupon the lybel as to compliance is founded , it is requisite , that the compliance be voluntar , thus in the 37 act , 2. parliament , ia. 1. it is statute , that no man will●ully receipt rebels , and by the 205. act , 14. par. ia. 6. these who apprehend not such as mis-represent the king , are as guilty as the leasing-makers , if it be in their power to apprehend them , as the act very well adds . likeas , by the 144. act , 12. par. ia. 6. the lieges are only prohibited to intercommune with such traitors as they might crub ; for that act , as it forbids all commerce with rebels , so it commands all the subjects to advertise his majesty of their residence , and to apprehend them ; whereby it is clear , that this last act is only to have vigour , when the authority of the soveraign stands in force , & per argumentum à contrario sensu , seems to excuse such as submit to traitors , when there is either nothing to be advertised , or when advertisments of that nature , are either imprestable , or at least unprofitable , as in our late troubles , at which time , the residence of these rebels was notour , and all correspondence betwixt the king and his people , was daily betrayed and intercepted . consonant to which , is that excellent law , l. 2. ff : de receptatoribus , where it is said , that ideo puniuntur receptatores , quia cum apprehendere potuerunt dimiserunt : and bald. ad l. delictis , ff . de noxal . act . is most expresse , that receptans rebelles , non voluntarie , sed coacte , quia sunt plures rebelles simul : & eos expellere non potest sine suo periculo , non punitur aliqua paena . thus likewise in the statutes of king william , cap. 7 § . 2. it is said , pro posse suo malefactores ad justitiam adducent , & pro posse suo justitiarios terrae manu tenebunt . and § . 5. it is ordain'd , quod magistratus pro posse suo auxiliantes erunt domino regiad inquirendum malefactores , & ad vindictam de illis capiendam . by all which it is clear , that not only should complyance be voluntar before it be criminal , but that likewise it must be a complyance against lawfull authority , able to protect such as revolt from it . i remember in anno , 1635. james gordoun being challenged for corresponding with alexander leith , and nathaniel gordoun , declared traitors for burning the house of frendraught , they were assoylzied , because the intercommuning challenged was not lybell'd to have been-voluntar , and thereafter the assize who assoilzied them , having been pursued for wilfull error for absolving as said is , they were likewise absolved from that process of error , in the which process , that same argument was urg'd , but not so strong in point of fact as in our case ; and because the design is that which differences the actions of men ( propositum crimina distinguit ) and seing designs being the hid acts of the mind , are only guessed at by the concomitant and exterior circumstances , i shall only intreat your lordship to consider these few presumptions , which being joyned , may in my apprehension , vindicat this noble person from the design of voluntar complyance . 1. he is descended from a stock of of predecessors , whose blood hath prescribed by an immemorial possession , the title of eminent loyalty , and that same law which presumes , that the blood and posterity of traitors is infected with a desire to revenge the just death of their predecessors , and an inclination to propagate their crimes , doth likewise presume loyalty and a desire to be thankfull , in the the children of such as have received great favours , and performed great services , to such as have been the benefactors . 2. these with whom he is said to comply , were known and avowed enemies to nobility , had quite exterminated in england , and begun to exterminat in scotland , all memory of nobility , and badges of honour ; so that in this complyance , he must be thought to have plotted against his own interest : nor can i see what advantage he could expect from a common-weath , which valued , nor preferr'd none but souldiers , a trade , which suited neither with his breeding , nor years . 3. they were enemies to presbyterian government , of which he has alwayes shewed himself so tenacious , and of all governments they did most abominat that one , for which he had exposed himself to so many hazards . 4. that usurper had never oblieged him neither by reward , nor complement . 5. he was sworn their enemy both in parliament and councel , and charity as well as law , presumes against perjury . 6. he was pursued by them most unjustly , both at councel of war , and elsewhere , and was known to have been hated extreamly by their commander in chief , for complyance with whom he is now challenged : by all which it is most improbable , that his lordship would have linked himself with that abominable crew of miscreants , by whom he might losse much , but gain nothing . his majesty hath recommended this case to be judg'd by your lordships , whom he knew the iniquity of these times did ( though without any cordial assent ) involve in the same guilt , and albeit it were a guilt , there will be hardly any found to cast the first stone at him ; and his majesty hath not delivered him up to be proceeded against , till by his act of indempnity ( granted even to such as were eminently engaged in the contrivance and execution of the most horrid plots , that were perpetrat against him ) he had first cast a copy to your lordships of that meek procedure which he allowes , and not till he had ( even notwithstanding of their compliance ) preferr'd some to be councellours , some to titles of honour , and many to employments of great trust. and were it not unjust , that he should suffer for acts of frailty ; when the ring-leaders , and malicious plotters pass unpunished ? and were it not unkindness to our countrey , to have it thought that we had subjects who deserved worse , then lambert , lintil , and others ? i shall to all this add , that the guilt charg'd upon this noble person , is such as was thought prudence in those who were most loyal , and this complyance was so customary , and so universal , that it was thought no more a crime , then the living in scotland was criminal : whereas in law , qui sequitur comunem errorem , non delinquit , & consuetudo facit actum de sua natur a punibilem impunibilem , & excusat à paena ordinaria , & extraordinaria , farin , quest. 85. de pen. temperandis . custom is a second nature , and example a second law , and he who obeys them , obeys quasi legem naturae , & patriae : and in all civil wars and uproars , especially where such have lasted for a considerable time , as in portugal , france , germany , &c. none have been punished for mingling with the multitude , if they did not pervert them . and if we consult the ancients , when justice and equity were not yet opprest by interest , and design , we will find , that julian the emperor having only punished the chief rebells , residui omnes abierunt innoxii , quos in certaminum rabiem necessitas aegerat , non voluntas . and themistius praises valens the emperor , because non paena dignos existimavit , qui bellum non suaserunt , sed qui abrepti sunt à morum impetu , & qui succubuerunt ei qui jam rerum potiri videbatur . and joseph . lib. 5. tells us , that in such universal rebellions , titus used only to punish the ring-leaders , unum criminis ducem puniebat reipsa , multitudinem vero , sola verborum increpatione , seditionum concitatores , & duces factionum dicuntur , l. 16. ff . quando appell . it is likewise universally received by the law of nations , that such as submit after universal rebellions , either upon conditions , or who put themselves in the mercy of their magistrats , ( as grotius doth most wisely observe , lib. 3. cap. 11. ) are still secure , and therefore , since the marquess did immediatly upon his majesties return , go to court , to attend his majesty amongst his other loyal subjects , judging from the dictats of his own conscience , that he was in the same case with your lordships his present judges , it were strange that he should fall , when others are in great multitudes pardoned , who fled out of a consciousness to their own guilt , especially since he offered to prove , that he testified to many hundreds during his majesties absence , a deep sense of that misfortune , and an absolute aversion from that present usurpation ; and that he assisted his majesties friends , both with money and advice : and who would think , that in equity he ought to dye , by these whom he wish'd restor'd , and for which restoration , he prayed daily in his family ; and die for complying with those , whose ruine he beg'd daily upon his knees ? and though he did not joyn with some who were commissionated by his majesty , yet that proceeded not in him , more then in others , from any unkindnesse to the cause which he alwayes allowed , as can be prov'd both by themselves and others , but from a perswasion he had , that such courses as they took , would ruine the design which was proposed ; and any thing he did in opposition to them , was to defend himself and his poor countrey , against injuries , which were designed against him upon privat quarrels , as he still offered to prove . if we consider that same interest of nations , for which treason is punishable , we will find it unfit to punish ordinar complyers after a tumult is quieted ; for if every man that were involv'd in the guilt , did think that he were punishable , all would be forc'd pertinaciously to continue the rebellion they had begun , and to expect from successe only , that impunity which the law denyed : and thus your lordships should make all future rebellions to be both cruel , and perpetual . i come now to the probation adduced by his majesties advocat , for proving this compliance , and in order thereto , i shall lay before your lordships these following considerations ; 1. that the weaker the relevancy is , the probation should be proportionably the stronger , gravatus in uno , levandus in alio . 2. that in criminals , probation should be very convincing . 3. the more illustrious the pannel is , the proof should be so much the more pungent , because the law presumes noble persons less inclin'd to commit crimes then others . 4. where there is no penury of witnesses , probation should be so much the clearer , because the law presumes that all is known , which can be known : but so it is in this case , sixty witnesses have been led ( albeit our law allowes only 25 in criminals ) and a long time hath been taken , and many invitations given to all persons , in all corners , to come and depone , and it is believed by most of these silly persons , that it will be most acceptable to his majesty , and may procure a reward to themselves , that they depone against his lordship ; which remembers me of these slaves in juvenal , who at sejanus fall , invited one another to offer indignities to his dead body , dum jacet in ripa calcemus caesaris hostem . 5. the law requires in these attrocious crimes , witnesses omni exceptioni majores , and these are in law expon'd to be such as the jealoufie of the greatest enemy needs not suspect ; whereas most of all the witnesses adduced , are either the servants of such as have been debarred themselves from witnessing , for fear of partiality , or the usurpers souldiers , who have so oft foresworn solemnly their alledgeance to their prince , that no judge can rely upon their depositions ; for it is presumable , that semel perjurus , will be semper perjurus : and albeit his majesty , by his indempnity , hath vail'd their crimes , yet he hath not taken them away , as is clear , per 〈◊〉 . ffin . c. de generali abolitione ; the excellent words run thus , indulgentia ( patres conscripti ) quos liberat , not at , nec infamiam criminis toll it , sed paenae gratiam facit ; whence i argue , that infamous persons cannot be witnesses , but so it is , that perjured persons ( non abstante amnestia & remissione ) are infamous by the foresaid law ; the criminal registers likewise tells us , that one who had been condemned for forging of false writes , was refused to be received as a witness in frendraughts process , albeit he had obtained a remission ; and certainly , perjury in the crime of treason ( whereof these soudiers are guilty ) is a more odious crime , then that of forging of false writes . 6. i hope your lordships will consider , that most of what these witnesses have deponed , are speeches , which the best of men may have forgot , after so long a time , and in a time when both men and manners have been much confounded , by the strangeness and number of interveening accidents : most of these witnesses have deponed upon that which fell under sense , and so have acted rather the parts of judges , then witnesses . thus some depones , that the marquess's boats did bring the english up lochfine , and that they could not have got up without his assistance , which last part , as it is negative , so is an act of the judgement , and not the object of any exterior sense , and they presume they had an order from the marquess , because else they durst not have gone , and is not this to imagine , and not to depone ? 7. most of them are persons , whom the d●ttay acknowledged to have been wronged by the marquess ; most of these poor persons who have deponed , were to my certain knowledge , so confounded by appearing before a parliament , and by interrogators , that they scarce knew what to answer . 8. not any two of these numerous witnesses concurr in their depositions , all vary , and most do clash , and are either vaccillantes , or singulares ; neither can the deposition of one witnesse , as to one particular circumstance of a crime , and the deposition of another as to another , be joyn'd for making up a clear probation , for there the judge is certified of neither of these circumstances , seeing one witness is none , whereas proving witnesses should be contestes ; and if a pannel were accused of moe crimes in one lybel , the deposition of one witness to prove one , and of another to prove another of these crimes , would not prove the lybel ; so neither can the singular deposition of two witnesses upon different points , prove one crime . such spelling is not lawfull in probation , and this is that which the doctors call singularitas diversificativa , which in law hinders conjunction in probationibus , as well as singularitas obstitativa , alexand. consil . 13. hippol. in sua praxi , § . diligenter num . 149. farin . tract . de oppos . contradicta . testium . 9. the law makes a difference , as to the probation betwixt perduellion , or open treason , in which they require most convincing probation , and in conspiracies or occult crimes , in which the rigour of probation is remitted , because the possibility of proving is much restricted , in respect of the clandestinesse wherewith such conspirations are managed ; and therefore , seing in this case the acts to be prov'd were committed publickly , such as joyning in open hostility with the usurpers , assisting at their proclamations , levying forces against his majesties generals ; certainly the probation should be most illative of what is alledged , and the provers should be omni exceptione majores . i must tell you my lords , that some have been so unjust to you , as to fear , that though the probation be not concluding , that yet ye will believe , to the great disadvantage of my noble client , the unsure deposition of that as foul , as wyde-mouthed witnesse , publick brute and common fame , which as it is more unstable then water , so like water it represents the straightest objects as crooked to our sense ; and that others of you retain still some of the old prejudices which our civil and intestine discords , did raise in you against him , during these late troubles : but i hope , generosity and conscience will easily restrain such unwarrantable principles , in persons who are by birth , or election , worthy to be supream judges of the kingdom of scotland . it is unmanly to destroy your enemy unarmed , but unchristian when you represent god as judges ; for then you endeavour to make him a murderer ; and in my judgment , he revenges himself but meanly , who to ruine his enemy , destroyes his own soul , and tashes his honour . my lords , as law oblieges you to absolve this noble person , so your interest should perswade you to it . what is now intented against him , may be intended against you ; and your sentence will make that a crime in all complyers , which was before but an error and a frailty ; your royal master may with our saviour then say to you , thou cruel servant , i will condemn thee out of thine own mouth : or , if your lordships be pardon'd , he may say to you as his master said to the other , sure i did pardon thee , why wast thou so cruel to thy fellow servant ? but , not only may this prove a snare to your lordships , but to your posterity . who in this kingdom can sleep securely this night , if this noble person be condemned for a complyance , since the act of indempnity is not yet past ? and albeit his majesties clemency be unparallel'd , yet it is hard to have our lives hung at a may-be , and whilst we have a sentence-condemnator standing against us . phalaris was burnt in his own bull : and it is remarkable , that he who first brought in the maiden , did himself suffer by it . i do therefore humbly beg , that since this process was intented upon informations given to his majesty , of the marquess's being very extraordinarily active for the usurpers , that your lordships would transmit the process as it now stands to his majesty , that thereby he may have a fair occasion to give a generous testimony of his clemency , that the people may be secured against all jealousies and fears , and that your lordships may be rescued from so invidious a tryal . for maevia , accused of witchcraft . xvi . pleading . i am not of their opinion , who deny that there are witches , though i think them not numerous ; and though i believe that some are suffer'd by providence , to the end that the being of spirits may not be deny'd ; yet i cannot think , that our saviour , who came to dispossesse the devil , who wrought moe miracles in his own time , upon possest persons , then upon any else , at whose first appearances the oracles grew dumb , and all the devils forsook their temples ; and who promised , john 12. that the princes of this world was now to be cast out , would yet suffer him to reign like a soveraign , as our fabulous representations would now perswade us . this person for whom i appear , stands endicted as a witch , upon several articles , the first whereof is , that she did lay on a disease upon a. b. by using a charm. 2. that she took it off by another . 3. that it is deponed by two penitent witches , that she and they did flee as doves to the meeting place of witches . as to the imposing or taking off diseases by charmes , i conceive it is undenyable , that there are many diseases whereof the cures , as well as the causes , are unknown to us ; nature is very subtile in its operations , and we very ignorant in our inquiries ; from the conjuncti●n of which two , arises the many errors and mistakes , we commit in our reflections upon the productions of nature : to differ then from one another , because of these errors , is sufferable , though to be regrated ; but to kill one another , because we cannot comprehend the reason of what each other do , is the effect of a terrible distraction ; and if this were allow'd , the most learned should still be in greatest danger , because they do oftimes find mysteries which astonish the ignorant ; and this should give occasion to the learned to forbear deep searches into natural mysteries , lest they should loss their life in gaining knowledge , and to persecute one another : for every physitian or mathematician , who is emulous of another , but cannot comprehend what his rival doth , would immediatly make him passe for a wizard . it is natural for men to think that to be above the reach of nature , which is above theirs . if this principle had taken place amongst our predecessors , who durst have us'd the adamant ? for certainly , nothing looks liker a charm , or spell , then to see a stone draw iron ; and men are become now so wise , as to laugh at these who burnt a bishop , for alledging the world was round , so blind and cruel a thing is ignorance : and if this principle , of believing nothing whereof we do not see a cause , were admitted , we may come to doubt , whether the curing of the kings evil by the touch of a monarch , may not be likewise called charming . this then being generally premised , to curb the over-forwardnesse of m●nkind , it is alledged , that the lybel is not relevant , in so far as it is founded upon my clients having threatned to do her neighbour an evil turn , that she went in to her house , and whispered something into her ear , whereupon she immediatly distracted : for , though threatning , when mischief followes , hath been too much laid weight upon by us , yet the law hath required , that many particulars should concurre , ere this be sustained , as that the person who threatned did ordinarily use to threaten , and that mischief constantly followed her threatnings , minae ejus quae jolita est minas exequi , that these threatnings appeared rather to be the product of a settled revenge , then of a boiling and airie choller , which doth oftimes , especially in women , occasion very inconsiderat extravagancies . 2. it is required , that the threatnings were specifick , as if she had promised that she should cause her distract , and the distraction accordingly followed : but it were too lax , to ascribe every accident to a general threatning , as is clear by dallrio , lib. 5. sect . 3. lawyers likewise consider , if the occasion of the quarrel was so great , as might have provockt to so a cruel a revenge as that which was taken ; whereas here the occasion was very mean , not exceeding two pence . and though all these do concurre , yet farin . quaest. 5. num . 37. acknowledges , that these are not sufficient to infer the crime of witchcraft , but only to load the person accused with a severe presumption , or to infer an arbitrary punishment ; and in the process against katharine oswald , the 11. of november , 1629. those threatnings , though the effect followed , were not found sufficient to infer witchcraft , but only to be punishable tanquam crimen in suo genere , that is to say , as an unallowable and scandalous kind of railing . the second defence against this article is , that it is not relevant to lybel , that the malefice was occasioned by my client , except it were condescended by what means it was occasioned ; for in law , when i am said to have produced any effect , there must be a necessary contingency shewed betwixt what i did , and what followed , for else , the very looking upon her might have been said to have been a cause , and when si knesses are alledged to have been occasioned by witches , the ordinar signs given , are , that the disease be in it self such as cannot be occasioned by nature , as the vomiting up of nailes , glasses , and other extraordinar things ; that the person maleficiat do go in an instant , from one extremity to another ; as from being extreamly weak , to be immediatly extreamly strong ; or use extraordinar motions , which cannot be occasioned by nature , as d. autum . in his discourse of witchcraft doth most learnedly observe . but so it is , that neither of those can be observed here ; for distraction is a very natural disease , and has oftimes fallen upon a man in an instant , especially upon an excesse of fear ; and who knows , but this woman , who by her sex and humour , is known to be very fearfull , might have been so surprized at my clients coming into her , after the threatning , that this excesse of fear might have thrown her into that distraction , under which she now labours ; and yet my client might have had no influence upon her as the cause , but as the occasion only of this her distemper . all conclusions in criminal cases should be very clearly inferr'd , since the crime is so improbable , and the conclusion so severe . and therefore , lawyers are of opinion , that if the inferences be not demonstrative , and undenyable , conclusio semper debet sequi debiliorem partem , that which but may be , may not be , and lawyers do constantly conclude , that we must only conclude that ●n crimes to have been done , which could not but have been done . and who can say , that necessarily this was done by her here , which could not but occasion this distaction , and therefore , perkins , cap. 6. do's assert , that no malefice can be a sufficient ground to condemn a witch , except she either confess , o● that it be proven by two famous witnesses , that she used means that might have produc'd that effect . and though where charms and other means expressly discharg'd are used , these unlawful means are by the judge repute , as if these means might have been effectual , in odium illiciti , and that the users have only themselves to blame in that case , who would use these charms , spells , and incantations , of which the law is jealous : yet where none of these are used , but a simple whisper , the effect in that case cannot be said to have flow'd from it , nor do's any severe presumption lye against a thing that is ordinar . and bodin . lib. 4. concludes , that in capitali judicio ex praesumpti onibus veneficas non esse condemnandas● , ut si sagae deprehendantur egredientes ex ovili cum ossibus , bufonibus , vel aliis instrumentis magicis instructae licet oves statim moriantur . all conclusions must be necessar or presumptive ; but so it is , that this conclusion is not necessar , since all these remedies might have been used , and yet the user might have been innocent : for , a necessar conclusion is à qua veritas abesse non p●test ; and if this inference be only presumptive , it is as undenyable , that witchcraft cannot be inferr'd from such a presumptive conclusion , as is clear by farin . quaest . 36. num . 11. perkins , bodin and others above-cited : and if it were otherwise , judges might condemn upon guessing or malice , and so moe would be in danger to die by injustice , then by witchcraft ; and may you not as well punish such as stay bleeding by applying a stone , or who prevent abortions by gliding the woman with a belt , now much in fashon ? and therefore it is very remarkable , that by the 73. act , 9. par. queen mary , witchcraft , sorcery , negromancy , and sicklike arts for abusing the people , are only forbiden ; nor can it be subsumed that any art , or exterior thing , whereby people use to be abused , were here used , and therefore this article cannot be said to fall under the prohibition of the act of parliament . the second article is , that my client did cure the said person whom she had formerly distracted , by ●pplying a plantane leaf to the left side of her head ; and binding a paper to her wrest , upon which was write the name of jesus . which being done by her who was an ignorant person , being done to the person who formerly distracted upon her whisper , and the cure being perfected in lesse time , then nature uses to take for composing such gerneral and horrid distempers , might necessarily infer , that this cure was performed by witchcraft . against which article , it is alledged , that the conclusion here should demonstrat , that necessarily this cure was performed by no natural cause , whereas the mean here used , viz. the applying of a plantane leaf , is a natural thing , and may cure in a natural way , it being known that there is nothing so cold as a plantane leaf , and so it might have been very fit for curing a distraction , which is the most malignant and burning of all feaverish distempers . or who knows , but that this distraction having been occasioned by the excessive fear she had of my clients revenge , but that how soon she was reconciled to her , and that she had by the same strength of fancy which made her sick , conceived that she would likewise restore her against that sicknesse , her distraction might have abaited with her fear ? 2. the law-givers having punished crimes , because these crimes are destructive to their subjects , and common-wealth , have for the same reason only punished such indifferent inchantments , as did either kill men , or ensnare them to unlawfull lusts , but not those arts , where the health of man and the fruits of the ground were secured , against diseases and tempests , as is clear , per l. 4. cod. de malef. & math. eorum est scientia punienda , & severissimis merito legibus vindicanda , qui magicis accincti artibus , aut contra hominum moliti salutem , aut pudicos ad libidinem delexisse animos detegentur , nullis vero criminationibus implicanda sunt remedia , humanis quesita corporibus , aut aggrestibus locis , ne maturis vindemiis metuerentur imbres , aut ventis grandinisque lapidatione quaterentur : innocenter adhibita suffragia , quibus unius cujusque salus , aut existimatio lederetur , sed quorum proficerent actus , ne divina munera & labores hominum sternerentur . which law being a statute made by constantine , who was a christian emperor , being conceived in so devote terms , and insert by justinian , who was a most christian prince , amongst his own laws , cannot but be a law very ●it to be observed in a christian common-wealth . and though it be allegded , that this constitution was abrogat by leo , nov . 65. yet , it is very remarkable , that this constitution made by leo , is not insert in the basilicks , so that it seems it has been thereafter abrogated . it is not probable , that the devil , who is a constant enemy to mankind , would employ himself for their advantage ; and the name of jesus being used , so much respect ought to be had to it , that the user should not be punished with death , except it could be clearly proved otherwise , that she had received this charm from the devil ; in which case , the author , and not the thing , occasions the punishment , or else , if she had been discharged by the church , or any judicatory , to use that cure , as that which was in it self dangerous ; but to burn a poor ignorant woman , who knew not that to be evil which she used , were to make ignorance become witch-craft , and our selves more criminal , then the person we would condemn . and all these laws and citations which can be brought to prove , that magical incantations are punishable by death , though imployed for the well-fare of mankind , must be interpret so , as to relate only to some of these unlawful cases above related . and i admire , that those who inveigh so much against this constitution of constantine , have never taken notice , that these charms are only allowed , even for the wellfare of man and beast , ubi sunt innocenter adhibita suffragia , where devotion was used , though erroniously , as in this case . and we know , that a whole family in spain pretend to be able to cure diseases by the toutch , as being descended from st. katharine , and are therefore called , saludadores ; and that another family in france , who alledge they are descended from st hubert , do cure such as are bitten by mad dogs , and yet neither of these are punished by any law , since they ascribe their cures to devotion : and there are but few men who have travelled any where , but use some charm or other , out of innocence or railery ; and to burn these , or the common people , who think they may follow their example , were an act of great cruelty . and since the cross is allowed by the canonists to be applyed to any part of the body , per c. non licet . 26. quaest . i see not why the name of jesus may not be applyed , in the same way : nor can i think that the devil would allow the using of that sacred name at which he is forc'd to tremble , and by the very naming whereof , all ecclesiastick histories tell us , that the devil has been dispossest , and therefore , ghirland . de sortil . num . 23. gives it as a general rule , that ubi alia nomina ignota ultra dei nomina inveniuntur , tunc superstitiosa dici possunt & ita puniri . cassiodorus relates , that multis efficax remedium fuit , trina recitatio versiculi , psal. 115. dirupisti vincula mea , &c. and bartholinus in his anatomy , defends , that these verses repeated with a loud voice in the ear of one affected with the epilepsie , will cure him , gaspar fert mirham , thus melchior , balthasar aurum , haec tria . qui secum portabit nomina regum , solvitur à morbo , christi pietate caduco . and though some have disallowed even pious sentences , or names , when joyned to superstitious circumstances , as when they are only to be writ upon parchment , and cut too in such a figure , or bound by so many threeds only , yet to condemn the users as witches , when they are used simply , as here , seems to be the other extream . in things that are abstruse and dubious , the law should still favour that which tends to the good of the common-wealth : yea , and though it sometimes may punish charms , when used to the disadvantage of men , though it know them not certainly to be unlawfull ; yet , it doth not follow , that it should punish that which may tend to their advantage , except they know it to be certainly unlawfull . and though our act of parliament punishes such as seek help by unlawfull meanes of sorcerers , or necromancers , yet they must first be prov'd to be sorcerers , or necromancers , who make a trade of abusing the people , as that statute sayes , which cannot be drawn at all to a dubious cure used in one case , and by the application of natural means ; and therefore , though drummond was burnt as a witch , albeit he had never committed any malefice , but had only cured such as were diseased , yet having in a long habit and tract of time , abused the people , and used spells and incantations , which had no relation at all to devotion ; and having continued that trade , albeit he was expresly discharged , his case was very far different from this , and deserved a far more severe punishment . the same may be likewise answered to the condemnatory sentence pronunced against john burgh , who was convicted of witchcraft in anno , 1643. for pretending to cure all diseases , by throwing into water an unequal number of pieces of mony , and sprinkling the patients with the water ; so that it may be justly said , that these died rather for being publick cheats & falsarii , then for being witches , & venefici . upon which account ars pauliana also is punishable , by which some cheats pretend to cure diseases , by spells and pious characters , revealed ( as they pretend ) to s. paul , when he was carryed up to the third heavens ; for , here the foundation makes the cures known to be cheats . i might likewise alledge here , that it is against the confest principles of all criminal●sts , that una venefica non potest esse ligans & solvens in eodem morbo , cannot both put on , and take off a disease ; for , it seems that the devil thinks , that it were too much to bestow such favours upon one of his favourits , so that he is juster then those , who affect plurality of benefices ; or else he thinks it would lessen too much the esteem of those faculties , if one could exerce both ; or else it is not probable , that she who had the malice to lay on the disease , would condescend to serve in the taking it off . but however , i find much weight hath been laid upon this principle , by those who did debate margaret hutchesons process , and so let it have its weight . the third article of my clients endictment is , that it is deponed by two dying and penitent witches ; that she flew like a dove with them to their meeting places . this article seems to me very ridiculous ; for i might debate , that the devil cannot carry witches bodily , as luther , melanchton , alciat , vairus and others assert , because it is not probable , that god would allow him the permission constantly to work this miracle , in carrying persons to a publick place , where they joyn in blaspheming his name , and scorning his church . nor is it proper either , to the nature of heavy bodies to flee in the air , nor to devils who are spirits , and have no armes , nor other means of carrying their bodies : but i may confidently assert , that he cannot transform a woman into the shape of a dove , that being impossible ; for how can the soul of woman inform and actuat the body of a dove , these requiring diverse organs , and administrations ; and to believe such transmutations , is expresly declared heresie by the canon law , and to deserve excommunication , cap. episcopi , 26. quaest . 5. and is condemned by st. augustin , lib. 18. de civit . dei , delrio lib. 2. quest . 18. girland . § . 7. and though the scripture tells us , that nebuchadnazor was transformed from a man to a beast by god , yet it follows not that the devil hath that power ; or as some divines assert , he did but walk , feed , and cry like a beast , and had brutish thoughts . we must then conclude , that these confessions of witches , who affirm , that they have been transformed into beasts , is but an illusion of the fancy , wrought by the devil upon their melancholy brains , whilst they sleep ; and this we may the rather believe , because it hath been oft seen , that some of these confessors were seen to be lying still in the room when they awak'd , and told where , and in what shapes they had travell'd many miles : nor is this illusion impossible to be effectu●ted by the devil , who can imitate nature , and corrupt the humours , since melancholly doth ordinarily perswade men , that they are wolves ( licanthropi ) dogs , and other beasts . since then these confessions are but the effects of melancholy , it follows necessarily , that the depositions of these two witches amounts to no more , but that they dreamed that my client was there : and were it not a horrid thing , to condemn innocent persons upon meer dreams , as is concluded by frans , ponzan . tract , de lamiis . cap. 1. num . 52. sunt illusae , ergo non est standum ipsorum confessionibus : confessio enim haec deficit in sui● principiis , & est contra naturam , & ita impossibilis . i confess , that such confessions may be a ground to condemn the confessors , because though they were not actually where they dream'd , at these meetings , yet it infers that they had a desire to be there , and consented to the worship , and believed that transformation to have been in the devils power ; but all these are but personal guilts in the confessors , and cannot reach others . and besides this , it is very clear , that the depositions even of confessing and penitent witches , are no concluding probation ; for they are sociae criminis , and such are not to be believed , they are infamous persons , and such ought not to be believed ; and they can give no sufficient causa scientiae and reason of their knowledge , the want of which doth in law enervat the deposition of a witness : and with us , the depositions of dying witches were repell'd , in the case of alison jolly , pen. oct. 1596. divines , whose punishments reach no furder then ecclesiastick censure , may punish not only certain guilt , but scandal ; yet lawyers , being to inflict so severe a punishment as bu●ning , and loss of all their moveable estate , should not punish but what they know infallibly to be a real guilt , nor should they punish that guilt , till it be convincingly prov'd . for , though this woman were guilty , yet if she be so , she will suffer by the sting of her conscience here , and will be reserv'd for a greater fire hereafter , then you can ordain for her ; whereas if she be innocent , your sentence cannot be reformed . and why should you take pains to augment the number of the devils servants in the eyes of the world ? nor doth the civil law punish alwayes what divines condemn ; for thus , though it be murder by the divine law to kill a wife taken in the act of adultery , yet the civil law allowes it : and though it be unlawfull by that law to cheat our neighbour in buying or selling , yet the civil law allowes all such bargains , except the cheat amount to the value of the half . thus , the one of the laws respecting mainly the good of souls , and the other the good of commerce , as they have different ends , so they take different measures ; and therefore it is , that politick laws , have allowed cures even by suspected means ; which principle is also allowed by bartol . salicet . azo : and others , ad dict . l. 4. and even according to the principles laid down by divines , except there were a paction prov'd , or confest , all remedies should rather be ascribed to nature , then to witchcraft . consider how much fancy does influence ordinar judges in the trial of this crime , for none now labour under any extraordinar disease , but it is instantly said to come by witch-craft , and then the next old deform'd or envyed woman is presently charged with it ; from this ariseth a confused noise of her guilt , called diffamatio by lawyers , who make it a ground for seizure , upon which she being apprehended is imprisoned , starved , kept from sleep , and oft times tortured : to free themselves from which , they must confess ; and having confest , imagine they dare not thereafter retreat . and then judges allow themselves too much liberty , in condemning such as are accused of this crime , because they conclude they cannot be severe enough to the enemies of god ; and assisers are affraid to suffer such to escape as are remitted to them , lest they let loose an enraged wizard in their neighbour-hood . and thus poor innocents die in multitudes by an unworthy martyredom , and burning comes in fashion ; upon which account i cannot but recommend to your lordships serious consideration , that excellent passage of a learned lawyer , baldwinus , ad § item lex cornelia jnstit : de publ . ju● . sed quo gravius , & ab hominis ingenio magis alienum est hoc malum , co major adhibenda est cautio , ne quis ejus praetextu ab adversariis temere obruatur , facile enim hic quid vis confingere potest ingeniosa simultas , ut & multitudinem credulam statim emoviat , & judices irritet adversus eum quem cum demonibus rem habere mentietur . ante annos sexaginta , sensit infoelix nostra patria , magno suo malo , hujusce generis calumniis , magna erat waldentium mentio , quos adversarii jactabant nesci● quid commertii habere cum innumeris spiritibus , hujus criminis praetextu optimi quique statim opprimebantur , sedtandem senatus parisiensis , causa cognita , vidit meras esse sycophantias & infoelices reos liberavit . for titius , accused before the secret council for beating his wife . xvii . pleading . as nothing but the last degree of passion could have provockt my client to correct this unfortunat woman , so no creature which doth not feel his grief , can expresse the reasons , which forced him to it . nor could the fear of punishment , if it were not joyned with the sense of honour , move him to lay open before your lordships , the sad story of these persecutions he has for seven years suffered , and the dishonourable secrets of his own family , which during all that time , he has laboured to conceal . nor can i ( my lords ) but regrate , that i should be forced to lead your reflections into my clients house , and to shew you there a woman burning , not with fl●mes of love , but revenge ; embracing her husband , not out of kindnesse , but to throw him into the fire ; watching him in his sleep , but that she might even disturb him in his rest ; inviting his friends to her house , but that she might highten his infamy , in letting them hear her rail against him : and all this done , not for a day , or under the excuses of passion , but for seven whole years ; nor done so passingly , as that he could entertain any hopes of her reconciliation to allay his grief ; but she begun to torment him the next day after the marriage , beating him with her slipper , so that only his marriage wanted its honey-moneth , and so malitious was her humour , that she could not bridle it for one day . and these affronts were dayly continued , most deliberatly , and owned after all the remonstrances her friends could make for reclaiming her , at which occasions she used to speak kindly of nothing to him or them , but her passions , justifying her lying of him as wit , her railing against him as eloquence , her revenge as justice , and her obdurednesse as constancy . this being the person against whom i am to plead , i am oblieged to give your lordships some character of him for whom i appear , who was not only born a gentleman , but by being a souldier , has made himself so , and by both these qualities , has so strong an aversion against beating any woman , that the great respect he had for that lovely sex , made this pursuer , after ten years intimat acquaintance , choose him for her husband ; and for seven years , he hath not only suffered , but concealed his wrongs , to that depth , that his hair hath by grief changed its colour twice , the strength of nature , and grief , overcoming each other by their several turns . nor doth he think himself concerned to answer his wifes calumnious reproaching him , as having been her husbands servant ; for it is most true , that after he lost his estate in his majesties service , her first husband choos'd him for his friend , and after his death , she choosed him for a husband ; which shews , that he had some worthy qualities about him , which were able to supply that great want , the want of riches ; and is it not clear , that when women begin to complain of so sacred a relation , they will make faults where they cannot find them ? and these wives who would divulge what is true , would invent what is false . i confesse ( my lords ) that there is very much due to that excellent sex , when they are , what they ought to be ; but our love to wine , must not hinder us to call it vinegar when it corrupts ; nor should we flatter tyrants , because we love monarchies . but judges must look more to justice , then complement ; and therefore , i must beg pardon to alledge for my client , that he cannot be punished for beating his wife , because , the wife is by law under the power and authority of her husband , which subjection is not only the punishment of her sin , nor will all this power repair to man , the losse he had by the injury done him when he got this power ; but this power is put in the husbands hands , for the good , not only of the common-wealth , but of the women themselves : as to the common wealth , it was fit , that in every family the husband should be empowered to correct the extravagancies of his wife , and not to bring them before the judge , and in publick , this would have divided families , raised publick scandals , and many will be content to receive correction in privat , who would never be reconciled after a publick correction . and as to the women themselves , it was fit , that she being the weaker vessell , a creature naturally passionat , and wanting experience , should therefore be governed by , and subject to , her husband ; and as the head may resolve to chastise or mortifie any part of the body , when it thinks that discipline will tend to the general advantage of the body ; so may the husband , whom the scripture calls the head of the wife , correct the wife , when that correction may tend to the advantage of the family . let us but look back upon the first ages of the world , and we will find that the husband had generally power of life and death over their wives , even amongst the best of men , the romans , and thus plin. lib. 14. cap. 12. reports , that egnatius mecennius kill'd his wife , for having drunk too much wine , and that her death was not enquired into , as that which the law then allowed . and caesar tells us , lib. 6. that the germans in uxores , sicut in liberos , vitae necisque potestatem habebant . and till this day , the southern nations ( whose wits ripen more then ours , as nearer the sun ) have still the same power continued to them , by which the women loss litle , for it keeps them from adventuring upon these extravagancies , for which our complementing nations hate their wives , which to a kind wife , should be worse then death . but if these laws think this power of life and death fit for the husband , it should at least teach us to bestow upon him the power of correction , for which i only plead ; which power of correction , is by bonaventur said to be allowed them by the law of nations , 4. sentent . distinct . 37. masuer . tit . de possess . § . item maritus . by the canon law , the wife is declared to be more in the power of the husband , then of her father , can . sicut alterius 7. quaest . 1. and that the husband may imprison her , or keep her in the stocks , can placuit . 33. quaest . 2. and if we consider our law , we will find , that husbands have the same power over their wives , that a father hath over his child , c. 131. leg . burg . which law saith , that he should correct her , as not knowand what she should do , and as a bairn within age , seing she is not at her own liberty . and as the council would not hear a child complaining that his father had beat him , so neither should they hear a wife . we have also an express statute , 2. dav. chap. 16. wherein it is appointed , that no accusation shall be received against a man for having occasioned the death of his wife , except it be notoriously known , that he gave her wounds whereof she dyed ; by which it is necessarily implyed , that he is not punishable , nor cannot be accused for any wounds given which were not mortal ; where likewise there is a decision of the said king david , related in thesete●ms . in the time of king david , a case happened in this manner ; an man of good fame gave to his wife , descended of great blood , an blow with his hand , of good zeal and intention to correct her , and she being angry with her husband after that day , would not for no mans request , eat nor drink till she deceased , and entered in the way of all flesh . the friends of the woman accused the husband for the slaughter of his wife : and because it was notour and manifest that he did not slae her , nor gave her no wound of the whilk she died , but gave her an blow with his hand , to teach and correct her , and also untill the time of her death loved her , and entreated her as a husband well affectionat to his wife ; the king pronounced him clean and quit , and thereanent made this law. but , i find it is answered by the wifes advocats ( who can better maintain , then they could suffer what she has done ) that though the laws of other ages and nations , did , and do allow this power to the husband ; yet , our present customs , as well as our inclinations , hate that stretch'd and ungentle power : and though our law did allow some power to the husband for correcting his wife ; yet , that power could not be extended to defend such violent courses as were here used , where the husband did hold her head to the fire till her face was burnt , and did thereafter beat her with a slipper . nor do any law or lawyers allow more then modica coercitio for her correction ; but such an excesse as this would be punishable in a father towards his child , or in a master towards his servant . to which answer the poor husband acquiesces as much as they , and by his patience and continued kindnesse , in spight of all these disgraces and affronts , he has testified more respect then the law could have commanded . but since it is acknowledged upon all hands , that the husband might have corrected his wife , and that he is only punishable for having exceeded the just measures which the law allows , i shall first relate the matter of fact , and shall then examine , if he did not proportion the punishment to the injury . after my clients wife had swore she would starve her self , if he would not renunce all her estate , he ( good man ) condescended to her extravagant desire ; but not satisfied with this , she swore she would kill him , if he did not leave the country : and finding that he came in at night , she beat him with her slipper , but finding he only smiled at this , she came running up to him with a knife in her hand , whereupon he threatned to hold her head to the fire , if she would not calm , and so took the knife from her . notwithstanding of all which , both kindnesse , and threats , she did a third time flee in his face , but at last , fearing his patience might not only prejudge himself , but her , he did take her and hold her face a little to the fire , but without any defign , save of terrifying her ; but she being strong , and malice supplying what strength her sex denyed her , wrestled out of his hands , and in wrestling , threw her self upon the fire , and burnt a little her own face . all which shall be proved by witnesses , who saw the whole tract of that unhappy bussle , for it was an aggravation of her guilt , that she used him thus publickly . this being the state of the case , i hear such as stand behind me swear , had she been mine , i had drowned her , or starved her , and i conjure your lordships to reflect what any man would have done in that case ; but i shall only debate , that this guilt deserved a more severe punishment , then what he inflicted . for , 1. in proportioning the punishment to the guilt , your lordships will be pleased to consider , that the husband never having punished her former extravagancies , was here to punish at once , all that she had formerly done , and if every offence deserved correction , ten thousand offences deserved one that was very great ; and if the law after it hath punished the first two small thefts , punishes the third with death , and after it hath punish'd breaking yards with small pecunial mulcts , maketh the third capital ; may not the hundreth offence in beating a husband , and laying snares for his life , deserve all done , where the former faults were also to be punished ? and since no judge could have refused to have burnt her in the cheeck for three such riots , sure the husband cannot be punished for punishing a hundreth at the same rate ; and i hope your lordships will imagine , that a husband who suffered so many affronts , would not have been too violent in punishing the last , and that she hath her self to blame , having contemned the warning given her by her husband , and in giving of which warning , it clearly appears , that he was master of his passion , and proceeded both kindly and judiciously ; or though he did deserve a punishment , yet by-past-sufferings , torments and affronts , may do more then satisfie her , for that one injury , of which she can only complain : and as in ballancing accounts , so in ballancing mutual crimes , we must not look to the debt and credit of one day , but considering all that either party can lay to one anothers charge , we must at the ballance only determine who owes most , and if that method be followed , then sure your lordships will find , that as injuries may be compensed amongst the parties themselves , in so far as concerns their privat interest , so here , my clients wife having been more guilty towards him a thousand times , then he can be said to have been towards her , though this riot were acknowledged , her interest ceases , and her complaint doth become thereby most unjust . though the law designs to restrain our vices , yet because it cannot root out our passions , it pitties them ; it employes its justice against our crimes , but its clemency against our passions : and so high did this clemency run in the roman law , that he who in passion kill'd his wife , being taken with her adulterer , was not punished as a murderer , qui impetu tractus doloris interfecerit : and the reason the law gives for remitting the crime is , cum difficillimum sit justum dolorem temperare , l. 38. ff . ad . l. jul . de . dult . and if any passion deserves pardon , it must in him who has bestowed pardons for seven years ; or if it may plead against any , it must be against her who raised injustly , the passion of which she complains . injuries from a wife are crimes ; and if injuries can justifie passion amongst strangers , much more can they do it in a husband . i hope your lordships will likewise consider , that self-defence is not only a priviledge introduced by law , but a duty imposed upon us by nature ; and without this , this world were nothing but a scaffold , and every man with whom we conversed , might prove an executioner . nor doth this self-defence only secure us when we kill such as would attacque our life , but it secures us likewise when we chastise such as would stain our honour ; for life without honour , is but as a dead carcass , when the soul is fled , or a king when he is dethroned . and since the law has p 〈…〉 lel'd life and honour in every thing , it is most just , that seing we may kill such as invad the one , we may at least chastise such as invad the other ; especially seing these who are here punished , have only themselves to blame , as the authors and occasions of all those accidents of which they complain : and therefore , my lords , i shall intreat you to figure to your selves , what a man could do , if his wife should constantly resolve to spit in his face when he were amongst strangers , or constantly awake him when he resolved to rest : were it not ridiculous to put the husband alwayes to complain to a judge in those cases ? and yet to suffer such injuries to be unpunished , were not only to make a man miserable , but to force him to an impertinent clemency , which might breed up his wife to an insufferable insolence . and if mean people , ( who wanting generosity and vertue , are curbed by nothing but awe and fear ) should come to know that the councill allowed such an indulgence to women , and that there were no place for the justest complants of injur'd husbands , what ruptures would this occasion in privat families , what numerable suits before your lordships , and how many separations betwixt husband and wife ? do then , my lords , by this decision , let the people see , that as vertuous and deserving women may expect the highest and purest respects imaginable , so such as shew themselves unworthy of these favours , may expect punishment answerable to their crimes . nor is it a small aggravation of their guilt , that they endeavour as far as in them lyes , to draw contempt and disgrace upon that amiable , and deserving sex. thus good women will be complemented , when they find they owe not the respect they get to the law only , but to their own merit , and unworthy women will find , they may expect a happier life by taming their own insolencies , and by living in concord with their husbands , then they can from their insolent , and outragious abusing of them . the counsel imprisoned the husband for one night . for charles robertson and his two sons . xviii . pleading . how far minors may be punished for crimes . 2. whether complices may be pursued before the principal party be found guilty . 3. whether socius criminis may be received in riots and lesser crimes . the crime for which my clients are accused , is , that in january , 1660. the said charles robertsons brother and two sons did convocat the lieges , and throw down a house belonging to elizabeth rutherford , which they did at their fathers desire , or at least , that their father did ratihabit the same . against this indictment , it is alledged , that the two sons , the one being of the age of fourteen , and the other of fifteen , cannot go to the knowledge of an inqueist , for throwing down this house , since they offer to prove , that they were informed by their uncle , that this house belonged to their father , and that it was their fathers desire they should go along with him to throw it down ; for though minors may be punished for attrocious crimes , committed against the law of nature , such as murder , incest , &c. and to abstain from which , the youngest conscience doth advise : yet , such acts as cannot be known to be criminal , but by such as understand positive law , are not punished as criminal , but in such as are oblieged to understand that law. none will contravert , that the throwing down such a little house , not exceeding six pounds scots of value , and to which , they and all the countrey had heard their father pretend right , cannot be called a crime against the law of nature ; and it is only a crime in positive or municipal law , when it is done by such , as are oblieged at the time to understand they are doing an injury , and that the house belongs not to him , at whose command they are throwing it down , and these children were not oblieged to know this ; for since they are not in law oblieged to understand their own rights , till they be majors , much lesse are they oblieged to understand the rights of other men ; and in this case the undestanding the matter of rights , is that only which infers the crime , for if the father had right , this had been no crime in him , nor them . i am sure , there is a great distinction betwixt acts , which are of their own nature indifferent , such as throwing down of houses , taking men prisoners , &c. and these which are of their own nature vitious , and criminal , and need no extrinsick thing to clear that they are so , such as murder , and robbery ; the first doth require the knowledge of something that is extrinsick to the act which is done ; nor is the guilt infer'd but by reasoning , and judgement , and therefore that guilt should not fall upon minors , except they are dolosi , and are presumed to have done it intentionally and upon design , and how can design be presumed in these minors , since the committing this act did not take its rise from them , but from their uncle , and father , and they were to gain nothing to themselves , immediatly by it ? nor can it be imagined , why the law will for want of understanding , lessen the punishment in the most attrocious crimes , such as witchcraft , murder , &c. in such as are thriteen years of age , if it will not remit absolutely the guilt , in such cases as these , where the guilt was neither palpable ; nor the prejudice great . and if minors be to be restored adversus delictum in any case , as is clear they are , they ought to be restored against this , where the guilt doth consist in a punctilio or nicety of law , such as , that though the father had right to the house , yet he could not have thrown it down by his own authority ; a principle which few countrey men understand , when they have reached twenty one years , si delictum fuerit commissum sine dolo potest minor juvari ope restitutionis in integrum , etiam ad hoc ut à totapaena excusetur , clar. quaest . 60. & anan . in cap. 1. num . 8. de delict . puer . nor can i see a reason why crimes by the unanimous opinion of lawyers are said not to be punishable in minors when they are perpetrat non committendo , sed omittendo , if it be not because omissions are juris , and fall not under sense , and proceed from a weaknesse of the judgement ; but yet i think the former distinction more just , since omissions of what nature requires , should bind them , but nothing should bind them which proceeds from a weaknesse in judgement , since law allowes minors to have no judgement . but whatever be alledged against other minors , yet these having obey'd their father , in an act which was of its own nature indifferent , they cannot be punished for the guilt though he may , for that were to make poor children unhappy , in subjecting them to double punishments , for if they obeyed not their father , they could not escape their fathers anger , or if they did obey , they fall under the laws revenge . and it were very unjust , that the law which has subjected them to the power of their father , should not secure them when they obey that power to which it has subjected them . and upon the other hand , it would lessen much that power which the law hath taken so much pains to establish in the persons of fathers , and masters , over their children , and servants , if it gave them occasion to debate their commands ; and though a son , or a servant , are not obliegd to obey their father or master , in things palpably attrocious , and wicked ; yet , where the thing commanded is not necessarily , and intrinsecally unjust , they should either obey there , or no where ; and what a great prejudice were it to the common-wealth , if a son or servant should refuse to assist , in bringing back cattle , which others were driving away , to labour land , or assist poindings , or even throw down houses at their father , or masters desire , because they might pretend his right were not sufficient ? and so the father and master should be still oblieged to give an account to his son or servant , of his right and title upon all occasions , and his commands , which require oftimes a speedy execution , should be delayed in the interim . to prevent all which , the law hath for the good of the common-wealth , allowed sons , nor servants , no will of their own , making them in effect but the tools and instruments of their fathers and masters will , non creditur velle qui obsequitur imperio patris , vel domini , l. 4. ff . de . reg . jur . and if the law allowes them to have no will of their own , it cannot punish them when they obey their master , for all guilt is only punished , because it is an effect of the will ; and therefore , john rae was not put to the knowledge of an inqueist , as art , and part of theft , because he went only along with his father , when he was about twelve years of age , 1. of januar , 1662. and by the 19. cap. num . 9. stat . will. the servant is only declared punishable , if he do not detect his master , or desert his service : and per. l. lib. homo . ff . ad . l. aquil . it is expresly decided , that si jussu alterius manu injuriam dedit , actio legis aquiliae cum eo est qui jussit , si modo jus imperandi habuit , quod si non habuit , cum eo agendum est qui fecit . though minors may be punished for a guilt , yet they ought not to be indicted till they attain to the years of majority , because if they were to be tryed in their lesse age , they might by want of wit and experience , omit their own just defences , and mismannage the debate in which they were ingaged , as to which , our old law appears to be very clear , r. m. lib. 3. c. 32. lib. 2. cap. 41. quia dicere vel tacere potest calore juvenili , quod ei nocere potest : suitable to which , skeen doth in his annotations observe a decision , betwixt his majesty , and the abbot of parbroth , anno , 1312. & l. pen. cod . de autor . tut . & . l. 1. s. occisorum ad s. c. sillan & cap. 2. de delictis puerorum . extrav . since a minor may be restored against such omissions , or against a confession omitted by him , quando non potest aliter contra eum probaricrimen , or may omit to object against witnesses , it is more just and convenient , that he should not be tryed till he be major . for , if he be tryed , he must be once punished , and then his being restored is both impossible and improfitable : and it were very inconsequential for our law to have so far priviledged minors , as that they are not oblieged to debate super haereditate paterna , and that too upon these same reasons i here alledge , and that it should not much more secure them against criminal tryals in the same minority , where the hazard is greater , especially where the common-wealth is not concerned ( as here ) to have the guilt immediatly brought to open punishment , and where the crime is not attrocious , reaching no furder then privat revenge , and a pecuniary punishment . nor is the publick in this case disappointed of a just revenge ; for it can reach the father or uncle , who are alledged to be the principal actors . for the father , i alledge , that he cannot be pursued , as he who was accessory to the committing of the crime , in commanding or ratihabiting it , except it were condescended from what particular acts his ratihabition can be inferr'd , whether by words , deeds , concealing , or otherwise ; and it is not sufficient to lybel in the general , that he did ratihabit , no more then a lybel would be relevant , bearing , that my client were guilty of treason , without condescending how , as is clear by the opinion of all lawyers , who require , that lybels should be special , which is required by them , to the end that the relevancy of the lybel may be debated and determined by the judges , before it go to a tryall , which should be rather done amongst us , then any other nation , because the probation is in this kingdom tryed only be an assize , and these are ordinarly men who understand not the intricacies of law ; whereas if the particular way and manner of ratihabition be not condescended on , and discust by the judges , it must come to be debated after the probation before the inqueist ; and thus not only relevancy , and probation , matter of law , and matter of fact , but even the distinct offices of justices , and assizers , will be here confounded . as for instance , if the pursuer should prove , that the father said that all was well done , we would be forced to debate before the assize , that such passing words as these cannot infer a crime , for else many thousands in a nation might be found guilty of crimes to which they had no accession : or if it were only alledged , that he received his sons into his house , it would be likewise debated , that the receiving of a mans own sons into his house , cannot infer a crime in delictis levioribus , though it may be debated to be criminal in treason , and more attrocious crimes . upon which , and many other points , the doctors have writ very learnedly , and to debate such points before ignorant assizes were very dangerous . it is likewise alledged for the father , that he being only pursued as accessory to this crime committed by his brother , in so far as he did either command or ratihabit , it is therefore necessar , that the brother be first pursued and discust , it being a rule in all law , that the principal should be pleaded and discust , before him who commanded the same to be done , or before the receipter , as is clear by r. m. lib. 4. cap. 26. intituled , the order for accusing malefectors for crimes ; which agrees likewise with the opinion of the civilians , and particularly clar. quaest . 20. num . 6. whose words are , scias etiam quod quandoque proceditur contra aliquem tanquam quod praestiterit auxilium delicto , debet primo in processu constare principalem deliquisse . mars . quaest . 26. gives an example of it just in our case , a father is pursued as accessory to his sons guilt , in which case he alledges the father could not be tryed , till the son was first discust ; & alexand. consilio 15. vol. 1. dicit , quod nisi prius constet de manaatario , procedi non potest contra mandantem ; with which the english law agrees fully , by which the principal ought to be attainted by verdict , confession , or by outlawry , before any judgement can be given against accessories , bolton cap. 24. num . 38. and therefore , except the uncle , who was the principal actor here , were first found guilty by an assize , my client as commander and ratihabiter cannot be punished . to this it is answered , that the foresaid law of the majesty holds only in theft , but not in other crimes , and that as to all crimes it is abrogat by the 90. act. 11. parliament , ia. 6. by which it is appointed , that all criminal lybels shall be relevant , bearing art and part , without making any distinction betwixt principal and accessories , and the father is called here as a principal , having given a warrand , as said is , for else the giving warrand for doing treasonable deeds , or to commit murders , could not be punishable , though nothing followed ; whereas in all law , such deeds are criminal in themselves , and the mandant might be immediatly punished . to which it is replyed , that this maxim holds not only in theft , but in all other crimes ; for as there can be no reason of disparity given to difference theft from other crimes , as to this point ; so the rubrick of the former chapter 4. is general , and in the fourth verse of that chapter , it is said generally , that 〈◊〉 is manifest , that the commander or receipter shall not be ch●rged to answer , till the principal defender be first convicted by an assise . which is likewise quoad all crimes ordained indefinitly by the 29. act. stat. david 2. nor can it with justice be pretended , that these laws are abrogated by the foresaid statute of king iames the sixth , for these reasons ; 1. that act doth not expresly bear an abrogation of the former laws , and standing laws cannot be abrogat by consequences : nor can it be , but if the parliament had designed to abrogat so old and fundamental laws and customs , they would have exprest their design , especially since in criminal cases , all lawyers endeavour to make their laws clear and perspicuous . 2. no laws are interpret to abrogat one another , except they be inconsistent , so infavourable is abrogation of laws ; and it is generally received , that leges in materia diversa sese non tollunt , nec abrogant : but so it is , that these laws here founded on , are most consistent with the act of king iames the sixth , and these two are materiae diversae ; for it is very consistent , that a libel bearing art and part should be relevant , and yet that the principal should be first discussed ; for though the principal be first to be discussed , yet , when the accessories are to be accused , it is sufficient that it be generally libelled against them , that they were art and part , the one of these regulats only the way of procedure , & ordinem cognitionis , the other regulats the relevancy , and shows what lybel shall be sufficient . nor was there any thing more designed by that act , ia. 6. but that lybels in criminal cases should not be cast as irrelevant , as is clear by the narrative of the act. and by the civil law , ordo cognitionis , & accusatio eorum qui opem auxilium prestiterunt , are alwise accounted different titles , and are differently treated ; so that these two laws are very different , and very inconsistent . 3. if that law , ia. 6. had abrogat the former laws , whereby it is appointed , that the principal should be discust before the accessories , then it had followed by ▪ necessar consequence , that these laws could not have taken place after that act ; but so it is , that defences are dayly sustained upon these laws , as in the case lately of george graham , which shewes very convincingly , that they are not abrogated . the reasons likewise whereupon that law was founded , ordaining that accessories should not be pursued before the principal be discuss'd , are still in vigor , and are so just and necessar , that it were injust to abrogat a law founded upon them ; for the law considered , that if the principal were called , he might know many defences , which i● they were known to these who are alledged to be accessories , would certainly defend them ; as in this case , if the uncle were called who threw down the house , it may be he would alledge , that he did not throw down this cottage , till the accuser had consented , which consent he possibly hath : and this may be necessar in a thousand cases , as if a person were pursued for having been accessory to the driving away sheep , or neat , he might be convicted , though he were innocent , if the principal were not called , which principal if he were called , might produce a disposition from the party , or a legal poinding , either of which being produced , would defend both : whereas upon the other hand , if it were lawful or sufficient to accuse any persons as accessories , without pursuing the principal , the accuser might collude with the principal , and suffer him to go unpunished , providing he would keep up the defences and warrands , and so suffer the innocent accessories to be condemned . is it not a principle in nature , that accessorium debet sequi suum principale ? and doth not the law still require , that prius debet constari de corpore delicti ? and how can a man be pursued for hunding out another to throw down a house , untill it were first known that the house was thrown down ? nor is the giving an order to throw down a house criminal , though it were proven ; except the house were according to that order thrown down , and that it was thrown down by vertue of that order , and upon no other account . by all which it clearly appears , that the throwing down of the house , which is the principal guilt , must be first tryed , before it can be enquired , who gave the command . the last , and one of the great arguments , i shall use to prove , that the principal who threw down the house must be first discust , before my client can be pannell'd for commanding or ratihabiting , is , that by this method , probation should be led against absents , contrar to the known principles of our law , and by the connivance or ignorance of the accessories , the fame of an absent person may be wounded , and witnesses suffered to depone , who dared not have deponed if he had been present ; and though that probation led against him in absence would not be concluding , yet it would leave a stain ; and would engage the deponers to adhere to these prejudicat and false depositions in another process , to secure themselves against perjury . whereas it is pretended , that sometimes command is a crime , though nothing follow , it is answered , that where a mandat is of it self criminal , though nothing follow , as in treason , there the giver of the mandat must not be pursued as a complice , or accessory , but as the principal transgressor ; nor would the king be prejudged ( as is alledg'd ) if the principal behoved first to be discust , because it is pretended , that that principal might abstract himself , and thereby cut off the publick revenge , which would otherwise justly fall upon the accessories if they could be apprehended . for to this it is answered , that it is easie for his majestes advocat to raise a pursute against the principal , and if he compear , to proceed against him , or if he compear not , he may be denunced fugitive , which is a sufficient discussing of him as a principal , and will open sufficiently a way to proceed against the complices . it is likewise alledged , that the witnesses which are offered to be adduced against my clients , for proving that they committed this crime , are not testes habiles , and cannot be admitted , because i offer to prove by their own oath , that they were at the pulling down of the house , and did actually pull it down , and so are socii criminis , and consequently are repelled from witnessing , by the 34. cap. stat . 2. rob. 1. where there is an enumeration made of those who cannot be admitted to be witnesses , amongst whom are socii & participes ejusdem criminis . to which exception ; the accuser answers , that though socius criminis , cannot be admitted pro socio , yet he may be admitted contra socium , that he may be witness against , though not for those who were ingaged with him . 2. though socius criminis may not be admitted as a witnesse contra socium , where the crime in which they were ingaged fixes infamy upon the committers , as treason , witchcraft , murder , &c. yet in delicts or rather riots , such as is the casting down of a house , that tends to infer a pecuniary , and not a capital punishment ; there socii criminis may be received as witnesses ; for , the reason why they are ordinarily repell'd , is , because in deponing they confesse a crime against themselves , & se infamant , which reason ceases in delicts or lesser crimes , quae non infamant . it is likewise represented , that it is most clear from law , that the only reason why socii criminis are repelled from being witnesses is , because deponendo se infamant , and so they forfeit the capacity and confidence of integrity that the law reposes upon all persons that ought to be believed as witnesses ; by the whole contract of the whole titles , ff . & c. de testibus . and by clar. quaest . 21. num . 8. dictum socii criminis ad hoc ut fidem faciat , requiritur , ut sit confirmatum in tormentis , cum enim ex proprio delicto sit infamis , nec debet admitti pro teste sine tortura ; and the foresaid text of the majesty , ought as is alledged , to be interpret only so , as to take place ubi crimen infamat , and that dilicta non infamant is endeavoured to be prov●d by the statute of king william , de his qui notantur infamia , where it is said , that fures , sacrilegii , homicidii . and others , qui sunt irretiti capitalibus criminibus , repelluntur a testimonio . 〈◊〉 witnesses in delicts and riots should not be admitted because they are socii criminis , no delict ( sayes the pursuer ) should ever be prov'd ; for ordinarly none are present but the committers . and since after their confession they may be pursued themselves , it is not probable that they will depone against others falsely , especially when they may be overtaken upon their own deposition . to which it is duply'd , that it is a rule in law , that socius criminis , nec pro , nec contra socium admitti potest , l. quoniam c. de test . mascard . conclus . 1418. by which it is clear , that the law makes no distinction whether he be adduced , for , or against his commorads , whether he be adduc'd in crimes , or delicts ; and socius criminis is not only repell'd from being a witnesse , because he stains his own fame , whilst he depones against his companions , but because the law presumes that being himself under the mercy of the pursuer , he will by an unjust deposition ransome himself from the event of the pursute , and therefore the law casts him as a witnesse ; for the law is unwilling to use those who hath offended it , and lawyers have alwise been unwilling to tempt men , by forcing them to depone upon their own errors , for they judged , that these who would commit a crime , would easily forswear it . and the law of the majesty formerly cited doth repell à testando socios criminis , & infames , whereas it needed not have exprest both , if it had comprehended the one under the other , and only repelled socios criminis , because they were infames . i perceive by lawyers , that sometimes they allow witnesses in attrocious and great crimes , whom they would not have admitted to prove crimes of lesse consequence , which proceeds both from the hatted they carry to these great crimes , a part of whose punishment it is that the crime can be easily prov'd : but likewise to the end the common-wealth may be the better secured ; whose great concern it is , that judges be not too nice and scrupulous in receiving witnesses against its enemies . nor did the law think , that men would be so base and malitious , as to seek the death of their enemies by a false deposition , even where possiblie revenge would be content to reach their estates . therefore , by the common law of nations in attrocious crimes , such as treason , simonie or sacriledge , socii & participes criminis admittuntur , l. quisquis c. ad l. jul . majest . glossa in l. ffin . c. de accus . specul . tit . de prob . § . 1. boer . quaest . 319. and according to our law it is appointed by an expresse act of sederunt , anno , 1591. that socii criminis may be witnesses in the cases of treason , and witchcraft ; but i do not at all read , that socius criminis is allowed to be led a witnesse in delicts , and all the reasons that militat for the former cause , do militat against this . nor is it possible to believe , that the law which allowes socii criminis to be witnesses in great crimes , because they are great , would likewise allow them to be led witnesses in small crimes , because they are small ; for so the law would contradict it self , and would build contrarieties upon the same foundation : and since the foresaid act , 1591. allowes them to be led witnesses in crimes of witchcraft , and treason , they ought not to be admitted in any other crime , how small so ever , for in privilegiatis , inclusio unius , est exclusio alterius . it is very clear , that the law would not admit the testimony of a partaker of the crime , to have the force of a presumption , nor to be the ground of an accusation , salicet . in l. ffin . c. de accus . nor gives it any credit to his deposition , though he were otherwise esteem'd a most credible person , probatissimae fidei , grammat . consil . 21. num . 3. nor doth it believe him though he were deponing against a person suspected to be guilty , bert. consil . 268. nor doth it believe a thousand such witnesses , though they agreed in their depositions , for all these joyned together weigh not one presumption , mascard . ibid. num . 8. by all which it may appear very clearly , that the law which respects socios criminis so little , doth in no case design to receive them in a criminal court , what ever may be debated for receiving them in civil courts , for proving civil conclusions . as to the inconvenience adduced , wherein it is contended , that if such witnesses were not admitted , no crime could be proved ; it is answered , that this argument would urge judges to receive socios criminis to be witnesses , as well in all crimes , as in small crimes ; for it is a brocard commonly received amongst the doctors , that quod admittitur ob incommodum , eo magis admittitur , quo magis urget incommodum ; and yet here it is confest , that they could not be admitted witnesses in murder , and those greater crimes . but the only natural conclusion that could be drawn from this inconvenience , is , that socii criminis should be admitted witnesses in occult crimes , such as conspiracies , but not in such crimes as this where there could be no penury of witnesses , being alledged to be commited in open day , in the midst of a town , and with a convocation . but to conclude all , i need only say , that my objection against these witnesses is founded upon an expresse law , and therefore it cannot be taken away by this distinction , except this distinction can be establisht upon , and maintained by another law as expresse . the justices found , that these minors being puberes , might be try'd , and so found that they should passe to the knowledge of an inqueist . 2. they found the father should passe to the knowledge of an inqueist , as art and part , though the principal actors were not yet discust . 3. they found , that socius criminis could not be received a witnesse in any criminal pursute , though the punishment could only reach to a pecuniary mulct . an answer to some reasons printed in england , against the overture of bringing into that kingdom , such registers as are used in scotland . in the first ages of the world , when man had not fallen so intirely as now from his original innocence , laws were made rather to govern reasonable men , then to prevent cheats . but when fraud did begin to grow up with subtilty , legislators being warned to guard against future abuses , by these they had seen committed , did in all places endeavour to reform their people , by reforming their laws , & sic ex malis moribus bonae ortae sunt leges ; and because wise men look upon themselves as sprung from the same divine original , therefore they have still been intent to borrow from one another , what excellent constitutions they found to have been invented by them . thus though scotland did adopt the laws of the romans ( called now the civil law ) into the first place next their own ; yet , such esteem hath that kingdom alwayes had for their neighbours of england , that they have incorporated into the body of their own laws , very many english forms and statutes . and as some sciences , trades and inventions flourish more , because more cultivat in one nation then another , humane nature allowing no universal excellency , and god designing thus to gratifie every countrey that he hath created ; so scotland hath above all other nations , by a serious and long experience , obviated most happily all frauds , by their publick registers . and though they are not furder concerned to recommend this invention to their neighbours , then in so far as common charity leads them , yet finding their registers so much mistaken in a discourse , entituled , reasons against registring reformation , i thought it convenient to represent a short account and vindication of them . registers are appointed in scotland , either for real rights ( for so we call all rights and securities of land ) or for personal obligations , by which a man binds his person , but not his estate . men sell their land in scotland , either absolutely , or under reversion ; if absolutely , it must be either to the sellers own superior , or to a stranger ; if to his superior of whom he holds his land , it is transmitted with us by an instrument of resignation in the hands of his superior , ad perpetuam remanentiam , whereby the propriety is consolidated with the superiority , and this instrument must be registrat . but if he sell it to a stranger , then the acquirer must be seased , and this sasine must be registrat within sixty dayes . or if a man do not absolutely dispone his estate , but retain a power to redeem the same , upon payment of the sum for which it is wodset or morgaged , then the paper whereby this power is allowed , is called a reversion , and it must be registrat within sixty dayes also . if any heretor be suspected by his friends to be prodigal , or unfit to mannage his own affairs , he interdicts himself to his friends in a paper , wherein he oblieges himself to do no deed without their consent : or , if a creditor who lent his money to an heretor , find that heretor intends to sell his estate , without paying him , albeit he did lend his money in contemplation of that estate , which the borrower then had ; he makes an application to the supreme judicature of the kingdom , called the lords of the session , and from them obtains a warrand to inhibit his debitor to sell that estate , till he be payed , which interdiction or inhibition must be first published at the mercat-cross where the lands lye , and then registrated within fourty dayes . there are two of these registers , or publick books , one in the chief town of the shire , and another at edinburgh , which serves for all the shires , and in either of these , all these sasings , reversions , interdictions , and inhibitions may be registrated : so that when any man intends to buy lands , he goes to the keepers of these registers , who keeps a short breviat of these in a book apart , called the minute book , ( bearing the day when any inhibition was presented against such a man , at the instance of such a man ) and there he finds for a crown , what incumbrances are upon the estate he intends to buy , and if he find none , he is secure for ever . as to personal bonds , they need not be registrated , but if the creditor resolve to secure his bond against lossing , or if his debitor refuse to pay his money , when he calls for it , then he gives in the original , or principal bond to the register , who keeps it still , and gets out an extract or coppy of it , collationed by my lord registers servants , and subscribed by himself or his depute ; for there is a register for bonds in every shire , town , and jurisdiction , as well as at edinburgh . this registration hath with us the strength of a judicial sentence , and warrands the creditor to charge his debitor , to pay under the pain of horning ( or out-lawry ) and if he disobey , the horning is registrated . and thus every man knows in what condition his debitor is , as to his personal estate , if he begin not to keep his credit ; and this register serves both for execution and information . this being the state of the registers in scotland , the usefulnesse of that institution , may appear from these following reasons . 1. there is nothing discourages men more from being vigilant in their employments , then when they apprehend that the money which is that product , by which their pains uses to be rewarded , cannot be secured to their posterity , for whose advantage they disquiet themselves , and coil so much . and thus the common-wealth will be but lazily served , trade will be starv'd , and ingenuous spirits discouraged . not is it to be imagined how purchasers will be , or are induced to be at much pains and expences , to improve their grounds , and adorn their dwellings ; when the loosnesse of their right layes them open to renewed hazards , nor can they enjoy with pleasure , what they cannot possesse with certainty . and what frail securities have such as are forced to rest upon the ingenuity of sellers , who of all people are least to be trusted ? for such as sell lands , are either prodigals , who are too vitious , or distrest persons , who are ordinarly under too many necessities to be believed . 2. registers are of all others , the greatest security against the forging of false papers ; for forgers use to conceal for some time , the papers they forge ; whereas the necessity of registrating them within such a time , will either fright the contrivers , from doing what they must expose to the light , or will at least furnish such as are concerned to have the fraud detected , with means which may be effectual , seing it is much easier to expiscat truth whilest the witnesses are alive , and all circumstances recent , then after that a long interval of elapsed time hath carried away the persons , and obscured the circumstances , from which truth could have received any light . 3. purchasers being fully secured by the publick faith of registers , need not burden the seller with a necessity of finding surety to them for the validity of the rights sold , which as it resolves still in an personal ( and consequently an unfixt ) security , for the buyers , so vexes very much the seller and his friends . 4. the security , which flowes from registers , cuts off much matter of pleading , and thereby defends against those feuds and picques , which last ever after amongst such as are concerned , and keeps gentlemen at home improving their estates , and merchants and tradsmen in their cantors , and shops , enriching the nation . 5. when men are to bestow their daughters , they are by our registers , informed , and assured of the condition of those with whom they deal , and by their means , men are kept from giving their daughters and their fortunes , or a considerable share thereof , to bankerupts , and cheats . likeas , the daughters are by them , secured in their joyntures , and not exposed after their husbands death , to tedious suits of law , the dependance whereof draws them to publick places , unfit for their sex , and the event whereof drives them to begging and misery . 6. by these , the price and value of land is much raised , for by how much more the purchase is certain , by so much more it is worth . 7. by these , heretors who are opprest by debt , are relieved by the sale of their lands , upon which buyers now adventure freely ; whereas , if they were to rely upon the faith of the sellers , their estates might continue unsold , till the rent of their money should eat up the stock . 8. by these , usury and unfrugal transactions with brockers and others , are much restrained ; for if purchases of lands were not secure , men would rather choose to hazard their money so , then upon land. 9. by these , parents know when their children , and kinsmen , when their relations debord , and burthen their estates , and are thereby warned to check , or assist them . 10. by these , strangers and forreigners are secured who resolved to match with us , or to purchase amongst us , for our registers are equally faithfull to all . 11. by these , commerce is very much secured ; for , if a merchant , or ordinary transacter refuse to pay his debts , then his bond is put in the publick register , by which the creditor is secured of payment , and the debitor is deterred from owing too much . 12. by these registers , papers are secured against fire , loss and accidents , to which they are exposed whilest they are kept in privat hands : whereas , after regstration , nothing can destroy them , but what ruines the whole kingdom , and even in that case , there is still hope of recovering publick registers , as in our last revolutions . in this last place , i must crave leave to wonder , why england hath already taken so much pains to secure against fraudulent cheating of creditors , and of buyers , as is clear from the statutes cited by the author , if they intend not to prosecute that worthy design . but as an evident mark to know whether registers be necessary , they may consider , that if any man in england can for a crown , know in the space of a day , the condition of these from whom he purchases , then registers are not necessary , but if otherwise , they are : if any lawyer in england can assure his client , that the purchase he makes is secure above all hazard , then registers are not necessary ; but if they cannot , then registers are necessary ; so that it seems england hath done too much already , or else that they should do more to secure their people . yet , since i only design to defend our own law , and not to impugn theirs , it were impertinent for me to recommend too zealously , that wherein i am not much concerned . against this so just and so necessary a constitution , founded so strongly upon reason , and approved so firmly by experience , the author of the reasons against registering reformation , hath put his invention and wit ( both which i confesse are very fertile ) upon the rack , to find out , and muster up some arguments , which owe their number and beauty to the unacquaintednesse of his country-men with the model he impugns , and which the author hath beat out by too much industry , to a thinnesse , that is not able to bear the weight he layes upon them . his first argument is founded upon the dangers that arise from innovations , wherein legislators are not able to have a full prospect of all inconveniences which may follow : but to this it may be answered , that the law of england had not deserved the honour done it by the author , nor had it swelled to its present bulk , if it had not been frequently augmented by new additions . and as to this project of keeping registers , england may be wise upon the hazard of their neighbours , who by being first practizers , have run all the risque , and taken all the pains which was necessar for accomplishing so great a design . the second reason bears , that by registers , the lownesse of the fortunes of such who suffered for his majesty , would be discovered , and they thereby exposed to much rigour from their creditors : but this i humbly conceive , proves more the contrary opinion , then that for which it is adduced ; for as it were injust to gratifie such as have suffered for his majesty , with the liberty of preying upon such as probably lent them , because they were of their principles , and of devouring poor widowes and orphans , whose necessities will doubtlesse load one day very much , the consciences of such as might have secured their petty fortunes by the help of the registers now proposed . and this argument presses no more against registers , then it doth against all those laudable and well-contrived statutes , which are already invented in england against fraudulent conveyances , forgeries and impostures ; for registers will not debar them from courses which are legal and honest . whereas it is in the third place urged , that commerce would be a great sufferer by registers , seing they would lay open the lownesse of mens fortunes , who do now enrich the kingdom , and themselves too , upon meer credit ; and that they would discover to forreigners , the low estate of england at present , and make every privat estate too well known . it is answered , that all these inferences are drawn from the authors unacquaintednesse with what he impungs , as was formerly observed ; for no man is oblieged to registrat a bond , which oblieges only to pay money ; nor do men registrat such , except where the debitor refuses to pay , and so these registers will not weaken commerce nor credit , seing commerce is not immediatly concerned in real estates : and even as to personal estates , or money , no man suffers by registers or is concerned in them , but such as have no respect to their credit , and commerce owes little to such ; whereas upon the other hand , the fear of this will be yet a further tye upon men to pay punctually , without which commerce will soon be starv'd . and by the registers , bankerupts will be soon discovered , whereby honest men who are the true nurses of trade will be much cherished and secured . and by this answer it appears clearly , that the riches of england , neither personal nor real can be made known by the registers ; for only the bonds of bankerupts are to be registrated , and though all real rights must , yet the quota of the real estate is not exprest in the papers to be registrated . after the author of that discourse against registering reformation found , that so unanswerable advantages arise from reg●sters , as that they could not be ballanced by the inconveniences which he laid in the other scale , he is pleased ( which is ordinary for such as cannot prevail by reason ) to reflect upon scotland , as a poor countrey , and against the scots as an unmercifull people , and to alledge , that their poverty , and feverity introduced those registers , and made them necessary with us , but that they would never agree with the rich , and tender-hearted english ; which reflections deserve rather our pitty , then our answer . leaving then this womanly way of arguing , as unfit for the scots , who study to be philosophers in their writings , as well as in their humours ; it is humbly conceived , that registers do restrain no mans compassion , for no man doth vertuously indulge his creditor , but he who knows the lownesse of his condition , which he cannot without registers ; ignorance is lesse the mother of vertue , then of devotion . registers prejudge only such as are cheats , and such deserve little compassion ; nor are our laws more severe against debitors who pay not , than the laws of england ; for both imprison such , and the only weak side in our law is , that it allows too much our judges to suspend the payment of debts , and i never heard the english , who live amongst us , complain of any other defect in our laws . our laws are extracted from the civil law , and such doctors as writ the law of nations ; and strangers understand our law sooner than any other law in the world , except their own ; and our captions for imprisoning debitors , who refuse to pay , are expresly warranted by that law of the romans ; which though it was the best law in the world , and is universally acknowledged to be such , yet was more severe then ours . the comparing of nations as to their poverty and riches , brings more heat then light ; nor can any difference betwixt the nations in these , make any difference as to this design ; or if it doth , it may be debated with reason , that registers are fitter for a rich , then a poor nation ; for where there are most buyers , and most land to be bought , registers are there most necessary , seing they were invented to inform buyers , as to the incumbrances wherein estates are involved by the multiplicity of purchasers . where there is but little land , and where the creditor is poor , there the creditor may have time , and leisure sufficient , to watch the small estate of his debitor . our nation supplies their neighbours with corns , and cattel , lead , copper , timber , coal , salt , and many other necessaries ; whereas in exchange of these , it receives only from them wine , spices , silks , and other superfluities , which as england , no more than scotland , hath growing within their countreys , so it is probable that both nations would live more happily without them : and thus it appears , that scotland is not so poor , as these reasons are . i would here put an end to these observations , if i were not unwilling to suffer that gentleman to continue in his error of thinking , that our registration of movable bonds ows its origin to the caursini , the popes brokers in england , and to the camera apostolica , under the reign of henry the third ; for as it is most improbable , that our nation would borrow so fundamental a constitution , from what was practis'd in a nation that was in enmity with them at that time ; so it is no way probable , they would have followed the methods of the popes agents at that time , when they were opprest by their master the popes endeavouring to subject their clergy of scotland , to the see of york , and by these agents themselves , in such mercilesse exactions . but the truth is , that though the compleating of this excellent constitution , is an honour due to scotland ; yet , its first origine is rooted in the roman law ; and most nations of the world do at this day use registers , which may be thus cleared . the romans , to restrain excessive donations , appointd them insinuari apud judicem , ut obviam iretur fraudibus , which insinuation was the same with our registrations ; thereafter they used regesta , quae vulgo registra , quasi regestaria dicuntur , illa erant acta tabulae publicae , which were at constantinople ; and in the eastern empire , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as prat. observes : and by vopiscus in probo , are called registra . usus est enim ( inquit vopiscus ) registris , scribarum porticus prophyreticae . the romans had likewise publick books , wherein papers were preserved , which were under the western empire called archiva tabularia & tablina , but under the eastern empire were called grammatophilacia , ubi instrumenta publice deponuntur , as ulpianus observes , l. moris . ff . de paenis , § 6. that other nations besides scotland use to preserve their papers in publick places , and appoint their privat rights to be made publick and known by registering them , appears from alex. consil . 16. wherein he treats of the registers civitatis rheg . and by his consil . 23. wherein he treats of the registers civitatis arimini ; and at rome they use regestrum supplicationem apostolicarum ; and another register literarum apostolicarum , castr. consil . 345. but the registers used by us , have been allowed , and imitated by the french most exactly ; for a constitution , anno , 1553. made by hen. 2. provides , that all dispositions , contracts and obligations exceeding fifty livres , shall be registrat ; and if it be not registrat , it shall be null , in so far as concerns third parties ; the narrative of which law , proves the advantageousnesse of registers ; for it bears , that after all other means have been essayed , we find that there was none save this of registers to make our subjects live in assurance , to obviat all debates , and to prevent cheats : in which , and these other constitutions which follow upon it , all the methods used by us are exactly set down , such as the marking of registers in every leaf , the having particular registers in every inferior jurisdiction , and the marking of the principal , or original papers upon the back ; there also the coppies collationed are called extracts . but that in this they imitated us , is clear , for we had registers before the year , 1449. because by the twenty seventh act , fifth parl. ia. 3. reversions are appointed to be registrated ; which act speaks of registers as then in being , and fully established . i find also , that in the old hansiatick maritime laws , tit . 11. art . 4. it is provided , that nullus nautarum , ullam silliginem , aut alia bona navi importet , vel exportet , sine scitu naucleri , & scribae navalis ubi etiam in registro poni debent . which i observe to clear , that all ages and nations , traffiquers by sea , as well as lawyers by land , have thought registers advantageous for commerce , and a sure fence against cheats : and if registers be necessary in such mean , and transitory occasions , as loadings and moveables , much more are they necessary in lands , which as they are of the greatest importance , so are of the longest duration . since then registers have been found so advantageous , and that experience hath herein seconded reason , it is humbly conceived , that scotland is much to be magnified for their registers ; and that england may , without disparagement , introduce this new amongst their old statutes , whereby they cannot be so properly said to innovat , as to enrich and augment their own law , nec pudet ad meliora transire . but , i know that nation to be so wise and provident , that if they understood our registers , as well as they do their own concern , they would easily prefer them to those reasons , which this gentleman has offered against them . finis . adde before the figure 2. lin . penult . page 27. in answer to the french pleading . and that this condition can only be purified , or satisfied by a natural , and not by a civil or fictitious death , is clear by very expresse laws , as l. 8. ff . de . cap. dimin : where it is said , eas obligationes quae ' naturalem praestationem habere intelliguntur , palam est capitis diminutione non perire , quia civilis ratio naturalia jura corrumpere non potest . thus gaius , one of the best roman lawyers hath said , that such interpretations doth corrupt the law , and in effect mix things that are very different , invading the limits of nature , and stretching fictions furder than they ought to go : and therefore , such criminal sentences as do not really kill , sed fictione civili caput diminuunt , are not termed death , but a punishment next to death , deinde proxima morti paena , damnatio in metallum , l. capitalium , ff . de paenis . this likewise papiniam decides , l. 121. ff . de verb. oblig . in insulam deportato reo promittendi stipulatio ita concepta cum morieris dari non nisi moriente eo committitur . and upon the same ground , l. cum pater , § hereditatem , ff . de legat . 2. he determines our case expresly , and asserts , that such sentences cannot in fidei-commissis , be accounted death , haereditatem filius cum moreretur , suis vel cui ex his voluisset restituere fuerat rogatus , quo interea in insulam deportato , eligendi facultatem non esse paena peremptam placuit ; nec fidei commissi conditionem , aut mortem filii haeredis existere : with whom agrees , paulus l. statius § . cornelia foelici , ff . de jure fisci , cornelia felici mater scripta haeres rogata erat restituere hereditatem post mortem suam , cum haeres scripta condemnata esset , & à fisco omnia bona mulieris occuparentur ; dicebat foelix se ante paenam esse , hoc enim constitutum est , sed si nondum dies fidei commissi venisset , quia potest ipse mori , vel etiam mater alias res acquirere repulsus est interim à petitione . thus we see , that all the roman lawyers have conspired to allow only natural death , to satisfie such conditions as this is ; death is the last of all things , rerum ultima linea , and therefore these sentences leaving still room to hopes and expectations , cannot be called death , which with the person cuts off all these . it is thought by the best of men already , that death comes too soon , why then should we precipitat it , and force it upon men before its time ? and since one death is thought by all a severe enough punishment , why should we multiply a thing that is but too oft too unwelcome ? death is too serious a hing , to be counterfei●ed by such ●fictions , and too severe thing to be quibled upon , by such interpretations . adde to pag. 124. lin . 20. at these words , after victuall was expresly prohibited . i find , that by the roman law , l. 2. c. que res export . non deb . it is declared unlawfull to carry or sell arms to the enemies of rome ; but though in law , all that is not forbidden is allowed , and that there be there a full enumeration of what should not be carryed into enemies , yet corn is not at all specified . and by the canon law , all such as supply turks , and the other enemies of christian religion , with guns , swords , & aliis metallorum generibus , & instrumentis bellicis , are an thematiz'd ; yet , there is no execration pronunced against such as supply them with victuals : and though to carry wine or oyl to barbarians was punishable by the roman law , l. 1. c. e●d . ne quidem gustus causa , aut usus commerciorum , least the delicacies of the italian fruits should have tempted those to invade it , yet , that law did not at all reach their allies , nay , nor did it so much as prohibit even in subjects , the sending corn to enemies who were not barbarians : so that what ever may be alledged against allies , who buy corns to carry into enemies ; yet it seems most unjust that the swedes , who carry in only their own product , either corn , or stock-fish to sell them , should be proceeded against as enemies upon that account , and at this rate , sweden could no where sell their corn , nor other native commodities , for they can only vent them either in holland , france , england , or denmark , and all those being now ingadged in this war , the poor swedes behoved to loss all their own rents , and want all these necessaries with which they can only be supplied from the product of these , and here the swedes cannot be so properly said to supply the hollanders , as to entertain themselves , and his majesty would sooner starve thus his allies , then his enemies . and though princes may impose these hard terms upon their own subjects , yet it were hard they could tye their allies to the same terms : which makes me believe , that the decisions related by boer , decis . 178. and by christinaens , decis . 64. wherein they relate , that the exportation of corns in time of war is a sufficient reason for confiscating both ship and goods , frumenta , vina & olea , existente prohibitione ad exteros , praesertim inimicos , exportare non licet , christian. ibid. for exportation being only prohibited , it can only extend to subjects ; for none can export properly , but they ; for allies cannot be said to export when they trade , for to export is to carry out of the place where the prohibition was made . i confesse , that the carrying in corns to holland may seem a greater supply to them , then it would be to any other nation , because their countrey cannot supply them with its native product ; yet , since they have the ●bine , the me●z , and other rivers open to them , in which his m●jesties ships cannot stop their commerce , they will be abundantly supplied with corns , though sweden could be bound up by this treaty from supplying them : so that his majesty will prejudge thus his allies the swedes , in their commerce , without wronging his enemies , as to corn or other provision . and to clear , that the comeatus here prohibited , is only corn carryed in to citties besieged , or to armies of the enemies , but that our allies are not absolutely prohibited to carry corns to any who are in enmity with us ; your lordships will be pleased to consider , that comeatus signifies properly , a liberty granted to souldiers to go and return salvum conductum , as is most clear by the whole title , c. de commeatu . and though some have taken the word thereafter in a translatitious sense , pro cibariis & alimoniis exercitus , yet to extend that to all corn carryed in by way of commerce to an enemies countrey ; seems very hard ; especially where it is not carryed in alimoniae sed commercii ergo , and though corn as the staff of life ; be sometimes specially prohibited , yet that should not be extended to stock-fish and other lesse necessary provisions : and though it were extended to these , yet the carrying so small a quantity could no more be esteemed a contravention of the treaty , then the carrying a little money ( without which there can be no trade ) could be esteem'd a breach of that part of the treaty , whereby pecunia or money is ordained not to be carryed ; si quis ab initio sui usus causa exportaverit , postea vero quia non indigeret partem vendidit legem non offendit , ludovic . conclus . 25. circa modum usus tunc praesumitur cum modico quantitas vendita est , tuld . tit . c. quae res export , num . 6. from which i conclude , that the prohibition of carrying in money , or victualls , can only reach those who carry them in great quantities , or to besieged citties , or armies , or principally for the advantage of the enemies , and for strengthening them in war against his majesty ; for since to restrain this , is the only design of the treaty , the words in the treaty should be interpreted suitably to this design : and thus this poor ship can only be condemned for its original sin , having carryed contraband in the former voyage .