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 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 \.- xv JFL ^'Jil
 
 mi? im? j
 
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 "3 
 
 O
 
 
 the 
 
 Doctor and Student 
 
 DIALOGUES 
 
 BETWEEN A 
 
 DOCTOR OF DIVINITY AND A STUDENT IN THE 
 LAWS OF ENGLAND 
 
 CONTAINING THE 
 
 GROUNDS OF THOSE LAWS 
 
 TOGETHER WITH 
 
 QUESTIONS AND CASES CONCERNING THE EQUITY THEREOF 
 REVISED AND CORRECTED 
 
 By WILLIAM MUCHALL, Gent 
 
 TO WHICH ARE ADDED TWO PIECES CONCERNING 
 
 SUITS IN CHANCERY BY SUBPCENA 
 
 I. A Replication of a Serjeant at the Laws of England, to certain Points alledged by a 
 
 Student of the said Laws of England, in a Dialogue in English between 
 
 a Doctor of Divinity and the said Student. 
 
 II. A little Treatise concerning- Writs of Subpcena. 
 
 CINCINNATI 
 
 ROBERT CLARKE & CO 
 
 1880
 
 ,/ 
 
 Sa
 
 PREFACE. 
 
 It is presumed that no particular apology is necessary to be 
 made for introducing to the notice of the profession a new 
 edition of the Doctor and Student;* a book which has been 
 considered of the first authority, not only by the best and most 
 admired of our legal writers,! but by the courts of Westminster- 
 hall. 
 
 The species of composition in which it is written must likewise 
 add to its value, and intitle it to approbation.]: Dialogue is uni- 
 versally allowed to be an agreeable method of writing, which 
 never fails to instruct more than any other, by its peculiar tendency 
 to make a more favorable and lasting impression upon the mind. 
 
 Perhaps the language is not so pure as might be expected from 
 a modern author, nor so correct as altogether to adapt itself to 
 the taste of the curious. But this is a defect (if a defect it can 
 be called) which should be overlooked for the intrinsic merits of 
 the book itself. Coke upon Littleton, and the ancient Reports, 
 which contain such a variety of matter, and such a fund of legal 
 information, are not perhaps superior in point of style to the 
 
 * The original author was Christopher Saint Germain, of the Inner 
 Temple, a barrister of such extensive knowledge in the laws of his country, 
 that he was supposed to be equal to most men of his time. Soon after his 
 book was published, (which was in the year 1518,) he was engaged in a 
 smart controversy with a Serjeant at law relative to a point of doctrine 
 advanced by him in the twelfth chapter of the first dialogue, the par- 
 ticulars of which maybe seen in the first volume of Mr. Hargrove's Col- 
 lection of Tracts. He was moreover excellently skilled in fhe civil and 
 canon laws, ami well acquainted with most of the liberal sciences. Alter 
 spending a long life of much piety, usefulness, and integrity, he died at the 
 age of eighty, and was buried in the parish church of St. Alpliage. Loudon, 
 near Cripflegate. 
 
 t See Mr. Reeve's History of the English law. 4th vol., p 416; Sii 
 William Jones's essay on the Law of Bailments, and Blackst one's Com- 
 ment iries, in which the Doctor and Student is quoted or mentioned with 
 peculiar marks of respect. 
 
 I Vide the introduction to a work of the late Mr. Jacol>, in titled the 
 
 Student's Companion, p. 4. 
 
 (iii) 
 
 ^ 
 
 5 
 
 '21742
 
 IV PREFACE. 
 
 Doctor and Student, and yet no one who is disposed to make a 
 steady progress in his profession will object with any degree of 
 seriousness to the quaintness of expression which he will find in 
 those valuable repositories of ancient learning. On the contrary, 
 he will perceive it to be his business to attend more to things than 
 words, and that he is not to quarrel with his author, because his 
 grammar may be false, or his diction unpolished. 
 
 For these reasons, and others that might be named, the Editor 
 did not judge it prudent in him to alter the language, as some 
 might expect, but has left it just in the same state in which it ap- 
 peared in the last edition. He thinks nothing could have justi- 
 fied such an alteration. Were not the editors of Swinburne on 
 Wills and Testaments justly censured for presuming to correct the 
 style of that learned performance ?* 
 
 All that has been done therefore in the present edition of the 
 Doctor and Student is merely an addition of some notes and 
 references which have been inserted with a view to illustrate the 
 subject matter, and to shew how the law has been altered by acts 
 of parliament and judicial decisions. In the execution of his 
 plan it will be seen that the Editor has had much labour, and 
 taken considerable pains. But these are circumstances which will 
 be considered of no great moment with him, if his endeavours 
 may in any measure contribute to ease the difficulties, to lessen 
 the embarrassments, and to improve the mind of a young beginnei 
 in the study of our English jurisprudence. 
 
 * See 4 Burn's Eccl. Law, 371, 372.
 
 THE 
 
 TABLE 
 
 FIRST DIALOGUE. 
 
 The Introduction I 
 
 Chap. i. Of the law eternal 2 
 
 II. Of the law of reason, the which by doctors is called the law of na- 
 
 ture of reasonable creatures 5 
 
 III. Of the law of God 7 
 
 IV. Of the law of man 9 
 
 V. Of the first ground of the law of England 12 
 
 VI. Of the second ground of the law of England 15 
 
 VII. Of the third ground of the law of England 17 
 
 VIII. Of the fourth ground of the law of England 25 
 
 IX. Divers cases wherein the student doubteth whether they be only 
 maxims of the law, or that they be grounded upon the law of 
 reason 31 
 
 X. Of the fifth ground of the law of England 34 
 
 XI. Of the sixtji ground of the law of England 35 
 
 XII. The first question of the doctor, of the law of England and con- 
 science 37 
 
 XIII. What sinderesis is 3y 
 
 XIV. Of reason 40 
 
 XV. Of conscience 41 
 
 XVI. What is equity 44 
 
 XVII. In what manner a man shall be holpen by equity in the laws 
 
 of England 47 
 
 XVIII. Whether the statute hereafter rehearsed by the doctor be 
 against conscience, or not 50 
 
 XIX. Of what law this question is to be understood ; that is to say, 
 where conscience shall be ruled after the law 52 
 
 XX. Divers cases where conscience is to be ordered alter the law.... 56 
 
 XXI. The first question of the student. If any infant that is of the 
 age of twenty years, and hath reason and wisdom to govern him- 
 self, selleth his land, and with the inonev thereof buyeth other 
 
 " (vii)
 
 Vlll THE TABLE. 
 
 land of greater value than the first was, and taketh the profits 
 thereof; whether may the infant ask his first land again in con- 
 science, as he may by the law? 60 
 
 XXII. The second question of the student. If a man that hath lands 
 for term of life be impanelled upon an inquest, and thereupon 
 leeseth issues, and dieth ; whether may those issues be levied 
 upon him in the reversion in conscience, as they may be by the 
 law? 62 
 
 XXIII. The third question of the student. If a tenant for term of 
 life, or years, do waste, whereby they be bound by the laws to 
 yield to him in the reversion treble damages, and so shall forfeit 
 the place wasted; whether he is also bound in conscience to pay 
 those damages, and to restore that place wasted immediately after 
 the waste done, as he is in the single damages, or that he is not 
 bound thereto till the treble damages and place wasted be recov- 
 ered in the king's court 64 
 
 XXIV. The fourth question of the student. If a man enfeoff other 
 in certain land upon condition that if he enfeoff any other, that 
 it may be lawful for the feoffor and his heirs to re-enter, etc., 
 whether is this condition good in conscience, though it be void in 
 
 the law ? 64 
 
 XXV. The fifth question of the student. If a fine with proclamation 
 be levied according to the statute, and no claim made within five 
 years, etc., whether is the right of a stranger extincted thereby in 
 conscience, as it is in the law? 66 
 
 XXVI. A question made by the doctor, how certain recoveries that be 
 used in the king's courts to defeat tailed land may stand with 
 conscience 6S 
 
 XXVII. The first question of the student concerning tailed lands 81 
 
 XXVIII. The second question of the student concerning tailed lands.. Si 
 
 XXIX. The third question of the student concerning tailed lands.... S4 
 
 XXX. The fourth question of the student concerning recoveries of in- 
 heritances intailed S7 
 
 XXXI. The fifth question of the student concerning tailed lands 88 
 
 XXXII. The sixth question of the student concerning tailed lands 91
 
 THE 
 
 TA B L E 
 
 SECOND DIALOGUE. 
 
 The Prologue 9', 
 
 The Introduction 98 
 
 Chap. 1. The first question of the student. Whether the tenant in tail 
 
 after possibility of issue extinct may with conscience do waste- .. 101 
 
 II. What is meant by this term, when it is said, Thus it ivas at the 
 common law 105 
 
 III. The second question of the student. Whether the goods of men 
 outlawed be forfeit in conscience, as they be by the law 107 
 
 IV. The third question of the student, of waste done by a stranger in 
 the lands that be in the hands of particular tenants, etc in 
 
 V. The fourth question of the student Whether a man may with 
 
 conscience be of counsel against him that he knoweth is the heir 
 
 of right, but he is certified bastard by the ordinary 115 
 
 VI. The fifth question of the student. Whether a man may with con- 
 science be of counsel with a man at the common law, knowing that 
 the defendant hath sufficient matter to be discharged in the 
 chancery, that he may not plead at the common law 118 
 
 VII. The sixth question of the student. Whether a man may with 
 conscience be of counsel against the feoffee of trust in an action 
 of trespass that he bringeth against his feolYor of trust for taking 
 the profits .. 120 
 
 VIII. The seventh question of the student. If a man by way of dis- 
 tress cometh to his debt, but he ought not to have distrained for it, 
 what restitution is he bound to make 122 
 
 IX. For what thing a man may lawfully distrain 125 
 
 \. The eighth question of the student. Whether executors be bound 
 
 in conscience to make restitution for a trespass done by a testator; 
 and whether they be bound to pay debts upon a contract first, or 
 
 make i\^ said restitution 128 
 
 XI. The ninth question of the student. Whether he that hath goods 
 delivered him by force of a legacy is bound in conscience to pay
 
 THE TABLE. 
 
 the debt upon a contract that the testator ought, if the executors 
 have no other goods in their hands 133 
 
 XII. The tenth question of the student. If a man have issue two sons, 
 and die seised of certain lands in fee, the eldest dieth without 
 issue, the youngest recovereth by assise of Mort cV 'ancestor the land, 
 with damages from the death of the father, whether there he be 
 bound in conscience to pay the profits to the executors of the 
 eldest brother for the time he lived 136 
 
 XIII. The eleventh question of the student. What damages the tenant 
 in dower shall recover in conscience where her husband died not 
 seised, but she demanded her dower, and was denied 138 
 
 XIV. The twelfth question of the student. If a man knowing another 
 to have right to his land, causeth a fine with proclamation to be 
 levied, according to the statute, and he that hath right maketh no 
 claim within five years, whether he be barred in conscience, as he 
 
 is in the law »•« 142 
 
 XV. The thirteenth question of the student. If a man that hath a 
 child by his wife, do that in him is, to have had possession of his 
 wife's land, and she dieth before he can have it, whether in con- 
 science he shall be tenant by the courtesy 143 
 
 XVI. The fourteenth question of the student. If the grantor of a rent 
 enfeoffeth the grantee of the rent of part of the lands, etc., 
 whether the whole rent be extinct in conscience, as it is in the 
 law 146 
 
 XVII. The fifteenth question of the student. If he that hath a rent out 
 of two acres be named in a recovery of the one acre, he not 
 knowing thereof, etc., whether his whole rent be extinct in con- 
 science, etc 151 
 
 XVIII. The sixteenth question of the student. If a man have a villein 
 for term of life, and the villein purchaseth lands in fee, and he 
 that hath the villein entereth, whether he may witli conscience 
 keep the lands to him and to his heirs, as he may by the law 153 
 
 XIX. The seventeenth question of the student. If a man in the case 
 next before inform him that is in the reversion of the villein, that 
 after the death of the villein he hath right to land, and counselleth 
 him to enter, whereupon great suit and charges follow, what 
 danger is this to him that gave the counsel 156 
 
 XX. The eighteenth question of the student, upon a feoffment made 
 upon condition, that the feoffee shall pay a rent to a stranger, 
 how the feoffment shall weigh in law and conscience 159 
 
 XXI. The nineteenth question of the student, upon a feoffment in fee, 
 and it is agreed that the feoffee shall pay a rent to a stranger, how 
 feoffment shall weigh in law and conscience i6 2 
 
 XXII. I low uses "I' land first began, and by what law, and the cause 
 why so much land is put in use 165 
 
 XXIII. The diversity between two cases, whereof one is put in the 
 twentieth chapter, and the other in the twenty-first chapter of this 
 present book 17a
 
 THE TABLE. x j 
 
 XXIV. What i- a nude contract, or naked promise, after the laws of 
 England, and whether any action may lie thereon 176 
 
 XXV. The twentieth question of the student. If a man that hath two 
 sons, one before espousals, and the other after e6pou6als, by his 
 will bequeatheth to his son and heir all his goods, which of the 
 sons shall have his goods in conscience ^i 
 
 X\\ I \\ h li ran abbot may with conscience present to an advow- 
 son of a church that belongeth to the house, without assent of the 
 covent • jg_ 
 
 XXVI] If a man find beasts in his ground doing hurt, whether he 
 may by his own authority take them, and keep them, till he be 
 satisfied of the hurt If)I 
 
 XXVIII. Whether a gift made by one under the age of twenty-five 
 years be good I( ^ 
 
 XXIX. If a man be convict of heresy before the ordinary, whether his 
 goods be forfeited IQ - 
 
 XXX. Where divers patrons of an advowson, and the church voideth, 
 the patrons vary in their presentments, whether the bishop shall 
 have liberty to present which of the incumbents that he will or 
 not 196 
 
 XXXI. How long time the patron shall have to present to a benefice. 199 
 
 XXXII. If a man be excommenged, whether he may in any case be 
 assoiled without making satisfaction 202 
 
 XXXIII. Whether a prelate may refuse a legacy 203 
 
 XXXIV. Whether a gift made under a condition be void, if the sover- 
 eign only break the condition 207 
 
 XXXV. Whether a covenant made upon a gift to the church, that it 
 shall not be aliened, be good ^oq 
 
 XXXVI. If the patron present not within six months, who shall 
 present ,„ 
 
 XXXVII. Whether the presentment and collation of all benefices and 
 dignities, voiding at Rome, belongeth only to the pope 217 
 
 XXXVIII. If a house by chance fall upon a horse that is borrowed. 
 who shall bear the loss „ Iq 
 
 XXXIX. If a priest have won much goods by saying of mass, whether 
 
 be may give those goods, or make a will of them 221 
 
 XL. Who shall succeed a clerk that dieth intestate 224 
 
 XLI. If a man be outlawed of felony, or be attainted of murder or 
 
 felony, or that i< an A.scismus, maybe slain by every stranger 226 
 
 XLII. Whether a man shall be bounden by the act or offence of his 
 
 servant or officer 
 
 :S 
 
 XLIII. Whether a villein or a bondman may give away his goods 236 
 
 XLIV. If a clerk be promoted to the title of his patrimony, and after 
 selleth his patrimony, ami after falleth to poverty, whether shall 
 
 he have his title therein 240 
 
 XLV. Divers questions taken by the student out of the sums called 
 Summa Rosella and Summa Angelica, which he thinketh are
 
 Xll THE TABLE. 
 
 necessary to be seen how they stand and agree with the laws of 
 
 the realm , 
 
 >43 
 
 XL VI. Where ignorance of the law excuseth in the laws of England, 
 
 and where not 248 
 
 XLVII. Certain cases and grounds where ignorance of the deed ex- 
 cuseth in the laws of England, and where not 253 
 
 XL VIII. The first question of the doctor, how the lawof England may 
 be said reasonable, that prohibiteth them that be arraigned upon 
 an indictment of felony or murder, to have counsel 256 
 
 XLIX. The second question of the doctor, whether the warranty of 
 the younger brother that is taken as heir, because it is not known 
 but that the eldest brother is dead, be in conscience a bar unto the 
 eldest brother as it is in the law 259 
 
 L. The third question of the doctor, whether if a man prosecute a 
 collateral warranty, to extinct a right that he knoweth another man 
 hnth to land, it be a bar in conscience, as it is in law 262 
 
 LI. The fourth question of the doctor, of the wreck of the sea 265 
 
 LII. The fifth question of the doctor, whether it stand with conscience 
 to prohibit a jury of meat and drink till they be agreed of their 
 verdict 268 
 
 LIII. The sixth question of the doctor, whether the colours that be 
 given at the common law in assises, actions of trespass, etc., stand 
 with conscience, because they be most commonly feigned 269 
 
 LIV. The seventh question of the doctor, concerning the pleadings in 
 assise, whereby the tenants use sometime to plead in such manner 
 that they shall confess no ouster 274 
 
 LV. The eighth question of the doctor, whether the statute of forty- 
 five Edward the Third, of Sylva ccedua, stand with conscience. ... 278
 
 TABLE 
 
 ADDITIONS. 
 
 Chap. I. What power the parliament hath over such things as be 
 brought with dead bodies to their burials, and that be claimed by 
 some curates to pertain to their church • 3°3 
 
 II. Whether the parliament may enact, that no lands shall come here- 
 
 after into mortmain by licence nor without licence 308 
 
 III. Whether the parliament may break all appropriations that be 
 made against any statute, or against the good order of the people 309 
 
 IV. That all sanctuaries, and also who shall have his clergy, be under 
 the power of the parliament, to order as they shall think con- 
 venient 311 
 
 V. What power the parliament hath in the trees and grass in church- 
 
 yards 312 
 
 VI. What the parliament may do touching suits for dilapidations 
 taken in the spiritual court 314 
 
 VII. Whether the parliament may enact that no priest shall wear any 
 cloth made out of the realm, and whether it may order the salary 
 
 of chaplains 316 
 
 VIII. If there were a schism in the papacy, what the parliament might 
 
 do therein 319 
 
 IX. If it were enacted, that if one call another thief or murderer, that 
 the suit should be taken thereupon in the king's court, and not in 
 the spiritual court, I think the statute were «,'ood 324 
 
 X. Whether the parliament may enact, that no religious person, under 
 
 a certain pain, shall receive into the habit of their religion any 
 
 child under a certain age to be appointed by the parliament 325 
 
 XI- Whether the parliament may prohibit, that no ordinary, under a 
 certain pain, shall admit none to the order of priesthood, except 
 they be sufficiently learned 32S 
 
 XII. Who shall have the tithes of the waste grounds that be within no 
 parish, and what power the parliament hath therein 331 
 
 XIII. What authority the parliament hath concerning visitations 336 
 
 Cxiii)
 
 DOCTOR AND STUDENT. 
 
 INTRODUCTION. 
 
 A doctor of divinity, that was of great acquaintance and 
 familiarity with a student in the laws of England, said thus 
 unto him : I have had a great desire of long time to know 
 whereupon the law of England is grounded ; but because 
 the most part of the law of England is written in the French 
 tongue, therefore I cannot, through mine own study, attain 
 to the knowledge thereof; for in that tongue I am nothing 
 expert. And because I have found thee a faithful friend 
 to me in all my business, therefore I am bold to come to 
 thee before any other, to know thy mind, what be the very 
 grounds of the law of England, as thou thinkest. 
 
 Sited. That would ask a great leisure, and it is also above 
 my cunning to do it : nevertheless, that thou shalt not think 
 that I would wilfully refuse to fulfil thy desire, I shall with 
 good will do that m me is to satisfy thy mind. But I pray 
 thee that thou wilt first shew me somewhat of other laws 
 that pertain most to this matter, and that doctors treat o\\ 
 how laws have been begun ; and then I will gladly shew 
 thee, as methinketh, what be the grounds of the law of 
 England. 
 
 Doc/. I will wit!; good will do as thou savest. Where- 
 fore thou Shalt understand that doctors treat of four laws.
 
 Introduction. 
 
 the which (as me seemeth) pertain most to this matter. The 
 first is the lazv eternal. The second is the lazv of nature 
 of reasonable creatures, the which, as I have heard say, is 
 called by them that be learned in the law of England, the 
 lazv of reason. The third is the law of God. The fourth 
 is the lazv of man. And therefore I will first treat of the 
 lazv eternal.
 
 DIALOGUE I. 
 
 Chapter I. — Of the law eternal. 
 
 Like as there is in every artificer a reason of such like 
 things as are to be made by his craft : so likewise it be- 
 hoveth that in every governor there be reason and a tore- 
 sight in the governing of such things as shall be ordered 
 and done by him to them that he hath the governance of. 
 And forasmuch as Almighty God is the creator and maker 
 of all creatures, to which he is compared as a workman to 
 his works, and is also the governor of all deeds and mov- 
 ings that be found in any creature : therefore as the reason 
 of the wisdom of God (inasmuch as creatures be created 
 by him) is the reason and foresight of all crafts and works 
 that have been or shall be ; so the reason of the wisdom of 
 God, moving all things by wisdom made to a good end, 
 obtaineth the name and reason of a law, and that is called 
 the law eternal. 
 
 And this law eternal is called the first law : and it is well 
 called the first, for it was before all other laws, and all other 
 laws be derived of it. Whereupon St. Augustine saith, in 
 his first book of free arbitrement, that in temporal laws 
 nothing is righteous tie lazef/il . but that the feople have 
 derived to the/// out ol the laze eU rt/al. Wherefore every 
 man hath right and title to have ihat he hath righteously, 
 ami of right wise judgment of the first reason, which is the 
 law eternal. 
 
 Stud. But how may this law eternal be known? For, as 
 the apostle writeth in tin- second chapter if his first epistle
 
 Doctor and Student. 
 
 to the Corinthians, quce stent Dei nemo scit, nisi Spirilus 
 Dei ; that is to say, no man knoweth what is in God but the 
 Spirit of God : wherefore it seemeth that he openeth his 
 mouth against heaven, that attempteth to know it. 
 
 Doct. This law eternal no man may know, as it is in it- 
 self, but only blessed souls that see God face to face. But 
 Almighty God of his goodness sheweth of it as much to his 
 creatures as is necessary for them, ior else God should bind 
 his creatures to a thing impossible ; which may in no wise 
 be thought in him. Therefore it is to be understood that 
 three manner of ways Almighty God maketh this law eter- 
 nal known to his creatures reasonable. First, by the light 
 of natural reason ; secondly, by heavenly revelation ; 
 thirdly, by the order of a prince, or any other secondary 
 governor that hath power to bind his subjects to a law. 
 
 And when the law eternal or the will of God is known 
 to his creatures reasonable by the light of natural under- 
 standing, or by the light of natural reason, that is called 
 the law of reason : and when it is shewed by heavenly 
 revelation in such manner as hereafter shall appear, then 
 it is called the lazv of God: and when it is shewed unto 
 him by the order of a prince, or of an}' other secondary 
 governor that hath a power to set a law upon his subjects, 
 then it is called the lazv of man, though originally it be 
 made of God. For laws made by man that hath received 
 thereto power of God, be made by God. Therefore the 
 said three laws, that is to say the law of reason, the law of 
 God, and the law of man, the which hath several names 
 after the manner as they be shewed to man, be called in 
 God one law eternal. 
 
 And this is the law of which it is written proverbiorum 
 octavo, where it is said, per me reges regnant and legum 
 conditores justa diseernant ; that is to say, by me kings 
 reign, and makers of law discern the truth. And this suf- 
 ficed! for this time for the law eternal.
 
 Dialogue I. — Chap. 2. 
 
 Chap. II. — Of the law of reason, the which by doctors is 
 called the law of nature of reasonable creatures. 
 
 First it is to be; understood, that the law of nature may 
 be considered in two manners, that is to say, general lv and 
 specially. When it is considered generally, then it is 
 referred to all creatures, as well reasonable as unreasonable : 
 tor all unreasonable creatures live under a certain rule to 
 them given by nature, necessary to them for the conserva- 
 tion of their being. But of this law it is not our intent to 
 treat at this time. The law of nature specially considered, 
 which is also called the law of reason, pertaineth only to 
 creatures reasonable, that is, man, which is created to the 
 image of God. 
 
 And this law ought to be kept as well among Jews and 
 Gentiles, as among christian men : and this law is alway 
 good and righteous, stirring and inclining a man to good, 
 and abhorring evil. And as to the ordering of the deeds 
 of man, it is preferred before the law of God, and it is 
 written in the heart of every man, teaching him what is to 
 be done, and what is to be fled ; and because it is written in 
 the heart, therefore it may not be put away, ne it is never 
 changeable by no diversit}- of place, ne time : and there- 
 fore against this law, prescription, statute nor custom may 
 not prevail : and it any be brought in against it. they be 
 not prescriptions, statutes nor customs, but things void and 
 against justice.* And all other laws, as well the laws of 
 God as to the acts of men, as other, be grounded there- 
 upon. 
 
 Stud. Sith the law of reason is written in the heart of 
 every man, as thou hast said before, teaching him what is 
 to be done, and what is to be fled, and the which thou sayest 
 may never be put out of the heart, what needeth it then to 
 have any other law brought in to order the acts and deeds 
 of the people? f 
 
 * Hob- 14S; Consideration on the law of forfeitures, 20, 21. 
 f 7 Rep. 12.
 
 Doctor and Student. 
 
 Doct. Though the law of reason may not be changed, 
 nor wholly put away ; nevertheless, before the law written, 
 it was greatly lett and blinded by evil customs, and by many 
 sins of the people, beside our original sin ; insomuch that 
 it might hardly be discerned what was righteous, and what 
 was unrighteous, and what was good, and what evil. 
 Wherefore it was necessary, for the good order of the peo- 
 ple, to have many things added to the law of reason, as 
 well by the church as by secular princes, according to the 
 manners of the country and of the people where such ad- 
 ditions should be exercised. And this law of reason dif- 
 fereth from the law of God in two manners. For the law 
 of God is given by the revelation of God ; and this law is 
 given by a natural light of -understanding. And also the 
 law of God ordereth a man of itself, by a nigh way, to the 
 felicity that ever shall endure ; and the law of reason or- 
 dereth a man to the felicity of this life. 
 
 Stud. But what be the things that the law of reason 
 teaches to be done, and what to be fled? I pray thee 
 shew me. 
 
 Doct. The law of reason teacheth, that good is to be 
 loved, and evil is to be fled : also that thou shalt do to an- 
 other, that thou wouldest another should do unto thee ; and 
 that we may do nothing against truth ; and that a man must 
 live peacefully with others ; that justice is to be done to 
 every man ; and also that wrong is not to be done to any 
 man ; and that also a trespasser is worthy to be punished ; 
 and such other. Of the which follow divers other second- 
 ary commandments, the which be as necessary conclusions 
 derived of the first. As of that commandment, that good 
 is to be beloved ; it followeth, that a man should love his 
 benefactor : for a benefactor, in that he is a benefactor, in- 
 cludeth in him a reason of goodness, for else he ought not 
 to be called a benefactor: that is to say, a good doer, but 
 an evil doer : and so in that he is a benefactor, he is to be 
 beloved in all times and in all places.* And this law also 
 
 Cic. i, 2, de legibus.
 
 Dialogue I. — Chap. 3. 
 
 suffereth many things to be done : as that it is lawful to put 
 away force with force ; and that it is lawful for every man 
 to defend himself and his goods against an unlawful power. 
 And this law runneth with every man's law, and also with 
 the law of Gzd, as to the deeds of man, and must be al- 
 wavs kept and observed, and shall always declare what 
 ought to follow upon the general rules of the law ot man, 
 and shall restrain them if they be any thing contrary unto it. 
 And here it is to be understood, that after some men, 
 the law whereby all things were in common, was never of 
 the law of reason, but only in the time of extreme neces- 
 sitv. For they say, that the law of reason may not be 
 changed ; but they say, it is evident, that the law whereby 
 all things should be in common, is changed : wherefore 
 they conclude, that was never the law of reason. 
 
 Chap. III. — Of the law of God. 
 
 The law of God is a certain law given by revelation to a 
 reasonable creature, shewing him the will of God, willing 
 that creatures reasonable be bound to do a thing, or not to 
 do it, tor obtaining of the felicity eternal. And it is said, 
 for the obtaining of the felicity eternal, to exclude the 
 laws shewed by revelation of God for the political rule of 
 the people, and which be called judiciah. For a law is not 
 properlv called the law of God, because it was shewed by 
 revelation of God, but also because it directed a man by the 
 nearest way to the felicity eternal ; as been the laws of the 
 Old Testament, that been called morals, and the laws of the 
 evangelists, the which were shewed in much more excellent 
 manner than the law of the Old Testament was : for that 
 was shewed bv the mediation of an angel ; but the law ot 
 the evangelists was shewed by the mediation of our Lord 
 Jesus Christ. God and man. And the law oi God is always 
 righteous and just, for it is made and given alter the will 
 of God. And therefore all acts and deeds of man be called 
 righteous and just, when they be done according to the law 
 of God, and be conformable to it. Also sometime a law
 
 8 Doctor and Student. 
 
 made by man, is called the law of God. As when a law 
 taketh his principal ground upon the law of God, and is 
 made for the declaration or conservation of the faith, and 
 to put away heresies, as divers laws canon, and also divers 
 laws made by the common people, sometime do ; the which 
 therefore are rather to be called the law of God, than the 
 law of man. Yet nevertheless all the laws canon be not 
 the laws of God : for many of them be made only tor the 
 political rule and conservation of the people.* Whereupon 
 John Gerson, in the treatise of the spiritual life of the 
 soul, the second lesson, and the third corollary, saith thus : 
 All the canons of bishops nor their decrees be not the law 
 of God : for many of them be made only for the political 
 conservation of the people. And if any man will say, 
 Be not all the goods of the church spiritual, for they 
 belong unto the spiritualty, and leading to the spirit- 
 ualty? We answer, that in the whole political conser- 
 vation of the people, there be some specially deputed 
 and dedicated to the service of God, the which most spe- 
 cially (as by an excellency) are called spiritual men, as re- 
 ligious men are. And other, though they walk in the way 
 of God, yet nevertheless, because their office is most spe- 
 cially to be occupied about such things as pertain to the com- 
 monwealth, and to the good order of the people, they be 
 therefore called secular men or lay men. Nevertheless, 
 the goods of the first may no more be called spiritual than 
 the goods of the other, for they be things more temporal, 
 and keeping the body, as they do in the other. And by 
 like reason, laws made for the political order of the church 
 be called many times spiritual, or the laws of God ; never- 
 theless it is but improperly : and other be called civil, or 
 the laws of man. And in this point many be oft times de- 
 ceived, and also deceive other, the which judge the things 
 to be spiritual, the which all men know be things temporal 
 and carnal. These be the words of John Gerson, in the 
 place alleged before. Farthermore, beside the law of rea- 
 
 * Preface to Burn's Ecc. Law, i B. C 82.
 
 Dialogue I. — Chap. 4. 
 
 son and the law of man, it was necessary to have the law 
 of God, for four reasons. 
 
 The first, Because man is ordained to the end of the 
 eternal felicity, the which exceedeth the proportion and fac- 
 ulty of man's power. Therefore it was necessary that, be- 
 side the law of reason and the law of man, he should be 
 directed to his end by the law of God. 
 
 Secondly, Forasmuch as for the uncertainty of man's 
 judgment, specially of things peculiar and seldom falling, 
 it happeneth oft times to follow divers judgments of divers 
 men, and diversities of laws ; therefore, to the intent that a 
 man without any doubt may know what he should do, and 
 what he should not do, it was necessary that he should be 
 directed in all his deeds by a law heavenly, given by God, 
 the which is so apparent that no man may swerve from it, 
 as is the law of God. 
 
 Thirdly, Man may only make a law of such things as 
 he ma} - judge upon, and the judgment of man may not be 
 of inward things, but only of outward things ; and never- 
 theless it belongeth to perfection that a man be well ordered 
 in both, that is to say, as well inward as outward. There- 
 fore it was necessary to have the law of God, the which 
 should order a man as well of inward things as of outward 
 things. 
 
 The fourth is, Because, as St. Augustine saith in his first 
 book of free arbitrement, the law of man may not punish 
 all offences : for, if all offences should be punished, the 
 commonwealth should be hurt, as is of contracts ; for it 
 cannot be avoided, but that as long as contracts be suffered, 
 many offences shall follow thereby, and yet they be suffered 
 for the commonwealth. And therefore that no evil should 
 be unpunished, it was necessary to have the law of God 
 that should leave no evil unpunished. 
 
 Chap. IV. — Of the law of man. 
 
 The laze of man (the which sometime is Called the law 
 positive) is derived by reason, as a thing which is neces-
 
 io Doctor and Student. 
 
 sary, and probabh* following of the law of reason and of 
 the law of God. And that is called probable, in that it 
 appeareth to man)', and especially to wise men to be true. 
 And therefore in every law positive well made, is somew at 
 of the law of reason, and of the law of God; and to dis- 
 cern the law of God and the law of reason from the law 
 positive is very hard. And though it be hard, j'et it is 
 much necessary in every moral doctrine, and in all laws 
 made for the commonwealth. And that the law of man be 
 just and rightwise, two things be necessary, and that is to 
 say, wisdom and authority. Wisdom that he may judge 
 after reason what is to be done for the commonalty, and 
 what is expedient for a peaceable conservation and neces- 
 sary sustentation of them ; authority, that he have authority 
 to make laws. For the law is derived of Ugare, that is to 
 say, to bind. But the sentence of a wise man doth not bind 
 the commonaltv, if he have no rule over them. Also to 
 every good law be required these properties : that is to say, 
 that it be honest, rightwise, possible in itself, and after the 
 Custom of the country, convenient for the place and time, 
 necessary, profitable, and also manifest, that it be not cap- 
 tious by any dark sentences, ne mixt with any private 
 wealth, but all made for the commonwealth. And after St. 
 Bridget, in the fourth book, in the hundred and twenty- 
 ninth chapter, every good law is ordained to the health of 
 the Soul, and to the fulfilling of the laws of God, and to 
 induce the people to fly evil desires, and to do good works. 
 Also the cardinal of Camerer writeth, Whatsoever is 
 righteous in the law of man, is righteous in the law of God. 
 For every man's law must be consonant to the law of God. 
 And therefore the laws of princes, the commandments of 
 prelates, the statutes of commonalties, ne yet the ordinance 
 of the church, is not righteous nor obligatory, but it be 
 consonant to the law of God.* 
 
 And of such a law of man that is consonant to the law 
 of God, it appeareth who hath right to lands and goods and 
 
 * 2 Shep. Abr. 356.
 
 Dialogue I. — Chap. 4. 11 
 
 who not: for whatsoever a man hath by such laws of man, 
 he hath righteously ; and whatsoever he hath against such 
 laws, is unrighteously had. 
 
 For laws of man not contrary to the law of God, nor to 
 the law of reason, must be observed in the law of the soul : 
 and he that despiseth them, despiseth God. and resist 
 God. And furthermore, as Gratian saith, because evil men 
 fear to offend, for fear of pain ; therefore it was necessary 
 that divers pains should be ordained for divers offences, as 
 physicians ordained divers remedies for several diseases. 
 And such pains be ordained by the makers of laws, after 
 the necessity of the time, and after the disposition of the 
 people. And though that law that ordained such pains 
 hath thereby a conformity to the law of God, (for the law 
 of God commandeth that the people shall take away evil 
 from among themselves ;) yet they belong not so much to 
 the law of God, but that other pains (standing the first 
 principles) might be ordained and appointed therefore. 
 That is the law that is called most properly the laze ^pos- 
 itive, and the laiv of man. 
 
 And the philosopher said in the third book of his ethicks, 
 that the intent of a maker of a law is to make the -people 
 good, and to bring them to virtue. And although I have 
 somewhat in general shewed thee whereupon the law of 
 England is grounded (for of necessity it must be grounded 
 of the said laws, that is to say, of the law eternal, of the 
 law of reason, and of the law of God :) nevertheless I pray 
 thee shew me more specially whereupon it is grounded, as 
 thou thinkest, as thou before hast promised to do. 
 
 Stud. I will with good-will do therein that lieth in me, 
 for thou hast shewed me a right, plain, and straight way 
 thereto. Therefore thou shalt understand that the law of 
 England is grounded upon six principal grounds. First, 
 It is grounded on the law of reason. Secondly, On the 
 law of God. Thirdly, On divers general cstoums or' the 
 realm. Fourthly, On divers principles that be called max- 
 ims. Fifthly, On divers particular customs. Sixthly, 
 On divers statutes made in parliaments by the king, and
 
 12 Doctor and Student. 
 
 by the common council of the realm. On which grounds 
 I shall speak in order as they be rehearsed before. And 
 first of the law of reason. 
 
 Chap. V. — Of the first ground of the law of England. 
 
 The first ground of the law of England is the law of 
 reason, whereof thou hast treated before in the second 
 chapter, the which is kept in this realm, as it is in all other 
 realms, and as of necessity it must needs be, (as thou hast 
 said before.) 
 
 Doct. But I would know what is called the law of na- 
 ture after the laws of England. 
 
 Stud. It is not used among them that be learned in the 
 laws of England to reason what thing is commanded or 
 prohibited by the law of nature, and what not, but all the 
 reasoning in that behalf is under this manner. As when any 
 thing is grounded upon the law of nature, they say, that 
 reason will that such a tiling be clone ; and if it be prohib- 
 ited by the law of nature, they say it is against reason, or 
 that reason will not suffer that to be done. 
 
 Doct. Then I pray thee shew me what they that be 
 learned in the laws of the realm hold to be commanded or 
 prohibited by the law of nature, under such terms, and after 
 such manner, as is used among them that be learned in the 
 said laws. 
 
 Stud. There be put by them that be learned in the laws 
 of England two degrees of the law of reason, that is to say, 
 the law of reason ■primary, and the law of reason second- 
 ary. By the law of reason primary be prohibited in the 
 laws of England murder (that is, the death of him that is 
 innocent), perjury, deceit, breaking of the peace, and many 
 other like. And by the same law also it is lawful for a man 
 to defend himself against an unjust power, so he keep due 
 circumstance. And also it any promise be made by menace 
 to the body, it is by the law of reason void in the laws of 
 England. The other is called the law of secondary reason, 
 the which is divided into two branches, that is to say, into
 
 Dialogue I. — Chap. 5. 13 
 
 a law of secondary reason general^ and into a law of sec- 
 ondary reason particular. The law of a secondary reason 
 general is grounded and derived of the general law, or 
 genera] custom of properly, whereby goods moveable and 
 immoveable be brought into a certain property, so that 
 every man may know his own thing. And by this branch 
 be prohibited in the laws of England disseisins, trespass in 
 lands and goods, resenss, theft, unlawful with-holding of 
 another man's goods, and such other. And bv the same 
 law it is a ground in the law of England that satisfaction 
 must be made for a trespass, and that restitution must be 
 made of such goods as one man hath that belong to another 
 man ; the debts must be paid, covenants fulfilled, and such 
 other. And because disseisins, trespass in lands and goods, 
 theft, and other had not been known, if the law of property 
 had not been ordained ; therefore all things that be derived 
 by reason out of the said law of property, be called the 
 lazv of reason secondary general, for the law of property 
 is generally kept in all countries. 
 
 The law of reason secondary ■particular is the law that 
 is derived of divers customs general and particular, and of 
 divers maxims and statutes ordained in this realm. And 
 it is called tJic lazv of reason secondary particular, because 
 the reason in that case is derived of such a law that is only 
 holden for law in this realm, and in none other realm. 
 
 Doct. I pray thee shew me some special case of such a 
 law of reason secondary particular, for an example. 
 
 Stud. There is a law in England, which is a law of cus- 
 tom, that if a man take a distress lawfully, that he shall 
 put it in pound overt, there to remain till he be satisfied 
 of that he distrained tor.* And then thereupon may be 
 asked this question, that if the beasts die in pound for lack 
 of meat, at whose peril die they? whether die they at the 
 peril of him that distrained, or of him that oweth the 
 beasts ?f 
 
 * Co. Litt. 47. 
 t 2 Inst- 106.
 
 T4 Doctor and Student. 
 
 Doct. If the law be as thou sayest, and that a man for a 
 just cause taketh a distress, and putteth it in the pound 
 overt,* and no law compelleth him that distrained to give 
 them meat, | then it seemeth of reason that if the distress 
 die in pound for lack of meat, that it died at the peril of 
 him that oweth the beasts, and not of him that distrained ; 
 for in him that distrained there can be assigned no default, 
 but in the other may be assigned a default, because the rent 
 was unpaid. 
 
 Stud. Thou hast given a true judgment, and who hath 
 taught thee to do so but reason derived of the said ireneral 
 custom? And the law is so full of such secondary reasons 
 derived out of the general customs and maxims of the realm, 
 that some men have affirmed that all the law of the realm 
 is the law of reason. But that cannot be proved, as me 
 seemeth, as I have partly shewed before, and more fully 
 will shew after. And it is not much used in the laws of 
 England, to reason what law is grounded upon the law of 
 the first reason primary, or on the law of reason secondarv. 
 for they be most commonly openly known of themselves ; 
 but for the knowledge of the law of reason secondary is 
 greater difficulty, and therefore therein dependeth much the 
 manner and form of arguments in the laws of England. 
 
 And it is to be noted, that all the deriving of reason in 
 the law of England proceedeth of the first principles of the 
 law, or of something that is derived of them : and there- 
 fore no man may right wisely judge, no groundly reason 
 in the laws of England, if he be ignorant in the first prin- 
 ciples. Also all birds, fowls, wild beast of forest and war- 
 ren, and such other, be excepted by the laws of England 
 out of the said general law and custom of property \% tor by 
 
 * In the case of a distress for rent, it is not necessary for the person dis- 
 training to take the cattle or heasts to a pinfold, as by statute n G. 2, c. 19, 
 s. 10, he mav impound them on any convenient part of the land chargeable 
 with the rent. 
 
 t Finch. Law, 1 37 ; 6 Mod. 105. 
 
 \ See Statutes 9 Geo. 1, c. 22 ; 13 Car. 2, c. 10; 10 Geo. c. 32 ; 5 Geo. 3, 
 c. 14; 22 and 23 Car. 2, c. 25, respecting the stealing and killing of deer, 
 robbing of warrens, and stealing of fish.
 
 Dialogue I. — Chap. 6. 15 
 
 the laws of the realm no property may be of them in any 
 person, unless they be tame.* Nevertheless the eggs of 
 hawk, herons, or such other as build in the ground of any 
 person, be adjudged by the said laws to belong to him that 
 oweth the ground. f 
 
 Chap. VI. — Of the second ground of the lazv of Eng- 
 land. 
 The second ground of the law of England is the law of 
 God: and therefore for punishment of them that offend 
 against the law of God, it is enquired of many courts in 
 this realm, if any hold any opinion secretly, or in any other 
 manner against the true catholick faith ; and also if any 
 general custom were directly against the law of God, or if 
 any statute were made directly against it : as if it were or- 
 dained that no alms should be given for no necessity, the 
 custom and statute were void. Nevertheless the statute 
 made in the thirty-fourth year of king Edward III., % 
 whereby it is ordained, that no man, under pain of impris- 
 onment, shall give any alms to any valiant beggars that 
 may well labour, that they may so be compelled to labour 
 for their living, is a good statute, for it observeth the intent 
 of the law of God. And also by authority of this law- 
 there is a ground in the laws of England, that he that is 
 accursed shall maintain no action in the king's court, ex- 
 cept it be in very few cases ;§ so that the same excommu- 
 nication be certified before the king's justices in such man- 
 ner as the law of the realm hath appointed. || And by the 
 authority also of this ground the law of England admitteth 
 the spiritual jurisdiction of dismes and offerings, and of all 
 other things that of right belong unto it ;1T and receivcth 
 
 • 1 II. P. C. 511 ; Fost. 366; Finch. Law, 176; 2 Inst. 199; 2 B. C. 391, 
 
 39-- 
 
 t2B. C 394. 
 
 X Repealed by 1 Ed. 6, c. 3, and 21 Jac, c. 2S. 
 
 § Excommunication is no plea in a qui tarn. 1: Co. 61; Gilb. Hist, of 
 
 a b. 164. 
 
 II 1 Roll. Abr. SS3; Co. Litt. 133, 134. 
 \ Wood's Inst. 4; 2 Inst. 625.
 
 \6 Doctor and Student. 
 
 also all laws of the church duly made, and that exceed not 
 the power of them that made them. Insomuch that in many 
 cases it behoveth the king's justices to judge after the laws 
 of the church. 
 
 Doct. How may that be, that the king's justices should 
 judge in the king's courts after the law of the church ? for 
 it seemeth that the church should rather give judgment in 
 such things as it may make laws of, than the king's jus- 
 tices. 
 
 Stud. That may be done in many cases, whereof I shall 
 for an example put this case : If a writ of right of ward 
 be brought of the body, etc. And the tenant confessing 
 the tenure, and the nonage of the infant, saith, that the 
 infant was married in his ancestor's days, etc., whereupon 
 twelve men be sworn, which give this verdict that the infant 
 was married in the life of his ancestor, and that the woman 
 in the life of his ancestor sued a divorce, whereupon sen- 
 tence was given that they should be divorced, and that the 
 heir appealed, which hangeth yet undiscussed, praying the 
 aid of the justice to know whether the infant in this case 
 shall be said married or no : in this case, if the law of the 
 church be that the said sentence of divorce standeth in his 
 strength and virtue until it be annulled upon the said appeal, 
 that the infant at the death of his ancestor was unmarried, 
 because the first marriage was annulled by that divorce, and 
 if the law of the church be, that the sentence of the divorce 
 standeth not in effect till it be affirmed upon the said appeal ; 
 then is the infant yet married, so that the value of his mar- 
 riage cannot belong unto the lord : and therefore in this 
 case judgment conditional shall he given, etc. And in 
 likewise the king's justices in many other cases shall judge 
 after the law of the church,* like as the spiritual judges 
 
 -Thus if administration is granted to B. of the goods of A. durante 
 minore estate of C- and it comes out in pleading that C is of the age <>f 
 ill. -n ycai>, the court ought to take notice of the ecclesiastical law, 
 and that the administration is determined. Cro. Car. 516; Cro. Eliz. 60;:. 
 So if an infant at the age of fourteen makes a will of his personal estate, 
 the temporal courts will not controul it, but take notice, that by the spirit-
 
 Dialogue I. — Chap. 7. 17 
 
 must in main- cases form their judgment after the king's 
 laws.* 
 
 Doct. How ma)' that be, that the spiritual judges should 
 judge after the king's laws? I pray thee shew me some 
 certain case thereof. 
 
 Stud. Though it be somewhat a digression from our first 
 purpose, yet I will not with say thy desire, but will with 
 good-will put thee a case or two thereof, that thou mavest 
 the belter perceive what I mean. If A. and B. have goods 
 jointly and A. by his last will bequeathe his portion therein 
 to C. and maketh the said B. his executor, and dieth, and 
 C. asketh the execution of this will in the spiritual court : 
 in this case the judges there be bound to judge that will 
 to be void,f because it is void by the laws of this realm. 
 And likewise if a man be outlawed, and after, by 
 his will, bequeath certain goods to John at Stile, and 
 make his executors, and die, the king seiseth his goods, 
 and after giveth them again to the executors, and after 
 John at Stile sueth a citation out of the spiritual court 
 against the executors, to have execution of the will : in this 
 case the judges of the spiritual court must judge the will 
 to be void, as the law of the realm is that it is ; and yet 
 there is no such law of forfeiture of goods by outlawry in 
 the spiritual law. J 
 
 Chap. VII. — Of the third ground of the law of Eng- 
 land. 
 
 The third ground of the law of England standeth upon 
 divers general customs of old time used through all the 
 realm, which have been accepted and approved by our 
 
 ual law a will at that age, of personal estate, is good. 2 Mod. 315; Go- 
 dolphin, 276; Lord Raym. 262. 
 
 * Wood's Inst. 4. 
 
 t See the reason of this, postea, 186. But a joint merchant, or a man 
 that has a joint st ick in a farm, may devise his share by his will, and it 
 will be good. 2 13. C. 399; Co. Litt. 1S2. 
 
 I4 Burn's Ecc. Law, 56; SwUl., part 11, sec. 21. 
 2
 
 Doctor and Student. 
 
 sovereign lord the king, and his progenitors, and all his 
 subjects.* And because the said customs be neither against 
 the law of God, nor the law of reason, and have been alway 
 taken to be good and necessary for the commonwealth of 
 all the realm ;f therefore they have obtained the strength 
 of a law, insomuch that he that doth against them, doth 
 against justice : and these be the customs that properly be 
 called the common lazv. And it shall alway be determined 
 by the justices whether there be any such general custom or 
 not, and not by twelve men.| And of these general cus- 
 toms, and of certain principles that be called maxims, which 
 also take effect by the old custom of the realm (as shall 
 appear in the chapter next following), dependeth most part 
 of the law of this realm. And therefore our sovereign lord 
 the king, at his coronation, among other things, taketh a 
 solemn oath that he shall cause all the customs of his realm 
 faithfully to be observed. § 
 
 Doct. I pray thee shew me some of these general customs. 
 
 Stud. I will with good-will ; and first, I shall shew thee 
 how the custom of the realm is the very ground of divers 
 courts in the realm, that is to say, of the chancery, of the 
 king's bench, of the common picas, and the exchequer, the 
 which be courts of record ;|| because none may sit as judges 
 in these courts, but by the king's letters patents. 1[ And 
 these courts have divers authorities, whereof it is not to 
 treat at this time. Other courts there be also only grounded 
 by the custom of the realm, that be of much less authority 
 than the courts before rehearsed. As in every shire within 
 the realm there is a court that is called the county, and 
 
 ;;; Wood's Inst. 4. 
 
 f 2 Inst. 179. 
 
 JNoy's Max. iS; Co. Litt. 344; post. 25. 
 
 § 1 B. C 234; 3 Burn's Ecc. Law, 352. 
 
 || 3 B. C.40, 41, 43. 
 
 ^[ The reason here given for the courts of Westminster being courts of 
 record does not seem quite satisfactory. I apprehend they are accounted 
 courts of record because their acts and judicial proceedings are. recorded. 
 3 B. C. 24. Besides, it is not true that all the judges derive their authority 
 from the kind's letters patent, for the chief justice of the king's bench is
 
 Dialogue I. — Chap. 7. in 
 
 another that is called the sheriff f s tome;* and in everv 
 manor is a court that is called a court-baron, and to every 
 fair and market is incident a court that is called a court of 
 piepowders. And though in some statutes is made mention 
 sometime of the said courts ; yet nevertheless, of the first 
 institution of the said courts, and that such courts should 
 be, there is no statute nor law written in the laws of Eng- 
 land. And so all the ground and beginning of the said* 
 courts depend upon the custom of the realm ; the which 
 'custom is of so high authority, that the said courts ne their 
 authorities, may not be altered, ne their names changed, 
 without parliament. 
 
 Also by the old custom of the realm, no man shall be 
 taken, imprisoned, disseised, nor otherwise destroyed, but 
 he be put to answer by the law of the land : and this custom 
 is confirmed by the statute of magna c/iarta, cap. 26. 
 
 Also by the old custom of the realm, all men great and 
 small shall do and receive justice in the king's courts : and 
 this custom is confirmed b}^ the statute of Marlb., cap. 1. 
 
 Also by the old custom of the realm, the eldest son is 
 only heir to his ancestor ; and if there be no sons, bu 
 daughters, then all the daughters shall be heirs. f And so 
 it is of sisters and other kinswomen. And if here be 
 neither son, daughter, brother, nor sister, then shall the in- 
 heritance ascend to the next kinsman or kinswoman of the 
 whole blood to him that had the inheritance, of how many 
 degrees soever they be from him.| And it there be no 
 heir general nor special, then the land shall escheat to the 
 lord of whom the land is holden. 
 
 Also by the old custom of the realm, lands shall never 
 ascend or descend from the son to the father or mother, nor 
 
 made by writ, and the chancellor by delivering the great seal to him, and 
 taking an oatli to serve the king and his people faithfully in his office. 
 Wood's Inst. 459. 
 
 * 3 B. C 35! lb. 32,33. 
 
 t Co. Litt. 14; 2 B. C. .M4. 
 
 fa B. C. 224; lh. 246.
 
 20 Doctor and Student. 
 
 to any other ancestor on the right line, but it shall rathei 
 escheat to the lord of the fee.* 
 
 Also if an alien have a son that is an alien, and after is 
 made denizen, and hath another son, and after purchaseth, 
 lands, and dieth ; the 3'oungest son shall inherit as heir, 
 and not the eldest, f 
 
 Also if there be three brethren, and the middest brother 
 purchase lands, and dieth without heir of his body; the 
 eldest brother shall inherit as heir to him, and not the 
 younger brother. 
 
 And if land in fee-simple descend to a man by the part 
 of his father, and he dieth without heir of his body ; then 
 the inheritance shall descend to the next heir of the part of 
 his father. | And if there be no such heir of the part of his 
 father, then if the father purchaseth the lands, it shall go 
 to the next heir of the father's mother, and not to the next 
 heir of the son's mother, but it shall rather escheat to the 
 lord of the fee. But if a man purchase lands to him and 
 to his heirs, and die without heir of his body, as is said be- 
 fore ; then the land shall descend to the next heir of the 
 part of his father, if there be any ; and if not, then to the 
 next heir of the part of his mother. § 
 
 Also if the son purchaseth lands in fee, and dieth without 
 heir of his body;|| the land shall descend to his uncle, 
 and shall not ascend to his father : but if the father have 
 a son, though it be many years after the death of the elder 
 brother, yet that son shall put out his uncle, and shall en- 
 joy the lands as heir to the elder brother for ever. 
 
 Also by the custom of the realm, the child that is born 
 before espousals is bastard, and shall not inherit. IT 
 
 Also the eu^tom of the realm is, that no manner of goods 
 
 * Litt, sec 3. 
 
 f2 B. C. 249; Cro. Jac. 539. 
 
 J2B. C 222. 
 
 § Wood's Inst. 218. 
 
 || Litt., sec. 3. 
 
 ^f 3 New Abr., title Bastardy, 310, 315.
 
 Dialogue I. — Chap. 7. 21 
 
 nor chattels, real nor personal, shall ever go to the heir, but 
 to the executors, or to the ordinary, or administrators.* 
 
 Also the husband shall have all the chattels personals 
 that his wife had at the time of the espousals or after, f 
 and also chattels real, if he overlive his wife, but if he sell 
 or give away the chattels real, and die, by that sale or gift the 
 interest of the wife is determined, or else they shall remain 
 to the wife, if she overlive her husband. \ Also the hus- 
 band shall have all the inheritance of his wife, whereof he 
 was seised in deed in the right of his wife during the es- 
 pousals, in fee, or in fee-tail general, § for term of life, if 
 he have any child by her, to hold as tenant by the curtesy 
 of England ; and the wife shall have the third part of the 
 inheritance of her husband, whereof he was seised in deed 
 or in law after the espousals, etc. But in that case the wife 
 at the death of her husband must be of the age of nine 
 years, or above, or else she shall have no dowry. j| 
 
 Doct. What if the husband at his death be within the 
 age of nine years ? 
 
 Stud. I suppose she shall yet have her dower. Also the 
 old law and custom of the realm is, that after the death of 
 every tenant that holdeth his land by knights service, the 
 lord shall have the ward and marriage of the heir, till the 
 heir come to the age of twenty-one years \\ and if the heir 
 in that case be of full age at the death of his ancestor, then 
 he shall pay to his lord his relief, which at the common 
 law was not certain, but by the statute of magna charta it 
 is put in certain ;** that is to say, for every whole knight's 
 fee to pay C. s. and for a whole barony to pay a hundred 
 marks lor relief, and for a whole earldom to pav C. /. and 
 
 * Off", of Executor, 53, 57, 5S, 59; post. 130. 
 fCo. Lilt. 351. 
 - Roll's Abr. 3}2. 
 
 § Likewise it seems thai the husband shall be tenant by the curtesy, if he 
 is seized in right of his wife of the special tail. Co. Litt. 29. 
 j| Litt., sec. 36; Co. Litt. 33; 2 Inst. 234. 
 U Litt., sec. 103. 
 **2 B. C. 66; Litt., sec. 112.
 
 22 Doctor and Student. 
 
 after that rate. And if the heir of such a tenant be a wo- 
 man, and she, at the death of her ancestor, be within the 
 age of fourteen years, then by the common law she should 
 have been in ward only till fourteen years, but by the stat. 
 of W. i, in such case she shall be in ward till sixteen years.* 
 And if at the death of her ancestor she be of the a«;e of 
 fourteen years, or above, she shall be out of ward, though 
 the land be holden of the king, and then she shall pay re- 
 lief as an heir male shall. f 
 
 Also of lands holden in socage, if the ancestor die, his 
 heir being within the age of fourteen years, the next friend 
 to the heir, to whom the inheritance may not descend, shall 
 have the ward of his body and lands till he shall come to 
 the age of fourteen years, and then he may enter. And 
 when the heir cometh to the age of twenty-one years, then 
 the guardian shall yield him an account for the profits 
 thereof by him received. X 
 
 Also such an heir in socage, for his relief, shall double 
 his rent to the lord the year following the death of his an- 
 cestor : as if his ancestor held by I2d. rent, the heir in the 
 year following shall pay the I2d. for his rent and other I2d. 
 for his relief; and the relief he must pay, though he be 
 within age at the death of his ancestor. § 
 
 Also there is an old law and custom in this realm, || that 
 a freehold by way of feoffment, gift, or lease, passeth not 
 without livery of seisin be made upon the land according,^ 
 though a deed of feoffment be thereof made and delivered : 
 
 * Litt., sec. 103; 2 B. C. 67. 
 
 t Kitchen on Courts, no; 2 B. C 67. 
 
 I Litt., sec. 123 ; Kitchen on Courts, 1 1 r ; Hargrave's Ed. of Co. Litt. 89. 
 
 § Litt., sec. 127. 
 
 || Finch Law, 132 ; Noy's Max. 59. 
 
 If It is not absolutely necessary, though perhaps it is the better way to 
 make livery and seisin upon the land; for if it is made in sight of it only 
 by the words, " I give you yonder land, enter and take possession." This is 
 sufficient in law to pass the freehold, if the feo-ffee enters during the life 
 of the feoffor. 2 B. C 316. This method of alienating property by feoff- 
 ment with livery and si-isin, though tlie usual conveyance of land for a 
 long series of years, is now almost superseded by the modern convey- 
 ance of lease and release, which, in fact, amounts to a feoffment.
 
 Dialogue I. — Chap. 7. 23 
 
 but byway of surrender, partition and exchange, a freehold 
 may pass without livery.* 
 
 Also if a man make a will of land whereof he is seised 
 in his demesne as of fee, that will is void :f but it it had 
 stood in leoffee's hands, it had been good. And also in 
 London such a will is good by the custom of the city, if 
 it he enrolled. X 
 
 Also a lease for term of years is but a chattel by the law, 
 and therefore it may pass without any livery of seisin : but 
 otherwise it is of a state for term of life, for that it is a free- 
 hold in the law, and therefore livery must be made, or else 
 the freehold passeth not.§ 
 
 Also by the old custom of the realm a man may distrain 
 for rent-service of common right ; and also for a rent re- 
 served upon a gilt in tail, a lease for term of life, of years, 
 and at will :j| and in such case the lord may distrain the 
 beasts of tenants, as soon as they come upon the ground ; 
 but the beasts of strangers that come in but by manner of 
 an escape he may not distrain, till they have been levant 
 and couchant upon the ground. IF But for debt upon an ob- 
 ligation, nor upon a contract, nor for account, ne yet for 
 arrearages of account, nor for no manner of trespass,** 
 reparations, nor such other, no man may distrain. ff 
 
 And, by the old custom of the realm, all issues that shall 
 be joined between party and party in any court of record 
 within the realm, except a few whereof it needeth not to 
 treat at this time, must be tried by twelve free and lawful 
 men of the visne,|J that be not of affinity to none of the 
 
 * Likewise by confirmation, devise, fine, or recovery, and since the stat- 
 ute of uses, by bargain and sale enrolled, lease, and release, etc 
 
 t Post. 58. 
 
 X I Roll. Abr. 556; post. 35. 
 
 § 2 B. C. 314. 
 
 tl Lift. , sec. ji}. 214; Co. Litt. 142. 
 
 •fa Lutw. 1573, 1577. 
 
 **This cannot be true, for a man may distrain for trespass damage- 
 feasant. 
 
 tt Post. 123. 
 
 Xt It was formerly the custom for jurors to come from the vicinity or bun-
 
 24 Doctor and Student. 
 
 parties ; and, in other courts that be not of record, as in the 
 count}', court-baron, hundred, and such other like, they 
 shall be tried by the oath of the parties, and not otherwise, 
 unless the parties assent that it shall be tried by the homage.* 
 And it is to be noted that lords, barons, and all peers of the 
 realm be excepted out of such trials, if they will, J but if 
 they will wilfully be sworn therein, some say it is no error : 
 and they may, if they will have a writ out of the chancery 
 directed to the sheriff, commanding him that he shall not 
 impanel them upon no inquest. J 
 
 And of this that is said before it appeareth, that the cus- 
 toms aforesaid, or other like unto them, whereof be very 
 many in the laws of England, cannot be proved to have 
 the strength of law only by reason. For how may it be 
 proved by reason that the eldest son shall only inherit 
 his father, and the younger to have no part ; or that the 
 husband shall have the whole land for term of his life as 
 tenant by the curtesy, in such manner as before appeareth, 
 and that the wife shall have only the third part in the name 
 of her dower ; and that her husband shall have all the goods 
 of his wife as his own, and that if he die, the wife living, 
 
 ithat his executors shall have the goods, and not the wife? 
 All these and such other cannot be proved only by reason, 
 that it should be so, and no otherwise, although they be 
 reasonable ; and that, with the custom therein used, sufficeth 
 
 dred where the matter in dispute arose, pursuant to the maxim, xu'eini vicin- 
 orum facto prcEsnmunttir scire, but now by stat. 4 and 5 Ann-, c. 16, the 
 jury are to come, e corf ore comitattts, from the body of the county, in which 
 the action is triable 3 B. C. 360. But this statute does not extend to 
 indictments or other criminal suits, and it is conceived that no act has 
 been made to include any such, except the stat. 24 G. 2, 2 c. 28, which re- 
 lates to actions on penal statutes. However, notwithstanding the law 
 stands thus as to criminal prosecutions, vet it is the practice of every day 
 for the sheriff to summon juries from the county without the least regard 
 to the visne of each indictment, though it gives the prisoner an opportu- 
 nity, if he pleases, of challenging for default of hundredors. 2 II. II. P. 
 C. 272. 273. 
 
 Co. Litt. 158. 
 
 t Trials per pais, 1st part, 105. 
 
 J 3 B. C. 36: ; Vin. Abr., title Trial, 208.
 
 Dialogue I. — Chap. 
 
 in the law, and a statute made against such general customs 
 ought to be observed, because they be* not merely the law 
 of reason. 
 
 Also the law of property is not the law of reason, but the 
 law of custom, howbeit that it is kept, and is also most 
 necessary to be kept, in all realms, and among all people ; 
 and so it may be numbered among the general customs of 
 the realm. And it is to understand that there is no statute 
 that treateth of the beginning of the said customs, ne why 
 they should be holden for law ; and therefore after them 
 that be learned in the laws of the realm, the old custom of 
 the realm is the only and sufficient authority to them in 
 that behalf. And I pray thee shew me what doctors hold 
 then in, that is to say, whether a custom onl" be a sufficient 
 authority of any law. 
 
 Doct. Doctors hold that a law grounded upon a custom 
 is the most surest law ; but this thou must always under- 
 stand therewith, that such a custom is neither contrary to 
 the law of reason, nor the law of God.* And now I pray 
 thee shew me somewhat of the maxims of the laws of Eng- 
 land, whereof thou hast made mention before in the 4th 
 chapter. \ 
 
 Stud. I will with good-will. 
 
 Chap. VIII. — Of the fourth ground of the laiu of Eng- 
 land. 
 
 The fourth ground of the law of England standeth in 
 divers principles that be called in the law maxims, the 
 which have been always taken for law in this realm \\ so 
 that it is not lawful for any that is learned to denv them ; 
 for every one of those maxims is sufficient authority to 
 himself. And which is a maxim, and which not, shall 
 alway be determined by the judges, and not by twelve 
 
 * Co. Litt. 141. 
 
 t Kitchen on Courts, title Customs. 
 
 \ Co. Litt. 10, 67.
 
 16 Doctor and Student. 
 
 men.* And it needeth not to assign any reason why they 
 were first received for maxims, for it sufficeth that they 
 be not against the law of reason, nor the law of God, and 
 that they have always been taken for a law. And such 
 maxims be not only holden for law, but also other cases 
 like unto them, and all things that necessarily follow upon 
 the same are to be reduced to the like law ; and therefore 
 most commonly there be assigned some reasons or con- 
 siderations why such maxims be reasonable, to the intent 
 that other cases like may the more conveniently be applied 
 to them. And they be of the same strength and effect in 
 the law as statutes be. And though the general customs 
 of the realm be the strength and warrant of the said maxims, 
 as they be of the general customs of the realm ; yet because 
 ihe said general customs be in a manner known through 
 the realm, as well to them that be unlearned as learned, 
 and may lightly be had and known, and that with little 
 study, and the maxims be only known in the king's courts, 
 or among them that take great study in the law of the 
 realm, and among few other persons; therefore they be set 
 in this writing, for several grounds, and he that listeth may 
 so account them, or if he will, he may take them for no 
 ground, after his pleasure. Of which maxims I shall here- 
 after shew thee part. 
 
 First, There is a maxim f that escuage uncertain maketh 
 knight's service .% 
 
 ♦Noy'sMax. 18; ante, 18. 
 
 t Litt, sec 1 20. 
 
 % By the statute 12 Car. 2, c 24, " for taking away the court of wards, and 
 liveries and tenures in knight's service, and purveyance, and for settling a 
 revenue upon his majesty," it iscnacted, that all wardships, primer seisins, 
 and ousterlemains, values and forfeitures of marriage, and all tenures by 
 homage, fines for alienation, knight's service, and escuage, and also acts 
 for marrying the daughter or knighting the son, and all tenures of the 
 king in capite, shall be taken away. And by the same statute, all sorts of 
 tenure held of the king, or others, are turned into free and common socage, 
 except tenures in frankalmoign copyholds, and the honorary services of 
 grand serjeantry.
 
 Dialogue I. — Chap. 8. 27 
 
 Also there is another maxim,* that escuage certain makes 
 socage. 
 
 Also, that he that holdeth by castle-guard, holdeth by 
 knight's service, f but he holdeth not by escuage : and that 
 he that holdeth by xxs. to the guard of a castle, holdeth by 
 socage. 
 
 Also there is a maxim 4 that a discent taketh away an 
 entry. 
 
 Also, that no prescription in lands maketh a right. § 
 
 Also, that a prescription of rent and profits apprender out 
 of land maketh a right. || 
 
 Also, that the limitation of a prescription generally taken 
 is from the time that no man's mind runneth to the con- 
 trary.! 
 
 Also, that assigns may be made upon lands given in fee, 
 for term of life, or for term of years, though no mention 
 be made of assigns ; and the same law is of a rent that is 
 granted ; but otherwise it is of a warranty, and of a cov- 
 enant. 
 
 Also, that a condition to avoid a freehold cannot be 
 pleaded without deed ; but to avoid a gift of chattel, it may 
 be pleaded without deed.** 
 
 Also, that a release or confirmation made by him, that at 
 the time of the release or confirmation made had no right, 
 is void in the law, though a right come to him after ;ff ex- 
 cept it be with warranty, and then it shall bar him to all 
 right that he shall have after the warranty made. 
 
 Also, that a right or title of action that only dependeth in 
 action, cannot be given or granted to none other but only 
 
 * Co. Litt. 87. 
 
 fib. 
 
 J Litt., sec. 3S5. 
 
 § Finch. 132. 
 
 || 2 B. C. 264. 
 
 IfPost. 30S; Co. Litt. 114. 
 
 ** Vin. Abi., title Facts, 67. * 
 
 tfVin. Abr., title Release, 299.
 
 28 Doctor and Student. 
 
 to the tenant of the ground, or to him that hath the rever- 
 sion or remainder of the same land.* 
 
 Also, that in an action of debt upon a contract, the de- 
 fendant may wage his law :f but otherwise it is upon a 
 lease of lands for term of years, or at will. J 
 
 Also, that if an exigent, in case of felony, be awarded 
 against a man, he hath thereby forthwith forfeited his goods 
 to the king.§ 
 
 Also, if the son be attainted in the life of the father, and 
 after he purchaseth his charter of pardon of the king, and 
 after the father dieth. ; j| in this case the land shall escheat 
 to the lord of the fee, insomuch that though he have a 
 vounger brother, yet the land shall not descend to him : for 
 by the attainder of the elder brother the blood is corrupt, 
 and the father-in-law died without heir. 
 
 Also, if an abbot or prior alien the lands of his house, 
 and dieth ;1[ in this case, though his successor have right 
 to the lands, } r et he may not enter, but he must take his 
 action that is appointed him by law. 
 
 Also, there is a maxim in the law, that if a villein pur- 
 chase lands, and the lord enter, he shall enjoy the land as 
 
 * 10 Rep. 48; Shep. Touch. 229. 
 
 t Wager of law is where defendant swears before compurgators that he 
 owes the plaintiff nothing. Formerly this practice was much in use, as 
 appears by its making a conspicuous part of our English jurisprudence. 
 But it is now only in actions of debt upon simple contract, or for amerce- 
 ments in actions of detinue or account, where the debt may have been 
 paid, and the accounts balanced, without any evidence of either, that de- 
 fendant can wage his law, and not where there is any specialty by bond or 
 deed; and as defendant is allowed to wage his law in an action of debt, it 
 is but seldom brought upon a simple contract, being supplied by an ac- 
 tion of trespass on the case, for the breach of a promise or assumpsit; and 
 this being an action of trespass, no law can be waged therein; so that 
 wager of law is now quite out of use, but still it is not out of force. Black. 
 Com. 3 V. 341. 
 
 X 12 Mod. 679; 2 Salk. 6S4; Co. Litt. 295. 
 
 § This is not law, for in this case he forfeits both real and personal es- 
 tate to the lord. 
 
 || 2 B. C. 253; Co. Litt. 13. 
 
 If Post. 32.
 
 Dialogue I. — Chap. 8. 29 
 
 his own :* but if the villein alien before the lord enter, the 
 alienation is good. And the same law is of goods. f 
 
 Also, if a man steal goods to the value of twelve pence, 
 
 or above, it \s felony, and he shall die for it.J And if it 
 be under the value of twelve pence, then it is but fielil lar- 
 ceny, ami he shall not die for it,§ but shall be otherwise pun- 
 ished alter the discretion of the judges, except it be taken 
 from the person ; for if a man lake any thing, how little 
 soever it be, from a man's person, feloniously, it is called 
 robbery, and he shall die for it.|| 
 
 Also, he that is arraigned upon an indictment of felony, 
 shall be admitted, in favor of life, to challenge thirty-six 
 jurors peremptorily ;1[ but if he challenge any above that 
 number, the law taketh him as one that hath refused the 
 law, because he hath refused three whole inquests, and 
 therefore he shall die : but with cause he may challenge as 
 many as he hath cause of challenge to. And lurther, it is 
 to be understood, that such peremptory challenge shall not 
 be admitted in appeal,** because it is at the suit of the 
 
 party. |t 
 
 x\lso, the land of every man is in the law inclosed from 
 
 •Litt., sec. ;;j; Finch. 159. 
 
 t But the law was widely different in the case of the king, who had a 
 villein, lor notwithstanding the alienation, he might enter. Perk., sec. 29. 
 
 J 1 II. P. C. 503. 
 
 § lb. 504. 
 
 II lb. 532, 536. 
 
 f The author or his printer is not here quite correct as to the number of 
 jurors, which it was allowed the prisoners to challenge in cases of felony; 
 as the boundary fixed by the common law, and which was thought to be 
 reasonable was only thirty-live, that is, one under three fail juries, and 
 therefore if the prisoner challenged thirty-six, he was sentenced to the 
 peine forte et dure, as one that had no intention to be tried at all. The 
 number thirty-live may now be challenged by the prisoner in cases of high 
 and petit treason, but in cases of murder, or felony, by stat. 22 II. S, 
 c. 14, he can make no more than twenty peremptory challenges. 2 II. P. 
 C. 269; 2 Hawk. 414; Co. Litt. 156. 
 
 ** Kitchen on Courts. 52. 
 
 tt But in Yiner's abridgments, title Trial, 252, it is laid down, that a 
 peremptory challenge may be taken in an appeal, and with as good reason 
 as in a prosecution at the suit of the king.
 
 30 Doctor and Student. 
 
 other, though it lie in the open field : and therefore if a 
 man do a trespass therein, the writ shall be, JQiiare clausum 
 /regit. 
 
 Also, the rents, commons of pasture, of turbary, rever- 
 sions, remainders, nor such other things which lie not in 
 manual occupation, may not be given nor granted to none 
 other without writing.* 
 
 Also, that he that recovereth debt or damages in the: 
 king's courts, by such an action wherein a capias lay in the 
 process, may within a year after the recovery have a capias 
 ad satisfaciendum , to take the body of the defendant, and 
 to commit him to prison till he have paid the debt and dam- 
 ages : but if there lay no capias in the first action, then the 
 plaintiff shall have no capias ad satisfaciendum , but must 
 take a fieri facias, or an elegit within the year, or a scire 
 facias after the year, or within the year, if he will. 
 
 Also, if a release or confirmation be made to him that, at 
 the time of the release made, had nothing in the land, etc., 
 the release or confirmation is void, except in certain cases, 
 as to vouch, and certain other which need not here to be re- 
 membered, f 
 
 Also, there is a maxim in the law of England, that the 
 king may disseise no man, nor that no man may disseise 
 the king, ne pull any reversion or remainder out of him,.} 
 
 Also, the king's excellency is so high in the law, that no 
 freehold may be given to the king, nor be derived from him, 
 but by matter of record. § 
 
 Also, there was sometime a maxim and a law of England, 
 that no man should have a writ of right but by special suit 
 to the king, and for a fine to be made in the chancery for 
 it. But these maxims be changed by the statute of magna 
 charta, cap. 16, where it is said thus, nulli negabimus ', mil// 
 vendemus rectum vcljusliliam.\\ And by the words, Null/ 
 
 * Co. Litt. 48; 121 Stat. ; 29 Car. 2, c. 3; 2 Cro. 217; Finch. Law, 10S. 
 
 fCo. Litt. 265, 270. 
 
 I3B. C 257. 
 
 §2 B. C. 346; Noy's Max. 4. 
 
 || 2 Inst. 55; 1 B. C. 141.
 
 Dialogue I. — Chap. 9. 31 
 
 negabimus, a man shall have a writ of right of course in 
 the eh tin eery without suing to the king for it: and by the 
 words, Nulli vendemus , he shall have it without fine. And 
 so many times the old maxims of the law be changed by 
 statutes. Also, though it be reasonable, that for the mani- 
 fold diversities of actions that be in the laws of England, 
 there should be diversities of process, as in the real actions 
 alter one manner, and in personal actions after another 
 manner ; yet it cannot be proved merely by reason, that the 
 same process ought to be had, and none other : for by statute 
 it might be altered. And so the ground of the said pro- 
 cess is to be referred only to the maxims and customs of 
 the realm. 
 
 And I have shewed thee these maxims before rehearsed, 
 not to the intent to shew thee specially what is the cause of 
 the law in them, for that would ask a great respite : but I 
 have shewed them only to the intent that thou mayest per- 
 ceive that the said maxims, and other like, may be conve- 
 niently set for one of the grounds of the laws of England. 
 Moreover there be divers cases whereof I am in doubt 
 whether they be only maxims of the law, or that the} - be 
 grounded upon the law of reason ; wherein I pray thee let 
 me hear thine opinion. 
 
 Doct. I pray thee shew those cases that thou meanest ; 
 and I shall make thee answer therein as I shall see cause. 
 
 Chap. IX. — Hereafter follow divers cases wherein the 
 student doubt eth whether they be only max/ins of the 
 law, or that tJiey be grounded upon the law of reason. 
 
 The law of England is, that if a man command another 
 to do a trespass, and he doth it, that the commander is a 
 trespasser.* And 1 am in doubt, whether that it be only 
 by a maxim of the law, or that it be by the law of reason. 
 
 Also, I am in doubt upon what law it is grounded, that 
 
 * Br. Trespass, pi. 148-
 
 3 2 
 
 Doctor and Student. 
 
 the accessary shall not be put to answer before the prin- 
 cipal, etc.* 
 
 Also, the law is, that if an abbotf buy a thing that cometh 
 to the use of the house, and dieth, that his successor shall 
 be charged 4 And I am somewhat in doubt upon what 
 ground that law dependeth. 
 
 Also, that he that hath possession of land, tho' it be by 
 disseisin, hath right against all men but against him that 
 hath right. § 
 
 Also, that if an action real be sued against any man that 
 hath nothing in the thing demanded, the writ shall abate 
 at the common law. 
 
 Also, that by the alienation of the tenant, hanging the 
 writ, or his entry into religion, or if he be made a knight, 
 or if she be a woman, and take an husband hanging the 
 writ, that the writ shall not abate. || 
 
 Also, if land and rent that is going out of the same land, 
 come into one man's hand of like estate, and like surety of 
 title, the rent is extinct. 1[ 
 
 Also, if land descend to him that hath right to the same 
 land before, he shall be remitted to his better title, if he 
 will.** 
 
 Also, if two titles be concurrent together, that the eldest 
 title shall be preferred. ff 
 
 :;: 'By the commor law the accessary shall not be compelled to answer to 
 the indictment till the principal is tried; but if he will waive that privi- 
 lege, he may, and put himself upon his trial before the principal, i H. II. 
 P. C. 623. The law, however, is now so much altered by statute, that re- 
 ceivers of stolen goods, knowing them to be stolen, may be compelled fo 
 answer for the misdemeanor, although the principal can not be taken. 1 
 Ann., c. 9, s. 2; 5 Ann., c. 31, s. 5; 4 Geo. I, c. 11, and see 4 B. C. 31S, and 
 Foster's Crown Law, 373- 
 
 f By the statutes 27 H. 8, c. 28; 31 II. 8, c. 13: 32 II. S, c. 14, s. 1, and 
 37 II. S, c. 4, all monasteries and religious houses are dissolved, and the 
 whole body of abbots and priors totally eradicated. 
 
 J B. Abbe, pi. 9; 22 II. 6, 56. 
 
 § 3 New A iir. <j~ r 
 
 || Viner's A.br., title Abatement. 
 
 \ Wood's Inst. 195. 
 
 ** lb. 528. 
 
 tt Noy's Max. 15.
 
 Dialogue I. — Chap. 9. ^3 
 
 Also, that every man is bound to make? recompence for 
 such hurt as his beasts shall do in the corn or grass of his 
 neighbour, though he know not that they were there. 
 
 Also, if the demandant or plaintiff, hanging his writ, will 
 enter into the thing demanded, his writ shall abate.* And 
 it is many times very hard and of great difficulty to know 
 what eases ot" the law of England be grounded upon tin- 
 law of reason, and what upon custom of the realm ; and 
 though it be hard to discuss it, it is very necessary to be 
 known, lor the knowledge of the perfect reason of the law. 
 And if an)' man think that these cases before rehearsed be 
 grounded upon the law of reason, then he may refer them 
 to the first ground of the law of England, which is the law of 
 reason, whereof is made mention in the fifth chapter, t 
 And if any man think that they be grounded upon the law 
 of custom, then he may refer them to the maxims of the 
 law, which be assigned for the fourth ground of the law of 
 England, whereof mention is made in the eighth chapter, 
 as before appeareth.| 
 
 Doct. But I pray thee shew me by what authority it is 
 proved in the laws of England that the cases which thou 
 hast put before in the eighth ehapter, and such other which 
 thou callest maxims, ought not to be denied, but ought to 
 be taken as maxims. For sith the} 7 cannot be proved by 
 reason, as thou agreest thyself they cannot, they may as 
 lightly be denied as affirmed, unless there be some sufficient 
 authority to approve them. 
 
 Stud. Many of the customs and maxims of the laws of 
 England be known by the use and the custom of the realm 
 so apparently that it needeth not to have any law written 
 thereof. § For what needeth it to have any law written that 
 the eldest son shall inherit his father, || or that all the daugh- 
 
 Doct. PI. 5. 
 t Ante, 13. 
 
 % Ante, 25. 
 § 1 B. C. 64. 
 
 || Ante, 19. 
 
 3
 
 34 Doctor and Student. 
 
 ters shall inherit together as one heir, if there be no son:* 
 or that the husband shall have the goods and chattels of his 
 wife that she hath at the time of the espousals, or after :f 
 or that a bastard shall not inherit as heir ; or the executors 
 shall have the disposition of all the goods of their testator ;$ 
 and if there be no executors, that the ordinary shall have 
 it, and the heir shall not meddle with the goods of his an- 
 cestor, but if any particular customs help him ? 
 
 The other maxims and customs of the law that be not so 
 openly known among the people may be known partly by 
 the law of reason, and partly by the books of the laws of 
 England, called Years and Terms, and partly by divers 
 records remaining in the king's courts, and in the treasury, 
 and specially by a book called the jRcgistcr,^ and also by 
 divers statutes, wherein many of the said cus oms and max- 
 ims be oft recited, as to a diligent searchei will evidently 
 appear. 
 
 Chap. X. — Of the fifth ground of the lazv of England. 
 
 The fifth ground of the law of England standeth in divers 
 ■particular customs, used in divers counties, towns, cities, 
 and lordships in this realm : the which particular customs, 
 because they be not against the law of reason, nor the law 
 of God, though they be against the said general customs or 
 maxims of the law, yet nevertheless they stand in effect, 
 and be taken for law : but if it rise in question in the king's 
 courts, whether there be any such particular custom or not, 
 it shall be tried by twelve men, and not by the judges, ex- 
 cept the same particular custom be of record in the same 
 court. || Of which particular customs I have hereafter noted 
 some lor an example. 
 
 First, there is a custom in Kent that is called Gavelkind, 
 
 * Litt., sec 241 
 
 tCo. Litt. 351. 
 
 X Ante, 21 ; post. 224; post 225. 
 
 ;< I'n lace to Doug. Rep. 10; 1 B. C. 71. 
 
 || Noy's Max. 18.
 
 Dialogue I. — Chap, ii 
 
 35 
 
 that all the brethren shall inherit together, as sisters at the 
 common law.* 
 
 Also, there is another particular custom that is called 
 Burgh- english, where the younger son shall inherit before 
 the eldest; and that custom is in Nottingham. f 
 
 Also, there is a custom in the city of London, that free- 
 men there may, by their testament inrolled, bequeath their 
 lands that they be seised of to whom they will, except to 
 mortmain : and if they be citizens and freemen, that they 
 may also bequeath their lands to mortmain. \ 
 
 Also, in Gavelkind, though the father be hanged the son 
 shall inherit. § For their custom is, The father to the bough, 
 the son to the -plough. 
 
 Also, in some countries the wife shall have the half of 
 the husband's land in the name of her dowry, as long as 
 she liveth sole. j| 
 
 And in some country the husband shall have the half of 
 the inheritance of his wife, though he have no issue bv 
 her.1" 
 
 Also, in some country an infant when he is of the age of 
 fifteen years may make a feoffment, and the feoffment 
 good :** and in some country, when he can mete an ell of 
 cloth. 
 
 Chap. XI. — Of the sixth ground of the law of England. 
 
 The sixth ground of the law of England standeth in 
 divers statutes made bv our sovereign lord the king and his 
 progenitors, and by the lords spiritual and temporal, and 
 the commons in divers parliaments, in such cases where 
 
 *Post. 56; Stat. 31 H. S, c. 3. 
 
 fLitt, sec. 165; post. 56. 
 
 % 1 Roll. Abr. 556; 3 Cro. 347. 
 
 §That is, if the father is hanged for felony; for if he is attainted of trea- 
 son, anil hanged, the iands are forfeited to the king. Consideration on 
 Law of Forfeitures, 6j 
 
 || i Cro. 1 _• i. 
 
 t Co. Litt. 30. 
 
 ** 1 B. C. 78; 2 Bac. Abr. 63S.
 
 ^6 Doctor and Student. 
 
 the law of reason, the law of God, customs, maxims, ne 
 other grounds of the law seemed not to be sufficient to 
 punish evil men and to reward good men.* And I re- 
 member not that I have seen any other grounds of the law 
 of England, but only these that I have before remembered. 
 Furthermore it appeareth of that I have said before, that 
 ofttimes two or three grounds of the law of England must 
 be joined together, or that the plaintiff can open and de- 
 clare his right, as it may appear by this example. If a 
 man enter into another man's land by force, and after make 
 feoffment for maintenance to defraud the plaintiff from his 
 action ; in this case it appeareth that the said unlawful entry 
 is prohibited by the law of reason : but the plaintiff shall 
 recover treble damages, j that is by reason of the statute 
 made in the eighth year of king Henry VI, cap. 9.$ And 
 that the damages shall be cessed by twelve men,§ that is 
 by the custom of the realm. And so in this case three 
 grounds of the law of England maintain the plaintiff's 
 action. 
 
 And so it is in divers other cases that need not to be re- 
 membered now. And thus I make an end ior this time to 
 speak any farther of the grounds of the law of England. 
 
 Doct. I thank thee for the great pain that thou hast taken 
 therein. Nevertheless, forasmuch as it appeareth that thou 
 hast said before that the learned men of the law of Eng- 
 land pretend to verify that the law of England will nothing 
 do, ne attempt against the law of reason, nor the law of 
 God, I pray thee answer me to some questions grounded 
 upon the law of England, how, as thou thinkest, the law 
 may stand with reason or conscience in them. 
 
 Stud. Put the case, and I shall make answer therein, as 
 well as I can. 
 
 * Noy's Max. 19. 
 
 t Co. Litt. 257. 
 
 % See this statute explained and enforced by 31 Eliz., cap. 11, and 21 Jac. 
 1, cap. 15. 
 
 § Upon an action of trespass, or an assize of novel disseisin, which is 
 the remedy given by the statute to recover the treble damages, and likewise 
 treble costs. Jenk. Cent. 197.
 
 Dialogue I. — Chap. 12. 37 
 
 Chap. XII. — The first question of the doctor, of the law 
 of England and conscience. 
 
 I have heard say that if a man that is bound in an obli- 
 gation pay the money, but he taketh no acquittance, or if 
 lie take one, and it happeneth him to leese it, that, in that 
 case, he shall be compelled by the laws of England to pay 
 ihe money again. And how may it be said then that that 
 law standeth with reason and conscience? For as it is 
 grounded upon the law of reason that debts ought of right 
 to be payed, so it is grounded upon the law of reason (as it 
 seemeth) that when they be payed, that he that payed them 
 should be discharged. 
 
 Stud. First, Thou shalt understand that it is not the law 
 of England that if a man that is bound in an obligation 
 pay the money without acquittance, or if he take acquit- 
 tance and leese it, that therefore the law determineth that 
 he ought of right to pay the money eftsoons, for that law 
 were both against reason and conscience. But though it 
 is so, that there is a general maxim in the law of England 
 that in an action of debt sued upon an obligation the de- 
 fendant shall not plead that he oweth not the money, ne can 
 in no wise discharge himself in that action, but he have 
 acquittance, or some other writing sufficient in the law, or 
 some other thing like, witnessing that he hath paid the 
 money ;* that is ordained by the law to avoid a great in- 
 convenience that else might happen to come to man}' peo- 
 ple ; that is to say, that every man by a nude parole and 
 by a bare averment should avoid an obligation. \ Where- 
 fore, to avoid that inconvenience, the law hath ordained 
 that as the defendant is charged by a sufficient writing, that 
 so he must be discharged by sufficient writing or by some 
 other thing of as high authority as the obligation is. And 
 though it may follow thereupon that, in some particular 
 case, a man by occasion of that general maxim may be 
 
 * Finch . \i. 
 
 t Fitzgib. 213; Finch. It; Noy*s Max. 4.
 
 38 Doctor and Student. 
 
 compelled to pay the money again that he payed before ; 
 yet, nevertheless, no default can be thereof assigned in the 
 law. For like as makers of law take heed to such things 
 as may oft fall, and do much hurt among the people, rather 
 than to particular cases : so in likewise the general grounds 
 of the-lavv of England heed more what is good for many 
 than what is good for one singular person only. And be- 
 cause it should be a hurt to many, if an obligation should 
 be so lightly avoided by word ; therefore the law especially 
 preventeth that hurt under such manner as before appear- 
 eth ; and yet intendeth not, nor commandeth not, that the 
 money of right ought to be paid again, but setteth a general 
 rule, which is good and necessary to all the people, and 
 that every man may well keep, without it be through his 
 own default. And if such default happen in any person, 
 whereby he is without remedy at the common law, yet he 
 may be holpen by a subpoena; and so he may in many 
 other cases where conscience serveth for him, that were too 
 long to rehearse now.* 
 
 Doct. But I pray thee shew me under what manner a 
 man may be holpen by conscience ; and whether he shall 
 be holpen in the same court, or in another. 
 
 Stud. Because it cannot be well declared where a man 
 shall be holpen by conscience, and where not, but it be 
 first known what conscience is, therefore, because it per- 
 taineth to thee most properly to treat of the nature and 
 quality of conscience, therefore I pray thee that thou wilt 
 make me some brief declaration of the nature and quality 
 of conscience, and then I shall answer to thy question as 
 well as I can. 
 
 Doct. I will with good-will do as thou say est : and to 
 the intent that thou mayest the better understand that I 
 shall say of conscience, I shall first shew thee what sin- 
 dercsis is, and then what reason is, and then what con- 
 science is ; and how these three differ among themselves, 
 I shall somewhat touch. 
 
 * 1 Chanc. Cases, 78; 2 Comyn's Digest, 323.
 
 Dialogue I. — Chap. 13. 39 
 
 Chap. XIII. — What sinderesis is. 
 
 Sinderesis is a natural power of the soul, set in the highest 
 part thereof, moving and stirring it to good and abhorring 
 evil. And therefore sinderesis never sinneth nor erreth. 
 And this sinderesis our Lord put in man, to the intent that 
 the order of things should be observed. For, after St. 
 Dionyse, the wisdom of God joined the beginning of 
 the second things to the last of the first things : for an^el 
 is of a nature to understand without searching of reason, 
 and to that nature man is joined by sinderesis, the which 
 sinderesis may not wholly be extincted neither in man ne 
 yet in damned souls. But nevertheless, as to the use and 
 exercise thereof, it may be let for a time, either through 
 the darkness of ignorance, or for undiscreet delectation, 
 or for the hardness of obstinacy. First by the dark- 
 ness of ignorance, sinderesis may be let that it shall 
 not murmur against evil, because he believeth evil to 
 be good, as it is in heretics, the which, when thev die 
 for the wickedness of their error, believe thev die for 
 the very truth of their faith. And by undiscreet delecta- 
 tion sinderesis is sometime so overlaid, that remorse or 
 grudge of conscience for that time can have no place. 
 For the hardness of obstinacy sinderesis is also let, that it 
 may not stir to goodness, as it is in damned souls, that be 
 so obstinate in evil, that the} r ma}- never be inclined to good. 
 And though sinderesis may be said to that point extinct in 
 damned souls, yet it may not be said that it is fully extinct 
 to all intents. For they alway murmur against the evil of 
 the pain that they suffer for sin, and so it may not be said 
 that it is universally, and to all intents, and to all times ex- 
 tinct. And this sinderesis is the be<nnnin<>- of all things 
 that may be learned by speculation or stud}', and ministreth 
 the general grounds and principles thereof; and also of all 
 things that are to be done by man. An example oi such 
 things as may be learned by speculation appeareth thus : sin- 
 deresis saith that every whole thing is more than any one 
 part of the same thing, and that is a sure ground that never
 
 4<3 Doctor and Student. 
 
 faileth. And an example of things that are to be done, or 
 not to be done : as where sinderesis saith no evil is to be 
 done, but that goodness is to be done and followed, and 
 evil to be fled, and such other. 
 
 And therefore sinderesis is called by some men the law 
 of reason, for it ministreth the principles of the law of rea- 
 son, the which be in every man by nature, in that he is a 
 reasonable creature. 
 
 Chap. XIV.— Of reason. 
 
 When the first man Adam was created, he received of 
 God a double eye, that is to say, an outward eye, whereby he 
 might see visible things, and know his bodily enemies, and 
 eschew them : and an inward eye, that is, the eye of rea- 
 son, whereby he might see his spiritual enemies that light 
 against his soul, and beware of them. And amon<rall gifts 
 that God gave to men, this gift of reason is the most no- 
 blest, for thereby man precelleth all beasts, and is made 
 like to the dignity of angels, discerning truth from falsehood, 
 and evil from <rood ; wherefore he goeth far from the effect 
 that he was made to, when he taketh not heed to the truth, 
 or when he preferreth evil before good. 
 
 And therefore, after doctors, reason is the power of the 
 soul that discerneth between good and evil, and between 
 good and better, comparing the one with the other : the 
 which also sheweth virtues, loveth good, and flieth vices. 
 And reason is called righteous and good, for it is conform- 
 able to the will of God ; and that is the first thing, and the 
 first rule that all things must be ruled by. And reason that 
 is not righteous nor strait, but that is said culpable, is either 
 because she is deceived with an error that might be over- 
 come, or else through her pride or slothfulness she enquireth 
 not for knowledge of the truth that ought to be enquired. 
 Also reason is divided into two parts, that is to say, into the 
 higher part, and into the lower part. 
 
 The higher part hideth heavenly things and eternal, and 
 reasoneth by heavenly laws or by heavenly reason what is
 
 Dialogue I. — Chap. 15. 41 
 
 to be done, and what is not to be done, and what things 
 God commandeth, and what he prohibiteth. And this 
 higher part of reason hath no regard to transitory things 
 or temporal things, but that sometime, as it were bv manner 
 of counsel, she bringeth forth heavenly reasons to order 
 well temporal things. The lower part of reason worketh 
 most to govern well temporal tilings, and she groundeth 
 her reasons much upon laws of man, and upon reason of 
 man, whereby she concludeth that that is to be done that is 
 honest and expedient to the commonwealth, or not to be 
 done, that is not expedient to the commonwealth. And so 
 that reason whereby I know God, and such things as per- 
 tain to God, belongeth to the highest part of reason ; and 
 the reason whereby I know creatures belongeth to the 
 lower part of reason. And though these two parts, that is 
 to say, the higher part and the lower part, be one in deed 
 and essence, yet they differ by reason of their working, and 
 of their office ; as it is of one self eye, that sometime look- 
 eth upward, and sometime downward. 
 
 Chai\ XV. — Of conscience. 
 
 This word conscience, which in Latin is called consci- 
 oitia, is compounded of this proposition cnin, that is to 
 say in English, with; and of this noun scientia, that is to 
 say in' English, knowledge: and so conscience is as much 
 to say knowledge of one thing with another thing : and 
 conscience so taken, is nothing else but an applying of any 
 science or knowledge to some particular act of man. And 
 so conscience may sometime err, and sometime not err. 
 And of conscience thus taken,, doctors make man}' descrip- 
 tions. Whereof one doctor saith, that conscience is the 
 law of our understanding. Another, that conscience is an 
 habit of the mind discerning between good and evil. An- 
 other, that conscience is the judgment of reason judging 
 on the particular acts of man. All which sayings agree 
 in one effect, that is to say, that conscience is an actual ap- 
 plying of any cunning ol knowledge to such things as are
 
 \i Doctor and Student. 
 
 to be done: whereupon it followeth, that upon the most 
 perfect knowledge of any law or cunning, and of the most 
 perfect and most true applying of the same to any particu- 
 lar act of man, followeth the most perfect, the most pure, 
 and the most best conscience. And if there be default in 
 knowing of the truth of such a law, or in the applying of 
 the same to particular acts, then thereupon followeth an 
 error or default in conscience. As it may appear by this 
 example : Sinderesis ministreth an universal principle that 
 never erreth, that is to say, that an unlawful thing is not to 
 be done. And then it might be taken by some men, that 
 every oath is unlawful, because the Lord saith, Mat. v., 
 Yc shall in no wise szvcar ; and yet he that by reason of the 
 said words will hold that it is not lawful in no case to 
 swear, erreth in conscience ; for he hath not the perfect 
 knowledge and understanding of the truth of the said gos- 
 pel, nor he reduceth not the saying of the scripture to other 
 scriptures, in which it is granted that in some case an oath 
 may be lawful. And "the cause why conscience may so err 
 in the said case, and in other like, is because conscience is 
 formed of a certain proposition or question, grounded par- 
 ticularly upon universal rules ordained for such things as 
 are to be done. And because a particular proposition is 
 not known to himself, but must appear and be searched by 
 a diligent search of reason, therefore in search and in the 
 conscience that should be formed thereupon may happen 
 to be error, and thereupon it is said that there is error in 
 conscience : which error cometh either because he doth not 
 assent to that he ought to assent unto, or else because his 
 reason whereby he doth refer one thing to another is de- 
 ceived. For farther declaration whereof it is to under- 
 stand, that error in conscience cometh seven manner ot 
 ways. First, through ignorance ; and that is, when man 
 knoweth not what he ought to do : and then he ought to 
 ask counsel of them that he thinks most expert in that 
 science whereupon his doubt riseth. And if he can have 
 no counsel, then he must wholly commit him to God, and 
 he of his goodness will so order him, that he will save him
 
 Dialogue I. — Chap. 15. 43 
 
 from offence. The second is through negligence ; as when 
 a man is negligent to search his own conscience, or to en- 
 quire the truth of other. The third is through pride ; as 
 when he will not meeken himself, ne believe them that be 
 better and wiser than he is. The fourth is through sinini- 
 larity ; as when a man followeth his own wit, and will not 
 conform himself to other, nor follow the good common ways 
 of men. The filth is through an inordinate affection to 
 himself, whereby he maketh conscience to follow his desire, 
 and so he causeth her to <jo out of her right course. The 
 sixth is through pusillanimity, whereby some person dread- 
 eth ofttimes such things as of reason he ought not to dread. 
 The seventh is through perplexity ; and this is when a man 
 believeth himself to be so set betwixt two sins, that he 
 thinketh it impossible but that he shall fall into the one : 
 but a man can never be so perplexed indeed, but through 
 an error in conscience ; and if he will put away that error, 
 he shall be delivered. Therefore I pray thee that thou wilt 
 always have a good conscience ; and if thou have so, thou 
 shalt always be merry ; and if thine own heart reprove thee 
 not, thou shalt always have inward peace. The gladness 
 of right wise men, is of God, and in God, and their joy is 
 always in truth and goodness. There be many diversities 
 of conscience, but there is none better than that whereby a 
 man truly knoweth himself. Many men know many great 
 and high cunning things, and yet know not themselves : 
 and truly he that knoweth not himself, knoweth nothing 
 well. Also he hath a good and clean conscience, that hath 
 purity and cleanness in his heart, truth in his word, and 
 right wiseness in his deed. And as a light is set in a lan- 
 tern, that all that is in the house may be seen thereby ; so 
 Almighty God hath set conscience in the midst of every 
 reasonable soul, as a light whereby he may discern and 
 know what he ought to do, and what he ought not to do. 
 Therefore forasmuch as it behoveth thee to be occupied in 
 such things as pertain to the law ; it is necessary that thou 
 ever hold a pure and clean conscience, specially in such 
 things as concern restitution : for the sin is not forgiven,
 
 44 Doctor and Student. 
 
 but if the thing that is wrongfully taken be restored. And 
 I counsel thee also that thou love that is good, and fly that 
 is evil : and that thou do to another, as thou wouldest 
 should be done to thee, and that thou do nothing to other, 
 that thou wouldest not should be done to thee, that thou do 
 nothing against truth, that thou live peaceably with thy 
 neighbour, and that thou do justice to every man as much 
 as in thee is : and also that in every general rule of the 
 law thou do observe and keep equity. And if thou do 
 thus, I trust the light of the lantern, that is, thy conscience, 
 shall never be extincted. 
 
 Stud. But, I pray thee, shew me what is that equity that 
 thou hast spoken of before, and that thou wouldest that I 
 should keep. 
 
 Doct. I will with good-will shew thee somewhat thereof. 
 
 Chap. XVI. What is equity. 
 
 Equity is a right wiseness that considereth all the par- 
 ticular circumstances of the deed, the which also is tem- 
 pered with the sweetness of mercy. And such an equity 
 must always be observed in every law of man, and in every 
 general rule thereof: and that knew he well that said thus, 
 Laws covet to be ruled by equity. And the wise man saith, 
 Be not overmuch right -wise; for the extreme right -wise- 
 ness is extreme wrong: as who saith, If thou take all that 
 the words of the law giveth thee thou shalt sometime do 
 against the law. And for the plainer declaration what 
 equity is, thou shalt understand, that sith the deeds and 
 acts of men, for which laws have been ordained, happen in 
 divers manners infinitely, it is not possible to make any 
 general rule of the law, but that it shall fail in some case : 
 and therefore makers of law take heed to such things as 
 may often come, and not to every particular case, for they 
 could not though they would. And therefore, to follow the 
 words of the law were in some case both against justice and 
 the commonwealth. Wherefore in some cases it is neces- 
 sary to love the words of the law, and to follow that reason
 
 Dialogue I. — Chap. 16. 45 
 
 and justice requireth, and to that intent equity is ordained; 
 that is to say, to temper and mitigate the rigour of the law. 
 
 And it is called also by some men cficikcia ; the which is 
 no other thing but an exception of the law of God, or the 
 law of reason, from the general rules of the law of men, 
 when they by reason of their generality, would in any par- 
 ticular case judge against the law of God or the law of 
 reason : the which exception is secretly understood in every 
 general rule of every positive law. And so it appeareth, 
 that equity taketh not away the very right, but only that 
 that seemeth to be right by the general words of the law. 
 Nor it is not ordained against the cruelness of the law, for 
 the law in such case generally taken is good in himself; 
 but equity followeth the law in all particular cases where 
 right and justice requireth, notwithstanding the general rule 
 of the law be to the contrary. Wherefore it appeareth., that 
 if any law were made by man without any such exception 
 expressed or implied, it were manifestly unreasonable, and 
 were not to be suffered : for such causes might come, that 
 he that would observe the law should break both the law 
 of God and the law of reason. As if a man make a vow 
 that he will never eat white-meat, and after it happeneth 
 him to come there where he can get no other meat : in this 
 case it behoveth him to break his avow, for the particular 
 case is excepted secretly from his general avow by his 
 equity or cpici/ccia, as it is said before. Also if a law were 
 made in a city, that no man under the pain of death should 
 open the gates of the city before the sun-rising: vet if the 
 citizens before that hour Hying from their enemies, come to 
 the gates of the city, and one for saving of the citizens 
 openeth the gates before the hour appointed by the law, he 
 oflendeth not the law, for that case is excepted from the 
 said general law by equity, as is said before. And so it 
 appeareth that equity rather followeth the intent of the law, 
 than the words of the law. And I suppose that there be in 
 like wise some like equities grounded on the general rules 
 ol the law of the realm. 
 
 Stud. Yea verily ; whereof one is this. There is a
 
 46 Doctor and Student. 
 
 general prohibition in the laws of England, that it shall 
 not be lawful to any man to enter into the freehold of an- 
 other without authority of the owner or the law : but yet it 
 is excepted from the said prohibition by the law of reason, 
 that if a man drive beasts by the highway, and the beasts 
 happen to escape into the corn of his neighbour, and he, 
 to bring out his beasts, that they should do no hurt, goeth 
 into the ground, and setteth out his beasts, there he shall 
 justify that entry into the ground by the law.* Also not- 
 withstanding the statute of Edw. 3, made the 14th year of 
 his reign, whereby it is ordained, that no man, upon pain of 
 imprisonment, should give any alms to any valiant beggar, 
 that is well able to labour ;f yet if a man meet with a val- 
 iant beggar in so cold a weather, and so light apparel, that 
 if he have no clothes, he shall not be able to come to any 
 town for succour, but is likely rather to die by the way, 
 and he therefore giveth him apparel to save his life, he shall 
 be excused by the said statute, by such an exception of the 
 law of reason as I have spoken of. 
 
 Doct. I know well that, as thou sayest, he shall be ex- 
 cepted of the said statute by conscience, and over that, that 
 he shall have great reward of God for his good deeds : but I 
 would wit whether the party shall be so discharged in the 
 Common law by such an exception of the law of reason, 
 or not? For though ignorance invincible of a statute ex- 
 cuse the party against God, yet (as I have heard) it ex- 
 cuseth not in the laws of the realm, ne yet Chancery , as 
 some say, although the case be so that the party to whom 
 the forfeiture is given may not with conscience leave it. 
 
 Stud. Verily, by thy question thou hast put me in a great 
 doubt ; wherefore I pray thee give me a respite therein to 
 make thee an answer : but, as I suppose for the time, (how- 
 beit I will not fully affirm it to be as I say) it should seem 
 that he should well plead it for his discharge at the Common 
 law, because it shall be taken that it was the intent of the 
 
 * Viner's Abr., title Trespass, 466. 
 
 t Repealed by 1 Ed. 6, c. 13, and 21 Jac, 28; ante, 15.
 
 Dialogue I. — Chap. 17. 47 
 
 makers of the statute to except such cases.* And the 
 judges may many times judge after the mind of the makers 
 
 as far as the letter may suffer, and so it seemeth they may 
 in this case. And divers other exceptions there be also 
 from other general grounds of the law of the realm by 
 such equity as thou hast remembered before, that were too 
 long to rehearse now. 
 
 Doct. But yet I pray thee shew me shortly somewhat 
 more of the mind, under what manner a man may be 
 holpen in this realm by such equity-. 
 
 Stud. I will with good-will shew thee somewhat therein. 
 
 Chap. XVII. — /;/ what manner a man shall be holpen by 
 equity in the lazes of England. 
 
 First, It is to be understood, there be in many cases divers 
 exceptions from the general grounds of the law of the 
 realm by other reasonable grounds of the same law, 
 whereby a man shall be holpen in the common law. As 
 it is of this general ground, that it is not lawful for any man 
 to enter upon a descent ; yet the reasonableness of the law 
 excepteth from that ground an infant that hath right, and 
 hath suffered such a descent, and him also that maketh 
 continual claim, and suffereth them to enter, notwithstand- 
 ing the descent.! And of that exceDtion thev shall have 
 advantage in the Common law. And so it is likewise of 
 divers statutes; as of the statute whereby it is prohibited 
 that certain particular tenants shall do no waste, yet it a 
 lease for term of years be made to an infant that is within 
 years of discretion, as of the age of five or six years, and 
 a stranger do waste, in this case this infant shall not be 
 punished for the waste, for he is excepted and excused by 
 the law of reason.^ And a woman covert, to whom such 
 
 *Noy's Max. 19. 
 
 ■f Litt., *ec 402, 414; Noy's Max. 7. 
 
 X But in 2 Inst. 303, it is said, that if an infant is tenant by the curtesy 
 or lessee for life or years, he shall answer for waste done by a stranger, 
 and have his remedy over. See likewise 1 Inst. 54.
 
 48 Doctor and Student. 
 
 a lease is made after the coverture, shall be also discharged 
 of waste after her husband's death, by a reasonable maxim 
 and custom of the realm.* And also for 1 reparations to be 
 made upon the same ground, it is lawful for such particu-. 
 lar tenants to cut down trees upon the same ground to make 
 reparations.! But the cause there, as I suppose, is, for 
 that the mind of the makers of the said statute shall be 
 taken to be, that that case should be excepted. And in all 
 these cases the parties shall be holpen in the same court, 
 and by the common law. And thus it appeareth, that 
 sometime a man may be excepted from the rigor of a maxim 
 of the law by another maxim of the law ; and sometime 
 from the rigor of a statute by the law of reason, and some- 
 time by the intent of the makers of the statute. | But yet 
 it is to be understood, that most commonly where any thing- 
 is excepted from the general customs or maxims of the laws 
 of the realm by the law of reason, the party must have his 
 remedy by a writ that is called subpoena, it a subpoena lie 
 in the case.§ But where a stibpcoia lieth, and where not, 
 it is not our intent to treat of at this time. And in some 
 cases there is no remedy for such an equity by way of com 
 pulsion, but all remedy therein must be committed to the 
 conscience of the party. 
 
 Doct. But in case where a subpoena lieth, to whom shall 
 it be directed, whether to the judge or the party? 
 
 Stud. It shall never be directed to the judge, but to the 
 party plaintiff, or to his attorney ; and thereupon an injunc- 
 tion commanding them by the same, under a certain pain 
 therein to be contained that he proceed no farther at the 
 common law till it be determined in the king's chanccrw 
 whether the plaintiff had title in conscience to recover, or 
 
 *This doctrine is denied in the authorities mentioned in the precedin ; 
 note, and it is there laid down, that the privilege of coverture shall not 
 prevail in this case against the wrong and disherison done to him that has 
 the inheritance, if the wife agrees to the estate, after the death of her hus- 
 band, since she has a remedy over, and this seems to be the better law. 
 
 t Co. Litt. 53. 
 
 J4l3ac Abr. 649; Noy's Max. 19. 
 
 § 1 Ilarr. Chan. Prac. 5.
 
 Dialogue I. — Chap. 17. 49 
 
 not: and when the plaintiff, by reason of such an injunc- 
 tion, ceaseth to ask any farther process, the judges will in 
 like wise cease to make any farther process in that behalf.* 
 
 Doct. Is there any mention made in the law of England 
 of any such equities? 
 
 Stud. Of this term equity, to the intent that is spoken of 
 here, there is no mention made in the law of England : but 
 of an equity derived upon certain statutes mention is made 
 many times, and often in the law of England ;f but that 
 equity is all of another effect than this. But of the effect 
 of this equity that we now speak of, mention is made many 
 times : for it is ofttimes argued i n the law of England, 
 where a subpoena lieth, and where not, and daily bills be 
 made by men learned in the law of this realm to have sub- 
 poenas. And it is not prohibited by the law, but that they 
 may well do it, so that they make them not but in case 
 where they ought to be made, and not for vexation of the 
 party, but according to the truth of the matter. And the 
 law will in many cases, that there shall be such remedy in 
 the chancery upon divers things grounded upon such equi- 
 ties, and then the lord chancellor must order his conscience 
 after the rules and grounds of the law of the realm ; inso- 
 much that it had not been inconvenient to have assigned 
 such remedy in the chancery upon such equities for the 
 seventh ground of the law of England. But forasmuch as 
 no record remaineth in the king's court of no such bill, ne 
 of the writ of subpoena or injunction that is used thereupon ; 
 therefore it is not set as for a special ground of the law, 
 but as a thing that is suffered by the law. 
 
 Doct. Then sith the parties ought ot right in many cases 
 to be holpen in the chancery upon such equities ; it seemeth 
 that if it were ordained by statute, that there should be no 
 remedy upon such equities in the ehaueerw nor in none 
 Other place, but that every matter should be ordained only 
 
 * 1 Ilarr. Chan. Prat:. :i:, ^13. 
 t 4 New Abr. 649. 
 
 4
 
 50 Doctor and Student. 
 
 by the rules and grounds of the common law, that the 
 statute were against right and conscience. 
 
 Stud. I think the same : but I suppose there is no such 
 statute. 
 
 Doct. There is a statute of that effect, as I have heard 
 say, wherein I would gladly hear thy opinion. 
 
 Stud. Shew me that statute, and I shall with good-will 
 say as me thinketh therein. 
 
 Chap. XVIII. — Whether the statute hereafter rehearsed 
 by the doctor be against conscience, or not. 
 
 There is a statute made the fourth year of king Henry 
 IV, cap. 22, whereby it is enacted, That judgment given 
 by the king's courts shall not be examined in the chancery, 
 parliament, nor elsewhere ; by which statute it appeareth, 
 that if any judgment be given in the king's courts against 
 an equity, or against any matter of conscience, that there 
 can be had no remedy by that equity, for the judgment can- 
 not be reformed without examination, and the examination 
 is by the said statute prohibited : wherefore it seemeth that 
 the said statute is against conscience. What is thine 
 opinion therein? 
 
 Stud. If judgment given in the king's courts should be 
 examined in the chancery before the king's council, or any 
 other place, the plaintiffs or demandants should seldom 
 come to the effect of their suit, ne the law should never 
 have end. And therefore to eschew that inconvenience 
 that statute was made. And though peradventure by rea- 
 son of that statute some singular person may happen to 
 have loss; nevertheless the said statute is very necessary, 
 to eschew many great vexations and unjust expences that 
 would else come to many plaintiffs that have right wisely 
 recovered in the king's courts. And it is much more pro- 
 vided for in the law of England, that hurt nor damages 
 should not come to many, than only to one. And also the
 
 Dialogue I. — Chap. 18. 
 
 5* 
 
 said statute doth not prohibit equity,* but it prohibiteth only 
 the examination of the judgment, for the eschewing of the 
 inconvenience before rehearsed. f And it seemeth that the 
 said statute standeth with good conscience. And in many 
 other cases where a man doth wrong, yet he shall not be 
 compelled by way of compulsion to relorm it; for many 
 times it must be left to the conscience of the party, whether 
 he shall redress it or not. And in such case he is in con- 
 science as well bound to redress it, if he will save his soul, 
 as he were if he were compellable thereto by the law ; as 
 it may appear in divers cases, that may be put upon the 
 same ground. 
 
 Doct. I pray thee put some of these cases for an ex- 
 ample. 
 
 Stud. If the defendant wage his law in an action of debt 
 brought upon a true debt, the plaintiff hath no means to 
 come to his debt by way of compulsion, neither by subpoena, 
 nor otherwise ; and yet the defendant is bound in conscience 
 to pay him. Also if the grand jury in attaint* affirm a 
 false verdict given by the petty jury, there is no farther 
 remedy but the conscience of the party. Also where there 
 can be had no sufficient proof, there can be no remedy in 
 the chancery, no more than there ma}' be in the spiritual 
 court. And because thou hast given an occasion to speak 
 of conscience, I would gladly hear thy opinion, where con- 
 science shall be ruled after the law, and where the law 
 shall be ruled after conscience. 
 
 That is. it does not extend to hinder .the chancery from administering 
 relief in cases where judgments at common law are obtained through fraud 
 and false suggestions- That court, notwithstanding the statute, may pre- 
 vent such judgments being put into execution. 3 P. Wins. 14S. T i- a 
 power which seems necessarily inherent in the very constitution of a court 
 1 f equity, and therefore one cannot help thinking Sir Edward Coke much 
 to blame in the attempt he made in the time o( Lord Kile-mere. to rob the 
 chancery of this part of its jurisdiction. See 2 Whitlock of Par!. 390; 1 
 Chan. Rep. Append. 11. 
 
 t Uetlev. jo : Hard. 23. 
 
 X For the nature of an attaint, and how far it is in use at this day, see 
 3 B. C-, cap. 25. p- 402.
 
 52 Doctor and Student. 
 
 Doct. And of that matter I would likewise gladly hear 
 thy opinion, specially in cases grounded upon the laws of 
 England, for I have not heard but little thereof in time past: 
 but before thou put any case thereof, I would that thou 
 wouldest shew me how these two questions after thy opinion 
 are to be understood. 
 
 Chap. XIX. — Of what I azv this question is to be under- 
 stood, that is to say where conscience shall be ruled after 
 the I azv. 
 
 The law whereof mention is made in this question, that 
 is to say, where conscience shall be ruled by the law, is 
 not, as me seemeth, to be understood only of the law of 
 reason, and of the law of God, but also of the law of man, 
 that is not contrary to the law of reason, nor the law of God, 
 but it is superadded unto them for the better ordering of the 
 commonwealth : for such a law of man is always to be set 
 as a rule in conscience, so that it is not lawful for a man to 
 frame it on the one side, ne on the other: for such a law 
 of man hath not only the strength of man's law. but also 
 the law of reason, or of the law of God, whereof it is de- 
 rived. For laws made by men, which have received of 
 God power to make laws, be made by God. And there- 
 fore conscience must be ordered by the law, as it must be 
 upon the law of God and upon the law of reason. And 
 furthermore, the law whereof mention is made in the latter 
 end of the chapter next before, that is to say, in the question 
 wherein it is asked where the law is to be left and forsaken 
 for conscience, is not to be understood of the law of reason, 
 nor of the law of God ; fcr those two laws may not be left. 
 Nor is it not to be understood of the law of man that is 
 made in particular cases, and that is consonant to the law 
 of reason, and to the law of God, that yet that law should 
 be left for conscience : for of such a law made by man, con- 
 science must be ruled, as it is said before,, Nor it is not to 
 be understood of a law made by man commanding or pro- 
 hibiting any thing to be done that is against the law of
 
 Dialogue I. — Chap. 19. 53 
 
 reason or the law of God. For if any law made by him, bind 
 any person to any thing that is against the said laws, it is no 
 law, but a corruption, and manifest error. Therefore, aftei 
 them that be learned in the laws of England, the said question, 
 that is to sav, where the law is to be left for conscience, and 
 where not, is to be understood in divers manners, and after 
 divers rules, as hereafter shall somewhat be touched. 
 
 First, Many unlearned persons believe that it is lawful 
 for them to do with good conscience all things, which if 
 they do them, they shall not be punished therefore by the 
 law, though the law doth not warrant them to do that they 
 do, but only, when it is done, doth not for some reasonable 
 consideration punish them that do it, but leaveth it only to 
 his conscience. And therefore many persons do ofttimes 
 that they should not, and keep as their own that that in 
 conscience they ought to restore. Wherefore there is the 
 law of England in this case. 
 
 If two men have a wood jointly, and the one of them 
 selleth the wood, and keepeth all the money wholly to him- 
 self;* in this case his fellow shall have no remedy against 
 him by law :| for as they, when they took the wood jointly, 
 put each other in trust, and were content to occupy to- 
 gether : so the law suffereth them to order the profits thereof 
 according to the trust that each of them put the other in. 
 And3 T et if one took all the profits, he is bound in conscience 
 to restore the hall to his fellow : lor, as the law giveth him 
 right only to half the land, so it giveth him right onlv in 
 conscience to halt the profits. And yet nevertheless, it 
 cannot be said in that case, that the law is against con- 
 science, for the law never willeth, ne commandeth that one 
 should take all the profits, but leaveth it to their conscience ; 
 so that no default can be found in the law, but in him that 
 
 Co. Litt. 1S7; 1 Cro. S03. 
 t This is now altered by slat- 4 and 5 Ann., ci6, bv which it is provided, 
 that joint tenants, ami tenants in common, and their executors and adminis- 
 trators, shall have an account against the others, as bailiffs lor receiving 
 more than their proportion, and against their executors and administra- 
 tors.
 
 54 Doctor and Student. 
 
 taketh all the profits to himself may be assigned default, 
 who is bound in conscience to reform it, if he will save his 
 soul, though he cannot be compelled thereto by the law. 
 And therefore in this case, and other like, that opinion 
 which some have, that they may do with conscience all 
 that they shall not be punished for by the law if they do it, 
 it is to be left for conscience ; but the law is not to be left 
 for conscience. 
 
 Also many men think, that if a man have land that an- 
 other hath title to, if he that hath the right shall not, by the 
 action that is given him by the law to recover his right by, 
 recover damages, that then he that hath the land is also 
 discharged of damages in conscience ; and that is a great 
 error in conscience ; for though he cannot be compelled to 
 yield the damages by no man's law, yet he is compelled 
 thereto by the law of reason, and by the law of God, 
 whereby we be bound to do as ive would be done to, and 
 that we should not covet our neighbour's goods. And 
 therefore if tenant in tail be disseised, and the disseisor dieth 
 seised, and then the heir in the tail bringeth a formedon * 
 and recovereth the land, and no damages, for the law giveth 
 him no damage in that case ;f yet the tenant by conscience 
 is bound to yield damages to the heir in tail from the death 
 of his ancestor. Also it is taken by some men, that the 
 law must be left for conscience, where the law doth not 
 suffer a man to deny that he hath before affirmed in court 
 of record, or for that he hath wilfully excluded himself 
 thereof for some other cause : as if the daughter that is 
 only heir to her father will sue livery with her sister that is 
 a bastard, in that case he shall not be received to say that 
 her sister is a bastard \% insomuch that if her sister take 
 half the land with her, there is no remedy against her by 
 
 * The writ of formedon is now seldom brought, it being an easier 
 method to try titles by objectione jirmce. 
 f 2 Danv. Abr. 455, 456. 
 J Co. Litt. 170.
 
 Dialogue I. — Chap. 19. 55 
 
 the law.* And no more there is of diversity in other es- 
 topples, which were too long to rehearse now. And yet 
 the party that may take advantage by such an estopple, by 
 the law, is bound in conscience to forsake that advantage, 
 especially if he were so estopped by ignorance, and not by 
 his own knowledge and assent. For though the law in 
 such cases giveth no remedy to him that is estopped, yet 
 the law judgeth not that the other hath right unto the thing 
 that is in variance betwixt them. 
 
 And it is to be understood, that the law is to be left for 
 conscience, where a thing is tried and found by verdict 
 against the truth ; for in the common law the judgment 
 must be given according as it is pleaded and tried, like as 
 it is in other laws, that the judgment must be given accord- 
 ing to that that is pleaded and proved. And it is to be un- 
 derstood, that the law is to be left for conscience, where the 
 cause of the law doth cease : for when the cause of the law 
 doth cease, the law also doth cease in conscience, as ap- 
 peareth by this case hereafter following. f 
 
 A man maketh a lease for term of life, and after a 
 stranger doth waste : wherefore the lessee brin<reth an ac- 
 tion of trespass, and hath judgment to recover damages, 
 having regard to the treble damages that he shall yield to 
 him in the reversion : and after he in the reversion, before 
 action of waste sued, dieth, so that the action of waste is 
 thereby extincted : then the tenant for term of life, though 
 he may sue execution of the said judgment by the law. yet 
 he may do it by conscience ; for in conscience he may take 
 no more than he is hutted by the said trespass, because he 
 is not charged over with treble damages to his lessor. Also 
 it is to be understood, where a law is grounded upon a pre- 
 sumption, if the presumption be untrue, then the law is not 
 to be holden in conscience. And now I have shewed thee 
 somewhat of the question, that is to say, where the law shall 
 
 • But this kind of estoppel will not bind in chancery. Carv's Rep. 26; 
 Pollexfen, 67. 
 f Noy's Max. 2.
 
 $6 Doctor and Student. 
 
 be ruled after conscience, I pray thee shew me whether 
 there be not like diversities in other laws, betwixt law and 
 conscience. 
 
 Doct. Yes, verily, very many, whereof thou hast recited 
 one before, where a thing that is untrue is pleaded and 
 proved ; in which case judgment must be given according, 
 as well in the law civil as in the law canon. And another 
 case is, that if the heir make not his inventory, he shall be 
 bound after the law civil to all the debts, though the goods 
 amount not to so much : and the law canon is not against 
 that law, and yet in conscience, the heir, which in the laws 
 of England is called an executor, is not in that case charged 
 with the debts, but according to the value of the goods. 
 And now I pray thee shew me some cases where conscience 
 shall be ruled after law. 
 
 Stud. I will with good-will shew thee somewhat as me- 
 thinketh therein. 
 
 Chap. XX. — Here follow divers cases zvhere conscience is 
 to be ordered after the law. 
 
 The eldest son shall have and enjoy his father's lands at 
 the common law in conscience, as he shall in the law.* 
 And in Burgh-english f the younger son shall enjoy the 
 inheritance, and that in conscience. And in Gavelkind^ 
 all the sons shall inherit the land together, as daughters, 
 at the common law ;§ and that in conscience. And there 
 can be no other cause assigned why conscience in the first 
 case is with the eldest brother, and in the second with the 
 younger brother, and in the third case with all the breth- 
 
 *2 B. C. 214. 
 
 t Ante, 35. 
 
 \ Ante, 34. 
 
 § See statute 31 H. 8, c 3, whereby divers lands in the county of Kent 
 are disgavelled and directed to descend in future like other lands; and Mr. 
 Robinson, in his book on Gavelkind, 79, mentions six other statutes for 
 disgavelling particular lands in Kent, though the statute 31 H. 8, is the 
 only one in print.
 
 Dialogue I. — Chap. 20. 57 
 
 ren ; but because the law of England, by reason of divers 
 customs, doth sometime give the land wholly to the eldest 
 son, sometime to the youngest, and sometime to all. Also 
 if a man of his mere motion make a feoffment of two acres 
 of land lying in two several shires, and maketh livery of 
 seisin in the one acre in the name of both ; in this case the 
 feoffee hath right but only in the acre whereof livery of 
 seisin was made, because he hath no title by the law : but 
 if both acres had been in one shire, he had had good right 
 to both.* And in these cases the diversity of the law 
 maketh the diversity of conscience. 
 
 Also, if a man of his mere motion make a feoffment of 
 a manor, and saith not, to have and to hold, etc., with the 
 appurtenances ; in that case the feoffee hath right to the 
 demesne lands, and to the rents, if there be atturnments, 
 and to the common pertaining to the manor ;f but he hath 
 neither right to the advowsons, appendant, if any be, nor 
 to the villeins regardant. % But if this term, with the ap- 
 purtenances, had been in the deed, the feoffee had right in 
 conscience, as well to the advowsons and villeins, as to the 
 residue of the manor. But if the king, of his mere motion, 
 give a manor with the appurtenances, yet the donee hath 
 neither right in law nor conscience to the advowsons nor 
 villeins. § And the diversity of the law, in these cases, 
 makes the diversity of conscience. 
 
 Also, if a man make a lease for a term of years, yield- 
 ing to him and to his heirs a certain rent, upon condition 
 that if the rent be behind by forty days, etc., that then it 
 
 * And yet if the scite of the manor of Dale is in the county of Essex, 
 and parcel of the same manor extends into the county of Middlesex, and 
 a feoffment is made of the manor of Dale, and livery of seisin is made of 
 the scite of the manor which lies in the county of Es^ex by this livery of 
 seisin, the parcel of the manor which lies in Middlesex shall pa-s. because, 
 says Perkins, it is parcel of the thing, viz: the manor of which the feoff- 
 ment is made. Perk., sec. 22j- 
 
 fi Co. iS. 
 
 J But by the better opinion it seems tiny pass as incidents without the 
 words with the appurtenances. Co. Litt. ui : j 15. C. 33,23; Shep. Touch. 
 186. 
 
 § Wood's Inst. 153.
 
 58 Doctor and Student. 
 
 shall be lawful to the lessor and his heirs to re-enter ;* and 
 after the rent is behind, the lessor asketh the rent accord- 
 ing to the law, and it is not payed, the lessor dieth, his heir 
 entereth ; in this case his entry is lawful both in law and 
 conscience. But if the lessor had died before he had de- 
 manded the rent, and his heir demand the rent, and because 
 it is not payed, he re-entereth ; in that case his re-entry is 
 not lawful neither in law nor conscience. 
 
 Also, if the tenant in dower sow her land, and die before 
 the corn is ripe ;f the corn in conscience belongeth to her 
 executors, and not to him in reversion : but otherwise it is 
 in conscience of grass and fruits. And the diversity of the 
 law maketh there also the diversity in conscience. 
 
 Also, if a man seized of lands in his demesne as of fee 
 bequeath the same by his last will to another, and to his 
 heirs, and dieth ;} in this case the heir, notwithstanding the 
 will, hath a right to the land in conscience. And the reason 
 is, because the law judgeth that will to be void;§ and as 
 it is void in the law, so it is void in conscience. 
 
 *Shep. Touch. 147. 
 
 f 2 Inst. 80, 81. 
 
 % Ante, 23. 
 
 § Before the conquest, it is generally thought lands and tenements were 
 devisable; but at that period, or soon after, probably in the reign of H. 2, 
 the power of disposition ceased by consequence of the feudal tenure, ex- 
 cept of socage lands, which in some cities and boroughs remained devisa- 
 ble, it being of very small consequence into whose power such tenures 
 fell. But though the general rule of law was, that a man could not make 
 a will of his lands, ye- he might dispose of the use and profits to whom he 
 pleased, for there was a clear distinction between the one and the other. 
 Wright's Tenures, 172. A man might have made a feoffment of his prop- 
 erty to another person, properly called the feoffee, to the use of the feoffor 
 and his heirs. By this conveyance the whole legal estate was vested in 
 the feofFee, and the feoffor had nothing, and could dispose of nothing but 
 the mere simple usufructuary interest arising from the confidence and trust 
 reposed in the feoffee. 4 Burn's Ecc. Law, 57; ante, 23. 
 
 Thus the land and the use were distinct, and the feoffor being, as we have 
 seen, hindered from devising the one, he continued to dispose of the other 
 till the twenty-seventh year of the reign of H. 8, when a statute was made, 
 commonly called the statute of uses, which put a stop to the practice of 
 devising uses by joining the possession and the use together in the feoffor. 
 
 Another statute was likewise made in the 34th and 35th of the same
 
 Dialogue I. — Chap. 20. 
 
 59 
 
 Also, if a man grant a rent for term of life, and make a 
 lease of land to the same grantee for term of life, and the 
 tenant alieneth both in fee ; in this ease he in the reversion 
 hath good title to the land both in law and conscience, and 
 not to the rent. And the reason is, because the land by the 
 alienation is forfeited by the law to him in the reversion, 
 and not the rent.* 
 
 Also, if lands be given to two men, and to a woman in 
 fee, and after one of the men enter-marrieth with the woman, 
 and alieneth the land, and dieth ; in this case the woman 
 hath right but only to the third part : but if the man and 
 the woman had been married together before the first feoff- 
 ment, then the woman, notwithstanding the alienation of 
 her husband, should have had right in law and conscience 
 to the one half of the land.f And so in these two cases 
 conscience dotii follow the law of the realm. Also, if a 
 man have two sons, one before espousals, and another after 
 espousals, and after the father dieth seised of certain lands; 
 in this case the younger son shall enjoy the lands in this 
 realm, as heir to his father both in law and conscience. 
 And the cause is, because that son born alter espousals is 
 by the law of this realm the very heir, and the elder son is 
 a bastard. I And of these cases, and many other like in 
 the laws of England, may be formed the syllog/sm of con- 
 science, or the true judgment of conscience, in this man- 
 ner. Sinderesis ministreth the major thus, Right wiseness 
 is to be done to every man : upon which major the law of 
 England ministereth the minor thus, The inheritance be- 
 longeth to the son born after espousals, and not to the son 
 
 kind's reign, which gave a testamentary power over lands suhject onlv to 
 certain conditions and restrictions with regard to the devising of lands 
 holden by knight's service. 
 
 These restrictions were afterward taken away by statute 12 C. 2, c 24, 
 which abolished all tenures by knight's service; and now a man mav dis- 
 pose of his freehold lands at his free-will and pleasure. See stat. 29 Car. 
 2, c. 3. 
 
 * Wood's Con. S4; Roll. Abr. S54. 
 
 t Litt., sec. 291. 
 
 I 2 Inst. 96, 97; 2 B. C. 247.
 
 60 Doctor and Student. 
 
 born before espousals : then conscience maketh the conclu- 
 sion, and saith, Therefore the inheritance is in conscience 
 to be given to the son born after espousals. And so in 
 other cases infinite may be formed by the law, the syllogism 
 or the right judgment of conscience, wherefore they that be 
 learned in the law of the realm say, that in every case 
 where any law is ordained for the disposition of lands and 
 goods, which is not against the law of God, nor yet against, 
 the law of reason, that the law bindeth all them that be un- 
 der the law in the court of conscience, that is to say, in- 
 wardly in his soul. And therefore it is somewhat to mar- 
 vel, that spiritual men have not endeavored themselves in 
 time past to have more knowledge of the king's laws than 
 they have done, or than they yet do : for by the ignorance 
 thereof they be ofttimes ignorant of that that should order 
 them according to right and justice, as well concerning 
 themselves, as other that come to them for counsel. And 
 now, forasmuch as I have answered to thy questions as well 
 as I can ; I pray thee that thou wilt shew me thy opinion 
 in divers cases formed upon the law of England, where'in 
 I am in doubt what is to be holden therein in conscience. 
 
 Doct. Shew me thy questions, and I will say as me 
 thinketh therein. 
 
 Chap. XXI. — The first question of the student. 
 
 Stud. If any infant that is of the age of twenty years, and 
 hath reason and wisdom to govern himself, selleth his land, 
 and with the money thereof buyeth other land of greater value 
 than the first was, and taketh the profits thereof; whether 
 may the infant ask his first land again in conscience, as he 
 may by the law. 
 
 Doct. What thinkest thou in that question? 
 
 Stud. Me seemeth, that, forasmuch as the law of Eng- 
 land* in this article is grounded upon a presumption, that is 
 to say, that infants commonly afore they be of the age of 
 
 *3 New Abr. 128.
 
 Dialogue I. — Chap. 21. 61 
 
 twenty-one years be not able to govern themselves, that 
 yet, forasmuch as that presumption faileth in this infant, 
 that he may not in this case with conscience ask the land 
 again that he hath sold to his great advantage, as before 
 appeareth. 
 
 Doct. Is not this sale of the infant, and the feoffment 
 made thereupon, if any where, voidable in the law? 
 
 Stud. Yes, verily. 
 
 Doct. And if the feoffee have no right by the bargain,* 
 nor by the feoffment made thereupon, whereby should he 
 then have right thereto, as thou thinkest? 
 
 Stud. By conscience, as me thinketh, for the reason that 
 I have made before. 
 
 Doct. And upon what law should that conscience be 
 grounded that thou speakest of? for it cannot be grounded 
 by the law of the realm, as thou hast said thyself. And 
 methinketh, that it cannot be grounded upon the law of 
 God, nor upon the law of reason : for feoffments nor con- 
 tracts be not grounded upon neither of those laws, but upon 
 the law of man. 
 
 Stud. After the law of property was ordained, the people 
 might not conveniently live together without contracts ; and 
 therefore it seemeth that contracts be grounded upon the 
 law of reason, or at least upon the law that is called Jus 
 gentium. 
 
 Doct. Though contracts be grounded upon the law that 
 is called Jus gentium, because they be so necessarv, 
 and so general among all people ; yet that proveth not that 
 contracts b : grounded upon the law of reason :f for though 
 the law called Jus gentium be much necessary for the 
 people, yet it may be changed. And therefore if it were 
 ordained by statute, that there should be no sale of land, ne 
 no contract of goods, and if there were, that it should be 
 void, so that every man should continue still seized of his 
 lands, and possessed of his goods; the statute were good. 
 
 • Litt., sec. 259; 2 Roll. Abr. 2. 
 t Post. 174.
 
 62 Doctor and Student. 
 
 And then if a man against that statute sold his land for a 
 sum of money, yet the seller might lawfully retain his land 
 according to the statute : and then he were bound to no 
 more but to repay the money that he received, with reason- 
 able expences in that behalf. And so in like wise me 
 thinketh that in this case the infant may with good con- 
 science re-enter into his first land ; because the contract 
 after the maxims of the law of the realm is void ; for, as I 
 have heard, the maxims of the law be of as great strength 
 in the law as statutes. And some think that in this case 
 the infant is bound to no more, but only to re-pay the money 
 to him that he sold his land unto, with such reasonable cost 
 and charges as he hath sustained by reason of the same. 
 But if a man sell his land by a sufficient and lawful con- 
 tract, though there lack livery of seisin or such other solem- 
 nities of the law, yet the seller is bound in conscience to 
 perform the contract.* But in this case the contract is suf- 
 ficient, and so me thinketh great diversity betwixt the cases. 
 Stud. For this time I hold me contented with thy 
 opinion. 
 
 Chap. XXII. — The second question of the student. 
 
 If a man that hath lands for term of life be impanelled 
 upon an inquest, and thereupon leeseth issues and dieth ;f 
 whether may those issues be levied upon him in the rever- 
 sion in conscience, as they may be by the law? 
 
 Doct. If they may be levied by the law, what is the 
 cause why thou dost doubt whether they may be levied by 
 conscience? 
 
 Stud. For there is a maxim in the laws of England, J 
 that where two titles run together, the eldest title shall be 
 preferred. And in tins case the title of him in the rever- 
 sion is before the title of the forfeiture of the issues. And 
 
 * See where, and in what cases, a court of equity will supply the want 
 of livery and seisin in Vin. Abr., title Feoffment, 205. 
 t Noy's Max. 30. 
 J Ante, 32; Noy's Max. 15.
 
 Dialogue I. — Chap. 11. 63 
 
 therefore I doubt somewhat whether they may be lawfully 
 levied. 
 
 Doct. By that reason it seemeth thou art in doubt what 
 the law is in this case ; but that must necessarily be 
 known, for else it were in vain to argue what conscience 
 will therein. 
 
 Stud. It is certain that the law is such ; and so it is like 
 wise if the husband forfeit issues, and die, those issues shall 
 be levied on the lands of the wife.* 
 
 Doct. And if the law be such, it seemeth that conscience 
 is so in like wise : for sith it is the law, that for execution 
 of justice every man shall be impanelled when need re- 
 quireth ; it seemeth reasonable, that if he will not appear, 
 that he should have some punishment for his not appear- 
 ance, for else the law should be clearly frustrate in that 
 point. And the pain, as I have heard, is, that he shall 
 lose issues to the king for his not appearance. Wherefore 
 it seemeth not inconvenient, nor against conscience, though 
 the law be, that those issues shall be levied of him in the 
 reversion, for that the condition was secretly understood in 
 the law to pass with the lease, when the lease was made. 
 And therefore it is for the lessor to beware, and to prevent 
 the danger at the making of the lease, or else it shall be 
 adjudged his own default. And then this particular maxim, 
 \\ hereby such issues shall be levied upon him in the rever- 
 sion, is a particular exception in the law of England, from 
 the general maxim that thou hast remembered before, that 
 is to say, that where two titles run together, that the eldest 
 title shall be preferred :f and so in this case the general 
 maxim in the point shall hold no place, neither in law nor 
 in conscience, for by this particular maxim the strength, of 
 the general maxim is restrained to every intent, that is to 
 say, as well in law as in conscience. 
 
 * Noy's Max. 30. 
 t Ante, 3 2.
 
 64 Doctor and Student. 
 
 Chap. XXIII. — The third question of the student. 
 
 Stud. If a tenant for term of life, or for term of years, do 
 waste, whereby they be bound by the laws to yield to him 
 in the reversion treble damages, and so shall forfeit the 
 place wasted :* whether he is also bound in conscience to 
 pay those damages, and to restore that place wasted im- 
 mediately after the waste done, as he is in the single dam- 
 ages, or that he is not bound thereto till the treble damages 
 and place wasted be recovered in the king's court. 
 
 Doct. Before judgment given in the treble damages, and 
 of the place wasted, he is not bound in conscience to pay 
 them, for it is uncertain what he should pay : but it sufficeth 
 that he be ready till judgment be given to yield damages 
 according to the value of the waste ; but after the judgment 
 given, he is bound in conscience to yield the treble damages, 
 and also the place wasted. And the same law is in all 
 statutes penal, that is to say, that no man is bound in con-' 
 science to pav the penalty till it be recovered by the law.f 
 
 Stud. Whether may he that hath offended against such 
 a statute penal, defend the action, and hinder the judgment, 
 to the intent he would not pay the penalty, but only single 
 damages? 
 
 Doct. If the action be taken right wisely according to 
 the statute, and upon a just cause, the defendant may in no 
 wise defend the action, unless he have a true dilatory matter 
 to plead, which should be hurtful to him it he pleaded not, 
 though he be not bound to pay the penalty till it be re- 
 covered. 
 
 Chap. XXIV. — 1 he fourth question of the student. 
 
 Stud. If a man enfeoff other in certain land upon con- 
 dition, that if he enfeoff any other, that it may be lawful for 
 the feoffor and his heirs to re-enter, etc., whether is this 
 condition good in conscience, though it be void in the law? 
 
 *2 Inst. 146. 
 f Post. 71-
 
 Dialogue I. — Chap. 24. 65 
 
 Doct. What is the cause why this condition is void in 
 Law? 
 
 Stud. The cause is this, by the law it is incident to every 
 state of fee-simple, that he that hath the estate may lawfully 
 by the law, and by the gift of the feoffor, make a feoffment 
 thereof:* and then when the feoffor restraineth him after 
 that he shall make no feoffment to no man against his own 
 former grant, and also against the purity of the state of a 
 fee-simple, the law judgeth the condition to be void :f but 
 if the condition had been, that he should not have infeoffed 
 such a man or such a man, that condition had been good, 
 for yet he might infeoff other. % 
 
 Doct. Though the said condition be against the effect of 
 the state of a fee-simple, and also against the law ; never- 
 theless it is not against the intent that the parties agreed 
 upon, and that at the time of the livery. And forasmuch 
 as the intent of the parties was, that if the feoffee infeoffed 
 any man of the land, that the feoffor should enter, and to 
 that intent the feoffee took the state, and after brake the in- 
 tent : it seemeth that the land in conscience should return 
 to the feoffor. 
 
 Stud. The intent of the parties in the laws of England 
 is void in many cases :§ that is to say, if he be not ordered 
 according to the law. And if a man of his mere motion, 
 without any recompence, intending to give lands to another 
 and to his heirs, make a deed unto him, whereby he giveth 
 him those lands, to haye and to hold to him for ever, in- 
 tending that by the wox&s for ever the feoffee should have 
 the land to him and to his heirs ;|| in this case his intent is 
 void, and the other shall have the land only for term of life. 
 Also, if a man give lands to another, and to his heirs for 
 term of twenty years, intending that if the lessee die within 
 
 Shop. Touch. 126; post. 84; 2 B. C. 147. 
 t The law is the same in a devise in fee, upon condition that the devisee 
 shall not alien. Co. Lilt. 223. 
 \ Vin. Abr., title Con. 103. 
 § 2 Vez. -4 s 
 || Litt., sec. 1.
 
 66 Doctor and Student. 
 
 the term, that then his heirs should enjoy the land during 
 the term ;* in this case his intent is void, for by the law of 
 the realm all chattels real and personal shall go to the ex- 
 ecutors, and not to the heir. Also, if a man give lands to 
 a man and to his wife, and to a third person, intending that 
 every of them should take the third part of the land as 
 three common persons should, his intent is void ; for the 
 husband and the wife, as one person in the law, shall take 
 only the one half, and the third person the other half. But 
 these cases be always to be understood where the said es- 
 tates be made without any recompence. And forasmuch 
 as in this principal case the intent of the feoffor is grounded 
 against the law, and that there is no recompence appointed 
 for the feoffment, methinketh that the feoffor hath neither 
 right to the land by law nor conscience : for if he should 
 have it by conscience, that conscience should be grounded 
 upon the law of reason ; and that it cannot, for conditions 
 be not grounded upon the law of reason, but upon the 
 maxims and customs of the realm ; and therefore it might 
 be ordained by statute, that all conditions made upon land 
 should be void. And when a condition is void by the 
 maxims of the law, it is as fully void to every intent, as if 
 it were made void by statute : and so methinketh that in 
 this case the feoffor hath no right to the land in law nor in 
 conscience. 
 
 Doct. I am content thy opinion stand, till we shall have 
 hereafter a better leisure to speak farther in this matter. 
 
 Chap. XXV. — The fifth question of the student. 
 
 Stud. If a fine with proclamation be levied according to 
 the statute, t and no claim made within five years, etc. 4 
 
 ♦Godolph. 120; Off. of Exor. 53; 1 Vent. 161; Bac. El. 43. 
 
 t That is the statute 4 II. 7, c. 24, by which the common law, which gave 
 only a year and a day to strangers, to make their claim, is altered. See 
 likewise the tatute 32 II. S, c 36, and 4 Ann., c 16, s. 16. By the last 
 mentioned act no claim or entry to avoid a fine with proclamation, shall 
 be sufficient, unless an action is commenced within one year after such 
 entry or claim, and prosecuted with effect; and this entry must, it seems, 
 be an actual entry. 3 Burr. 1897; Doug. Rep. 468. 
 
 J Post, no, 142; Bac El. 51.
 
 Dialogue I. — Chap. 25. 67 
 
 whether is the right of a stranger* extincted thereby in con- 
 science, as it is in the law? 
 
 Docl. Upon what consideration was that statute made? 
 
 Stud. That the right of lands and tenements mi^ht be 
 the more certainly known, and not to be so uncertain as 
 they were before that statute. 
 
 Doct. And when any law of man is made for a common- 
 monwealth, or for the good peace and quietness of the peo- 
 ple, or lor any inconvenience or hurt to be saved from them, 
 that law is good ; though percase it extinct the right of a 
 stranger, and must be kept in the court of conscience :t 
 for, as it is said before in chap. 4, by laws right wisely made 
 by man, it appeareth who hath right to the lands and goods : 
 lor whatsoever a man hath by such a law, he hath it right 
 wisely ; and whatsoever he holdeth against such a law. he 
 holdeth unrightwisely. And furthermore it is said there, all 
 the laws made by man, which be not contrary to the law 
 of God, must be observed and kept, and that in conscience, 
 and he that despiseth them despiseth God, and he that re- 
 sisteth them resisteth God. Also it is to be understood, 
 that possessions and the right thereof are subject to the 
 laws, so that they therefore with a cause reasonable may 
 be translated and altered from one man to another by act 
 of the law. And of this consideration that law is grounded, 
 that by a contract made in fairs and markets the* property 
 is altered, except the property be to the king, so that the 
 buyer pay toll, or do such other things as is accustomed 
 there to be done upon such contracts, and that the buyer 
 knoweth not the former property.! And in the law civil 
 
 * For the meaning and extent of the word "stranger," in this place, I 
 must refer the reader to Shepherd's Touchstone of Assurances, to and 11. in 
 which the different acceptations of the word a> applied to lines ar 
 down in regular order. 
 
 t Ante, 10. 
 
 J But there are many other exceptions to which the rule is liable: and as 
 they are rather too numerous to fall conveniently within the compass of a 
 note. L will direct the student to those authorities where he will find them 
 enlarged upon. He may turn to 2 Black. Comm, 450, and 2 ln>t. 713.
 
 68 Doctor and Student. 
 
 there is a like law, that if a man have another man's goods 
 with a title three years, thinking that he hath right to it, he 
 hath the very right unto the thing; and that was made for 
 a law, lo the intent that the property and right of things 
 should not be uncertain, and that variance and strife should 
 not be among the people.* And forasmuch as the said 
 statute was ordained to give a certainty of title in the lands 
 and tenements comprised in the fine, it seemeth that that 
 fine extincteth the title of all other, as well in conscience, 
 as it doth in the law. And sith I have answered to thy 
 question, I pray thee let me know thy mind in one ques- 
 tion concerning tailed lands, and then I will trouble thee 
 no farther at this time. 
 
 Chap. XXVI. — A question made by the doctor ', how cer- 
 tain recoveries that be used in the king's courts to defeat 
 tailed land, may stand with conscience. 
 
 I have heard say, that when a man that is seised of lands 
 in the tail selleth the land, that it is commonly used, that 
 he that buyeth the land, shall, for his surety, and for the 
 avoiding of the tail in that behalf, cause some of his friends 
 to recover the said lands against the said tenant in tail : 
 which recovery, as I have been credibly informed, shall be 
 had in this manner.! The demandants shall suppose in 
 their writ and declaration, that the tenant had no entry but 
 by such a stranger as the buyer shall list to name and ap- 
 point, where indeed the demandants never had possession 
 thereof, nor yet the said stranger.:}: And thereupon the 
 said tenant in tail shall appear in the court, and by assent 
 of the parlies shall vouch to warrant one that he knoweth 
 well hath nothing to yield in value. And the vouchee shall 
 appear, and the demandants shall declare against him ; and 
 thereupon he shall take a day to imparl at the same term, 
 
 Wood's Civil Law, 167. 
 t Wood's Inst. 250; 2 B. C. 358. 
 % Cruise on Rec. II, 12.
 
 Dialogue I. — Chap. 26. 69 
 
 and at that day by assent and covin of the parties lie shall 
 make default; upon which default, because it is a default 
 in despite of the court, the demandants shall have judg- 
 ment to recover against the tenant in tail, and he over in 
 value against the vouchee, and this judgment and recovery 
 in value is taken for a bar of the tail for ever.* How may 
 it therefore be taken, that the law standeth with conscience, 
 that as it seemeth, alloweth and favoureth such feigned re- 
 coveries? 
 
 Stud. If the tenant in tail sell the land for a certain sum 
 of money, as is agreed betwixt them, at such a price as is 
 commonly used of other lands, and for the surety of the 
 sale suffereth such a recovery as is aforesaid ; what is the 
 cause that moveth thee to doubt whether the said contract, 
 or the recovery made thereupon, for the surety of the buver 
 that hath truly paid his money for the same, should stand 
 with conscience? f 
 
 Doct. Two things cause me to doubt therein. ' One is, 
 for that after our Lord had given the land of behest to 
 Abraham and to his seed, that is to say, to his children, in 
 possession alway to continue, he said to Moses, as it ap- 
 peareth, Levit. 25, The Land shall not be sold for ever, 
 for it is mine: and then our Lord assigned a certain man- 
 ner how the land might be redeemed in the year of fn- 
 bilee, if it were sold before. And forasmuch as our Lord 
 would that the land so given to Abraham, and his children, 
 should not be sold for ever, it seemeth that he doth against 
 the ensample of God that alieneth or selleth the land that 
 is given to him and to his children, as lands entailed be 
 given. Another cause is this : It appeareth by the com- 
 mandment of God, that Thou shall not covet the house of 
 thy neighbour ) etc. And if that concupiscence be prohib- 
 ited, more stronger than the unlawful taking and with- 
 holding thereof is prohibited : and forasmuch as tailed land, 
 when the ancestor is dead, is a thing that of right is belong- 
 
 ' PiLC-Ot nil RoC. 12. 
 
 t Wood's. Inst. 250.
 
 7<3 Doctor and Student. 
 
 ing to his heir, for that he is heir according to the gift, 
 how may the land with right or conscience be holden from 
 him ? 
 
 Stud. Notwithstanding the prohibition of Almighty God, 
 whereby the land that was given to Abraham, and to his 
 seed, might not be aliened for ever, yet land within walled 
 towns might lawfully be aliened for ever, except the lands 
 of the Levites, as appeareth in the said 25th chapter of 
 Leviticus. And so it appeareth, that the said prohibition 
 was not general for every place, and that among the Jews. 
 And it appeareth also, that it was given only to Abraham 
 and his children, and so it was not generally to all people. 
 And it appeareth also, that it extended not but only to the 
 land of promission, as it appeareth by the words of the said 
 chapter, where it is said thus, All the region of on?- pos- 
 session shall be sold under the condition of redeeming; 
 whereby appeareth that lands in other countries be not 
 bound to that condition, and as they be not bound to that 
 condition, by the same reason it followeth that they be not 
 bound to the same succession. Therefore that said law, 
 that wills that the land given to Abraham, and to his 
 seed, shall not be sold for ever, bindeth no land out of 
 the land of promission ; and some men will say, that 
 sithen the passion of our Lord was promulgate and known, 
 bindeth not there. And to the second reason, which is 
 grounded upon the commandment of God ; it must needs 
 be granted that it is not lawful to any man unlawfully to 
 covet the house of his neighbour, and that then more 
 stronger he may not unlawfully take it from him. But 
 then it remaineth for thee yet to prove how in this case this 
 tailed land, that is sold by his ancestor, and whereof a re- 
 covery is had recorded in the king's court, may be said the 
 lands of the heir. 
 
 Doct. That may be proved by the law of the realm, that 
 is to say, by the statute of Westm. 2, cap. 1, where it is 
 said thus :* The will of the giver expressly Contained in 
 
 " Wood's Inst. 2:0.
 
 Dialogue I. — Chap. 26. 71 
 
 the deed of his gift shall be from henceforth observed, so 
 that the)' to whom the tenements be so given shall not have 
 power to alien, but that the lands after their death shall re- 
 main to the issue, or return to the donor, if the issue fail.* 
 By the which statute it appearethf evidently, that though 
 they, to whom the tenements were so given, aliened them 
 away, that yet nevertheless they in law and conscience, by 
 reason of the said statute, ought to remain to their heirs, 
 according to the gift ;$ for it is holden commonly bv all doc- 
 tors, that the commandments and rules of the law of man, 
 or of a positive law that is lawfully made, bind all that be 
 subjects to the law according to the mind of the maker, and 
 that in the court of conscience. 
 
 Stud. Dost thou think that if a man offend against a 
 statute penal, that he offendeth in conscience? Admit that 
 he do it not of a wilful disobedience, or that he will not 
 obey the law : for if he do it of disobedience, I think he 
 offendeth. 
 
 Doct. If it be but only a statute that is called Popular, 
 it bindeth not in conscience to the payment of the penalty, 
 till it be recovered by the law, and then it doth bind in con- 
 science : but if a statute be made principallv to remedv the 
 hurt of one party, and for that hurt it giveth a penaltv to 
 the party, in that case the offender of the statute is bound 
 immediately to restore the damages to the value of the hurt, 
 as it is upon the statute of waste ;§ but the penalty above 
 the hurt he is not bound to pay till judgment be given, as 
 it is said before. But statutes, by the which it is assigned 
 who shall haveright or property to these lands and tenements, 
 or to these goods or chattels, if it be not against the law of 
 God nor against the law of reason, bind all them that be 
 subject to the law in law and conscience. And such a 
 statute is the statute of Westminster 2, whereof we have 
 
 - Inst. 333. 
 + Post. 82. 
 J 1 Inst. 335. 
 § Ante, 64.
 
 72 Doctor and Student. 
 
 treated before ; wherefore it must be observed by con- 
 science. 
 
 Stud. But some hold that the statute of Westm. 2 was 
 made of a singularity and presumption of many that were 
 at the said parliament, for exalting and magnifying of their 
 own blood ;* and therefore they say that that statute made 
 by such a presumption bindeth not in conscience. 
 
 Doct. It is very perilous to judge for certain that the 
 said statute was made of such presumption as thou speakest 
 of: for there be many considerations to prove that the said 
 statute was not made of such presumption, but rather of a 
 very good mind of all the parliament, or at the least of the 
 most part thereof, and for the commonwealth of all the 
 realm ; and first in the king,f the which in the said parlia- 
 ment was the head, and most chief and principal part ot 
 the parliament, (as he is in every parliament) cannot be 
 noted to be such intent : for it is not necessary, nor was it 
 not then in use, that lands of the crown should be entailed. 
 And in spiritual men, ne yet in certain burgesses and citi- 
 zens of the said parliament, which at that time had no land, 
 there can be noted no such singularity ; nor yet in the 
 noblemen and gentlemen, nor such other as were of the 
 said parliament, and had lands and tenements. It is not 
 good to judge in certain that they did it of such presump- 
 tion ; but it is good and expedient in this case, as it is in 
 other cases that be in doubt, to hold the surer way, and 
 that is, that it was made of charity, to the intent that he, 
 nor the heirs of him to whom the land was given, should 
 not fall into extreme poverty, and thereby haply run into 
 offence against God 4 And though it were true, as they 
 say, that it was not made of charity, but of presumption 
 and singularity, as they speak of: nevertheless, forasmuch 
 as the statute is not against the law of God,§ nor against 
 
 • Lord Coke in particular is very severe in his animadversions upon this 
 act. Mildmay's Case, 6 Co. Rep. 40, 6, tho' in other places he seems to 
 commend it. Co. Litt. 19, 392. 
 
 t See section the second of this statute. 
 
 t 2 Inst. 334. 
 
 § Post. 79.
 
 Dialogue I. — Chap. 26. 73 
 
 the law of reason, it must be observed by all them that be 
 subjects unto that law. For as John Gerson, in the treatise 
 that he entitled in Latin, Dc vita sj)irituali animce, the 
 fourth lesson, and the third corollary, saith, that God wills 
 that makers of laws judge only of outward things, and reserve 
 secret things to him. And so it appeareth that man may 
 not judge of the inward intent of the deed, but of such 
 things as be apparent and certain : but it is not apparent 
 that there was any such corrupt intent in the makers of the 
 said statute : how may it therefore be said that the law is 
 good or rightwise, that not only suffereth such things 
 against the statute, but also against the commandment of 
 God? 
 
 Stud. To that some answer and say, that when the land 
 is sold, and a recovery is had thereupon in the king's court 
 of record, that it sufliceth to bar the tail in conscience ; for 
 they say, that as the tail was first ordained by the law, so 
 they say that by the law it is adnulled again. 
 
 Doct. Be thou thyself judge, if in that case there be like 
 authority in the making of the tail as there is in the adnull- 
 ing thereof: for it was ordained by authority of parliament,* 
 the which is alway taken for the most high court in this 
 realm before any other, and it is adnulled by a false sup- 
 posal, for that, that they that be named demandants should 
 have right to the land, where in truth they never had right 
 thereto : whereupon followeth a false supposal in the writ, 
 and a false supposal in the declaration, and a voucher to 
 warrant by covin of such a person as hath nothing to yield 
 in value ;f and thereupon bv covin and collusion of the par- 
 ties followeth the default of the vouchee, by the which de- 
 fault the judgment shall be given. And so all the judgment 
 is derived and grounded of the untrue supposal and covin 
 of the parties, whereby the law of the realm, that hath or- 
 dained such a writ of entry to help them that have rights 
 to lands or tenements, is defrauded, the court is deceived. 
 
 *Co. Litt. no; .4 Inst. 36. 
 t Piggot on Rcc 12, 19.
 
 74 Doctor and Student. 
 
 the heir is disherited, and, as it is to doubt, the biryer and 
 the seller, their heirs and assigns, having knowledge of the 
 tail, be bound to restitution. And verily I have heard many 
 times, that after the law of the realm such recoveries should 
 be no bar to the heir in the tail, if the law of the realm 
 might be therein indifferently heard. 
 
 Shtd. I cannot see but that after the law of the realm it 
 is a bar of the tail ; for when the tenant in tail hath vouched 
 to warranty, and the vouchee hath appeared and entered 
 into the warranty, and after hath made default in despite 
 of the court, whereupon judgment is given for the demand- 
 ant against the tenant, and for the tenant that he shall re- 
 cover in value against the vouchee ;* if the heir in the tail 
 should after bring XMsformedon, and recover the lands en- 
 tailed, and after the vouchee purchaseth lands, then should 
 the heir also have execution against him to the value of 
 the lands intailed, as heir to his ancestor that was tenant in 
 the first action, and so he should have his own lands, and 
 also the lands recovered in value. And therefore, because 
 of the presumption that the vouchee may purchase lands 
 after the judgment, some be of opinion that it is in the law 
 a good bar of the tail.f 
 
 Doct. I suppose that in that case thou hast put that the 
 vouchee may bar the heir in tail of his recovery in value, 
 because he hath recovered the first lands. Nevertheless I 
 will take a respite to be advised of that recovery in value. 
 And if thou canst yet shew me any other consideration, 
 why the said recoveries should stand with conscience, I 
 pray thee let me hear thy conceit therein \\ for the multi- 
 tude of the said recoveries is so great, that it were great 
 pity that all should be bound to restitution that have lands 
 by such recoveries, sith there is none (as far as I can hear) 
 disposed them to restore. 
 
 Stud. Some men make another reason to prove that the 
 
 2 B. C. 360. 
 t Wood's Inst. 252. 
 t Post, 80.
 
 Dialogue 1. — Chap. 26. 75 
 
 said recoveries should be sufficient by the law to avoid the 
 statute of Westminster, and if they be sufficient thereto, 
 they be sufficient in conscience. 
 
 Doct. What is their reason therein? 
 
 Stud. In the seventh year of Henry VIII,* cap. 4, 
 ;imong other things it is enacted, that all recoverers, their 
 heirs and assigns, may avow and justify for rents, services 
 and customs by them recovered, as they against whom 
 they recovered might have done. And then they say, that 
 when the parliament gave to such recoverers authority to 
 avow and justify for such rents, customs, and services as 
 they recovered, that the intent of the parliament was, that 
 such recoverers should have right to that for the which they 
 should avow or justify : for else they say that it should be 
 in vain to give them such power, and that the parliament 
 should else be taken in manner as fortifiers of wrongful 
 titles: and so they say that such recoverers, by reason of 
 the said statute, have right by the law. 
 
 Doct. That statute, as it seemeth, was made only to give 
 to the recoverers a form to avow and justify, which they 
 had not before, though they had recovered upon a good 
 title. And the cause why they had no form to avow or jus- 
 tify before the said statute was, forasmuch as the recoverers 
 did not by the pretence of their action affirm the possession 
 of him or them against whom they recovered, nor claimed 
 not by them, but rather disaffirmed and destroyed their 
 estate. And therefore they cannot alledge any continuance 
 of their title by them, as they may that have rents or services, 
 or such other, of the grant of other by deed or by line. And 
 therefore, as it seemeth, the most principal intent ol the 
 statute was, that such recoverers should avow and justify 
 tor rents, services and customs, as they should or might do 
 that had them by line or deed ; not having any respect as 
 it seemeth whether they recovered against tenant in tee- 
 simple or in fee-tail ; nor whether the recoveries were had 
 upon a rightful title. And therefore, as me seemeth, the 
 
 ' I'i^got on Rec. \<j-
 
 76 Doctor and Student. 
 
 said statute neither affirmeth nor disaffirmeth the title of re- 
 coverers, whereby they do avow : for if a man had right 
 before the recovery, the right should remain unto him not- 
 withstanding the said statute ; and so me seemeth that the 
 title of them that have the land entailed by such recoveries 
 is nothing fortified nor affirmed by the said statute, but that 
 they are in the same case as they were before. What 
 thinkest thou therein? 
 
 Stud. This matter is great ; for, as thou sayest, there be 
 so many that have tailed lands by such recoveries, that it 
 were'great pity and heaviness to condemn so many persons, 
 and to judge that they all were bound to restitution. For I 
 think there be but few in this realm that have lands of any 
 notable value, but that they or their ancestors, or some 
 other by whom they claim, have had part thereof by such 
 recoveries : insomuch that lords spiritual and temporal, 
 knights, 'squires, rich men and poor, monasteries, colleges 
 and hospitals have such land, for such recoveries have been 
 used of long time :* who may think therefore, without great 
 heaviness, that so many men should be bound to restitution, 
 and that yet, as thou sayest, no man disposeth him to make 
 restitution? And so I am in a manner perplexed, and wot 
 not what to say in this case, but that yet I trust that igno- 
 rance may excuse many persons in that behalf. 
 
 * The origin of common recoveries is a subject upon which there has 
 been a diversity of opinions. Some imagine that the sera of their com- 
 mencement was in the reign of Edward the Third, and they adduce Octa- 
 vian Lombard's case, 44 Ed. 3, c. 21, in support of their opinion; whilst 
 others affirm that they were not introduced, nor so much as heard of before 
 I Imrv the VIII. 's time. Jenk. Cent. 250, pi. 4. Others again with more shew 
 of reason, and on better authority, suppose that common recoveries origi- 
 nated in Taltarun's case, in the 12th year of Edward the Fourth. Piggot on 
 Rcc. S. At that period, much distinguished for the wisdom of the prince 
 who sat upon the throne, it is probable that mankind, knowing that it 
 would be in vain to get the statute dc donis repealed by any act of the leg- 
 islature, on account of the great power of the barons, Cruise on Rec. 9, nat- 
 urally turned their attention to common recoveries, which being excepted 
 out of that statute, were found effectual to remedy the train of inconveni- 
 ences which it had introduced. The judges have therefore invariably al- 
 fordcd them their countenance, and they are now become the common as- 
 surances of the kingdom.
 
 Dialogue I. — Chap. 16. 
 
 71 
 
 Doct. Ignorance of the deed may excuse, but ignorance 
 of the law excuseth not,* but it be invincible, that is to say, 
 that they have done that in them is to know the truth :f as 
 to counsel with learned men, and to ask them what the law 
 is in that behalf; and if they answer them that they may 
 do this or that lawfully, then they be thereby excused in 
 conscience ; but yet in man's law they be not thereby dis- 
 charged : but they that have taken upon them to have 
 knowledge of the law, be not excused by ignorance of the 
 law ; ne no more are they that have a wilful ignorance, and 
 that would rather be ignorant than to know the truth, and 
 therefore they will not dispose them to ask any counsel in 
 it. And if it be of a thing that is against the law of God. 
 or the law of reason, no man shall be excused of i<mo- 
 ranee ; and so there be but few that be excused by ignorance. 
 
 Stud. What then ? Shall we condemn so many and so 
 notable men ? 
 
 Doct. We shall not condemn them, but we shall give 
 them their peril. 
 
 Stud. Yet I trust their danger is not so great that they 
 should be bound to restitution : for John Gerson saith in his 
 said book called " De imitate ecclesiastica, consideratione 
 secunda," £>iiod communis error facit jus,% that is to saw 
 A common error maketh a right. Of which words, as it 
 seemeth, some trust may be had, that though it were fully 
 admitted the said recoveries were first had upon an unlaw- 
 ful ground, and against the good order of conscience, that 
 yet nevertheless, forasmuch as they have been used of long 
 time, so that they have been taken of clivers men that have 
 been right well learned, in manner as for a law, that the 
 buyers partly be excused, so that they be not bound to res- 
 titution. And moreover, it is certain that the statute of 
 Westminster 2, nor none other statute made by man, can- 
 not be o[ greater value or strength than was the bond oi 
 
 This was likewise a maxim of the Roman law. F. 22, C. 9. 
 t Douglas Rep. 471; post. 24S. 
 X Shep. Touch. 39; Nov's Max. 27; Jenk. Cent. 250.
 
 78 Doctor and Student. 
 
 matrimony that was ordained of God. And though that 
 bond of matrimony was indissolvable, yet nevertheless 
 Moses suffered a bill of refusal of the Jews, which in Latin 
 is called Libellum rcfudii, and so they might thereby for- 
 sake their wives, as it appeareth Deut. 22. And therefore 
 like as a dispensation was suffered against that bond, so it 
 seemeth it may be against this statute. 
 
 Doct. As to that reason that thou hast las? made of a bill 
 of refusal, let all purchasers of land hear what our Lord 
 saith in the Gospel of the Jews, of that bill of refusal ; 
 Matthew 19, where he saith thus, For the hardness of your 
 hearts Moses suffer cd^you to leave your wives: for at the 
 beginning it zvas not so. Of which words doctors hold 
 commonly, that though such a bill of refusal was lawful, 
 so that they that refused their wives thereby should be with- 
 out pain in the law, that yet it was never lawful so that it 
 should be without sin. And so likewise it may be said in 
 this case, that such recoveries be suffered for the hardness 
 of the hearts of Englishmen, which desire land and pos- 
 session with so great greediness, that thev can not be with- 
 drawn from it neither by the law of God,, nor of the realm. 
 And therefore the rich men should not take the possessions 
 of poor men from them by power, without colour of title, 
 that is to say, neither by open disseisin, or by the only sale 
 of the tenant in tail, and so to hold them against the ex- 
 press words of the statute ; such recoveries have been suf- 
 fered. And though for their great multitude they may 
 haply be without pain as to the law of the realm ; vet it is 
 to tear that they be not without offence as against God.* 
 And as to the other reason, that a common error should 
 make a right, those words, as me seemeth, be to be thus 
 understood, that a custom used against the law of man shall 
 hi- taken in some countries for law, if the people he suf- 
 fered so to continue. And vet some men call such a cus- 
 tom an error, because that the continuance of that custom 
 against the law was partly an error in the people, for that 
 
 * Post. 80.
 
 Dialogue I.- -Chap. 26. 
 
 79 
 
 they would not obey the law that was made by their supe- 
 riors to the contrary of that custom. But it is to be under- 
 stood, that the said recoveries, though they have been loner 
 used, may not be taken to have the strength of a custom ; 
 for many, as well learned as unlearned, have always spoken 
 against them and yet do.* And furthermore, as I have 
 heard say, a custom or prescription in this realm against 
 the statutes of the realm prevails not in the law.f 
 
 Stud. Though a custom in this realm prevaileth not 
 against a statute as to the law, yet it seemeth that it may 
 prevail against the statute in conscience : for though igno- 
 rance of a statute excuseth not in the law, J nevertheless it 
 may excuse in conscience; and so it seemeth that it may 
 do of a custom. 
 
 Doct. But if such recoveries cannot be brought into a 
 lawful custom in the law, it seemeth the}' may not be brought 
 into a custom in conscience ; for conscience must alwav be 
 grounded upon the law, and in this case it cannot be 
 grounded upon the law of reason, nor upon the law of God ; 
 and therefore if the law of man serve not, there is no ground 
 whereupon conscience in this case may be grounded. And 
 at the beginning of such recoveries, they were taken to be 
 good, because the law should warrant them to be good, and 
 not by reason of any custom : and so if the reason of the 
 law will not serve in the recoveries, the custom cannot 
 
 * Cro. 347 ; Doug. 102 : Cro. Car. 347. 
 
 fBut a man may lawfully proscribe against a statute in the affirmative. 
 Co. Lit- 115; 2 Buls. 36. And if a statute in the negative is declarative 
 of the ancient law, that is in affirmance of the common law, there, a pre- 
 scription may be'alledged against it. As a man may prescribe to cut his 
 own wood within a forest without the view of the forester, though the statute 
 of 34 Edw. 1 provides that none shall cut any tree, though his own, within 
 the forest, without the view of the forester ; because this act is but in affirmance 
 of the common law. Co. Lit 115. So a man mayprescrjbe to hold a leet 
 oftener than twice a year, and that other daj s than are set foi th in the sta 
 of Magna Charta, cap. 35, because the statute, though in the nega - -till 
 
 a confirmation of the ancient law. Cro. Eliz. 1J5. It therefore follow-. 
 that it is only against a statute which is introductive of a new law that a 
 prescription can 't be made. 
 
 J Ante, 46.
 
 80 Doctor and Student. 
 
 help ; for an evil custom is to be put away. And therefore 
 me seemeth that the recoveries be not without offence 
 against God, though haply for their great multitude, and 
 that there should not be as it were a subversion of the in- 
 heritance of many in this realm, as well of spiritual as 
 temporal, they be without pain in the law of the realm ;* 
 except such recoveries as by the common course of the law 
 be voidable in the lav/ by reason of some use, or of some 
 other special matter : but what pain that is, I will not tern- 
 erously judge, but commit it to the goodness of our Lord, 
 whose judgment be very deep and profound : nor I will not 
 fully affirm that they that have lands by such recoveries 
 ought to be compelled to restitution : but this seemeth to 
 me to be good counsel, that every man hereafter hold that 
 is certain, and leave that is uncertain, and that is, that he 
 keep himself from such recoveries, and then he shall be 
 free from all scrupulousness of conscience in that behalf. 
 
 Stud. It seemeth that in this question thou ponderest 
 greatly the said statute of Westminster 2,f and that though 
 it be but only a law made by man, that yet, forasmuch as 
 it is not against the law of reason nor the law of God, thou 
 thickest that it must be holden in conscience : and over that, 
 as it seemeth, thou art somewhat in doubt whether those 
 recoveries be any bar to the heir in the tail by the law of 
 the realm, unless that he have in value in deed upon the 
 vouchee \\ and that thou wilt thereupon take a respite, or 
 thou shew thy full mind therein : and in likewise thou 
 thinkest, as I take it, that those recoveries cannot be brought 
 into a custom, but that the longer that they be suffered to 
 continue, if they be not good by the law, the greater is the 
 offence against God.§ And therefore thou ponderest little 
 that custom, but yet thou agreest that it is good to spare the 
 multitude of them that be past,|| lest a subversion of the in- 
 
 * Ante, 78; post. 81. 
 t Ante, 72. 
 X Ante, 73. 
 § Ante, 78. 
 || Ante, 74, 80.
 
 Dialogue I. — Chap. 27. 81 
 
 heritance of many of this realm might follow, and great 
 strife and variance also, if they should be adnulled for the 
 time past, except there be an)' other special cause to avoid 
 them by the law, as thou hast touched in the last reason :* 
 but thou thinkest that it were good, that from henceforth 
 such recoveries should be clearly prohibited, and not be 
 suffered to be had in use, as they have been before ; and 
 thou counsellest all men therefore to refrain themselves 
 from such recoveries hereafter. 
 
 Doct. Thou takest well that I have said, and according 
 as I have meant it. 
 
 Stud. Now, I pray thee, sith I have heard thy question 
 of these recoveries, according to thy desire, that thou 
 wouldest answer me to some particular questions concern- 
 ing tailed lands, whereof thou hast at this time given us 
 occasion to speak. 
 
 Doct. Shew me these questions, and I will shew thee 
 my mind therein with good -will. 
 
 Chap. XXVII. — The first question of the student, con- 
 cerning tailed lands. 
 
 Stud. If a disseisor make a gift in tail to John at Stile, 
 and John at Stile for the redeeming of the title of the dis- 
 seisee agreeth with him, that he shall have a certain rent 
 out of the same land to him and to his heirs, and for the 
 surety of the rent it is devised that the disseisee shall re- 
 lease his right in the land, etc., and that such a recovery 
 as we have spoken of before shall be had against the said 
 John at Stile to the use of the payment of the said rent, 
 and of the former tail : whether standeth that recovery 
 well with conscience or not, as thou thinkest? 
 
 Doct. I suppose it doth, for it is made for the strength 
 and surety of the tail, which the disseisee might have 
 clearly defeated ami avoided if he would : and therefore I 
 think, if the said John at Stile had granted to the disseisee 
 
 * Piggot on Rec S.
 
 82 Doctor and Student. 
 
 only by his deed a certain rent tor releasing of his title, 
 that grant should have bound the heirs in the tail for ever. 
 And then if the disseisee for his more surety, will have such 
 a recover}-, as before appeareth, it seemeth that recovery 
 standeth with good conscience. 
 
 Stud. It seemeth that thy opinion is right good in this 
 matter. And also it appeareth that with a reasonable cause 
 some particular recoveries may stand both with law and 
 conscience to bar a tail. 
 
 Chap. XXVIII. — The second question of the student , con- 
 cerning tailed lands. 
 
 If a tenant in tail suffer a recovery against him of his 
 lands entailed, to the intent that the recoverer shall stand 
 seised thereof to the use of a certain woman whom he in- 
 tendeth to take to his wife, for term of life, and after to the 
 use of the first tail, and after he marrieth the same woman : 
 whether standeth that recovery with conscience, though 
 other recoveries upon bargains and sales did not. 
 
 Doct. It seemeth yes ; for though the statute be, that 
 they to whom the tenements be so given should not have 
 power to alien, but that the lands after their death should 
 remain to their issues, or revert to the donors if the issues 
 failed : yet if he to whom the lands were so given take a 
 wife, and dieth seized without heir of his body, and the 
 donor enter, the woman shall recover against him the third 
 part, to hold in the name of her dowry for term of her life, 
 though the tail be determined.* And the same law is of 
 tenant by the courtesy, that is to say, of him that hap- 
 peneth to many on" that is an inheritrix of the land en- 
 tailed, and they have issue ; the wife dieth, and the issue 
 dieth ;f he shall have the lands for term of his life as tenant 
 by the courtesy, notwithstanding the words of the statute, 
 which say, that after the death of the tenant in tail without 
 
 •Litt, sec. 36, 53. 
 t Wood's Inst. 123.
 
 Dialogue I. — Chap. 28. 83 
 
 issue:, the lands shall revert to the donor;* and I think the 
 cause is, because the intent of the statute shall not be taken 
 that it intended to put away such titles as the law should 
 give by reason of the tail ; and so it seemeth that a like in- 
 tent of the statute shall be so taken for jointures, for else 
 the statute might be sometime a letting of matrimony, and 
 it is not like that the statute intended so. And therefore it 
 seemeth, that by the only deed of the tenant in tail a joint- 
 ure may be made by the intent of the statute, though the 
 words of the statute serve not expressly for it ; for many 
 times the intent of the letter shall be taken, and not the 
 bare letter ;f as it appeareth in the same statute, where it is 
 said, that he to whom the lands be given shall have no 
 power to alien ; yet the same statute is construed, that 
 neither he nor the heirs of his bod)' shall have no power to 
 alien : and so methinketh that such an intent shall be taken 
 here for saving of jointures. 
 
 Stud. Truth it is, that sometime the intent of a statute 
 shall be taken farther than the express letter stretcheth ; 
 but yet there may no intent be taken against the expre>> 
 words of the statute, for that should be rather an interpre- 
 tation of the statute, than an exposition : and it cannot be 
 reasonably taken, but that the intent of the makers of the 
 said statute was, that the land should remain continually in 
 the heirs of the tail, as long as the tail endureth ; and there 
 can no jointure be made neither by deed nor by recoverv. 
 but that the tail must thereby be discontinued. And there- 
 fore this case of jointure is not like to the said cases of 
 tenant in dower, or tenant by the courtesy. For the title 
 of dowry and of tenancy by the courtesy groweth most 
 specially by the continuance of the possession in the heirs 
 ot the tail, bul it is not so of jointures: and therefore by 
 the only deed ot' the tenant in the tail, there may no joint- 
 ures be lawfully made against the express words of the 
 statute. And if there he any made by way of recovery, 
 
 Ante 70. 
 t -i Bac. Abr. 645.
 
 84 Doctor and Student. 
 
 then it seemeth that it must be put under the same rule as 
 other recoveries must be of lands entailed. 
 
 Chap. XXIX. — The third question of the student, con- 
 cerning tailed lands. 
 
 If John at Noke, being seised of land in fee, of his mere 
 motion makes a feoffment of certain lands to the intent that 
 the feoffees shall thereof make a gift to the said John at 
 Noke, to have to him and to the heirs of his body, and they 
 make the gift according : and after the said John at Noke 
 falleth into debt, wherefore he is taken and put in prison, 
 and thereupon for payment of his debts he selleth the same 
 land, and for surety of the buyer he suffereth a recovery to 
 be had against him in such a manner as before appeareth : 
 whether standeth that recovery with conscience or not? 
 
 Doct. I would here make a little digression to ask thee 
 another question, or that I make answer to thine ; that is 
 to say, to feel thy mind how the law by the which the body 
 of the debtor shall be taken and cast into prison, there to 
 remain till he have paid the debt, may stand with con- 
 science, specially if he have nothing to pay it with ; for as 
 it seemeth if he will relinquish his goods, which in some 
 laws is called in Latin, Ccdcre bonis, that he shall not be 
 imprisoned ; and that is to be understood most specially, 
 if he be fallen into poverty, and not through his own de- 
 fault.* 
 
 Stud. There is no law in the realm that the defendant 
 may in any case Ccdcre bonis, and, as me seemeth, if there 
 were such a law, it should not be indifferent-; for as to the 
 knowledge of him that the money is owing to, the debtor 
 might Ccdcre bonis, that is to say, relinquish his goods, 
 and yet retain to himself secretly great riches. And there- 
 fore that law in such case seemeth more indifferent and 
 righteous, that committeth such a debtor to the conscience 
 of the plaintiff to whom the money is owing, than the com- 
 
 '[ he editor presumes that a reference is here made, principally to the 
 imperial or civil law. Wood's Civil Law, 4th edition, p. 323-
 
 Dialogue I. — Chap. 29. 
 
 mitting him to the conscience of him that is the debtor; for 
 in the debtor some default may be assigned ; but in him to 
 whom the money is owing may be assigned no default. 
 
 Duel. But if he to whom the debt is owing knoweth that 
 the debtor hath nothing to pay the debt with, and that he is 
 fallen into poverty by some casualty, and not through his 
 own default; doth the law of England hold that he may 
 with good conscience keep the debtor still in prison till he 
 be paid ? 
 
 Stud Nay verily, but it thinketh more reasonable to 
 appoint the liberty and the judgment of conscience in that 
 case to the debtee than to the debtor, lor the cause before 
 rehearsed. And then the debtee, if he knew the truth, is 
 (as thou hast said) bound in conscience to let him goat 
 liberty, though he be not compellable thereto by the law.* 
 And therefore, admitting it for this time, that the law of 
 England in this point is good and just, I pray thee that 
 thou wilt make answer to my question. 
 
 Doct. I will with good-will : and therefore, as me seem- 
 eth, forasmuch as it appeareth that the said gift was made 
 of the mere liberty and free-will of the said John at Noke, 
 and without any recompence, that therefore it cannot be 
 otherwise taken, but that the intent of the said John at 
 Noke. as well at the time of the said feoffment, as at the 
 time that he received again the said gift in the tail, 
 was, that If he happened afterwards to fall into poverty, 
 that he might alien the said land to relieve him with : for 
 how may it be thought that a man will so much ponder the 
 wealth of his heir, that he will forget himself? And so it 
 seemeth, that not only the said recovery standeth with con- 
 science, but also if he had made only a feoffment 01 the 
 land, the feoffment should be in conscience a good bar of 
 the (ail : but it the said feoffment and gift had been made in 
 consideration of any recompense of money, or for any 
 matrimony, or such other, then the feoffment of the said 
 
 See tin- statute iS Geo. 2, c. 13; 13 Geo. j. c. 2S; 1 Geo. 3. c. 17: 3 
 Geo. 3, c. 41, lor the relief of iiiM>;> ors.
 
 86 Doctor and Student. 
 
 John at Noke should not bind his heir, and if he then 
 suffered any recovery thereof, then the recovery should be 
 of like effect as other recoveries whereof we have treated 
 before, and that which I said, it was good to favour rather 
 for their multitude, than for the conscience. And the 
 same law is, that if the son and the heir of the said John 
 at Noke, in case that the said gift was made without re- 
 compence, alien the land for poverty after the death of his 
 father; the recovery bindeth not but as other recoveries do. 
 For it cannot be thought that the intent of the father was, 
 that any of his heirs in tail should for any necessity dis- 
 herit all other heirs in tail that should come after him, but 
 for himself, methinketh, it is reasonable to judge in such 
 manner as I have said before. 
 
 Stud. And though the intent of the said John at Noke, 
 when he made the said feoffment, and when he took again 
 the said gift in tail, were, that if he fell in need, that he 
 might alien : yet I suppose that he may not alien, though 
 percase for the more surety he declared his intent to be 
 such upon the livery of seisin : for that intent was contrary 
 to the gift that he freely took upon him ; and when any in- 
 tent or condition is declared or reserved against the state 
 that any man maketh or excepteth, then such an intent or 
 condition is void by the law, as by a case that hereafter fol- 
 loweth will appear: that is to say, If a man make a feoff- 
 ment in fee, upon condition that the feoffee shall not alien 
 to any man, that condition is void:* for it is incident to 
 every state of the fee-simple, that he that is so seised 
 may alien. And like as in a lee-simple there is inci- 
 dent a power to alien, so in a state-tail, there is a secret 
 intent understood in the gift, that no alienation shall be 
 made. | And therefore though the intent of the said John 
 at Noke were, that if he fell into poverty, that he might 
 sell, and though he at the taking of the gift openly de- 
 clared his intent to be so : yet the intent should be void by 
 
 2 B. C. 157; Co. Litt. 206; ante, 65. 
 fPost. 211.
 
 Dialogue I. — Chap. 30. 87 
 
 the law, as me seemeth ; and if it be void by the law, it is 
 also void in conscience ; and so the said recovery must be 
 taken in this case to be of the same effect, as recoveries of 
 other lands entailed be, and in no other manner. 
 
 Chap. XXX. — The fourth question of the student, con- 
 cerning recoveries of inheritances entailed. 
 
 Stud. It an annuity be granted to a man, to have and to 
 perceive to the grantee, and to the heirs of his body, of the 
 coffers of his grantor, and after the grantee suffereth a re- 
 covery against him in a writ of Entry by the name of a 
 rent in Dale of a like sum as the annuity is of, with vouch- 
 ers and judgment, after the common course, and both par- 
 ties intend that the annuity shall be recovered : whether 
 shall the recovery bind the heir in tail of his annuity? 
 
 Doct. What if it were a rent going out of land, of what 
 effect should the recovery be then? 
 
 Stud. It should be then of like effect as if it were of 
 land.* 
 
 Doct. And so it seemeth to be of this annuity ; for, as 
 me thinketh, a rent and annuity be of one effect; for the 
 one of them shall be paid in ready money, as the other 
 shall. 
 
 Stud. Truth, and yet there be many great diversities be- 
 twixt them in the law. 
 
 Doct. I pray you shew me some of these diversities. 
 
 Stud. Part I shall shew thee, but I wot not whether I 
 can shew thee all. But first thou shalt understand, that one 
 diversity is this : Every rent, be it rent-service, rent-charm-. 
 or rent-seek, is going out of land, but chargeth only the 
 person, that is to say, the grantor, or his heirs that have 
 assets by discent, or the house, if it be granted by a house 
 oi religion to perceive of their coffers. Also of an annuity 
 there lieth no action, but only a writ of Annuity^ against 
 
 *i Lee. 144; Pig, on Rec 97; Sid. 285; Carter, 52. 
 
 t Co. Litt. 144; Finch. 161 ; 3 Cro. 171.
 
 88 Doctor and Student. 
 
 the grantor, his heirs or successors : and that a writ of An- 
 nuity lieth never against the pernor, but only against the 
 grantor or his heirs. But of a rent the same action may 
 lie as doth of land, as the case requireth : and it lieth some- 
 time of rent against the pernor of the rent, that is to say, 
 against him that taketh the rent wrongfully, and sometime 
 against neither, as of a rent-service Assise may lie for the 
 lord against the mesne and the disseisor, or sometime 
 against the mesne only, if he did also the disseisin.* Also 
 an annuity is never taken for assets, because it is no free- 
 hold in the law, ne it shall not be put in execution upon a 
 statute-merchant, statute-staple, ne Elegit, as a rent may. J 
 And because the said writ of Entry lay not in this case of 
 this annuity, % and that it cannot be intended in the law to 
 be the same annuity, though it be of like sum with the an- 
 nuity, ne though the parties assented and meant to have the 
 same annuity recovered by the said writ of Entry ; there- 
 fore the said recovery is void in law and conscience. But if 
 such a recovery be had of rent with the voucher over, then 
 it shall be taken to be of like effect as recoveries of lands 
 be, in such manner as we have treated of before. 
 
 Chap. XXXI. — The fifth question of the student, con- 
 cerning tailed lands. 
 
 If lands be given to a man and to his wife, in the name 
 of her jointure, by the father of the husband, to have and 
 to hold to them, and to the heirs of their two bodies begot- 
 ten, and after they have issue, and the husband dieth, and 
 
 Br. Assize, pi. 330. 
 
 fBr. Assets per Descent, pi. 26; Br. Execution, pi. 144; Co. Litt. 374. 
 
 J The reason is, because an annuity cannot be intailed, not being an in- 
 heritance within the statute dc douis- In the case of the Karl of Stafford 
 and Buckley, 2 Vez. 170, Lord Chief Justice llardwicke held, that an an- 
 nuity in fee granted by the crown out of the 4.} per cent, dut es, payable 
 for imports and exports at Barbadoes, was merely a personal inheritance, 
 and not intailable. By a grant therefore of an annuity to the man and 
 the heirs of his body, he has only a fee conditional at common law, and 
 the true way to bar the heir is by a simple law conveyance, viz: by grant 
 or release.
 
 Dialogue I. — Chap. 31. 89 
 
 the wife alieneth the land, and against the statute of 11 II. 
 7,* suffereth a recovery thereof to be had against her, to 
 the use of the buyer, and after her son and heir apparent, 
 that is heir to the tail, releaseth to the recoverers by fine, 
 and dieth, having a brother alive, and after the mother 
 dieth ; who hath right to the land, the buyer, or the brother 
 of him that releaseth? 
 
 Doct. What is thine opinion therein? I pray thee shew 
 me. 
 
 Stud. Me seemeth that the buyer hath right ; for by the 
 said statute made in the nth year of H. 7,f among other 
 things it is enacted, that if any woman which hath lands 
 of the gift of her husband, or of the gift of any of the an- 
 cestors of her husband, suffer any recovery thereof against 
 her by covin, that then such recovery shall be void, and that 
 it shall be lawful to him that should have the land after the 
 death of the woman to enter, and it to hold as in his first 
 right : provided alwav that that statute shall not extend 
 where he that should have the land after the death of the 
 woman is agreeable to any such alienation or recovery, sO 
 that the agreement be of record. % And forasmuch as the 
 heir in this case agreed to the said recoverv and fine, which 
 is one of the highest records in the law, it seemelh that the 
 buyer hath right against that heir that agreed, and against 
 all that shall be heir of the tail ; and that not only by the 
 said recovery, but also by the said statute, whereby the said 
 recovery, with assent of the heir is affirmed. 
 
 Doct. Though the buyer in this ease have right during 
 the lite of the heir that released, yet nevertheless alter his 
 death his heir, as it seemeth, may lawfully enter: for the 
 agreement whereof the statute speaketh, must, as I sup- 
 pose, either be had before the recovery, or else at the time 
 of the recovery. For if a tide by reason o( the said 
 ute be once devolute to the heir in the tail, then the right, 
 
 * C. 20. 
 
 t Piggot on Rec 77. 
 
 J 3 Rep. 58: Cruise on Pines, 34.
 
 90 Doctor and Student. 
 
 as me seemeth, cannot be extinct, nor put away by the only 
 tine of the heir, no more than if he had died, and the next 
 heir to him had released to the buyer by line, in which case 
 the release could not extinct the right of the title, nor the 
 right of entry that is given by the statute; and so, as me 
 seemeth, his next heir may therefore enter. 
 
 Stud. As I perceive, all thy doubt is in this case, because 
 the assent of the heir was after the recovery ; for if it had 
 been at the time of the recovery, as if the heir had been 
 vouched to warrant in the same recovery, and he had en- 
 tered, and thereupon the judgment had been given, thou 
 agreest well, that the recovery should have avoided the tail 
 for ever. 
 
 Doct. That is true, for it is in express words of the stat- 
 ute ; but when the assent is after the recovery, then me- 
 thinketh it is not so, ne that the right of the first tail, which 
 was revived by the said statute, shall not be extinct by his 
 fine, no more than it shall in other tail. 
 
 Stud. I will be advised upon thy opinion in this matter ; 
 but yet one thing would I move farther upon this statute, 
 and that is this : Some say, that by this statute all other re- 
 coveries that have been had over beside these recoveries of 
 jointures be affirmed ; for they say, thatsith the parliament, 
 at the making of this statute, knew well that many other 
 recoveries were then used and had to defeat tails, that it 
 was like that they would so continue, which nevertheless 
 the parliament did not prohibit for the time to come, as it 
 did the said recoveries of jointures ; that it is therefore to 
 suppose, that they thought that they should stand with law 
 and conscience : but because jointures were made rather 
 for the saving of the inheritance of the husband than to de- 
 stroy the inheritance, they say that the parliament thought 
 and adjudged the alienations and recoveries of such joint- 
 ures to be against the law and conscience, and not the alien- 
 ations of other lands entailed ; for if the}' had, they say 
 that the parliament would have avoided recoveries of tailed 
 lands generally, as well as it did of recoveries of jointures. 
 
 Doct. As to that opinion I will answer thee thus for this
 
 Dialogue I. — Chap. 32. 
 
 time: That though that the makers of the said statute only 
 put away recoveries of jointures, and not other recoveries ; 
 that yet it cannot be taken therefore that their intent was 
 that the other recoveries should stand good and perfect ; for 
 they spake then only of jointures, because there was no 
 complaint made in the parliament at that time but against 
 recoveries had of jointures, and therefore it seemeth that 
 they intended nothing concerning other recoveries, but that 
 they should be of the same effect as they were before, and 
 no otherwise. And that will appear more plainly thus : 
 Though the makers of the said statute intended to put away 
 and annul such recoveries, as should be made of jointures 
 after a certain day limited in the statute, that yet they in- 
 tended not to avoid ne affirm such recoveries of jointures 
 as were passed before that time; and if they intended not 
 to avoid ne affirm the recoveries had of jointures before that 
 time, then how can it be taken that they intended to put 
 away or affirm other recoveries that were passed before that 
 time, and not of jointures, that would not affirm, ne put 
 away recoveries passed of jointures before that time? And 
 so, as it seemeth, they intended to spare the multitude of 
 them that were passed of both, and not to comfort any to 
 take them after that time. 
 
 Stud. I am content thy opinion stand for this time, and 
 I will ask thee another question. 
 
 Chap. XXXII. — The sixth question of the student \ con- 
 cerning tailed lauds. 
 
 If tenant in tail be disseised, and die, and an ancestor 
 collateral to the heir in tail release with a warranty, and 
 ■ I.e. and the warranty descendeth upon the heir in the tail : 
 whether is he thereby barred in conscience, as he is in 
 the law ?* 
 
 Doct. Because your principal intent at this time is to 
 speak of recoveries, and not of warranties, ami also be- 
 
 ♦Post. 261 ; Viner's Al-r.. title Tayle, 105; 2 B. C. 303.
 
 92 Doctor and Student. 
 
 cause it hath been of long time taken for a principal maxim 
 of the law, that it should be a bar to the heirs as well that 
 claim by a fee-simple as by state-tail, and for that also that 
 it was not put away by the said stat. of Westm. 2,* which 
 ordained the tail ; I will not at this time make thee an an- 
 swer therein, but will take a respite to be advised. 
 
 Stud. Then, I pray thee, yet, or we depart, shew me 
 what was the most principal cause that moved thee to move 
 this question of recoveries had of tailed lands. 
 
 Doct. This moved me thereto : I have perceived many 
 times that there be many and divers opinions of these re- 
 coveries, whether they stand with conscience or not, and 
 that it is to doubt that many persons run into.offence of con- 
 science thereby ; and therefore I thought to feel thy mind 
 in them, whether I could perceive that it were clear that 
 they served to break the tail in law and conscience, or that 
 it were clearly against conscience so to break the tail, or 
 that it were a matter in doubt; and if it appeared a matter 
 in doubt, or that it appeared that the matter were used 
 clearly against conscience, then I thought to do somewhat 
 to make the matter appear as it is, to the intent that they 
 that have the rule and charge over the people, as well the 
 spiritual men as temporal men, should the rather endeavour 
 them to see it reformed, for the commonwealth of the peo- 
 ple, as well in body as in soul. For when anything is used 
 to the displeasure of God, it hurteth not only the body, but 
 also the soul : and temporal rulers have not only cure of 
 the bodies, but also of the souls, and shall answer for them 
 if they perish in their default. And because it seemeth \>y 
 the more apparent reason that the tails be not broken, ne 
 fully avoided, by the said recoveries, and that yet neverthe- 
 less the great multitude of them that be passed is right 
 much to be pondered : therefore it were very good to pro- 
 hibit them for time to come, to put away such ambiguities 
 and doubts as arise now by occasion of the said recoveries, 
 and so they be put as snares to deceive the people, and so 
 
 * 2 B. C. 303. See stat. 4 and 5 Ann., c 16.
 
 Dialogue I. — Chap. 32. 93 
 
 will they be as long as they be suffered to continue. And 
 methinketh verily that it were therefore right expedient, 
 that taiied lands should from henceforth either be mad' 
 strong in the law that the tail should not be broken by re- 
 covery, fine with proclamation, collateral warranty, nor 
 otherwise; or else that all tails should be made fee-simple, 
 so that every man that list to sell his land, may sell it by 
 his bare feoffment, and without any scruple or grudge of 
 conscienee : and then there should not be so great expences 
 in the law, nor so great variance among the people, ne yet 
 so great offence of conscience as there is now in many per- 
 sons. 
 
 Stud. Verily methinketh that thy opinion is right good 
 and charitable in this behalf, and that the rulers be bound 
 in conscience to look upon it, to see it reformed and brought 
 into good order. And verily, by that thou hast said therein, 
 thou hast brought me into remembrance, that there be divers 
 like snares concerning spiritual matters suffered among the 
 people, whereby I doubt that many spiritual rulers be in 
 great offence against God. As it is of the point that spirit- 
 ual men have spoke so much of, that priests should not be 
 put to answer before laymen, especially of felonies and 
 murders ;* and of the statute of 45 E. 3, cap. 3, where it is 
 said that a prohibition shall lie where a man is sued in the 
 spiritual court for tithe of wood that is above the age of 
 twenty years, by the name of Sylva cccdua, as it was done 
 before ;f and they have in open sermons, and in divers 
 other open communications and counsels, caused it to be 
 openty notified and known, that they should be all accursed 
 that put priests to answer, or that maintain the said estatute, 
 or any other like to it. And alter, when they have right 
 well perceived that, notwithstanding all that they have done 
 therein, it hath been used in the same points through ail the 
 realm in like manner as it was before, then they have sat 
 
 •This point is fully treated upon in 2 II. I'. C. 323, 324, and Hawkins P. 
 C 337, where the reader will findby what means the benefit of clergy was 
 introduced, how it stood at common law, and how it stands at this day. 
 
 i 5 tnsl. 64J, 643; 12 Mod. 5^4; Cro. Eliz. 1.
 
 94 
 
 Doctor anmj Student. 
 
 still and let the matter pass ; and so when they have brought 
 many persons in great danger, but most specially them that 
 have given credence to their saying, and yet by reason of 
 the old custom have done as they did before, then there 
 they left them. But verily it is to fear, that there is to 
 themselves right great offence thereby, that is to say, to see 
 so many in so great danger as they say the}' be, and to do 
 no more to bring them out of it, than they have done for it. 
 If it be true, as they say? they ought to stick to it with ef- 
 fect in all charity, till it were reformed : and if be not as 
 they say, then they have caused many to offend that have 
 given credence to them, and yet contrary to their own con- 
 science do as they did before, and that percase should not 
 have offended if such sayings had not been. And so it 
 seemeth that they have in these matters done either too 
 much or too little. 
 
 And I beseech Almighty God, that some good man may 
 so call upon all these matters that we have now communed 
 of, so that they that be in authority may somewhat ponder 
 them, and to order them in such manner, that offence of 
 conscience grow not so lightly thereby hereafter as it hath 
 done in times past. And verily He that on the cross knew 
 the price of man's soul, will hereafter ask a right strait 
 accompt of rulers for every soul that is under them, and 
 that shall perish through their default. 
 
 Thus I have shewn unto thee, in this little dialogue, how 
 the law of England is grounded upon the law of reason * 
 the law of God, the general customs of the realm, and upon 
 certain principles that be called maxims, upon the particu- 
 lar customs used in divers cities and countries, and upon 
 statutes which have been made in divers parliaments bv 
 our sovereign lord the king, and his progenitors, and by 
 the lords spiritual and temporal, and all the commons of 
 the realm. f And I have also shewed thee in the 91I1 
 chapter of .this book, under what manner the said general 
 
 Ante, 5, 7, 12, 15, 17, 25,34. 
 t Ante, 35.
 
 Dialogue I. — Chap. 32. gc; 
 
 customs and maxims of the law may be proved and affirmed, 
 if they were denied :* and divers other things be contained 
 in this present dialogue, which will appear in the table that 
 is in the latter end in the book, as to the readers will appear. 
 And in the end of the said dialogue I have at thy desire- 
 shewed thee my conceit concerning recoveries of tailed 
 lands, and thou hast upon the said recoveries shewn me 
 thine opinion. And I beseech our Lord set them shortly 
 in a good clear way : for surely it will be right expedient 
 for the well-ordering of conscience in many persons, that 
 they be so. And thus the God of peace and love be alway 
 with us. Amen. 
 
 [Here endeth the first dialogue in English, with new additions, betwixt 
 a doctor of divinity and a student in the laws of England. And hereafter 
 followeth the second.] 
 
 * Ante, 32.
 
 DIALOGUE II. 
 
 THE PROLOGUE. 
 
 In the beginning of this dialogue the doctor answereth 
 to certain questions, which the student made to the doctor 
 before the making of his dialogue concerning the laws of 
 England and conscience, as appeareth in a dialogue made 
 between them in Latin the twenty-fourth chapter. And he 
 answereth also divers other questions, that the student 
 maketh to him in his dialogue, of the law of England and 
 conscience. And in divers other chapters of this present 
 dialogue is touched shortly, how the laws of England are 
 to be observed and kept in this realm, as to temporal things 
 as well in law as in conscience, before any other laws. And 
 in some of the chapters thereof is also touched, that spiritual 
 judges in divers cases be bound to give their judgments 
 according to the king's law. And in the latter end of the 
 book the doctor moveth divers cases concerning the laws 
 of England, wherein he doubteth how they may stand with 
 conscience ; whereupon the student maketh answer in such 
 
 manner as to the reader will appear. 
 
 7 (97)
 
 THE INTRODUCTION. 
 
 Stud. In the latter end of our first dialogue in Latin, I 
 put divers cases grounded upon the laws of England, 
 wherein I doubted, and yet do, what is to be holden therein 
 in conscience. But forasmuch as the time was then far 
 past, I shewed thee that I would not desire thee to make 
 answer to them forthwith at that time, but at some better 
 leisure ; whereunto thou saidst thou wouldst not only shew 
 thine opinion in these cases, but also in such other cases as 
 I would put. Wherefore pray thee now (forasmuch as me- 
 thinketh thou hast good leisure) that thou wilt shew me 
 thine opinion therein. 
 
 Doct. I will with good-will accomplish thy desire ; but I 
 would that when I am in doubt what the law of this realm 
 is in such cases as thou shalt put, that thou wilt shew me 
 what the law is therein ; for though I have by occasion of 
 our first dialogue in Latin learned man}'' things of the laws 
 of this realm which I knew not before, yet nevertheless, 
 there be many more things that I am yet ignorant in, and 
 that peradventure in these self cases that thou hast put, and 
 intendest hereafter to put : and, as I said in the first dia- 
 logue in Latin the twentieth chapter, to search conscience 
 (98)
 
 Dialogue II. 99 
 
 upon any case of the law it is in vain, but where the law in 
 the same case is perfectly known. 
 
 Stud. I will with good-will do as thou sayest, and I in- 
 tend to put clivers of the same questions that be in the last 
 chapter of the said dialogue in Latin, and sometime I in- 
 tend to alter some of them, and add some new questions to 
 them as I shall be most in doubt of. 
 
 Doct. I pray thee do as thou sayest, and I shall with 
 good-will either make answer to them forthwith as well as 
 I can, or shall take longer respite to be advised, or else 
 peradventure agree to thine opinion therein, as I shall see 
 cause. But first, I would gladly know the cause why thou 
 hast begun this dialogue in the English tongue, and not in 
 the Latin tongue, as the first cases that thou desiredst to 
 know mine opinion in, be; or in French, as the substance 
 of the law. 
 
 Stud. The cause is this. It is right necessary to all men 
 in this realm, both spiritual and temporal, for the good or- 
 dering of their conscience, to know many things of the law 
 of England that they be ignorant in. And though it had 
 been more pleasant to them that be learned in the Latin 
 tongue to have had it in Latin rather than in English : yet 
 nevertheless, forasmuch as many can read English that 
 understand no Latin., and some that cannot read English, 
 by hearing it read, may learn clivers things by it, that they 
 should not have learned if it were in Latin ; therefore, for 
 the profit of the multitude, it is put into the English tongue 
 rather than into the Latin or French tongue. For if it had 
 been in French, few should have understood it but they that 
 be learned in the law, ami they have least need ol it; for- 
 asmuch as they know the law in the same cases without it, 
 and can better declare what conscience will thereupon than
 
 ioo Introduction. 
 
 they that know not the law nothing at all. To them there- 
 fore that be not learned in the law of the realm this treatise 
 is specially made : for thou knowest well by such studies 
 thou hast taken to some knowledge of the law of the realm, 
 that is to them most expedient. 
 
 Doct. It is true that thou sayest, and therefore I pray thee 
 now proceed to thy questions.
 
 DIALOGUE II. 
 
 Chap. I. — The first question of the student. 
 
 Stud. If tenant in tail alter possibility of issue extinct do 
 waste, whether doth he thereby offend in conscience,* 
 though he be not punishable of waste by the law? 
 
 Doct. Is the law clear, that he is not punishable for the 
 waste ?f 
 
 Stud. Yes, verily. 
 
 Doct. And what is the law of tenants for term of life, or 
 for term of years, if they do waste? 
 
 Stud. They be punishable of waste by the statutes, and 
 shall yield treble damages ;{ but at the Common law before 
 the statute they were not punishable. 
 
 Doct. But whether thinkest thou that before the statute 
 they might have done waste with conscience, because they 
 were not punishable by the law ? 
 
 Stud. I think not, lor, as I take it, the doing of waste of 
 such particular tenant for term of life, lor term of years, or 
 of tenants in dower, or by the courtesy, is prohibited by 
 the law of reason ; for it seemeth of reason, that when such 
 leases be made, or that such titles in dower, or by the cour- 
 tesy be given hx the law, that there is only given unto them 
 
 s Injunctions have been frequently granted by the court of chancery, 
 against tenant in tail, after possibility of issue extinct, for committing 
 w ilful and malicious waste. 2 Frem. Rep. 278 ; 1 Cases in Equity abridged, 
 400. 
 
 t Shep. Touch. 145; Co. Litt. 2~. 
 
 J Post. 106.
 
 ioi Doctor and Student. 
 
 the annual profits of the land, and not the houses and trees, 
 and the gravel to dig and carry away, whereby the whole 
 profit of them in the reversion should be taken away for 
 ever. And therefore at the Common law, for waste done 
 by tenant in dower, or tenant by the courtesy, there was 
 punishment ordained by the law by a prohibition of waste,* 
 whereby they should have yielded damages to the value of 
 the waste. But against tenant for term of life, or for term 
 of years, lay no such prohibition,! for there was no maxim 
 in the law therein against them, as there was against the 
 other. And I think the cause was, forasmuch as it was 
 judged a folly in the lessor that made such a lease for term 
 of life, or for term of years, that at the time of the lease he 
 did not pro: libit them, they should not do waste ; and sith he 
 did not provide remedy to himself, the law would none 
 provide. But yet I think not that the intent of the law was, 
 that they might lawfully and with good conscience do waste ; 
 but against tenants in dower, and by the courtesy, the law 
 provided remedy, for they had their title by the law. 
 
 Doct. And verily methinketh that this tenant in tail, as 
 lo the doing of waste, should be like to a tenant for term 
 of life \% for he shall have the land no longer than for term 
 of his life, no more than a tenant for term of life shall, 
 and the waste of this tenant is as great hurt to him in the 
 reversion, or the remainder, as is the waste of a tenant for 
 term of life ; and if he alien, the donor shall enter for the 
 forfeiture, as he shall upon the alienation of a tenant for 
 term of life ; and if he make default in a Praicipc quod 
 rcddat, the donor shall be received as he shall be upon the 
 default of a tenant for term of life ; and therefore me- 
 thinketh he shall also be punishable of waste, as tenant for 
 term of life shall. 
 
 Stud. If he alien, the donor shall enter, as thou sayest, 
 because the alienation is to his disheritance, § and therefore 
 
 Post. 114. 
 tPost 106. 
 I Wood's [nst. 122. 
 § Co. Litt. 28.
 
 Dialogue II. — Chap. i. 103 
 
 it is a forfeiture of his estate : and that is by an ancient 
 maxim of the law, that giveth that forfeiture in the self 
 case : and if he make default in a Precipe quod rcddat, 
 he in the reversion, as thou sayest 3 shall be received, but 
 that is bv the statute of Westminster 2,* for at the Common 
 law there was no such resceit. And as for the statute thai 
 giveth the action of waste against a tenant for term of life, 
 and for term of } - ears, it is a statute penal, and shall not be: 
 taken by equity :f and so there is no remedy given against 
 him, neither by Common law nor by statute, as there is 
 against tenant for term of life, and therefore he is unpunish- 
 able of waste by the law. 
 
 Doct And though he be unpunishable of waste by the 
 law, yet nevertheless methinketh he may not by conscience 
 do that that shall be hurtful to the inheritance after histime, 
 sith he hath the land but for term of his life, no more than 
 a tenant for term of life may, for then he should do as he 
 would not be done unto.J For thou agreest thyself, that 
 though a tenant for term of life was not punishable of waste 
 before the statute, that yet the law judged not that he might 
 rightfully and with good conscience do waste. § And 
 therefore at this day, if a feoffment be made to the use of 
 man for term of life, though there lie no action against him 
 for waste, yet he offendeth in conscience it he do waste, as 
 tenant for term of life did afore the statute when no remedy 
 lay against him by the law. 
 
 Stud. That is true ; but there is great diversity between 
 this tenant and a tenant for term of life : for this tenant 
 hath good authority by the donor to do waste, and so hath 
 not the tenant for term of life, as it is said before; for the 
 
 2 Inst. 345. 
 
 fThis assertion ot the student is too general, as the statute referred to. 
 viz., the stat. of Marlebridge, is a remedial law. as well as a penal one. and 
 has had an equitable construction. For instance, although the words in 
 the net are "shall do waste," which literally import an active waste, yet 
 they have been held la extend to waste omittendo. Hammond :•• Webb, 
 10 Mod. 2S2 
 
 : a B. C 125; Co. Litt. 27. :S. 
 
 § Post. 106; ante, 101 •
 
 104. Doctor and Student. 
 
 estate of a tenant in tail after possibility of issue extinct is 
 in this manner;* when lands be given to a man and to his 
 wife, and to the heirs of their two bodies begotten, and 
 after the one of them dieth without heirs of their bodies 
 begotten, then he or she that overliveth is called tenant in 
 tail after possibility of issue extinct, because there can never 
 by no possibility be any heir that may inherit by force of 
 the gift. And thus it appeareth that the donees at the time 
 of the gift received of the donor an estate of inheritance, 
 which by possibility might have continued for ever, whereby 
 they had power to cut down trees, and to do all tilings 
 that is waste, as tenant in fee-simple might. f And that 
 authority was as strong in the law, as if the lessor that 
 maketh a lease for term of life say by express words in 
 the lease, that the lessee shall not be punishable of waste. 
 And therefore if the donor in this case had granted to the 
 donees that they should not be punishable of waste, that 
 grant had been void, because it was included in the gift be- 
 fore, as it should be upon a gift in fee-simple. i And so 
 forasmuch as by the first gift, and by the livery of seisin 
 made upon the same, the donees had authority by the donor 
 to do waste ; therefore though that one of those donees be 
 now dead without issue, so that it is certain that after the 
 death of the other the land shall revert to the donor ; yet 
 the authority that they had by the donor to do waste con- 
 tinueth as long as the gift, and the livery of seisin made 
 upon the same continueth. And I take this to be the reason 
 why he shall not have in aid, as tenant for term of life shall, 
 that is to say, for that he cannot ask help of that maxim, 
 whereby it is ordained that a tenant for term of life shall 
 have in aid : for he cannot say but that he took a greater 
 estate by the livery of seisin that was made to him, which 
 yet continueth, than for term of life : and so I think him 
 not bound to make any restitution to him in the reversion 
 in this case for the waste. 
 
 Wood's Inst. 122; Litt., sec 32. 
 t 1 Roll. Rep- 179; 4 Rep. 63. 
 J 2 New Abr. 269.
 
 Dialogue II. — Chap. 2. 105 
 
 Doct. Is thy mind only to prove that this tenant is not 
 bound to make restitution to him in the reversion for the 
 waste? Or that thou thinkest that he may with clear con- 
 science do all manner of waste? 
 
 Stud. I intend to prove no more but that he is not bound 
 to make restitution to him in the reversion. 
 
 Doct. Then I will right well agree to thine opinion, for 
 the reason that thou hast made ; but if thy mind had been 
 to have proved that he might with clear conscience have 
 done all manner of waste, I would have thought the con- 
 trary thereto, and that the tenant in fee-simple may not do 
 all manner of waste and destruction with conscience, as to 
 pull down houses, and make pastures of cities and towns, 
 or to do such other acts which be against the common- 
 wealth. And therefore some will say, that tenant in fee- 
 simple may not with conscience destroy his woods and coal- 
 pits, whereby a whole country for their mone}- have had 
 fuel ; and yet though he do so, he is not bound by con- 
 science to make restitution to no person in certain. But 
 now I pray thee, ere thou proceed to the second case, that 
 thou wilt somewhat shew me what thou meanest, when thou 
 sayest, at the Common law it was thus or thus. I under- 
 stand not fully what thou meanest by that term, at the 
 Common law. 
 
 Stud. I shall with good-will shew thee what I mean 
 thereby. 
 
 Chap. II. — What is meant by this term, when it is said 
 " thus it was at the Common law" 
 
 The Common law is taken three manner of ways. First. 
 it is taken as the law of this realm of England, dissevered 
 from all other laws. And under this manner taken it i> 
 oftentimes argued in the laws of England, what matters 
 ought of right to be determined by the Common law, and 
 what by the admiral's court, or by the spiritual court :* and 
 
 * See Comvn's Digest, and Bac Abr., title Prohibition.
 
 ic6 Doctor and Student. ' 
 
 also if an obligation bear date out of the realm, as in Spain, 
 France, or such other, it is said in the law, and truth it is, 
 that they be not pleadable at the Common law. * Secondly, 
 the Common law is taken as the king's courts, of his 
 Bench, or of the Common Place: and it is so taken when 
 a plea is removed out of ancient demesne, for that the land 
 is frank-fee, and pleadable at the Common law, that is to 
 say, in the king's court, and not in ancient demesne. f And 
 under this manner taken, it is oftentimes pleaded also in 
 base courts, as in Courts-Barons, the County, and the court 
 of Piepowders, and such other, this matter or that, etc., 
 ought not to be determined in that court, but at the Com- 
 mon law, that is to say, in the king's courts, etc. Thirdly, 
 by the Common law is understood such things as were law 
 before statute made in that point that is in question ; so thai 
 that point was holden for law by the general or particular 
 customs and maxims of the realm, or by the law of reason, 
 and the law of God, no other law added to them by statute, 
 nor otherwise, as :s the case before rehearsed in the first 
 chapter, where it is said, that at the Common law, tenant 
 by the courtesy and tenant in dower were punishable of 
 waste,'| thai is to say, that, before any statute of waste made, 
 they were punishable of waste by the grounds and maxims 
 of the law used before the statute made in that point. § But 
 tenant for term of life, ne for term of years, were not pun- 
 ishable by the said grounds and maxims, till by the statute 
 remedy was given against them ; and therefore it is said, 
 
 • But if a bond bears date out of the realm, and is laid in the declaration 
 fro forma, to have been made at Madrid in Spain, or Bourdeaux in France, 
 viz., in London in parochia, etc, it is sufficient, and suable in the king's 
 courts. Str. 614, and vide the case of Mostyn v. Fabrigas, in Cow. Rep. 
 161, in which the whole learning upon this point seems to be summed up 
 together. 
 
 t F. N. B. 13; 4 Inst. 270. 
 
 % 2 Inst. 299; ante, 103 ; post. 114. See the stat. Marl. 5 II. 3, c. 23, and 
 the stat. of Gloucester, 6 Kdw. 1, c 5. 
 
 § It was a doubt whether tenant by the courtesy was punishable for waste 
 at the Common law. Reg. 72; Bro. Abr., title Waste, pi. 88; 2 Inst. 301.
 
 Dialogue II. — Chap. 3. 107 
 
 that at the Common law they were not punishable of 
 waste. 
 
 Doct. I pray thee now proceed unto the second ques- 
 tion. 
 
 Chap. III. — The second question of the student. 
 
 Stud. If a man be outlawed, and never had knowledge 
 of the suit, whether may the king take all his goods and 
 retain them in conscience, as he mav bv the law? 
 
 Doct. What is the reason why they be forfeited by the 
 law in that case? 
 
 Stud. The very reason is, for that it is an old custom, 
 and an old maxim in the law, that he that is outlawed shall 
 forfeit his goods to the king :* and the cause why that 
 maxim began was this, When a man had clone a trespass 
 to another, or another offence wherefore process of out- 
 lawry lay,f and he that the offence was done to had taken 
 an action against him according to the law, if he had ab- 
 sented himself, and had no lands, there had been no remedy 
 against him : for, after the law of England no man shall 
 be condemned without answer, or that he appear and will 
 not answer, except it be by reason of any statute. There- 
 fore, for the punishment of such offenders as will not ap- 
 pear to make answer, and to be justified in the king's courts, 
 hath been used, without time of mind, that an attachment 
 in that case should be directed against him returnable in the 
 Kings Bench or the Common Place: and if it were re- 
 turned thereupon that he had nought whereby he might 
 be attached, that then should go forth a capias to take his 
 person, and after an alias capias, and then a pluries ;% and 
 if it were returned upon every of the said capias, that he 
 
 The student may here be supposed to speak of an outlawry in a perv 
 sonal action ; and though he only mentions a forfeiture ol - the 
 
 consequence of the offence, yet the outlawed person likewi ts the 
 
 profits of his land, while the outlawry continues in I Show. l'a. 
 
 Ca. 73; 2 Roll. Abr. So6, S07. 
 
 t See where and in what eases process of outlawry lay at common law, 
 ami where it lies at this day, in 3 Bae. Abr., title Outlawry. 
 
 J 3 B. C. 2S3.
 
 108 Doctor and Student. 
 
 could not be found, and he appeared not, then should an 
 exigent be directed against him, which should have so long 
 a day of return, that five counties* might be holden before 
 the return thereof, and in every of the said five counties the 
 defendant to be solemnly called, and if he appeareth not, 
 then, for his contumacy and disobedience of the law, the 
 coroners to give judgment that he shall be outlawed, 
 whereby he shall forfeit his goods to the king, and leese 
 divers other advantages in the law, that needeth not here 
 to be remembered now. And so because he was in this 
 case called according to the law, and appeared not, it seem- 
 eth that the king hath good title to the goods both in law 
 and conscience. 
 
 Doct. If he had knowledge of the suit in very deed, it 
 seemeth the king hath good title in conscience, as thou 
 sayeth. But if he had no knowledge thereof, it seemeth 
 not so ; for the c'efault that is adjudged in him (as appear- 
 eth by thine own reason) is his contumacy and disobedience 
 of the law, and if he were ignorant of the suit, then there 
 can be assigned to him no disobedience, for a disobedi- 
 ence implieth a knowledge of that he should have obeyed 
 unto. 
 
 Stud. It seemeth in this ca^e that he should be compelled 
 to take knowledge of this suit at his peril : for sith he hath 
 attempted to offend the law, it seemeth reason that he shall 
 be compelled to take heed what the law will do against him 
 for it ; and no: only that, but that he should rather offer 
 amends for his trespass, than lo tarry till he were sued for 
 it. And so it seemeth the ignorance of the suit is of his 
 own default, specially sith in the law is set such order that 
 every man may know, if he will, what suit is taken against 
 him, and may see the records thereof when he will: and 
 so it seemeth that neither the party nor the law be not 
 bounden to give him no knowledge therein. And over this 
 I would somewhat move farther in this matter thus : that 
 though that action were untrue, and the defendant not 
 
 That is, five county courts. 2 Black. Com. 285.
 
 Dialogue II. — Chap. 3. 109 
 
 guilty, that yet the goods be forfeited to the king, for his 
 not appearance, in law, and also in conscience, and that 
 for this cause : the king, as sovereign and head of the law, 
 is bounden of justice to grant such writs, and such pro- 
 cesses, as be appointed in the law to every person that will 
 complain, be his surmise true or false; and thereupon the 
 king (of justice) oweth as well to make process to bring 
 the defendant to answer when he is not guilty, as when he 
 is guilty : and then when there is a maxim in the law, that 
 if a man be outlawed, in such manner as before appeareth, 
 that he shall forfeit all his goods to the king,* and maketh 
 no exception whether the action be true or untrue, it seem- 
 eth that the said maxim more regardeth the general minis- 
 tration of justice, than the particular right of the party, and 
 therefore the property by the outlawry, and by the said 
 maxim ordained for ministration of justice is altered, and is 
 given to the king, as before appeareth, and that both in law 
 and in conscience, as well as if the action were true. And 
 then the party that is so outlawed is driven to sue for his 
 remedy against him that hath so caused him to be outlawed 
 upon an untrue action. 
 
 Doct. If he hath not sufficient to make him recompence, 
 or die before recovery can be had, what remedy is had 
 then ? 
 
 Stud. I think no remedy : and for a farther declaration 
 in this case, and in such other like cases, where the prop- 
 erty of goods may be altered without consent of the owner, 
 it is to consider, that the property of goods is not given to 
 the owners directly by the law of reason, nor by the law 
 of God, but by the law of man, and is suffered by the law 
 of reason, and by the law of God so to be. For at the be- 
 ginning all goods were in common, but after they were 
 brought by the law of man into a certain property, so that 
 every man might know his own :f and then when such 
 property is given by the law of man, the same law may 
 
 * Ante, 107. 
 t2B. C 2,3.
 
 1 1 o Doctor and Student. 
 
 assign such conditions upon the property as it listeth, so 
 they be not against the law of God, ne the law of reason, 
 and may lawfully take away that it giveth, and appoint 
 how long the property shall continue. And one condition 
 that goeth with every property in this realm, is, If he that 
 hath the property be outlawed according to such process as 
 is ordained by the law, that lie shall forfeit the property 
 unto the king.* And divers other cases there be also, 
 whereby property in goods shall be altered in the law, and 
 the right in lands also, without assent of the owner, whereof 
 I shall shortly touch some without saying any authority 
 therein, for the more shortness. f First, By a sale in open 
 market the property is altered. Also goods stolen and 
 seised for the king, or waived, be forfeit, unless appeal or 
 indictment be sued.J Also strays, if they be proclaimed, 
 and be not after claimed by the owner within the year, be 
 forfeit ; and also a dcodand^ is forfeit (to whomsoever the 
 property was before, except it belonged to the king) and 
 shall be disposed for the soul of him that was slain there- 
 with ; and a fine with a nonclaim at the Common law was 
 a bar, if claim were not made within a year, as it is now by 
 statute if the claim be not made within five years. And all 
 these forfeitures were ordained by the law upon certain 
 considerations, which I omit at this time : but certain it is 
 that none of them were made upon a better consideration 
 than this forfeiture of utlagary was. For if no especial 
 punishment should have been ordained for offenders that 
 would absent themselves, and not appear when they were 
 sued in the king's courts, many suits in the king's courts 
 
 * Ante, 107. 
 
 t Post. 143. 
 
 % Finch- Law, 212; 1 B. C. 297; Wood's Inst. 212; ante, 65. 
 
 § Dcodand signifies accidental death, which happens without the inter- 
 vention of human means, and induces a forfeiture which was formerly 
 paid into the hands of the king's almoner, to be applied to pious uses fir 
 the soul of the deceased. But good sense having prevailed over ignoranc ■ 
 and superstition, it is not now applied to superstitious uses, but remains 
 part of the revenue of the crown, unless where lords of franchises are in- 
 titled to it bv grant. Foster's Crown Law, 266.
 
 Dialogue II. — Chap. 4. 11 1 
 
 should have been of small effect. And sith this maxim 
 was ordained for the execution of justice, and as much 
 done therein by the common law as policy of man could 
 reasonably devise, to make the party have knowledge of 
 the suit, and now is added thereto by the statute made the 
 sixth year of H. VIII,* that a writ of proclamation shall 
 be sued if the party be dwelling in another shire : it seem- 
 eth that such title, as is given to the king thereby, is good 
 in conscience, especially seeing that the king is bound to 
 make process upon the surmise of the plaintiff, and may 
 not examine, but by plea of the party, whether the surmise 
 be true or not. But if the party be returned five times 
 called, where indeed he was never called (as in the second 
 case of the last chapter of the said dialogue in Latin is con- 
 tained), then it seemeth the party shall have good remedy 
 by petition to the king, specially if he that made the return 
 be not sufficient to make recompence, or die before re- 
 covery can be had. 
 
 Doct. Now sith I have heard thine opinion in this case, 
 whereby it appeareth that many things must be seen, or a 
 full and plain declaration can be made in this behalf, and 
 seeing also that the plain answer to this case shall give a 
 great light to divers other cases that may come by such 
 forfeiture : I pray thee give me a farther respite ere that I 
 shew thee my full opinion therein, and hereafter I shall 
 right gladly do it. And therefore I pray thee, proceed 
 now to some other case. 
 
 Chap. IV. — 'The third question of the student. 
 
 Stud. If a stranger do waste in lands that another hold- 
 eth for term of life, without assent of the tenant for term of 
 1 e, whether may he in the reversion recover treble dam- 
 ages, and the place wasted, against the tenant for term of 
 liic, according to the statute, in conscience, as he may bv 
 
 * Cap. 4, to which may likewise be added the statute 31 Eliz., c. 3.
 
 112 Doctor and Student. 
 
 the law, if the stranger be not sufficient to make recom- 
 pence for the waste done ?* 
 
 Doct. Is the law clear in this case, that he in the rever- 
 sion shall recover against the tenant for term of life, though 
 that he assented not to the doing of waste ? 
 
 Stud. Yea verily ; and yet if the tenant for term of life 
 had been bounden in an obligation in a certain sum of 
 money, that he should do no waste, he should not forfeit 
 his bond by waste of a stranger. And the diversity is this. 
 It has been used as an ancient maxim of the law, that 
 tenant by the courtesy and tenant in dower should take the 
 land with this charge, f that is to say, that they should do 
 no waste themselves, nor suffer none to be done : and when 
 an action of waste was given after against a tenant for term 
 of life, then he was taken to be in the same case, as to the 
 point of waste, as tenant by the courtesy and tenant in 
 dower was, J that is to say, that he shall do no waste, nor 
 suffer none to be done ; for there is another maxim in the 
 law of England, that all cases like unto other cases shall 
 be judged after the same law as other cases be : and sith 
 no reason of diversity can be assigned why the tenant for 
 term of life, after an action of waste was given against him, 
 should have any more favour in the law than the tenant by 
 the courtesy or tenant in dower should ; therefore he is put 
 under the same maxim as they be, that is to say, that he 
 shall do no waste, ne suffer none to be done. And so it 
 seemeth that the law in this case doth not consider the ability 
 of the person that doth the waste, whether he be able to 
 make recompence for the waste or not, but the assent of the 
 said tenants, whereby they have wilfully taken upon them 
 the charge to see that no waste shall be done. 
 
 Doct. I have heard that if houses of these tenants be de- 
 stroyed with sudden tempest, or with strange enemies, that 
 they shall not be charged with waste. § 
 
 *2 Inst. 306; ante, 101. 
 
 T3 Cro. 420. 
 
 \ Ante, 102. 
 
 §Co. Litt. 53 ; Noy's Max. 16; 2 Inst. 303.
 
 Dialogue II. — Chap. 4. 113 
 
 Stud. Truth it is. 
 
 Doct. And I think the reason is, because they can have 
 no recovery over. 
 
 Stud. I take not that for the reason, but that it is an old 
 reasonable maxim in the law, that they should be dis- 
 charged in these cases. Howbeit some will say, that in 
 these cases the law of reason doth discharge them : and 
 therefore they say, that if a statute were made that they 
 should be charged in these cases of waste, that the statute 
 were against reason, and not to be observed. But yet never- 
 theless I take it not so ; for they might refuse to take such 
 estate if they would, and if they will take the estate after 
 the law made, it seemeth reasonable that they take it with 
 the charge, and with the condition that is appointed thereto 
 by the law, though hurt might follow to them afterward 
 thereby. For it is oftentimes seen in the law, that the law 
 doth suffer him to have hurt without help of the law that 
 will wilfully run into it of his own act, not compelled 
 thereto, and judgeth it his foil}'' so to run into it; for which 
 folly he shall also be many times without remedy in con- 
 science. As if a man take land for term of life, and bindeth 
 himself by obligation that he shall leave the land in as good 
 case as he found it ;* if the houses be alter blown down 
 with tempest, or destroyed with strange enemies, as in the 
 case that thou hast put before, he shall be bound to repair 
 them, or else he shall forfeit his obligation in law and 
 conscience : because it is his own act to bind him to it, 
 and yet the law would not have bound him thereto, as thou 
 hast said before. So methinketh that the cause why the 
 said tenants be discharged in the law in .m action of waste, 
 when the houses be destroyed by sudden tempest, or by 
 strange enemies, is by a special reasonable maxim in the 
 law, whereby they be excepted from the other general 
 bond before rehearsed, that is to say. they shall at their 
 peril see that no waste shall be done, and not by the law of 
 
 * Noy's Max. 16.
 
 114 Doctor and Student. 
 
 reason : and sith there is no maxim in this case to help this 
 tenant, ne that he cannot be holpen by the law of reason, 
 it seemeth that he should be charged in this case by his 
 own act both in law and conscience, whether the stranger 
 be able to recompence him or not. 
 
 Doct. I doubt in this case whether the maxim that thou 
 speakest of be reasonable or not, that is to say, that tenants 
 by the courtesy, and tenants in dower, were bound by the 
 common law, that they should do no waste themselves, and 
 over that at their peril to see that no waste should be done 
 by none other.* For that law seemeth not reasonable that 
 bindeth a man to an impossibility :| and it is impossible to 
 prevent that no waste should be clone by strangers : for it 
 may be suddenly done in the night, that the tenants can 
 have no notice of, or by great power, that they be not able 
 to resist : and therefore methinketh they ought not to be 
 charged in those cases for the waste without they may have 
 good remedy over ; and then percase the said maxim were 
 sufterable, and else methinketh it is a maxim against 
 reason. 
 
 Stud. As I have said before, no man shall be compelled 
 to take the bond upon him, but he that will take the land ; 
 and if he will take the land, it is reason he take the charge, 
 as the law hath appointed it :i and then if an) 7 hurt grow to 
 him thereby, it is through his own act, and his own assent, 
 for he might have refused the lease if he would. § 
 
 Doct. Though a man may refuse to take estate for term 
 of life, or for term of years, and a woman may refuse to 
 take her dower ; yet tenant by the courtesy cannot refuse to 
 take his estate, tor immediately after the death of his wife 
 the possession abideth still in him by the act of the law, 
 without entry : and then I put the case, that alter the death 
 of his wife he would waive the possession, and after waste 
 
 *2 Inst. 145; 3 Cro. 430; Co. Litt. 54; ante, xo6. 
 t Lex cogit neminem ad vana aut impossibilia. 5 Rep. 21. 
 J Agreeable to the maxim, Qui sentit commodum, debet sctitire incom' 
 modum s/'ve onus. 
 § Post. 260.
 
 Dialogue II. — Chap. 5. 115 
 
 were done by a stranger, whether thinkest thou that he 
 should answer to the waste? 
 
 Stud. I think he should by the law. 
 
 Doct. And how standeth that with reason, seeing there 
 is no default in him ? 
 
 Stud. It was his default, and at his own peril, that he 
 would marry an inheritrix, whereupon such danger might 
 follow. 
 
 Doct. I put the case that he were within age at the mar- 
 riage, or that the land descended to his wife after he married 
 her. 
 
 Stud. There thou movest a farther doubt than the first 
 question is : and though it were as thou sayest, yet thou canst 
 not say but that there is as great default in him, as in him 
 in the reversion ; and that there is as great reason why he 
 should be charged with the waste, as that he in the rever- 
 sion should be disinherited, and have no manner of remedy, 
 ne yet no profit of the land, as the other hath. And though 
 the said maxim may be thought very strait to the said ten- 
 ants ; yet it is to be favoured as much as may be reasonably, 
 because it helpeth much the commonwealth ; for it hurteth 
 the commonwealth greatly when woods and houses be de- 
 stroyed ; and if they should answer for no waste, but for 
 waste done by themselves, there might be wastes done by 
 strangers b)' commandment or assent, in such colourable 
 manner, that they in the reversion should never have proof 
 of their assent. 
 
 Doct. I am content thine opinion stand for this time, and 
 I pray thee now proceed to another question. 
 
 Chap. V. — The fourth question of the student. 
 
 Stud. If he that is the very heir be certified by the or- 
 dinary, bastard, and after bring an action as heir against 
 another person : whether ma ' any man, knowing the truth, 
 be of counsel with the tenant, and plead the said certificate 
 against the demandant bv conscience or not?
 
 1 1 6 Doctor and Student. 
 
 Doct. Is the law in this case, that all other against whom 
 the demandant hath title shall take advantage of this cer- 
 tificate, as well as he at whose suit he is certified bastard? 
 
 Stud. Yea verily, and thai for two causes, whereof the 
 one is this. There is an old maxim in the law, that a 
 mischief shall be rather suffered than an inconvenience :* 
 and then in this case if another writ should afterward be 
 sent to another bishop in another action, to certify whethe. 
 he were a bastard or not : peradventure the bishop "would 
 certify that he were mulic?', that is to say, lawfully begot- 
 ten, and then he should recover as heir: and so he should 
 in one self court be taken as mulic?' and bastard, f For 
 avoiding of which contrariosity, the law will suffer no more 
 writs to go forth in that case, and suftereth also all men to 
 take advantage of the certificate, rather than to suffer such 
 a contradiction in the court, which in the law is called an 
 inconvenience. J And the other cause is, because this 
 certificate of the bishop is the highest trial that is in the 
 law in this behali : but this is not understood but where 
 bastardy is laid in one that is party to the writ;§ ior if 
 bastardy be laid in one that is a stranger to the writ, as if 
 vouchee pray in aid for such other, then that bastardy shall 
 be tried by twelve men, by which trial he in whom the 
 bastardy is laid shall not be concluded, because he is not 
 privy to the trial, and may have no attaint; but he that is 
 party to the issue may have attaint, and therefore he shall 
 be concluded, and none other but he. And forasmuch as 
 the said maxim was ordained to eschew an inconvenience 
 (as before appeareth) it seemeth that every man "learned 
 may with conscience plead the said certificate lor avoiding 
 thereof, and give counsel therein to the party according 
 unto the law, or else the said inconvenience must needs 
 follow. But yet nevertheless I do not mean thereby, that 
 
 » Wood's Inst. 5. 
 
 f 1 Roll. Abr. 361, 362. 
 
 % 1 Danv. Abr. 732. 
 
 § 1 Burn's Ecc Law, 119.
 
 Dialogue II. — Chap. 5. 117 
 
 the party may after, when he hath barred the demandant 
 by the said certificate, retain the land in conscience by 
 reason of the said certificate : for though there be no law to 
 compel him to restore it, yet I think well that he in con- 
 science is bound to restore it, if he knew that the demand- 
 ant is the very true heir, whereof I have put divers cases 
 like in the seventeenth chapter of our first dialogue in 
 Latin.* But my intent is, that a man learned in the law, 
 in this case, and other like, may with conscience give his 
 counsel according to the law, in avoiding of such things as 
 the law thinketh should for a reasonable cause be eschewed. 
 Doct. Though he that doth not know whether he be a 
 bastard or not may give his counsel, and also plead the 
 said certificate; yet I think that he that doth know himself 
 to be the very true heir ma}' not plead it: and that is for 
 two causes, whereof the one is this : every man is bound 
 by the law of reason to do as he would be done to :f but I 
 think that if he that pleadeth that certificate were in like 
 case, he would think that no man, knowing the certilicate 
 to be untrue, might with conscience plead it against 
 him, wherefore no more may he plead it against none 
 other. The other cause is this : Although the certificate 
 be pleaded, yet is the tenant bounden in conscience to 
 make restitution thereof, as thou hast said thyself; and 
 then in case that he would not make restitution, then he 
 that pleadeth the plea should run thereby in Ike offence, 
 for he hath holpen to set the other man in such a liberty, 
 that he may chuse whether he will restore the land or not; 
 and so he should put himself to jeopardy of another man's 
 conscience. And it is written, Eccl. 3, £%ui a mat -periculum 
 peril)// in illo, that is, lie that wilfully will put himself in 
 jeopardy to offend, shall perish therein. And therefore it 
 is the surest way, to eschew perils, for him that knoweth 
 that he is heir, not to plead it. And as for the incon- 
 venience that thou sayest must needs follow, but the 
 
 ;: Ante, 47. 
 fPost. 119.
 
 1 1 3 Doctor and Student. 
 
 certificate be pleaded ; as to that it may be answered, that 
 it may be pleaded by some other that knoweth not that he 
 is very heir : and if the case be so far put, that there is 
 none other learned there but he, then methinketh that he 
 shall rather suffer the said inconvenience, than to hurt his 
 own conscience ; for always charity beginneth at himself, 
 and so every man ought to suffer all other offences rather 
 than himself would offend. And now that thou knowest 
 mine opinion in this case, I pray thee proceed to another 
 question. 
 
 Chap. VI. — The fifth question of the student. 
 
 Stud. Whether may a man with conscience be of counsel 
 with the plaintiff in action at the common law, knowing 
 that the defendant hath sufficient matter in conscience 
 whereby he may be discharged by a subpoena in the chan- 
 cery, which he cannot plead at the common law, or not? 
 
 Doct. I pray thee put a case thereof in certain, for else 
 the question is very general. 
 
 Stud. I will put the same case that thou puttest in our 
 first dialogue in Latin, the twelfth chapter, that is to say, 
 If a man bound in an obligation pay the money, and taketh 
 no acquittance, so that by the common law he shall be 
 compelled to pay the money again,* for such consideration 
 as appeareth in the fifteenth chapter of the said dialogue 
 where it is shewed evidently how the law in that case is 
 made upon a good reasonable ground, much necessary for 
 all the people, howbeit that a man may sometime, through 
 his own default, take hurt thereby : herein I pray thee shew 
 me thine opinion. 
 
 Doct. This case seemeth to be like to the case that thou 
 hast next before this, J and that he that knoweth the pay- 
 ment to be made doth not as he would be done to, if he 
 
 * Ante, 37. 
 f Ante, 115.
 
 Dialogue II. — Chap. 6. 
 
 119 
 
 gave counsel that an action should be taken to have it payed 
 again. 
 
 .Stud. li he be sworn to give counsel according to the 
 law,* as Serjeants at the law be, it seemeth he is bound to 
 give counsel according to the law, for else he should not 
 perform his oath. 
 
 Doct. In these words (according to the law) is under- 
 stood the law of God, and the law of reason, as well as the 
 law and customs of the realm : for as thou hast said thy- 
 self, in our first dialogue in Latin, \ that the law of God, 
 and the law of reason, be two special grounds of the laws 
 of England, wherefore (as methinketh) he may give no 
 counsel (saving his oath) neither against the law of God, 
 nor the law of reason. And certain it is, that this article, 
 that is to say, that a man shall do as he would be done to, 
 is grounded upon both the said laws. And first that it is 
 grounded upon the law of reason, it is evident of itself. 
 And in the sixth chapter of St. Luke it is said, Et -prout 
 vultis ut faciant rob is homines, ct vosfacite illis similiter; 
 that is to say, All that other men should do to you, do you 
 to- them \% and so it is grounded upon the law of God. 
 Wherefore if he should give counsel against the defendant 
 in that case, he should do against both the said laws. 
 
 Stud. If the defendant had no other remedy but the com- 
 mon law, I would agree well it were as thou sayest, but in 
 this case he may have good remedy by a subpecua: and 
 this is the way that shall induce him directly to his subpoena , 
 that is to say, when it appeareth that the plaintiff shall re- 
 cover by law. 
 
 Doct. Though the defendant may be discharged by sub- 
 fia-iKi, yet the bringing in of his prools there will be to the 
 charge of the defendant, and also the proofs may die or 
 they come in. Also there is a ground in the law of rea- 
 son, Jejuni nihil -possimus contra veritatem, (that is) We 
 
 2 Inst. 214. 
 f Ante, 5, 7. 
 J Ante, 7 17.
 
 120 Doctor and Student. 
 
 may do nothing against the truth ; and sith he knoweth it 
 is truth that the money is payed, he may do nothing against 
 the truth ; and if he should be of counsel with the plaint- 
 iff, he must suppose and aver that it is the very due debt of 
 the plaintiff, and that the defendant with-holdeth it from 
 him unlawfully, which he knoweth himself to be untrue : 
 wherefore he may not with conscience in this case be of 
 counsel with the plaintiff, knowing that the plaintiff is paid 
 already. Wherefore if thou be contented with this answer, 
 I pray thee proceed to some other question. 
 Stud. I will with good-will. 
 
 Chap. VII. — The sixth question of the student. 
 
 A man maketh a feoffment to the use of him and of his 
 heirs, and after the feoffor putteth in his beasts to manure 
 the ground, and the feoffee taketh them as damage-feasant, 
 and putteth them in pound, and the teoffor bringeth an ac- 
 tion of trespass against him for entering into his ground, 
 etc. Whether may any man, knowing the said use, be of 
 counsel with the feoffee to avoid the action ? 
 
 Doct. May he by the common law avoid that action, 
 seeing that the feoffor ought in consicience to have the 
 profits? 
 
 Stud. Yes, verily ; for as to the common law the whole 
 interest is in the feoffee,* and if the feoffee will break his 
 conscience, and take the profits, the feoffor hath no remedy 
 by the common law, but is driven in that case to sue for his 
 remedy by subpoena for the profits, and to cause him to en- 
 feoff him again :f and that was sometime the most common 
 case where the subpoena was sued, that is to say, before the 
 statute of R. 3. but sith the statute, the feoffor may lawfully 
 make a feoffment. % But nevertheless, for the profits re- 
 ceived, the feoffor hath yet no remedy but by subpoena as 
 he had before the said statute. And so the supposal of this 
 
 * See note, p. 58. 
 
 r Wood's Inst. 256; Kelw. 42, b. ; 1 Rep. 121. 
 
 * Ciodbolt, 303; Gilbert, Law of Uses, 27.
 
 Dialogue II. — Chap. 7. ' 121 
 
 action of trespass is untrue in every point as to the common 
 law. 
 
 Doct. Though the action be untrue as to the law, yet he 
 that sueth it ought in conscience to have that he demandeth 
 by the action, that is to say, Damages for his profits; and 
 as it seemeth, no man may with conscience give counsel 
 against that he knoweth conscience would have done. 
 
 Stud. Though conscience would he should have the 
 profits, yet conscience will not that for the attaining thereof 
 the feoffor should make an untrue surmise. Therefore 
 against the untrue surmise every man may with conscience 
 give his counsel ; for in that doing he resisteth not the 
 plaintiff to have the profits, but he withstandeth him that he 
 should not maintain an untrue action for the profits. And 
 it sufficeth not in the law, ne yet in conscience, as me 
 seemeth, that a man have right to that he sueth for, but that 
 also he sue by a just means, and that he have both good 
 right, and also a good and true conveyance to come to his 
 right. For if a man have a right to lands as heir to his 
 lather, and he will bring an action as heir to his mother, 
 that never had right, every man may give counsel against 
 the action, though he know he have right by another means ; 
 and so, as methinketh, he may do in dilatories, whereby 
 the party may take hurt if it were not pleaded, though he 
 know the plaintiff have right; as if the party or the town 
 be misnamed, or if the degrees in writs of Entry be mis- 
 taken ; but if the party should take no hurt by admitting 
 of a dilatory, there he that knoweth that the plaintiff hath 
 right, may not plead that dilatory with conscience. As in 
 a Formedon to plead in abatement of the writ, because he 
 hath not made himself heir to him thai was the last seised ;* 
 for in a writ of right, for that the demandant had omitted 
 one that tended right, ne such other. Xe he may not as- 
 sent to the casting of an essoin nor protection tor him, it he 
 know that the demandant hath right ; ne he may not vouch 
 for him, except it be that he knoweth that the tenant hath 
 
 ♦Het. 7S; 8 Co. 88; Hob. 51, 52.
 
 122 Doctor and Student. 
 
 a true cause of a voucher and of lien, and that he doth it 
 to bring him thereto. And in like wise he may not pray in 
 aid for him, unless he know the prayee have good cause of 
 voucher and lien over ; or that he knew that the prayee 
 hath somewhat to plead that the tenant may not plead, as 
 villeinage in the demandant, or such other. 
 
 Doct. Though the plaintiff' hath brought an action that 
 is unt. ue, and not maintainable in the law, yet the defendant 
 doth wrong to the plaintiff in the with-holding of the profits 
 as well beiore the action brought, as hanging the action ; 
 and that wrong, as it seemeth, the counsellor doth main- 
 tain, and also sheweth himself to favour the party in that 
 wrong, when he giveth counsel against the action. 
 
 Stud. If the plaintiff do take that for a favour, and a 
 maintenance of his wrong, he judgeth farther than the cause 
 is given, so that the counsellor do no more but give counsel 
 against the action : for though he give him counsel to with- 
 stand the action for the untruth of it, and that he should not 
 confess it, and to make thereby a fine to the king without 
 cause ; yet it may not stand with reason that he may give 
 counsel to the party to yield the profits.* And therefore I 
 think he may in this case be of counsel with him at the 
 Common law, and be against him in Chancery , and in 
 either court give his counsel, without any contrariosity or 
 hurt of conscience. And upon this ground it is, that a man 
 may with good conscience be of counsel with him that hath 
 land by descent, or by a discontinuance without title, if he 
 that hath the right bring not his action according to the 
 law, for the recovering of his right in that behalf. 
 
 Chap. VIII. — The seventh question of the student. 
 
 If a man take distress for debt upon an obligation f or 
 upon a contract, or such other thing that he hath right title 
 to have, but that he ought not by the law to distrain for it, 
 
 * 2 B. 398. 
 
 f Ante, 23 ; post. 127.
 
 Dialogue II. — Chap. 8. 123 
 
 and nevertheless he keepeth the same distress in pound till 
 he be paid of his duty, what restitution is he bound to make 
 in this case? Whether shall he repay the money, because 
 he is come to it by an unlawful means, or only restore the 
 party for the wrongful taking of the distress, or for neither? 
 I pray you shew me? 
 
 Doct. What is the law in this case? 
 
 S/nd. That he that is distrained* may bring a special 
 action of trespass against him that distrained, f for that he 
 took his beasts wrongfully, and kept them till he made a 
 fine ; and therefore he shall recover the fine in damages, as 
 he shall do for the residue of trespass : for the taking of the 
 money by such compulsion, is taken in the law but as a 
 fine wrongfully taken, though it be his duty to have it. 
 
 Doct. Yet though he may so recover, methinketh that as 
 to the repayment of the money, he is not bound thereto in 
 conscience, so that he take no more than of right he ought 
 to have : for though he came to it by unjust means, vet 
 when the money is paid him, it is his of right, and he is 
 not bound to repay it, unless it be recovered as thou said'st ; 
 and then when he hath repayed it, he is, as methinketh, 
 restored to his first action. But to the redelivery of the 
 beasts, with such damages and such hurt as he hath bv the 
 distress, I suppose he is bound to make recompence of 
 them in conscience without compulsion or suit in the law : 
 for though he might lawfully have sued for his duty in such 
 manner as the law hath ordered; yet I agree well that he 
 may not take upon him to be his own judge, and to come 
 to his duty against the order ot the law. And therefore if 
 any hurt come to the parly by the disorder, he is bound to 
 restore it. But I woidd think it were the more doubt, if a 
 man took such a uistress lor a trespass done to him, and 
 keepeth the distress till amends be made for the trespass :f 
 
 * Sayer's Rep. 14S. 
 
 f Or ho may have a replevin, and if the distress had not been impounded, 
 he might have made a rescue- Co. Litt. 47. 
 
 * 2 New Abr. 2.
 
 124 Doctor and Student. 
 
 m 
 
 for in that case the damages be not in certain, but be arbi- 
 trable either by the assent of the parties, or by twelve men. 
 And it. seemeth that there is no assent of the party in this 
 case, especially no free assent, for that he doth is by com- 
 pulsion, and to have his distress again, and so his assent is 
 not much to be pondered in that case, for all his assessing 
 of him that took the distress, and so he hath made himself 
 his own judge, and that is prohibited in all laws : but in 
 that Qase where the distress is taken for debt, he is not his 
 own judge ; for the debt was judged in certain before the 
 first contract, and therefore some think great diversity 
 betwixt the cases. 
 
 Stud. By that reason it seemeth, that if he that distrained 
 in the first case for the debt take any thing for his damages, 
 that he is bound in conscience to restore it again ; for 
 damages be arbitrable, and not certain, no more than 
 trespass is ; and me seemeth that both in the case of tres- 
 pass* and debt, he is bound in conscience to restore that 
 lie taketh : for, though he ought in right to have like sum 
 as he receiveth, yet he ought not to have the money that he 
 receiveth, for he came to the money by an unjust means : 
 wherefore it seemeth he ought to restore it again. 
 
 Doct. And if he should be compelled to restore it again, 
 should he not yet (for that he received it once) be barred 
 of his first action notwithstanding the payment? 
 
 Stud. I will not at this time clearly assoil thee that ques- 
 tion ; but this I will say, That if any hurt come to him 
 thereby, it is through his own default, for that he would do 
 against the law : but nevertheless a little I will say to thy 
 question, that, as me seemeth, when he hath repaid the 
 money, that he is restored to his first action. As if a man 
 condemned in an action of trespass pay the money, and 
 after the defendant reverse the judgment by a writ of error, 
 
 This cannot be understood of a trespass damage feasant, for in that 
 case it is ctaar that a man may lawfully distrain the beasts of a stranger 
 which come upon his premises; and if reasonable tender of amends is 
 made 1dm by the owner of the beasts before they are impounded, and he 
 ai ■ epts it. he is not hound to repay the money either in law or equity.
 
 Dialogue II. — Chap. 9. 
 
 and have his money repaid, then the plaintiff is restored to 
 his first action. And therefore if he that in this case took 
 the money, restore that he took by the wrongful distress, 
 or that he ordered the matter so liberally that the other 
 murmur not, he complain not at it, me seemeth he did very 
 well to be sure in conscience : and therefore I would advise 
 every man to be well aware how he distraineth in such case 
 against the law. 
 
 Duct. Thy counsel is good, and I note much in this 
 case, That the party may have an action of trespass against 
 him that distraineth, so that he is taken in the law but as a 
 wrong-doi r ; and therefore to pay the money again is tie 
 sure wav, as thou hast said before. And I pray thee now 
 shew me for what a man may lawfully distrain, as thou 
 thinkest. 
 
 Chap. IX. — For what things a man may lawfully dis- 
 train. 
 
 Stud. A man may lawfully distrain for a rent-service, 
 and for all manner of services,* as homage, fealty, 
 escuage,f suit of court, reliefs, and such other. Also for 
 a rent reserved upon a gift in tail, a lease for term of life, 
 for years, or at will, if he reserve the reversion, the feoffor 
 shall distrain of common right, though there be no distress 
 spoken of. J But in case a man make a feoffment, and 
 that in fee by indenture, reserving a rent, he shall not dis- 
 train for that rent, unless a distress be expressly reserved :§ 
 and if the feoffment be made without a deed reserving a 
 rent, that reservation is void in law, and he shall have the 
 rent only in conscience, and shall not distrain for it. And 
 
 2 Inst. 11S; Noy's Max. 43 ; Gilbert's Distresses, 7, 8. 
 
 : As the service ol escuage was peculiarly incident to knight service, 
 it is entirely abolished by the statute of 12 Cur. 2, ante, 26, and does not 
 rank among the modern English tenures, like suit of eourt, fealty, and 
 relief. 
 
 t Co Litt. 142. 
 
 i? Hut it seems to be good to bind the feoffee by way of contract. : New 
 Abr. 106.
 
 Doctor and Student. 
 
 like law is where a gift in tail, or a lease for term of life is 
 made, the remainder over in fee, reserving a rent, that re- 
 servation is void in the law.* 
 
 Also, if a man seised of land for term of life granteth 
 away his whole estate, reserving a rent,f that reservation is 
 void in the law, without it be by indenture ; and if it be by 
 indenture, yet he shall not distrain for the rent, but a distress 
 be reserved. | And for amerciaments in a leet the lord 
 shall distrain ;§ but for amerciaments in a Court-Baron he 
 shall not distrain. j| 
 
 Also, if a man make a lease at Michaelmas for a year, 
 reserving rent payable at the feasts of the Annunciation of 
 our lady, and St. Michael the arch-angel ; in that case he 
 shall distrain for the rent due at our Lady-day-, but not for 
 the rent due at Michaelmas, If because the term is expired.** 
 
 But if a man make a lease at the feast of Christmas, for 
 to endure to the feast of Christmas next following, that is 
 to say, for a year, reserving a rent at the aforesaid feasts 
 of the Annunciation of our lady, and St. Michael the arch- 
 angel ; there he shall distrain for both the rents as long as 
 the term continued, that is to say, till that aforesaid feast 
 of Christinas. 
 
 And if a man hath land for term of lifeff of John at Noke, 
 and maketh a lease for term of years, reserving a rent, the 
 rent is behind, and John at Noke dieth ; there he shall not 
 distrain, because his reversion is determined. 
 
 Also, if he to whose use feoffees been seised maketh a 
 
 * Litt., sec. 215. 
 
 jBr. Reservation, pi. 8. 
 
 \ Br. Distress, pi. S ; 8 Co. 41 ; 1 Roll. Rep. 201 ; Cro. Eliz. 74S. 
 
 § Or he may have an action of debt. Cro. Jac. 3S2 ; 1 Wils. 243. 
 
 || But if the lord can prescribe in a distress for the amerciament, then it 
 becomes lawful. Gilbert Law of Distresses, 16. 
 
 \ Co. Litt. 47; 2 Cro. 442; 1 Roll. 672. 
 *By the S Ann., c 14, rent maybe distrained for after determination 
 of the lease, in the same manner as before, if the distress is made within 
 six calendar months afterward, and during the continuance of the land- 
 lord's title, and the possession of the tenant from whom the arrears are 
 due. 
 
 tf Br. Distress, pi. 74.
 
 Dialogue II. — Chap. 9. 127 
 
 lease for term of years, or for term of life, or a gift in tail 
 reserving a rent ; there the reservation is good, and the 
 lessor shall distrain. 
 
 And if a township be amerced, and the neighbours by 
 assent assess a certain sum upon every inhabitant,* and 
 agree that if it be not paid by such a day, that certain per- 
 sons thereto assigned shall distrain : in this case the distress 
 is lawful. If lord and tenant be, and if the tenant do hold 
 of the lord by fealty and rent:f and the lord doth grant 
 away the fealty, reserving the rent, and the tenant atturneth ; 
 in this case he that was lord may not distrain for the rent, 
 for it is become a rent-seek. $ But if a man make a gitt in 
 tail to another, reserving fealty and certain rent, and after 
 that he granteth away the fealty, reserving the rent and the 
 reversion to himself ; in this case he shall distrain for the rent? 
 for the grant of the fealty is void, for the fealty cannot be sev- 
 ered from the reversion. § Also, for heriot-service the lord 
 shall distrain ;|| and for heriot-custom he shall seise, and not 
 distrain.1T Also, if rent be assigned, to make a partition or 
 assignment of dewer legal, he or she to whom the rent is 
 assigned may distrain. And in all these cases abovesaid, 
 where a man may distrain, he ma}- not distrain in the night,** 
 but for damage- feasant ;ft tnat ' s to sav ' where beasts do 
 hurt in his ground, he may distrain in the night. Also for 
 wastes, for reparations, for accompts, for debts upon con- 
 tracts, or such other, no man may lawfully distrain. 
 
 : Gilb. Law of Distresses, 31. 
 t Litt., sec. 226. 
 
 . I! , stat. 4 Geo. 2, c. 2S, the like remedy is given by distress for rent- 
 seek a< for any other rent. 
 § Co. Litt. 143. 
 I Ir he may seize at his election. Cro. Eliz. ^2; Cro. Jac. 260; 3 Mod. 
 - ; 1 • 
 
 Kelw.82; Bro., tit. Heriot, a ; NTo/s Max. 25. 
 
 Which according to the author of the Mirror and construction of hm, 
 is after sun-set, and before sun-rising. Mirr., c. 2, sec. 6. 
 tf Co. Litt. 142.
 
 128 Doctor and Student. 
 
 Chap. X. — The eighth question of the student. 
 
 If a man do a trespass, and after make his executors, 
 and die before any amends made ; whether be his exec- 
 utors bound in conscience to make amends for the trespass, 
 if they have sufficient goods thereto, though there be no 
 remedy against them by the law to compel them to it? 
 
 Doct. It is no doubt but they are bound therelo in con- 
 science, before any other deed in charity that they may do 
 for him of their own devotion. 
 
 Stud. Then would I wit, if the testator made legacies by 
 his will, whether the executors be bound to do first, that is 
 to say, to make amends for the trespass, or to pay the leg- 
 acies, in case they have no goods to do both? 
 
 Doct. To pay legacies : for if they should first make 
 recompence for the trespass, and then have not sufficient to 
 pay the legacies ;* they should be taken in the law as 
 wasters of their testator's goods ; for the}' were not com- 
 pellable by no law to make amends for the trespass, because 
 every trespass dieth with the person ; j but the legacies they 
 should be compelled by the law spiritual to fulfil, and so 
 they should be compelled to pay the legacies of their own 
 goods, and they shall not be compelled thereto by no law 
 ne conscience : but if the case were, that he leave sufficient 
 goods to do both, then methinketh they be bound to do both, 
 and that they be bound to make amends for the trespass, 
 before they may do any other charitable deed lor the testa- 
 tor of their own mind, as I have said before, except the 
 
 "Office of Executor, 292; Noy's Max. 5; Office of Executor, 126. 
 
 fThis maxim not being generally true, but liable to many exceptions, 
 leaves the law undefined as to the kind of personal actions which die with 
 the person or survive against the executor. However, it may be affirmed 
 with certainty, that where the cause of action is a tort, or arises ex delit to, 
 supposed to be by force and battery, against the king's peace; there the 
 action dies, as trover, battery, false imprisonment, words, nuisance, ob- 
 structing lights, diverting a water-course, etc. Cow. Rep. 374, 375.
 
 Dialogue II. — Chap. io. 129 
 
 funeral expenses* that be necessary, which must be al- 
 lowed before all other things. f 
 
 Stad. And what the proving of the testament? 
 
 Doct. The ordinary may nothing take by conscience, 
 therefore, if there be not sufficient goods besides for the 
 funerals,| to pay the debts, and to make restitution. And 
 in like wise the executors be bound to pay debts upon a 
 simple contract, before any other deed of charity that they 
 may do for the testator of their own devotion, though they 
 shall not be compelled thereto by the law. 
 
 Stud. And whether thinkest thou that they be bound to 
 do first, that is to say, to make amends for the trespass, or 
 to pay the debts upon a simple contract? 
 
 Doct. To pay the debts, for that is certain, and the tres- 
 pass is arbitrable. 
 
 Stad. Then for the plainer declaration of this matter, 
 and other like, I pray thee shew me thy mind, by what law 
 it is, that if a man make executors, that the executors, if 
 they take upon them, be bound to perform the will, and dis- 
 pose the goods that remain for the testator? 
 
 Doct. I think that it is best by the law of reason. 
 
 Stud. And methinketh that it should be rather by the 
 custom of the realm. 
 
 Doct. In all countries, and in all lands, they make exec- 
 utors. 
 
 Stud. That seemeth to be rather by a general custom, 
 alter that the law and custom of property was brought in, 
 than by the law of reason, for as long as all things were in 
 common, there were no executors ne wills, no they needed 
 not them : and when property was alter brought in, me- 
 thinketh that yet making of executors, and disposing of 
 goods by will, alter a man's death, followeth not necessarily 
 thereupon : lor it might have been made tor a law. that a 
 
 Office 01 Executor, 129, 130; ^ 1>. C 
 f And see what expences ami articles will be allowed against creditors in 
 Wentworth's Office of Exec. 29:, 173; 2 Salk. 296: 3 Atk 249. 
 J Office of Executor, 130, 131.
 
 130 Doctor and Student. 
 
 man should have had the property of his goods only during 
 his life, and that then, his debts paid, all his goods to have 
 been left to his wife and children, or next of his kin, with- 
 out any legacies making thereof: and so it might now be 
 ordained by statute, and the statute good, and not against 
 reason. Wherefore it appeareth that executors have no 
 authority by the law of reason, but by the law of man. 
 And by the old law and custom of the realm a man may 
 make executors, and dispose his goods by his will, and then 
 his executors shall have the execution thereof, and his heirs 
 shall have nothing, but if any particular custom help:* and 
 the executors shall also have the whole possession and dis- 
 position of all his goods and chattels, as well real as per- 
 sonal, though no word be expressly spoken in the will, that 
 they shall have them : and they shall have also actions to 
 recover all debts due to the testator, f though all debts and 
 legacies of the testator be paid before, and shall have the 
 disposition of them to the use of the testator, and not to 
 their own use. And so methinketh that the authority to 
 make executors, and that they shall dispose the goods (or 
 the testator, is bv the custom of this realm : but then. I 
 think, as thou sayest, that by the law of God they shall be 
 bound to do the first, that is, to the most profit of the soul 
 of their testator, where the disposition thereof is left to their 
 discretion ;± and that, I agree well, is to pay debts upon 
 contracts, and to make amends lor wrong done by the tes- 
 tator, though tiiey be not compelled thereto by the law and 
 custom of the realm, if there be none other debt nor legacy 
 that they be bound to pay by the law; but if two several 
 debts be payable by the law, then which debt they shall do 
 first in conscience, I am somewhat in doubt. 
 
 Doct. Let us first know what the Common law is therein. 
 
 Stud. The Common law is, That if the testator owe 10^. 
 to two men severally by obligation, or by such other man- 
 ner ih t an action lieth against his executors thereof by the 
 
 * Office of Executor, 53. 57, >S, 59; ante, 22. 
 t Lovelass on I ntestacy and Wills, 43. 
 J Office of Executor, 155.
 
 Dialogue II. — Chap. io. iji 
 
 law, and he leavelh goods to pay the one, and not both;* 
 that in that case he that can first obtain his judgment against 
 the executors, shall have execution of the whole, and the 
 other shall have nothing: but to which of them he shall 
 in conscience owe his favour, the Common law teacheth 
 not. 
 
 Doct. Therein must be considered the cause why the 
 debts began, and then he must after conscience bear his 
 lawful favour to him that hath the clearest cause of debt : and 
 if both have like cause, then in conscience he must bear 
 his favour where is most need and greatest charity. 
 
 Stud. May the executors in that case delay that action 
 that is first taken, if it stand not with so good conscience to 
 be paid as another debt whereof no action is brought, and 
 procure that an action may be brought thereof, and then to 
 confess that action, that he may so have execution, and then 
 the executors to be discharged against the other? 
 
 Doct. Why may he not in that case pay the other with- 
 out action, and so be discharged in the law against the 
 first ? 
 
 Stud. No verily, for after an action is taken, the ex- 
 ecutor mav not minister the i^oods so, but that he leave so 
 much as shall pay the debt whereof the action is taken :f 
 and it he do not, he shall pay it of his own goods, except 
 another recover and have judgment against him hanging 
 that action, and that without covin. 
 
 Doct. Then to answer to thy question, I think, that by 
 delays that be lawful, as by essoin, imparlance, or by dila- 
 tory plea in abatement of the writ, that is true he may delay 
 it :\ but he may plead no untrue plea to prefer the other to 
 his duty, lint, I pray thee, what is the law ot legacies, 
 restitution, and debts upon contracts, thai percase ought 
 rather after charity to be paid than a debt upon an obliga- 
 tion? What may the favour of the executor do in these 
 cases ? 
 
 Office <>f Exec ■ \\: Swin. 4;;. +58 
 
 I Office "I I \ ec. 144- 
 1 lb. 144.
 
 132 Doctor and Student. 
 
 Stud. Nothing : lor if they either perform legacies, make 
 restitutions, or pay debts upon contracts,* and keep not 
 sufficient to pay debts which they are compelled by the law 
 to pay, that shall be taken as a dcvastaverunt bona tcsta- 
 tor/s,-\ that is to say, that they have wasted the goods of 
 their testator; and therefore they shall be compelled to pay 
 the debts of their own goods \\ and so it is, if they pay a 
 debt upon an obligation, whereof the day is yet to come, 
 though it be the clearer debt, and that be the more charity 
 to have it paid.§ 
 
 Doct. Yet in that case, if he to whom the debt is already 
 owing forbear till after the day of the other obligation is 
 past, then he may pay him without danger. || 
 
 Stud. That is true, if there be no action taken upon it ; 
 and though there be, yet if that action may be delayed by 
 lawful means as thou hast spoken of before, till after the 
 day, and that an action is taken upon it, then may the ex- 
 ecutor confess the action, and then after judgment he may 
 pay the debt without danger of the law. 
 
 Doct. Is not that confessing of the action so done of 
 purpose a covin in the law? 
 
 Stud. No, verily ; for covin is where the action is untrue, 
 and not where the executors bear a lawful favour. IT 
 
 Doct. The ordinary, upon the accompt in all the cases 
 before rehearsed, will regard much what is best for the 
 testator. 
 
 Stud. But he may not drive them to accompt against the 
 order of the Common law.*"* 
 
 iS 'Lovelass on Intestacy and Wills, 186, 187. 
 f Office of Exec. 292, 157. 
 JNoj's Max. 104. 
 § Office of Exec. 292. 
 || lb. 142. 
 IS win. a, 459. 
 • •* Office of Exec. 21.
 
 Dialogue II. — Chap. ii. 133 
 
 Chap. XI. — The ninth question of the student. 
 
 A man is indebted to another upon a simple contract in 
 20/. and he maketh his will, and bequeathed! 20/. to H. 
 Hart, and dieth, and leaveth goods to his executors only to 
 bury him with, and to perform the said legacy, and after 
 ihi' said executors deliver the goods of their testator in per- 
 formance ot" the said bequest: whether is he to whom the 
 bequest is made bound in conscience to pa}' the said debt 
 upon the simple contract, or not? 
 
 Doci. Is he not bound thereto by the law? 
 
 Stud. No, verily. 
 
 Doct. And what thinkest thou he is in conscience? 
 
 Stud. I think that he is not bound thereto in conscience, 
 for he is neither ordinal}', administrator, nor executor. 
 And I have not heard that any man is bound to pay debts 
 of any man that is deceased, but he be one of those three. 
 For the goods that the testator left to the executors were 
 never charged with the debt, but the person of the testator 
 while he lived was only charged with the debt, and not his 
 goods; and his executors, that represent his estate after his 
 death, having goods thereto of the testator's, be charged 
 also with the debts, and not the goods. And therefore if 
 an executor give away or sell all the goods ot' tin- testator, 
 or otherwise waste them, he that hath the goods is not 
 charged with the debts in law nor conscience, but the 
 executors shall be charged of their own goods.* And in 
 like wise, if John at Noke owe to A. B. 20/. and A. B. 
 oweth to C. D. 20/., and after A. 1). dieth intestate, having 
 none other goods but the said 20/. which the said John at 
 Noke oweth him ; yet the said C. D. shall have no remedy 
 against the said John at Noke, tor he standeth not charged 
 to him in law nor conscience. But the ordinary in that 
 ease must commit administration 01 the goods ot the said 
 A. B., and the said administrator must lev}' the money of 
 
 *Ante, 132.
 
 I j4 Doctor and Student. 
 
 the said John at Noke, and pay it to the said C. D., and the 
 said John at Noke shall not pay it himself, because he is 
 not charged therewith to him : and no more methinketh in 
 this case, that he to whom the bequest is made, is neither 
 charged to him that the money was owing to, in the law or 
 conscience. 
 
 Doct. Then shew me thy mind, by what law it was 
 grounded, as thou thinkest, that executors be bound to pay 
 debts before legacies ; whether it is by the law of God, or 
 by the law of reason, or by the law of man, as thou 
 thinkest? 
 
 Stud. I think that it is both by the law of reason and by 
 the law of God. For reason wills that they shall do first 
 that is best for the testator, and that is to pay debts, that 
 their testator is bound to pay, before legacies that he is 
 not bound to.* And also by the law of God they are 
 bound to pay the debts first : for sith they are bound by the 
 law of God to love their neighbour, they are bound to do for 
 him that shall be best for him, when they have taken the 
 charge thereto, as executors do when they agree to take 
 the charge of the will of their testator upon them ; and it is 
 better for the testator that his debts be paid, (wherefore his 
 soul shall suffer pain) than that his legacies be performed, 
 wherefore he shall suffer no pain for the performing of 
 them.f 
 
 And that is to be understood, where the legacy is made 
 of his own free-will, and not where it is made as a satisfac- 
 tion of any duty. And after the saying of St. Gregory, the 
 very true proof of love is the deed. But this man is not in 
 that case, for he took never the charge upon him to pay 
 the debts of the testator, and therefore he is not bound to 
 them in law nor conscience, as me seemeth : but rather the 
 executors should have been ware ere they had paid the 
 legacies, seeing there were debts to pay. 
 
 Doct. The executors might no otherwise have done in 
 
 Office of Exec. 27. 
 t lb. 155-
 
 Dialogue II. — Chap. ii. 135 
 
 this case, but to pay the legacies : for them they should 
 have been compelled by the law to have paid, and so they 
 could not have been to have paid the debt upon a contract,* 
 and therefore they did well in performing of that legacy ; 
 but he to whom the legacy was made ought not to have 
 taken them, but ought in conscience to have suffered them 
 to have gone to the payment of the debt. And sith he did 
 not so, but took them where he had no right to them, it 
 seemelh that when he took them, he took with them the 
 charge in conscience to pay the debt : for sith the executors 
 were compellable by the law to perform that bequest, and 
 not to pay the debt, therefore when they performed that 
 bequest, they were discharged thereby against him that the 
 debt was owing to, in the law and conscience ; and then 
 the charge rested upon him that took the goods, where he 
 ought not in conscience to have taken them : but if it had 
 been a debt upon an obligation, or such other debt, where- 
 upon remedy hath been had against the executors by the 
 law, I there suppose, though that the executors had per- 
 formed the legacy, that yet he to whom the legacy was 
 made and performed, had not been charged in conscience 
 to the payment of the debt, for the executors stood still 
 charged thereto of their own goods ; and he to whom the 
 bequest was made was only bound in conscience to repay 
 that he received to the executors, because he had no right 
 to have received it, for against the executors he had no 
 right thereto. 
 
 Stud. Then it seemeth in this case, that in like wise he to 
 whom tiie bequest was made should repay that he received 
 to the executors, and then they to pay it rather than he.f 
 
 But the old law is now altered, and an action will lie against the ex- 
 ecutor upon the assumpsit of the testator implied in a simple c mtracb 
 Lev. 20o, 201 ; 2 Cro. 293. A.nd therefore an should bs very ca • 
 
 lul how he pays legacies pecuniary orspecific, especially where his testator 
 dies much indebted, without taking securities from the different legatees 
 to refund incase debts of any kind shall appear, or putting himself under 
 the directi in of a court of equity. 
 t2Vern. 205: 1 Chan. C,i 136.
 
 136 Doctor and Student. 
 
 Doct. The executors have no farther meddling with it, 
 as this case is : for when they performed the bequest, they 
 were discharged against both the other in law and con- 
 science : and also he to whom the bequest was made stood 
 not in this case charged to the executors ; for against them 
 he had good title by the law : and so this charge standeth 
 only against him that the debt is owing to. And the same 
 law, that is in this case upon a debt upon a contract, as if 
 the testator had done a trespass whereupon he ought to have 
 made restitution, that is to say, that he to whom the bequest 
 is made, is bound to make the amends for the trespass : for 
 it should be no discharge to him to pay it again to the exec- 
 utors without they paid it over, and it were uncertain to 
 him whether they should pay it or not. And therefore to 
 be out of peril, it is necessary that he pay it himself, and 
 then he is surely discharged against all men. 
 
 Chap. XII. — The tenth question of the student. 
 
 A man seised of certain land in his demesne as of fee, 
 hath issue two sons, and died seised, after whose death a 
 stranger abateth, and taketh the profits, and after the eldest 
 son dieth without issue, and his brother bringeth an assize 
 of mortdanccstor as son and heir to his father, not making 
 mention of his brother, and recovereth the land with dam- 
 ages from the death of his father, as he may well by the 
 law :* whether in this case is the younger brother bound in 
 conscience to pay to the executors of the eldest brother the 
 value of the profits of the said land that belonged to the 
 eldest brother in his life, or not? 
 
 Doct. What is thine opinion therein? 
 
 Stud. That like as the said profits belonged of right to 
 the eldest brother in his life, and that he had lull authority 
 to have released as well the right of the said land as of the 
 said profits, which release should have been a clear bar to 
 the younger brother for ever ; that the right of the said 
 
 *2 Inst. 2S7.
 
 Dialogue II. — Chap. 12. 137 
 
 damages, which be in the law but a chattel, belong to his 
 executors, and not to the heir:* for no manner of chattel, 
 neither real nor personal, shall after the law of the realm 
 descend unto the heir. 
 
 Doct. Thou saidest in the case next before, that it is not 
 of the law of reason, that a man shall make executors, and 
 dispose of his goods by his will, and that the executors 
 shall have the goods to dispose, but by the law of man ; 
 and if it be left to the determination of the law of man, that 
 in such cases as the law giveth such chattels unto the exec- 
 utors, they shall have good right unto them, and in such 
 cases as the law taketh such chattels from them, they been 
 rightfully taken from them : and therefore it is thought by 
 many, that if a man sue a writ of Right of Wa?'d of a 
 ward, that he hath by his own fee, and dieth hanging the 
 writ, and his heir sue a re-summons, according to the stat- 
 ute of Westminster 2, and recovereth ;f that in that case 
 the heir shall enjoy the wardship against the executors, and 
 yet it is but a chattel. And they take the reason to be, be- 
 cause of the said statute. And so it might be ordained by 
 statute, that all wards shall go to the heirs, and not to the 
 executors. Right so in this case, sith the law is such, that 
 the younger brother shall in this case have an assize of 
 mortdancestor\ as heir to his father, not making any men- 
 tion of his elder brother, and recover damages as well in 
 
 Ante, z\ : Office of Exec. 53, 57, 58, 59. 
 
 t 2 In-t, 441 : ante. 27. 
 
 X On an assize of mortdancestor, Mr. Justice Blackstone has the following 
 observation (3 B. C. iS7^ : " It was always says he held to be law, thai 
 where lands were devisable in a man's last will by the custom of the place, 
 there an assize of mortdancestor did not lie. For where land- were so de- 
 visable, the right of possession could never be determined by a pro 
 which enquired only of these two points, the seisin of the ancestor and the 
 heirship of the demandant, and hence it might be reasonable to conclude, 
 that when the statute of Will-. 32 II 8, C 1. made all socage lands de- 
 visable, an assize of mortdancestor no longer could be brought of land- 
 held in socage; an ! that now since the -tat. 12 Cha. 2. e. J4, which con- 
 verts all tenures (a few only excepted into free and common socage, it 
 should follow that no assize of mortdancestor can be brought of any iands 
 in the kingdom.'*
 
 138 Doctor and Student. 
 
 the time of his brother as in his own time ;* it appeareth that 
 the law giveth the right of these damages to the heir, and 
 therefore no recompence ought to be made to the executors, 
 as me seemeth. And it is not like to the writ of Aiel,f 
 where, as I have learned in Latin, (sith our first dialogue) 
 the demandant shall recover damages only from the death 
 of his father, if he overlive the Aiel :f and the cause is, for 
 that the demandant, though his Aiel overlived his father, 
 must of necessity make his conveyance by his father, and 
 must make himself son and heir to his father, and cousin 
 and heir to his Aiel ;§ and therefore in that case, if the 
 father overlived the Aiel, the abator were bounden in con- 
 science to restore to the executors of the father the profits 
 run in his time (for no law taketh them from him) ; but 
 otherwise it is in this case as me seemeth. ' 
 
 Stud If the younger brother in this case had entered 
 into the land without taking any assize of mortdancesto?', 
 as he might if he would, to whom were the abator then 
 bounden to make restitution for those profits, as thou think- 
 est? 
 
 Doct. To the executors of the eldest brother ; for in that 
 'Case there is no law that taketh them from them, and there- 
 fore the general ground, which is that all chattels shall go 
 to the executors, holdeth in that case ; but in this case that 
 ground is broken and holdeth not, for the reason that I have 
 made before. For commonly there is no general ground 
 in the law so sure, but it faileth in some particular case. 
 
 Chap. XIII. — The eleventh question of the student 
 
 Stud. A man seised of land in fee taketh a wife, and 
 after alieneth the land, and dieth, after whose death his wife 
 asketh her dower, and the alienee refuseth to assign it unto 
 
 * 2 Inst. 2S7. 
 
 t Since an ejtctment has been introduced, the writ of Aiel has fallen into 
 disuse. 
 
 \ 2 Inst. 288. 
 §Ib.
 
 Dialogue II. — Chap. 13. 139 
 
 her, but after she asketh her dower again, and he assign- 
 eth it unto her : whether is the alienee in this case bound in 
 conscience to give the woman damages for the profits of the 
 land after her third part from the death of her husband, or 
 from the first request of her dower, or neither the one nor 
 the other. 
 
 Doct. What is the law in this case? 
 
 Stud. By the law the woman shall recover no damages ;* 
 for at the common law the demandant in a writ of dower 
 should never have recovered damages ; but by the statute 
 of Merton,f it is ordained, that where the husband die'th 
 seised, that the woman shall recover damages,:}: which is 
 understood the profits of the land sith the death of her hus- 
 band, and such damages as she hath by the forbearing of 
 it.§ But in this case the husband died not seised, where- 
 fore she shall recover no damages by the law.|| 
 
 Doct. Yet the law is, that immediately after the death of 
 her husband the wife ought of right to have her dower, if 
 she ask it; though her husband die not seised. 
 
 Stud. That is true. 
 
 Doct. And sith she ought to have her dower from the 
 death of her husband, it seemeth that she ought in con- 
 science to have also the profits from the death of her hus- 
 band, though she have no remedy to come to them by the 
 law ;1T for methinketh that this case is like to a case that thou 
 puttestin our first dialogue in Latin, the seventeenth chapter. 
 That if a tenant for term of life be disseised and die. and 
 the disseisor dieth, and his heir entereth and taketh the 
 profits, and after he in the reversion recovereth the lands 
 against the heir, as he ought to do by the law, that in that 
 case he shall recover no damages by the law ; and yet thou 
 didst agree, that in that case the heir is bound in conscience 
 
 *2 Inst. 30; Co. Litt. 33. 
 t 20 II. 3, C. I. 
 J Dyer, 2S4. 
 
 § And by the statute of Gloucester, 6 Ed. i, e. 1, she is intitled to costs 
 as well as damages. 
 || Co. Litt. 32. 
 ^ lb
 
 140 Doctor and Student. 
 
 to pay the damages to the demandant : and so methinketh 
 in this case that the feoffee ought in conscience to pay the 
 damages from the death of her husband, seeing that im- 
 mediately after his death she ought to have her dower. 
 
 Stud. Though she ought to be indovved immediately 
 after the death of her husband, yet she can lay no default 
 in the feoffee till she demand her dower upon the ground, 
 and that the tenant be not there to assign it, or if .he be 
 there, that he will not assign it;* for he that hath the pos- 
 session of land whereunto any woman hath title of dower, 
 hath good authority as against her to take the profits till she 
 require her dower ; for every woman that demandeth dower 
 affirmeth the possession of the tenant as against her : and 
 therefore although she recover bv action, she leaveth the 
 reversion alway in him against whom she recovereth, 
 though he be a disseisor, and bringeth not the reversion by 
 her recovery to him that hath right, as other tenants for 
 term of life do. And for this reason it is that the tenant in 
 a writ of dower, where the husband died seised, if he ap- 
 pear the first day, may say, to excuse himself of damages, f 
 that he is, and all times hath been ready to yield dower if 
 it had been demanded; and so he shall not be received to 
 do in a writ of coisnage,t neither in the case that thou re- 
 memberest above : for in both cases the tenants be supposed 
 by the writ to be wrong-doers, but it is not so in this case ; 
 and so methinketh it is quite clear that the feoffee in this 
 case shall never be bound by law nor conscience to yield 
 damages for the time that passed before the request, but for 
 the time after the request is greater doubt ;§ howbeit some 
 think him there not bound to yield damages, because his 
 title is good, as is said before, and that it is her default that 
 she brought not her action. 
 
 Doct. As unto the time before the request I hold me con- 
 tent with thine opinion, so that he assign the dower when 
 
 * Co. Litt. 32. 
 
 t Br. Dair.ages, pi 79; Co. Litt. 32, ^. 
 
 X This writ, like that of Aiel, is now grown quite out of use. 
 
 §Jenk. 45, pi. 85; Co. Litt. 32.
 
 Dialogue II. — Chap. 13. 141 
 
 he is required : but when lie refuseth to assign it, then I 
 think him bound in conscience to yield damages for both 
 times, though she shall none recover by the law. And 
 first, as lor the time after the refusal, it appeareth evidently, 
 that when he denied to assign her dower he did against con- 
 science ; for he did not that he ought to have done by the 
 law, ne as he would should have been done to him : and so 
 alter the request he holdeth her dower from her wrongfully, 
 and ought in conscience to yield damages therefore. And 
 as to the default that thou assignest in her, that she took not 
 her action, that forceth little ; for actions need not but where 
 the party will not do that he ought to do of right; and for 
 that he ought of right to have done, and did it not, he can 
 take no advantage. And then as to the damages before the 
 request, methinketh him also bounden to pay them; for 
 when he was required to assign dower, and refused, it ap- 
 peareth that he never intended to yield dower from the be- 
 ginning, and so he is a wrong-doer in his own conscience. 
 And moreover, if the husband die seised, the law is such, 
 that if the tenant refuse to assign dower when he is required, 
 wherefore the woman bringeth a writ of dower against him, 
 that in that case the woman shall recover damages as well 
 for the time before the request as after ; and yet he ought not 
 in that case, after thine opinion, to have yielded any man- 
 ner of damages, if he had been ready to assign dower when 
 it was demanded, as some think here. 
 
 Stud. The cause in the ease that thou hast put is, for that 
 the statute is general, that the demandant shall recover 
 damages where the husband died seised, and that statute 
 hath been alway construed, that where the tenant may not 
 say that he is and hath been ready alway to yield dower, 
 etc., that the demandant shall recover damages from the 
 death of her husband.* But in that case there is no law 
 of the realm that helpeth lor the demandant, neither com- 
 mon law nor statute. And furthermore, though it mi 
 be proved by his refusal, that he never intended from the 
 
 • Co Litt 32.
 
 142 Doctor and Student. 
 
 death of the husband to assign her dower; yet that proveth 
 not but that he had good right to take the profits of her 
 third part for the time, as well as he had of his own two 
 parts, till request be made, as is aforesaid : and so me- 
 thinketh that, notwithstanding the denial, he is not bound 
 to yield damages in this case, but for the time of the re- 
 quest, and not for the time before. 
 
 Doct. For this time I am content with thy reason. 
 
 Chap. XIV. — The twelfth question of the student. 
 
 Stud. A man seised of certain lands, knowing that an- 
 other hath oood right and title to them, levieth a fine with 
 proclamation, to the intent he would extinct the right of the 
 other man, and the other man maketh no claim within the 
 five years : whether may he that levied the fine hold the 
 land in conscience, as he may do by the law?* 
 
 Doct. By this question it seemeth that thou dost agree, 
 that if he that levied the fine had no knowledge of the other 
 man's right, that his right should then be extincted by the 
 fine in conscience. 
 
 Stud. Yes, verily ; for thou didst shew a reasonable 
 cause why it should be so, in our first dialogue in Latin, 
 the twenty-fourth chapter, as there appeareth. But if he 
 that levied a fine, and that would extinct the right of an- 
 other, knew that the other had more right than he, then I 
 doubt therein : for I take thine opinion in the first dialogue 
 to be understood in conscience, where he that would ex- 
 tinct former rights by such a fine by proclamation, knoweth 
 not of an)' former title, but for his more surety, if any such 
 former right be, taketh the remedy that is ordained by the 
 law. 
 
 Doct. Whether dost thou mean in this case that thou 
 puttest now, that lie that hath right knoweth of the fine, 
 wilfully letting the Wva years pass without claim, or that he 
 knoweth not anything of the fine? 
 
 * Ante, 65, no.
 
 Dialogue II. — Chap. 15. 143 
 
 Stud. I pray thee let me know thine opinion in both 
 cases, and whether thou think that he that hath right be 
 barred in either of the said cases by conscience, as he is by 
 the law, or not? 
 
 Doct. I will with good-will hereafter shew thee mv mind 
 therein : but at this time I pray thee give a little sparing, 
 and proceed now for this time to some other question. 
 
 Chap. XV. — The thirteenth question of the student. 
 
 Stud. A man seised of certain land, in lee hath a daugh- 
 ter, which is his heir apparent, the daughter taketh an 
 husband, and they have issue ; the father dieth seised, and 
 the husband as soon as he heareth of his death goeth toward 
 the land to take possession, and before he can come there 
 his wile dieth : whether ought he to have the land in con- 
 science tor term of his life as tenant by the courtesy,* be- 
 cause he hath done that in him was, to have had possession 
 in his wife's life, so that he might have been tenant by the 
 courtesy according to the law ; or that he shall neither have 
 it by the law nor conscience? 
 
 Doct. Is it clearly liolden in the law, that he shall not 
 be tenant by the courtesy in this case, because he had not 
 possession in deed? 
 
 Stud. Yea, verilv, and yet upon a possession in law a 
 woman shall have her dower ;t but no man shall be tenant 
 bv the courtesv of land without his wife have possession in 
 deed. \ 
 
 Doct. A man shall he tenant by the courtesy of a rent 
 though his wife die before the day of payment, § and in 
 like wise of an advowson|| though she die before the avoid- 
 ance. 1[ 
 
 Perk., sec. 45S. 
 tCo- Litt. 31. 
 I Finch Law, 129. 
 § Co. Litt. 29. 
 || 2 B. C. 127. 
 
 * A nd Mr. Perkins thinks that notwithstanding the advowson becomes 
 void during the coverture, and the wife dies after the six months past, and
 
 144 Doctor and Student. 
 
 Stud. That is truth ; for the old custom and maxim of the 
 law is, that he shall be so : but of land there is no maxim 
 that serveth him, but his wife have possession in deed. 
 
 Doct. And what is the reason that there is such a maxim 
 in the law of the rent, and of the aclvowson, rather than of 
 land, when the husband doth as much as in him is, to have 
 possession, and cannot? 
 
 Stud. Some assign the reason to be, because it is im- 
 possible to have possession in deed of the rent, or of ad- 
 vowson,* before the day of payment of the rent, or before 
 the avoidance of the advowson. 
 
 Doct. And so it is impossible that he should have posses- 
 sion in deed of land, if his wife die so soon that he may not 
 by a possibility come to the land after his father's death, 
 and in her life, as the case is. 
 
 Stud. The law is such as I have shewed thee before : 
 and I lake the very cause to be, for that there is a maxim 
 serveth for the rent and the advowson, and not for the lands, 
 as I have said before : and, as it is said in the eighth chap- 
 ter of our first dialogue, f it is not alway necessary to assign 
 a reason or consideration why the maxims oi the law of 
 England were first ordained and admitted for maxims ; but 
 it sufficeth that they have been always taken for law, and 
 that they be neither contrary to the law of reason, nor to 
 the law of God, as this maxim is not :% and therefore, if the 
 husband in this case be not holpen by conscience, he can- 
 not be holpen by the law. 
 
 Doct. And if the law help him not, conscience cannot 
 help him in this case; for conscience must always be 
 grounded upon some law ; and it cannot in this case be 
 
 before any presentment by the husband, and the ordinary presents by lapse 
 unto the advowson, that the husband shall still be tenant by courtesy. 
 Perk., sec. 46S, but I do not apprehend there is any authority in support of 
 this opinion. Indeed it seems to be rather an extraordinary one, as the 
 laches of the husband must certainly be a capital objection against his 
 claim. 
 
 * Kelw. 104 ; 1 Co. 97. 
 
 f Ante, 26. 
 
 J Ante, 79.
 
 Dialogue II. — Chap. 15. 145 
 
 grounded upon the law of reason, nor upon the law of God ; 
 for it is not directly by those laws that a man shall be ten- 
 ant by courtesy, but by the custom of the realm ;* and 
 therefore if the custom help him not, he can nothing have 
 in this case by conscience ; for conscience never resisteth 
 the law of man, nor addeth nothing to it, but where the law 
 of mafi is in itself directly against the law of reason, or else 
 the law of God, and then properly it cannot be called a law, 
 but a corruption :| or where the general grounds of the law 
 of man work in any particular case against the said laws, 
 as it may do, and yet the law good, as it appearelh in divers 
 places in our first dialogue in Latin ; or else where there is 
 no law of man provided for him that hath right to a thing 
 by the law of reason, or by the law of God: and then 
 sometime there is remedy given to execute that in con- 
 science, as by a subpoena, but not in all cases ;% for some- 
 time, it shall be referred to the conscience of the party, and 
 upon this ground, that is to say, that when there is no title 
 given by the Common law, that there is no title by con- 
 science. There be divers other cases, whereof I shall put 
 some for an example : As if a reversion be granted unto 
 one, but there is no attornment, or if a new rent be granted 
 by word without deed ;§ there is no remedy by conscience, 
 unless the said giants were made upon consideration of 
 money, or such other. And in like wise where he that is 
 seised of lands in fee-simple maketh a will thereof, || that 
 will is void in conscience, because the ground serveth not 
 for him whereby the conscience should take effect, that is 
 to say, the law. And if the tenant make a feoffment of the 
 land that he holdeth by priority, ami taketh estate again 
 and dieth, (his heir within age) the lord of whom the land 
 was first holden by priority shall have no remedy for the 
 
 Ante, 20. 
 f Ante, 11, 53. 
 X Ante, 39. 
 
 §Litt., sec. 567. ;6S ; ante, 30. 
 || Ante. 23, 58. 
 IO
 
 146 Doctor and Student. 
 
 body by conscience;* for the law that first was with him, 
 is now against him, and therefore conscience is altered in 
 like wise as the law altereth. And divers and many cases 
 like be in the law, that were too long to rehearse now. 
 And thus methinketh, that if the law be as thou sayest, the 
 husband in this case hath neither right by the law nor 
 conscience. * 
 
 Chap. XVI. — The fourteenth question of the student. 
 
 Stud. A rent is granted to a man in fee to perceive of two 
 acres of land, and after the grantor enfeoffeth the grantee 
 of one of the said acres ;f whether is the whole rent extinct 
 thereby in conscience, as it is in the law? 
 
 Doct. This case is somewhat uncertain : for it appeareth 
 . not whether the grantor enfeoffed him on trust, or that he 
 crave the acre to him of his mere motion to the use of the 
 said feoffee \% or else that the feoffment was made upon a 
 bargain : and if it were but only a feoffment of trust, then 
 I think the whole rent abideth in conscience, though it be 
 extincted in law. And first, That it continueth in that case 
 in conscience for the part that the grantee hath to the use 
 of the grantor, it is evident, for he may take the profits of 
 the land, and it is against conscience that he should leese 
 both. And in like wise it abideth in conscience for the 
 acre that remaineth in the hands of the grantor, though it 
 be extinct in the law : for there was a default in the grantor 
 that he would make a feoffment to the grantee, as well as 
 there was in the grantee, to take it ; and it is no conscience 
 that of his own default he should take so great avail, to be 
 discharged of the whole rent, seeing that the feoffment was 
 made to his own use. And it the feoffment were made 
 upon a bargain, and a contract between them, then it is to 
 see whether they remembered the rent in their bargain, or 
 
 *Vin. Abr., title Guardian and Ward, 166; ante, 27. 
 tLitt.. sec 222; Wood's Inst. 205; 
 J P08t 152.
 
 Dialogue II. — Chap. 16. 147 
 
 that they remembered it not; and if they remembered it in 
 their bargain and contract, then conscience mnst follow the 
 bargain : and thus, If they agreed that the grantee should 
 have the rent after the portion in the other acre, then by 
 conscience he ought to have it, though it be extincted in 
 the law ; and if they agreed that the whole rent should be 
 extirrct, and made their price according, then it is extinct 
 in law and conscience ; and if they clearly forgot it, and 
 made no mention of it, or, for lack of cunning, took the law 
 to be that it should continue in the other acre after the por- 
 tion, and made their price according, pondering only the 
 value of the acre that was sold, then methinketh it doth 
 continue in conscience after the portion ; and if the feoff- 
 ment were made to the use of the grantee, then it seemeth 
 the whole rent is extinct in law and conscience. 
 
 Stud. Then take this to be the case, that is to say, that 
 the feoffment Mas made to the use of the grantee. 
 
 Doct. What is thine opinion therein? 
 
 Stud. Then the rent should abide in conscience after the 
 portion of the acre remaining in the hands of the grantor, 
 notwithstanding it be extinct in the law. 
 
 Doct. Then shew me thine opinion in this that I shall 
 csk thee : Ol what law is it, that grants of rent, and of such 
 other profits out of lands may be made, and that they shall 
 be good and effectual to the grantees? Whether it be by 
 the law of reason, or by the law of God, or by the custom 
 and law of the realm? 
 
 Stud. I think it is by the law of reason : for by the same 
 reason that a man may give away all his lands, lie may, as 
 it seemeth, give away the profits thereof, or grant a rent 
 out of the land, if he will. 
 
 Doct. But then by what law is it that a man may give 
 away his lands? I trow by none other law but by the cus- 
 tom bf the realm ; for by statute all alienations and grants 
 of lands may be prohibited : and then that reason proveth not 
 that grants of the profits of land, or of a rent, should be 
 good, because he may alien the land, if alienation of land be
 
 148 Doctor and StudenaT. 
 
 \ 
 
 by custom, and not by the law of reason, \* as I suppose it 
 is, whereof I have touched somewhat in our first dialogue 
 in Latin, the nineteenth chapter. And also if grants should) 
 have their effect by the law of reason, them reason would 
 they should be good by the only word of the grantor, as 
 well as by his dwd ; and that is not so, for without deed 
 the grant of rent is void in law ; and so methinketh, that 
 grants have their effects only by the law of the realm. f 
 
 Stud. Admit it be so, what meanest thou thereby? 
 
 Doct. I shall shew thee hereafter, as I shall shew thee 
 the cause why I think the rent is ext.nct in conscience as 
 well as in law. And first, as I take it, the reason why it is 
 extinct in the law, is because the rent by the first grant was 
 going out of both acres, and was not going part out of the 
 one acre, and part out of the other, but the whole rent was 
 going out of both \\ and then when the grantee of his own 
 folly will take estate in the one acre, whereby that acre be 
 discharged, then the other acre also must be discharged, 
 unless it should be apportioned ; and the law will not that 
 any apportionment should be in that case;§ but rather in- 
 somuch as the party hath by his own act discharged the 
 one acre, the law discharged also the other, rather than to 
 suffer the other acre to be charged contrary to the form of 
 the grant :|| for this rent beginneth all by the act of the 
 party ; and, as I have heard, it is called, A rent against 
 common rights Wherefore i,t is not favoured in the law, 
 as a rent-service is: and then methinketh, that forasmuch 
 
 Post. 155. 
 
 t2 Roll. Abr. 62; Shop. Touch. 22S. 
 
 \ Co. Litt. 147. 
 
 § Yet it seems that a rent-charge may be apportioned by the act of the 
 party, as if a man hath a rent-charge of 205. he may release to the tenant 
 of the land 10s. ormore or less, and reserve part; for the grantee meddles 
 only with that which is his own, viz., the rent and not with the land. Co. 
 Litt. 1*48. 
 
 || But if the grantor by ^-^d reciting the purchase had granted that the 
 grantee should distrain for the same rent in the residue of the land, the 
 whole rent-charge had been preserved, because such power of distress had 
 amounted to a new grant. Co. Litt. 147. 
 
 ^j Litt., sec. 222.
 
 Dialogue II. — Chap. 16. 149 
 
 as it is not grounded by the law of Reason, that grants of 
 rent should be made out of land, but bV custom and law of 
 the realm, as 1 have said before, that so in like wise it re- 
 mained* to the law and custom of the realm to determine 
 how long such rents shall continue.* And when the- law 
 judgeth such rent to be void, I suppose that so doth con- 
 science also, except the judgment of the: law he against the 
 law of reason, or the law of God, as it is not in this case. 
 For in this case, he that taketh the teoffment hatn profit by 
 the feoffment, and knoweth that he hath such a rent out of 
 the land, and that this purchase should extinct it, w.'u n by 
 it appeareth that he assented unto the law, whereto he was 
 not compelled, and that is his own act, and his own default 
 so to do, which shall extinct his whole rent as well in con- 
 science as in law. But if he have no profit of the land, or 
 be ignorant that he hath such a rent out of the land, which 
 is called Ignorance of the deed, or if he be ignorant that 
 the law would extinct his whole rent thereby, which is 
 called Ignorance of the law, then methinketh it remaineth 
 in conscience alter the portion. 
 
 Stud. Ignorance of the law,f or of the deed, helpeth not 
 but in few cases in the law of England.:; 
 
 Doct. And therefore it must be reformed by conscience, 
 that is to say, by the law of reason. For when the general 
 maxims of the law be in any particular cases against t lie 
 law of reason, as this maxim seemeth to be, because it ex- 
 ceptelh not them that be ignorant, though it be an ignorance 
 invincible ;§ then doth it not agree with the law of reason. 
 
 Stud. Methinketh that ignorance in this case helpeth 
 little. For when a man buyeth any land, or taketh it of 
 the gift of any other, he taketh it at his peril, so that if the 
 title be no good, ignorance cannot help,|| for the buyer 
 
 : Ante, 14S. 
 
 f Douglas Rep. 471 ; 
 
 J Ante, 77; ;.ost., chap. 46. 
 
 § lb. 
 
 || Taiurn c/rttrrc, whether a court of equity will not relieve a purchaser 
 for a valuable consideration, who used all pos-ible means to find out in-
 
 150 Doctor and Student. 
 
 must beware what he buyeth : and so in this case, if the 
 taking of an acre should extinct the whole rent in con- 
 science, if he were not ignorant, so methinketh it should in 
 like wise extinci it also, though he be ignorant of the law, 
 or of the deed ; for every man must be compelled to take 
 notice of his own title, and out of what land his rent is 
 going, and so methinketh ignorance is but little to be con- 
 sidered in this case. 
 
 Doct. If a man buy land, or taketh it of the gift of an- 
 other, it is reason that he take it with the peril, though he 
 be ignorant that another hath right ;* for it were not stand- 
 ing with reason that his ignorance should extinct the right 
 of anodier : but in this case there is no doubt of the right 
 ot the land, but all the doubt is how the rent shall be or- 
 dered in conscience, if he that hath the rent take part of 
 the land : and therein is great diversity between him that 
 is ignorant in the law, and him that knoweth the law, and 
 knoweth well also that he hath a rent out of the land, and 
 other. For I put case, he asked counsel of the grantor 
 himself therein, and he saying as he thought, told him, that 
 the taking of the one acre should not extinct the rent but 
 for the portion, and so he thinking the law to be, took the 
 other acre of his gift : is it not reasonable in that case, that 
 the ignorance should save the rent in conscience? 
 
 Stud. Ves, for there the grantor himself is party to his 
 ignorance, and in manner the cause thereof. 
 
 Doct. And methinketh all is one if any other had shewed 
 him so, or if he asked no counsel at all ; for methinketh it 
 sufficeth in this case that he be ignorant of the law : for 
 why? it is more hard in this case to prove the rent should 
 be extinct in conscience, tho' he knew it should be extinct 
 in the law, than to prove that it continueth in conscience 
 alter the portion, if he be ignorant; and thou thyself wert 
 of the same opinion, as it appeareth in the beginning ot' 
 
 ciimb ranees affeeting Ids title, but it afterward proves to be bad through 
 some latent eircumstances vvhieh he eould not well inform himself of. See 
 2 I. 1525 R. Eq. Ca. 37; Gary's Rep. 132, 133. 
 Ante, [49.
 
 Dialogue II. — Chap. 17. 151 
 
 this present chapter.* But if the opinion were true, it 
 would he hard to prove but that the said general maxim 
 were wholly against reason, and then it were void. But I 
 have sufficiently answered thereto, as me seemeth, and that 
 it is extinct in the law, and also in conscience, except ig- 
 norance help it to be apportioned. And moreover, foras- 
 much as apportionment is suffered in the law, where part 
 of the land descendeth to the grantee, because no default 
 can be assigned in him : j some think no default can be as- 
 signed in him in conscience, when he is ignorant of the law, 
 or of the deed, though such ignorance do not excuse in the 
 law of the realm. 
 
 Stud. I am content with thy opinion in his behalf at this 
 time. 
 
 Chap. XVII. — The fifteenth question of the student. 
 
 A man granteth a rent-charge out of two acres of land, 
 and after the grantor enfeoffeth H. H. in one of the said 
 two acres to the use of the said H. H. and of his heirs, % 
 and after the said II . Hart, intending to extinct all the rent 
 causeth the said acre to be recovered against him to his own 
 use in a writ of Entry in le post, in the name of the grantee, 
 and ot others, after the common course, the grantee not 
 knowing of it, and by force of the said recovery the other 
 demandants enter, and die living the grantee, so that the 
 grantor is seised of all by the survivor to the use of the 
 said H. H., whether is the said rent extinct in conscience 
 in part or in all, or no part? 
 
 Doct. I am in doubt of the law in this case. 
 
 Stud. In what point? 
 
 Doct. Whether the whole rent be going out of the acre 
 that remaineth in the hands of the grantor, because the 
 grantee cometh to the land by way of recovery ; or that 
 it shall be extinct in law but after the portion, because the 
 
 Ante, 146. 
 t Litt., sco. 224. 
 J Co. Litt. [48.
 
 152 Doctor and Student. 
 
 grantee hath not the acre to his own use ; or that the whole 
 rent shall be extinct in the law ? 
 
 Stud. The rent cannot be whole going out of the acre 
 that the grantor hath :* for this recovery is upon a feigned 
 title ; and the grantor, because he is a stranger to it, shal? 
 be well received to falsify it.f But if the recovery had been 
 upon a true title, then it had been as thou sayest ; if the 
 grantee recover the one acre against the grantor upon the 
 true title, the grantor shall pay the whole rent out of the 
 land that remaineth in his hands. J And as to the use, it 
 maketh no matter to the grantor, as to the law, in whom 
 the use be ; for the possession without the use extinguished 
 the whole rent as against him, in the law, as well as if the 
 possession and use were both joined together in the grantee. 
 
 Doct. Then methinketh that the said Henry Hart is bound 
 in conscience to pay the grantee the rent after the portion 
 of that acre that was recovered ; for it cannot stand with 
 conscience that he should lose his rent, and have no profits 
 of the land? 
 
 Stud. Then of whom shall he have the other portion of 
 his rent? 
 
 Doct. Is the law clear, that the acre that the grantor hath 
 shall be in this case discharged in the law? 
 
 Stud. I take the law so. 
 
 Doct. And what in conscience? 
 
 Stud. As against the grantor, methinketh also it is ex- 
 tinct in conscience, for the reason that thou hast made in 
 the sixteenth chapter. § For it is all one in conscience in 
 this case as against the grantor, whether the recovery were 
 to the use of the grantee or not, especially seeing that the 
 grantor is not privy to the recovery : lor the unity of pos- 
 session is the cause of extinguishment of the rent against 
 the grantor, both in law and conscience, wheresoever the use 
 
 C<>. Litt. 14S. 
 t Piggot on Rec. 165. 
 ♦Co. Litt. 148. 
 § Ante, 146.
 
 Dialogue II. — Chap, i 
 
 l S3 
 
 be.* But if the grantor hath been privy to the cause of the 
 extinguishment, as he was in the case that I g put in the last 
 chapter, where the grantor enfeoffed the grantee of one of 
 the acres to the use of the grantee ;f there it is not extinct 
 in conscience in that acre that remaineth in the hands of 
 the grantor, though it be extincted in the law, because he 
 was privy to the extinguishment himself: but he is not in 
 this case, and therefore it is extinct against him in law and 
 conscience. And therefore melhinketh that the grantee 
 shall in conscience have the whole rent of the said Henry 
 Hart, that causeth the said recovery to be had in his name, 
 lor in him was all the default. But it is to be understood, 
 that in all the cases where it is said before in this chapter, 
 or in the chapter next before, J that the rent is extinct in the 
 law, and not in conscience, that in such case all the rem- 
 edies that the party might first have had for the rent at the 
 Common law by distress, assise, or otherwise, are determined , 
 and the party that ought to have the rent in conscience shall 
 be driven to sue for his remedy by subpoena. 
 
 Doct. I am content with thy conceit in this matter for 
 this time. 
 
 Ciiaf. XVIII. — 1 he sixteenth question of the student. 
 
 Stud. A villein is granted to a man for term of life, the 
 villein purchaseth lands to him and to his heirs, the tenant 
 for term ot life entereth ;§ in this case by the law he shall 
 enjoy the lands to him and to his heirs; whether s all he 
 do so in like wise in conscience? 
 
 Doct. Methinketh it first good to see whether it may 
 stand with conscience, that one man may claim another to 
 be his villein, and that he may take from him his lands and 
 goods, and put his body in prison it' he will :)| it seemeth 
 he loveth not his neighbour as himself that doth so to him. 
 
 * Ante, 33. 
 t Ante, 146. 
 
 ;ib. 
 
 §Perk-, sec. 94; Co. Litt. 124. 
 || 26 E. 3, c. 24.
 
 154- Doctor and Student. 
 
 Stud. That law hath been so long used in this realm, 
 and in other also, and hath been admitted so long in the 
 laws of this realm, and in divers other laws also, and hath 
 been affirmed by bishops, abbots, priors ;* and many other 
 men both spiritual and temporal, which have taken ad- 
 vantage by the said laws, and have seized the lands and 
 goods of their villeins thereby, and call it their right in- 
 heritance so to do :f that I think it not good now to make 
 doubt, ne to put it in argument, whether it stand with con- 
 science, or not? And therefore I pray thee, admitting the 
 law in that behalf to stand in conscience, shew me thine 
 opinion in the question that I have made. 
 
 Doct. Is the law clear, that he that hath the villein but 
 only for term of life, shall have the lands that that villein 
 purchaseth in fee to him and to his heirs? 
 
 Stud. Yes, verily I take it so. 
 
 Doct. I should have taken the law otherwise : for if a 
 seigniory be granted to a man for term of life, J and the 
 tenant altourn, and after the land escheat, and the tenant 
 for term of life, entereth, he shall have there none other es- 
 tate in the land than he had in the seifjniorv : and me- 
 thinketh that it should be like law in this case, and that the 
 lord ought to have in the land but such estate as he hath in 
 the villein. 
 
 Stud. The cases be not alike : for in the case of the es- 
 cheat the tenant for term of life of the seigniory hath the 
 lands in lieu of the seigniory, § that is to say, in the place 
 of the seigniory, and the seigniory is clearly extinct : but in 
 this case he hath not the land in lieu of the villein ;|| for he 
 shall have the villein still as he had before, but he hath the 
 lands as a profit come by means of the villein, which he 
 shall have in like case as the villein had them,1T that is to 
 
 * Br. Villeinage, pi. 70. 
 
 f Ante, 29. 
 
 % Br. Villeinage, pi. 70. 
 
 § Co. Litt. 99 
 
 || Perk , sec. 94. 
 
 \ See post., cap. 43; Finch Law. 159,
 
 Dialogue II. — Chap. 18. 155 
 
 say, of all goods and chattels he shall have the whole 
 property, and of a lease for term of years he shall have the 
 whole term, and for term of life he shall have the same es- 
 tate, the lord shall have in the villein during the life of the 
 villein, and of land in fee-simple;* and of an estate-tail 
 that the villein hath, the lord shall have the whole fee-simple, 
 although he had the villein but onlv for term of years, so 
 that he enter or seise according to the law before the vil- 
 lein alien, or else he shall have nothing. | 
 
 Doct. Verilv. and if the law be so, I think conscience 
 followeth the law therein. For admitting that a man may 
 with conscience have another man to be his villein, the 
 judgment of the law in this case (as to determine what es- 
 tate the lord hath in the land by his entry) is neither against 
 the law of reason nor against the law of God, and there- 
 fore conscience must follow the law of the realm. But I 
 pray thee let me make a little digression, to hear thine 
 opinion in another case somewhat pertaining to the ques- 
 tion, and it is this : If an executor have a villein that his 
 testator had for term of years, and he purchaseth lands in 
 fee, and the executor entereth into the land, what estate 
 hath he by his entry? 
 
 Stud. A fee-simple, $ but that shall be to the behoof of 
 the testator, and shall be an asset in his hands. § 
 
 *Co. Litt. 117. 
 
 f Ante, 29. 
 
 X Br. Villeinage, pi. 46. 
 
 § On this chapter I beg leave to offer the following brief observation ; 
 which is, that although villeinage, properly so called, was happily for this 
 countrv, and the cause of civil liberty, abolished by the memorable statute 
 of 12 Car. j. c 24, which we have had occasion to mention in another 
 place; yet there is a proviso in that statute, which declares that it shall 
 not be construed to extend to change or alter any tenure by copy of court 
 roll, or any services incident to that tenure: and from this proviso we may 
 learn, that in the opinion of the legislature copyholds had some connec- 
 tion with the feudal system. Indeed the fact was so; and at this day it 
 may perhaps be said, that copyhold tenure is nothing but pure villeinage 
 divested of its servile appendages by the hand of time. F. X. 15. 25. 
 Custom or prescription is the principal foundation of the immunities which 
 copyholders now enjoy, and is the life of their estates. Co. Com. Co. 204. 
 For though they hold them at the will of the lord like their ancestors the
 
 156 Doctor and Student. 
 
 Docl. Well then, I am content with thy conceit at this 
 time in this case, and I pray thee proceed to another 
 question. 
 
 Stud. Forasmuch as it appeareth in this case, and in 
 some other before, that the knowledge of the law of Eng- 
 land is right necessary for the good ordering of con- 
 science ; I would hear thine opinion, if a man mistake the 
 law, what danger it is in conscience for the mistaking of it. 
 
 Doct. I pray thee put some case in certain thereof that 
 thou doubtest in, and I will with good-will shew thee my 
 mind therein, or else it will be somewhat long, or it can- 
 not be plainly declared, and I would not be tedious in this 
 writing. 
 
 Chap. XIX. — The seventeenth question of the student. 
 
 Stud. A man hath a villein for term of life; the villein 
 purchaseth lands in fee,* as in the case of the last chapter, 
 and the tenant for term of lite entereth, and aiter the villein 
 dieth : he in the reversion pretending that the tenant for 
 term of life hath nothing in the land but for term of life of 
 the villein, asketh counsel of one that sheweth him that he 
 hath good right to the land, and that he may lawfully 
 enter, and through that counsel he in the reversion entereth, 
 by reason of the which entry great suits and expenses fol- 
 low in the law, to the great hurt of both parties : what 
 danger is this to him that gave the counsel? 
 
 Doct. Whether meanest thou that he that gave the 
 counsel gave it willingly against the law, or that he was 
 ignorant of the law ? 
 
 Stud. That he was ignorant of the law : tor if lie knew 
 the law, and gave counsel to the contrary, I think him 
 bound to restitution, both to him against whom he gave the 
 
 villeins, yet observe, it is according to the custom of the manor* lb. And 
 while they perform the services which that custom imposes upon them, 
 flight a nd easy as they are compared with the drudgery of pure villeinage 
 in its original state,) theirproperty is secure from the invasions of the lord, 
 they have a permanency in it, and can call it their own. Co. Co. 58. 
 * Perk., sec. 94; ante, 153
 
 Dialogue IJ. — Chap. 19. 157 
 
 counsel, and also to his client, (if he would not have sued 
 but for his counsel) of all that they he? damnified by it. 
 
 Doct. Then will I vet farther ask thee this question ; 
 whether he of whom he asked counsel gave himself to 
 learning and to have knowledge of the law after his capac- 
 ity ? Or that he took upon him to give counsel, and took 
 no study competent to have learning? For if he did so, I 
 think he be bounden in conscience to restitution of all the 
 costs and damages that he sustained to whom he gave 
 counsel, if he would not have sued but through his counsel, 
 and also to the other party. But if a man that hath taken 
 sufficient study in the law mistake the law in some point 
 that it is hard to come to the knowledge of, he is not 
 bounden to such restitution, for he hath done that in him 
 is : but if such a man knowing the law give counsel 
 against the law, he is bound in conscience to restitution of 
 costs and damages, (as thou hast said before) and also to 
 make amends for the untruth.* 
 
 Stud. What if he ask counsel of one that he knoweth is 
 not learned, and he giveth him counsel in this case to enter, 
 by force whereof he entereth ? 
 
 Doct. Then be they both bound in conscience to restitu- 
 tion ; that is to say, the party, if he be sufficient, and else 
 the counsellor, because he assented, and gave counsel to 
 the wrong. 
 
 Stud. But what is the counsellor in that case bounden to 
 him that he gave counsel to? 
 
 Doct. To nothing : for there was as much default in him 
 that asked the counsel as in him that gave it ; for he asked 
 counsel of him that he knew was ignorant: and in the 
 Other was default for the presumption, that he would t.ike 
 upon him to gne counsel in that he was ignorant in. 
 
 Stud. But what if he that gave the counsel knew not but 
 that he that asked it had trust in him, that he could and 
 would give him good couns< 1. and that he asked counsel 
 
 * And it seems that he is liable to answer in an action of disceit
 
 158 Doctor and Student. 
 
 for to order well his conscience, howbeit that the truth was 
 
 that he could not so do? 
 
 Doct. Then is he that gave the counsel bounden to offer 
 
 to the other amends, but yet the other may not take it in 
 
 conscience. 
 
 Stud. That were somewhat perilous ; for haply he would 
 
 take it, though he have no right to it, except the world be 
 
 well amended. 
 
 Doct. What thinkest thou in that amendment? 
 
 Stud. I trust every man will do now in this world as they 
 
 would be done to, speak as they think, restore where they 
 
 have done wrong, refuse money if they have no right to it, 
 
 though it be offered them, do that they ought to do by con- 
 science, and though that they cannot be compelled to it by 
 no law ; and that none will give counsel but that they shall 
 think to be according to conscience, and if they do, to do 
 what they can to reform it, and not to intermit themselves 
 with such matters as they be ignorant in, but in such cases 
 to send them that ask the counsel to other that they shall 
 think be more cunning than they are. 
 
 Doct. It were veiy well if it were as thou hast said, but, 
 the more pity, it is not alway so ; and especially there is 
 great default in givers of counsel : for some, for their own 
 lucre and profit, "ive counsel to comfort other to sue that 
 they know have no right, but I trust there be but few of 
 them ; and some for dread, some for favour, some for malice, 
 and some upon confederacies, and to have as much done for 
 them another time to hide the truth. An.l some take upon 
 them to give counsel in that they be ignorant in, and yet 
 when they know the truth will not withdraw that they have 
 misdone, for the)' think it should be greatly to their rebuke ; 
 and such persons follow not this counsel, that saith, " That 
 we have unadvisedly done, let us with good advice revoke 
 again." 
 
 Stud. And if a man mve counsel in this realm after as 
 
 o 
 
 his learning and conscience giveth him, and regardeth the 
 laws of the realm, giveth he good counsel? 
 
 Doct. If the law of the realm be not in that case against
 
 Dialogue II. — Chap. 20. 
 
 '59 
 
 the law of God, nor against the law of reason, he giveth 
 good counsel : for every man is bound to follow the law of 
 the country where he is, so it be not against the said laws ;* 
 and so may the cases be, that he may bind himself to res- 
 titution. 
 
 Stud. At this time I will no farther trouble thee in this 
 question. 
 
 Chap. XX. — The eighteenth question of the student. 
 
 If a man of his mere motion give lands to II. Hart, and 
 to his heirs, by indenture, upon a condition, that he shall 
 yearly, at a certain day, pay to John at Stile out of the 
 same land a certain rent, and if he do not, that then it 
 should be lawful to the said John at Stile to enter, etc., if 
 the rent in this case be not payed to John at Stile, whether 
 may the said John at Stile enter into the lands bv con- 
 science, though he may not enter by the law? 
 
 Doct. May he not enter in this case by the law, sith the 
 words of the indenture be that he shall enter? 
 
 Stud. No, verily ; for there is a:i ancient maxim in the 
 law, that no man shall take advantage in a condition, but 
 he that is party or privy to the condition ;f and this man is 
 not party or privy, wherefore he shall have no advantage 
 of it. 
 
 Doct. Though he can have no advantage of it as 
 party, yet because it appeareth evidently that the intent 
 of the giver was, that if he were not payed of the rent, 
 that he should have the: land, it seemeth that in con- 
 science he ought to have it, though he can not have it by 
 the law. 
 
 Stud. In many cases the intent of the party is void to all 
 intents, if it be not grounded according to the law \\ and 
 therefore if a man make a lease to another for term of life, 
 and after of his mere motion he confirm eth his estate for 
 
 ♦Ante, 77. 
 
 fLitt., sec. 347; Dyer, 6, pi. 2; post. 170. 
 
 J 2 Vezej, 24S; ante, 65.
 
 160 Doctor and Student. 
 
 term of life to remain after his death to another, and to his 
 heirs ; in this case that remainder is void in law and con- 
 science : lor by the law there can no remainder depend 
 upon an estate, but that the same estate beginneth at the 
 same time that the remainder doth ;* and in this case the 
 estate began before, and the confirmation enlarged not his 
 estate, nor gave him no new estate. But if a lease be 
 made to a man for term of another man's life, and after the 
 lessor only of his mere motion confirmeth the land to the 
 lessee for the term of his own life, the remainder over in 
 fee ; that is a good remainder in the law and conscience. 
 And so methinketh the intent of the party shall not be re- 
 garded in this case. 
 
 Doct. And in the first case that thou hast put, methinketh 
 though it pass not by way of remainder of that, yet shall it 
 pass as by the way of grant of the reversion ;f for every 
 deed shall be taken most strong against the grantor, and 
 the taking of a deed in this case is an attornment in itself. 
 
 Stud. That cannot be, for he in the remainder is not 
 party to the deed, and therefore it cannot be taken by the 
 way of grant of the reversion ; for no grant can be made 
 but to him that is party to the deed, except it be by way of 
 remainder. % And therefore if a man make a lease for 
 term of life, and after the lessor grant to a stranger that the 
 tenant for term of life shall have the land to him, and to 
 his heirs, that grant is void, if it be made only of his mere 
 motion without recompence. And in like wise, if a man 
 make a lease lor term of life, and after grant the reversion 
 to one for term of life, the remainder over in lee, and the 
 tenant attorneth to him that hath the estate for term of life 
 only, intending that he only should have advantage of the 
 grant ;§ his intent is void, and both || shall take advanlag : 
 
 *2 B. C. 167. 
 |-2 Roll. A br. 56. 
 
 %2 Roll. Abr.68; Hob. 313; Ilutt. 88. 
 § Co. Litt. 310 
 
 || Attornment is now almost rendered unnecessary by statute'. The act 
 of 4 Ann., c 16, s. 9, enacts that all grants or conveyances, by fine or
 
 Dialogue II. — Chap. 20. 161 
 
 thereof, and the attornment shall be taken good, according 
 to the grant. And so in this case, though the feoffor in- 
 tended, that if the rent were not payed, that the stranger 
 should enter; yet because the law giveth him no entry in 
 that case, that intent is void, and the same stranger shall 
 neither enter into the land by law nor conscience. 
 
 Docl. What shall then be done with that land, as thou 
 thinkest, alter the condition broken ? 
 
 Stud. I think the feoffor in this case may lawfully re- 
 enter ; tor when the feoffment was made upon condition 
 that the feoffee would pay a rent to a stranger, in those 
 words is concluded in the law, that if the rent were not 
 paid to the stranger, that the feoffor should re-enter ; for 
 those words, upon condition, imply so much in the law, 
 though it be not expressed. And then when the feoffor 
 went farther, and said that if the rent were not paid, that 
 the stranger should enter, those words were void in the 
 law ; and so the effect of the deed stood upon the first 
 words, whereby the feoffor may re-enter in law and con- 
 science : but if the first words had not been conditional, I 
 would have holden it the greater doubt. 
 
 Doct. I pray thee put the case thereof in certain with 
 such words as he not conditional, that I may the better per- 
 ceive what thou meanest therein. 
 
 otherw se, of any manors, rents, reversions, or remainders, shall be effec- 
 tual without the attornment of any of the tenants, but it provides that no 
 tenant shall he prejudiced by payment of rent to any grantor or conusor, 
 or by breach of any condition tor non-payment of rent, before notice shall 
 be given to him of such grant by the conusee or grantee. And the stat- 
 ute 11 (jeo. 1. c. 10. s. 11, after reciting that the possession of estates is 
 rendered very precarious by the frequent and fraudulent practice of tenants 
 in attorning t<> strangers, who claim title to the estates of their respective 
 landlords or lessors, who are thereby put out of the poss JSsion of their 
 respective estates, and put t.> the difficulty of recovering the same al law, 
 enacts that all such attornments shall he void, and the poss ■ ■! al- 
 
 tered; but it provides that the said act shall not extend to affect any at- 
 tornment made pursuant to any judgment at law. or decree, or order of a 
 court of equity, or made with the privity and consent of the landlord or 
 landlord-, lessor or Lessors, or to any mortgagees after the mortgage is 
 become forfeited. 
 II
 
 i 62 Doctor and Student. 
 
 Chap. XXI. — The nineteenth question of the student. 
 
 A man maketh a feoffment by deed indented, and by the 
 same deed it is agreed, that the feoffee shall pay to A. B. 
 and to his heirs, a certain rent yearh/ at certain days, and 
 that if he pay not the rent, then it is agreed that A. B. or 
 his heirs, shall enter into the land ; and after the feoffee 
 payeth not the rent ; then the question is, who ought in 
 conscience to have this land and rent? 
 
 Doct. Ere we argue what conscience will, let us know 
 first what the law will therein. 
 
 Stud. I think that by the law neither the feoffor ne yet I 
 the said A. B. shall ever enter into the land in this case for 
 non-payment of the rent, tor there is no re-entry in this 
 case given to the feoffor for not payment of the rent, as 
 there is in the case next betore, and the entry that is given 
 to the said A. B. for not payment thereof is void in the law, 
 because he is estrange to the deed, as it appeareth also in 
 the next chapter before.* And therefore methinketh that 
 the greatest doubt in this case is, to see what use this feoff- 
 ment shall be taken. 
 
 Doct. There appeareth in this case as thou hast put it, 
 no consideration ne recompence given to the feoffor, where- 
 upon an)' use may be derived ; and if the case be so indeed, 
 and the feoffor declared never his mind therein, to what use 
 shall it then be taken? 
 
 Stud. I think it shall be taken to be to the use of the 
 feoffee, as long as lie payeth the rent : for there is no rea- 
 son why the feoffee should be busied with payment of the 
 rent, having nothing for his labour: ne it may not conven- 
 iently be taken that the intent of the feoffor was so, except 
 he expressed it ; and then it must be taken that he intended 
 to recompence the feoffee for the business that he should 
 have in the payment over, and by the words following his 
 intent it appeareth to be so, as methinketh ; for if the rent 
 were not payed, he would that A. B. should enter, and so 
 
 * Co. Litt. 213 ; Dyer, 127; ante, 160; Cro. Eliz. 727.
 
 Dialogue II. — Chap. 21. 163 
 
 it seemeth he intended not to have any use himself. And 
 thus, me seemeth, this case should vary from the common 
 case of uses ; that is to say, if a man seised of land make 
 a feoffment thereof, and it appeareth not to what use the 
 feoffment was made, ne it is not upon any bargain or other 
 recompence, then it shall be taken to be to the use of the 
 feoffor ;* except the contrary can be proved by some bar- 
 gain, or other like : or that his intent at the time of the de- 
 livery of seisin was expressed that it should be to the use 
 of the feoffee, or of some other; and then it shall go ac- 
 cording to his intent : but in this case methinketh it shall 
 be taken that his intent was, that it should first be to the use 
 of the feoffee, for the cause before rehearsed, except the 
 contrary can be proved ; and so that knowledge of the in- 
 tent of the feoffor is the greatest certainty for knowledge of 
 the use in this case, as me seemeth. But when the feoffor 
 goeth farther, and saith, That if the rent be not paid, that 
 then the said A. B. should enter into the land ; then it ap- 
 peareth that his intent was that the rent should cease, and 
 that A. B. should enter into the land : and though he may 
 not by those words enter into the land after the rules of the 
 law, and to have freehold, yet those words seem to be suf- 
 ficient to prove that the intent of the feoffor was that he 
 should have the use of the land :f for silh he had the rent 
 to his own use, and not to the use of the feoffor; so it 
 seemeth he shall have the use ot the land that is assigned 
 to him for the payment of the rent. 
 
 Doct. But I am somewhat in doubt, whether he had the 
 rent to his own use : for the intent of the feoffor might be, 
 that he should pay the rent for him to some other, or some 
 other use might be appointed thereof by the feoffor. 
 
 Stud. It" such an intent can be proved, then the intent 
 must be observed : but we be in this case to wit to what use 
 it shall be taken, if the intent of the feoffor cannot be 
 
 Br. Feoffment to uses, pi. 10; Shop. Touch. 477: And. 37, pi. 95; post. 
 
 163. 
 
 t Post 170, 1 7 J.
 
 164 Doctor and Student. 
 
 proved :* and then methinketh it. cannot be otherwise taken, 
 but it shall be to the use of him to whom it should be paid. 
 For though it be called a rent, yet it is no rent in law, rte in 
 the law he shall never have remedy for it, though it were 
 assigned to him, and to his heirs, without condition, neither 
 by distress, by assise, by writ of annuity, nor otherwise ; 
 but he shall be driven to sue in the Chancery for his rem- 
 edy :| and then when he sueth in the Chancery, he must 
 surmise that he ouffht to have it bv conscience, and that he 
 can have no remedy for it in the law. And then, sith he 
 hath no remedy to come to it but by the way of conscience, 
 it seemeth it shall be taken that when he hath recovered it, 
 that lie ought to have it in conscience, and that to his own 
 use, without the contrary can be proved : and if the con- 
 trary can be proved, and that the intent of the feoffor was, 
 that he should dispose it for him as he should appoint, then 
 hath he the rent in use to another use, and so one use should 
 be depending upon another use, which is seldom seen, and 
 shall not be intended till it be proved : and so, sith no mat- 
 ter is here expressed, methinketh the rent shall be taken to 
 be to the use of him that it is paid to, and the land in like 
 wise that is appointed to him for not payment of the said 
 rent shall be also to his use : how thinkest thou will con- 
 science serve therein ? 
 
 Doct. I think that as thou takest the law now, that con- 
 science (in this case) and the law be all one: for the law 
 seercheth the same thing in this case, to know the case that 
 conscience doth, that is to say, the intent of the feoffor. 
 And therefore I would move thee farther in one thing. 
 
 Stud. What is that? 
 
 Doct. That sith the intent of the feoffor shall be so much 
 regarded in this case, why it ought not also to be as much 
 regarded in the case that is in the last chapter next belore 
 this, where the words be conditional, and give the feoffor 
 a title to re-enter. For methinketh, that though the feoffor 
 
 Slicp. Touch. 80; post. 172. 
 t Litt., sec. 345.
 
 Dialogue II. — Chap. 22. 165 
 
 ma)' in that case re-enter for the condition broken, that yet 
 alter this entry he shall be seised of the land after his entry 
 to the use of him to whom the land was assigned by the 
 said indenture lor lack of payment of the rent, because the 
 intent of the feoffor shall be taken to be so in that case as 
 well as in this. And I pray thee let me know thy mind 
 what diversity thou pattest between them. 
 
 Stud. Thou drivest me now to a narrow diversity, but 
 yet I will answer thee therein as well as I can. 
 
 Doc/. But first, ere thou shew me that diversity, I pray 
 thee shew me how uses began, and why so much land hath 
 been put in use in this realm as hath been. 
 
 Stud. I will with good-will say as methinketh therein. 
 
 Chap. XXII. — How uses of land first began, and bv what 
 law ; and the cause why so much land is put in use. 
 
 Uses were reserved by a secondary conclusion of the 
 law of reason in this manner: When the general custom 
 of property, whereby every man knew his own goods from 
 his neighbours, was brought in among the people, it follow- 
 eth ot reason, that such lands and goods as a man had, 
 ought not to be taken from him but by his assent, or by 
 order of the law : and then sith it be so, that every man 
 that hath lands hath hereby two things in him, that is to 
 say, the possession of the land, which after the law of Eng- 
 land is called the frank-tenement, or the freehold, and the 
 other is authority to take thereby the profits of the land ;* 
 wherefore it followeth, that he that hath land, and intend- 
 ed) to give only the possession and freehold thereof to an- 
 other, and keep the profits to himself, ought in reason and 
 conscience to have the profits, seeing there is no law made 
 to prohibit, but that in conscience such reservation may be 
 made.f And so when a man maketb a feoffment to another, 
 and intendeth that he himself shall take the protits ; then 
 
 3 c r>. 104 
 
 t GiJb - Law oi t ses, 17^.
 
 1 66 Doctor and Student. 
 
 the feoffee is said seised to his use that so enfeoffed him, 
 that is to say, to the use that he shall have the possession 
 and freehold thereof, as in the law ;* to the intent that the 
 feoffor shall take the profits, f And under this manner, as I 
 suppose, uses of land first began. 
 
 Doct. It seemeth that the reserving of such use is pro- 
 hibited by the law '.% for if a man make a ieoffment, and 
 reserve the profits, or any part of the profit, as the grass, 
 wood, or such other; that reservation is void in the law: 
 and methinketh it is all one to say, that the law judgeth 
 such a thing, if it be done, to be void, and that the law 
 prohibiteth that the thing shall not be done. 
 
 Stud. Truth it is, that such reservation is void in the law, 
 as thou sayest :§ and that is by reason of a maxim in the 
 law, that willeth that such reservation of part of the same 
 thing shall be judged void in the law. But yet the law 
 doth not prohibit that no such reservation shall be made, 
 but if it be made it judgeth of what effect it shall be ; that 
 is to say, that it shall be void ; and so he that maketh such 
 reservation offendeth no law thereby, ne breaketh no law 
 thereby, and therefore the reservation in conscience is good. 
 But if it were prohibit by statute that no man should make 
 such a reservation, ne that no feoffment of trust should be 
 made, but that all the feoffments should be to the use of him 
 to whom possession of the land is given ; then the reser- 
 vation of such uses against the statute should be void, be- 
 cause it were against the law : and yet such a statute should 
 not be a statute against reason, because such uses were first 
 grounded and reserved by the law of reason ; but it should 
 prevent the law of reason, and should put away the con- 
 
 *Gilb. Law of Uses, 17S. 
 
 f As for example, if a feoffment was made to John at Stile and his heirs, 
 to the use and behoof of William at Stile and his heirs, in this case here- 
 tofore John at Stile had the estate and property in the land; but William 
 at Stile had and was to have the profits in equity. Shep. Touch. 477; 
 jute, 58, 120. 
 
 \ Co. Litt. 14-:. 
 
 § Shop. Touch. 78.
 
 Dialogue II. — Chap. 11. 167 
 
 sideration whereupon the law of reason- was grounded be- 
 fore the statute made. And then to the other question, that 
 is to say, why so much land hath been put in use? It will 
 be somewhat long, and peradventure to some tedious, to 
 shew all the causes particularly : but the very cause why 
 the use remained to the feoffor, notwithstanding his own 
 feoffment or fine, and sometime notwithstanding a recovery 
 against him, is all upon one consideration alter the cause 
 and intent of the gift, fine or recovery, as is aforesaid. 
 
 DocL Though reason may serve that upon a feoffment 
 a use may be reserved to the feoffor by the intent of the 
 feoffor against the form of his gift, as thou hast said before ; 
 yet I marvel much how an use may be reserved against a 
 fine, that is one of the highest records that is in the law, 
 and is taken in the law of so high effect, that it should make 
 an end of all strifes ;* or against a recovery, that is ordained 
 in the law for them that be wronged to recover their right 
 by. And methinketh, that great inconvenience and hurt 
 may follow, when such records may Su lightly be avoided 
 by a secret intent or use of the parties, and by a nude and 
 bare averment and matter in deed, and specially sith 
 such a matter in deed may be alledged that is not true, 
 whereby may rise great strife between the parties, and great 
 confusion and uncertainty in the law. But nevertheless, 
 sith our intent is not at this time to treat of that matter, I 
 pray thee touch shortly some of the causes why there hath 
 been so many persons put in estate of lands to the use of 
 others as there have been ; for, as I hear say, few men be sole 
 seised of their own land. 
 
 Stud. There have been many causes thereof, of the which 
 some be put away by divers statutes, and some remain vet.t 
 Wherefore thou shalt understand, that some have put their 
 land in feoffment secretly, to the intent that they that have 
 right to the land should not know against whom to bring 
 
 * Cruise on Fines, 4; ante, S9- 
 
 X 2 B. C. 331, 322 : Gilb. Law ot Uses. 72, 73; stat 7 Rie. 2, c. 9; 4 H 
 4, c. 7; 11 H. 6, c. 31 ; stat< 27 H- S. c. 10.
 
 1 68 Doctor and Student. 
 
 their action, and that is somewhat remedied by divers stat- 
 utes that give actions against pernors and takers of the 
 profits. And sometime such feoffments of trust have been 
 made to have maintenance and bearing of their feoffees, 
 which peradventure were great lords or rulers in the 
 country :* and therefore to put away such maintenance, 
 treble damages be given bv statute against them that make 
 such feoffments for maintenance. And sometime they were 
 made to the use of mortmain, which might then be made 
 without forfeiture, though it were prohibited that the free- 
 hold might not be given in mortmain ; but that is put away 
 by the statute of R. 2.f And sometime they were made 
 to defraud the lords of wards, reliefs, heriots, and of the 
 lands of their villeins : but those points be put away by 
 divers statutes made in the time of king H. the 7th. Some- 
 time they were made to avoid executions upon a statute- 
 staple, statute-merchant, and recognisance : and remedy 
 is provided for that, that a man shall have execution of all 
 such lands as any person is seised of to the use of him that 
 is so bound at the time of execution sued, in the 19th year 
 of H. 7.+ And yet remain feoffments, fines, and recover- 
 ies in use for many other causes, in manner as many as 
 there did before the said estatute. And one cause why they 
 be yet thus used is, to put away tenancy by the courtesy and 
 titles of dower. § Another cause is, for that the lands in 
 use shall not be put in execution upon a statute-staple, stat- 
 ute-merchant, nor recognisance, but such as be in the hands 
 of the recognisor at the time of the execution sued. And 
 sometime lands be put in use, that they should not be put in 
 execution upon a writ of extendi Jacias advalentiam. And 
 sometime such uses be made that he to whose use, etc., may 
 
 •Gilb. Law of Uses, 72, 73. 
 
 t2 B.C. 272; Wood's Inst. 255; Popham, 73; Bac Use of the Law, 
 153 ; Gilb. Law of Uses, 38. 
 
 : See stat. 27 II. 8, c. 10 
 
 :j Perk., sec. 463; 3 Bac. Abr. 221 ; Sbep. Touch. 479; 1 Co. 131, Chud- 
 leigh'g Case.
 
 Dialogue II. — Chap. 22. 169 
 
 declare his will thereon :* and sometime for surity of divers 
 covenants in indentures of marriage and other bargains. 
 And these two last articles be the chief and principal cause 
 why so much land is put in use. Also lands in use be not 
 assets neither in a Formcdon, nor in an action of debt 
 against the heir :f ne they shall not be put in execution by 
 an elegit sued upon a recovery, as some men say.f And 
 these be the very chief causes, as I now remember, why so 
 much land standeth in use as there doth :§ and all the said 
 uses be reserved by the intent of the parties understood or 
 agreed between them, and that many times directly against 
 the words of the feoffment, fine, or recovery : and that is 
 done by the law of reason, as is aforesaid. 
 
 Doc/. May not a use be assigned to a stranger as well as 
 to be reserved to the feoffor, if the feoffor so appointed it 
 upon his feoffment? 
 
 Stud. Yes, as well, and in like wise to the feoffee, and 
 upon that a free gift, without any bargain or recompence, 
 if the feoffor so will. 
 
 Doct. What if no feoffment be made, but that a man 
 grant to his feoffee, that from henceforth he shall stand 
 seised to his own use? Is not that use changed, though 
 there be no recompence? 
 
 Stud. I think yes, for there was an use in esse before 
 
 * 2 B. C. 32S. 
 
 1 1 Cham. Rep. 14S. 
 
 * Shep Touch. 478; Gilb. Law of Uses, 37. 
 
 § It was evidently the intention of the legislature when they made the 
 statute 27 II. S, c. 10, to abolish uses by transferring the possession to 
 the use; but the strict construction of that statute defeated the intent of 
 it, and gave rise to trusts of land too tedious to be here enumerated, ex- 
 actly of the same nature as uses were at Common law. Shep. Touch 
 Allen, t 5 : Stile. 40. Of these uses, which may properly be called chan- 
 cery trusts, intails may b.' made, fines levied, recoveries suffered, and hus- 
 bands be tenants by the courtesy. In short, they are governed nearly by 
 the same rules, and liable to every charge in equity which the legal own- 
 ership is subject to in law. 2 Wms. Rep . • | 1, in the case of Sutton against 
 Sutton. They may be aliened, or liable to debt-, to leases and other in- 
 cumbrances. They have not yet indeed been held subject to dower, nor 
 are they liable to escheat to the lord-
 
 170 Doctor and Student. 
 
 the gift, which he might as lawfully give away, as he 
 might the land if he had it in possession.* 
 
 Doct. And what if a man being seised of land in fee, 
 grant to another of his mere motion, without bargain or re- 
 compence, that he from thenceforth shall be seised to the 
 use of the other ; is not that grant good ? 
 
 Stud. I suppose that it is not good ; for, as I take the 
 law, a man cannot commence an use but by livery of seisin, 
 or upon a bargain, or some other recompence.f 
 
 Doct. I hold me contented with that thou hast said in 
 this chapter for this time ; and I pray thee shew me what 
 diversity thou puttest between those two cases that thou 
 hast before rehearsed in the 20th chapter, and in the 21st 
 chapter of this present book. 
 
 Stud. I will with good-will. 
 
 Chap. XXIII. — The diversity betzveen two cases hereafter 
 following, whereof one is -put in the 20th chapter, and 
 the other in the 21st chapter of this present book. 
 
 The first case of the said two cases is this. % A man 
 maketh a feoffment by a deed indented, upon a condition 
 that the feoffee shall pay certain rent yearly to a stranger, 
 etc., and if he pay it not, that it shall be lawful to the 
 stranger to enter into the land. In this case, I said before 
 in the 20th chapter, that the stranger might not enter, because 
 that he was not privy unto the condition. But I said, that 
 in that case the feoffor might lawfully re-enter by the first 
 words of the indenture, because they imply a condition in 
 the law, and that the other words, that is to say, that the 
 stranger should enter, be void in law and conscience. And 
 therefore I said farther that when the feoffor had re-entered, 
 that lie was seised of the land to his own use, and not to 
 the use of the stranger, though his intent at the making of 
 the feoffment were, that the stranger, after his entry, should 
 
 Post 171. 
 tShep. Touch. 485 . 
 jPerk., sec. 531; Co. Litt. 214; 2 Inst. 516; ante, 159.
 
 Dialogue II. — Chap. 23. 171 
 
 have had the land to his own use, if he might have entered 
 by the law. And the cause why I think that the feoffor 
 was seised in that case to his own use, I shall shew thee 
 afterward. The second case is this; a man maketh a feoff- 
 ment in fee, and it is agreed upon the feoffment, that the 
 feoffor shall pay a yearly rent to a stranger, and if he pay 
 it not, that then the stranger shall enter into the land.* In 
 this case I said, as it appeareth in the said twenty-first 
 chapter,f that if the feoffor paid not the rent, that the 
 stranger should have the use of the land, though he may 
 not by the rules of the law enter into the land. And the 
 diversity between the cases methinketh to be this. In the 
 first case it appeareth, as I have said before in the said 
 twentieth chapter, | that the feoffor might lawfully re-enter 
 by the law for not payment of rent ; and then when he 
 entered according, he by that entry avoided the first liverv 
 of seisin, insomuch that after the re-entry he was seised of 
 the land of like estate as he was before the feoffment ;§ and 
 so remaineth nothing whereupon the stranger might ground 
 his use, but only the bare grant or intent of the feoffor, when 
 he gave the land to the feoffee upon condition that he should 
 pay the rent to the stranger, and if not, that it should be 
 lawful to the stranger to enter : for the teoffment is avoided 
 by the re-entry of the feoffor, as I have said before : and as 
 I said in the last chapter, as I suppose, a nude or bare 
 grant of him that is seised of land is not sufficient to begin 
 an use upon. 
 
 Doct. A bare grant may change an use, as thou thyself 
 agreed in the last chapter : why then may not an use as well 
 begin upon a bare grant? 
 
 Stud. When a use is in esse, he that hath the use may 
 of his mere motion give it away, if he will, without recom- 
 pence, as he might the land, if he had it in possession :|| 
 
 * Ante, 16:, 104. 
 
 t Post. 172; ante, 163. 
 
 % Ante, 161. 
 
 § Post. 172, 173. 
 
 ;i Ante, 169.
 
 172 Doctor and Student. 
 
 but I take it for a ground, that he cannot so begin an use 
 without livery of seisin, or upon a recompence or bargain. 
 And that there is such a ground in the law, that it may not 
 so begin, it appeareth thus. It hath been alway holden for 
 law, that if a man make a deed of feoffment to another, and 
 deliver the deed to him as his deed, that in this case he to 
 whom the deed is delivered hath no title ne meddling with 
 the land afore livery of seisin be made to him, but only that 
 he may enter and occupy the land at the will of the feoffor.* 
 And there is no book saith that the feoffee in that case is 
 seised thereof, before livery to the use of the feoffee. And 
 in like wise, if a man make a deed of feoffment of two acres 
 of land that lie in two shires, intending to give them to the 
 feoffee, and maketh livery of seisin in the one shire, and 
 not in the other ;f in this case it is commonly holden in 
 books, that the deed is void to the acre, where no jivery is 
 made, except it lie within that view, save only that he may 
 enter and occupy at will, as is aforesaid :$ and there is no 
 book that saith that the feoffee should have the use of the 
 other acre ; for if an use passed thereby, then were not the 
 deed void unto all intents ; and yet it appeareth by the words 
 of the deed, that the feoffor gave the lands to the feoffee, 
 but for lack of livery of seisin the gift was void :§ and so 
 methinketh it is here, without livery of seisin be made ac- 
 cording. But in the second case of the said two cases, the 
 feoffor may not re-enter for non-payment of the rent, and 
 so the first livery of seisin continueth and standeth in effect; 
 and thereupon the first use may well begin and take effect 
 in the stronger of the land, when the rent is not paid unto 
 him according to the first agreement. And so methinketh 
 that in the first case; || the use is determined, because the 
 livery of seisin whereupon it commenced is determined : 
 and that in the second case If the use of the land taketh 
 
 Sliep. Touch. 2S1. 
 fPcrk., sec. 127; 2 Roll. Abr. 11. 
 X Shop. Touch. 281 ; ante, 171. 
 § Ante, 23. 
 || Ante, 171 • 
 \ Ante, 163, 170.
 
 Dialogue II. — Chap. 23. 173 
 
 effect in the stranger for not payment of the rent by the 
 grant made at the first liver)-, which yet continueth in his 
 effect : and this methinketh is the diversity between the 
 cases. 
 
 Doct. Yet, notwithstanding the reason that thou hast 
 made, methinketh that if a man seised of lands make a gift 
 thereof by a mule promise, without any livery of seisin, or 
 recompence to him made, and grant that he shall be seised 
 to his use, that though the promise be void in law, that yet 
 nevertheless it must hold and stand good in conscience, and 
 by the law of reason. For one rule of the law of reason 
 is, That we may do nothing against the truth : and sith the 
 truth is, that the owner of the ground hath granted that he 
 shall be seised to the use of the other, that grant must 
 needs stand in effect, or else there is no truth in the grantor. 
 
 Stud. It is not against the truth of the grantor in this 
 case, though by the grant he be not seised to the use of the 
 other; but it proveth that he hath granted that the law will 
 not warrant him to grant, wherefore his grant is void. But 
 if the grantor had gone farther and said, That he would 
 also sutler the other to take the profits of the lands without 
 lett or other interruption, or that he would make him es- 
 tate in tin: laud when he should be required : then I think 
 in those cases he were bound in conscience, by that rule 
 of the law of reason that thou hast remembered, to perform 
 them, if he intend to be bounden by his promise ; for else 
 he should go against his own truth, ami against his own 
 promise. But yet it shall make no use in that case, nor in- 
 to whom the promise is made shall have no action in the law 
 upon that promise', though it be not performed :* for it is 
 called in the law a nude, or naked promise. And thus, 
 methinketh, that in the first casef of the' said two cases, the 
 grant is now avoided in the' law by the re-entry of the 
 feoffor, and that the feoffor is not bounden by his grant. 
 neither in law nor conscience : but in that second case he 
 
 ♦Post. 174; Burr. Rep., part 4, vol. 3. 
 f Ante, 171, 172.
 
 Doctor and Student. 
 
 is bound, so that the use passeth from him, as I have said 
 before. 
 
 Docl. I hold me content with thy conceit for this time, 
 but I pray thee shew me somewhat more at large what is 
 taken for a nude contract, or naked promise, in the laws of 
 England, and where an action may lie thereupon, and 
 where not. 
 
 Stud. I will with good-will say as methinketh therein. 
 
 Chap. XXIV. — What is a nude contract, or naked -prom- 
 ise, after the laws of England, and -whether any action 
 may lie thereon. 
 
 First, it is to be understood, that contracts be grounded 
 upon a custom of the realm, and by the law that is called 
 Jus gentium, and not directly by the law of reason:* for 
 when all things were in common, it needed not to have con- 
 tracts, but after property was brought in, they were right 
 expedient to all people, so that a man might have of his 
 neighbour that he had not of his own ; and that could not 
 be lawfully but by his gift, by way of lending, concord, or 
 by some lease, bargain, or sale; and such bargains and 
 sales be called contracts, and be made by assent of the par- 
 ties upon agreement between them, of goods or lands, for 
 money, or for other recompence, but only of money usual, 
 for money usual is no contract. And also a concord is 
 properly upon an agreement between the parties, with 
 divers articles therein, some rising on the one part, and 
 some on the other. As if John at Stile letteth a chamber 
 to Henry Hart, and it is farther agreed between them, that 
 the said Henry Hart should go to hoard with the said John 
 at Stile, and the said Henry Hart to pay for the chamber 
 and boarding a certain sum, etc., this is properly called a 
 ( Uncord; but it is also a contract, and a good action lieth 
 upon it. Ilowbeit it is not much argued i:i the laws of 
 England what diversity is between a contract, a concord, a 
 
 f Ante, 61.
 
 Dialogue II. — Chap. 24. 175 
 
 promise, a gift, a loan, or a pledge, a bargain; a covenant, 
 or such other. For the intent of the law is to have the ef- 
 fect of the matter argued, and not the terms. And a nude 
 contract is, when a man maketh a bargain, or a sale of his 
 goods or lands, without any recompence appointed for it :* 
 as if I say to another, I sell thee all my land, or else my 
 goods, and nothing is assigned that the other shall give or 
 pay for it ; this is a nude contract, and, as I take it, it is 
 void in the law and conscience.! And a nude or naked 
 promise is, where a man promiseth another to give him cer- 
 tain money such a day, or to build an house, or to do him 
 such certain service, and nothing is assigned for the monev. 
 for the building, nor for the service ; these be called naked 
 promises, because there is nothing assigned why they 
 should be made ; and I think no action lieth in those cases, 
 though they be not performed. Also if I promise to another 
 to keep him such certain goods safely to such a time, and 
 after I refuse to take them, there lieth no action against me 
 for it. But if I take them, and after they be lost or impaired 
 through my negligent keeping, there an action lieth. i 
 
 Doct. But what opinion hold they that be learned in the 
 law of England in such promises that be called naked or 
 nude promises? Whether do they hold that they that 
 make the promise be bounden in conscience to perform 
 their promise, though they cannot be compelled thereto by 
 the law, or not. 
 
 Stud. The books of the law of England entreat little 
 thereof, for it is left to the determination of doctors ; and 
 therefore I pray thee shew me somewhat now of thy mind 
 therein, and then I shall shew thee somewhat therein of the 
 minds of divers that be learned in the law of the realm? 
 
 Doct. To declare the matter plainly alter the saving of 
 doctors, it would ask a long time, and therefore I will touch 
 it briefly, to give thee occasion to desire to hear more 
 
 •Ante, 175; Dyer, 336. 
 
 f 2 13. C. 44^; Salk. 129, 24; 1 Roll. Abr. 9, 10; 1 Danv. Abr. 3.:. 
 
 {Lord Rhviu. 909; 12 Mod. 4S7.
 
 176 Doctor and Student. 
 
 therein hereafter. First thou shalt understand, that there 
 is a promise that is called an Advozv, and that is a promise 
 made to God ; and he that doth make such a vow upon a 
 deliberate mind, intending to perform it, is bound in con- 
 science to do it, though it be only made in the heart, 
 without pronouncing of words. And of other' promises 
 made to a man upon a certain consideration, if the promise 
 be not against the law, as if A. promise to give B. 20/. be- 
 cause he hath made him such a house, or hath lent him 
 such a thing, or other such like, I think him bound to keep 
 his promise.* But if his promise be so naked, that there is 
 no manner of consideration why it should be made, then I 
 think him not bound to perform it : for it is to suppose that 
 there were some error in the making of the promise. But 
 if such a promise be made to an university, to a city, to 
 the church, to the clergy, or to poor men of such a place, 
 and to the honor of God, or such other cause like, as for 
 maintenance of learning, of the commonwealth, of the 
 service of God, or in relief of poverty, or such other; then 
 I think that he is bounden in conscience to perform it, 
 though there be no consideration of worldly profit that the 
 grantor hath had or intended to have for it. And in all 
 such promises it must be understood, that he that made the 
 promise intended to be bound by his promise ; for else 
 commonly, after all doctors, he is not bound unless he were 
 bound to it before his promise : as if a man promise to give 
 his father a gown that hath need of it to keep him lrom 
 cold, and yet thinketh not to give it him, nevertheless he is 
 bound to give it, for he was bound thereto before. And, 
 after some doctors, a man may be excused of such a 
 promise in conscience by casualty that cometh after the 
 promise, if it be so, that if he had known ot the casualty at 
 the making ot the promise he would not have made it. 
 And also such promises if they shall bind, the)* must be 
 honest, lawful, and possible, and else they are not to b e 
 holden in conscience, though there be a cause, etc. And 
 
 Tost. 179.
 
 Dialogue II. — Chap. 24. 177 
 
 if the promise be good, and with a cause, though no 
 worldly profit shall grow thereby to him that maketh the 
 promise, but only a spiritual profit, as in the case before re- 
 hearsed of a promise made to an university, to a city, to 
 the church, or such other, and with a cause, as to the honor 
 of God, there it is most commonly holden that an action 
 upon those promises lielh in the law canon. 
 
 Stud. Whether dost thou mean in such promises made to 
 an university, to a city, or to such other as thou hast re- 
 hearsed before, and with a cause, as to the honor of God, 
 or such other, that the party should be bound by his 
 promise, if he intended not to be bound thereby yea or 
 nay? 
 
 Doct. I think nay, no more than upon promises made 
 unto common persons. 
 
 Stud. And then methinketh clearly, that no action can 
 lie against him upon such promises, for it is secret in his 
 own conscience whether he intended for to be bound or nay. 
 And of the intent inward in the heart, man's law cannot 
 judge, and that is one of the causes why the law of God is 
 necessary, (that is to say) to judge inward things: and it" 
 an action should lie in that ease in the law canon, then 
 should the law canon judge upon the inward intent of the 
 heart, which cannot be, as me seemeth. And therefore, 
 after divers that be learned in the laws of the realm, all 
 promises shall be taken in this manner : that is to say, it 
 he to whom the promise is made have a charge by reason 
 of the promise, which he hath also performed, then in that 
 case he shall have an action for that thing that was promised, 
 though he that made the promise have no worldly profit by 
 it And if a man say to another, heal such a poor man of 
 his disease, or make an highway, ami I will give thee thus 
 much,* and if he do it, I think an action lielh at the Com- 
 mon law.f and moreover, though the thing that he should 
 
 * Nov's Max. 91 • 
 
 tThis is not a promise within the statute 29 Car. j. c 3, s. 4. of frauds 
 and perjuries; for in this case the entire credit is given to the person mak- 
 
 I J
 
 178 Doctor and Student. 
 
 do be all spiritual, yet it' he perform it, I think an action 
 lieth at the Common law. As if a man say to another, last 
 for me all the next Lent, and I will give thee twenty 
 pounds, and he performeth it; I think an action lieth at the 
 Common law. And likewise if a man say to another, 
 marry my daughter,* and I will give thee twenty pounds ;f 
 upon this promi-e an action lieth, if he marry his daughter. 
 And in this case he cannot discharge the promise though 
 he thought not to, be bound thereby : for it is a good con- 
 tract, and he may have quid pro quo, that is to say, the 
 preferment of his daughter for his money. % But in those 
 promises made to an university, or such other as thou hast 
 remembered before, with such causes as thou hast shewed, 
 that is to say, to the honor of God, or to the increase of 
 learning, or such other like where the parly to whom the 
 promise was made is bound to no new charge by reason of 
 the promise made to him, but as he was bound to before; 
 there they think that no action lieth against him, though he 
 perform not his promise, for it is no contract, and so his own 
 conscience must be his judge whether he intended to be 
 bound by his promise or not. And if he intended it not, 
 then he offended for his dissimulation only ; but if he in- 
 tended to be bound, then if he perform it not, untruth is in 
 him, and he proveth himself to be a liar, which is prohib- 
 ited as well bv the law of God as by the law of reason. 
 And furthermore, many that be learned in the law of Eng- 
 land hold, that a man is as much bounden in conscience by 
 
 in^ the promise, and he alone is liable to be sued, whereas the undertaking 
 •within the statute signifies a collateral engagement which subjects the 
 par y to an action if the person lor whom he undertakes does not perform 
 the agreement; as if two come to a shop, and one of them contracts for 
 id the seller does not care for trusting him, whereupon the other 
 says, Let him have them, and I will undertake he shall pay you; this is 
 an agreement within the statute, and must be reduced into writing. Ld. 
 Raym. 224, 1085, u >^7 • Fitzgib. 302 ; Salk. 27. 
 
 * 1 Roll. Abr. 19; Moor, 857. 
 
 fThis promise is within the statute, and must be in writing. 1 Danv. 
 Abr. 69. It being a contract in consideration of marriage. 1 Str. 34. 
 
 X Co. Litt. 47.
 
 Dialogue II. — Chap. 24. 179 
 
 a promise made to a common person, if he intended to be 
 bound by his promise, «as he is in the other cases that thou 
 hast remembered of a promise made to the church, or the 
 clerg) r , or such other : lor they say as much untruth is in 
 the breaking of the one as of the other; and they sav that 
 the untruth is more to be pondered than the person to whom 
 the promises be made. 
 
 Doct. But what hold they if a promise be made for a 
 thing past, as I promise thee xl. li., for that thou hast 
 builded me such a house, lieth an action there? 
 
 Stud. They suppose nay,* but he shall be bound in con- 
 science to perform it after his intent, as is before said.f 
 
 Doct. And if a man promise to give another xl. 1. in re- 
 compence for such a trespass that he hath done him, lieth 
 an action there ? 
 
 Stud. I suppose nay, and the cause is, for that such 
 promises be no perfect contracts. For a contract is prop- 
 erly where a man for his money shall have by assent of the 
 other party certain goods, or some other profit at the time 
 ot the contract or alter ;$ but if the thing be promised for a 
 cause that is past, by way of recompence, then it is rather 
 an accord than a contract ; but then the law is that upon 
 such accord the thing that is promised in recompence must 
 be paid, or delivered in hand, lor upon an accord there 
 lieth no action. 
 
 Doct. But in the case of trespass, whether hold they, 
 that he be bound by his promise, though he intended not 
 to be bound thereby ? 
 
 Stud. They think nay, no more than in the other cases 
 that be put before. 
 
 Doct. In the other cases he was not hound to that he 
 promised, hut only by his promise : but in this case <>i tres- 
 
 * But if there had been a precedent request to build the bouse on the 
 
 part of him who made the promise, the action would lie. although the 
 consideration was executed. Cro. Car. 409; Townsend :■. Hunt. Cro- 
 Eliz. jS:. 
 
 + Cro. Eliz. 741; 1 Roll. A.br. 11. 12. 
 
 I j B C. 44-; 1 New Abr. 23 ; 1 Comyn's Digest, 99.
 
 180 Doctor and Student. 
 
 pass he was bound in conscience, before the promise, to 
 make recompence for the trespass : and therefore it seemeth 
 that he is bound in conscience to keep his promise, though 
 he intended not to be bound thereby. 
 
 Stud. Though he were bound before the promise to 
 make recompence for his trespass, yet he was not bound to 
 no sum in certain but by his promise : and because that the 
 sum may be too much or too little, and not egal to the tres- 
 pass, and that the part)' to whom the trespass was done, 
 notwithstanding the promise, is at liberty to take his action 
 of trespass if he will ; therefore they hold that he may be 
 his own judge in conscience whether he intended to be 
 bound by ins promise or not, as he may in other cases ; but 
 if it were of a debt, then they hold that he is bound to per- 
 form his promise, in conscience. 
 
 Docl. What if in the case of trespass he affirmeth his 
 promise with an oath? 
 
 Stud. Then they hold that he is bound to perform it for 
 saving of his oath, though he intended not to be bound : but 
 if he intended to be bound by his promise, then they say 
 that an oath needed not but to enforce the promise ; for they 
 say, he breaketh the law of reason, which is, that we may 
 do nothing against the truth, as well when he breaketh his 
 promise that he thought in his own heart to be bound by, as 
 he doth when he breaketh his oath, though the offence be 
 not so great, by reason of the perjury. Moreover to that 
 thou sayest, that upon such promises as thou hast rehearsed 
 before, shall lie an action after the law canon ; verily as to 
 that in this realm there can no action lie thereon in the 
 spiritual court, if the promise be of a temporal thing; for a 
 prohibition or a -pramunire facias should lie in that case.* 
 
 Doct. That is marvel, sith there can no action lie thereon 
 in the king's court, as thou sayest thyself. 
 
 Stud. That maketh no matter : for though there lie no 
 action in the king's court against executors upon a simple 
 
 * Br. Praemunire, pi. 16.
 
 Dialogue II. — Chap. 25. 181 
 
 contract ;* yet if they be sued in that case for the debt in 
 the spiritual court, a prohibition lieth. And in like wise, it" 
 a man wage his law untruly in an action of debt upon a 
 contract in the king's court, yet he shall not be sued tor the 
 perjury in the spiritual court, and yet no remedy lieth for the 
 perjury in the king's courts ;f for the prohibition lieth not 
 only where a man is sued in the spiritual court of such 
 things as the party may have his remedy in the king's 
 court, but also where the spiritual court holdeth plea, in 
 such case where they by the king's pierogative, and by the 
 ancient custom of the realm, ought none to hold. J 
 
 Doct. I will take advisement upon that thou hast said in 
 this matter till another time, and I pray thee now proceed 
 to another question. 
 
 Chap. XXV. — The twentieth question of the student. 
 
 Stud. A man hath two sons, one born before espousals, 
 and the other alter espousals, and the father by his will be- 
 queatheth to his son and heir all his goods : which of these 
 two sons shall have the goods in conscience? 
 
 Doct. As I said in our first dialogue in Latin, the last chap- 
 ter, the doubt in this case dependeth not in the knowing what 
 conscience will in this case, but rather the knowing which 
 of the sons shall be judged heir, (that is to say) whether 
 he shall be taken for heir, that is heir bv the spiritual 
 law, or he that is heir by the law of the realm, or else that 
 it shall be judged tor him that the father took lor heir.§ 
 
 Stud. As to that point, admit the father's mind not to be 
 known, or else that his mind was that he should be taken 
 tor heir that should be judged for heir by the law, that in 
 this case it ought to be judged by; ami then 1 pray thee, 
 shew me thy mind therein : for though the question he not 
 directly depending upon the point to see what conscience 
 
 *' Ante, 135; 2 Cro. 293; F. N. B. 95; Br. Praemunire, pi. 16. 
 
 t 3 New Abr. 317. 
 
 J 3 B. C. 1 1 j ; 2 Inst 601, 602. 
 
 § Perk., sec. 49; 2 Inst 96, 97.
 
 i 82 Doctor and Student. 
 
 will in this case, yet it is right expedient for the well order- 
 ing of conscience, that it be known after what law it shall 
 be judged ; for if it ought to be judged after the temporal 
 law who should be heir, then it were against conscience, if 
 the judges in the spiritual law should judge him for heir 
 that is the heir by the spiritual law, and I think they should 
 be bound to restitution thereby. And therefore, I pray thee, 
 shew me thine opinion, after what law it shall be judged. 
 
 Doct. Methinketh that in this case it shall be jndged after 
 the law of the church ; for it appeareth that the bequest is 
 of goods : and therefore if any suit shall be taken upon the 
 execution of the will for the bequest, it must be taken in the 
 spiritual court ;* and when it is depending in the spiritual 
 court, methinketh it must be judged after the spiritual law : 
 for of the temporal law they have no knowledge, nor they 
 are not bound to know it, as methinketh ; and more 
 stronger not to judge after it. But if the bequest had been 
 of a chattel real, as of a lease for term of years, or of a 
 ward, or such other, then the matter should have come in 
 debate in the king's court ;f and then I think the judges 
 there should judge after the law of the realm, and that is, 
 that the younger brother is heir : and so methinketh the di- 
 versity of the courts shall make the diversity of judgment. 
 
 Stud. Of that might follow a great inconvenience, as me 
 seemeth, for it might be such a case that both chattels real 
 and chattels personal were in the will, and then, after thine 
 opinion, the one son shall have the chattels personal, and the 
 other son the chattels real ; and it cannot be conveniently 
 taken, as methinketh, but that the lather's will was, that the 
 one son should have all, and not be divided. Therefore 
 methinketh that he shall be judged for heir that is heir by the 
 Common law, and that the judges spiritual in this case be 
 bound to take notice what the Common law is :$ for sith the 
 things that be in variance be temporal, that is to say, the 
 
 f. N. B. 102. 
 lb con. 
 1 Ante, 17, 18.
 
 Dialogue II. — Chap. 25. 183 
 
 goods of the lather, it is reason that the right of them in 
 this realm shall he determined by the law of the realm. 
 
 Doct. How may that he? For the judges spiritual know 
 not the law of the realm, ne the) 7 cannot know it as to the 
 most part of it; for much part of the law is in such speech 
 that few men have the knowledge of it, and there is no 
 means, ne familiarity of study between them that learn the 
 said laws; for they be learned in several places, and after 
 divers ways, and after divers manners of teachings, and in 
 divers speeches, and commonly the one of them have none 
 of the books of the other: and to bind the spiritual judges 
 to give judgment alter the law that they know not, ne that 
 they cannot come to the knowledge of it, seemeth not rea- 
 sonable. 
 
 Stud. They must do therein as the king's judges must do 
 when any matter cometh before them that ought to be 
 judged after the spiritual law, whereof I put divers cases 
 in our first dialogue in English, the sixth chapter;* that is 
 to say, they must either take knowledge of it by their own 
 study, or else they must enquire ot them that be learned in 
 the law of the church, what the law is ; and in like wise 
 must they do. But it is to doubt, that some of them would 
 be loth to ask any such question in such case, or to confess 
 that they are bound to give their judgment after the tem- 
 poral law : and surely they may lightly offend their con- 
 science. 
 
 Doct. I suppose that some be of opinion that they are 
 not bound to know the law of the realm ; and verily, to my 
 remembrance, I have not heard that judges of the spiritual 
 law are bound to know the law of the realm. 
 
 Stud. And I suppose that they are not only bound to 
 know the law ol the realm, or to do that in them is to know 
 it. when the knowledge of it openeth the right o\ the mat- 
 ter that dt pendeth before them : hut that they be also bound 
 to know where, and in what case they ought to judge after 
 it : for in such eases they must take the king's law as the 
 
 •Ante, 18.
 
 184 Doctor and Student. 
 
 law spiritual to that point, and are bound in conscience to 
 follow it, as it may appear by divers cases, whereof one is 
 this.* Two joint-tenants be of goods, and the one of them 
 by his last will bequeathed all his part to a stranger, and 
 maketh the other joint-tenant his executor, and dieth : if he 
 to whom the bequest is made sue the other joint-tenant upon 
 the legacy as executor, etc., upon this matter shewed, the 
 judges of the spiritual law are bound to judge the will to 
 be void, because it is void by the law of the realm, whereby 
 the joint-tenant hath right to the whole goods by the title of 
 the survivor, and is judged to have the goods as by the first 
 gift, which is before the title of the will, and must therefore 
 have preferment as the eldest title ;f and if the judges of the 
 spiritual court judge otherwise, they are bound to restitu- 
 tion. And by like reason the executors of a man that is 
 outlawed at the time of his death, may discharge themselves 
 in the spiritual court of the performing of the legacies, be- 
 cause they be chargeable to the king;! and yet there is no 
 such law of utlagary in the spiritual law. 
 
 Doct. By occasion of that thou hast said before, I would 
 ask of thee this question. § If a parson of a church alien a 
 portion of dismes according as the spiritual law hath or- 
 dained, is not that alienation sufficient, though it have not 
 the solemnities of the temporal law? 
 
 Stud. I am in doubt therein, J| if the portion be under the 
 fourth part of the value of the church ; but if it be to the 
 value of the fourth part of the church or above, it is not 
 sufficient, and therefore was the writ of right of dismes or- 
 dained. IF And if in a writ of right of dismes it be adjudged 
 in the king's court for the patron of the successor of him 
 that alieneth, because the alienation was not made accord- 
 ing to the Common law: then the judges of the spiritual 
 
 * Ante, iS. 
 
 fPerk., sec. 500; Litt, sec. 287; 2 Cro. 106. 
 
 X Ante, iS. 
 
 §Ib. 
 
 || F. N. B. 70. 
 
 ^[ 2 Inst- 364; 15r. Prohibition, pi. 7.
 
 Dialogue II. — Chap. 25. 
 
 law are bound to give their judgment according to the judg- 
 ment given in the king's court. And in like wise, if a par- 
 son of a church agree to take a pension for the tvthe of a 
 mill, or if the pension be to the fourth part of the value of 
 the church, or above, then it must be aliened after the 
 solemnities of the king's laws, as lands and tenements must; 
 or else the patron of the successor of him that alieneth may 
 bring a writ of right of dismes, and recover in the king's 
 court ; and then the judges of the spiritual court are bound 
 to give judgment in the spiritual courts accordingly, as is 
 aforesaid. 
 
 Doct. I have heard say, that a writ of right of dismes is 
 given by the statute of Westm. 2, and that speaketh only 
 of dismes, and not of pensions. 
 
 Stud. Where a parson of a church is wrongfully de- 
 forced of his dismes,* and is let by an indicavit to ask his 
 dismes in the spiritual court, then the patron may have a 
 writ of right of dismes by the statute that thou speakest of, 
 for there lay none at the common law ; for the parson had 
 there good right, though he were let bv the indicavit to sue 
 for his right. f But when the parson had no remedy at the 
 spiritual law, there a writ of right of dismes lay for the 
 patron bv the common law, as well of pensions as of 
 dismes ; and some say that in such case it lay of less than 
 of the fourth part, bv the common law, but that I pass over. 
 And the reason why it lay at the common law, if the dismes 
 or pensions were above the fourth part, etc., was this: By 
 the spiritual law the alienation of the parson with the as- 
 sent of the bishop, and ot the chapter, shall bar the suc- 
 cessor without assent of the patron, and so the patron might 
 leese his patronage, and be not assenting thereto : for his 
 incumbent might have no remedy but in the spiritual court, 
 and there he was barred : wherefore the patron in that case 
 shall have his remedy by the common law, where the as- 
 sent of the ordinary and chapter without the patron shall 
 
 *F. N. B. 70. 
 
 I j Inst $64; Booth on Real Actions, uj: F. V B. 70.
 
 1 86 Doctor and Student. 
 
 not serve, as it is said before. But where the incumbent 
 had good right by the spiritual law, there lay no remedy 
 lor the patron by the common law, though the incumbent 
 were let by an indicavit. And for that cause was the said 
 statute made, and it lieth as well by the equity for offerings 
 and pensions, as for dismes. Then, farther, I would think 
 that where the spiritual court may hold plea of a temporal 
 thing, that they must judge after the temporal Jaw, and that 
 ignorance shall not excuse them in that case ;* for by taking 
 of their office they have bound themselves to have knowl- 
 edge of as much as belongeth to their office, as all judges 
 be, spiritual and temporal. But if it were in argument in 
 this case, whether the eldest son might be a priest, because 
 he is a bastard in the temporal law, that should be judged 
 after the spiritual law, for the matter is spiritual. 
 
 Doct. Yet notwithstanding all the reasons that thou hast 
 made, I cannot see how the judges of the spiritual law 
 shall be compelled to take notice of the temporal law; see- 
 ing that the most part of it is in the French tongue ; for it 
 were hard that every spiritual judge should be compelled to 
 learn the tongue. But if the law of the realm were set in 
 such order, that they that intend to study the law canon 
 might first have a sight of the law of the realm, as they 
 have now of the law civil, and that some books and treatises 
 were made of cases of conscience concerning those two 
 laws, as there be now concerning the law civil and the law 
 canon ; I would assent that it were right expedient, and 
 then reason might serve the better, that they should be 
 compelled to take notice of the law of the realm, as they 
 be now bound in such countries as the law civil is used to 
 take notice of that law. 
 
 Stud. Methinketh thine opinion is right good and rea- 
 sonable* : but till such an order be taken, they are bound, 
 as I suppose, to enquire of them that be learned in the 
 Common law, what the law is, and so to give their judg- 
 ment according, if they will keep themselves from offence 
 
 * Het 87.
 
 Dialogue II. — Chap. 26. 
 
 of conscience.* And forasmuch as thou hast well satisfied 
 m}- mind in all the questions before, I pray thee now that I 
 may somewhat feel thy mind in divers articles that be writ- 
 ten in divers books for the ordering of conscience upon the 
 law capon or civil : lor methinketh that there be divers con- 
 clusions put in divers books, as in the sums called summa 
 angelica and summa rosclla, and divers other for the good 
 order of conscience, that be against the law of this realm, 
 and rather bind conscience, than do give any light to it. 
 
 Doct. I pray thee shew me some of these cases. 
 
 Stud. I will with <iood-will. 
 
 Chap. XXVI. — Whether the abbot may with conscience 
 present to an advozuson of a church that belongeth to the 
 house, without asscrd of the coven t / 
 
 It appeareth in the chapter, Et agnosciiur de his qua 
 fiunt a flra'/atis. the which chapter is recited in the sum 
 called summa angelica, in the title abbas, the twenty- 
 seventh article, that he may not, without any custom, or 
 any special privilege to help therein. 
 
 Stud. Truth it is, that there is such a decretal ; but they 
 that be learned in the law of England hold the decretal 
 bindeth not in this realm : and this is the cause why they do 
 hold that opinion. By the law of the realm the whole dis- 
 position of lands and goods of the abbey is the abbot's only 
 lor the time that he is abbot, and not in tiie covent, for 
 they be but as dead persons in the law ;f and therefore the 
 abbot shall sue and be sued only without the covent, do 
 homage, fealty, atturn, make leases, and present to advow- 
 sons only in his own name. And they say, farther, that 
 this authority cannot be taken from him but by the law of 
 the realm ; and so they say, that the makers oi the decretal 
 exceed their power ; wherefore they say it is not to be 
 holden in conscience, no more than if a decree were made 
 that a lease for a term of years, or at will, made bv the 
 
 * Ante. iS, 19. 
 
 t Co- Litt. 94; ante. 31
 
 Doctor and Student. 
 
 abbot without the covent, should be immediately void : and 
 so they think that the abbot may in this case present in his 
 own name without offence of conscience, because the said 
 decretal holdeth not in this realm. 
 
 Doct. But many be of opinion, that no man hath au- 
 thority to present in right and conscience to any benefice 
 with cure but the pope, or that he hath his authority therein 
 derived from the pope :* for they say, that forasmuch as 
 the pope is the vicar general under God, and hath the 
 charge of the souls of all people that be in the flock of 
 Christ's church, it is reason that, sith he cannot m.nister to 
 all, ne do that is necessarv to all people for their soul's 
 health in his own person, that he shall assign deputies for 
 his discharge in that behalf. And because patrons claim 
 to present to churches in this realm by their own right, 
 without title derived from the pope, they say, that they 
 usurp upon the pope's authority. And therefore they con- 
 clude, that though the abbot have title by the law of the 
 realm to present in this case in his own name, that yet, be- 
 cause that title is against the pope's prerogative, that that 
 title, ne yet the law of the realm that maintaineth that title, 
 holdeth not in conscience. And they say also, that it be- 
 longed"! to the law canon to determine the right of present- 
 ment to benefices, for it is a thing spiritual, and belongeth 
 to the spiritual jurisdiction, as the deprivation from a 
 benefice doth ;f and so they say the said decretal bindeth in 
 conscience, though in the law of the realm it bindeth not. 
 
 Stud. As to the; iirst consideration, I would right well 
 agree, that if the patrons of churches in this realm claimed 
 to put incumbents into such churches as should fall void of 
 their patronage, without presenting them to the bishop, or 
 if they claimed that the bishop should admit such incum- 
 bent as they should present, without any examination to be 
 
 Bui .-•/,/,• the statutes 25 Ed. 3, st. 6; 3S Ed. 3, st. 2; 12 R. 2, c 15; 13 
 R. 2, st. 2 ; 7 R. 2, c. 12; 16 R. 2, o. 5, and 21 Ed. 3, c 1, which entirely 
 take :iu;i\ th< power of the pope to present to any benefice within this 
 realm, and see post., c 37. 
 
 f Post, c. 36; Br. Trials, pi. 47.
 
 Dialogue II. — Chap. 26. 189 
 
 made of his ability in that behalf, that that claim were 
 against reason and conscience, for the cause that thou hast 
 rehearsed : but forasmuch as the patrons in this realm claim 
 no more but to present their incumbents to the bishop, and 
 then the bishop to examine the ability of the incumbent, 
 and if he find him by examination not able to have cure of 
 souls, he then to refuse him, and the patron to present 
 another that shall be able, and if he be able, then the 
 bishop to admit him, institute him and induct him;* I think 
 that this claim, and their presentments thereupon, stand 
 with good reason and conscience. J As to the second con- 
 sideration, it is holden in the laws ot the realm, that the 
 right of presentment to a church is a temporal inheritance, 
 and shall descend by course of inheritance from heir to heir, 
 as lands and tenements shall, and shall be taken as assets, 
 as lands and tenements be : and for the trial of the right of 
 patronages be ordained in the law divers actions for them 
 that be wronged in that behalf, as writs of right of advow- 
 son, assises of Darrein -presentment, j^jtarc imped//, and 
 divers others, I which alway without time of mind have been 
 pleaded in the king's courts as things pertaining to his 
 crown and royal dignity : and therefore they say that in 
 this case his laws ought to be obeyed in law and con- 
 science. 
 
 Doc/. It it come in variance whether he that is so pre- 
 sented be able or not able, by whom shall the ability be 
 tried? 
 
 Stud. It" the ordinary be not party to the action, it shall 
 be tried by the ordinary ; but if he be party, it shall be tried 
 by the metropolitan. 
 
 Doc/. Then the law is more reasonable in that point than 
 I thought it had been : but in the other point I will take 
 advisement in it till another time, and I pray thee shew me 
 
 Watson'6 Clergyman's Law. 212; 1 Burn's Eel. Law. \i~. 
 t Co. Litt. 374; post., c. 36. 
 
 J For the nature and use of these dilTerent actions see Yin. Ahr.. title 
 Presentation, 411, 473. 4S1, etc.
 
 190 Doctor and Student. 
 
 thy mind in this point. If an abbot name his covent with 
 him in his presentation, doth that make the presentation 
 void in the law ? Or is the presentation good notwith- 
 standing? 
 
 Stud. I think it is not void therefore, but the naming of 
 them is void, and a thincr more than needeth. For ii the 
 abbot be disturbed, he must bring his action in his own 
 name, without the covent. 
 
 Doct. Then I perceive well that it is not prohibited by 
 the law of England, but that the abbot may name the 
 covent in his presentation with him, and also take their 
 assent whom he shall present, if he will : and then I hold it 
 the surest way that he so do, for in so doing he shall not 
 offend neither in law nor conscience. 
 
 Stud. To take the assent of the covent whom he shall 
 present, and to name them also in the presentation, know- 
 ing that he may do otherwise both in law and conscience, 
 it he will, is no offence : but if he take their assent, or name 
 them with him in the presentation, thinking that he is so 
 bound to do in law and conscience, setting a conscience 
 where none is, and regardeth not the law of the realm, that 
 will discharge his conscience in this behalf, if he will, so 
 that he present an <ible man, as he may do without their 
 assent ; there is an error and offence of conscience in the 
 abbot. And in like wise, if the abbot present in his own 
 name, and therefore the covent saith that he offendeth in 
 conscience, in that he observeth not the law of the church, 
 for that he taketh not their assent ;* then they offend in 
 judging him to offend that offendeth not. And therefore 
 the sure way is in this case to judge both the said laws of 
 such effect as they be, and not to set an offence of con- 
 science by breaking of the said decree, which standeth not 
 in effect in this behalf within this realm. 
 
 • Ante, 187.
 
 Dialogue II. — Chap. 27. 191 
 
 Chap. XXVII. — If a man find beasts in his ground doing 
 A art, whether may he by his own authority take them, 
 and keep I hem till he be satisfied of the hurt. 
 
 This question is made in the sum called summa rosella 
 in the title of restitution , that is to say, restitutio 13, the 
 ninth article : and there it is answered, that he may not take 
 them for to hold them as a pledge till he be satisfied for the 
 hurt; but that he may take them, and keep them till he 
 know who oweth them, that he may thereby learn against 
 whom to have his remedy. Is not the law of the realm so 
 in like wise? 
 
 Stud, No verily, for, by the law of the realm, he that in 
 that case hath the hurt may take the beasts as a distress,* 
 and put them in a pound overt, so it be within the said 
 shire, f and there let them remain till the owner will make 
 him amends for the hurt. 
 
 Doct. What callest thou a pound overt? 
 
 Stud. A pound overt is not only such a pound as is com- 
 monly made in towns and lordships, for to put in blasts that 
 be distrained, but it is also every place where they may be 
 in lawfully, not making- the owner an offender for their being 
 there :$ and that it be there also, that the owner may law- 
 fully give the beasts meat and drink while they be in pound. 
 
 Doct. And if they die in the pound for lack of meat, 
 whose jeopardy is it? 
 
 Stud. If it be such a pound overt as I speak of. it is at 
 the peril of him that owneth the beasts, so that he that had 
 the hurt shall he at liberty to take his action for the trespass, 
 if he will : and if it be not a lawful pound, then it is at the 
 
 j I . -. (S; 2 Inst. 106, 107: ante, 14. 
 
 1 According to the statute of Marlbridge, 52 II- 3, .(. ami vide the st;t- 
 ute 1 and 2 P. & M.. e. [2, which says that no distress of cattle shall be 
 driven out of the hundred where it is taken unless to a pound overt in the 
 same county, within three miles distance. 
 
 + 3 B. C. 1-; Co. Litt. 47.
 
 192 Doctor and Student. 
 
 peril of him that distrained ; and so it is if he drive them 
 out of the shire, and they die there.* 
 
 Doct. I put the case that he that owneth the beasts offer 
 sufficient amends, and the other will not take it, but keep- 
 eth the beasts still in pound, may not the owner take them 
 out? 
 
 Stud. No, for he may not be his own judge ; and if he 
 do, an action lieth against him for breaking of the pound ;f 
 but he must sue a replevin, to have his beast delivered him 
 out of the pound, and thereupon it shall be tried by twelve 
 men, whether the amends that was offered were sufficient 
 or not?+ And if it be found that the offer was not sufficient, 
 then he that hath the hurt shall have such amends as the 
 twelve men shall assess. 
 
 Doct. If it be found by the twelve men that the amends 
 were sufficient, shall he that refuseth to take it have no 
 punishment for his refusal, and for keeping of the beasts in 
 pound alter that time? 
 
 Stud. I think no, but that he shall yield damages in the 
 replevin, because the issue is tried against him.§ 
 
 Doct. I put the case that the beasts after the refusal die 
 in pound for lack of meat, at whose jeopardy is it then? 
 
 Stud. At the jeopardy of him that owned the beasts, as 
 it was before :|| for he is bound at his peril by reason of the 
 wrong that was done at the beginning, to see that they have 
 meat as long as they shall be in pound, unless the king's 
 writ come to deliver them, and he resisteth it ; lor after that 
 time it will be at his jeopardy if they die for lack of meat, 
 and the damage shall be recovered in an action brought 
 upon the statute for disobeying the king's writ. 
 
 * Finch Law, 137; 3 B. C 13. 
 
 t If the owner of the beasts break the pound, the distrainer may either 
 have a writ of pound breach, in which he shall recover damages, F. N. 15. 
 101, or he may have an action upon the case, and if the distress is for rent 
 shall therein recover treble damages by virtue of the statute of 1 and 2 
 W. & M., sess. 1, c. 5. 
 
 J 3 B. C 147; Viner's Abr., title Tender, iSS, 189. 
 
 § Vin. Abr , title Replevin, 22. 
 
 || Ante, 14; Finch Law, 137.
 
 Dialogue II. — Chap. 28. 193 
 
 Chap. XXVIII. — Whether a gift made by one under the 
 age of twenty-five years be good. 
 
 Doct. It appeareth in sum ma angelica in the title donatio 
 ■prima, the 7th article, that a man before the age of twenty- 
 live years may not give, without it be with the authority ot 
 his tutor ; is it not so likewise at the Common law? 
 
 Stud. The age of infants to give or sell their lands and 
 goods in the law of England is at twenty-one years, or 
 above ;* so that alter that age the gift is good, and before 
 that age it is not good, by whose assent soever it be, except 
 it be for his meat, and his drink, or apparel, f or that he do 
 it as executor, in performance of the will of his testator, \ 
 or in some other like cases, that need not to be rehearsed 
 here : and that age must be observed in this realm in law 
 and conscience, and not the said age of twenty-five years. § 
 
 Doct. I put the case it were ordained by a decree of the 
 church, that if any man by his will bequeatheth goods to 
 another, and willeth that they shall be delivered to him at 
 his lull age, and that in that case twenty-five years shall be 
 taken for the full age; shall not that decree be observed 
 and stand good after the law of England? 
 
 Stud. I suppose it shall not. For though, it belong to the 
 church to have the probate and the execution of testaments 
 made of goods and chattels, except it be in certain lordships 
 and seigniories that have them by prescription :|| yet the 
 church may not, as me seemeth, determine what shall be 
 the lawful age for another person to have the goods, for 
 thai belonireth to the kino- and his laws to determine. Ami 
 therefore if it were ordained by a statute of the realm, that 
 he should not in such case have the goods till he were ot 
 
 * Ante, 61. 
 
 Ti B. C. 466: Co. Lift. 172. 
 
 J And then he must he of the age of seventeen years, for before that age 
 he cannot act a- executor. Went Off of Executor, 313. 
 
 § Which in the civil law is the full age of infants. Wood's Civil Law. 101 
 || Perk . sec. 4S6; Godolph. 5S; I Salk. 41; Office of Exec. 43. 
 
 13
 
 94 Doctor and Student. 
 
 the age of twenty- five years, that statute were good, and to 
 be observed as well in the spiritual law as in the law of the 
 realm : and if a statute were good in that case, then a de- 
 cree made thereof is not to be observed ; for the ordering 
 of the age may not be under two several powers ; and one 
 property of every good law of man is, that the maker ex- 
 ceed not his authority : and I think that the spiritual judge 
 in that case ought to judge the full age after the law of the 
 realm, seeing that the matter of the age concerneth tem- 
 poral goods. And I suppose farther, that as the king by 
 authority of his parliament may ordain that all wills shall 
 be void, and that the goods of every man shall be disposed 
 in such manner as by statute should be assigned, that more 
 stronger he may appoint at what age such wills as be made 
 shall be performed. 
 
 Doct. Thinkest thou then that the king may take away 
 the power of the ordinary, that he shall not call executors 
 to account? 
 
 Stud. I am somewhat in doubt therein : but it seemeth 
 that if it might be enacted by statute, that all wills should 
 be void, as is aforesaid, that then it might be enacted, that 
 no man should have authority to call none to account upon 
 such wills, but such as the statute shall therein appoint, lor 
 lie that ma)' do the more may do the less. Notwithstand- 
 ing I will nothing speak determinately in that point at this 
 time ; ne I mean not that it were good to make a statute 
 that all wills should be void, for I think them right expe- 
 dient: but mine intent is, to prove that the Common law 
 may ordain the time of the lull age, as well in wills of 
 temporal things as otherwise, and also that wills shall be 
 made ; and if it may so do, then much stronger it belongeth 
 to the king's law to interpret wills concerning temporal 
 things, as well when they come in argument before his 
 judges as when they come in argument before spiritual 
 judges, and that they ought nut to be judged by several 
 laws, (that is to say) by the spiritual judges in one manner, 
 and by the king's judges in another manner.
 
 Dialogue II. — Chai\ 29. 195 
 
 Chat. XXIX. — // a man be convict of heresy, be fore the 
 ordinary, whether his goods be forfeited. 
 
 Doct. It appeareth in summa angelica, in the title donatio 
 firi/na, the 13th article, that he that is a heretick may not 
 make executors ;* for in the law his goods be forfeit : what 
 is the law of the realm therein? * 
 
 Stud. If a man be convict of heresy, and abjure, he 
 hath forfeit no goods ; but if he convicted of heresy, and be 
 delivered to laymen's hands, then hath he forfeit all his 
 goods that he hath at that time that he is delivered to them, 
 though he be not put in execution for the heresy : but his 
 lands he shall not forfeit except he be dead for the heresv, 
 and then he shall forfeit them to the lords ol the fee, as in 
 case of felonv, except they be holden of the ordinary, for 
 then the king shall have the forfeiture ; as it appeareth bv 
 the statute made the second year of II . 5, c. 7. 
 
 Doct. Methinketh that, as it belongeth only to the church 
 to determine heresies, that so it belongeth to the church to 
 determine what punishment he shall have for his heresw 
 except death, which they may not be judges in : but if the 
 church decree that he shall therefore forfeit his goods, 
 methinketh that they be forfeit by that decree. 
 
 Stud. Xay, verily, tor they be temporal, and belong to 
 the judgment of the king's court : and I think the ordinary 
 might have set no line upon one impeached of heresy, till 
 it was ordained by the statute of II. 4, that he may set a 
 fine in that case, it lie set' cause : and then the king shall 
 have that line, as in the said statute appeareth. f 
 
 Godolphin's Orphan's Legacy, 36. 
 t lie the statute 1 Eliz., c. 1. all former statutes relating to her 
 repealed, and it is now agreed that the ordinary may proceed to pui 
 offence bv ecclesiastical c nsures. 1 B. C, |^- Ami if an heretic in main- 
 tenance of his errors set up conventicles, ami raisi which maj 
 tend to the disturbance ol the public peace, Ik- maybe fined ami impri 
 upon an indictment at common law. 1 Haw. I*. C. 4. But the common 
 law has no power to punish merely tor heresy, lb- Nor is the offender 
 amenable to the statute law, but for one species of heresy, in which the 
 civil magistrate is enabled to shew his authority; for by the a. | of g and
 
 196 Doctor and Student. 
 
 Chap. XXX. — Where divers patrons of an advozuson, and 
 the church voidcth, the patrons vary in their -present- 
 ments, whether the bishop shall have liberty to present 
 such of the incumbents that he will, or not? 
 
 Uoct. This question is asked in summa rosclla, in the 
 title patronus, the 9th .article ; and there it appeareth by 
 the belter opinion, that he may present whether clerk he 
 will :* howbeit the maker of the said sum saith, by the rigour 
 of the law, the bishop in such case may present a stranger, 
 because the patrons agree not. And in the same chapter 
 patronus, the 15th article, it is said that he must be pre- 
 ferred that hath the most merits, and hath the most part of the 
 patrons : and if the number be equal, that then it is to con- 
 sider the merits of the patron : and if they be of like merit, 
 then may the bishop command them to agree, and to pre- 
 sent again : and if they cannot yet agree, then the liberty to 
 present is given to the bishop to take which he will : and if 
 he may not yet present without great trouble, then shall the 
 bishop order the church in the best manner he can : and if 
 he cannot order it, then shall he suspend the church, and take 
 away the relicks, to the rebukes of the patrons : and if they 
 will not be so ordered, then must he ask help of the tem- 
 porally. And in the 15th article of the said title patronus, 
 it is asked, Whether it be expedient in such case, that the 
 more part of the patrons agree, having respect to all the 
 patrons, or that it suffice to have the more part in com- 
 parison of the less part? as thus : There be four patrons to 
 present one clerk : the first and second present one, the 
 
 10 W. 3, c. 32, it is enacted that if any person educated in the Christian 
 religion, or professing the same, shall, hv writing, fruiting, teaching, or 
 advised speaking, deny any one of the persons in the holy Trinity to be God, 
 or maintain that there are more Gods than one, he shall upon the first 
 offence be rendered incapable to hold any office or p ace of trust, and for 
 the second be rendered incapable of bringing any action, being guardian, 
 
 1 utor, legatee, or purchaser of lands, and -.hall suffer three years' im- 
 prisonment without bail. If, however, within four months after the first 
 conviction, the delinquent will, in open court, publicly renounce his error, 
 he is discharged for that once from all disabilities. 
 
 2 Leon, 68; Hcb. 317; post. 197.
 
 Dialogue II. — Chap. 30. 197 
 
 third presenteth another, and the fourth another : he that is 
 presented by two hath not the more part in comparison of 
 all the patrons, tor they be equal ; but he hath the more 
 part having respect to the otlfer presentments. To this 
 question it is answered, That either the presentment is 
 made of them that be of the college, and there is requisite 
 the more part, having" respect to all the college ; or else 
 even - man presenteth for himself as commonly do laymen 
 that have the patronage of their patrimony, and then it suf- 
 ficeth to have the more part in respect ot the other parties. 
 Doth not the law of England agree to these diversities? 
 
 Stud. No, verily. 
 
 Doci. What order then shall be taken in the law of Eng- 
 land, if the patrons vary in their presentments? 
 
 Stud. After the laws of England, this order shall be 
 taken : if they be joint-tenants or tenants in common of the 
 patronage, and they vary in presentment, the ordinary is 
 not bound to admit none of their clerks, neither the more 
 part nor the less ; and if the six months pass, or they agiee, 
 then he may present by the lapse :* but he may not present 
 within the six months, tor if he do, they may agree, and 
 bring a quare impcdit against him, and remove his clerk, 
 and so the ordinary shall be a disturber. And if the patrons 
 have the patronage by descent as coparceners, then is the 
 ordinary bound to admit the clerk of the eldest sister, for 
 the eldest shall have the preferment in the law if she will \\ 
 and then at the next avoidance the next sister shall pre- 
 sent \% and so by turn one sister alter another, till all the 
 sisters or their heirs have presented, and then the eldest 
 sister shall begin again. And this is called a Presenting 
 by turn, and it holdeth alway between coparceners ol an 
 advowson, except they agree to present together, or that 
 they agree by composition to present in some other manner ; 
 
 * 1 Burn's Eel. Law. u: Watson's Com. Inc. jj;- 
 
 f Ami this privilege shall descend to her issuse, nay her assignee shall 
 
 have it. ami so shall her husband, who is tenant by the courtesy. Co. Litt. 
 166. tho' Kell 4<>. seems con. 
 ;- Inst. 365
 
 198 Doctor and Student. 
 
 and if they do so, the agreement must stand.* But this 
 must be always except, that if at the first avoidance that 
 shall be after the death of the common ancestor, the king 
 have the ward of the voungest daughter, that then the kino- 
 b\ r his prerogative shall have the presentment, and at the next 
 avoidance the eldest sister, and so by turn. J And it is to 
 understand, that if after the death of the common ancestor 
 the church voideth, and the eldest sister presented together 
 with another of the sisters, and the other sisters every one 
 in their own name or together ; that in that case the ordinary 
 is not bound to receive none of their clerks, but may suffer 
 the church to run into the lapse, as it is said before ;$ for 
 he shall not be bound to receive the clerk of the eldest 
 sister, but where she presenteth in her own name. And in 
 this case where the patrons vary in presentment^ the 
 church is not properly said litigious, so that the ordinary 
 should be bound at his peril to direct a writ to enquire dc 
 juro Patronatus ;|j for that writ lieth where two present by 
 several titles, but these patrons present all in one title, and 
 therefore the ordinary may suffer it to pass, if he will, into 
 the lapse. If And this manner of presentments must be ob- 
 served in this realm in law and conscience. 
 
 *3 Com. Digest, 196. 
 
 f Quare impedit, 31 Ed. 3; Br. Prerogative, pi. 21. 
 
 J Co. Litt. 1S3; Watson's Com. Inc., pi. 227. 
 
 § 1 Burn's Eel. Law, 19, 12. 
 
 || The doctrine which seems to be laid down here, viz., that when a 
 church is properly litigious, the ordinary is bound, ex officio, at his peril to 
 award ixjure patronatus, accords with the year book of 34 II. 6, 11. But 
 the better opinion is, that in such case t he ordinary is not obliged to direct 
 a writ to enquire of the right of patronage, unless at the request of the 
 parties at variance. Godolphin Rep- 1S0; Wats. Com. Inc. 113. And 
 therefore if no such request is made, and the church continues ligitious, he 
 may let six months pass, and then he will have a lawful title to collate by 
 lapse. Wats. Com. Ino. 228. But if such demand is made, and the ordi- 
 nary neglects to decree a process to enquire to whom the right belongs, he 
 becomes a disturber. 3 Com. Digest, 203. 
 
 1 nob. 317.
 
 Dialogue II. — Chap. 31. 199 
 
 Chap. XXXI. — How long time the -patron shall have to 
 present to a benefice. 
 
 Doct. This question is asked in summa angelica, in the 
 title jus patronalits, the 16th article ; and there it is an- 
 swered, That it the patron be a layman, that he shall have 
 lour months, and it he be a clerk he shall have six months. 
 
 Stud. And by the Common law he shall have six months 
 whether he be a layman or a clerk. And I see no reason 
 why a clerk should have more respite than a layman, but 
 rather the contrary.* 
 
 Doct. From what time shall the six months be accompte :1 ? 
 
 Stud. That is in divers manners after the manner of the 
 avoidance;f tor if the church void by death, creation or 
 cession, the six months shall be counted from the death of 
 the incumbent, or from the creation or cession, whereof the 
 patron shall be compelled to take notice at his peril : and 
 if the voidance be by resignation or deprivation, then the 
 six months shall begin when the patron hath knowledge 
 given him by the bishop of the resignation or deprivation. 
 
 Doct. What if he have knowledge of the resignation or 
 deprivation, and not by the bishop, but by some other? 
 Shall not the six months begin then from the time of that 
 knowledge ? 
 
 Stud. I suppose that it shall not begin till he have knowl- 
 edge given him by the bishop. % 
 
 Doct. An union is also a cause of voidance : how shall 
 the six months be reckoned there? 
 
 Stud. There can be no union made hut the patrons must 
 have knowledge, and it must be appointed who shall pre- 
 sent after that union, that is to say, one of them or both, 
 either jointly or by turn one after another, as the agreement 
 is upon the union ;vj and sith the patron is privy to the avoid- 
 
 * Finch Law, 90; Watson's Incumbent, i-- 
 
 |2 B. C. 27S; 4 Rep. 75. 
 X Br. Notice, pi. 25. 
 
 § Stat. 37 II. S. c. 21 ; 3 Nets. Abr. 4S0: 17 Car. :, c. 3.
 
 loo Doctor and Student. 
 
 ance, and is not ignorant of it, the six months shall be ac- 
 counted from the agreement. 
 
 Doct. I see well, by the reason that thou hast made in 
 this chapter,* that ignorance sometime excuseth in the law 
 of England ; for in some of the said avoidances it shall ex- 
 cuse the patrons, as it appeareth by the reasons above, and 
 in some it will not : wherefore I pray thee shew me some- 
 what where ignorance excuseth in the law of England, and 
 where not, after thine opinion. 
 
 Stud. I will with good-will hereafter do as thou sayest, 
 if thou put me in remembrance thereof. But I would yet 
 move thee somewhat farther in such questions as 1 have 
 moved thee before, concerning the diversities between the 
 laws of England and other laws : for there be many more 
 cases thereof that, as me seemeth, have right great need, 
 for the good order of conscience of many persons, to be 
 reformed, and to be brought into one opinion, both among 
 spiritual and temporal. As it is in the case where doctors 
 hold opinion, that the statute of layman, that restrains lib- 
 erty to give lands to the church, should be void ; and they 
 say farther, that if it were prohibit by a statute that no gift 
 should be made to foreigners, that yet a gift made to the 
 church should be good ; for they say that the inferior may 
 not take away the authority ot the superior : and this saying 
 is directly against the statutes, f whereby it is prohibit that 
 lands should not be given in Mortmain. And they say also 
 that bequests and gifts to the church must be determined 
 after the law canon, and not alter the laws and statutes of 
 laymen : and so they regard much to whom the gilt is made, 
 whether to the church, or to make causways, or to common 
 persons, and bear more favour in gifts to the church than 
 to the other. And the law of the realm beholdeth the thing 
 that is given and intended, that il the thing that is given be 
 of lands or goods, that the determination thereof of right 
 belongeth in this realm to the king's laws, whether it be to 
 
 ■ Ante, 77, 148; post. 253. 
 
 : Statutes 9 H. 3, c. 36; 7 Ed. 1 ; 13 Ed. 1, c. 32; 34 Ed. 1 ; 15 R. 2, c. 5; 
 29 H. 8, c 10
 
 Dialocue II. — Chap. 32. 201 
 
 spiritual men or temporal, to the church or to other; and so 
 is great division in this behalf, when one preferreth his 
 opinion, and another his, and one this jurisdiction, and an- 
 other that; and that, as it is to fear, more of singularity 
 than of charity. Wherefore it seemeth that they that have 
 the greatest charge over the people, specially to the health 
 of their souls, are most bound in conscience before other to 
 look to this matter, and to do that in them is, in all charity 
 to have it reformed, not beholding the temporal jurisdiction 
 or spiritual jurisdiction, but the common wealth and quiet- 
 ness of the people : and that undoubtedly would shortly 
 follow, if this division were put away, which I suppose 
 verily will not be, but that all men within the realm, both 
 spiritual and temporal, be ordered and ruled by one law in 
 all things temporal. Notwithstanding, forasmuch as the 
 purpose of this writing is not to treat of this matter, there- 
 fore I will no farther speak thereof at this time. 
 
 Doct. Then I pray thee proceed to another question, that 
 thou sayest thy mind is to c!o. 
 
 Stud. I will with good-will. 
 
 Chap. XXXII. — If a man be excommenged, whether he 
 may in any case be assorted without making satisfaction* 
 
 In the sum called sum ma resell a, in the title absolutio 
 quarta, the second article, it is said, that he that is excom- 
 municate tor a wrong, if he be able to make satisfaction, 
 ought not to be assoiled, but he do satisfy : and that they 
 offend that do assoil him, but vet nevertheless he is assoiled ; 
 and if he be not able to make amends, that he must yet be 
 assoiled, taking sufficient gage to satisfy if he be able here- 
 after, or else that he make an oath to satisfy, it' he be able. 
 And these sayings in many things hold not in the laws of 
 England. 
 
 Doct. I pray thee shew wherein the law of the realm 
 varieth therefrom. 
 
 Stud. If a man be excommunicate in the spiritual court 
 for debt, trespass, or such other things as belong to the
 
 202 Doctor and Student. 
 
 king's crown, and to his royal dignity, there he ought to be 
 assoiled without making any satisfaction, for the spiritual 
 court exceedeth their power in that they held plea in those 
 cases, and the party, if he will, may thereupon have a 
 Praemunire facias ,* as well against the party that sued him 
 as against the judge, f and therefore in this case they ought 
 in conscience to make absolution without any satisfaction, 
 for they not only offended the party, in calling him to 
 answer before them of such things as belong to the law of 
 the realm, but also the king; for he, by reason of such 
 suits, may leese great advantages by reason of the writs 
 originals, judicials, fines, amerciaments, and such other 
 things as might grow to him, if suits had been taken in his 
 courts according to his laws. And according to this saying 
 it appeareth in divers statutes, that if a man lay violent 
 hands upon a clerk, and beat him, that for the beating 
 amends shall be made in the king's court \\ and for the 
 laying of violent hands upon the clerk, amends shall be 
 made in the Court-christian.§ And therefore if the judge 
 in the Court-christian would award the part}- to yield 
 damages for the beating, he did against the statute. || But 
 admit that a man be excommenged for a thing that the 
 spiritual court may award the party to make satisfaction of, 
 as for the not inclosing of the church-yard, or for not ap- 
 parelling of the church conveniently ;H then I think the 
 party must make restitution, or lay a sufficient caution, if 
 
 :;: 3 Inst. 122. 
 
 t And a wrongful excommunication by a spiritual judge, may likewise 
 be punished by an action upon the case, or an indictment at the suit of 
 the king. 2 Inst. 623. 
 
 \ See the Stat. Articuli Cler., 9 Ed. 2, c. 3. 
 
 £ Mr. Justice Blackstone says, that a person guilty of beating a clergy- 
 man, i- subject to three kinds of prosecution, all ot which may be pur- 
 sued for one and the same offence, viz., an indictment for breach of the 
 king's peace by such assault and battery; a civil action for the special 
 damage BUStained by the party injured, and a suit in the Ecclesiastical 
 Court. 4 15. C 218. 
 
 ]| 2 Burn's Eel. Law, 48. 
 
 \ 1 Mod. 194; 1 Vent. 367; Gibs. 1063; 2 Burn's Eccl. Law, 227, 228.
 
 • Dialogue II. — Chap. 23- 2 °3 
 
 he be able, or he be assoiled ; but if the party oiler sufficient 
 amends, and have his absolution, and the judge will not 
 make him his letters of absolution, if the excommengement 
 be of record in tin: kino's court, then the king may write 
 unto the spiritual judge, commanding him that he make the 
 parly his letters of absolution, upon pain of contempt:* and 
 if the said excommunication be not of record in the king's 
 court, then the party may in such case have his action 
 against the judge spiritual, for that he would not make him 
 his letters of absolution. f But if he be not able to make 
 satisfaction, and therefore the judge spiritual will not assoil 
 him, what the king's laws may do in this case I am some- 
 what in doubt, and will not much speak of it at this time ; 
 but, as I suppose, he may as well have his action in that 
 case for the not assoiling him, as where he is assoiled, and 
 that the judge will not make him his letters of absolution. 
 And I suppose the same law to be, where a man is accursed 
 tor a thing that the judge hath no power to accurse him in, 
 as for debt, trespass, or such other. J 
 
 Doct. There he may have other remedies, as a Pncniu- 
 nire facias, or such other : and therefore I suppose the 
 other action lieth not for him. 
 
 Stud. The judge and the party may be dead, and then 
 no Pr&munire lieth ; and though they were alive, and were 
 condemned in Prcemunire^ yet that should not avoid the 
 excommengement : and there I think the action lieth, 
 specially if he he thereby delayed ot" actions that he might 
 have in the king's court if the said excommengement had 
 not been. 
 
 Chap. XXXIII. — Whether a prelate may refuse a legacy. 
 
 It is moved in the said sum named rosella, in the title 
 alienatio 20, the nth article, whether a prelate may refuse 
 a legacy? Wherein divers opinions be recited there, 
 
 i! See post., c. ,56. 
 t 2 Inst. 623. 
 J Ante. 1S0
 
 204 Doctor and Student. g 
 
 which, as methinketh, had need after the laws of the realm 
 to be more plainly declared. 
 
 Doct. I pray thee shew me what the law of the realm 
 will therein. 
 
 Stud. I think that every prelate and sovereign that may 
 only sue and be sued in his own name, as abbots, priors, 
 and such other, may refuse any legacy that is made to the 
 house :* for the legacy is not perfect till he to whom it is 
 made assent to take it : for else, if he might not refuse it, he 
 might be compelled to have lands, whereby he might in 
 some case have great loss. But that if he intend to refuse, 
 lie must, as soon as his title by the legacy falleth, relinquish 
 to take the profits of the thing bequeathed ; for if one take 
 the profits thereof, he shall not after refuse the legacy ; but 
 yet his successor may, if he will, refuse the taking of the 
 profits, to save the house from yielding damages, or from 
 arrearages of rents, if any such be. And like law is of a 
 remainder as is in legacy. For though in the case of a re- 
 mainder, and also of a devise, as most men say, the free- 
 hold is cast upon him by the law, when the remainder or 
 devise falleth : yet it is in his liberty to refuse the taking of 
 the profits, and to refuse the remainder, if he will, as he 
 might do of a gift of lands or goods. | For if a gift be made 
 to a man that refuseth to take it, the gift is void :$ and if it 
 be made to a man that is absent, the gift taketh no effect in 
 him till he assent, § no more than if a man disseise one to 
 another man's use, he to whose use the desseisin is made, 
 hath nothing in the land, ne is no disseisor, till he agree. || 
 And to such disseisins and gifts an abbot or prior may dis- 
 agree, as well as another man. But after some men, a 
 bishop, of a devise or remainder that is made to the bishop 
 and to the dean and chapter, nor a dean and chapter of a 
 
 Ante, 31. 
 t Br. Done, pi. 7. 
 
 : ii'-, pi- 30- 
 
 § But the belter law is, that the property vests in him till he disagrees. 
 Wood's Conv. 118; 1 Salk. 301 
 
 || Co. Lilt. 180; Bro., tit. Disseisin, 12 ■
 
 Dialogue II. — Chap. 
 
 33- 205 
 
 devise or remainder made to them, neyet the master of a col- 
 lege, of such a devise or remainder made to him and to his 
 brethren, may not disagree without the chapter or brethren : 
 for the bishop of such land as he hath with the dean and 
 chapter, ne the dean nor master of such land as they have 
 with the chapter and brethren, may not answer without the 
 chapter and brethren :* and therefore some sav, that if the 
 dean or master will refuse or disclaim in the lands that they 
 have by the devise or remainder, that disclaimer without the 
 chapter or brethren is void. And therefore it is holden in 
 the law, that if a bishop be vouched to warrant, and the 
 tenant bindeth him to the warranty by reason of a lease 
 made to him by the bishop, and by the dean and the chap- 
 ter, yielding a rent, that in that case the bishop may not 
 disclaim in the reversion without the assent of the dean and 
 chapter :t but yet if a reversion were granted to a dean and 
 a chapter, and the dean refuse, the grant is void. And so 
 it appeareth that the dean may refuse to take a gift or grant 
 of lands or goods, or of a reversion made to him and to 
 the chapter ;$ and yet he may not disagree to a remainder 
 or devise. And the diversity is, because the remainder and 
 devise be cast upon him without any assent, whereupon 
 neither the dean nor the chapter by themselves may in no 
 wise disagree without the assent of the other : but a gift or 
 grant is not good to them without they both assent. And 
 in such gilts, as I suppose, an infant may disagree as well 
 as one of full age : but if a woman covert disagree to a grift, 
 and the husband agree, that gift is good.§ 
 
 Doct. What if the lands in that case of a man and his 
 wife be charged with damages, or be charged with more 
 rent than the land is worth, and the husband d;e ; shall the 
 wile- be charged to the damages or to the rent? 
 
 Stud, I think nay, it the wife refuse the occupation of 
 the trround after her husband's death. And I think the same 
 
 *Co. Litt. 103. 
 
 f Br. Disclaimer, pi. 7; 40 Ed. 3. -7. 
 
 J Watson's Clergyman's Law, 377: Co. Litt. 263, 264. 
 
 § Br. Done, pi. 4.
 
 206 Doctor and Student. 
 
 law to be, if a lease be made to the husband and the wife, 
 yielding a greater rent than the land is worth, that the wife 
 after the husband's death may refuse the lease, to save her 
 from the payment of the rent : and so may the successor of 
 an abbot,* 
 
 Doct. And if the husband in that case out-live the wife, 
 and then make his executors and die, whether may his ex- 
 ecutors in like wise refuse the lease? 
 
 Stud. If they have goods sufficient of their testator to 
 pay the rent, I think they may not refuse it : but if they 
 have not goods sufficient of their testator to pay the rent to 
 the end of the term, I think, if the}' relinquish the occupa- 
 tion, they may by special pleading discharge themselves 
 of the rent and the lease ; and if they do not, they may 
 lightly charge themselves of their own goods. f And if a 
 lease be made for term of life, the remainder to an abbot for 
 term of life of John at Stile, reserving a greater rent than 
 the land is worth, and after the tenant for term of life dieth ; 
 the abbot may refuse the remainder, for the cause before 
 rehearsed \% and in case that the abbot assent to the re- 
 mainder, whereby he is charged to the rent during the time 
 that he is abbot, and after he dieth or is deposed, living the 
 said John at Stile, in that case his successor may discharge 
 himself, by refusing the occupation of the land as is afore- 
 said. But I think that if such a remainder were made to a 
 dean, and to the chapter, and the dean agree without the 
 assent of t'ie chapter, that in that case the dean and the 
 chapter may afterwards disagree to the remainder, and that 
 the: act of the dean without the assent of the chapter shall 
 not charge the chapter in that behalf. And thus it appear- 
 eth, though the meaning of the said chapter and article in 
 the said sum be, that a prelate may not disagree unto a 
 legacy for hurting ot the house, yet he may alter the laws 
 
 *4 Danv. Abr. 714; Br. Abr., pi. 30; 43 Ass. 23. 
 f 1 Vent. 271 ; Salk. 297; I Mod. 1S5, iS. ,. 
 
 J Br. Abbe. 30; 37 Ass. 17; Br. Waiver de Choses, pi. 20; post. 209; 
 ante, 32.
 
 Dialogue II. — Chap. 34. 207 
 
 of the realm disagree thereto where it should hurt his house. 
 And it in a Pracrpe quod reddat there be but one tenant, 
 be he spiritual or temporal, and he refuse by way of dis- 
 claimer, in such case where he may disclaim by the law ;* 
 there the land shall vest in the demandant: and if there be 
 two tenants, then it shall vest in his fellow, if he will take 
 the whole tenancy upon him, or else it shall vest in the de- 
 mandant. But if an abbot or layman refuse the taking of 
 the profits, and shew a special cause why it should hurt 
 him, if he do assent, and be thereby discharged, as is said 
 before ; in whom the land shall then vest it is more doubt, 
 whereof I will no farther speak at this time. And thus it 
 appeareth bv divers of the cases that be put in this chapter, 
 that he that is ignorant in the law of the realm shall lack 
 the true judgment of conscience in many cases. For in 
 man}' of these cases what may be done therein by the law, 
 must also be observed in conscience, etc. 
 
 Chap. XXXIV. — Whether a gift made under a condition 
 
 be void, if the sovereign only break the condition. 
 
 In siinnna rosella, in the title alienatio, the 12th article, 
 is asked this question, Whether a gift made under a certain 
 form mav be voided or revoked, because the prelate or 
 sovereign onlv did break the lorm? And it is there an- 
 swered, That it may not, for that the deed of the prelate 
 only sought not to hurt the church : and if those words 
 {under a manner) be understood oi a gift upon condition, 
 as they seem to be, then the said solution holdeth not in 
 this realm neither in the law nor conscience. 
 
 Doct. What is then the law of England if a man infeoff 
 an abbot by dce\\ indented, Upon condition that if the abbot 
 pay not to the feoffor a certain sum of money at such a day. 
 that then it shall be lawful to the feoffor to re-enter, and at 
 that day the abbot faileth of his payment; may the feoffor 
 lawfully re-enter, and put out the abbot? 
 
 *Co Litt. 362.
 
 2o8 Doctor and Student. 
 
 Stud. Yes, verily, for he has no right to the land but by 
 the gift of the feoffor, and his gift was conditional ;* and 
 therefore if the condition be broken, it is lawful by the law 
 of England for the feoffor to re-enter and to take his land 
 again, and to hold as in his first estate : by which re-entry 
 after the laws of the realm, he disproveth the first livery of 
 seisin, and all the mesne acts done between the first feoff- 
 ment and the re-entry. f And it forceth little in the law, in 
 whom the default be that the condition was not performed, 
 whether in the abbot, or in his covent, or in both, or in any 
 other person whatsoever he be, except it be in the feoffor 
 himself. And it is great diversity between a clear gift 
 made to an abbot without condition, and where it is made 
 with condition : for when it is made without condition, the 
 act of the abbot only shall not by the Common law disherit 
 the house, but it be in very few cases. But yet upon divers 
 statutes the sufferance ot the abbot only may disherit the 
 house, as by his cesser, or by levying a cross upon a house 
 against the statute thereof made, in which case the house 
 thereby shall leese the land : and some say that by the 
 Common law upon his disclaimer in avowry a writ ot right 
 of disclaimer lieth. But if the gift be upon condition, it 
 standeth neither with law nor conscience that the abbot 
 should have any more perfect or sure estate than was given 
 unto him : and therefore as the said estate was made to the 
 house upon condition, so that estate may be avoided for not 
 performing of the condition. And I think verily, that this 
 I have said is to be holden in this realm both in the law and 
 conscience, and that the decrees of the church to the con- 
 trary bind not in this case. But if the lands be given to an 
 abbot, and to his covent, to the intent to find a lamp, or to 
 give certain alms to poor men ; though the intent be not in 
 these cases fulfilled, yet the feoffor nor his heir may not 
 re-enter ; for he reserved no re-entry by express words : ne 
 in the words, when he said, to the intent to find a lamp, or 
 
 * Shep. Touch. 114. 
 t4Rep. 120; Plow. 186.
 
 Dialogue II. — Chap. 2S- 2 °9 
 
 to give alius, etc., is implied no re-entry:* lie the feoffor 
 nor his heirs shall have no remedy in such cases, unless it 
 be within the case of the statute of Westminster the second, f 
 that giveth the Cessavit de Cantaria.% 
 
 Chap. XXXV. — Whether a covenant made upon a gift to 
 the ehurch, that it shall not be aliened, be good. 
 
 In the said sum, called summa rosclla, the said title 
 alienatio, the 13th article, is asked this question, Whether 
 a covenant made upon a gift to the church, that it shall not 
 be aliened, be good? And the same question is moved 
 again in the said summa called rosella, in the title conditio, 
 the first article, and in summa angelica, in the title donatio 
 prima, the fifty-first and fifty-second articles. And the in- 
 tent of the question the reis, Whether notwithstanding that 
 the condition be good to some alienations, whether that yet 
 it be good to restrain alienations for the redemption of them 
 that be in captivity under the infidels, or for the greater ad- 
 vantage of the house? And though the better opinion be 
 there, that the condition may not be broken for redemption 
 ot them that be in captivity; yet it is in manner a whole 
 opinion that it may be sold for the greater advantage to the 
 house ; for it is said there, that it may not be taken but that 
 the intent of the giver was so; and therefore they call the 
 condition that prohibiteth it to be sold conditio tnrpis, that is 
 to say, a vile condition ; wherefore they regard it not. But 
 verily, as I take it. if a condition may restrain any manner 
 of alienations, then it shall as well restrain alienations for 
 the two causes before rehearsed, as for any other causes ; 
 and though methinketh that the condition is good, and after 
 
 ♦Wood's Inst. 140; Co. Litt. J04; 1 Roll. Abr. 407; Reg. 238; 2 Inst. 
 460; F. N B. 4S1, 4S3; 3 Black. Com 232. 
 
 t ; ; Ed 1. c. 41. 
 
 JN. B. Since the suppression of religious houses, the laws relating to 
 ahbots and priors, which make so conspicuous a figure in our old books, 
 are become quite abolished. See ante. 3:- Consequently the matter of 
 which this chapter is composed cannot now come into use. 
 
 14
 
 210 Doctor and Student. 
 
 the law of the realm, that upon gifts to the church aliena- 
 tion is restrained ; yet I shall touch one reason that is made 
 to the contrary, that is this : There is a clear ground in the 
 law,* that if a ieoffment be made to a common person in fee, 
 upon condition that the feoffee shall not alien to no man ;f that 
 condition is void, because it is contrary to the estate of a fee- 
 simple, lo bind him that hath the estate that he should not alien 
 if he list. X And some say that an abbot that hath lands to him 
 and to his successors, hath as high and as perfect a fee-simple 
 as hath a layman that hath land to him and to his heirs ; and 
 therefore they say, that it is as well against the law of the 
 realm to prohibit that the abbot shall not alien, as it is to 
 prohibit a layman thereof. And though it be therein true as 
 they say, as to the highness of the estate, yet methinketh 
 there is a great diversity between the cases concerning 
 their alienations. For when lands be given in fee-simple 
 to a common person, the intent of the law is that the feoffee 
 shall have power to alien, and if he do alien, it is not 
 against the intent of the law, ne yet against the intent of 
 the feoffor ; but when lands be given to an abbot and to his 
 successors, the intent of the law is, and also of the giver, 
 (as it is to presume) that it should remain in the house for 
 ever; and therefore it is called Mortmain, that is to say, a 
 dead hand,§ as who saith, that it shall abide there ahvay 
 as a thing dead to the house. And therefore, as I suppose, 
 the law will sutler that condition to be good, that is made 
 to restrain that such Moi'tmain should not be aliened :|| and 
 that yet it may prohibit the same condition to be made upon 
 a feoffment made in fee-simple to a man and to his heirs :H 
 for that is the most high, the most free, and the most pure 
 
 »2 C B. 157. 
 
 t Ante, S6, 63. 
 
 J Co. Lilt. S, 94. 
 
 § If the reader wishes to be further acquainted with the doctrine of Mort- 
 main, and the several statutes made for restraining it, he may consult Doc- 
 tor Burn's Eccl. Law, title Mortmain, and the 2d vol. B. C. 268, where the 
 subject is discussed in a masterly manner. 
 
 || Co. Litt. 223; Wood's Conv. 277. 
 
 ^ Litt., sec. 11.
 
 Dialogue II. — Chap. 35. 211 
 
 estate that is m the law. But the law suffereth such a con- 
 dition to be made upon a gift in tail,* because the statute 
 prohibiteth that no alienation should be made thereof.f 
 And then, as the law suffereth such a condition upon a 
 gift in Mortmain, that is to say, that he shall not be 
 aliened, to be good ; so it judgeth the condition also accord- 
 ing to the words : that is to saw if the condition be general, 
 that they shall not alien to no man, as this case is, that it 
 shall be taken generally according to the words, and it shall 
 not be taken that the intent of the giver was otherwise than 
 he expressed in his gitt : though percase if he were alive 
 himself, and the question were asked him, whether he 
 would be contented it should be aliened for the said two 
 causes or not, he would sav yea ; but when he is dead no 
 man hath authority to interpret his gilt otherwise than the 
 law suffereth, nor otherwise than the words of the m(t be. 
 And if the condition be special, that is to say, that the land 
 shall not be aliened to such a man or such a man, then the 
 condition shall be taken according to the words, and then 
 they ma) T be aliened as for that condition to any other but 
 to them to whom it is expressly prohibited that the land 
 should not be aliened to.i And if the lands in that case be 
 aliened to one that is not excepted in the condition, then he 
 may alien the land to him that is first excepted without 
 breaking of the condition ; for conditions be taken strictly 
 in the law, and without equity. § And thus methinketh, 
 that because the said condition is general, and restraineth 
 all alienations, that it may not be aliened neither by the 
 law of the realm, ne yet by conscience, no more for the 
 said two causes, than it may lor any other cause. And this 
 
 Shep. Touch. 126. 
 
 1 This must ho understood of an alienation, by which the estate is dis- 
 continued tortiously, as a feoffment in lee, or a line at Common law, for 
 't is clear that tenant in tail, notwithstanding the condition, may alien by 
 a line according to the statute 4 II. 7, or by Common recovery. 1 Burr. 
 84; Co. Litt 2:4; ante, S6. 
 
 % Litt., sec. 361 ; Wood's Conv. 276. 
 
 § Co. Litt. 205.
 
 212 Doctor and Student. 
 
 case must of necessity be judged after the rules and grounds 
 of the law of the realm, and after no other law, as me 
 
 seemeth. 
 
 Chap. XXXVI. — If the 'patron ■present not within six 
 months, who shall present? 
 
 In the same sum called summa rosella, in the title bene- 
 Jicium, in principio, it is asked, if the patron present not 
 within six months, who shall present, and within what time 
 the presentment must be made? And it is answered there, 
 that if the patron present not within six months, that the 
 chapter shall have six months to present ; and if the chap- 
 ter present not within six months, that then the bishop shall 
 haveothersix months ; and if he be negligent, then the metro- 
 politan shall have other six months ; and if he present not, 
 then the presentment is devolute to the patriarch ; and if 
 the metropolitan have no superior under the pope, then the 
 presentment is devolute to the pope. And so, as it is said 
 there, the archbishop shall supply the negligence of the 
 bishop, if he be not exempt ;* and if he be exempt, the pre- 
 sentment immediately shall fall from the bishop to the pope. 
 And, as I suppose, these diversities hold not in the laws of 
 the realm. 
 
 Docl. Then, I pray thee, shew me who shall present by 
 the laws of the realm, if the patron do not present within 
 six months. 
 
 Stud. Then for default of the patron the bishop shall 
 present, unless the king be patron ; and if the bishop pre- 
 sent not within six months, then the metropolitan shall pre- 
 sent, whether the bishop be exempt or not : j and if the 
 metropolitan present not within the lime limited by the law, 
 then there be divers opinions who shall present, for some 
 say the pope shall present, as it is said before, and some 
 say the king shall present .% 
 
 Ante, iSS. 
 f God. 242. 
 \ Watson's Com. Inc., c. 12, pp. 114, 115, 116.
 
 Dialogue II. — Chap. 36. 213 
 
 Doct. What reason make they that say the king should 
 present in that case? 
 
 Stud. This is their reason ; they say that the king is pa- 
 tron paramount of all the benefices within the realm.* And 
 they say farther, that the king and his progenitors, kings 
 of England, without time of mind, have had authority to 
 determine the right of patronages in this realm in their own 
 courts, and are bound to see their subjects have right in that 
 behalf within the realm, and that in that case from him lieth 
 no appeal. And then they say, that if the pope in this case 
 should present, that then the king should not only leese his 
 patronage paramount, but also that he should not sometime 
 be able to do right to his subjects. 
 
 Doct. In what case were that? 
 
 Stud. It is in this case : The law of the realm is, that if 
 a benefice fall void, then the patron shall present within six 
 months; and if he do not, that then the ordinary shall 
 present :f but yet the law is farther in this case, that if the 
 patron present before the ordinary put in his clerk, that then 
 the patron of right shall enjoy his presentment ; and so it is 
 though the time should fall after to the metropolitan, or to 
 the pope. \ Ami if the presentment should fall to the pope, 
 then though the advowson abode still void, so that the pa- 
 tron might of right present, yet the patron should not know 
 to whom he should present, unless he should goto the pope, 
 and so he should fail of right within the realm. Ami if 
 percase he went to the pope, and presented an able clerk 
 unto him, and vet his clerk were refused, and another pat 
 in at the collation of the pope, or at the presentment of a 
 stranger : yet the patron could have no remedy tor the 
 wrong within the realm, lor the incumbent might abide still 
 out of the realm. And therefore the law will suffer no tide 
 in this case to fall to the pope.§ And they say, that for a 
 
 1 Burn's Eccl. 126; Hob. 143. 
 f Hob- 15 \ ; Kelw =;<>. 
 
 X 2 Inst 273; j r>. e". --77: Br. Qua. Imp., pi. 131: Ilutt. 24: Hob. 1535 
 Moor. 900. 
 
 § 30 Ass. 19; Fitzh. Excom.j pi. 10; Roll. Abr. SS3.
 
 214 Doctor and Student. 
 
 like reason it is, that the law of the realm will not allow an 
 excommencement that is certified into the kind's court un- 
 der the pope's bulls :* for if the party offered sufficient 
 amends, and yet could not obtain his letters of absolution, 
 the king should not know to whom to write for the letters 
 of absolution, and the party could not have right; and that 
 the law will in no wise suffer. 
 
 Doct. The patron in that case may present to the ordinary, 
 as long as the church is void ; and if the ordinary accept 
 him not, the patron may have his remedy against him 
 within this realm. But if the pope will put in an incumbent 
 before the patron present, it is reason that he have the pre- 
 sentment, as me seemeth, before the king. 
 
 Stud. When the ordinary hath surcessed his time, J he 
 hath lost his power as to the presentment, specially if the 
 collation be devolute to the pope.| And also when the 
 presentment is in the metropolitan, he shall put in the clerk 
 himself, and not the ordinary. And so there is no default 
 in the ordinary, though he present not the clerk of the 
 patron, if his lime be past; and so there lieth no remedy 
 against him for the patron. 
 
 Doct. Though the incumbent abide still out of the realm, 
 yet may a J^jiarc Im-pcdit lie against him within the realm : 
 and if the incumbent make default upon the distress, and 
 appear not to shew his title, then the patron shall have a 
 writ to the bishop according to the statute, and so is not 
 wi lli out remedy. 
 
 Stud. But in this case it cannot be summoned, attached, 
 nor distrained, within the realm. 
 
 Doct. He may be summoned by the church, as the ten- 
 ant may in a writ of right of advowson.§ 
 
 Stud. There the advowson is in demand, and here the 
 
 * Nor will it allow any bulls to be obtained from Rome, or to be used or 
 put in use by any person on pain of a praemunire, or high treason. See 
 th vcral statutes on this bead in 3 Bac. Abr., title Praemunire. 
 
 -j Ante, 212. 
 
 J 2 Roll. Abr. 368. 
 
 § 11 II. 6, 3, b.
 
 Dialogue II. — Chap. 36. 215 
 
 presentment is only in debate ;* and so he cannot be sum- 
 moned by the church here, no more than if it were in a writ 
 of annuity, and there the common return is, quod Clcricus 
 est beneficiatuS) uon kabens Laicum fcod, ubi potest siidi- 
 moneri. And though he mi<jht be summoned in the church, 
 yet he might neither be attached nor distrained there ; and 
 so the patron should be without remedy. f 
 
 Doct. And it he were without remedy, he should }'et be 
 in as good case as he should be if the king should present: 
 for it" the title should be given to the king, the patron had 
 lost his presentment clearly for the time, though the church 
 abide still void. For I have heard say, that in such pre- 
 sentments no time alter the law of the realm runneth to the 
 king. 
 
 Stud. That is true, but there the presentment should be 
 taken from him by right, and by the law, and here it should 
 be taken from him against the law, and there as the law 
 could not help him ; and that the law will not suffer.:}: 
 
 Doct. Yet methinketh alway that the title of the lapse in 
 such case is given by the law of the church, and not by the 
 temporal law : and therefore it forceth but little what the 
 temporal law wiil in it, as me seemeth. 
 
 Stud. In such countries where the pope hath power to 
 determine the right of temporal things, I think it is as thou 
 sayest ; but in this realm it is not so. And the right of pre- 
 sentment is a temporal thing, and a temporal inheritar.ee ;§ 
 and therefore I think it belongeth to the king's law to deter- 
 mine, and also to make laws who shall present after six 
 months, as well as before, so that the title of examination 
 of ability or non-ability be not thereby taken from the or- 
 dinary. || And in like wise it is ot" avoidance of benefices, 
 that is to say, then it shall be judged by the king's laws 
 
 F. N. B. 74; 2 II. 6, 3. b; 2 Inst. 4. 
 t3 Burn's Ecc. Law, iSS. 
 J Post- ^16; Watson's Com. Inc. 16. 
 §^ Inst. J7.5 ; ante, 189. 
 || Ante, iSS.
 
 216 Doctor and Student. 
 
 v j 5 
 
 when a benefice shall be said void,* and when not, and 
 not by the law of the church :| as when a parson is made a 
 bishop,^ or accepleth another benefice without a licence, or 
 resigneth, or is deprived ; in these cases the common law 
 saith, that the benefices is void, and so they should be, 
 though a law were made by the church to the contrary. § 
 And so if the pope should have any title in this case to pre- 
 sent, it should be by the law of the realm. And I have 
 not seen ne heard that the law of the realm hath given any 
 title to the pope to determine any temporal thing that may 
 be lawfully determined by the king's court. 
 
 Doct. It seemeth by that reason that thou hast made now, 
 that thou preferrest the king's authority in presentments be- 
 fore the pope's ; and that methinketh should not stand with 
 the law of God, sith the pope is the vicar-general under God. 
 
 Stud. That I have said proveth not that for the highest 
 preferment in presentments he is to have authority to ex- 
 amine the ability of the parson that is presented, for if the 
 presentee be able, it sufficeth to the discharge of the ordi- 
 nary by whomsoever he be presented, and that authority is 
 not denied by the law of the realm to belong alway to the 
 spiritual jurisdiction. || But my meaning is, that as to the 
 right of presentments, and to determine vyho ought to pre- 
 sent, and who not, and at what time, and when the church 
 shall be judged to be void, and when not, belong to the 
 king and to his laws : or else it were a thing in vain for him 
 to hold plea of advowsons, or to determine the right of 
 patronage in his own courts, and not to have authority to 
 determine the right thereof, and those claims seem not to 
 be against the law of God.lf And so me seemeth in this 
 case the presentment is given the king. 
 
 Duct. And it the king should have right to present, then 
 
 Po i. jiS. 
 I Pal. $44; Hob. 158- 
 
 JWithouta commendam. Watson'6 Clergyman's Law, 2065 Hob. 143. 
 §3 Com;,:,' Digi t, 207; Watson'6 Com. Inc. 5, 8, 18, 19, 27. 
 |1 Watson's Clergyman's Law, 212; Burn's Ecc. Law, 137. 
 \ Ante, 210.
 
 Dialogue II. — Chap. 37. 217 
 
 might the church happen to continue void for ever ; for as 
 we have said before, no time runneth to the king in such 
 presentment. 
 
 Stud. If any such case happen, if the king present not, 
 then may the ordinary set in a deputy to serve the cure, as 
 he may do when negligence is in other patrons that may 
 present, and do not;* and also it cannot be thought that 
 the king, which hath the rule and governance over the peo- 
 ple, not only ot their bodies, but also of their souls, will 
 hurt his conscience, and suffer a benefice continually to 
 stand without a curate, no more than he doth in advowsons 
 that be of his own presentment. 
 
 Chap. XXXVII. — Whether the -presentment and collation 
 
 of all benefices and dignities, voiding at Rome, belong- 
 eth only to the pope. 
 
 In the same sum called summa rosella, in the tide bene- 
 fieium primtim, in the 13th article, it is said, that benefices, 
 dignities and parsonages voiding in the court of Rome may 
 not be given but by the pope; and likewise of the pope's 
 servant-;, and ot other that come and go from the court, if 
 they die in places nigh to the court within two days journey, 
 all these belong to the pope : but if the pope present not 
 within a month, then alter the month they to whom it be- 
 longeth to present, may present bv themselves only, or by 
 their vicar-general, if they be in far parts. And these say- 
 ings hold not in the laws of the realm. 
 
 Doct. What i< the cause that they hold not in this realm 
 as w ell as in ;ill other realms? 
 
 Stud One cause is this : The king in this realm, ace >rd- 
 ing to die ancient right of his crown, o( all his advowsons 
 that be ot his patronage ought to present, ami in like wise 
 other patrons ot' benefices ol t eir presentment : am! the 
 pleas oi the right of presentments oi benefices within this 
 realm belong to the king and his crown. f Ami these titles 
 
 Watson's Clergyman's Law, 120; 2 15. C. ^77- 
 
 | Ante, J 15.
 
 218 Doctor and Student. 
 
 cannot be taken from the king and his subjects but by their 
 assent; and the law that is made therein to put away the 
 title bindeth not in this realm. And over that before the 
 statute of 25 Ed. 3, there was a great inconvenience and 
 mischief by reason of divers provisions and reservations 
 that the pope made to the benefices in this realm, contrary 
 to the old right of the king, and other patrons in this realm, 
 as well to the archbishopricks, bishopricks, deanries and 
 abbies, as to other dignities and benefices of the church. 
 And many times aliens thereby had benefices within the 
 realm that understood not the English tongue, so that they 
 could not counsel ne comfort the people when need re- 
 quired ; and by that occasion great riches was conveyed 
 out of the realm. Wherefore, to avoid such inconveniences, 
 it was ordained by the said statute, that all patrons, as well 
 spiritual as temporal, should have the presentments freely : 
 and in case the collation or provision were made by the 
 pope in disturbance of any spiritual person, that then for 
 that time the king should have the presentment; and if it 
 were in disturbance of any lay patron, that then if the pa- 
 tron presented not within the half-year after such voidance, 
 nor the bishop of the place within a month alter the half- 
 year, that then the king should have also the presentment, 
 and that the king should have the profits of the benefices 
 so occupied by provision, except abbies and priories, and 
 other houses that have college and covent, and there the 
 college and covent, to have the profits. And because the 
 statute is general, and excepteth no such benefices as shall 
 void in the court of Rome, or in such other place as before 
 appeareth, therefore they be taken to be within the pro- 
 vision of the said statute, as well as the benefices that void 
 within the realm : ami all provisors and executors of the 
 said collations and provisions, and all their attornies, nota- 
 ries and mainlainers, shall be out of the protection of the 
 king, and shall have like: punishment as they should have 
 for executing of benefices voiding within the realm.* 
 
 * Sec likewise slat. 38 Ed. 3, st. 2 ; 12 R. 2, c. 15 ; 13 R. 2, st. 2 ; 7 R. 2, 
 c. 12, and 16 R. 2, c- 5.
 
 Dialogue II. — Chap. 38. 219 
 
 Doct. But I cannot see how the said statute may stand 
 with conscience, that so far restrained the pope of his Lib- 
 erty, which as me seemeth, he ought in this case of right 
 to have. 
 
 Stud. Because (as I suppose) that patrons ought of right 
 to have their presentments under such manner as they claim 
 them in this realm, as I have said before, and as in the 26th 
 chapter of this book appeareth more at large. Also foras- 
 much as it appeareth evidently, that great inconvenience 
 followed upon the said provisions, and that the said statute 
 was made to avoid the same, which sith that time hath been 
 suffered by the pope, and hath been alway used in this 
 realm without resistance, it seemeth that the said statute 
 should therefore stand with good conscience. 
 
 Chap. XXXVIII. — If a house by chance fall upon a 
 horse /hat is borrozved, zvho shall bear the loss? 
 
 In the said sum called summa rosclla, the said title casus 
 J'or/uftits, in the beginning, is put this case :* If a man 
 lend another a horse, which is called there a deftos/tum, 
 and a house by chance lalleth upon the horse, whether in 
 that case Ih- shall answer tor the horse ? And it is answered 
 there, that if the house were like to fall, that then it cannot 
 betaken as a chance, but as the default of him that had the 
 horse delivered to him : hut if the house were strong, and 
 ol likelihood, and by common presumption, in no danger 
 of falling, but that ii fell by a sudden tempest, or sucli other 
 Casualty, thai then it shall be taken as a chance, and he that 
 had the keeping of the horse shall be discharged. And 
 though tins diversity agreeth with the laws of the realm, 
 yet tor the more plainer declaration thereof, and tor the 
 more like cases and chances that may happen to goods, 
 that a man hath in his keeping that he not his own, I shall 
 add a little more thereto that shall be somewhat necessary, 
 as methinketh, to the'ordering of conscience. First, a man 
 
 * See William Jones, Essay on Bailments, 6S.
 
 220 Doctor and Student. 
 
 may have of another by way of loan or borrowing money, 
 corn, wine, and such other things, where the same thing 
 cannot be delivered if it be occupied, but another thing of 
 like nature and like value must be delivered for it ; and such 
 things he that the} r be lent to, may by force of the loan use 
 as h.s own, and therefore if they perish, it is at his 
 jeopard}' ; and this is most properly called a loan. Also a 
 man may lend to another a horse, an ox, a cart, or such 
 other things as may be delivered again, and they by force 
 of that loan may be used and occupied reasonably in such 
 manner as they were borrowed for, or as it was agreed at 
 the time of the loan that they should be occupied : and if 
 such things be occupied otherwise than according to the 
 intent of the loan, and in that occupation they perish, in 
 what wise soever they perish, so it be not in default of the 
 owner, he that borrowed them shall be charged therewith 
 in law and conscience :* and if he that borrow them occupy 
 them in such manner as they were lent for, and in that oc- 
 cupation they perish in default of 'him that they were lent 
 to, then he shall answer for them : and if they perish not 
 through his default, then he that owneth them shall bear the 
 loss. Also if a man have goods to keep to a certain day, for a 
 certain recompence for the keeping, he shall stand chargedor 
 not charged after as default or no default shall be in him, as 
 before appeareth : and so it is if he have nothing for the keep- 
 ing. But if he have lor the keeping, and make a promise at 
 the time ot the delivery, to redeliver them safe at his peril, 
 then he shall be eharged with all chances that may fall. 
 But if he make that promise, and have nothing for keeping, 
 I think he is bound to no such casualties, but that be wilful 
 and his own default, for that is a mule or a naked promise, 
 whereupon, as I suppose, no action lieth.f Also if a man 
 find goods ot another, if they be after hurt or lost by wilful 
 negligence, he shall be charged lo tin- owner: but if they 
 
 * 2 B. C 4.S4; Lord Ruym. 915. 
 
 ■; Hargrave's edition of Coke upon Littleton, 89,90; Lord Raym. 909; 12 
 Mod. 4S7 ; Sir William Jones on Bailment, 45; Ow. 141; I Leon, 224; 1 
 Cro. 219
 
 Dialogue II. — Chap. n>9' <1 - 1 
 
 be lost by other casualty, as if they be laid in a house tha J 
 by chance is burned, or if he deliver them to another to 
 keep, that runneth away with them, I think he is discharged. 
 And these diversities hold most commonly upon pledges, or 
 where a man hireth goods of his neighbour to a certain day 
 for certain money.* And many other diversities be in the 
 law of the realm, what shall be to the jeopard}' of the one, 
 and what of the other, which I will not speak ot at this 
 time. And by this it may appear, that it is commonly 
 holden in the laws of England, if a common carrier go by 
 the ways that be dangerous for robbing, or drive by night, 
 or in other inconvenient time, and be robbed ;| or if he 
 overcharge a horse whereby he falleth into the water, or 
 otherwise, so that the stuff is hurt or impaired ; that he 
 shall stand charged for his misdemeanor : and if he would 
 percase refuse to carry it, unless promise were made unto 
 him that he shall not be charged for no misdemeanor that 
 should be in him, the promise were void, for it were against 
 reason and against good manners, and so it is in all other 
 cases like. And all these diversities be granted by 
 secondary conclusions derived upon the law of reason, 
 without an) r statute made in that behalf. And peradventure 
 laws, and the conclusions therein, be the more plain, and 
 the more open. For it' any statute were made therein, I 
 think verily more doubts and questions would arise upon 
 the statute, than doth now when they be only argued and 
 judged after the Common law. 
 
 Chap. XXXIX. — If a friest have won much goods by 
 saying of moss, whether he max give those goods, or 
 make a will of them. 
 
 In the said sum called summit rosella. in the tide clerieus 
 quartus, the 3d article, is asked this question : If a priest 
 have won much goods by saying oi mass,$ whether he 
 
 * Sir William Jones on Bailment, 7S. 
 t Noy's Max. 9J. 
 
 {Seethe Statutes 2$ Eliz., e. 1, s. 4, 9. 10, II, and 11 and 12 W., c. 4, s 
 3, 5, and 3 J., c. 5, s. 1, against saving and hearing mass.
 
 222 Doctor and Student. 
 
 may give those goods, or make a will of them? Whereto it 
 is answered there, that he may give them, or make a will 
 of them, specially when a man bequeaths money for to have 
 masses said for him.* And the like law is of such things 
 as a clerk winneth by the reason of an office : for it is said 
 there, that such things come to him by reason of his own 
 person. Which sayings I think accord with the law of the 
 realm. But forasmuch as the said article, and in divers 
 other places of the said chapter, and in divers other chapters 
 of the said sum, is put great diversity between such goods as 
 a clerk hath by reason of his church, and such goods as he 
 hath by reason of his person ; and that he must dispose such 
 goods as he hath by reason of his church in such manner 
 as is appointed by the law of the church, so that he may 
 not dispose them so liberally as he may the goods that come 
 by reason of his own person : therefore I shall a little touch 
 what spiritual men may do with their goods after the law 
 of the realm. 
 
 jFtrst, A bishop, of such goods as he hath with the clean 
 and chapter, he may neither make gift nor bequest ;f but 
 of such goods as he hath of his own by reason of his church, 
 or of the gift of his ancestors, or of any other, or of his 
 patrimony, he may both make gifts and bequests lawfully. 
 And an abbot of the goods of his church may make a gift, 
 and that gift is good as to the law : but what it is in con- 
 science, that is after the cause and intent and quality of the 
 gift. For if it be so much that it notably hurteth the house 
 or the covent, or if he give away the books or the chalices, 
 or such other things as belong to the service of God, he 
 ofl'ench th in conscience \\ and yet he is not punishable in 
 the law, ne yet by sabpccna, after some men, ne in none 
 otherwise but by the law of the church, as a waster of the 
 goods of his monastery. But nevertheless I will not fully 
 
 * Such a bequest as this would now be superstitious and void. Duke's 
 Charitable Uses, 106. 
 
 fSwin. on Wills, 107; Shep. Touch. 452; Perk., sec. 497 ; 1 Roll. Abr. 
 60S. 
 
 JAnte, 32.
 
 Dialogue II. — Chap. 39. 223 
 
 hold that opinion, as to that that belongeth necessarily to 
 the service of God, whether any remedy lie against him or 
 not, but remit it to the judgment of other.* And of a dean 
 and chapter, and a master and brethren, of goods that they 
 have to themselves, and also of goods that they have with 
 the chapter and brethren the same diversity holdeth, as ap- 
 peareth before of a bishop and the dean and chapter ; except 
 that in the case of a master and brethren the goods shall be 
 ordered as shall be assigned by the foundation. And more- 
 over, of a parson of a church, vicar, or chantry priest, or 
 such other, all such goods as they have, as well such as 
 they have by reason of the parsonage, vicarage, or chaun- 
 try, as that they have by reason of their own person, they 
 may lawfully give and bequeath where they will after the 
 Common law : and if they dispose part among the parish- 
 ioners, and part to the building of churches, or give part to 
 the ordinary, or to poor men, or in such other manner, as 
 it is appointed by the law of the church, they offend not 
 therein, unless they think themselves bounden thereto by 
 duty, and by authority of the law of the church, not regard- 
 ing the king's laws :f for if they do so, it seemeth they resist 
 the ordinance of God, which hath given power to princes 
 to make laws. But there, as the pope hath sovereignty in 
 temporal things as he hath in spiritual things, there some 
 say that the goods of priests must in conscience be disponed 
 as is contained in the said sum. But that holdeth not in 
 this realm ; for the goods of spiritual men be temporal in 
 what manner soever they come to them, and must be 
 ordered after the temporal law, as the goods of the tem- 
 poral men must be. Howbeit, if there were a statute 
 made in this case of like effect in many points as the law 
 of the church is, I think it were a right good and a profit- 
 able statute. 
 
 *I Roll. Abr. 60S; Wood's Conv. 795; Swinburne on Wills, 107. 
 t Duke's Charitable Uses, 10S, 109.
 
 224 Doctor and Student. 
 
 Chap. XL- — Who shall succeed a clerk that dicth intes- 
 tate? 
 
 In the said sum, called rosclla, in the chapter clcricus 
 quart us, the 7th article, is asked this question, Who shall 
 succeed to a clerk that dieth intestate? And it is answered, 
 That in goods gotten' by reason of the church, the church 
 shall succeed ;* but in other goods his kinsmen shall suc- 
 ceed after the order of the law, and if there be no kinsman, 
 then the church shall succeed. And it is said farther, That 
 goods gotten by a canon secular by reason of his church 
 or prebend shall not go to his successor in the prebend, but 
 to the chapter. f But where one that is beneliced is not of 
 the congregation, but he hath a benefice clearly separate, 
 as if he be a parson of a parish-church, or is a president, 
 or an archdeacon not beneficed b} r the chapter, then the 
 goods gotten by reason of his benefice shall go to his suc- 
 cessor, and not to the chapter. And none of these say- 
 ings hold place in the laws of England. 
 
 Doct. What is then the law, if a parson of a church or 
 a vicar in the country die intestate, or if a canon secular be 
 also a parson, and have goods by reason thereof, and also 
 by a prebend that he hath in a cathedral church, and he 
 die intestate, who shall have his goods? 
 
 Stud. At the Common law the ordinary in all these cases 
 may administer the goods, and after he must commit ad- 
 ministration to the next faithful friends of him that is dead 
 intestate that will desire it, as he is bound to do where lay- 
 men that have goods die intestate. % And if no man de- 
 sire to have administration, then the ordinary may admin- 
 ister^ and see the debts payed : and he must beware that 
 
 :;: ' Ante, 222. 
 
 t Swinb. 107. 
 
 % Swinb. 107; vide the Statutes 31 Ed. 3, c. 11, and 21 II. 8, c. 5; B. C. ? 
 2 vol. 511. 
 
 § It is usual for the ordinary in case none of the friends or creditors of 
 the deceased will administer to his effects, to commit administration to
 
 Dialogue II. — Chap. 40. 225 
 
 he pay the debts in such order as is appointed in the Com- 
 mon law : tor if he pay debts upon simple contracts before 
 an obligation, he shall be compelled to pay the debt upon 
 the obligation of his own goods, if there be not goods suf- 
 ficent of him that died intestate.* And though it he suf- 
 fered in such case that the ordinary may pay pound and 
 poundlike, that is, to apportion the goods among the debtors 
 alter his discretion, yet by the rigour of the Common law 
 he might be charged to him that can first have his judgment 
 against him. J And furthemore, by that is said before in 
 the last chapter it appeareth, that if a bishop that hath goods 
 of his bishoprick or of his patrimony, or a master of a col- 
 lege, or a clean, of goods that they have of their own only 
 to themselves, die intestate, that the ordinary shall commit 
 administration thereof, as before appeareth :t and if they 
 make executors, then the executors shall have the ministra- 
 tion thereof. But the heirs nor the kinsman, by that reason 
 only that they be heirs or of kin to him that is deceased, 
 shall have no meddling with his goods, § except it be by 
 custom of some countries, where the heirs shall have heii 
 looms, or where the children (the debts and legacies|| paid) 
 
 such persons of discretion as he approves of, or to grant him letters ad col- 
 ligendum bona de fundi. Wood's Con v. 147. 
 
 •Office of Exec. 216; ante, 132; Nov's Max. 104. 
 
 J- Ante, 130. 
 
 \ Ante. 224. 
 
 § Ante, 130; Co. Litt. iS, iS;. 
 
 || The term legacies in this place appears to be improper, as the customs 
 of London, principality of Wales, and the province of York, to which it 
 is presumed a reference is here made, cannot take place hut where a free- 
 man or an inhabitant die- without making any disposition of his effects, 
 and if so he can 't give any legacies. 
 
 In London th ■ children are intitled to their reasonable part (if not 
 barred by ad\ ancement or will after the debts, customary funeral expences, 
 and the widow's chamber are deducted, 4 Burn's Eccl. Law. 370; and in the 
 province of York, and principality of Wales (after the funeral expences 
 and necessary charges are paid), lb. 392. For the nature and quantum of this 
 reasonable part within these three distinct places, see 1 P. Will. J41 ; 4 
 Burn's Eccl. Law, 392, 393, 412; and see further the several statutes relat- 
 ing to this subject, viz., 4 and 5 W. & M., c. 2, explained by 2 and 3 Ann., 
 
 15
 
 226 Doctor and Student. 
 
 shall have a reasonable part of the goods, after the custom 
 of the country.* 
 
 Chap. XLI. — If a man be outlawed of felony, or be at- 
 tain led for murthcr or felony, or that is an Ascismus, 
 
 may be slain by every stranger. 
 
 Doct. It appeareth in the said sum, called summa an- 
 gelica, in the 2ist chapter, in the title of Ascismus, the 
 second paragraph, that he is an Ascismus that will slay men 
 for money at the instance of every man that will move him 
 to it ; and such a man may lawfully be slain not only by the 
 judge, but by every private person. But it is said there in 
 the fourth paragraph, that he must first be judged by the 
 law as an Ascismus, ere he may be slain, or his goods 
 seised. And it is said farther there in the second paragraph, 
 that also in conscience such an Ascismus may be slain, if 
 it be done through a zeal of justice, and else not. Is not 
 the law of the realm likewise of men outlawed, abjured, or 
 judged for felony? 
 
 Stud. In the law of the realm, there is no such law, that 
 a man shall be judged as an Ascismus : ne if a man be in 
 full purpose, for a certain sum of money that he hath re- 
 ceived, to slay a man, yet it is no felony ne murther in the 
 law till he hath done the act : for intent of felon}'- nor mur. 
 ther is not punishable by the Common law of the realm, f 
 though it be deadly sin before God ;| but in treason, or in 
 
 c. 5, for the province of York; 7 and 8 W. 3, c. 38, for Wales, and 11 Geo. 
 4, c. 18, for London. 
 
 * 4 Burn's Eel. Law, 247. 
 
 f But by the law as it stood in very ancient times, a bare intention to 
 commit felony, was held so criminal that it was punishable as felony itself, 
 when it missed its effect, through chance or accident. 1 I law. P. C, cap. 
 25, p. 655 for voluntas reputabatur pro facto, 3 Inst. 161 . And though it 
 Keems to be settled that at. this day felony shall not be laid to the charge 
 of an offender where in fact none is committed, yet the party may be se- 
 verely fined for such an intent on. 1 Haw. P. C, cap. 25, p. 6". And by 
 a modern statute, viz, 7 Geo- 2, 21, an assault with an intent to rob is 
 felony, but the offender may chuse transportation. 
 
 \ 1 II. P. C. 109; 3 Inst. 5, 6, 12 ; 5 Mod. 207, 208; Savil. 31, pi. 73.
 
 Dialogue II. — Chap. 41. 227 
 
 some other particular cases, by statute* that intent may be 
 punished. And though a man in such case kill a man for 
 money, yet he shall not be attainted that he is an Asci'smus; 
 for, as it is said before, there is no such term of Ascismtts 
 in the law of the realm : bet lie shall in such case be ar- 
 raigned upon the murther, and if he confess it, or plead 
 that he is not guilty, and is found guilty by twelve men, he 
 shall have judgment of life, and of member, and shall for- 
 feit his lands and goods. And like law is of an appeal 
 brought of the murther; if he stand dumb, and will not 
 answer to the murther, he shall be attainted of the murther, 
 and shall forfeit life, lands and goods. f But if he be ar- 
 raigned of the murther upon an indictment at the king's 
 suit, and thereupon standeth dumb, and will not answers 
 there he shall not be attainted of the murther, but he shall 
 have Paine fort and dure, that is to say, he shall be pressed 
 to death, % and he shall there forfeit his goods and not his 
 lands. But in none of these cases, that is to say, though a 
 man be outlawed for murther or felony, or be abjured, or 
 that he be otherwise attainted ; yet it is not lawful for any 
 man to murther him, or slay him, ne to put him in execu- 
 tion, but by authority of the king's laws. Insomuch that 
 if a man be adjudged to have Paine fort and dure, and the 
 officer beheadeth him, or on the contrary wise putteth him 
 
 Ni>' stat. 25 Ed. 3; slat. 5, c. e, par. i. 
 
 t 4 H- C 194; Co. Litt 41 ; i Kelying, 37; 2 In^t. 17S; Bro. Corone, p!. 
 43; Bro. Appeal, 40; 2 Hale's P. C. 317— contra, 21 Ed. 3, iS; Bro. P. .in, 
 pi S; 2 Haw. 1'. C. 3:9: Ba m's Use of tlie Law, 39; 2 Haw. P. C. 331, 
 cap- 30, s. 19; 1 Hale*-. P. C 4 ,7 
 
 X But now by the statute 12 Geo. 3, c. 30, if any person beine; arraigned on 
 an_v indictment of appeal of felony, or on any indictment tor piracy, shall 
 upon mi h arraignm :it stand mute, or will not answer directly to the felony 
 or piracy, he .shall be convicted ol the offence, and the court shall there- 
 upon award judgment and execution in the same manner as if he had 
 been convicted by verdict or c mfession, and sucb judgment shall have all 
 the same consequences as a conviction by verdict or confession. The reader 
 will observe, that the crimes of treason and petit larceny arc not mentioned 
 in this act, and the reason is because in these offences, standing mute was 
 equal to conviction before the statute, and the prisoner was not sentenced 
 to the peine forte et dure. 2 Haw. P. C, c. 30, sees. 9, 10.
 
 228 Doctor and Student. 
 
 to paine forte and dure, where he should behead him he of- 
 fendeth the law. And if an officer which hath authority to 
 put a man to death, may not put him to death but accord- 
 ing to the judgment, then melhinketh it should tollovv that, 
 more stronger a stranger may not put such a man to death 
 of his own authority without commandment of the law.* But 
 if the judgment be that he shall be hanged in chains, and 
 the officer hangeth him in other things, and not in chains, 
 I suppose he is not guilty of his death. But some say he 
 shall there make a fine to the king, because he hath not 
 followed the words of the judgment. 
 
 Also, if a man that is no officer would arrest a man that 
 is outlawed, abjured, or attainted of murther or felony, as is 
 aforesaid, and he disobeyeth the arrest, and by reason of 
 the disobedience he is slain ;f I suppose the other shall not 
 be impeached for his death ; for it is lawful unto every man 
 to take such persons, and to bring them forth that they may 
 be ordered according to the law. But if a Cafiias be di- 
 rected unto the sheriff' to take a man in an action of debt 
 or trespass, there no man may take the man, but he have 
 authority from the sheriff: and if any man attempt of his 
 own authority to take him, and he resisteth, and in the re- 
 sisting is slain, he that would have taken him is guilty of 
 his death. 
 
 Chap. XLII. — Whether a man shall be bounden by the 
 act or offence of his servant or officer. 
 
 In the said sum called minima angelica, in the title dominus, 
 4th paragraph, is asked this question, Whether a man shall 
 be charged for his household? And it is said there, that 
 he shall, when the household offendeth in an office or min- 
 istry lhat the master is the chief officer of, and he hath the 
 work and the profit of the household: for it shall be his 
 default that he would chuse such servants, for he ought to 
 
 Finch Law, 31 ; 3 Inst. 54; 1 Hal. P. C. 501. 
 f 4 B. C. 3 i5-
 
 Dialogue II. — Chap. 42. 229 
 
 appoint I onest persons.* But is said there, that it is to be 
 understood civilly, and not criminally, whereby, as it is 
 said there, he that is a governour is bound lor the offence 
 of his officers ; and that the same is to be liolden of a cap- 
 tain, that he shall be bound lor the offence of his 6quires, 
 and an host for his guest, and such other. Nevertheless it 
 is said there, that certain doctors, there rehearsed, said 
 thereto, that if the office be an open or publick office, as an 
 office of power, or other like, it sufficeth to bring forth him 
 that offended : but it is otherwise if it be not a publick office, 
 but an host or a taverner, or other like. But if the house- 
 hold offend not in the office, the lord is not bound as to the 
 law, but in conscience he is bound if he were in default by 
 not correcting them ; for he is bound to correct them both 
 by word and example, and if he find any incorrigible, he 
 is bound to put him away, except that he hath presump- 
 tions, that if he do so, he will be the worse, and then he may 
 do that he thinketh best, and he is excused, and else not; 
 lor to such persons it is said Error qui non resistitur ap- 
 probatur, that is to say, an error that is not resisted is ap- 
 proved. And though divers of the sayings before rehearsed 
 agree with the law of the realm, yet all do not so; and also 
 they that do are to be observed by authority of the law of 
 the realm, and not by the authority alleged in the said 
 paragraph. And therefore I intend to treat somewhat 
 where the master shall be charged by his servant or deputy, 
 or by them that be under him in any office, and where not; 
 and then I intend to touch some other things, where the 
 master after the laws of the realm shall be charged bv the 
 act of his servant in other cases not concerning offices, and 
 \\ here not. 
 
 Firsts If a man be committed to ward upon arrearages 
 of accompt, and the keeper of the prison suffereth him 
 to 140 at large, then an action of debt shall lie against him. 
 And if he be not sufficient, then it lieth against him that 
 committed the keeping of the prison unto him :f and that 
 
 Post. J70. 
 f 2 ln>t. 382; Cow. Rep 405.
 
 230 Doctor and Student. 
 
 is by reason of the statute of Westminister 2, cap. it. 
 Also if bailiffs of franchises that have return of writs make 
 a false return, the party shall have averment against it, as 
 well of too little issues as of other things, as well as he shall 
 have against the sheriff; but all the punishment shall be 
 only upon the bailiff, and not upon the lord of the franchise : 
 and that doth appear by the statute made in the first year 
 of Edw. III., the fifth chapter.* But if an under-sheriff 
 make a return whereupon the sheriff shall be amerced, there 
 the high-sheriff shall be amerced, for the return is made 
 expressly in his name.f But if it be a false return where- 
 upon an action of disceit lieth, in that case it may be 
 brought against the under-sheriff. And see thereof the 
 statute that is called statutum de male rctumantibus brcvia. 
 
 Also, if the king's butler make deputies, he shall answer 
 for his deputies as for himself; J as appeareth in the statute 
 made in the twenty-first year of king Edw. III. Dc -firodi- 
 tionibus, the twenty-first chapter. 
 
 Also in the statute that is called statutum scaccarii. it is 
 enacted, among other things, That no officer of the ex- 
 chequer shall put any clerk under him, but such as he will 
 answer for. And forasmuch as the statute is general, it 
 seemeth that he shall answer as well for an untruth in any 
 such clerk as for an oversight. § 
 
 Also in the fourteenth year of king Edw. III., c. 9, it is 
 enacted, That all gaols shall be adjoined again to the 
 shires, and that the sheriff shall have the keeping of them, 
 and that the sheriff shall make such under-gardeins for the 
 which they will answer. || And nevertheless I suppose 
 that if there be an escape by default of the gaoler, that the 
 king may charge the gaoler, if he will. I' But it is no doubt 
 
 Dal ton's Sheriff, 462, 177; 27 II. 8, c 24, s. 9; Viner's Abr., title Re- 
 turn, 191. 
 
 f3 Unls. 78; 1 Buls. 73; Dalt. Sher. 456. 
 
 X Obsolete. 
 
 §Slat. 51 H. 3, stat. 55 4 Inst. 107. 
 
 || Vent. 401 ; Skinn. 41. 
 
 H 2 II. P. C. 135, c 19.
 
 Dialogue II. — Chap. 42. 231 
 
 but he may charge the sheriff, by reason of this statute, if 
 he will. lint if it be a wilful escape in the gaoler, which 
 is felon}' in him, the sheriff shall not be bound to answer to 
 the felony, ne none other but the gaoler himself, and they 
 that ass :nted to him.* 
 
 Also, if a man have a sheriffwick, constableship, or 
 bailiwick in fee, whereby he hath the keeping of prisoners, 
 if he let any to replevin that be not replevishable, and 
 thereof be attaint, he shall leese the office, etc.f And if it 
 be an under-sheriff, constable, or bailiff, that hath the 
 keeping of the; prison, that doth it without knowledge of the 
 lord, he shall have imprisonment by three years, and after 
 shall be ransomed at the king's will ; as appeareth in the 
 statute of West. 1, the 15th chapter. And so it appeareth, 
 that in this case, he that is lord of the prison is not bound 
 to answer for the offence of them that have the rule of the 
 prison under him, but that they shall have the punishment 
 themselves for their misdemeanor. Also there is a statute 
 made in the 27th year of king Edw. III., the 19th chapter, 
 that is called the statute of the staple, whereby it is ordained, 
 That no merchant, ne none other man, shall not leese their 
 goods for the trespass, or forfeit of their servants ; unless 
 it be by commandment of his master, or that he offend in 
 the office that his master hath put him in, or else that the 
 master shall be bound to answer for the deed of his servant 
 by the law-merchant, as in some places it is used. 
 
 Also it is enacted in the 14th year of king Edw. III., the 
 10th chapter, That wapentakers and hundreds that be 
 sev« red from the counties shall be adjoined again unto them, 
 and that if the sheriff hold them in his own hands, that he 
 shall put in them such bailiffs that have land ent, 
 
 and those for which he will answer :i and that ii he lei 
 them to term, that they be let to the ancient term : but after 
 it is prohibited by the statute of the 23d year o\ king Hen. 
 
 * 2 Haw. P. C. 134; Salk. 2~: ; 2 Inst. 592 j post 234. 
 t -• Inst. 190, 191; 1 Comyn's Digest, 473 - 
 
 J 3 Inst. 92 ; 4 Co. 34; Stat. 19 II. 7, c 10.
 
 i^i Doctor and Student. 
 
 VI., the ioth chapter, that no sheriff shall let his bailiwicks 
 nor wapentakes to ferm. And when they be once in the 
 sheriff's own hands, and the sheriff put in bailiffs, they be 
 but as under-bailiffs to the king, and the sheriff the high- 
 bailiff, and they in manner the sheriff's servants, and put 
 in only bv him ; and therefore by the said statute of king 
 Edw. III. he shall answer for them, if they offend in their 
 office. But if the sheriff let them to ferm, then though die 
 sheriff offend the statute in that doing, yet whether he shall 
 be charged for their misdemeanor in the office or not, is a 
 great doubt to some men ; for they say that this statute is 
 only to be understood where the bailiwicks be in the sheriff's 
 hands, but here they be not so, ne the bailiffs be not his 
 servants, but his fermers ; and therefore they say, that if 
 the sheriff shall be charged for them, it is by the Common 
 law, and not by the statute aforesaid. Also in the second 
 year of king Henry VI., the ioth chapter, it is enacted, That 
 officers by patent in every court of the king, that by virtue 
 of their office have power to make clerks in the said courts, 
 shall be charged and sworn to make such clerks under them 
 for whom they will answer.* Also the hospitallers and tem- 
 plars be prohibit they shall hold no plea that belongs to the 
 king's courts, upon pain to yield damages to the party 
 grieved, and to make ransom to the king : that the superiors 
 shall answer for their obediencers, as for their own deed. 
 West. 2, c. 43. | Also the Serjeant of the cater)- shall satisfy 
 all the debs, damages, and executions that shall be recov- 
 ered against any that is purveyor or achator under him, that 
 offend against the statute of 36th of Edw. III., or against 
 the statute of 24th of lien. VI., in case the purveyor or 
 achator be not sufficient, etc. And the parly plaintiff shall 
 have a Scire facias against the said serjeant in this case to 
 have execution, as appeareth in the 24th year of king 
 Henry VI., the first chapter.! 
 
 *4 Inst 1 14, 1 15. 
 
 T2 Inst. 465, 466; see stat. 32 II. S, c. 24. 
 
 \ Repealed by stat. 12 Car. 2, c. 24, and vide 13 and 14 Car. 2, cap. 20.
 
 Dialogue II. — Chap. 42. 233 
 
 Also, if a man be sent to prison upon a statute-merchant 
 by the mayor before whom the recognizance was taken, and 
 the gaoler will not receive him, he shall answer for the debt, 
 ii" he have wherewith; and if not, then he shall answer 
 that committed the gaol to him, as appeareth in the statute 
 called the Statute-tner chant.* 
 
 And il outragious toll be taken in the town-merchant, f 
 if it be the king's town let to farm, the king shall lake the 
 franchise of the market into his hands ;i and if it be done 
 by the lord of the town the king shall do in like wise : and 
 ii it be done by the bailiff, unknowing to the lord, he shall 
 yield again as much as he hath taken, and shall have im- 
 prisonment of forty days. And so it appeareth that the 
 lord in this case shall not answer for his bailiff. West. 1, 
 c. 3. And in all the cases before rehearsed, where the su- 
 perior is charged by the default of him that is under him, 
 he in whose default his superior is so charged, is bound in 
 conscience to restore him that is so charged through his de- 
 fault: except the case before rehearsed of the hospitallers, 
 for all that the obediencer hath is the superior's if he will 
 take it.§ And therefore what recompence shall be made by 
 the obediencer in that case, is at the will of the superior. 
 And now I intend to show thee some particular cases, where 
 the master alter the laws of the realm shall be charged by 
 the act of his servant, bailiff, or deputy, and where not; 
 and so for to make an end of this chapter. 
 
 First, For trespass of battery, or wrongful entry into 
 lands or tenements, ne yet lor felony or murther, the mas- 
 ter .shall not be charged lor his servant, unless he did it by 
 his commandment. || 
 
 Also, if a servant borrow money in his master's name, the 
 master ehall not be charged with it unless it come to his use, 
 
 * 13 I'd. 1, slat. .5. 
 
 1 2 Inst. 219, 220. 
 
 i That is, till it be red seined by the owner. : Tn^t. 221. For the market 
 is n t absolutely forfeited, but only the toll. Pal S:. 
 § Ante, 231. 
 
 || 2 Roll. Rep. :;; .- Mod. 244; 1 B.C. 450.
 
 234 Doctor and Student. 
 
 and that by his assent. And the same law is, if a servant 
 make a contract in his master's name, the contract shall not 
 bind his master, unless it were by his master's command- 
 ment, or that it came to the master's use by his assent.* 
 But if a man sends his servant to a fair or market to buy 
 for him certain things, though he command him not to buy 
 them of no man in certain, and the servant doth according, 
 the master shall be charged : but if the servant in that case 
 buy them in his own name, not speaking of his master, the 
 master shall not be charged, unless the things bought come 
 to his use. 
 
 Also, if a man send his servant to the market with a thing 
 which he knoweth to be defective, to be sold to a certain 
 man, and he selleth it to him, there an action lieth against 
 the master :| but if the master biddeth him not to sell it to 
 any person in certain, but generally to whom he can, and 
 he selleth it according, there lieth no action of deceit against 
 the master.! 
 
 Also, if the servant keep the master's fire negligently, 
 whereby his master's house is burnt, § and his neighbour's 
 also, there an action lieth against the master. || But if the 
 servant bear lire negligently in the street, and thereby the 
 house of another is burned, there lieth no action against the 
 master. f[ 
 
 Also, if a man desire to lodge with one that is no common 
 hostler, and one that is servant to him that he lodgeth with 
 robheth his chamber, his master shall not be charged for 
 
 * Bridgeman's Ren. 1:8 
 
 1 i Roll. Abr. 95; Poph. 143. 
 
 J Bridgeman's Rep. i:8. 
 
 § Nov's Maxims, c 44; 1 13. C. 4.31. 
 
 || The law is now altered in this respect by stat. 6 Ann, c^S, sec. 3, 
 which enacts that no action shall be maintained against any in whose house 
 or chamber a lire shall accidentally begin ; but if such (ire happens through 
 negligence of any servant, such servant shall forfeit 100/, or in default of 
 payment, be sent to the house of correction for eighteen months, to be 
 kept to hard labour. 
 
 Tf 1 Black. Com. 419.
 
 Dialogue II. — Chap. 42. 13$ 
 
 the robbing ; but if he had been a common hostler he should 
 have been charged. 
 
 Also, if a man be gardein of a prison wherein is a man 
 that is condemned in a certain sum of money ',* and another 
 that is in prison for felony, and a servant of the gardein 
 that hath the rule of the prison under him, wilfully letteth 
 them both escape ; in this case the gardein shall answer for 
 the debt, and shall pay a fine for the escape of the other, as 
 for a negligent escape, and the servant only shall be put to 
 answer to the felony for the wilful escape. f 
 
 Also, if a man make another his general receiver, and 
 that receiver receivelh money of a creditor of his master, 
 and maketh him acquittance, and after payeth not his 
 master; yet that payment dischargeth the creditor :J but if 
 the creditor hath taken an acquittance of him without pay- 
 ing him his money, that acquittance only were no bar to the 
 master, unless he made him receiver by writing, and gave 
 him authority to make acquittances, and then the authority 
 must be shewed. And if the creditor in such case, by 
 agreement between the receiver and him, deliver to the re- 
 ceiver an horse, or another thing in recompence of the debt, 
 that delivery dischargeth not the creditor, unless it be de- 
 livered over unto the master, and he agree to it.§ For the 
 receiver hath no such power to make no such commutation, 
 but his master give him special commandment thereto. 
 
 Also, if a servant shew a creditor of his master, that his 
 master sent him tor his money, and he payeth it unto him ; 
 that payment dischargeth him not, it the master did not 
 send him for it indeed, except that it came alter unto the 
 use of the master by his assent. 
 
 Also, if a man make a bailiff o[ a manor, and after the 
 lord of whom the manor is holden grunt the seigniors- to 
 another, and the bailiff after payeth the rent to the grantee : 
 that payment of the rent countervaileth no attornment 
 
 * Noy's Max 43. 
 
 t Ante, 230. 
 
 J Cases in Law and Equity, no. 
 
 § 2 Salk. 442; II Mod. 71.
 
 236 Doctor and Student. 
 
 though it were by fine, ne shall not bind his master, till he 
 attorn himself: but if the lord of whom the land is holden 
 dies seised of the seigniory, and the bailiff payeth the rent 
 to the heir of the lord, that is a good seisin to the heir, 
 though the bailiff had no commandment of his master to 
 pay it : lor it belongeth to his office to pay rent-service, but 
 not rent-charge, as some men say-* 
 
 Also an encroachment by the bailiff shall not bind the 
 master in avowry, if he had no commandment of the master 
 to pay it. Also, if there be lord, mesne and tenant, and 
 the tenant holdeth of the mesne as of his manor of D., the 
 mesne maketh a bailiff, and after the tenant makelh a feoff- 
 ment, the feoffee tendeth notice to the bailiff, and he ac- 
 cepted! is rent with arrearages ;| this notice shall not bind 
 the lord, ne compel him to alter his avowry : for the office 
 of a bailiff stretcheth not thereto, but he must have therein 
 a special commandment of his master. Also, if a servant 
 ride upon his master's horse to do an errand for his master, 
 into a town that hath authority to make attachments of 
 goods upon plaints of debt, etc., and there, upon a plaint 
 of debt made against the servant, the master's horse is at- 
 tached by the officers, thinking that the horse were his own, 
 and, because the servant appeareth not, the officers seise 
 the horse as forfeit ; in this case the lord shall have an action 
 of trespass against the officers, and this attachment for the 
 dubt of his servant shall not bind him, etc. But that an 
 host or keeper of a tavern shall be charged lor their guests, 
 unless it be done by their assent and commandment, I do 
 not remember that I have read it in the laws of England. 
 
 Chap. XL1II. — Whether a villain or a bondman may give 
 a w ay h is goo ds . 
 
 Doct. It appeareth in the said sum called summa angelica, 
 in the title donatio prima, the 9th paragraph, that a bond- 
 man, or a religious man, a monk, ne such other that hath 
 
 * 1 Roll. Abr. 125. 
 
 f 1 Danv. Abr. 6S6; 12 Mod. 354.
 
 Dialogue II. — Chap. 43. 237 
 
 nothing in proper, may not give, but it be by licence of their 
 superior :* but that saying is not, as it is said there, to be 
 understood of religious persons that have lawful ministra- 
 tion ol goods ; for if they give with a cause reasonable, it 
 is good, but without cause they may not. 
 
 Also, if they by the licence of the prelate, with the coun- 
 sel of the more part of the covent, abide at school or go on 
 pilgrimage, they may give as other honest scholars and pil- 
 grims be reasonably wont to do ; and they may also give 
 alms where there is great need, if they have no time to ask 
 licence. 
 
 Also, if they see one in extreme necessity, they may give 
 alms though their superiors prohibit them, for then all 
 things be in common by the law of God.f And therefore 
 they be bound for to do it, as appeareth in the aforesaid sum 
 called summit angelica, in the title Elccmosyna, the 6th 
 paragraph, Doth not the law of England agree with these 
 diversities ? 
 
 Stud. Forasmuch as the question is only made, Whether 
 a villain or bondman may give away his goods or not? 
 And it seemeth that after the aforesaid sum in the title 
 which thou hast before rehearsed, that he, ne none other 
 that hath no property, may not give; whereby it appeareth 
 that the said sum taketh it, that a bondman should have no 
 property in his goods, and that therefore his gift should be 
 void : I shall somewhat touch what property and what au- 
 thority a villain hath in his goods after the law of the realm, 
 and what authority the lord hath over them. And I will 
 leave the diversities that thou hast remembered before of 
 religious persons to them that list to treat farther therein 
 hereafter. 
 
 First, If a villain have goods, either by his own proper 
 buying and selling, or otherwise by the gift of other men, 
 he hath as perfect a property. % and also as whole interest 
 
 * Ante, 32, 208- 
 
 1 Ante, 16. 
 
 % Litt., sec. 177; Perk., sec 29.
 
 238 Doctor and Student. 
 
 in them, and may as lawfull) r give them away, as any free- 
 man maj-. But if the lord seise them before his gift, then 
 they be the lord's, and the interest of the villain the reinis 
 determined.* 
 
 Also, if the lord seise part of the goods of his villain in 
 the name of all the aoodsthat the villain hath or shall here- 
 after have, that seisure is good for all the goods that he had 
 at the time of the seisure. f But if goods come to the vil- 
 lain after the seisure, he may lawfully give them away, not- 
 withstanding the said seisure. | 
 
 Also, if the lord claim all the goods of the villain, and 
 seiseth part of them : that seisure is void, and the gift of the 
 villain is good, notwithstanding the seisure. 
 
 Also, if a man be bound to a villain in an obligation in a 
 certain sum of money, and the lord seiseth the obligation ; 
 then the obligation is his, but yet he can take no action 
 thereupon, but in the name of the villain ;§ and therefore 
 if the villain release the debt, the lord is barred by that re- 
 lease. 
 
 Also, if a woman be a nief, and she marrieth a freeman, 
 the goods immediately by the marriage be the husband's, 
 and the lord shall come too late to make any seisure. || 
 And if the husband in that case maketh his wife his ex- 
 ecutrix, and dieth, and the wife taketh the same goods again 
 as executrix to her husband ;^[ yet it shall not be lawful for 
 the lord to take them from her, though she be a nief, as she 
 was before the marriage. 
 
 Also, if goods be given to a man to the use of a villain, 
 and the lord seiseth those goods, the seisure, after some 
 men, is good by the statute made in the 19th year of king 
 Hen. VII.,** wherebv it is enacted, That the lord shall enter 
 
 * Ante, 29, 154. 
 
 fCo. Litt. 118. 
 
 Jib. 
 
 § Co. Litt. 117. 
 
 || Litt., sec. 202. 
 
 t Co. Litt. 118. 
 
 •♦The statute of Hen. is now repealed.
 
 Dialogue II. — Chap. 43. 239 
 
 into lands whereof other persons be seised to the use of his 
 villain ; and they say that the same statute shall be under- 
 stood by equity of goods in use, as well as of lands in use. 
 
 Also, if a villain be made a priest, yet nevertheless the 
 lord may seise his goods and lands, as he might do before; 
 .and until the seisure, he may alien them, and give them away, 
 and as he might before he was a priest. And in this case 
 the lord may order him, so that he shall do him such ser- 
 vice as belongeth to a priest to do before any other ; but he 
 may not put him to no labour, nor other business but that is 
 honest and lawful for a priest to do. 
 
 Also, if a villain enter into religion, in his year of proof 
 he may dispose his goods as he might have done before he 
 took the habit upon him.* 
 
 Also, in like wise the lord may seise his goods as "he 
 might have done before :f but if he after make executors, 
 and be professed, and the executors take the goods to the 
 performance of the will ; then the lord may not seise the 
 goods though the executors have them to the performance 
 of the will of him that is his villain ; nor in that case the 
 lord may not seise his body, ne put him to no manner of 
 labour, but must suffer him to abide in his religion under 
 the obedience of his superior, as other religious persons do 
 that be not bondmen. And the lord hath no remedy in that 
 case for the loss of his bondman, but only to take an action 
 of trepass airainst him that received him into religion with- 
 out his license, and thereupon to recover damages as shall 
 be assessed by twelve men.:}: Many other cases there be 
 concerning the gift of the goods of a villain, whereof I 
 shall speak no more at this time; for this that I have said 
 suffjeeth to shew, that the knowledge of the king's law is 
 right expedient to the good order of conscience concerning 
 such goods. 
 
 • Litt., sec. 202. 
 
 tCo. Litt. 11S; Br. Villeinage, pi. 14, 73. 
 
 J Ante, 155.
 
 240 Doctor and Student. 
 
 Chap. XLIV. — If a clerk be ■promoted to the title of his 
 
 patrimony, and after selleth his patrimony, and after 
 falletk to poverty, whether shall he have his title therein 
 or not? 
 
 In the said sum called rosella, in the title Clcricus 
 quartus, the 24th article, it is asked, If a clerk be pro- 
 moted to the title of his patrimony, whether he may alien 
 it at his pleasure ;* and whether in that alienation the 
 solemnity needeth to be kept, that is to be kept in alienations 
 of things of the church? And it is answered there, that it 
 may not be aliened no more than the goods of a spiritual 
 benefice, if it be accepted for a title, and expressly assigned 
 unto him, so that it should go as into a thing of the church, 
 except he have after another benefice whereof he may live. 
 But if it be secretly assigned to his title, some agree it may 
 be aliened. And in this case, by the laws of the realm, it 
 may be lawfully aliened, whether it be secretly or openly 
 assigned to the title ; for the ordinary, tie yet the party him- 
 self, after the old custom of the realm, have no authority to 
 bind any inheritance by authority of the spiritual law ; and 
 therefore the land, after it is assigned and accepted to be 
 his title, standeth in the self-same case to be bought, sold, 
 charged, or put in execution, as it did before. And there- 
 fore it is somewhat to be marvelled, that ordinaries will 
 admit such land for a title, to the intent that he that is pro- 
 moted should not fall into extreme poverty, or go openly a 
 be<£<nn<j[, without knowing how the Common law will serve 
 therein : for of mere right all inheritances within this realm 
 ought to be ordered by the king's laws, and inheritance 
 cannot be bound in this realm but by line, or some other 
 matter of record, or by feoffment, or such other, or, at least 
 by a bargain that changeth an use.f And over that to 
 assign a state for term of life to him that hath a fee-simple 
 
 * Cowel's Inter., title Patrimony; Statutes i Eliz.,c 12; 13 Eliz., c. 10; 
 32 H. 8, c 2S; 14 Eliz., c. 11 ; ante, 2 2 ! J 3 Eliz., c. 11 ; 43 Eliz. 29. 
 t Ante, 23.
 
 Dialogue II. — Chap. 44. 241 
 
 before, is void in the laws of England, without it be by 
 such a matter that it work by way of conclusion or estop- 
 pel :* and in this case is no such matter of conclusion ; and 
 therefore all that is done in such case in assigning of the 
 said title is void. Also there is no interest that a man hath 
 in any manor, lands or tenements for term of life, for term 
 of years, or otherwise, but that he by the law of the realm 
 mav put away his right therein if he will. And then when 
 this man alieneth his land generally, it were against the 
 law ol the realm that any interest of such a title should re- 
 main in him against his own sale : and there is no diversity, 
 whether the assignment of the title were open or secret, and 
 so the title is void to all intents. And in like wise, if a 
 house of religion, or any other spiritual man that hath 
 granted a title after the custom used in such titles, sell all 
 the lands and goods that they have, that sale in the laws of 
 England is good as against the title, and the buyer shall 
 never be put to answer to the title. f Also some say, that 
 upon the common titles that be made daily in such case, 
 that if lie fall to poverty that hath the title, he is without 
 remedy ; for they be so made, that at the Common law 
 there is no remedy for them ; and if he take a suit in the 
 spiritual court, many men say that a Prohibition or a Prce- 
 munire lieth. And therefore it were good for ordinaries in 
 such case to counsel with them that be learned in the law 
 of the realm, to have such a form devised for making of 
 such titles, that if need be, would serve them that they be 
 made unto ; or else let them be promoted without any title, 
 and to trust in God, that if they serve him as they ought to 
 do, he will provide for them to have sufficient for them to 
 live upon. And besides these cases that I have remembered 
 before, there be many other cases put in the said sums for 
 well-ordering of conscience, that, as methinketh, are not to 
 be observed in this realm, neither in law nor conscience. 
 
 * 2 B. C. 295. 
 f Ante, 20S. 
 16
 
 i^i Doctor and Student. 
 
 Doct. Dost thou then think that there was default in 
 them that drew the said sums, and put therein such cases, 
 and such solutions, that as thou thinkest, hurt conscience, 
 rather than to give any light to it, specially in this realm? 
 
 Stud. I think no default in them, but I think that they 
 were right well and charitably occupied, to take so great 
 pain and labour as they did therein, for the wealth of the 
 people, and clearing of their conscience ; for they have 
 thereby given a right great light in conscience to all 
 countries where the law civil and the law canon be used to 
 temporal things. But as for the laws of this realm they 
 know them not, ne they were not bound to know them : 
 and if they had known them, it would little have holpen 
 them for the countries that they most specially made their 
 treatises for. And in this country also they be right nec- 
 essary and much profitable to all men, for such doubts as 
 rise in conscience in divers other manners not concerning 
 the laws of the realm. And I marvel greatly, that none 
 of them that in this realm are most bounden to do that in 
 them is to keep the people in a right judgment, and in a 
 clearness of conscience, have done no more in time passed 
 to have the law of the realm known than they have done : 
 for though ignorance may sometimes excuse, yet the knowl- 
 edge of the truth, and the true judgment, is much better:* 
 and sometime though ignorance excuseth in part, it excuseth 
 not in all ; and therefore methinketh they did very well if 
 they would yet be callers on to have that point reformed as 
 shortly as they could. And now because thou hast now 
 satisfied my mind in many of these questions that I have 
 made, 1 purpose for this time to make an cnCi. 
 
 Doct. 1 pray thee yet shew me, or that thou make an 
 end, more of these cases, that after thine opinion be set in 
 divers books of learning of conscience, that, as thou 
 thinkest, for lack of knowledge of the law of the realm, do 
 rather blind conscience, than give a light unto it : for if 
 it be so, then surely, as thou hast said, it would be reformed. 
 
 * Post. 248.
 
 Dialogue II. — Chap. 45. 24.3 
 
 For I think verily, the laws of the realm in many cases 
 must in this realm he observed as well in conscience, as in 
 the judicial courts of the realm. 
 
 Stud. I will with good-will shew to thee shortly some 
 other questions that be made in the said sum, to give thee 
 another occasion to see therein the opinions of the said 
 sums, and to see farther thereupon how the opinions and 
 the laws of the realm do agree together. And yet besides 
 these questions that I intend to shew unto thee, there be 
 many other questions ot the said sums that had as great 
 need to be more plainly declared according to the laws of 
 the realm, as those that I shall shew thee hereafter, or as I 
 have spoken of before. But to the cases that I shall speak 
 of hereafter I will shew thee nothing of my conceit in them, 
 but shall leave it to others that will of charity take some 
 farther pain hereafter in that behalf. 
 
 Chap. XLV. — Divers questions taken by the student out 
 of the sums called summa rosella and summa angelica, 
 which he thinkcth necessary to be looked upon, and to be 
 seen how they stand and agree with the law of the 
 
 realm. 
 
 The first question is this, Whether a custom may break a 
 law positive? summa rosella. titulo consuetitdo. parag. 13.* 
 
 The second is. If a man attainted or banished be restored 
 by the prince, whether shall that restitution stretch to the 
 goods? summa rosella. in the title damnalus in fri>icifiio.\ 
 
 Item, It' a man that is outlawed of felony, ahjured, or at- 
 tainted of murder or felony, or he that is an aseismus. may 
 be slain by strangers? And see the like matter thereto, 
 summa- angelica, in the title aseismus. parag. n. J 
 
 This question is somewhat answered to in a new addi- 
 tion, as appeareth before in the 14th chapter. 
 
 Item, Whether the master shall be bound by the act or 
 
 *3 Cro. 347; Doug. 10^; ante, 79. 
 t 3 Mod. 101. 
 J Ante, 22J.
 
 244 Doctor and Student. 
 
 offence of his servant or officer? summa angelica, in the title 
 do minus, parag. 4.* 
 
 This question is answered to in an addition, as appeareth 
 before in the 14th chapter. 
 
 Item, Whether a villain may give away his goods. 
 Summa angelica, in the title donatio prima, parag. cj.f 
 
 This question is answered to in an addition, as appeareth 
 before in the 43rd chapter. 
 
 Item, Whether an abbot may give, etc., summa angelica, 
 in the title donatio 1, parag. 10 and ii.J 
 
 Item, Whether a woman-covert may give away any 
 goods? And it is answered, summa angelica, in the title 
 donatio 1, par. II, that she may not, without she have 
 goods beside her dowry, but only in alms.§ 
 
 Item, If a man do treason, whether the gift of goods after, 
 before attainder, be good? summa angelica, in the title 
 donatio 1, par. 12. And it seemeth there may, and look 
 summa angelica, in the title alicnatio, par. 24. || 
 
 Item, If a man wittingly make a contract between two 
 kinsfolk, or other that may not lawfully marry together, 
 whether he hath forfeit his goods? Summa angelica, in the 
 title donatio 1, par. 14. 
 
 Item, Whether the father may give to the son? summa 
 angelica, in the title donatio prima, par. 19, and summa 
 rosclla, in the title donatio 2, par. 42. 
 
 Item, Whether a man may give above five hundred 
 shillings, ahsq; inquisitionc? Summa angelica, in the title 
 donatio 1 par. 20. 
 
 Item, Whether a gift shall be avoided by an ingratitude? 
 Summa rosclla, in the title donatio 1, par. 17 and 29. 
 And there it is said, that the gift is void by the law of 
 nature ; and look summa angelica, in the title donatio prima, 
 par. 42 and 45. 
 
 * Ante, 236. 
 
 t lb. ; Litt, sec. 177. 
 
 \ Ante, 32. 
 
 § Swin. So, 81, 95. 
 
 U 2 Hawk. P. C. 454; Stat. 13 Eliz., c 5; Skin. 357.
 
 Dialogue II. — Chap. 45. 245 
 
 Item, Whether the gift between the husband and the wife 
 may be good ? And it is said yea, when the husband giveth 
 it causa rcmunerationis. Summa rosclla, in the title donatio 
 1, par. 32. 2 Ves. 669.* 
 
 Item, If a man make a will, and enter into religion, f 
 whether he may after revoke the will? And it is said, that 
 friars minors may not, and others may. Summa rosclla, 
 in the title donatio 1, par. 35, injine. 
 
 Item, If a man give another a town, with all the rights 
 that he hath in the same, whether the patronage, etc., and 
 the tithes pass? Summa rosclla, in the title ccclcsia 1, 
 par. 56. 
 
 Item, Whether all that is bought with the money of the 
 church be the church's ? Summa rosella, in the title ccclcsia 
 1, par. 7, and it seems to be so. 
 
 Item, If a gift made to a monastery may be avoided by 
 that the giver hath children after the gilt? Summa rosclla, 
 in the title donatio 1, par. 43.+ 
 
 Item, If a man buy any thing under the half price, 
 whether he be bound by the law to restore it? Summa ro- 
 sella, in the title emptio ct venditio, par. 6.§ 
 
 Item, Whether a common thief, vcl communis depopu- 
 lalor agrorum may abjure? Summa rosella, in the title 
 emunitas 1, in priueipio. JEt habetur ibi in fine, quod licet 
 leges excipiaut plures pe/sonas, tamen per jus canonicum 
 legibus derogatum est.\\ 
 
 Item, Whether a man shall take the church tor great and 
 enormous offences that is not murther nor felony. Summa 
 rosella, in the title emunitas 2, par. 3 and 11. IT 
 
 Item, It" a man take one in the highway, anil draw him 
 out, and there beateth him, whether he shall have the pun- 
 
 « o. Litt. 3, 112; 4 Co. 29; Bro. Custom, 56; 1 P. Wins. 441. 
 ■j" Since the reformation the disabilities attending entering into religion 
 are taken away. 1 Salk- 162. 
 
 % 2 P>. C. 502 ; Gilb. 0:1 Wills, 99. 
 § Wood's Civil Law, 231. 
 || Vide stat. 21 Jac. 1, c. 28. 
 14B. C. 327.
 
 246 Doctor and Student. 
 
 ishment that is ordained for them that strike one in the high- 
 way? Summa rosclla, in the title cmunitas 2, par 6. 
 
 J lent, Whether he that taketh the church, may, after the 
 offence, be adjudged to death? Summa rosclla, in the title 
 cmunitas 2, par. 8.* 
 
 Item, Whether the bishop's palace be sanctuary ? Summa 
 rosclla, in the title cmunitas 2, par. 24. f 
 
 Item, Whether the dignity of the bishop or priesthood 
 discharge bondage? Summa rosclla, in the title cj)iscoj)us, 
 in ■principio. 
 
 Item, Whether a clerk is bound to pay an}' impositions 
 or tallages for his patrimony, or otherwise? Summa ro- 
 sclla, in the title excommunicato 1, divisionc oct., par. 4, 
 5, and 6, and divisionc 11011a, par. i.\ 
 
 Item, If it were ordained by statute, that if a man sell, 
 etc., he shall give to the king two-pence, whether a clerk 
 be bound to give it, if he sell of his prebend? Summa ro- 
 sclla, in the title Excommunicatio 1, divisionc noua, 
 par. 3-§ 
 
 Item, If it be ordained by statute, that there shall not be 
 laid upon a dead person but such a certain cloth, or thus 
 many tapers or candles ;]| whether the statute be good? 
 And it is left for a question. Summa rosclla', in the title 
 Excommunicatio 1, divisionc 18, par. 8, in fine. 
 
 Item, If a man make a lease of a mill for term of years, 
 and it is agreed that the lessee shall grind the lessor toll-free 
 during the term, If after the lessor is made an earl or a duke, 
 and hath greater household than before ; whether the lessee 
 be bound there, etc. ? Summa rosclla, in the title luimilia, 
 par. 5. 
 
 Item, If a master will not pay his servant's wages that 
 hath served him faithfully, whether that servant may take 
 
 * 4 B. C 3-^7- 
 
 t 21 Jac 1, c. 2S. 
 
 t Dalt. Just. 254, cap. 73; 3 Keb. 255. 
 
 § Post. 307. 
 
 II lb. 
 
 \ Vin. Abr., title Trespass, 532.
 
 Dialogue II. — Chap. 45. 247 
 
 secretly as much goods of his master, etc., and if he do, 
 Whether he be bound to restitution? Summa rosclla, in the 
 title Familia, par. 6, it seems he is. 
 
 Item, It things immoveable of the church may not be 
 given?* Summa rose/la, in the title Feodum, par. 1. And 
 see there is ■princi-pio what Feodum is. 
 
 Item, Whether the sons bastards and the sons lawfully 
 begotten shall inherit together?! Summa rosclla, in the 
 title Filius, par. 1. 
 
 Item, Whether father and mother may succeed to their 
 bastards?^ Summa rosclla, in the title Films, par. 4. 
 
 Item, Whether the lather may leave any of his goods to 
 his bastards? Summa rosclla, in the title Filius, par. 5. 
 And Summa rosclla, in the title Socictas, par. 23, it seems 
 he may- 
 
 Item, Whether the offence of the father shall hurt the 
 son in temporal things ?§ Summa rosclla, in the title Filius. 
 
 Item, If a man give all his lands and goods to his 
 children, whether a bastard shall have any part ?|| Summa 
 rosclla, in the title Filius, par. 22. 
 
 Item, To whom treasure found belongeth?lf Summa 
 rosclla, in the title Furtum, par. 11. 
 
 Item, If a deer, or other wild beast, that is so sore hurt 
 that he may be taken, cometh into another man's gr< und, 
 whether it be his that owneth the ground, or his that strake 
 him?** Summa rosclla, in the title Fur/urn, par. 13. 
 
 Item, Whether theft be in a little thing as well as in a 
 great thing ?ff Summa rosclla, in the title Furtum, par. iS. 
 
 Item, What pain a thief shall have?|J Summa rosclla, in 
 the title Furtum, par. 22. 
 
 Swiii. on Wills, 106. 
 
 t Ante, 33. 
 X 1 B. C. 459. 
 
 § Post 26l. 
 
 II Ante. 180; 1 Corny n's Digest, 5S3. 
 
 1 1 B. C 295, 296. ' 
 
 - * 2 B. C. 392. 
 
 ft 4 B. C, cap. 16. 
 
 ft lb.
 
 248 Doctor and Student. 
 
 Item, If the goods of dead men go to the heirs, and that 
 of damned men?* 5. Dc tern's. Suinma rosclla, in the 
 title Hcercditas, par. 1. 
 
 Item. Whether a man shall be said guilty of murder by 
 commandment, counsel, or assent ?f Summa rose/la, in 
 the title Homicidium 2, -per totum. And like matter in 
 Homicidium 4, in princifio, and in divers other cases. 
 
 Item, A man maketh a privy contract with a woman, and 
 after hath a child by her, and aftermarrieth another woman, 
 and hath a child, she not knowing the first contract ; which 
 of the children shall be his heir? Suinma rosclla, in the 
 title Illegitimns, par. 4, it seems the latter shall. 
 
 Item, Whether the pope may legitimate one to temporal 
 things, and to succeed? Summa rosclla, in the title Ille- 
 gitimns: it seems he may not as the law now stands. 
 
 Item, If goods be found that were left of the owner as 
 forsaken, who hath right to them?| Summa rosella, in the 
 title Invcnia, par. 2. And look Summa rosella, in the title 
 Furtum, par. 17. 
 
 And thus I make an end of these questions : and because 
 you desirest me in the 13th chapter to shew thee somewhat 
 where ignorance excuseth in the law of the realm, and 
 where not, I will answer somewhat to thy question, and 
 so commit thee to God. 
 
 Chap. XLVI. — Where ignorance of the law excuseth in 
 the laivs of England, and where not. 
 
 Ignorance of the law (though it be invincible) doth not 
 excuse as to the law but in few cases :§ for every man is 
 bound at his peril to take knowledge what the law of the 
 realm is, as well the law made by statute as the common 
 law : but ignorance of the deed, which may be called the 
 
 * Ante, 130, 225. 
 
 f 4 13. C. 36, 37. 
 
 J Post. zG-j. 
 
 § Douglas Rep. 471 ; ante, 76; ante, 150; post. 250.
 
 Dialogue II. — Chap. 46. 249 
 
 ignorance of the truth of the deed, may excuse in many 
 casts. 
 
 Doct. I put the case that a statute penal be made, and it 
 is enacted, that the statute shall be proclaimed by such a 
 day in every shire, and it is not proclaimed before the day, 
 and alter the day a man offends against the statute ; shall 
 he run in the penalty? 
 
 Stud. I think yea, if there be no farther words in the 
 statute to help him ; that is to say, that if the proclamation 
 be not made, that no man shall be bound by the s;alute. 
 And the cause is this : there is no statute made in this 
 realm but by the assent of the lords spiritual and temporal, 
 and of all the commons ;* that is to say, by the knights of 
 the shire, citizens and burgesses, that be chosen bv assent 
 of the commons, which in the parliament represent the 
 estate of the whole commons: and every statute there made 
 is of as strong effect in the law, as if all the commons were 
 there present personally at the making thereof. And like 
 as there needed no proclamation, if all were there present 
 in their own person ; so the law presumed there needeth no 
 proclamation when it is made by their authority : and then 
 when it is enacted, That it shall be pioclaimed, etc., that 
 is but of the favour of the makers of the statute, and not of 
 necesssity ; and it cannot therefore be taken, that their 
 intent was that it should be void if it were not proclaimed. 
 Nevertheless some be of opinion, that if a man before the 
 day appointed for the proclamation offend the statute, that 
 he should not in that case be punished ; for they say 
 that the intent of the makers of the statute shall be taken to 
 be, that none should be punished before the day : which is 
 a doubt to some other. But admit it to be as they say, that 
 lie shall be excused, yet he is not excused by the ignorance 
 of the law, but because the intent ot the makers excuseth 
 h i m . 
 
 Doct. It is enacted in the 7th year of Rich. II., cap. 6,f 
 
 .( 'list. 25. 
 
 1 Repealed by stat. 1 Jac. 1, c. 25, and 21 Jac- i, c. 2S.
 
 250 Doctor and Student. 
 
 That every sheriff shall proclaim the statute of Winchester 
 three times every year in every market town, to the intent 
 the offenders shall not be excused by ignorance, and it 
 seemeth by these words, That it" no proclamation be made, 
 that the offender may be excused by ignorance. 
 
 Stud. Some take the intent of that statute to be, that the 
 people bv that proclamation should have knowledge of- the 
 statute ot Winchester, to the intent that the forfeiture therein 
 ma}' be taken as well in conscience as in law ; and some 
 take the statute to be of such effect as thou speakest of, that 
 is to say, that no forfeiture should grow upon the statute of 
 Winchester against them that were ignorant, but proclama- 
 tion were made according to the said statute of Richard. 
 And if it be so taken, the statute of Winchester is of small 
 effect against most part of the people ; lor certain it is that the 
 said proclamation is not made : but admit it to be as they say, 
 then they that be ignorant be excused by the said particular 
 estatute specially made in that case, and not by the general 
 rules of the law : and sometimes, in divers statutes penal,* 
 they that be ignorant be excused by the same statute, as it 
 is upon tiit? statute of Rich. II., the 13th year, the 2d statute, 
 and the last chapter, where it is enacted, That if any person 
 take a benefice by provision, that he shall be banished the 
 realm, and forfeit all his goods, and that if he be in the 
 realm, he avoid within six weeks after he hath accepted it, 
 and that none shall receive him that is so banished after the 
 said six weeks, upon like forfeiture if lie have knowledge: 
 and so he that hath no knowledge is excused by the express 
 words of the statute. And in like wise he that offendeth 
 against Magna Charta is not excommenged, but he have 
 knowledge that it is prohib t that he doth. For the}' be 
 only excommenged by the sentence called Sententia lata 
 super cliartus, that do it willingly, or that do it by ignorance, 
 and correct not themselves within fifteen days alter they 
 have warning. And sometime they that be ignorant of the 
 statute be excused from the penalty of the statute, because 
 
 t Ante, iS7, 218.
 
 Dialogue 11. — Chap. 46. 251 
 
 it shall be taken that the intent of the makers of the statute 
 was, that none should be bound but they that have knowl- 
 edge : but that any man shall be discharged in the law by 
 ignorance of the law, only for that he is ignorant, I know 
 few cases, except it might be applied to infants that be in 
 their infancy, and within years of discretion ;* for if igno- 
 rance of the law should excuse in the law, many offenders 
 would pretend ignorance. f 
 
 Doct. Shall an infant that hath discretion, and knoweth 
 good fin m evil, be punished by a penal statute that he is 
 ignorant in ? 
 
 Stud. If the statute be, that for the offence he should 
 have corporal pain, I think he shall be excused, and have 
 no corporal pain \% but I suppose that that is not for the ig- 
 norance ; tor though he knew the statute, and willingly of- 
 fended, yet I think he shall have no corporal pain as where 
 he pleads joint-tenancy by deed that is found against him, 
 or if he plead a record in assise, and faileth of it at his 
 day : but that is because the law presumeth, that it was not 
 the intent of the makers of the statute that he should have 
 that punishment. § But if he be of years of discretion to 
 know good from evil, whether he shall then forfeit the pen- 
 alty of a penal statute, it is more doubt : for it is commonly 
 holden, that if an infant had not been excepted in the 
 statute of forejudgment, that the forejudgment should have 
 bound him, and so shall his cesser, and his levying of a 
 cross against the statute|) or if he be gardein of a prison, 
 and sutler a prisoner to escape, he shall pav the debt, be- 
 cause the statutes be general :^[ and if he should by the 
 statutes be bound within age, like reason will that he may 
 by a statute penal leese his goods. 
 
 Doct. If an infant do a murther or felony at such wars 
 
 *Ante, 77, 249. 
 
 f Ante, 24S. 
 
 J 1 Halo's P. C. 21 ; Plow. 364. 
 
 § 1 Hale's H. P. C. za. 
 
 II Obsolete. 
 
 \ 2 Inst. 3S2.
 
 252 Doctor and Student. 
 
 as he hath discretion to know the law, shall not he have the 
 punishment of the law, as one of full age? 
 
 Stud. I think yea ;* but that is by an old maxim of the 
 law lor eschewing? of murders and felonies : and so it is of 
 a trespass. f But these cases run not upon the ground of' 
 ignorance, but with what acts infants shall be punishable 
 or not punishable for the tenderness of their age, though 
 they be not ignorant. 
 
 Doct. Be not yet knights and noblemen, that are bound 
 most properly to set their study to acts of chivalry, for de- 
 fence of the realm, and husbandmen, that must use tillage 
 and husbandry for the sustenance of the commonalty, and 
 that may not by reason of their labour put themselves to 
 know the law, discharged by ignorance of the law? 
 
 Stud. No verily : for sith ail were makers of the statute, 
 the law presumelh that all have knowledge of that that they 
 make, as it is said before ; and as they be bound at their 
 peril to take knowledge of the statute that they make, so be 
 all them that come alter them. % And as for knights and 
 other nobles of the realm, me seemeth that they should be 
 bound to take knowledge of the law, as well as any other 
 within the realm, except them that give themselves to the 
 stud}' and exercise of the law, and except spiritual judges, 
 that in many cases be bound to take knowledge of the law 
 of the realm, as it is said before in Chap. 25 . § For though 
 they be bound to acts of chivalry for defence of the realm, 
 yet they be bound also to acts ot justice, and that (it 
 seemeth) more than other be, by reason of their great pos- 
 sessions and authority, and lor the well-ordering of the ten- 
 
 * The age of discretion at which infants are generally supposed to know 
 good from evil, and consequently to be capable of committing crimes, is 
 14. Co. Lilt. 247; 1 II. II. P. C. 25. But if an infant uider fourteen, and 
 above seven years <>l" age, commits a criminal offence; and upon his in- 
 dictment there are circumstances in his case to induce the jury to believe 
 that he was cap<ir. doll at the time the crime was perpetrated, he may be 
 co ivicted and punished, for malitia supplct cetatum. 4 B. C. 23. 
 
 j 12 Mod. 332. 
 
 J Ante, 31 . 
 
 § Ante, 18, 1S3.
 
 Dialogue II. — Chap. 47. 253 
 
 ants, servants and neighbours, that many times have need 
 of their help ; and also that they be oft Called to be of the 
 king's council, and to the general councils of the realm, 
 where their Counsel is right expedient and necessary for the 
 commonwealth. And therefore if the noblemen of this 
 realm would see their children brought up in such manner, 
 that they should have learning and knowledge more than 
 they have commonly used to have in time past, specially of 
 the grounds and principles of the law of the realm, wherein 
 they be inherit, (though they had not the high cunning of 
 the whole body of the law, but after such manner as Mr. 
 Fortescue in his book that he entituleth the book, De land- 
 {bus legtun Auglice* advertiseth the prince to have knowl- 
 edge of the laws of the realm) I suppose it would be a 
 greaf help hereafter to the ministration of justice of this 
 realm, a great surety for himself, and a right great glad- 
 ness to all the people. For certain it is, the more part of 
 the people would more gladly hear that their rulers and 
 governors intended to order them with wisdom and justice, 
 than with power and great retinues. But ignorance of the 
 deed many times excuseth in the laws of England :f and I 
 shall shortly touch some cases thereof, to shew where it 
 shall excuse, and where it shall not excuse ; and then the 
 reader may add to it after his pleasure, and as he shall 
 think to be convenient. 
 
 Chap. XLVII. — Certain cases and grounds where ig- 
 norance of the deed excuseth in the laws of England ^ 
 and vjherc not. 
 
 If a man buy a horse in open market of him that in right 
 had no property to him, not knowing but that he hath right, 
 he hath good title and right to the horse. % and the ignorance 
 shall excuse him. But if he had bought him out of the open 
 
 *Cap. 4. 
 
 t Post., cap. 47. 
 
 (Provided the directions laid down in the statutes, 2 P. & M., c. 7, and 
 31 Eliz., C 12, are followed; for which vide the statutes, and 2 Inst. 719, 
 with 2 13. C. 451.
 
 254 Doctor and Student. 
 
 market, or if he had known that the seller had no right, the 
 buying in open market had not excused him. Also if a 
 man retain another man's servant, not knowing- that he is 
 retained with him, the ignorance excuseth him both of the 
 offence that was at the common law against the maxim that 
 prohibited such retaining of another man's servant; and also 
 against the statute 35 Edw. III., whereby it is prohibit, upon 
 pain of imprisonment, that none shall retain no servant that 
 departeth within his term, without licence or reasonable 
 cause : for it hath been alway taken, that the intent of the 
 makers of the said statute was, that they that were ignorant 
 of the first retainor should not run in any penalty of the 
 statute.* And the same law is of him that retaineth one 
 that is ward to another, not knowing that he is his ward. 
 And if homage be due, and the tenant after that the homage 
 is due maketh a feoffment, and after the lord, not knowing 
 of the feoffment distraineth for the homage ;f in that case 
 that ignorance shall excuse him of his damages in a re- 
 plevin, though he cannot avow for the homage. But if he 
 had known of the feoffment, he should have yielded dam- 
 ages for the wrongful taking. Also if a man be bound in 
 an obligation that he shall repair the houses of him that he 
 is bound to by such a certain time, as oft as need shall re- 
 quire, and after the houses have need to be repaired, but he 
 that is bound knoweth it not ; that ignorance shall not ex- 
 cuse, for he hath bound himself to it, and so he must take 
 knowledge at his peril. J But if the condition had been, 
 that he should repair such houses as he to whom he was 
 
 * This statute is repealed by the act of 5 Eliz., c. 4, and the remedy now 
 pursued for retaining a servant in the service of another, is an action by 
 the old master against the new one, and the servant, or either of them, for 
 damages; but in order to intitle a man to the action, it is as necessary now 
 as it was when the statute ol Edward was in force, that the new master should 
 know of the servant's engagement with the other at the time of his re- 
 taining, or that he should afterward refuse to restore him upon informa- 
 tion or demand. 2 Lev. 63; Faucett v. Bears et ux., 1 Leon. 240; 3 B. 
 
 C 14-- 
 
 t Ante, 24. 
 
 {Hob. 14; S Rep. 92, b.
 
 Dialogue II. — Chap. 47. 255 
 
 bound should assign, and after he assigneth certain houses 
 to be repaired, but he that is bound hath no knowledge of 
 that assignment : that ignorance shall excuse him in the 
 law, for he hath not bound himself to no reparation in cer- 
 tain, but to such as the party will assign, and if he assign 
 none, he is bound to none ;* and therefore sith he that 
 should make the assignment is privy to the deed, he is 
 bound to give notice of his own assignment : but if the 
 assignment had been appointed to a stranger, then the 
 obligor must have taken knowledge of the assignment at 
 his peril. f Also, if a man buy lands whereunto another 
 hath title, which the buyer knoweth not, that ignorance 
 excuseth not him in the law, no more than it cloth of 
 goods. J Also, if a servant come with his master's horse to 
 a town that by custom may attach goods for debt, and upon 
 a plaint against the servant an officer of the town,§ by in- 
 formation of the party, attached the master's horse, think- 
 ing that it were the servant's horse, that ignorance excuseth 
 him not; for when a man will do an act, as to enter into 
 lands, seise goods, take a distress, or such other, he must 
 by the law at his peril see that that he doth be lawfully 
 done, as in the case before rehearsed. And in like wise, 
 if a sheriff by a replevin deliver other beasts than were dis- 
 trained, though that the party that distrained shew him 
 they were the same beasts, yet an action of trespass lieth 
 against him, and ignorance shall not excuse him:j| for he 
 shall be compelled by the law, as all officers commonly be, 
 to execute the king's writ at his peril according to the tenor 
 of it, and to see that the act that he doth be lawfully done. 
 But otherwise it is after some men, if upon summons in a 
 ■pracipc quod ?'cddat, the sheriff by information of the de- 
 mandant summoneth the tenant in another man's land, 
 
 * 12 Mod. 44. 
 
 f March, 156. 
 
 \ Ante, 149. 
 
 § Ante, 236; Br. Trespass, pi. 99. 
 
 || Br. Office and Officer, pi. 10; Br. Notice, pi. 23.
 
 256 Doctor and Student. 
 
 thinking it for the tenant's land;* there they say he shall 
 he excused : for in that case he doth not seise the land, ne 
 take possession in the land, but only doth summon the ten- 
 ant upon the land ; and the writ commandeth him not that 
 he shall summon the tenant upon his own land, but gen- 
 erally that he shall summon him, and nameth not in what 
 land : and then by an old maxim in the law it is taken, that 
 he shall summon him upon the land in demand : and there- 
 fore though he mistake the land, and be ignorant of it, yet 
 if the demandant inform him that that is the land that he 
 demandeth, that sufficeth to the sheriff as to his entry for 
 the summoning, as they pay, though it be not the tenant's 
 land. And here I make an end of these questions for this 
 time. 
 
 Doct. I pray thee yet or we depart take a little more 
 pain in my desire. 
 
 Stud. What is that? 
 
 Doct. That thou wouldst shew me thy mind in divers 
 cases of the law of the realm, which (as me seemeth) stand 
 not so clearly with conscience as they should do. And 
 therefore I would gladly hear thy conceit therein, how they 
 may stand with conscience. 
 
 Stud. Put the cases, and I shall with good-will say as I 
 think to them. 
 
 Chap. XLVIII. — The first question of the doctor, How 
 the law of England may be said reasonable, that -pro- 
 hibiteth than that be arraigned upon an indictment of 
 felony or murder, to have counsel. 
 
 Stud. Methinketh that the law in that point is very good 
 and indifferent, taking the law therein as it is. 
 
 Doct. Why? what is the law in this point? 
 
 Stud. The law is as thou sayest, that he shall have no 
 counsel ;f but then the law is farther, that in all things that 
 
 t 10 II. C. 12. b; ii II. C. 4; 18 E. 3, 52, b; 25 E. 3, 39, b. 
 Though this is the standing law of the land, yet the judges seldom re- 
 fuse a prisoner indicted for felony the privilege of having a counsel to
 
 Dialogue II. — Chap. 48. 257 
 
 pertain to the order of pleading, the judges shall so instruct 
 him and order him, that he shall run into no jeopardy by 
 his mispleading.* As if he will plead that he never knew 
 the man that was slain, or that he never had a pennyworth 
 of the goods that is supposed that he should steal : in these 
 cases the judges are hound in conscience to inform him that 
 he must take the general issue, and plead that he is not 
 guilty :f for though they be set to be indifferent between the 
 king and the party, as to the party and to the principal 
 matter, as they be in all other matters ; yet they be in this 
 1 se to see that the party take no hurt in form of pleading 
 in such matters as he shall shew to be the truth of the mat- 
 ter.! And that it is a great favour of the law. For in ap- 
 peal, though the justices of favour will most commonly help 
 forth the party, and sometimes his counsel also, in the form 
 of pleading, as the}' do also man}^ times in common pleas ; 
 yet they might in those cases, if they would, bid the party 
 and his counsel plead at their peril. But they may not do 
 so with conscience upon indictments, as me seemeth : for 
 it were a great unreasonableness in the law, if it should 
 prohibit him that standeth in jeopardy of his life, that he 
 should have no counsel, and to drive him to plead after the 
 strait rules and formalities of the law that he knoweth not. 
 Doct. But what if he be known lor a common offender, 
 or that the judges knowby examination, or by an evident 
 presumption, that he is guilty, and he asketh sanctuary, or 
 pleadeth misnomer, or hath some record to plead, that he 
 cannot plead after the form: may not the judges in these 
 cases bid him plead at his peril? 
 
 stand bv him, and instruct him with respect to matters of fact, and in cases 
 of high treason or misprision of treason, the prisoner is enabled bv stat. 
 7 W. 3, c. 3, to have two counsel to be named bv him, and assigned bv the 
 court or judge, and this indulgence by stat. 20 Geo. 2, c 30, is (with great 
 reason extended to parliamentary impeachments for high treason. 4B. C. 
 350; Fosl x's Crown Law, 232. 
 3 !» s t. 137. 
 
 t2 Haw. P. C. 399. 
 
 J2 Buls. 147: 3 Inst. 1.57. 
 
 17
 
 258 Doctor and Student. 
 
 S/nd. I suppose they may not : for though he be a com- 
 mon offender, or that he be guilty, yet he ought to have 
 that the law giveth him, and that he shall have the effect 
 of his pleas, and of his matters entered after the form of the 
 law. And also sometime a man by examination, and by 
 witness, may appear guilty that is not ; and in like wise 
 there may be a vehement suspicion that he is guilty, and 
 yet he is not guilty : and therefore for such suspicion or 
 vehement presumptions methinketh a man may not with 
 conscience be put from that he ought to have by the law, 
 ne yet although the judges knew it of their own knowledge. 
 But if it were in appeal, I suppose that the judges might do 
 therein as they should think best to be done in conscience ;* 
 for there is no law that bindeth them to instruct him, (but 
 as they do commonly to the parties of favour in all other 
 cases) but they may, if they will, bid him plead at his peril, 
 by advice of his counsel ; and if the appellee be poor, and 
 have no counsel, the court must assign him counsel, if he 
 ask it. as they must do in all other pleas : and that me- 
 thinketh that are bound to do in conscience, though the ap- 
 pellee were never so great an offender, and though the 
 judges knew never so certainly that he were guilty, for the 
 law bindeth them to do it. And so methinketh that there 
 is great diversity between an indictee and an appellee. 
 And the reason why the law prolribiteth not counsel in ap- 
 peal, as it doth in an indictment, I suppose is this : There 
 is no appeal brought, but that of common presumption the 
 appellant hath great malice against the appellee ;t as when 
 the appeal is brought by the wife of the death of her hus- 
 band, or by the son of the death of his father, or that an 
 appeal of robbery is brought for stealing of goods. And 
 therefore if the judges should in those cases shew them- 
 selves to instruct the appellees, the appellants would grutch 
 and think them partial : and therefore as well for the in- 
 demnity of the court, as of the appellee, in case that he b'j 
 
 * Br. Corone, pi. 54; 3 Inst. 29; 2 Haw, P. C. 400; Finch Law, 386. 
 t Haw. P. C. 401 ; Dy. 296; Finch Law, 386.
 
 Dialogue II. — Chap. 
 
 49- 259 
 
 not guilty, the law suffereth the appellee to have counsel. 
 But when that a man is indicted at the king's suit, the king 
 intendeth nothing but justice with favour, and that is to the 
 n-st and quietness of his faithful subjects, and to pull away 
 misdoers among them charitably : and therefore he; will be 
 contented that his justices shall help forth the offenders ac- 
 cording to the truth as far as reason and justice may suffer. 
 And as the king will be contented therein, it is to presume 
 that the counsel will be contented ; and so there is no danger 
 thereby, neither to the court, ne to the party. And as I 
 suppose for this reason it began that they should have no 
 counsel upon indictments, and that hath so long continued, 
 that it is now grown into a custom, and into a maxim of the 
 law, that they shall none have.* 
 
 Doct. But if the judges knew of their own knowledge 
 that the indictee was guilty, and then he pleadeth misnomer, 
 or a record that he was autcrfoils arraigned, and acquit of 
 the same murther or felony, and the judges of their own 
 knowledge know that the plea is untrue, may they not then 
 bid him plead at his peril? 
 
 Stud. I think yes; but if they know of their own knowl- 
 edge that he were guilty of the murther or felony, but that 
 the plea was untrue they knew not but by conjecture or in- 
 formation, I think tluw might not then bid him plead at his 
 peril. 
 
 Chap. XL1X. — The second question of the doctor. 
 
 Whether -.ear runty of the younger brother that is taken 
 
 us heir, because it is not known but that the eldest brother 
 
 is dead, be in conscience a bar unto the eldest brother, 
 
 us if is in laze.' 
 
 Doct. A man seised of lands in fee hath issue two sons, 
 the eldest son goeth beyond the sea, and because a common 
 voice is that he is dead, the younger brother is taken for 
 heir, the father dieth, the younger brother entereth as heir, 
 
 *3 Cro. 147; Ilutt. 133; ante, 255.
 
 iGo Doctor and Student. 
 
 and alieneth the land with a warranty, and dielh without 
 any heir of his body, and after the eldest brother cometh 
 again, and claimeth the land as heir to his father; whether 
 shall he be barred by that warranty in conscience, as he is 
 in the law ? 
 
 Stud. It is a maxim in the law, that the eldest brother 
 shall in that case be barred :* and that maxim is taken to 
 be of as strong effect in the law, as if it were ordained by 
 statute to be a bar. And it is as old a law that such a war- 
 ranty shall bar the heir, as it is that the inheritance of the 
 father shall only descend to the eldest son. And sith the 
 law so is, why then should not conscience follow the law, 
 as well as it doth in that point, that the eldest son shall have 
 the land? 
 
 Doct. For there appeareth no reasonable cause where- 
 upon the maxim ought to have a lawful beginning : for 
 what reason is it that the warranty of an ancestor that hath 
 no right to land should bar him that hath right? And if it 
 were ordained by statute, that one man should have an- 
 other man's land, and no cause is expressed why he should 
 have it ; in that- case, though he might hold the land by 
 force of that statute, yet he could not hold it in conscience, 
 without there was a cause why he should have it. And 
 these cases be not like, as me seemeth, to the forfeiture of 
 goods by an outlawry : for it will agree for this time, that 
 that forfeiture standeth with conscience, because it is or- 
 dained for ministration of justice : but I cannot perceive 
 any such case here ; and therefore methinketh that this 
 case is like to the maxim that was at the Common law of 
 wreck of the sea, that is to say, that if a man's goods had 
 been wrecked upon the sea, that the goods should have 
 been immediately forfeited to the king.f And it is holden 
 by all doctors, that that law is against conscience, except in 
 certain cases that were too long to rehearse now. And it 
 was ordained by the statute of West. i,| that if a dog or 
 
 *Lict., sec. 707; Shcp. Touch. 1S9. 
 
 f2 Inst. 167; Molloy, 237; Finch Law, 137; Ld. Raym. 474; post. 265. 
 
 % Cap . 4.
 
 Dialogue II. — Chap. 49. d6i 
 
 cat come alive to the land, that the owner, if he prove the 
 goods within a year and a day to be his, shall have them: 
 whereby the said law of wrecks of the sea is made more 
 sufferable than it was before. And some think in this case 
 that this warranty is no bar in conscience, though it be a 
 bar in the law. 
 
 Stud. I pray thee keep that case of wreck of the sea in 
 thy remembrance, and put it hereafter as one of thy ques- 
 tions, and thereupon shew me farther thy mind therein, 
 and I shall with good-will shew thee my mind. And as to 
 this case that we be in now, methinketh the maxim whereby 
 the warranty shall be a bar is good and reasonable : for it 
 seemeth not against reason that a man shall be bound, as 
 to temporal things, by the act of his ancestor to whom he 
 is heir:* for like as by the law it is ordained, that he shall 
 have advantage by the same ancestor, and have all his 
 lands by descent, if he have any right; so it seemeth that it 
 is not unreasonable, though the law, for the privity of blood 
 that is between them, suffer them to have a disadvantage 
 by the same ancestor. f But if the maxim were, that if any 
 of his ancestors, though he were not heir to him, made 
 such a warranty, that it should be a bar; I think that 
 maxim were against conscience, for in that case there were 
 no ground nor consideration to prove how the said maxim 
 should have a lawful beginning, wherefore it were to be 
 taken as a maxim against the law of reason. But me- 
 thinketh it is otherwise in this case, for the reason that I 
 have made before. 
 
 Doct. If the father bind him and his heirs to the pay- 
 ment of a debt, and die; % in that ease the son shall not be 
 bound to pay the debt, unless he have assets by descent 
 from his lather. And so I would agree, that if this man 
 have assets by descent from the ancestor that made the 
 warranty, that he should have been barred: but else me- 
 
 \nti\ 247. 
 j Ante, 114. 
 % 2 13. C. 340; Strange, 665; P. Wms. Rep. 777.
 
 262 Doctor and Student. 
 
 thinketh it should stand hardly with conscience that it 
 should be a bar.* 
 
 Stud. In that case of the obligation the law is as thou 
 sayest : and the cause is, for that the maxim of the law in 
 that case is none other, but that he shall be charged if he 
 have assets by descent : but if the maxim had been general, 
 that the heir should be bound in that case without any as- 
 sets, or if it were ordained by statute that it should be so, I 
 think that both the maxim and the statute should well stand 
 with conscience. And like law is, where a man is vouched 
 as heir, he may enter as he that hath nothing by descent : 
 but where he claimeth the land in his own right, there the 
 warranty of his ancestor shall be a bar to him, though he 
 have no assets from the same ancestor : and though it be 
 said in Ezekiel, cap. 18, " That the son shall not bear the 
 -wickedness of the father" that is understood spiritually. 
 But as to temporal goods, the opinion of the doctors is, that 
 the son sometime may bear the offence of his father. \ 
 
 Doct. Now that I have heard thy mind in this case, I 
 will take advisement therein till a better leisure, and will 
 now proceed to another question. 
 
 Stud. I pray thee do as thou sayest, and I shall with 
 good-will make answer thereto as well as I can. 
 
 Chap. L. — The third question of the doctor, If a man 
 ■prosecute a collateral -warranty , to extinct a right that 
 h<- knowcth another man hath to land, whether it be a 
 bar in conscience, as it is in law, or not? 
 
 Doct. A man is disseised of certain land, the disseisor 
 selleth the land, etc., the alienee knowing of the disseisin, 
 obtaineth a release with a warranty of an ancestor collat- 
 eral to the disseisee, that knoweth also the right of the dis- 
 seisee ;$ that ancestor collateral dieth, after whose death 
 the warranty descendeth upon the disseisee : whether may 
 
 * Rao El. 27. 
 
 t Ante, 247, 260. 
 
 X Shep. Touch. 188; ante, 91.
 
 Dialogue II. — Chap. 50. 162 
 
 the alienee in that case hoid the land in conscience as he 
 may by the law ? 
 
 Stud. Sith the warranty is descended upon him, whereby 
 he is barred in the law, methinketh that he shall also be 
 barred in conscience ;* and that this case is like to the case 
 in the next chapter before, wherein I have said that (as 
 methinketh) it is a bar in conscience. 
 
 Doct. Though it might be taken for a bar in conscience 
 in that case, yet methinketh in this ease it cannot. For in 
 that case the younger brother entered as heir, knowing 
 none other but that he was heir of right, and after, when 
 he sold the land, the buyer knew not but that he that sold 
 it had good right to sell it, and so he was ignorant of the 
 title of the eldest brother ; and that ignorance came by the 
 default and absence of himself that was the eldest brother ; 
 but in this case as well the buyer, as he that made the col- 
 lateral warranty, knew the right of the disseisee, and did 
 that they could to extinct the right, and so they did as they 
 would not should have been clone to them : and so it seem- 
 eth that he that hath the land may not with conscience 
 keep it. 
 
 Stud. Though it be as thou sayest that all they offended 
 in obtaining of the said collateral warranty ; yet such of- 
 fence is not to be considered in the law, but it be in very 
 special cases : for if such alledgings should be accepted in 
 the law, releases, and other writings, should be of small 
 effect, and upon every light surmise all writings might 
 come in trial, whether they were made with conscience or 
 not. Therefore to avoid that inconvenience, the law will 
 drive the party to answer only whether it be his deed or 
 not, and not whether the deed were made with conscience or 
 against conscience : and though the party may be at a mis- 
 chief thereby ; yet the law will rather suffer the mischief 
 than the said inconvenience. And like law is, if a woman- 
 covert for dread of her husband by compulsion of him lew 
 a fine, yet the woman alter her husband's death shall not 
 
 * 2 Inst. 335; ante, 260.
 
 264 Doctor and Student. 
 
 be admitted to shew that matter in avoiding of the fine, for 
 the inconvenience that might follow thereupon.* And 
 after the opinion of many men, there is no remedy in these 
 cases in the chancery. For they say that where the Com- 
 mon law, in cases concerning inheritance, putteth the party 
 upon any averment for eschewing of an inconvenience that 
 might follow of it among the people, that if the same in- 
 convenience should follow in the Chancery, if the same 
 matter would be pleaded there, that no subpoena should lie 
 in such cases : and so it is in the cases before rehearsed ; 
 for as much vexation, delay, costs and expences might 
 grow to the party, if he should be put to answer to such 
 averments in the Chancery, as if he were put to answer for 
 them at the Common law : and therefore they think that no 
 subpoena lieth in the said cases, ne in other like unto them. 
 Nevertheless I do not take it that their opinion is, that he 
 that bought the land in this case may with good conscience 
 hold the land, because he shall not be compelled by no law 
 to restore it ; but that he is in conscience and by the law of 
 reason bound to restore it, or otherwise to recompence the 
 part}', so as he shall be contented. And I suppose verily 
 it is so, if he will keep his soul out of peril and danger. 
 And after some men, to these cases may he resembled the 
 case of a fine with non-claim, that is remembered before in 
 the 24th chapter of this book,* where a man knowing 
 another to have right to certain land, causeth fine to be 
 levied thereof with proclaimation, and the other suffereth 
 five years to pass without claim ; in that case he hath no 
 remedy neither by Common law, nor by subpoena, and that 
 yet he that levied the fine is hound to restore the land in 
 conscience. And methinketh I could right well agree, 
 that it should be so in this case, and that specially, because 
 the party himself knoweth perfectly that the said collateral 
 warranty was obtained by covin and against conscience. 
 
 * 2 Inst. 515; Coke Reading, 7. 
 ■j- Ante, 62, no, 143.
 
 Dialogue II. — Chap. 51. 265 
 
 Chap. LI. — The fourth question of the doctor is of the 
 -wreck of the sea. 
 
 Doct. I pray thee let me now hear thy mind how the law 
 of England concerning goods that be wrecked upon the sea 
 may stand with conscience, for I am in great doubt of it. 
 
 Stud. I pray thee let me first hear thine opinion, what 
 thou thinkest therein. 
 
 Doct. The statute of West. 1, that speaketh of wrecks is, 
 That if any man, dog, or cat, come alive unto the land out 
 of a ship, or barge, that it shall not be judged for wreck :* 
 so that if the party to whom the goods belong come within 
 a year and a day, and prove them to be his, that he shall 
 have them ;f or else that they shall remain to the king. 
 And methinketh that the said statute standeth not with con- 
 science ; for there is no lawful cause why the part)- ought 
 to forfeit his goods, ne the king or lords ought to have them, 
 for there is no cause of forfeiture in the party, but rather a 
 cause of sorrow or heaviness : and so the law seemeth to 
 add sorrow upon sorrow. % And therefore doctors hold 
 commonly that he that hath such goods is bound to restitu- 
 tion, and that no custom may help ; for they say it is against 
 the commandment of God, Levit. 19. where it is commanded, 
 that a man shall love his neighbour as himself, and that they 
 say he doth not that taketh away his neighbour's goods. 
 But they agree, that if any man have cost and labour for 
 the saving of such goods wrecked, specially for such goods 
 as would perish it they lay slill in the water, as sugar, 
 paper, salt, meal, and such others, that he ought to be al- 
 lowed for his costs and labour, but he must restore the 
 goods, except he could not save them without putting his 
 life in jeopard}' lor them ; and then if he put his lile in such 
 
 Ante. 261. 
 
 % 2 Inst. 166, 167. 
 
 J Vide the statutes 2 Ed. 3, c. 13; 12 Ann., stat. 2, c. iS ? confirmed by 4 
 Geo. 1, c. 12, and 26 Geo. 2, c. 19, which have introduced inanv humane 
 regulations if possible to prevent wrecks at all.
 
 266 Doctor and Student. 
 
 jeopardy, and the owner by common presumption had had 
 no way to have saved them, then it is most commonly holden 
 that he may keep the goods in conscience. But of other 
 goods that would not so lightly perish, but that the owner 
 might of common presumption save them himself, or that 
 might be saved without any peril of life, the takers of them 
 be bound to restitution to the owner,' whether he come 
 within the year, or after the year. 
 
 And methinketh this case is somewhat like to a case that 
 I shall put. If there were a law and custom in this realm, 
 or if it were ordained by statute, that if any alien came 
 through the realm in pilgrimage, and died, that all his 
 goods should be forfeit ; that law should be against con- 
 science, .for there is no cause reasonable why the said goods 
 should be forfeit : and no more methinketh there is of 
 wreck. 
 
 Stud. There be divers cases where a man shall leese 
 his goods, and no default in him : as where beasts stray 
 away from a man, and they be taken up, and proclaimed, 
 and the owner hath not heard of them within the year and 
 the day, though he made sufficient diligence to have heard 
 of them ; yet the goods be forfeited, and no default in him. 
 And so it is where a man killeth another with the sword of 
 John at Stile, the sword shall be forfeit as a dcodand, and 
 yet no default is in the owner.* And so methinketh it may 
 be in this case ; and that sith the Common law, before the 
 said statute, was, that the goods wrecked upon the sea shall 
 be forfeit to the kino;, that thev be also forfeited now after 
 the statute, e.xcept they be saved by following the statute ;f 
 for the law must needs reduce the properties of all goods to 
 some man ; and when the goods be wrecked, it seemeth the 
 property is in no man : but admit that the property remain 
 still in the owner, then if the owner, percase, would never 
 claim, then it should not be known who ought to have 
 them, and so might they be destroyed, and no profit come 
 
 *i B. C. 301. 
 f 2 Inst. 166, 167.
 
 Dialogue II. — Chap. 51. 267 
 
 of them : wherefore methinketh it reasonable that the law 
 shall appoint who ought to have them, and that hath the 
 law appointed to the king, as sovereign and head over the 
 people. 
 
 JDoct. In the cases that thou hast put before of the stray 
 and deodand there be considerations why they be forfeit, 
 but it is not so here :* and methinketh that in this case, it 
 were not unreasonable that the law would suffer any man 
 that would take them, to take and keep them to the use of 
 the owner, saving his reasonable expences ; and this me- 
 thinketh were more reasonable law, than to pull the 
 property out of the owner without cause. But if a man in 
 the sea cast his goods out of the ship as forsaken, there 
 doctors hold that every man may take them lawfully that 
 will ;f but otherwise it is (as they say) if he throw them 
 out for fear that they should overcharge the ship. 
 
 Stud. There is no such law in this realm of goods for- 
 saken : for though a man waive the possession of his goods, 
 and saith he forsaketh them, yet by the law of the realm 
 the property remaineth still in him, and he may seise them 
 after when he will.J And if any man in the mean time put 
 the goods in safeguard to the use of the owner, I think he 
 doth lawfully, and that he shall be allowed lor his reason- 
 able expences in that behalf, as he shall be of goods found ; 
 but he shall have no property in them, no more than in 
 goods found. And I would agree, that if a man prescribe, 
 that if he find any goods within his manor, that he should 
 have them as his own, that that prescription were void :§ 
 for there is no consideration how the prescription might have 
 a lawful beginning, but in this case methinketh there is. 
 
 Doc/. What is that? 
 
 Stud. It is this : The king, of the old custom of the 
 realm, as the lord of the narrow sea, is bound, as it is said, 
 
 *Ante, no. 
 
 t2B. C. 9; i B. C. 292. 
 
 J Ante, 24S. 
 
 § Br. Prescription, pi. 93.
 
 268 Doctor and Student. 
 
 to scour the sea of the pirates and petit robbers of the sea :* 
 and so it is read of the noble king Saint Edgar that he 
 would twice in the year scour the sea of such pirate? : but 
 I mean not thereby that the king is bound to conduct his 
 merchants upon the sea against all outward enemies, but 
 that he is bound only to put away such pirates and petit 
 robbers. And because that cannot be done without great 
 charge, it is not unreasonable if he have such goods as be 
 wrecked upon the sea toward the charge. 
 
 Doct. Upon that reason I will take a respite till another 
 time. 
 
 Chap. LII. — The fifth question of the doctor, Whether it 
 stand -with conscience to -prohibit a jury of meat and 
 drink till they be agreed. 
 
 If one of the twelve men of an inquest know the very 
 truth of his own knowledge, and instructeth his fellows 
 thereof, and they will in no wise give credence to him, and 
 thereupon, because meat and drink is prohibited them, he 
 is driven to that point, that either he must assent to them, 
 and give their verdict against his own knowledge and 
 against his own conscience, or die for lack of meat : how 
 may the law then stand with conscience, that will drive an 
 innocent to that extremity, to be either forsworn, or to be 
 famished and die for want of meat? 
 
 Stud. I take not the law of the realm to be, that the jury 
 after they be sworn may not eat nor drink till they be agreed 
 of the verdict :| but truth it is, there is a maxim and an old 
 custom in the law, that they shall not eat nor drink after 
 they be sworn, till they have given their verdict, without 
 the assent and license of the justices. And that is ordained 
 by the law for eschewing of divers inconveniences that 
 might follow thereupon, and that spec. ally if they should 
 eat or drink at the costs of the parties ; and therefore if 
 
 ::: Kitchen on Courts, 46. 
 
 f 1 Vent. 125; 3 B. C 375, 376; Trials per Pais, 199, 300.
 
 Dialogue II. — Chap. 53. 26a 
 
 they do contrary, it may be laid in an arrest of the iudsr- 
 ment : but with the assent of the justices they may both eat 
 and drink.* As if any of the jurors fall sick before they 
 be agreed of their verdict, so sore that he may not commune 
 of the verdict, then by the assent of the justices he may 
 have meat and drink, and also such other things as be nec- 
 essary for him :f and his fellows also at their own costs, or 
 at the 'indifferent costs of the parties, if they so agree, or 
 by the assent of the justices, may both eat and drink.J And 
 therefore if the case happen that thou now speakest of, and 
 that the jury can in no wise agree in their verdict, and that 
 appeareth to the justices by examination, the justices may 
 in that case suffer them to have both meat and drink for a 
 time, to see whether they will agree : and if they will in no 
 wise agree, I think that the justices may set such order in 
 the matter as shall seem to them by their discretion to stand 
 with reason and conscience, by awarding of a new inquest, § 
 and by setting fine upon them that they shall find in de- 
 fault, or otherwise as they shall think best by their discre- 
 tion ; like as they may do if one of the jury die before ver- 
 dict, or if any other like casualties fall in that behalf.'] But 
 what the justices ought to do in that case that thou hast put, 
 in their discretion, I will not treat of at this time. 
 
 Chap. LIII. — The sixth question of the doctor, Whether 
 the colours that be given at the Common lazv in assises, 
 actions of trespass, and divers other actions, stand with 
 conscience, because they be most commonly feigned, and 
 be not true. 
 
 Doct. 1 pray thee let me hear thy mind to what intent 
 such colours be given, and sith they be commonly untrue, 
 how they may stand with conscience? 
 
 *2 Haw. P. C 146. 
 
 tBr. Verdict, pi. 102. 
 
 % Br. Jurors, pi. 51. 
 
 §Noy, 49! 3 Buls. 173; Vaug. 153. 
 
 || Vin Abr., title Trial, 466.
 
 270 Doctor and Student. 
 
 Stud. The cause why such colours be given is this : 
 There is a maxim and a ground of the law of England, 
 that if the defendant or tenant in any action plead a plea 
 that amounteth to the general issue, that he shall be com- 
 pelled to take the general issue ;* and if he will not, he 
 shall be condemned for lack of answer ;f and the general 
 issue in assise is, that he that is named the disseisor hath 
 done no wrong, nor no disseisin : and in a writ oCjEntry 
 in the nature of assise the general issue is, that he disseised 
 him not ; and in an action of trespass, that he is not guilty. J 
 And so every action hath his general issue assigned by the 
 law : and the tenant must of necessity either take the gen- 
 eral issue, or plead some plea in abatement of the writ, to 
 the jurisdiction to the party, or else some bar, or some mat- 
 ter by way of conclusion. And therefore if John at Stile 
 infeoff H. Hart of land, and a stranger bringeth an assise 
 against the said H. Hart for the land, whose title he knoweth 
 not ; in this case, if he should be compelled to plead to the 
 point of the assise, that is to say, that he hath done no 
 wrong, ne no disseisin, the matter should be put to the 
 mouths of twelve laymen, which be not learned in the law ;§ 
 and therefore better it is that the law be so ordered, that it 
 be put in the determination of the judges, than of laymen. 
 And if the said H. Hart, in the case before rehearsed, would 
 plead in bar of the assise, that John at Stile was seised, and 
 infeoffed him, by force whereof he entered, and asked judg- 
 ment if that assise should lie against him ; that plea were 
 not. good, for it amounteth but to the general issue, and 
 therefore he shall be compelled to take the general issue, 
 or else the assise shall be awarded against him for lack of 
 answer. || And therefore to the intent the matter may be 
 shewed and pleaded before the judges, rather than before 
 
 * Co. Litt. 303; 3 Mod. 166; Booth on Real Actions, 214. 
 f 3 B. C 305. 
 
 J Co- Litt. 226; Cro. Eliz. 257; Skin. 280; 10 Co. 91 ; Booth, 214. 
 § Vaugh. Rep. 150; Finch Law, 399; 11 Rep. 10; 9 Rep. 12, 13; Finch 
 Law, 3S1, 382; Co. Litt. 226. 
 || Co. Litt. 303; 3 Mod. 166.
 
 Dialogue II. — Chap. 53. 271 
 
 the jury, the tenants use to give the plaintiff a colour, that is 
 to say, a colour of action, whereby it shall appear that it were 
 hurtful to the tenant to put that matter that he pleadeth to the 
 judgment of twelve men : and the most common colour that 
 is used in this case is this : When he hath pleaded that such 
 a man infeoffed him, as before appeareth, it is used that he 
 shall plead farther, and say that the plaintiff claiming by a 
 colour of a deed of feoffment made by the said feoffor be- 
 fore the feoffment made to him, where no right passed by 
 the deed, entered, upon whom he entered, and asked judg- 
 ment if the assise lie against him.* In this case, because it 
 appeareth to be a doubt to unlearned men, whether the land 
 passed by the deed without livery or not; therefore the law 
 suffereth the tenant to have that special matter to bring the 
 matter to the determination of the judges. f And in such 
 case the judges may not put the tenant, from the plea, for 
 they knew not as judges but that it is true ; and so if any de- 
 fault be, it is in the tenant, and not in the court. And 
 though the truth be, that there were no such deed of feoff- 
 ment made to the plaintiff as the tenant pleadeth ; yet me- 
 thinketh there is no default in the tenant, for he doth it to a 
 good intent, as before appeareth. 
 
 Doct. If the tenant know that the feoffor made no such 
 deed of feoffment to the plaintiff, then there is a default in 
 the tenant to plead it, for he wittingly saith against the truth ; 
 and it is holden by all doctors, that every lie is an offence, 
 more or less ; for if it be of malice, and to the hurt of his 
 neighbour, then it is called menddcium -pcrniciosum, and 
 that is deadly sin ; and if it be in sport, and to the hurt of 
 no man, nor of custom used, ne of pleasure that he hath in 
 lvin^, then it is venial sin, and it is called in Latin menda- 
 cium jocosum : and if it be to the profit of his neighbour, 
 and to the hurt of no man, then it is also venial sin, and it 
 is called in Latin mendacium officiosum; and thought it be 
 
 *3 B.C. 309. 
 
 f 10 Rep. 89, 90; Finch Law, 3S2.
 
 272 Doctor and Student. 
 
 the least of those three, yet it is a venial sin, and would be 
 eschewed. 
 
 Stud. Though the midwives of Egypt lied when they 
 had reserved the male-children of the Hebrews, saying to 
 the king Pharaoh, that the Hebrews had women that were 
 cunning in the same craft, which ere they came had re- 
 served the children alive, where indeed they themselves of 
 pity, and of dread of God reserved them ; yet Saint Hierome 
 expounded the text following, which saith, that our L,ord 
 therefore gave them houses, that is to be understood that 
 he gave them spiritual houses, and that they had therefore 
 eternal reward : and if they sinned by that lie, although it 
 were but venial, yet I cannot see how they should have 
 therefore eternal reward. And also if a man intending to 
 slay another, ask me where that man is ; is it not better for 
 me to lie, and say I cannot tell where he is, though I know 
 it, than to shew where he is, whereupon murther should 
 follow ? 
 
 Doct. The deed that the midwives of Egypt did in saving 
 the children was meritorious, and deserved reward ever- 
 lasting, if they believed in God, and did good deeds beside, 
 as it is to suppose they did, when they for the love of God 
 refused the death of the innocents: and then, though they 
 made a lie after, which was but venial sin, that could not 
 take from them their reward, for a venial sin doth not 
 utterly extinct charity, but letteth the fervour thereof: and 
 therefore it may well stand with the words of Saint Hie- 
 rome, that they had for their good deed eternal houses, and 
 yet the lie that they made to be a venial sin. But never- 
 theless, if such a lie that is of itself but venial, be affirmed 
 with an oath, it is always mortal, if he know it to be false 
 that he sweareth. And to the other question, it is not like 
 to this question that we have in hand, as me seemeth : for 
 sometime a man for the eschewing of the greater evil may 
 do a less evil, and then the less is no offence in him ; and 
 so it is in the case that thou hast put, wherein because it is 
 less offence to say he woteth not where he is, though he 
 know where he is, than it is to shew where he is, where-
 
 Dialogue II. — Chap. $3. 2 yn 
 
 upon murther should follow, it is therefore no sin to say he 
 woteth not where he is : for every man is bound to love his 
 neighbour, and if he shew in this case where he is, know- 
 ing his death should follow thereupon, it seemeth that he 
 loved him not, ne that he did not to him as he would be 
 done to. But in the case that we be in here, there is no 
 such sin eschewed : for though the party pleadeth the gen- 
 eral issue, the jury might find the truth in every thing ; and 
 . therefore in that he saith that the plaintiff, claiming it by 
 the colour of a deed of feoffment, where nought passed, 
 entered, etc., knowing that there was no such feoffment, it 
 was a lie in him, and a venial sin, as methinketh. And 
 every man is bound to suffer a deadly sin in his neighbour, 
 rather than a venial sin in himself 
 
 Stud. Though the jury upon a general issue may find 
 the truth, as thou sayest, yet it is much more dangerous to 
 the jury to inquire of many points, than to inquire only of 
 one point.* And forasmuch as our Lord hath given a 
 commandment to every man upon his neighbour; therefore 
 every man is bound to foresee as much as in him is, tha* 
 by him no occasion of offence come to his neighbour. 
 And for the same cause the law hath ordained divers 
 maxims and principles, whereby issue in the king's court 
 may be joined upon one point in certain, as nigh as may be, 
 ■and not generally, lest offence might follow thereupon 
 against God, and a hurt also unto the jury. Wherefore it 
 seemeth that he loveth not his neighbour as himself, ne 
 that he doth not as he would be done to, that offereth such 
 danger to his neighbour, where he may well and conveni- 
 ently keep it from him, if he will follow the order of the 
 law; and it seemeth that he putteth himself wilfully in 
 jeopardy that doth it, as it is written, Eccles. 3, Qui amat 
 fcriculum in Mo f crib it, that is to say, he that loveth 
 peril shall perish in it, and he that putteth his neighbour in 
 peril to offend, putteth himself in the same, and so should 
 
 *9 Rep. 12. 
 18
 
 274 Doctor and Student. 
 
 he do, me seemeth, that would wilfully take the general 
 issue, where he might conveniently have the special matter. 
 And furthermore, it is no offence in princes and rulers to 
 suffer contracts, and buying and selling in markets and 
 fairs, though both perjury and deceit should follow there- 
 upon ; because such contracts be necessary for the common- 
 wealth : so it seemeth likewise, that there is no default in 
 the party that pleadeth such a special matter, to avoid from 
 his neighbour the danger of perjury, ne }^et in the court, . 
 though they induce him to it, as they do sometime for the 
 intent before rehearsed. And in like wise some will say, 
 that if rulers of cities and commonalties sometime for the 
 punishment of felons, murtherers, and such other offenders, 
 will (to the intent they would have them confess the truth) 
 say to them that be suspected, that they be informed of 
 such certain defaults or misdemeanors in the offenders, and 
 that they do to the intent to have them confess the truth, 
 that though they were not so informed, that yet it is no 
 offence to say they were so informed, because they do it 
 for the commonwealth : for if offenders were suffered to go 
 unpunished, the commonwealth would eftsoons decay and 
 utterly perish. 
 
 Doct. I will take advisement upon thy reason in this 
 matter till another season, and I will now ask thee another 
 question somewhat like unto this : I pray thee let me hear, 
 thy mind therein. 
 
 Stud, Let me hear thy question, and I shall with good- 
 will say as I think therein. 
 
 Chap. L1V. — 1 he seventh question of the docto?', con- 
 cerning the pleadings in assise, whereby the tenants use 
 sometime to plead in such manner that they shall confess 
 no ouster. 
 
 Doct. It is commonly used, as I have heard say, that 
 when a tenant in assise pleadeth that a stranger was seised 
 and enfeoffed him, and giveth the plaintiff a colour in such
 
 Dialogue II.— Chap. 54. 275 
 
 manner as before appeareth in the 520! chapter,* that the 
 tenant many times, when he hath pleaded thus, and the 
 plaintiff claimed by a colour of a deed of feoffment made by 
 the said stranger, where nought passed by the deed entered ; 
 and that then they use to say farther, upon whom A. B. 
 entered, upon whom the tenant entered ; where indeed the 
 said A. B. never entered, ne haply there was no such man ; 
 how can this pleading be excused of an untruth? And 
 what reasonable cause can be why such a pleading should 
 be suffered against the truth? 
 
 Stud. The cause why that manner of pleading is suffered 
 is this : if the tenant by his pleading confessed an immediate 
 entry upon the plaintiff, or an immediate putting out of the 
 plaintiff", which in French is called an Ouster; then if the 
 title were after found for the plaintiff, the tenant by his 
 confession were attainted of the disseisin. And because it 
 may be, that though the plaintiff have good title to the 
 land, that yet the tenant is no disseisor, therefore the ten- 
 ants use many times to plead in such manner as thou hast 
 said before, to save themselves from confessing of an ouster : 
 and so if there be any default it is not in the court, ne in 
 the law, for they know not the truth therein till it be tried. 
 And methinketh also that there is in this case right little 
 default or none in the tenant, nor in his counsel, specially 
 if the counsel know that the tenant is no disseisor. But as 
 to that point, I pray thee, that as thou hast taken a respite 
 to be advised, or that thou shew thy full mind in the ques- 
 tion of a colour given in assise, whereof mention is made in 
 the said 48th chapter, that I likewise may have a like 
 respite in this case till another time, to be advised, and then 
 I shall with good-will shew thee my full mind therein. 
 
 Doct. I am content it be as thou sayest. But I pray 
 thee that I may yet add another question to the two ques- 
 tions before rehearsed of colours in assise, and feel thv 
 mind therein, because that soundeth much to the same effect 
 that the other do, (that is to say) to prove that there be 
 
 * Ante, 271.
 
 276 Doctor and Student. 
 
 divers things suffered in the law to be pleaded that be 
 against the truth : and I pray thee let me hereafter know 
 thy mind in all three questions, and thou shalt then with a 
 good-will know mine. 
 
 Stud. I pray thee shew me the case that thou speakest of. 
 
 Doct. If a man steal a horse secretly in the night, it is 
 used that thereupon he shall be indicted at the king's suit, 
 and it is used that in that indictment it shall be supposed 
 that he such a day and place with force and arms, (that is 
 to say) with staves, swords, and knives, etc., feloniously 
 stole the horse against the king's peace ; and that form must 
 be kept in every indictment, though the felon had neither 
 sword nor other weapon with him, but that he came secretly 
 without weapon :* how can it therefore be excused, but there 
 is an untruth ? 
 
 Stud. It is not alledged in the indictment by matter in 
 deed that he had such weapon, for the form of an indict- 
 ment is this : 
 
 Inquiratur -pro Domino JRcgc, si A, tali die ct anno aptid 
 talem locum vi ct armis, videlicet Gladiis, etc., talem equum 
 talis hominis ccfiit, etc. 
 
 And then the twelve men be only charged with the effect 
 of the bill, that is to say, whether he be guilty of the felony 
 or not, and not whether he be guilty under such manner 
 and form as the bill specifieth or not ;f and so when they 
 say Billa vera, they say true, as they take the effect of 
 the bill to be. And therefore if there were false Latin in 
 the bill of indictment, and the jury saith Billa vera, yet 
 their verdict is true : for their verdict stretcheth not to the 
 truth or falshood of the Latin, but to the felony, ne to the 
 
 *But by statute 37 H. 8, c. 8, it is enacted, that these words, vi et armis, 
 viz., baculis, cultellis arcnbus, etsagittis, or such like, shall not of necessity 
 be put in any indictment, nor shall the parties indicted of any offence have 
 any advantage by writ of error, plea, or otherwise, to avoid any such in- 
 dictment for the want of these or the like words, but that the same lacking 
 of the said words shall be as good in law as indictments having them. And 
 see 2 Hawk. P. C. 241, 242, and the authorities cited in the margin. 
 
 t4B. C. 301.
 
 Dialogue II. — Chap. 54. 277 
 
 form of the words, but to the effect of the matter; and that 
 is to enquire whether there were any such felony done by 
 the person or not.* And though the bill vary from the day, 
 from the year, and also from the place where the felony was 
 done in, so it vary not from the shire that the felony was 
 done in, and the jury saith Billa vera, they have given 
 a true verdict ;f for they are bound by their oath to give 
 their verdict according to the effect of the bill, and not ac- 
 cordinc to the form of the bill. And so is he that maketh 
 a vow bound likewise to that that by the law is the effect of 
 his avow, and not only to the words of his avow. And if 
 a man avow never to eat white meat, yet in time of extreme 
 necessity he may eat white meat, rather than die, and not 
 break his avow, though he affirmed it with an oath : for by 
 the effect of his avow extreme necessity was excepted, 
 though it were not expressly excepted in the words ot the 
 avow. And so likewise, though the words of the bill be, 
 to enquire whether such a man such a day and year, and in 
 such a place, did such a felony ; yet the effect of the bill is, 
 to enquire whether he did the felony within the shire or no : 
 and therefore the justices before whom such indictments be 
 taken most commonly inform the jury, that they are bound 
 to regard the effect of the bill, and not the form. And 
 therefore there is no untruth in this case, neither in him that 
 made the bill, ne yet in the jury, as me seemeth. 
 
 Doct. But if the party that owned the horse bring an 
 action of trespass ; and declareth that the defendant took 
 the horse with force and arms, where he took him without 
 force and arms ; how may the plaintiff there be excused of 
 an untruth. 
 
 SIikL And if the plaintiff surmise an untruth, what is 
 that to the court, or to the law? For they must believe the 
 plaintiff, till that that he saith be denied by the defendant; 
 and yet as this case is, there is no untruth in the plaintiff, to 
 say he took the horse with force and arms, though he came 
 
 * 2 H. P. c. 237. 
 t4 B.C. 302.
 
 278 Doctor and Student. 
 
 never so secretly, and without weapon : for every trespass 
 is in the law done with force and arms;* so that if lie be 
 attainted, and found guilty of the trespass, he is attainted of 
 the iorce and arms : and sith the law judgeth every trespass 
 to be done with force, therefore the plaintiff saith truly that 
 lie took h m with force, as the law meaneth to be force. 
 For though he took the horse as a felon, yet upon the felo- 
 nious taking the owner may take an action of trespass if he 
 will ;f for every felony is a trespass and more. J And so I 
 have shewed thee some part of my mind, to prove that in 
 those cases there is no untruth, neither in the parties, 
 neither in the jury, nor in the law. Nevertheless, at a bet- 
 ter leisure I will shew thee my mind more full}' therein with 
 good-will, as thou hast promised me to do in the case of 
 colours of the assise, and of the ouster, that be before re- 
 hearsed. 
 
 Chap. LV. — The eighth question of the doctor, Whether 
 the statute of forty-five of Edzuard the third, of Sylva 
 ccedua, stand with conscience. 
 
 Doct. In the 45th } r ear of the reign of Edw. III. § it was 
 enacted, That a prohibition should lie where a man is im- 
 pleaded in the court-christian for dismes of wood of the age 
 of twenty years or above, by the name of Sylva ccedua,\\ 
 how may that statute stand with conscience, that is so di- 
 rectly against the liberty of the' church, and that is made 
 of such things as the parliament had no authority to make 
 any law of? 
 
 is not true, for the taw does not consider every trespass to be done 
 with force. For instance, that species of injury which maybe proper!/, 
 nominated a trespass, and which subjects the wrong-doer to what we call 
 an acton upon the case, is not accompanied with Iorce. 5 Bac. Abr., 
 title Trespass. 
 
 1 Or it 6eems that lie may have an action of trover, after the offender is 
 prosei ui'. I. 1 Black. Com. 356; 1 Hale P. C. 546. 
 
 i '■ 
 § Cap. .5. 
 U Ante, 93.
 
 Dialogue II. — Chap. 55. 279 
 
 Stud. It appeareth in the said statute,* that it is enacted, 
 That a prohibition should lie in that case as it had used to 
 do before that time ; and if the prohibition lay by a pre- 
 scription before the statute, why is not then the statute good 
 as a confirmation of that prescription? 
 
 Doc/. 1 1 there were such a prescription before the stat- 
 ute, that prescription was void ; for it prohibiteth the pay- 
 ment of tithes of trees of the age of twenty years or above ; 
 and paying of tithes is grounded as well upon the law of 
 God, as upon the law of reason ; and against those laws 
 lieth no prescription, as it is holden most commonly by all 
 men. 
 
 Stud. That there was such a prescription before the said 
 statute, «and that it' a man before the said statute bad been 
 sued in the spiritual court for tithes of wood of the age of 
 twenty years or above, the prohibition lay, appeareth in the 
 said statute, and it can not be thought that a statute that is 
 made by authority of the whole realm, as well of the king, 
 and of the lords spiritual and temporal, as of all the com- 
 mons, will recite a thing against the truth. And further- 
 more, I cannot see how it can be grounded by the law of 
 God, or by the law of reason, that the tenth part should be 
 paid tor tithe, and no. other portion but that : but I think 
 that it be grounded upon the law of reason, that a man 
 should give a reasonable portion of his goods temporal to 
 them that minister to him things spiritual ; for every man is 
 bound to honour God of his proper substance; and the 
 giving ot such portion hath not been only used among 
 faithful people, but also among unfaithful, as it appeareth, 
 Genesis 47, where corn was given to the p vpt 
 
 of common barns. And Saint Paul in his epistles affirn 
 the same in many places; as in his lust epistle to the C - 
 inthians, can. q. where he saith, " He that worketh in the 
 church .shall eat of that that belongeth to the church :" and 
 in his epistle to the Galatians, chap. 0, he saith, " Let him 
 that is instructed in spiritual things, depart (<i his goods to 
 
 2 Inst. C43.
 
 280 Doctor and Student. 
 
 him that instructeth him." And Saint Luke, chap. 10, 
 saith, " TY.at the workman is worthy to have his hire.'' 
 All which sayings may right conveniently be taken and ap- 
 plied to this purpose, that spiritual men, which minister to 
 the people spiritual things, ought tor their ministration to 
 have a competent living of them that they minister unto. 
 But that the tenth part should be assigned for such a por- 
 tion, and neither more nor less, I cannot perceive that that 
 should be grounded by the law of reason, nor immediately 
 by the law of God. For before the law written there was 
 no certain portion assigned for the spiritual ministers, 
 neither the tenth part, nor the twelfth part, unto the time 
 of Jacob : for it appeareth, Genesis 28, that Jacob avowed 
 to pay dismes, which was among the Jews for the tenth 
 part, if our Lord prospered him in his journey ; and if the 
 tenth part had been his duty before that avow, it had been 
 in vain to have avowed it, and so it had if it had been 
 grounded by the law of reason. And as to that js spoken 
 in the evangelists, and in the new law, of tithes it belongeth 
 rather to the giving of tithes in the time of the old law, than 
 of the new law ; as it appeareth, Matth. 23, and Luke 11, 
 where our Lord speaketh to the Pharisees, saying, " Wo 
 to you Pharisees, that tithe mints, rue, and herbs, and for- 
 get the judgment and the charity of God ; these it behoveth 
 you to do, and the other not to omit :" that is to say, it be- 
 hoveth you to do justice and charity of God, and not to 
 omit paying of tithes, though it be of small things, as of 
 mints, rue, herbs, and such other. And also that the 
 Pharisee saith, Luke 17, " I pay my tythes for all that I 
 have," it is to be referred to the old law, not to the time of 
 the new law; therefore, as I take it, the paying of tithes, 
 or of a certain portion to spiritual men for their spiritual 
 ministration to the people, have been grounded in divers 
 manners. First, before the law written, a certain portion 
 sufficient for the spiritual ministers was due to them by the 
 law of nature, which, after them that be learned in the law 
 of the realm, is called the law of reason ; and that portion 
 is due by all laws. And in the law written, the Jews were
 
 Dialogue II. — Chap. 55. 281 
 
 bound to give the tenth part to their priests, as well by the 
 said avow of Jacob, as by the law of God in the Old Testa- 
 ment, called the Judicials. And in the new law the pay- 
 ing of the tenth part is by a law that is made by the church. 
 And the reason wherefore the tenth part was ordained by 
 the church to be payed for the tithe was this : There is no 
 cause why the people of the new law ought to pay less to 
 the ministers of the new law, than the people of the Old 
 Testament gave to the ministers of die Old Testament : for 
 the people of the new law be bound to greater things than 
 the people of the old law were, as it appeareth, Matth. 5, 
 where it is said, " Unless your good works abound above 
 the works of the Scribes and Pharisees, ye may not enter 
 into the kingdom of heaven." And the sacrifice of t'.ie old 
 law was not so honourable as the sacrifice of the new law 
 is : for the sacrifice of the old law was only the figure, and 
 the sacrifice of the new law is the tiling that is figured ; 
 that was the shadow, this is the truth. And therefore the 
 church upon that reasonable consideration ordained, that 
 the tenth part should be paid for the sustenance of the min- 
 isters in the new law, as it was for the sustenance of the 
 ministers in the old law ; and so that law with a cause may 
 be increased or diminished to more portion or to less, as 
 shall be necessary for them. 
 
 Docl. It appeareth, Gen. 14, that Abraham gave to Mel- 
 chisedec dismes, and that is taken to be the tenth part ; and 
 that was long before the law written : and therefore it is to 
 suppose, that he did that by the law of God. 
 
 Stud. It appeareth not by any scripture that he did that 
 by the commandment of God, ne by any revelation. And 
 therefore it is rather to suppose that he did part of duty, and 
 part ot his own free will : for in that he gave the dismes as 
 a reasonable portion for the sustenance of Melchisedec and 
 his ministers, he did it by the commandment of the law of 
 reason, as before appeareth ; but that he gave the tenth 
 part, that was of his free-will, and because he thought it 
 sufficient and reasonable : but if he had thought the twelfth 
 pait, or the thirteenth part had sufficed, he might have
 
 282 Doctor and Student. 
 
 given it, and that with good conscience. And so I suppose 
 that in the new law, the giving of the tenth part is by the 
 law of the church, and not by the law of God : unless it be 
 taken that the law of the church is the law of God, as it is 
 sometime taken to be, but not appropriately or immediately ;. 
 for that is taken appropriately to be the law of God, that is 
 contained in scripture, that is to say, in the Old Testament 
 and in the New. 
 
 Doc/. It is somewhat dangerous to say that tithes be 
 grounded only upon the law of the church : for some men, 
 as it is said, sa} r that men's law bindeth not in conscience, 
 and so the}- might happen to make a boldness thereby to 
 den)' their tithes. 
 
 Stud. I trust there be none of that opinion ; and if there 
 be, it is great pity : and nevertheless they be compelled in 
 that case by the law of the church to pay their tithes, as 
 well as they should be if paying of tithes were grounded 
 merely upon the law of God. 
 
 Doct. I think well it be as thou sayest, and therefore I 
 hold me contented therein. But I pray thee shew me thy 
 mind in this question : if a whole country prescribe to pay 
 no tith.es for corn or hay, nor such other, whether thou 
 think that that prescription is good? 
 
 Stud. That question dependelh much upon that that is 
 said before : for if paying of the tenth part be by the law 
 of reason, or by the law of God, then the prescription is 
 void ; but if it be by the law of man, then it is a good pre- 
 scription, so that the ministers have a sufficient portion be- 
 side. 
 
 Doct. John Gerson, which, was a doctor of divinity, in a 
 treatise that he named Rcgulce morales, saith, that dismes 
 be paid to priests by the law ot God. 
 
 Stud. The words that In- speaketh there of the matter be 
 these, Solutio dccimarum sacerdotibus est de jure divino, 
 quatenus hide sustententur ; sed quod tarn hanc vel Mam 
 assignare, aut in alios redditus commutare* -positivi juris 
 existit: that is thus much to say, The paying of dismes to 
 priests is of the law of God, that they may thereby be sus-
 
 Dialogue II. — Chap. 55. . 283 
 
 tained ; but to assign this portion or that, or to change it to 
 other rents, that is by the law positive. And if it should 
 be taken that by that word decimarum which in English is 
 called dismes or tithes, that he meant the 10th part, and 
 that that 10th part should be paid for tithe by the law of 
 God, then is the sentence that followeth after against that 
 saying: for as it appeareth above, the next saith afterward 
 thus ; but to assign this portion or that, or to change it into 
 other rents, belongeth to the law positive, that is to the law 
 of man ; and if the tenth part were assigned by God, then 
 may n >t a less part be assigned by the law of man, for that 
 should be contrary to the law of God, and so it should be 
 void. And methinketh that it is not so likely that so famous 
 a clerk would speak any sentence contrary to the law of 
 God or contrary to that he had spoken before. And to prove 
 he meant not by the term dccinicc, that dismes should always 
 ' be taken lor the tenth part, it appeareth in the fourth part 
 of his works, i 1 the 33d title Ltterce, where he saith thus. 
 JYon vacatur pari so curat is del) it a propterea decimee, co 
 quod semper sit decima pars, imo est interdum viccsima 
 out tricesiiua : that is to say, the portion due to curates is 
 not therefore called dismes, for that it is alway the tenth part, 
 for sometime it is the 20th or the 30th part. And so it 
 appeareth that by this word decimarum he meant in the text 
 before rehearsed a certain portion, and not precisely the 
 tenth part : ami that the portion should be paid to priests by 
 the law of God, to sustain them with, taking as it seemeth 
 the law of reason in that saving for the law of God, as it 
 may one way be well and conveniently taken, because the 
 law ot reason is given to every reasonable creature by God : 
 ami then it followeth pursuantly, that it belongeth to the law 
 of man to assign this portion, or that which necessity shall 
 require lor their sustenance. And then his saying agreeth 
 well to that that is said before, that is to .say, that a certain 
 portion is cue for priests, for their spiritual ministration, by 
 the law ot reason. And then it would follow thereupon, 
 that if ii were ordained lor a law, that all paying ol tithes 
 should from henceforth cease, and that every curate should
 
 284 Doctor and Student. 
 
 have assigned to him such certain portion of land, rent, or 
 annuity, as should be sufficient for him, and for such min- 
 isters as should be necessary to be under him, accord- 
 ing to the number of the people there, or that every 
 parishioner or householder should give a certain sum of 
 money to that use; I suppose the law were good. And 
 that was the meaning of John Gerson as it seemeth, in his 
 words before rehearsed, where he saith. But to change 
 tithes into other rents, is by the law positive, that is to say, 
 by the law of man. And some think that if a whole coun- 
 try prescribe to be quit of both tithes of corn and grass, so 
 that the spiritual ministers have a sufficient portion beside to 
 live upon, that is a good prescription, and that they should 
 not offend that in such countries paid no tithes ;* for it were 
 hard to say that all the men of Italy, or of the East parts 
 be damned, because they pay no tithes, but a certain portion 
 after the custom. Therefore certain it is to pay such a cer- 
 tain portion, as well they as all other be bound, if the 
 church ask it, anv custom notwithstanding. But if the 
 church ask it not, it seemeth that by that not asking the 
 church remitteth it ; and an example thereof we may take 
 of the Apostle Paul, that though he might have taken his 
 necessary living of them that he preached to, yet he took it 
 not, and nevertheless they that gave it him not, did not of- 
 fend, because he did not ask it. But if one man in a town 
 would prescribe to be discharged of tithes of corn and 
 grass, methinketh the prescription is not good, unless he 
 can prove that he recompenseth it in another thing :f for it 
 seemeth not reasonable that he should pay less for his tithes 
 than his neighbours do, seeing that the spiritual ministers 
 are bound to take as much diligence for him, as they be 
 for any other of that parish :% wherefore it might stand with 
 reason that he should be compelled to pay his tithes as his 
 neighbours do, unless he can prove that he payeth in rec- 
 ompence thereof more than the tenth part in another thing. 
 
 *3 Burn's Eel. Law, 400; 2 Inst. 645; Br. Dismes, 14. 
 t3 Burn's Eel. Law, 397. 
 .; Dr. Pre cription, pi. 93.
 
 Dialogue II. — Chap. 55. 285 
 
 Nevertheless, I leave the matter to the judgment of others. 
 And then for a farther proof, though the said prescription 
 of not paying tithes for trees of twenty years and above 
 were not good, yet that that of corn and grass should begood 
 some make this reason ; they say that there is no tithe but 
 it is either a predial tithe, or a personal tithe, or a mixt 
 tithe. And they say that if a tithe should be paid of trees 
 when they be sold, that the tithe were not a predial tithe ;* 
 for the predial tithe of trees is of such trees as bring forth 
 fruits and increase yearly, as apple-trees, nut-trees, pear- 
 trees, and such other, whereof the predial tithe is the ap- 
 ples, nuts, pears, and such other fruits as come of them 
 yearly ;f and when the fruits be tithed, if the owner after 
 sell the trees, there is no lithe due thereby, for two tithes 
 may not be paid of one thing. J And of those tithes, that 
 is to say, of- predial tithes, was the commandment given 
 in the old law to the Jews, as appeareth Levit. 27, where 
 it is said, Omncs decimce terra, sive de pomis arborum, 
 sive de J'rugibiis, Domini sunt, et illi sanctificantur ; 
 that is to say, all tithes of the earth, either of apples, 
 of trees, or of grains, be our Lord's, and to him 
 they be sanctified : and though, the said law speaketh 
 only of apples, yet it is understood of all manner of 
 fruits. And because it saith that all the tithes of the earth 
 be our Lord's, therefore calves, lambs, and such other 
 must also be tithed : and they be called by some men pre- 
 dial tithes, that is to say, tithes that come of the ground; 
 howbeit they call them only -prediah mediate ;§ and they 
 be the same tithes that in this writing be called mixt tithes : 
 and the other tithes, that is to say, tithes of apples and 
 corn, and such other, be called -prediah immediate, for 
 they come immediately of the ground, and so do not mixt 
 tithes, as evidently appeareth. || 
 
 * 3 Burn's Eel. Law, 374. 
 t 1 Roll. 635; 2 Inst. 649. 
 \ 2 Fnst. 621, 652. 
 § Wats., c 49. 
 || 2 Inst. 649.
 
 286 Doctor and Student. 
 
 Doct. But what thinkest thou shall be the predial tithe 
 of ashes, elms, sallows, alders, and such other trees as 
 bear no fruits whereof any profit cometh? Why shall not 
 the tenth part of the self thing be the tithe thereof, if they 
 be cut down, as well as it is of corn and grass? 
 
 Stud. For I think that there is to that intent great diver- 
 sity between corn, grass, and trees; and that for divers 
 considerations, whereof one is this, The property of corn 
 and grass is not to grow over one year, and if it do, it will 
 perish and come to nought, and so the cutting down of it is 
 the perfection and preservation thereof, and the special 
 cause that any increase folio weth of the same ;* and there- 
 fore the tenth part of the increase shall be paid as a 
 predial tithe, and there no deduction shall be made for the 
 charges of it : and so it is of sheep and beasts, that must be 
 taken and killed in time, for else they may perish and come 
 to nought : but when trees be felled, that felling is not the 
 perfection of the trees, ne it causeth not them to increase, 
 but to decay ; for most commonly the trees would be better, 
 if they might grow still. And therefore upon that that is 
 the cause of the decay and destruction of them, it seems 
 there can no predial tithe arise. And some men say, that 
 this was the cause why our Lord in the said chapter of 
 Levit. 27, gave no commandment to tithe the trees, but the 
 fruits of the trees only. 
 
 Doct. It appeareth in Paralip. 31, that the Jews at the 
 time of the king Ezechias offered in the temple all things 
 that the ground brought forth ; and that was trees as well 
 as corn and grass. 
 
 Stud. It appeareth not that they did that by the com- 
 mandment of God, and therefore it is like that they did it 
 for their own devotion, and of a favour that they had above 
 their duty to the repairing of the temple, which the king 
 Ezechias had then commanded to be repaired : and so that 
 text proveth nothing that tithe should be paid for trees. 
 And therefore they say farther, that truth it is, that if a man 
 
 * Ante, 280.
 
 Dialogue II. — Chap. 55. 287 
 
 to the intent he would pay no tithe, would wilfully suffer 
 his corn and grass to stand still, and to perish, he should 
 offend conscience therein' : but though he suffer his trees to 
 stand still continually without felling, because he thinketh 
 the tithe would be asked if he felled them (so that he do it 
 not oi an evil will to the curate), he offendeth not in con- 
 science, ne he is not bound to restitution therefore, as he 
 should be if it were of corn and grass, as before appear- 
 eth.* And another diversity is this : In this case of tithe- 
 wood, the tithe thereof would serve so little to that purpose 
 that tithes be paid for, that it is not likelv that they that 
 made the law for payment of tithes intended that any lithe 
 should be paid for trees or wood : for the spiritual ministers 
 must of necessity spend daily and weekly, and therefore 
 the tithes of trees or wood, that cometh so seldom, would 
 serve so little to the purpose that it should be paid for, that 
 it would not help them in their necessity : so that if they 
 should be driven to trust thereto, though it might help him 
 in whose time it should happen to fall, yet it should deceive 
 them that trusted to it in the meantime, and also should 
 leave the parish without any to minister to them. 
 
 Doc/. I would well agree, that for trees that bear fruit 
 there should no predial tithe be paid when the} - be sold, for 
 the predial tithe of trees is the fruits that come of them, and 
 so there cannot be two predials of one thing, as thou hast 
 said.f But of other trees that bear no fruit, methinketh 
 that a predial lithe should be paid when they be sold. 
 And so it appeareth that there ought to be by the constitu- 
 tion provincial made by the reverend father in God, Robert 
 Winchelsey, late archbishop of Canterbury, where it is 
 said and declared, that Sylva avdua is of every kind of 
 trees that have being, in that they should be cut, or that be 
 able to be cut :% whereof we will, saith he, that the posses- 
 sor of the said wood be compelled by the censures of the 
 
 A.nte, . 
 t3 Burn's Eccl. Law, 375; ante, 2S5. 
 \ 2 Inst. 642 ; see Stat. 45 Ed. 3, c. 3.
 
 288 Doctor and Student. 
 
 church to pay to the parish-church, or mother-church, the 
 tithe, as a real or predial tithe. And so by virtue of that 
 constitution provincial a predial tithe must be paid of such 
 trees as have no fruit : for I would agree, that the said con- 
 stitution provincial stretched not to trees that bear fruit, 
 although the words be general to all trees, (as before ap- 
 peareth.) 
 
 Stud. I take not the reason why a predial tithe should 
 not be paid for trees that bear fruit, to be because two 
 predial tithes cannot be paid for one thing : for when the 
 tithe is paid of lambs, yet shall tithe be paid of wool of the 
 same sheep ; for it is paid for another increase : and so it 
 may be said that the fruit of a tree is one increase, and the 
 felling another.* But I take the cause to be, for the two 
 causes before rehearsed ; and also forasmuch as the felling 
 is not properly an increase of trees, but a destruction of the 
 trees, as it is said before. And farther, I would hear thy 
 mind upon the said constitution provincial, which will, that 
 tithe should be paid for trees by the possessors of the wood ; 
 that if the possessor fell the wood for C/., and give the 
 buyer a certain time to fell it in, what tithe shall the posses- 
 sor pay as long as the wood standeth? 
 
 Doct. I think none, for the predial tithe cometh not till 
 the wood be felled : and a personal tithe he cannot pay, no 
 more than if a man pluck down his house and selleth it, or 
 if he sell all his land : in which cases I agree well he shall 
 pay no tithe, neither personal nor predial. 
 
 Stud. And then I put case that the buyer selleth- the 
 wood again as it is standing upon the ground to another for 
 CC/., what tithe shall be paid then? 
 
 Doct. Then the first buyer shall pay tithe of the surplus- 
 age that he taketh over the C/. that he paid as a personal 
 tithe. 
 
 Stud. And then if the second buyer after that cut it 
 
 * 2 Inst. 652; 1 Roll. Abr. 640; Bunb. 10, 314; 1 Roll. Abr. 642; Bunb. 
 90; 3 Burn's Eel. Law, 452.
 
 Dialogue If. — Chap. 5$. 289 
 
 down, and sell it when it is cut down for less than he paid, 
 what tithe shall then be paid? 
 
 Doc/. Then shall he that selleth them pay the tithe foi 
 the trees as a predial tithe. 
 
 Stud. I cannot see how that can be : for he neither hath 
 the trees that the predial tithe should be paid for, if any 
 ought to be paid ; nor he is not possessor of the ground 
 where the trees grow. And therefore if iiny predial tithe 
 should be paid, it should be paid either by the first posses- 
 sor by reason of the words of the said constitution provincial, 
 which be, that the tithe shall be paid by the possessor of 
 the wood : or by the last buyer, because he hath the trees 
 that should be tithed ; and by the first possessor the tithes 
 cannot bo paid as a predial ; for he cut them not down, ne 
 they were not cut down upon his bargain ; and by the last 
 buyer it cannot be paid, neither as a predial tithe, for the 
 said constitution saith, that the possessor of the woods 
 should be compelled to pay it. And therefore I suppose 
 that the truth is, that in that case no tithe shall be paid : for 
 as to the last seller, he shall pay no personal tithe, for he 
 gained nothing, as it appeareth before ; and no predial tithe 
 shall be paid, for it should be against the said prescription ; 
 and also the cutting down is the destruction of trees, and 
 not their preservation, as is said before. 
 
 Doct. Then takest thou the said constitution to be of 
 small effect, as it seemeth. 
 
 Stud. I take it to be of this effect : That of wood above 
 twenty years it bindeth not, because it is contrary to the 
 Common law, and to the said prescription, that standeth 
 good in the Common law, but of wood undertwenty years, 
 whereof lithe hath been accustomed to be paid, the consti- 
 tution is not against the said prescription, because paying 
 of tithe under twenty years is not prohibited, but suffered 
 by the said statute.* Ilowbeit some say, that by the very 
 rigour of the Common law tithes should not be paid for 
 
 • Ante, 278, 279. 
 *9
 
 290 Doctor and Student. 
 
 wood under thirty years, no more than for above twenty 
 3'ea:s, and that prohibition in that case lieth by the Com- 
 mon law : nevertheless, because it hath been suffered to the 
 contrary, and that in many places tithes hath been paid 
 thereof, I pass it over : but where tithe hath not been paid 
 of wood under twenty years, I think none ought to be paid 
 at this day in law or conscience. But admit that the said 
 constitution taketh effect for payment of the wood under 
 twenty years as of a predial tithe, yet I cannot see how the 
 tithe thereof should be paid by the possessor of the wood, 
 if he sell them, but that it should be paid rather by him that 
 hath the trees : for the constitution is, that the tithe shall be 
 paid as a real or predial tithe, and that is their part of the 
 same trees, as it is of corn. And if a man buy corn upon 
 the ground, the buyer shall pay the tithe, and not the 
 seller :* and so it would seem to be here. And what the 
 constitution meant, to decree the contrary in tithe wood, I 
 cannot tell, unless the meaning were to induce the owners 
 to pay tithes of great trees when they fell them to their own 
 use ; which methinketh should be very hard to stand with 
 reason, though the said statute had never been made, as I 
 have said before. And furthermore, I would here (under 
 correction) move one thing, and that is this, That, as it 
 seemeth, that they that were at the making of the said con- 
 stitution, and knew the said prescription, did not follow the 
 direct order of charity therein so perfectly as they might 
 have done : for when they made the said constitution pro- 
 vincial directly against the said prescription, they set law 
 against custom, and power against power, and in a manner 
 the spiritualty against the temporalty, whereby they might 
 well know that great variance and suit would follow. And 
 therefore if they had clearly seen that the said prescription 
 had been against conscience, they should first have moved 
 the king and his council, and the nobles of the realm, to 
 have assented to the reformation of that prescription, and 
 not to make a law as it were by authority and power against 
 
 * Noy, 150, con. Cro. Jac. 362 ; Brownl. 34.
 
 Dialogue II. — Chap. 55. 291 
 
 the prescription, and then to threat the people, and make 
 them believe that they were all accursed that kept the said 
 prescription, or that maintained it. And it seemeth to stand 
 hardly with conscience to report so many to stand accursed 
 for following of the said statute, and of the said prescrip- 
 tion as there do, and yet to do no more than hath been done 
 to bringlhem out of it. 
 
 Doct. Methinketh that it is not convenient that laymen 
 should argue the laws and the decrees or constitutions of 
 the church :* and therefore it were better for them to give 
 credence to spiritual rulers that have cure of their souls, 
 than to trust to their own opinions^ and if they would do so, 
 then such matters would much the more rather cease than 
 they will do by such reasonings. 
 
 Stud. In that that belongeth to the articles of the faith, I 
 think the people be bound to believe the church, for the 
 church gathereth together in the Holy Ghost cannot err in 
 such things as belongeth to the catholick faith ; but where 
 the church maketh any laws whereby the goods or posses- 
 sions of the people may be bound, or by this occasion or 
 that may be taken from them, there the people may law- 
 fully reason whether the laws bind them or not; for in such 
 laws the church may err and be deceived, and deceive 
 other, either for singularity, or for covertise, or some other 
 cause. And for that consideration it pertaineth most to 
 them that be learned in the law of the realm to know such 
 laws of the church as treat of the ordering of lands or goods, 
 and to see whether they may stand with the laws of the 
 realm or not. And therefore it is necessary for them to 
 know the laws of the church that treat of dismes, of ex- 
 ecutors, of testaments, of legacies, bastardy, matrimony, 
 and divers other, wherein they be bound to know when the 
 law of the church must be followed, and when the law of 
 the realm :f whereof because it is not our purpose to treat, 
 I leave to speak any more at this time, and will resort again 
 
 s 2 Comyn's Digest, title Canons, 1, 2 
 f Ante, 16.
 
 292 Doctor and Student. 
 
 to speak of tithes ; wherein some men say that of tin, coal, 
 and lead, no tithe should be paid when they be sold by the 
 owner of the ground, because it is part of the inheritance, 
 and it is more rather a destruction of the inheritance than 
 an}'- increase.* And therefore they say, that if a man take 
 a tinwork, and give the lord the tenth dish, according to 
 the custom, that the lord shall pay no tithe of that te*nth dish, 
 neither predial nor personal : but if the other that taketh 
 the work, have gains and advantage by the work, it seem- 
 eth that it were not against reason that he should pay a per- 
 sonal tithe of his gains, the charge deducted. f 
 
 Doct. I pray thee shew me first what thou takest for a 
 personal tithe, and upon what ground personal tithes be 
 paid, as thou thinkest, so that one of us mistake not an- 
 other therein. 
 
 Stud. I will with good-will. And therefore thou shalt 
 understand that, as I take it, personal tithes be not paid for 
 any increase of the ground, but for such profit as cometh 
 by the labour or industry of the person, as by buying and 
 selling, and such other ;$ and such personal tithes, as I take 
 it, must be ordered after the custom, and the church hath 
 not used to levy those tithes of compulsion, but by con- 
 science of the parties. Nevertheless Raymond saith, that 
 it is good to pay personal tithes, or with the assent of the 
 parson to distribute them to poor men, or else to pay a cer- 
 tain portion for the whole. But as Innocent saith, where 
 the custom is that they should.be paid, the people be bound 
 to pay them as well as predials, the expences deduct. 
 Howbeit in the church of England they use to sue for such 
 personal tithes as- well as for predials ;§ and that is by rea- 
 son of the constitution provincial that was made by Robert 
 Winchelsey, by the which it was ordained, that personal 
 tithes should be paid of crafts and merchandise, and of the 
 
 * But by custom tithes of any of these may be payable. 2 Inst. 651 ; I 
 Roll. Abr. 646. 
 
 tLind. 19^; post. 293. 
 \ 3 Burn's Eel. 375. 
 §Lind. 195.
 
 Dialogue II. — Chap. 55. 293 
 
 lucre of buying and selling, and in like wise of carpenters, 
 smiths, weavers, masons, and all other that work for hire, 
 that they shall pay tithes of their hire,* except they will give 
 any certain thing to the use or the light of the church, if it 
 so please the parson. And in another place the said arch- 
 bishop saith, that of the pawnage of woods and such other 
 things, etc., and of fishings, trees, bees, doves, and of 
 divers other things there remembered, and of crafts, and of 
 buying and selling, and of the profits of divers other things 
 there recited, every man should help satisfy competently in 
 the church, to the which they be bound to give it of right ;f 
 no expences by the giving of the said tithes deducted or 
 withholden, but only for the payment of tithes of crafts, and 
 of buying and selling. And by reason of the said constitu- 
 tions provincial, sometimes suits be taken in the spiritual 
 court for personal tithes ; and therefore many men do mar- 
 vel because deductions many times must be referred to the 
 conscience of the parties. And they marvel also why a 
 law should be made in this realm for paying of personal 
 tithes, more than there is in other countries. And here I 
 would gladly move thee farther in one thing concerning 
 such personal tithes, to know thy mind therein, and that is, 
 If a man give to another a horse, and he selleth that horse 
 for a certain sum, shall he pay any tithe of that sum? 
 
 Doct. What thinkest thou therein? 
 
 Stud. I think that he shall pay no tithe : for there, as I 
 take it, the profit cometh not to him by his own industry, 
 but by the gift of another ;| and, as I take it, personal 
 tithes be not paid for every profit or advantage that cometh 
 newly to a man, except it come by his own industry or 
 labour, and so it doth not here. And also if he should pay 
 
 *N. B. By the statute of 2 and 3 Ed- 6, c. 13, the rigour of the Canon 
 Law as to personal tithes is much softened, and it may be observed that 
 they are n >w scarce any where paid in England, unless for mills or fish 
 caught at sea. Wood, b. 2, c. 22; 1 Roll. Abr. 641, pi. 1; 2 P. Wins. 
 Rep. .163. 
 
 (• Cro. Car. 339; 1 Lev. 179; Sid. 271 ; 3 Burn's Eel. Law, 471, 472, 473. 
 
 J 1 Roll. Abr. 656, N. pi. ; post. 297; 2 Inst. 649.
 
 294 Doctor and Student. 
 
 tithe of that he sold the horse for, he should pay tithe for 
 the very whole value of the thing : and, as I take it, the 
 personal tithes for buying and selling shall never be paid 
 for the value of the thing, but for the clear gains of the 
 thing. And therefore I take the cases before rehearsed, 
 where a man selleth his land, or pulleth down a house and 
 selleth the stuff, that he should there pay no tithe, that it is 
 there to be understood, that he that hath land or house by 
 gift, or by descent : for if a man buy land, or buy timber 
 and stuff of a house, and sell it for gain, I suppose that he 
 should pay a personal tithe for that gain. And this case is 
 not like to a fee or annuity granted for counsel, where the 
 whole fee shall be tithed for the charges deducted, or some 
 certain sum for it by agreement : for there the whole fee 
 cometh for his counsel, which is by his own industry ; but 
 in the other case it is not so. And the same reason as for 
 the personal tithe might be made of trees, when they de- 
 scend or be given to any man, and he selleth them to an- 
 other, that he shall pay no personal tithe. 
 
 Doct. Methinketh that if the horse amend in his keeping, 
 and then he sell the horse, that then the tithe shall be paid 
 of that that the horse hath increased in value after the gift: 
 and so it may be of trees, that he shall pay tithe of that that 
 the trees mav be amended after the gift or descent. 
 
 Stud. Then the tithe must be the tenth part of the in- 
 crease, the expences deducted : and then of trees the 
 charges must also be deducted, for it is then a personal 
 tithe ; and there is no tree that is so much worth as it hath 
 hurt the ground by the growing : therefore there can no 
 personal tithe be paid by the owner of the ground when he 
 selleth them, though they have increased in his time. 
 Nevertheless I will speak no farther of that matter at this 
 time, but will shew thee, that if tin, lead, coal, or trees be 
 sold, that a mixt tithe cannot grow thereby. For a mixt 
 tithe is properly of calves, lambs, pigs, and such other 
 that come part of the ground that they be fed of, and part 
 of the keeping, industry and oversight of the owners, as it
 
 Dialogue II. — Chap. $$. 295 
 
 is said before.* But tin, lead, and coal are part of the 
 ground, and of the freehold, and trees grow of themselves, 
 and be also annexed to the freehold, and will grow of them- 
 selves. And also the mixt tithe must be paid yearly at 
 certain times appointed by the law, or by custom of the 
 country •" but it may happen that tin, lead, coal, and trees 
 shall not be felled or taken in many years, and so it seem- 
 eth it cannot be an)' mixt tithe. And these be some of the 
 reasons, which they that would maintain that statute and 
 prescription to be good, make to prove their intent, as they 
 think. 
 
 Docl. What think they, if a man sell the lops of his 
 wood, whether any tithe ought there to be paid? 
 
 Stud. They think all one law of the trees and of the 
 lops.f 
 
 Docl. And if he use to sell the lops once in fifteen or 
 sixteen years, what hold they then? 
 
 Stud. That all is one. 
 
 Doct. And what is the reason why tithe ought not to be 
 paid there as well as for wood under twenty years? 
 
 Stud. For they say that the lops are to be taken of the 
 same condition as the trees be, what time soever they be 
 felled ; and that no custom will serve in that case against 
 the statute, no more than it should do of great trees. % 
 
 Doct. And what hold they of the bark of the tree? 
 
 Stud. Therein I have not heard of their opinion, but it 
 seemeth to be one law with the lops. 
 
 Doct. I perceive well by that thou hast said before, that 
 thy mind is, that if a whole country prescribe to be quit of 
 tithes of trees, corn, and grass, or of any other tithes, that 
 that prescription is good, so that the spiritual ministers 
 have sufficient beside to live upon.§ Dost thou mean so? 
 
 Wats., c. 49; 2 [nst. 6{S : 1 Roll. Abr. 635. 
 
 fSccthc great case of Walton and Lady Mary Trvon, Dec. 15, 1 75 1 , 
 mentioned by Dr. Burn in his Eel. Law, 3 vol., p. 440, which finally settles 
 this point. 
 
 X n Rep 4S ; 1 Cro. 478; Br. Dismes, pi. 14. 
 
 §3 Burn's Eel. Law, 400; ante, .284.
 
 296 Doctor and Student. 
 
 Stud. Yea verily. 
 
 Doct. And then I would know thy mind, if any man 
 contrary to that prescription were sued in the spiritual court 
 for corn and grass, or any other tithes, whether a prohibi- 
 tion should lie in that case, as it did after thy mind before 
 the said statute, where a man was sued in the spiritual 
 court for tithe wood. 
 
 Stud. I think nay. 
 
 Doct. And why not there, as well as it did where a man 
 was sued for the tithe wood? 
 
 Stud. For, as I take it, there is great diversity between 
 the cases, and that for this cause : There is a maxim in the 
 law of England, that if any suit be taken in the spiritual 
 court whereby any goods or land might be recovered, 
 which after the grounds of the law of the realm ought not 
 to be sued there, though percase the king's court shall hold 
 no plea thereof, that yet a prohibition should lie :* and 
 after when it had continued long that no tithes were paid 
 of wood, because of the said prohibition, and that after by 
 process of lime some curates began to ask tithe of wood, 
 contrary to the law, and contrary to the said prescription, 
 so that variance began to arise between curates and their 
 parishioners in that behalf; then for appeasing the said 
 variance the said statute was made, and that, as it seemeth 
 more at the calling on of the spiritualty than of the tem- 
 poralt}' : for the statute doth not expressly grant that the pro- 
 hibition in that case of tithe wood should lie so largely as 
 some say it lay by the law ; howbeit it doth not restrain the 
 Common law therein, as it appeareth evidently by the words 
 of the statute. J And so after some men, it appeareth be- 
 fore the statute, and also after the statute, (as I have touched 
 before) that the spiritual court ought not in that case to 
 have made any process for tithe wood : and therefore if 
 they did, a prohibition lay by the Common law. And like 
 law as if the spiritual court make process upon such legacy 
 
 • Ante, 1S1. 
 
 | Ante, 279, 290.
 
 Dialogue II. — Chap. 55. 297 
 
 as by the law of the realm is void. As if a man bequeath 
 
 to one another man's horse, and the spiritual court there- 
 upon maketh process to execute that legacy, there a pro- 
 hibition lieth : for it appeareth evidently in the libel, if all 
 the truth appeareth in the libel, that in the law of the realm 
 the legacy is void to all intents ; and that he to whom the 
 legacy is made shall neither have the horse nor the value 
 of th'j horse. And in like wise if a man si 11 his land lor one 
 hur dred pounds, and he is sued after in the spiritual court for 
 tithe of the said hundred pounds, there a prohibition shall 
 lie;'* for it appeareth in that case openly in the libel, that 
 no tithe ought to be paid, and that the spiritual law ought not 
 in that case to make any process whereby the goods of 
 him that sold the land might be taken from him against the 
 law of the realm. And upon this ground it is, that if a man 
 were suedf in the spiritual court now sith the statute J for 
 a Mortuary, % that a prohibition should lie, for it appeareth in 
 the libel, that sith the statute there ought no suit to be taken 
 for mortuaries ;|| and the same law is, if any suit were taken 
 in the spiritual court tor a new duty, that is of late taken in 
 some places upon leases of parsonages and vicarages, which 
 is called a Dimission noble, for it appeareth evidently in the 
 libel, if any be made thereupon, that no such process ought 
 by the law of the realm to be made in that behalf. But in 
 the case ofitithe corn or grass, or such other things, wherein 
 thou hast desired to know my mind, there appeareth nothing 
 in the libel, but that the suit thereof of right appertaineth 
 to the spiritual law ;^[ and so for any thing that appeareth 
 the party may be holpen in the spiritual court by the pre- 
 
 * Ante, :S-f. 
 
 t Post 303, 305. 
 
 % 21 II. S, c 6. 
 
 § Sec post- 304, of what in general a mortuary consisted before the act 
 of Henry. 
 
 || But a man may be sued in the spiritual court for the money given by 
 the statute, for it is recoverable there as an ecclesiastical right, just as a 
 mortuary was before the statute. 12 Mod. 416, Johnson v. Rysons. The 
 money may be sued for as a mortuary, as it has now obtained that name. 
 
 \ 2 Burn's Eccl. Law, 4S1, 4S2.
 
 298 Doctor and Student. 
 
 scription. And if the case were so put, that in the spiritual 
 court they would not allow the said prescription, yet I think 
 no prohibition shall lie. For though the spiritual judges in 
 a spiritual matter deny the parties of justice, yet the king's 
 laws cannot reform that, but must remit it to their con- 
 science. But if there were some remedy provided in that 
 case, it were well done ; for some men say, that in the 
 spiritual court the}' will admit no plea against tithes. And 
 also if a composition were made by assent of the patron, 
 and also of the ordinary, between a parson and one of his 
 parishioners, that the parson and his successors should have 
 for a ceriain ground so many quarters of corn for his tithe 
 yearly, and after, contrary to the composition, the parson 
 in the spiritual court asketh the tithes as they fall ;* that in 
 this case no prohibition should lie ; ne yet though the case 
 were farther put, that the composition were pleaded in the 
 court, and were disallowed ; but all resteth in the conscience 
 of the judge spiritual, (as is said before. )f Howbeit, be- 
 cause some be of opinion that a prohibition should lie in 
 this last case, therefore I will refer it to the judgment of 
 other ; but in the case of prescription, before rehearsed, I 
 take it for the clearer case, that no prohibition should lie, 
 as I have said before. And 1 beseech our Lord, that this 
 matter and such other like thereto, may be so charitably 
 looked upon, that there be not hereafter such divisions, ne 
 such diversities of opinions therein, as has been in time 
 past, whereby hath followed great costs and charges to 
 many persons in this realm ; and that hath moved me to 
 speak so far in this chapter, and in divers other chapters in 
 this present book, as I have done : not intending thereby to 
 give occasion to any person to withhold his tithes that of 
 right ought to be paid, ne to alter the portion therein before 
 accustomed; but that (as methinketh) they ought to be 
 claimed by the same title as they ought to be paid, and by 
 none other ; and that it may also somewhat appear that the 
 
 *2 Black. Com. 28, 29. 
 t See 2 Inst. 610.
 
 Dialogue II. — Chap. 55. 299 
 
 said statute of 45 Edvv. III.* was well and lawfully made, 
 and upon a good reasonable consideration, and that the said 
 prescription is good also ; so that no man was in any danger 
 of excommunication for the making of the said statute, nor 
 yet is not for the observing thereof, ne yet of the said pre- 
 scription, as it is noted by some persons that there should 
 be. And thus I commit thee unto our Lord, who ever have 
 both thee and me in his blessed keeping everlastingly. 
 Amen. 
 
 • 2 Inst. 642.
 
 ADDITIONS 
 
 SECOND DIALOGUE 
 
 DOCTOR AND STUDENT 
 
 CONTAINING 
 
 THIRTEEN CHAPTERS 
 
 POWER AND JURISDICTION OF THE PARLIAMENT, Etc 
 
 (301)
 
 ADDITIONS 
 
 SECOND DIALOGUE 
 
 DOCTOR AND STUDENT, Etc. 
 
 Chap. I. — What the parliament may do concerning the 
 spirituality and the spiritual jurisdiction , and what not. 
 
 Doct. I pray thee let me know thy mind in this question, 
 Whether laymen (as thee thinketh) have power to make 
 any laws of mortuaries? , 
 
 Stud. There was a law made of mortuaries in the par- 
 liament holden in the 21 Hen. VIII., c. 6,* by the assent 
 of the king, and of all the lords spiritual and temporal of 
 the realm, and of all the commons ;f and I hold it not best 
 to reason, or to make arguments, whether they had authority 
 to do that they did or not. For I suppose, that no man 
 would think that they would do anything that they had not 
 power to do. 
 
 Doct. I mean not onlv of mortuaries, that that statute 
 meaneth of, but I mean of such things as be brought to 
 
 ;:; This statute, which limits the sums which shall be taken for mortuaries, 
 now stands in full force, except as to the seventh clause, which is repealed 
 by 12 Ann., st. 2, c 6, and 2S Geo. 2, c 6. 
 
 t Ante, 297. 
 
 (303)
 
 304 Doctor and Student. 
 
 burials of dead persons;* whereof some concern the ser- 
 vice of God, or the relief of the soul, and some the worldly 
 countenance : as in some places, the church claimeth to have 
 the taper that standeth in the middle of the hearse over the. 
 heart of the corpse, and some claim to have all the tapers ; 
 some also claim to have one of the torches that is about the 
 hearse, and some to have all the torches. And if the body 
 be brought in a chariot, or with coat armour, or such other, 
 then they claim all the horses and chariot, and the apparel, 
 or part thereof; and the coat armours or other like, as se- 
 queses to the body. And these rights and duties be called 
 in some places mortuaries :f and of these I mean most prin- 
 cipally in this question. I pray thee let me know what 
 thou thinkest therein. 
 
 Stud. I pray thee let me first know what is thy opinion 
 in this question. 
 
 Doct. I think that of such of the said mortuaries as the 
 church hath right in, in such manner as is before rehearsed 
 by prescription or otherwise, and of such things as be or- 
 dained at such burials to the service of God, or to the re- 
 lief of the soul, that the parliament hath no power to pro- 
 hibit them ; as to prohibit that the church should have no 
 such mortuaries, or thaWthere should not be bidden to the 
 burial so many priests, or that there shall not be above so 
 many tapers or torches ; or that there shall not be given 
 above such a certain sum in alms : I suppose that the par- 
 liament hath no power to these things, for they be annexed 
 to the right spiritual whereof the temporal jurisdiction hath 
 no power : for the inferior may not judge upon the superior. 
 But to make a law, that there shall not be given above so 
 man\- black gowns, or that there shall not be any herald of 
 arms there, but he that is buried were of such a degree ; or 
 that no black cloths shall be hanged in the streets from the 
 house where he died to the church, as is used in many 
 
 • Wats. Com. Inc. 1053, cap. 23; 3 Burn's Eccl. Law, 500, 501. 
 t But they are all entirely abolished by the statute of II. S, and subse- 
 quent statutes relating to mortuaries.
 
 Dialogue II. — Chap. i. 305 
 
 cities and good towns, or to prohibit such other things as 
 be but wordly pomps, and be rather consolations to the 
 friends that be alive than any relief to the soul that is de- 
 parted, wherefore the church favoureth them not. I think 
 the parliament hath good authority to make a law ; I pray 
 tin e let me know thy mind what thou thinkest in these 
 diversities. 
 
 Stud. Verily I think that in all the cases before rehearsed, 
 the parliament with a cause, hath good authority to make 
 laws ; as if it were ordained by the parliament, that at such 
 burials the church should neither have torch nor taper, 
 horse nor chariot, nor none other thing like, but that they 
 should always pertain to the executors to the use of the 
 testator : it were a good statute, and ought to be observed, 
 as well by spiritual men as by temporal ; and this I take to 
 be the reason why, for all goods, though they be in the 
 hands of spiritual men, be temporal concerning the body, 
 and nourishing the body, as they do to temporal men. 
 And John Gerson holdeth the same opinion, as it appeareth 
 in his treatise of the Spiritual Life of the Soul, the second 
 lesson, and the third corollary, whereof mention is made 
 more at large in the first dialogue in English, chap. 
 3.* And all temporal things the king and his pro- 
 genitors, as in the right of the crown, have in this realm 
 alway ordered and judged by his laws : and therefore I 
 suppose that the parliament may enact, that there shall not 
 be laid upon a deceased person but such a cloth, or thus 
 many tapers or candles set up about him. f And here I 
 would say farther in one thing, and that is this, that no 
 prescription had by the authority of the spiritual law,i may 
 give no right within this realm to those mortuaries that we 
 
 * Ante, 215. 
 
 f Ante, 247. 
 
 J The ecclesiastical law allows of different times in creating customs or 
 prescriptions. Sometimes thirty, Godolphin's Orphan's Legacy, 62 ; eome- 
 times forty, 1 P. Wins. 667; Str. 422; and sometimes fifty years, Str. S3, 
 make a prescription. 
 20
 
 306 Doctor and Student. 
 
 speak of now, nor to the said mortuaries that be put alway 
 by the said statute, nor y.et to any pension or annuity ;* but 
 if any right shall be won therein by prescription, it must be 
 by a prescription had after the course of the law of the 
 realm ;f and the least prescription thereof is this, that is to 
 say, that no man's mind may remember the contrary 
 thereof whereof the prescription is made. And if this be 
 true, then have many mortuaries been claimed, and taken 
 in time past, without title, whereby the takers have been 
 bounded to restitution. And that is true that I have said 
 of such prescriptions of mortuaries and pensions, methink- 
 eth it may appear thus : If there were a law made by the 
 church, that at every burial the curate should have all the 
 tapers and torches that were about the corpse, I suppose 
 that it is clear, that that law bound not in this realm there 
 as no prescription was thereof before. And if a law made 
 by the church should not in this case bind, how should 
 then a prescription, grounded only upon the laws of the 
 church, bind? I cannot see how: but if it were in a 
 country where the church hath sovereignty in temporal 
 things, it were a greater doubt. And in this case many 
 say, that a prohibition ought of right to be granted to pro- 
 hibit the spiritual judges, that they shall not give sentence 
 against the prescription of the king's law, whereby any 
 temporal goods may be bound, as well as that they shall 
 not hold plea of that that belongeth to the king's law, but 
 such a prohibition is not in use.| But if it were enacted, 
 that a prohibition should hereafter lay in that case, I sup- 
 pose that it were a right good and a reasonable staiute. 
 And also whether such a prescription, after the law of the 
 church, give title for tithes, is after some men the greater 
 question : but I will no farther speak thereof at this time. 
 And as to the coat armour, shield and sword and such other 
 things as be sometime set up at the burial of noble men, 
 
 § 2 Inst. 491. 
 
 f Ante, 27; Co. Litt. 114. 
 
 X Ante, 1S1.
 
 Dialogue II. — Chap. i. 307 
 
 some men say that they belong not to the church, but to the 
 executors :* and that they ought to remain there to the 
 honour of tin? body, and to the memorial of the soul, as 
 long as they will endure. For there was never gift thereof 
 made to the curate, whereby any property might grow unto 
 him. And a case much like to their sayings is in the 9 Ed- 
 ward IV., f where an action of trespass was brought for 
 taking away such a coat armour, etc. And there some were 
 o( opinion, that the action la}' well, howbeit the case is not 
 judged ; but whatsoever the law be therein, I think it be 
 no great doubt, but that if a statute be made that they 
 should belong to the executors, that the interest of the curate, 
 whatsoever he had thereto before by prescription, constitu- 
 tion, or otherways, were determined ; and so methinketh 
 that the parliament ma}' as directly make a law concerning 
 such mortuaries as it may do of any other temporal goods 
 within the realm ; and then as to the number of priests and 
 clerks, that should be bidden to such burials, I think that 
 the parliament may well, upon a certain pain, prohibit, that 
 none shall call to such a burial above a certain number of 
 priests and clerks to be assigned by the parliament after 
 the degree of him that is buried ; and especially to prohibit, 
 that none shall give any money, or other reward, to any 
 above that number, though they come uncalled. For such 
 statutes be for ordering of temporal things, and to force that 
 the king's subjects should not be charged but as the parlia- 
 ment should think expedient for the wealth ot the realm, and 
 therefore they are to be observed in law and conscience. 
 And thus I have shewed the part of my conceit, what me- 
 thinketh concerning the said mortuaries. 
 
 Doct. I thank thee for the pain thou hast taken therein: 
 and since thou hast somewhat touched what the parlia- 
 ment may do in these mortuaries, which concerneth 
 somewhat the spirituality, I pray thee that thou wouldest 
 shew me somewhat more of thy mind, what the parliament 
 
 5 1 Burn's Ecc Law, 343; 3 Inst. no. 
 t 3 Inst. 202.
 
 308 Doctor and Student. 
 
 may do in other things concerning the spirituality ; fori think 
 it were good and necessary to be known for the good ordei 
 of conscience of many persons, and the appeasing of many 
 and great diversities of opinion in this realm. 
 
 Stud. To treat of this matter at length, it would ask a 
 great time ; but I shall with good-will briefly touch some 
 articles thereof, and haply thou shalt by them know the 
 better what the parliament may do concerning the spiritual 
 jurisdiction in other cases like. But I pray thee take me 
 not, that my meaning is, that I would that such statutes 
 should be made as I shall speak of; for I do it not to that 
 intent, but only to shew the power of the parliament what 
 they may do if they list to execute their power. 
 
 Chap. II. — What the -parliament may do concerning the 
 spirituality and the spiritual jurisdiction, and what not. 
 
 Stud. I suppose it may be enacted by the parliament, that 
 no lands, nor other inheritance, shall hereafter be given into 
 mortmain by licence, nor without licence, but that all feoff- 
 ments, fines, leases, and recoveries by covin, or by assent 
 of the parties hereafter made, or had for mortmain, shall be 
 void and that the house shall take no interest by it ;* but 
 that it shall remain still with the feoffors or givers, or to 
 such other use as the parliament shall appoint. For like as 
 the parliament may ordain, that all feoffments and fines, 
 made to any manner of person, shall be void, and that every 
 man shall stand still seised of his land without making of 
 any alteration of posession thereof to any other, more 
 stronger it may ordain, that no alteration of possession 
 shall be made into mortmain. And that a statute may 
 be made that there shall be no alteration of possession 
 made of lands to no man, it may appear by the words of 
 John Gerson, in his treatise of Contracts, the 6th considera- 
 tion, where he says thus: "Contracts be not therefore 
 precisely to be said unlawful and void, because they may 
 
 ♦Ante, 200, 210.
 
 Dialogue II. — Chap. 3. 309 
 
 be redeemed by the law made for such redemption. For 
 he sayeth, ' That they that would say so, would condemn 
 the high maker of laws, that is God himself:' which in the 
 judicial law given by Moses to the Jews (as the text is 
 open) Levit. xxv, willeth, 'That he that selleth his in- 
 heritance may redeem it: and if he redeem it not, yet it 
 should return again in the year of Jubilee :' for it is there 
 said to the Jews thus : 'AH the region of your possession 
 shall he sold under the condition of redemption.' And 
 though that law bindeth not now christian people, yet a 
 like law thereto might be made by christian princes, which 
 then by that new institution ought to be observed and kept, 
 as divers of the said judicials have been in many countries." 
 Thus far be the words of John Gerson. And methinketh, 
 that if a law might be made, that if a man sell his land, 
 that he may nevertheless redeem it within certain years, 
 whether the buyer will or no, though no such condition 
 were spoken of at the making of the bargain : that like 
 reason is that a law may be made, that there shall be no 
 sales, but that ever}- man shall continually stand still seised 
 ot his lands, as I have said before. And I suppose verily 
 that such a statute should be good and profitable, as well 
 for them that have such lands in mortmain as for many 
 other. And Basdus de Perusio saith, that such a statute 
 should be good to prohibit that no lands should come into 
 mortmain, but not to prohibit that no goods should come 
 into mortmain. And methinketh his saying is good and 
 reasonable. 
 
 Chap. III. — What the -parliament may do concerning the 
 spirituality, and what not. 
 
 Stud. I think also that the king by parliament may 
 break all appropriations that be made against any statute, 
 or against the good order of the people, or against the 
 commonwealth; and the cause is this: there can be no 
 church appropriated, but that the patronage of the advow- 
 son thereof must be given before the appropriation to the
 
 310 Doctor and Student. 
 
 abbot, or prior, or other, to whom the propriation shall be 
 made, and to their successors, for if it be given but for term 
 of lite, the appropriation cannot stand in effect but for term 
 of lite.* And because the advovvson is a temporal inherit- 
 ance, therefore it is under the power of the parliament to 
 order it as it seeth cause, and to bring it again to be 
 presentable as it was first : and in likewise if a man bring a 
 writ of right of advowson against him that hath such an 
 advowson appropried to his house, and recovereth the 
 advowson, the appropriation is dissolved : for the appro- 
 priation can no longer continue than they have the patron- 
 age. And the parliament may leave the advowson to the 
 house, as an advovvson presentable if they see cause ; or 
 they may give it to the first giver, or otherwise dispose it, 
 as the matter requirelh. And under such manner all the 
 vicarages that were unyed, annexed, or appropried from 
 the first year of king Richard II., unto the parliament holden 
 in the fourth year of king Henry IV., were disapproved. f 
 And by the same statute of Henry IVth it is enacted, That 
 all vicarages appropriated after the statute made in the 
 fifteenth year of king Richard against the form of the 
 statute, shall be disappropried, except the vicarage of Had- 
 denham in the diocese of Ely, as in the said statute ap- 
 peareth. But yet I suppose, that the parliament may not 
 make an appropriation without spiritual assent ; ne I mean 
 not that it were good that all appropriation should be 
 broken ; but I have spoken this to show what authority the 
 parliament hath if they would execute it; and if there be 
 a reasonable consideration why it is done, then the disap- 
 propriation holdeth as well in conscience as in the law. 
 And good it is, that the authority of parliament be known 
 in this behalf to the intent that it may cause them the rather 
 to observe such statutes as be already made of such ap- 
 propriations, and to dispose some part of the fruits thereof 
 among the poor parishioners, according to the statute of the 
 
 * Ante, 189. 
 fPlow. 495.
 
 Dialogue II. — Chap. 4. 311 
 
 15 Rich. II. made in that point. And it were asked them, 
 why they have not observed the said statute, they have none 
 other excuse, but either to say that they knew not the stat- 
 ute, or else that the statute had no power to bind them to 
 it. And I suppose verily that neither of those sayings can 
 be any reasonable excuse unto them in that behalf.* 
 
 Chap. IV. — Concerning the power of the parliament as 
 against the spirituality. 
 
 Stud. , All the sanctuaries in England, | as well in 
 churches as other, % and also where a man shall have his 
 clergy, and where not, be under the power and authority 
 of the parliament. 
 
 Doct. I suppose that it is by the spiritual authority that 
 a man shall be defended by a sanctuary, or have his clergy. 
 
 Stud. Nay verily, but by the old customs and maxims of 
 the law of the realm ; and therefore the king's justices shall 
 judge where a man shall have sanctuary or his clergv, and 
 where not. And if the ordinary will not come to receive 
 them that be clerks, the king's justices may set a fine upon 
 him. And also the king's pardon shall discharge one, both 
 of the sanctuary, and out of the bishop's prison ; and so it 
 appeareth that the bishops have the keeping of such as be 
 admitted to their clergy by authority of the king's laws, and 
 not by their own authority. § And though the title of sanct- 
 uary, and the liberty where a man shall have his clergv, be 
 under the power of the parliament, yet the parliament hath 
 not broken nor extended his whole power on .them, to put 
 them generally away. 
 
 Doct. Mig'nt the parliament break a sanctuarv that is 
 granted by the pope? 
 
 Stud. The pope by himself may make no sanctuary in 
 
 * For further information relating to appropriations, see I Burn's Ecc 
 Law, title Appropriation. 
 t Ante, 93, J40. 
 
 J Sanctuary is now abolished hv stat 21 Jac« 1, c -S. 
 § See stat. 18 L'liz , c. 7. and 4 B. C. 362.
 
 312 Doctor and Student. 
 
 this realm : but if the king and the pope together do it, the 
 old custom cf the realm serveth, as most men say, that it 
 is good. But yet if the king after that grant, by authority 
 of his parliament avoid his own grant, then remaineth but 
 only the pope's grant ; and that sufllceth not to make a 
 sanctuary, as I have said before : but the parliament with- 
 out the pope may make a sanctuary, with such penalties as 
 they shall think convenient to set upon the breakers thereof. 
 But if the pope do after confirm that sanctuary, and grant 
 that no man under the pain of the censures of the church 
 do break it, it is the stronger, howbeit the sanctuary taketh 
 his full strength in that case as to the law by the parliament. 
 
 Chap. V. — Concerning the pozver of the parliament 
 against the spirituality. 
 
 Stud. I suppose also, that the parliament may assign of 
 the trees and grass in church-yards either to the parson, to 
 the vicar,* or to the parish if they see cause : for though it 
 be hallowed ground, yet the freehold thereof, the trees and 
 herbs are things temporal, as they were before the hallow- 
 ing ; and that the parliament hath power to order them (as 
 is said before) it appeareth by a statute that is called Ne 
 rector prostemat arborcs in ccemctcrio, 35 Edvv., stat. 2, 
 that is to say, the statute against persons, that they shall 
 not cut down trees in the church-yards. In which statute 
 it is recited, thai the soil of the church-yard (which in the 
 laws of England is called the freehold) belongeth to the 
 church : and then the statute goeth farther, and prohibited! 
 
 * As the law now stands, if there is a rector only, or a vicar only of the 
 church, the trees and grass belong to him; but if there is both rector and 
 vicar in the same church, it is doubtful to which of them they belong. 
 Linwood seems to think the rector has the property in them, unless they 
 are otherwise assigned in the endowment of the vicarage. Lind. 267. 
 Hut this is mere conjecture. In short, there appears to he no direct au- 
 thority one way or tin- other. In Bellamy's case, in the spiritual court, 
 where the vicar sued t lie parson impropriate for cutting down trees, the 
 point to which of the two the trees did belong was indeed considered; but 
 the case at last went off upon another ground, so that the right was not 
 determined. 2 Roll. Abr. 337.
 
 Dialogue II. — Chap. 5. 313 
 
 all persons, that they shall not fell them, but it be for nec- 
 essary reparations of the chancel,* but that they shall let 
 them stand still to defend the church from the great tem- 
 pestuous winds and weather. And then it seemeth, that 
 like as the parliament hath authority to prohibit persons, 
 that they shall not fell the trees in the church-yard when 
 they would, that it hath authority as well to take the whole 
 property of the trees from them if they see cause, and that 
 they may give them to the parish, if there be reasonable 
 consideration to move tbem to it. And yet nevertheless 
 the judges for a church-yard will most commonly put the 
 court out of jurisdiction, and remit it to the spiritual law, to 
 determine to whom it belongeth of right ; but I take that to 
 be by a custom, and a favor of the law, and not of a mere 
 right, as of the law of God. And therefore if the parlia- 
 ment would ordain, that the right of church-yards, and of 
 all things in them, should be tried in the king's courts, I 
 think the statute might well do it. But, as I have said 
 before, the parliament will not extend their power to many 
 things, that they might do if they would (I think), and 
 especially in these matters they will not. And surely as 
 well the parliament as the king's courts, of the king's bench 
 and common pleas, and all the common law (as 1 suppose) 
 have been and be as favourable to the spiritual jurisdiction, 
 as well in such church-yards, tithes, offerings, and such 
 other, as any law hath been ; insomuch that in the king's 
 bench and common pleas they will sutler no issue to be 
 joined, especially betwixt person and person, whereby the 
 right of tithes might be tried ; howbeit that in the exchequer 
 
 * It seems that the rector or vicar may cut them clown to repair the 
 parsonage or vicarage house, or the pews belonging to either. He may 
 likewise take botes for repairing the barns and outhouses belonging to the 
 house. And Lindwood says, if the nave of the church wants repairing, 
 the rector or vicar will do well not to be difficult in granting leave to cut 
 clown a tree or two fir that use. Lind. 267- But if the trees arc cut 
 down for any other purposes, the persons cutting them down may be re- 
 s trainee by injunction. 2 Atk. 217. May ba indicted upon the statute 35 
 Ed. 1 ; 11 Co. 49. May be sued in an action of trespass at common law. 
 2 Roll. Abr. 337. Or be proceeded against in the spiritual court.
 
 314 Doctor and Student. 
 
 some time they have done otherwise. And for a farther 
 proof, that the parliament may order a church-yard, and 
 trees and grass, as is aforesaid, some make this reason ; 
 the}- say it is enacted by the statute 15 of Rich. II., ch. 5, 
 that lands that be made church-yards, and be hallowed and 
 made burials without licence of the king and chief lords, shall 
 be in case of mortmain : and they say, that of that it follow- 
 ed"), that if the king or lord enter, for that the church-yard 
 was made against the statute, that the hallowing thereby is 
 annulled, for else (they say) the statute should be void. 
 And it the statute have power to annul the hallowing, made 
 against the statute, they say more stronger it may order the 
 trees and grass that be growing upon it, because they be 
 temporal, as is said before. And in that case if the lord 
 enter by reason of the statute, and the person putteth him 
 out, and the lord bring assise, and the person pleadeth, that 
 it is a church-yard, and demand judgment, if the court will 
 hold plea thereof, and then the lord sheweth how he entered 
 by iorce of the said statute, and pleadeth in certain ; that 
 is a good plea to give the court jurisdiction. And thus I 
 suppose verily that the parliament may order the trees and 
 grass in a church-yard, as I have said, and yet the ground 
 to remain still hallowed, as it did before. 
 
 Chap. VI. — Concerning the pozver of the parliament 
 against the spirituality. 
 
 Stud. I suppose also, that it may be enacted by authority 
 of parliament, that if a spiritual man sutler his houses to 
 decay and die : that his successor shall have remedy in the 
 king's court, against his executors, and that it may be pro- 
 hibited, that no suit of dilapidation should be hereafter taken 
 in the spiritual court, for it is brought to have amends for 
 the waste and decay done in houses by his predecessor, 
 which is all temporal, and belongeth to the king's courts, as 
 wastes and trespass do. And howbeit, that no action lieth 
 for the successor in such case for the waste at the common
 
 Dialogue II. — Chap. 6. 315 
 
 law :* yet that is not sufficient to prove, that an action may 
 lie therefore at the spiritual laws : for if a person of a 
 church make a lease for term of years, and the lessee cloth 
 waste, in that case the person shall have no remedy at the 
 common law, and yet he shall not therefore have any rem- 
 edy at the spiritual law.j" And also in divers statutes it ap- 
 peareth, that if a man have judgment in the spiritual law 
 to do penance, as is enjoined him, that the judges spiritual 
 may not turn that penance into money, unless the party will 
 freely ask it ;| lest they might by that means give judgment 
 of temporal things. And if they may not turn penance 
 into money, but by the free will of the party ; then more 
 stronger, they may not hold plea in this matter, where none 
 other thing is in variance but waste of houses, and where 
 are demanded damages, as was in the prohibition of waste 
 at the common law : and therefore some men say, that a 
 'praemunire facias, or a prohibition lieth in this case, at 
 this day, if the grounds of the law were thoroughly looked 
 upon ;§ howbeit, because of the custom so long used and 
 suffered to the contrary, peradventure it were not good to 
 alter the law therein without parliament; but they think 
 verily that the parliament may well alter it ; and to enforce 
 their reason they say, that since the court christian may not 
 by the law award damages for beating of a clerk, but only put 
 
 * Actions have been and may be brought upon the custom of the real n 
 in the king's court for dilapidations. 3 Lev. 26S; Cart. 244. 
 
 t Ante, 101 . 
 
 Jin the days of popei v the ecclesiastics for a little advantage ".vere used 
 to enjoin pecuniary penances, and to demand them as their just dues. 
 Whereupon the statute of articuli clert, 9 Ed. 2, st 1, c 2, was made, 
 which entirely prohibited this practice; but further provided, that it pre- 
 lates enjoined corporal penance, and the party to be punished would upon 
 his own accord redeem such psnance for money, it should be allowed. 
 By virtue therefore of this provision, money may be taken as a commuta- 
 tion for corporal penance, and if it is not paid, a suit may be instituted lor 
 it in the spiritual court. 4 B. C 217. 
 
 § It is most clear, that a prohibition will not lie, as the eccles 
 court has undoubted cognizance of dilapidations, and may decree satisfac- 
 tion to be made for them out of the ecclesiastical or patrimonial goods of 
 the person suffering such dilapidations. Lind. 250; Gibson, 753; 3 B. 
 C 9a.
 
 3 1 6 Doctor and Student. 
 
 him to penance for laying violent hands upon the clerk, that 
 more stronger they may not in this case award damages for 
 the waste, that is nothing else but a temporal offence.* 
 
 Chap. VII. — Concerning the authority of the -parliament 
 and the spirituality. 
 
 Stud. If it were ordained by statute, that no priest should 
 wear any cloth made out of the realm, nor above such a 
 price, upon a certain pain, or that chaplains shall not take 
 above so much lor their salary, I suppose that these statutes 
 were good, because ihey concern the ordering of temporal 
 things ; but to appoint the fashion of their garments, or 
 their tonsure, it is more doubt whether the parliament may 
 set pain upon it or not. 
 
 Doct. It hath not been seen, that any penal statutes have 
 been made by parliament concerning apparel of the clergy 
 in this realm, for that hath always been ordered by the con- 
 vocation, f And also it appeareth in the statute made in the 
 36 Edw. III., c. 84 that when default was found by the 
 commons for excessive wages of chaplains, that the parlia- 
 ment did not order the wages, but the king and his lords, 
 at the petition of the commons, moved the archbishop of 
 Canterbury thereof; and thereupon he and other bishops 
 afterward informed the parliament, that they had set the 
 wages in certain, and that no chaplain should take more 
 than they had appointed, upon a pain by them limited ; and 
 if any spiritual men gave more, etc., they to forfeit the 
 double to certain uses by the convocation appointed. And 
 that no chaplain should remove from one diocese to another 
 without letters of the ordinary, from whose diocese they re- 
 moved. And it was then ordained by the parliament, thai 
 no temporal man should give more wages than the bishops 
 
 * 2 Inst. 492 ; ante, 303. 
 
 fTlie principal canons which respect the habit of clergymen are a con- 
 stitution of Archbishop Stratford, in the year 134.3, ' n tne reign of king 
 Edward the Third, and the 74th canon of the canons in the year 1603. 
 
 \ Post. 317; repealed.
 
 Dialogue II. — Chap. 7. 317 
 
 had assigned, upon pain to forfeit as much to the king, as 
 in the said statute appeareth. And also the statute willeth 
 farther, that he that findeth him grieved against that ordi- 
 nance, shall have his remedy in the chancery ; but it ap- 
 peareth not, that there should be any remedy thereupon at 
 the common law. 
 
 Stud. The virtue of spiritual men, and the favour of the 
 realm to them, and their wisdom, policy, and high author- 
 it} - be and have been great in this realm, whereby many 
 things have been forborne, that might lawfully have been 
 done, as I suppose. And in the statute made in the 3 Hen. 
 V. wages of chaplains were set in certain by the parliament : 
 and truth it is, that by the said statute of 36 Edw. III.,* ch. 
 9, it is enacted, That whosoever findeth him grieved against 
 the said ordinance, made of the said wages, shall have 
 remedy in the chancery, as thou sayest ; and therefore it 
 followeth thereupon, that if chaplains may by authority of 
 the parliament be lawfully put to answer in the chancery 
 before the chancellor, which sitteth there only by the king's 
 authority, that they may as well upon a reasonable cause 
 be put to answer by authority of the parliament after the 
 process of the common law. 
 
 Doci. Bv subpoena, which is the process used in chan- 
 cery, the person shall not be arrested, but be only warned 
 to appear. I And it is directly against the canons, that a 
 priest should be arrested, and peradventure at the making 
 of the said statute, the parliament had respect thereto, and 
 thought it reasonable, that they should rather be put to an- 
 swer in chancery, where their bodies should not be ar- 
 rested, than at the common law, where they might be ar- 
 rested. $ 
 
 Stud. Though the person shall not be arrested by a sub' 
 fevna, yet if he appear not in the end he shall be proclaimed 
 rebel, and then thereupon his body shall be arrested. § And 
 
 ♦These statutes are repealed by 21 Jac , c 28. 
 T3B. C. 443- 
 
 X See Statutes 50 Ed. 3, c- 5, and 1 R. 2, c. 15. 
 § 3 B. C. 444.
 
 31 8 Doctor and Student. 
 
 also if the party will not perform the judgment given upon 
 the suhpcena, there is none other execution in the Chancery, 
 but to commit him to prison till he have performed it ;* and 
 therefore (as it seemeth) the parliament regarded not that 
 point. Wherefore I suppose rather, that the statute was 
 made as to that article upon this consideration, that because 
 upon a decree made by the convocation,! there lieth no 
 action at the Common law, but at the Spiritual law, and 
 because this matter concerned giving of wages, which were 
 things temporal, it was thought reasonable that the offenders 
 against the decree made in the convocation, should be put 
 to answer in the Chancery, which is the king's court : bul 
 it might as well have been enacted, that they should have 
 been put to answer at the Common law as in the Chancery, 
 if the parliament would, as I suppose. But to that point, 
 that thou hast spoken of before, that it is against the canons 
 of the church, that a priest should in i\ny cases be arrested. J 
 The Common law pretendeth, that the king, as in the right 
 of his crown, and by his Common laws, hath that authority, 
 and so it is daily put in execution. And if the Common 
 law be so already, then there needeth no statute to be made 
 of it. Nevertheless, because our intent now at this time is 
 to speak only, what the parliament may do concerning the 
 spirituality, and what not, therefore I will no farther speak 
 of that matter but only this, that if there be offence in them, 
 that execute the Common law therein, that it is a great 
 marvel, that spiritual men have done no more to reform it, 
 than they have done; and if there be no offence therein, 
 then were it good, that it were so openly known, that all 
 scrupulosity of conscience might be avoided. For as it 
 standeth now, there resteth in some persons, that execute 
 the law therein, a doubt in conscience; and by reason of 
 th;.t doubt they offend, that should not offend, if the mat- 
 ter were plainly declared. For then would they either 
 
 •■ i Ilarr. Chan. Prac. 316. 
 f Dav. 70. 
 J Ante, 317.
 
 Dialogue II. — Chap. 8. 
 
 3'9 
 
 clearpy cease, or else proceed according to the law with 
 good authority. 
 
 Chap. VIII. — Concerning the authority of the -parliament 
 and the spirituality. 
 
 i Stud. If there were a schism in the papacy, who were 
 right wise pope, the king in his parliament, as the high 
 sovereign over the people, which hath not only charge on 
 the bodies, but also on the souls of his subjects, hath power 
 for the quietness and surety of his realm to ordain and de- 
 termine, who shall be in this realm holden for right wise 
 pope, and may command, that no man spiritual nor temporal 
 shall name any other to be pope, but him that is so authorised 
 in the parliament ; nor sue to any other as pope, but onlv 
 to him. And a statute of like effect was made in the 2 
 Rich. II., ch. 7,* where pope Urban was adjudged in the 
 parliament to be lawfully chosen pope. And the parlia- 
 ment, for appeasing divisions that might rise in the realm 
 by such a schism in the papacy, may set a remedv ; why 
 then may not the king and his parliament in like wise, as 
 well to the strength of the faith, and to the health of the 
 souls of many of his subjects, as to save his realm from being 
 noted of heresy, search the cause of such division as is now 
 in the realm by diversities of sects and opinions ; and to 
 know also by whom, and by what occasion the noise hath 
 arisen, that there should be so many heresies in this realm 
 as are noted to be : and whether there be such heresies or 
 not, and not to put any to answer* thereupon after the pro- 
 cess of the law ; but charitably to examine the truth 
 therein, and thereupon by their wisdoms to devise some 
 charitable way for unity and peace. And great re- 
 ward shall they have of God, that put their hands to 
 avoid the great danger that is like to fall to many souls, 
 as well of men spiritual as temporal, if this division con- 
 tinue long. And as far as I have heard, all the articles 
 that be misliked in this behalf, sowneither against the 
 
 •Post. 320; obsolete.
 
 320 Doctor and Student. 
 
 worldly honour, worldly power, or worldly riches of 
 spiritual men ; but to express the articles I hold it not most 
 expedient. And verily if it be true that some have 
 reported, many of them be so far against the truth, that I 
 suppose no christian man will hold them, believing them to 
 be true : but that they do it for some other consideration. 
 And though they do not well in that doing, how good 
 soever the consideration be, for no evil is to be done that 
 good should follow ; yet they do not so evil, as if they held 
 them, believing them also to be true ; nor it will not be so 
 hard to remove them from it, as it would be, if they did 
 believe them indeed. For if it be so, that they believe 
 them not, then the cause removed, it is to think, that they 
 would be lightly reformed : and therefore if it were ordained 
 for a law, that every curate at the death of every of their 
 parishioners, should say for their souls in audience Placebo 
 and D/'rige, and mass, without taking any thing therefore :* 
 and that they should also at a certain time, there to be 
 assigned by parliament, as it were once in a month, or as 
 shall be thought convenient, do in likewise, and pray 
 especially for the souls of their parishioners, and for all 
 christian souls, and for the king and the whole realm :f 
 and religious houses to do after the same manner, I sup- 
 pose, that in short time there would be but few, that would 
 say, there were no purgatory. And in likewise if it were 
 ordered so by the pope, that there might be certain general 
 pardons of full remission in divers parts of the realm, which 
 the people might have' for saying certain orisons and 
 prayers, without paying any money for it, it is not unlike, 
 but in short time there would be very few, that would lind 
 any default at pardons :$ for verily it is a great comfort to 
 
 * Ante, 221. 
 
 f Ante, 31, 20S. 
 
 X In the dark ages of ignorance and superstition, the Pope had great 
 power in the management of affairs both civil and ecclesiastical here in 
 England. The title he assumed, and which was thought to belong to him, 
 was that of vicat general under God. His decrees were considered as just, 
 and his opinions infallible. In short, he was looked up to as one that had
 
 Dialogue II. — Chap. 8. 321 
 
 all christian people to remember, that our Lord loved his 
 people so much that he would to their relief and comfort, 
 leave behind him so great a treasure, as is the power to 
 grant pardons : which, as I suppose, next unto the treasure 
 ol his precious body in the sacrament of the altar,* may be 
 accounted among the greatest. And therefore he laboured 
 greatly to his own hurt, and to the great heaviness of all 
 other also, that would endure himself to prove, that there 
 was no power left by God. And I suppose verily that if 
 such free pardons were granted (as I have spoken of 
 before) and that then other pardons were afterward granted, 
 to have the aid of the people for some charitable cause, as 
 to resist the Turk, or such other, that the people would as 
 diligently receive those pardons to be partakers of the good 
 deed, as they would be, if there were no such free pardons 
 granted before. And I think verily, that if the king's 
 grace, and his parliament, look not upon these matters, it 
 will be hard to tell who shall be able to do it. And under 
 this manner Naitanus, king of Picts, took great labour and 
 diligence for the appeasing of the division and variance, 
 that was amongst his subjects (as well spiritual as tem- 
 poral) for the due time of keeping the Easter. For some 
 men in that variance kept Easter, when other kept Palm 
 
 a right to do and say just what he pleased. Of this power the Pope did not 
 fail to make a handle. He turned it entirely to his own pecuniary advantage, 
 and the henefit of the holy see; so that it is scarcely to be believed what 
 large sums of money were drained annually out of this kingdom in the 
 purchase of bulls, indulgences, etc. However, this trade was too shock- 
 ing to be endured in any state but that of absolute ignorance and blind de- 
 votion. Accordingly, when letters began to flourish, and the minds of 
 Englishmen were by degrees enlightened by learning and the sciences, 
 they soon perceived that the tyranny and encroachments of papal Rome 
 were horrid in the extreme. They therefore began to oppose them: and 
 oppose them they did, with such firmness and success, aided, no doubt, by 
 the hand of providence, that in the happy and pious reign of Elizabeth the 
 reformatio:! was ciTected, an sera which gave a fatal blow to the papal 
 power both as to religion and government within this realm. 
 
 * See stat. 30 Car. 2, cap. 1, which requires a declaration against the 
 doctrine of transubstantiation. . 
 
 21
 
 211 Doctor and Student. 
 
 Sunday; and that was seen some time in one house.* In 
 which schism many great clerks and holy men were of 
 several opinions, insomuch that the blessed man Saint 
 Aidan, which was a holy bishop, erred long in the due 
 time of keeping of Easter, and had many followers, and 
 yet was he no heretic. For that that he did therein, he did 
 with meekness, and as he thought stood according to the 
 truth : and therefore there was but little offence in him. 
 For appeasing of this schism, f the said king Naitanus sent 
 messengers to Saint Colfrid, then being abbott of the mon- 
 asteries of Saint Peter and Paul, that be upon the rivers of 
 Tyne and Tweed, and whereas venerable Bede was 
 brought up, to be instructed in the due time of keeping 
 Easter, and of the tonsure of clerks, which was then also 
 in variance, whereupon the said holy man Colfrid wrote a 
 letter unto the said king Naitanus, declaring unto him, by 
 many authorities of scripture, the very due time of keeping 
 Easter, and shewed his mind also in the said tonsures : and 
 when the said letter was read before the king and his lords, 
 and that the tenure thereof was plainly interpretate and de- 
 clared unto him, he rose up from among his lords, and 
 kneeled down upon his knees, and thanked Almighty God, 
 that had sent him such a gift out of the country of England. 
 And it is not to think, that he did this, intending to give 
 sentence therein by his own authority, for that belonged 
 not to him, but he did it to know the truth, and that he 
 might thereupon shew his favour to the better part. And 
 if the king's grace would in this case endeavour himself to 
 know the truth of the cause of this division, I suppose that 
 he shall in some article shew his favour to the one part, 
 and in some other' article to the other part. Also when the 
 heresy of Enticetis^ rose at Constantinople, which erred in 
 the Trinity, the blessed man Saint Theodore, then arch- 
 
 * Vide the statute 24 Geo. 2, c. 23, s. 3, which points out the time when 
 the feast of Easter shall be celebrated, in conformity to a decree of the 
 council of Nice. » 
 
 t Ante, 32. 
 
 J Ante, 195.
 
 Dialogue II. — Chap. 8. 323 
 
 bishop of Canterbury, to the intent he would keep the 
 church of England from that error, gathered all the clergy 
 together, and examined them diligently what they thought 
 concerning the articles of the heresy : and when he found 
 them all stedlast in the catholick faith, he wrote a letter of 
 their belief; and for instruction of them that should come 
 after, sent it to Rome ; and the effect of his letter was this : 
 "We believe and constanlh' confess after holy fathers, 
 to he verily and truly, the Father, the Son, and the Holy 
 Ghost, a Trinity in Unity, and a Unity consubstantial in 
 Trinity, that is, one God in three persons consubstantial of 
 equal glory and honour." And among other things that 
 he wrote, which pertained to the faith, he said afterward-; 
 "We also accept the holy and universal sine synodals of 
 holy fathers : and we accept and glorify our Lord Jesu 
 Christ as they glorified him, nothing adding or diminishing ; 
 and we glorify God the Father without beginning, and his 
 only Son gotten of the Father before the worlds, and the 
 Holy Ghost proceeding of the Father and the Son, so as 
 they cannot be spoken as they, that we have remembered, 
 the holy apostles and prophets and doctors have preached 
 and taught. And methinketh, that these examples should 
 somewhat encourage them, that now may do good in this 
 evil and perilous time, to follow somewhat alter, and every 
 man after his degree is, to do the best that he can therein 
 to help it, not regarding worldly honour, worldly riches, 
 nor singular profit : but only the honour of God, and the 
 love of their neighbours, and health of their souls. And 
 if they do so, undoubtedly the work shall prosper well in 
 their hands. And let no man, that may do good in this 
 matter, suffer it to over pass as though it pertained not to 
 him : for Almighty God hath given a commandment to 
 every man upon his neighbour. And to encourage them- 
 selves yet the more unto it, let them remember the words, 
 that be spoken in the first book of the Revelations of Saint 
 Bridget, the 58th chapter, where our Lord Jesu, among 
 
 * Ante, 195.
 
 324 Doctor and Student. 
 
 other things, said to our lady thus : "I would (said he) if it 
 were possible, suffer for every man such a pain as I once suf- 
 fered for all men upon the cross, so that they might come to 
 the inheritance promised." Happy be they then, that help 
 souls to that inheritance, that our Lord desired so much to 
 have them come unto. And sometime it hath been brought 
 about by fair means, that could not be done by rigour and 
 ■compulsion. And if my lords and masters spiritual will 
 needily forthwith their streight corrections and punishments, 
 without finding some provision, that the minds of the peo- 
 ple may somewhat be eased, in such things as they have 
 misliked and grudged at in times past ; it is to fear that there 
 will not follow so good fruit of it as there would do, if they 
 would do it ; and that they would shew themselves evidently 
 to do nothing but only of a zeal and love unto the people* 
 And it is a doubt to some men ; whether some of the things 
 that the people mislike and find default at, be occasions act- 
 ive or passive to the people to offend : but whether they be 
 the one or the other, charity would (as it seemeth) that some 
 diligence should be put to amove them, though percase they 
 were not evil but indifferent, or peradventure good of them- 
 self. 
 
 Chap. IX. — Concerning the authority of the parliament 
 and the spirituality. 
 
 Stud. If it were enacted by the parliament, that if a man 
 call another a thief or a murderer, that an action should lie 
 thereupon at the Common law, and that no suit should lie 
 thereupon at the Spiritual law ;* I think it were a good stat- 
 ute, for the matters whereupon the words rise are only to 
 be determined by the Common law.f And so it is if a man 
 
 * i Roll. Abr. 74; Cro. Jao 214. 
 
 •| But calling a man whoremaster, 2 Salk £92 ; a cuckold, 3 Cro. no; a 
 cuckoldy knave, Cro. Car. 399; or calling a woman a whore, 2 Salk. 696; 
 Goul^b. 172; Ld. Raym. 1136 (except in London and Southwark) ; a jilt, 
 a strumpet, Str. 823; or a bawd, is only suable in the spiritual court. So 
 likewise the defaming of a clergyman in any point relating to the dis- 
 charge of his office, is properly triable in the spiritual court, as lo call him 
 an adulterer or an heretic. 1 Cro. 502, 94.
 
 Dialogue II. — Chap. io. 
 
 3 2 S 
 
 call another villain, an action lieth thereon at Common law 
 if he be free,* and not at the Spiritual law; because the 
 right of the villainage may not be tried but at the Common 
 law ; and most men say, that if there be an indictment of 
 felon}- at the Common law, that then there lieth no suit 
 thereof in the Spiritual law, so that there needeth no stat- 
 ute to be make in that point. 
 
 Doct. If a statute were made, that an action should lie 
 at the Common law of such words as a man hath any loss 
 or worldly hindrance by, though they have before time been 
 used to be sued only in the spiritual court, thinkest thou, 
 the statute were good ? 
 
 Stud. I think the statute were good ; and most commonly 
 upon such words some worldly loss or hindrance one way 
 or other doth follow ; but I think that in those cases the 
 parliament may not prohibit, but that they that list may also 
 take their suits at the Spiritual law, if they will, so that the 
 Spiritual law make no recompence to the party. f Also of 
 all annuities, whether they have beginning by prescription, 
 composition real or otherwise, I suppose it may be enacted, 
 that the suit shall be taken only in the king's court, and not 
 in the spiritual court, for nothing is to be recovered in such 
 suits but money, which is temporal in whose hands soever 
 it come, spiritual to temporal.! 
 
 Chap. X. — Concerning the authority of the -parliament 
 as to the spirituality. 
 
 Stud. If it were enacted, that no religous person should 
 
 * Since villainage is taken away, it should seem that no action can lie 
 for calling another villain. 
 
 f-The Ecclesiastical Court, as we have seen before, cannot in any case 
 award damages. Ante, 316, and see Wats., c. 30. For defamatory words, 
 per.ance is enjoined at the discretion of the ordinary. 2 Burn's Eel Law, 
 124. 
 
 % When a parson sues in the Spiritual court for a pension or an annuity, 
 claimed by prescription, it is the safest way for him to libel generally as in 
 the common case ol a pension, and not to lay a prescription, for if he goes 
 upon a prescription, and the prescriptive right comes in question, a pro- 
 hibition will issue. Strange, S79, Dr. Gouche v. The Bishop of London..
 
 J26 Doctor and Student. 
 
 receive into the habit of their religion any child under a 
 certain age to be appointed by the parliament, and that after 
 this entry he should not be removed from the place that he 
 was received in within a year after upon a certain pain, 
 without assent of his friends ; I think it were a good stat- 
 ute ; for that statute should not prohibit entry into religion. 
 For if it did so, I suppose it were not to be observed : but 
 it ordereth the manner of entry into religion for such infants 
 which is right expedient for the commonwealth ; and a stat- 
 ute of like effect is made for the four orders of friars in the 
 4 Hen. IV..* where the four provincials of the said four 
 orders were sworn, b}' laying their hands upon their breasts 
 in open parliament, to observe the said statute. And upon 
 the same grounds some say, that if it were enacted, that no 
 man upon a certain pain should affie the daughter in her 
 farther's house, without assent of the father, it were a good 
 statute ; and yet a statute hath no authority to prohibit, nor 
 to confirm no right of matrimony ; but as the church pro- 
 hibited it, or contirmeth it. And therefore if it were pro- 
 hibited, that no lord's son should affie an husbandman's 
 daughter, or such other, and if he did, the affiance to be 
 void, I think that statute were void. But if the statute were, 
 that no lord's son, upon a pain, should make affiance with 
 any woman, that is a stranger born, without the king's 
 licence, I think that statute were good : for it prohibiteth 
 not matrimony, but setteth an order after what manner it 
 shall be made, and that under such form as may haply be 
 necessary for the surety of the realm. And of a like effect 
 thereto is the law, that the king's widow shall not marry 
 without the king's licence, and that she shall be sworn 
 thereto in the Chancery when she is endowed. And like 
 law is also, that the lord shall have the marriage, or the 
 value of the marriage or sometimes the double value of the 
 marriage of his ward by knight's service, f And also if a 
 man marry a bond women without licence, the lord by the 
 
 * Ante, 32, 20S. 
 f Ante, 26.
 
 Dialogue II. — Chap. io. 327 
 
 Common law shall have an action of trespass against him 
 that marrieth her. And all these laws be good, for merely 
 they prohibit not marriage, no more should a statute do foi 
 entry into religion : as me seemeth. For it prohibited! not 
 entry into religion ;* but it prohibiteth that none should be 
 received into the habit before his years of discretion, and 
 that after his entry he shall be ordered in such manner, that 
 if he will after be professed it shall rise of his own free will, 
 and of a love to serve God, and not by any sinister means, 
 nor coloured persuasions. 
 
 Also, as I suppose, the parliament may well enact, that 
 every man that hath the profit of any offering, by recourse 
 of pilgrims, shall, upon a certain pain, not only set up cer- 
 tain tables to instruct the people under what manner they 
 shall worship the saints, but also to cause certain sermons 
 to be made there yearly to instruct the people, how they 
 shall worship them, so that through ignorance and disor- 
 dering of themself, they do not rather displease the saints 
 than please them. 
 
 It may also prohibit, that no miracle shall be noised upon 
 so light occasions as they have been in some places in time 
 past. And they shall not, upon a certain pain, be set up 
 as miracles nor be noised, nor reported as miracles by no 
 man, till they be proved for miracles, under such manner 
 as by the parliament shall be appointed. And it is not un- 
 like, but that many persons grudge more at the abuse of 
 pilgrimages than at the self-pilgrimages. And in likewise 
 of divers other articles, if the truth were groundly searched. 
 And under this manner it hath been already enacted b}' 
 parliament, to the strength of the faith, that no man shall 
 presume to preach without licence of the diocesan, except 
 certain persons excepted in the statute, as appeareth in the 
 second year of king Hen. IV. f And under this man- 
 ner the parliament may ordain many good laws for strength 
 of the faith, and for the good order of all the people, as 
 
 * Ante, 245. 
 
 t Repealed by 25 Ed. 3, c. 14; 1 H. 6, c. 12; 1 Eliz., c. 1 ; 29 Car. 2, c. 9.
 
 328 Doctor and Student.' 
 
 well spiritual as temporal, though it judge not upon the 
 fight of things that be mere spiritual. And all these di- 
 versities, and many other more than I can rehearse now, 
 they that be learned in the laws of the realm be especially 
 bounden to know, that they may instruct the parliament 
 when need shall require, what they may lawfully do con- 
 cerning the spiritual jurisdiction, and what not. And there- 
 fore spiritual men are bound charitably to hear their opin- 
 ions therein, and what they think, be immediately grounded 
 upon the law of God, or upon the law of reason, and what 
 not. For commonly the parliament hath over those laws 
 no direct power, but to strengthen them, and to make them 
 to be more surely kept it hath good power. And if spirit- 
 ual men, and temporal men, would charitably lay their 
 heads together, and fully determine what the parliament 
 may do, as well concerning the spiritual jurisdiction as the 
 temporal, taking these additions as little titleings, whereby 
 they by their wisdom may call to their remembrance greater 
 things, so that hereafter it shall not stand in the case as it 
 doth now, that when the parliament hath made a law con- 
 cerning the spirituality, that spiritual men shall not say, 
 it bindeth not in conscience, as many have done in time 
 past, and vet do to this day : I think verily that there 
 would nothing do more good to appease such variances, 
 schisms, and divisions as be now abroad in the realm. And 
 then also would all men, as well spiritual as temporal, rather 
 take heed to themself, to see that they did nothing to give 
 occasion to the parliament tq extend his power upon them 
 or their possessions, than to resist or deny the authority of 
 the parliament. 
 
 Chap. XI. — Concerning the authority of the parliament 
 and the spirituality. 
 
 Doct. Whether may the parliament prohibit, that no 
 ordinary upon a certain pain shall admit none to the order 
 of priesthood, except he be sufficiently learned? 
 
 Stud. I am in doubt in this question, and the thing that
 
 Dialogue II. — Chap. ii. 329 
 
 causeth me to doubt therein is this, if it were enacted, as 
 thou sayest, and after an action were brought upon the 
 penalty, and the ordinary would plead, that he that was 
 made priest was sufficiently learned ; and thereupon an 
 issue were joined, that issue should be tried by twelve men, 
 and as it seemeth, it were not reasonable, that twelve men, 
 which commonly be unlearned, should try whether a man 
 were sufficiently learned to be a priest, for they have no 
 knowledge therein. And therefore if any such penalty 
 should be set by parliament, it seemeth that it must be 
 farther enacted, that if the issue were joined (as is said be- 
 fore) that then it should be tried by spiritual men, or tem- 
 poral men that be sufficiently learned thereto, or by both. 
 
 Doct. But thinkest thou then, that the parliament may 
 ordain, that spiritual men shall be compelled to pass upon 
 inquests? It seemeth, that were against the law ot God, 
 and against the perfection of their order, and to break them 
 from the devotion of contemplation, that is requisite to 
 them. For Saint Paul saith in his second espistle to 
 Timothv, the second chapter: ii J\Temo millions Deo, im- 
 -plicat se negotiis secular /bus ; that is to say, " Let no man 
 that hast set himself to serve God, intryke himself in secu- 
 lar business." Which words be specially spoken of priests. 
 And therefore it seemeth, he should do against the say- 
 ing of Saint Paul, that would compel priests to go upon in- 
 quests. 
 
 Stud. Verily there is a writ in the Register* (which is a 
 book of the law of England) that no sheriff shall impanel 
 any priests upon any inquest, and that writ may every priest 
 have, that will sue for it. And I think right well, that that 
 W'it is grounded upon the law of the realm : taking in that 
 point his effect upon the law of God.f And therefore I 
 think, that the parliament may not enact, that priests should 
 go universally • upon inquests; but to enact, that in this 
 special case, which is not mere temporal, but to enquire of 
 
 -Reg. 179. 
 
 fLamb. Just. 369; Trials per Pais, S6.
 
 olo Doctor and Student. 
 
 the sufficiency of learning, and that to a good and neces- 
 sary purpose, I suppose the parliament may assign them to 
 it without breaking the liberty of the church. And so they 
 be man}' times upon a writ to enquire dc jure -patronatus, 
 where priests and laymen shall be joined together to 
 enquire of the right of the patronage.* And methinketh, 
 they might do in like case here, either by themself, or to he 
 joined with laymen. f 
 
 Doct. There they be called by the authority of the 
 ordinary, and here they should be called by the temporal 
 authority. 
 
 Stud. Whether they be called by spiritual authority > 
 or by temporal authority, their business is all one. For as 
 great let is it to devotion and contemplation, when they be 
 called thereto by the bishop, as when they be called thereto 
 by the king. And though, as thou sayest, the bishops 
 shall command to appear in that case, yet it is by the 
 king's law, that he shall do so : which law the convocation 
 may not alter nor change, but the parliament might change 
 it with a cause : for it pertaineth to the ordering ot temporal 
 inheritance, that is to say, to the ordering the patronage, 
 and of presentments of advowsons, which be temporal. 
 
 Doct. I can in no wise see how it may stand with the law 
 of God, that the parliament should compel spiritual men to 
 go upon inquest. And therefore if such a statute should be 
 made, the inquest must be taken all of temporal men, that 
 have sufficient learning thereto : and yet I regard not this 
 point so much in this question, as I do that the matter of 
 itself is so mere spiritual, that the parliament hath no power 
 to set any pain upon it. For as it seemeth, if it might do 
 that, it might as well set a pain upon the tonsures of clerks, 
 or upon the order of the service, or what use they should 
 keep, and that I suppose thou thinkest it may not, and me- 
 thinketh it may no more do it in this case. 
 
 * So they may be joined with laymen in mandates for inquisitions to be 
 made of dilapidat ons of houses or other things belonging to ecclesiasti 
 cal benefices. Lind. 254. 
 
 t Vin. Abr., title Presentation.
 
 Dialogue II. — Chap. 12. 331 
 
 Stud. I think well it be as thou sayest in those cases : 
 but in this case, that is so necessary for the good order of 
 the king's subjects, and for the commonwealth, methinketh 
 they may, for if curates have virtue and cunning, com- 
 monly the people be virtuous, and virtue is the most chief 
 and principal branch of the commonwealth. And there- 
 fore for increase thereof, methinketh that the parliament may 
 well set a pain, although there were no spiritual law made 
 in that point before, as well as it may of infants, that be re- 
 ceived into the habit of religion, whereof mention is made 
 before in the tenth addition. But in this case, since the 
 spiritual law is ahead)', that none shall be made priests, but 
 they that be sufficiently lettered, methinketh that the par- 
 liament may much more the rather do it.* And therefore, 
 if the people would not assent to keep an holiday, that were 
 ordained by the church, I suppose that the parliament if 
 they thought it reasonable to be kept, might set a pain upon 
 all them that would not obey unto it. And that it might do 
 likewise upon all other laws, that be made by the cjiurch 
 for the good order of the people, though it might not per- 
 case make a new law in the self points, for that should not 
 be a breaking of the liberty of the church, but rather an 
 affirmance of it. 
 
 Doct. I feel thy conceit well ; howbeit I cannot fully as 
 yet, assent unto it: and therefore I pray thee give me a 
 sparing therein, and at a better leisure, I shall with good- 
 will shew thee farther of my mind therein. And now I 
 will ask thee another question. 
 
 Chap. XII. — Concerning the authority of the parliament 
 and the spirituality. 
 
 Doct. It was asked of me but late, if certain waste ground, 
 whereof was never any profit taken, and that lay within no 
 parish, but in some forest, or that is newly won from the 
 sea, were brought into arable land, whether the parliament 
 
 *Ante, 1S9.
 
 33* 
 
 Doctor and Student. 
 
 might appoint, who should have the lithe thereof; and he 
 that asked me the question thought it might. I pray thee 
 shew me thy conceit, what thou thinkest therein? 
 
 Stud. I think that if the freehold be in the king, that he 
 may assign .the tithes thereof to whom he will: and if the 
 freehold be in a common person, that he may do likewise.* 
 But then I think, that if that common person do not assign 
 the tithes so, as it may stand conveniently to the mainte- 
 nance of the service of God, that the parliament may doit, 
 and order the tithes to the increase of God's service, as they 
 shall think convenient. 
 
 Doc/. I cannot see how the parliament, nor yet the party 
 should have authority to meddle with tithes, that be spiritual, 
 and p rtain alway to the spiritual jurisdiction. And there- 
 fore I suppose, that in this case the archbishop, as sover- 
 eign head over the spirituality, should in this case have the 
 ordering of the tithes, as things spiritual to whom none 
 other hath right: and neither the king nor no common 
 person. 
 
 Stud. Though tithes be spiritual, yet the assignment of 
 the tithes to other is a temporal act, which the parliament 
 with a cause may order, as it may do all temporal things 
 within the realm : and that the king, or any other, that 
 hath the freehold of such waste grounds as be in no parish, 
 may assign the tithes thereof to whom they will, it may 
 appear thus : Before parishes were divided, f and before 
 that it was ordained by the law of the church, £ that every 
 
 * i Roll. Abr. 657; 2 Inst. 647 
 
 f For the a?ra of the division of parishes, see 1 B. C m ; 3 Burn's Eel. 
 Law, p. 59; 2 Wils. 182. 
 
 Jit is probable the author alludes here to the council of Lateran, Anno 
 Domini 1179, Anno 25 II. 2, which has often been mistaken by many of 
 our ancient authors to be the time when this law was made. The fact is, 
 that tithes were not assigned to any spiritual person or church in partic- 
 ular before the year 1200, which is twenly-one years after the council of 
 Lateran was held. In the year 1200, Pope Innocent the Third wrote a de- 
 cretal epistle dated at Lateran ; the purport of which was, that for the 
 time to come the tithes of all parishes should be paid to the persons having 
 curam ammarum in the respective parishes. This epistle was thought 
 very reasonable and just, and accordingly was well received, and became
 
 Dialogue II. — Chap. 12. 233 
 
 man should pay his tithes to his own church ;* every man 
 might have paid his tithes to what church he would, and 
 might one year have given it to one church, and another 
 year to another ;| or have granted them to one church for 
 ever if he would. And like as every man, before the said 
 severing of parishes, might have given his tithes to what 
 church he would, because he was bound to no church in 
 certain : so may they do now, that have lands that lie in no 
 parish ; for they be at liberty to assign them to what church 
 they will, as all men were before the said law made, that 
 tithes should be paid to the proper church. And if the 
 archbishop should have right to them, because no man can 
 of right claim them, then before the said law made, arch- 
 bishops had right to all the tithes, within their provinces : 
 for no man had right to any tithes, but by the assignment 
 of the owners. And therefore if the freehold, in this case 
 that thou hast put, be in the king, then he shall assign the 
 tithes where he will : and in like wise of other of his sub- 
 jects, as I have said before. 
 
 Doct. Thou speakest in this case as thou were learned 
 in the Spiritual law, for these matters pertain thereto, % and 
 not to the laws of the realm. 
 
 Stud. I speak therein according to the old law and cus- 
 tom of the realm, which yet continueth in such places, as 
 be out of any parish, as it did before parishes were limited, 
 and before the said law was made, that tithes should be paid 
 to their proper churches : and that there is such a custom, 
 partly it appeareth in a case, that is in the laws of England, 
 
 in process of time part of the law of the land. It was this decretal then 
 which ordained that every man should pay tithes to his own church; and 
 the circumstance of its being dated at Lateran appears to be the founda- 
 tion of the mistake I have mentioned above- See 2 Inst. 641. 
 
 * Post. 335. 
 
 tin this opinion Lord Coke, Hobart, and many other respectable law- 
 yers concur with our author; but Dr. Prideaux differs from him. See 
 Prid. 302. 
 
 % By the canon law, all tithes arising in an extra-parochial place belong 
 to the bishop of the diocese in which the place lies. 2 Inst. 647.
 
 334 Doctor and Student. 
 
 which happened long time since the said law was made, 
 that tithes should be paid to their proper churches. 
 
 Doct. I pray thee shew me what case that is. 
 
 Stud. In the twenty-second year of king Edward the 
 third, in the book of Assise it appeareth, that the king 
 granted the tithes of certain asserts, that were newly taken 
 out of the forest of Rock, to a provost, and he thereupon 
 brought a Scire facias against divers, that took the said 
 tithes, returnable into the Chancery ; and there exception 
 was taken, that the suit pertained to the spiritual court, and 
 not to the Chancery : and it was answered again, that that 
 was to be understood, where the suit was taken against 
 them that ought to pay the tithes, and not where it was 
 brought against them, that were wrongful takers of the 
 tithes. And thereupon the defendants were put to answer, 
 and pleaded to an issue, which was sent down into the. 
 King's Bench to be tried according to the law, and there 
 the defendants made default : whereupon the plaintiffs 
 prayed execution. And in this case Thorpe said, "That 
 the old law hath been alway, that the king in such case 
 should assign the tithes where he would." And that say- 
 in^ I take to be understood, where the freehold is in the 
 king, as I have said before. And though the said case be 
 not judged, yet it appeareth thereby, that the king made 
 assignment of tithes, which was admitted to be good, so 
 that the parliament shall not need to meddle therein, unless 
 it be his pleasure to assign them by authority of his parlia- 
 ment : as he may do, if he will, to make his letters patents 
 to be of the mere higher record than they should be with- 
 out the parliament. 
 
 Doct. Truth it is, that the king and other owners and 
 possessionem of land sometime paid their tithes to what 
 church they would ;* but when it was ordained by the 
 church, that tithe should be paid to their own church, then 
 the people were bounden by that ordinance to pay them ac- 
 cording, and so they did ; and therefore if there were a law 
 
 * Ante, 333.
 
 Dialogue II. — Chap. 12. 335 
 
 made now by the church of such particular tithes, as yet 
 remain still out of any parish, that they should be paid to 
 the parish next adjoining, or to the ordinary, or to the 
 metropolitan, or in such other manner as the church should 
 think reasonable ; methinketh it were a good law, and ought 
 to be obeyed as well of the particular tithes, as it was first 
 of all tithes generally. And if the church may make a 
 law therein, then methinketh the parliament should have 
 no power to make any law therein. 
 
 Stud. When the church had ordained, that the tithes of 
 every man should be paid to their own church, and the 
 people received that law, and paid their tithes according : 
 then by that assent the law was confirmed : and if the 
 church would not have made that law, I think the parlia- 
 ment might : for it was for the rest and quietness of all the 
 people : and then none might have refused that law so made 
 by parliament : but to the law made by the church some 
 did not obey, but paid their tithes to other churches as they 
 did before. And those churches unto this day have good 
 right to those tithes, as portions belonging to their churches, 
 though the ground lie not within their parish ;* and so hath 
 the king and the owners and possessors of such waste 
 grounds, J that be out of all parishes at this day, good right 
 to assign the tithes thereof, where they will.f For as 
 to those grounds they never received any law to the con- 
 trary : and so I think it bindeth them not in that behalf. 
 And no more should any new law do, that were made by 
 the church of such tithes, nor pull the liberty from them to 
 assign them where they will, without their assent. And 
 where thou sayest, that if the church may make a law of 
 a thing, that then the parliament hath no power to make 
 any law therein, I think that ground holdeth not ; for if the 
 
 ~2 Black. Com. 29. 
 
 t Ante, 331. 
 
 % See now the stat. 2 and 3 Ed. 6, c 13, by which it appears that the tithes 
 of cattle depasturing in a waste or common extra-parochial, or if the par- 
 ish is unknown, are to be given to the parson of the parish where the 
 owner dwells. 2 Inst 651.
 
 32& Doctor and Student. 
 
 church would grant a dismes to be paid to the king, it were 
 well granted : but if they would not, the parliament may. 
 And in like wise though the church hath made a law, that 
 curates should be resident upon their benefices ;* yet the 
 parliament also hath made a law, that they shall be so,f 
 and both laws stand in good strength and effect, as I sup- 
 pose. And in like wise it is of the statute of usury, J which 
 was made in the tenth year of king Henry the Seventh. 
 
 Chap. XIII. — Concerning 1 the ■pozver of the parliament 
 and the spirituality. 
 
 Doct. Whether may the parliament prohibit, that none 
 ordinary, nor none other, that hath power to visit, shall not 
 take any money or pension of the houses or places, that 
 they visit, at their visitation. 
 
 Stud. I think the parliament hath good power to do it. 
 For the money that they receive, though it be given by 
 occasion of a spiritual thing, is temporal, and is under the 
 power of the parliament, as all temporal lands and goods 
 be. And if there be a cause reasonable why they should 
 make that prohibition, then it bindeth as well in conscience 
 as it doth in the law : and an example is thereof by probate 
 of testaments. For though the probate be a thing spiritual, 
 yet the parliament hath of late, as it might lawfully do, set 
 a pain, that none shall pay for the probate above a certain 
 sum limited by the statute. § And also by the statute that 
 is called in Latin Statutum de Caroli dc asforiatis religio- 
 soruni, it is enacted, That no house of religion of beyond 
 the sea, should from thenceforth, under colour of visitation, 
 
 *Vide Athon, 36, and Gibs. S27, on this head. 
 
 fSee statute 21 H. 8, c. 13, commonly called the statute of non-residence, 
 explained by 25 H. S, c. 16; 28 II. 8, c 13, and 33 H. 8, c 2S. It likewise 
 appears to be the intention of the Common law, that a parson should be 
 resident upon his cure as it has provided a writ for his discharge, in case 
 he is chosen to any civil office. 2 Inst. 625. 
 
 J Abolished, but vide statutes 37 H. 8, c. 9; 13 Eliz., c. 8; 21 Jac. I, c. 
 17; 12 Car. 2, c. 13, and 12 Ann., stat. 2, c. 16. 
 
 § The author, I apprehend, here means the statute 21 H. 8, c. 5, an act 
 upon which Dr. Gibson has the following observation, viz., that the fees
 
 Dialogue 1 1.— Chap. ij. 007 
 
 or other colour, set any tallage or imposition upon any 
 house of religion, that is subject unto it in England, upon 
 the pain to forfeit all that it hath under the king's power. 
 And the statute will further, That nevertheless the said 
 abbots and priors aliens shall not cease of their visitation 
 within this realm : so that they bear no money nor goods 
 from the houses in England.* And methinketh, that like 
 as the parliament had then power to prohibit, that the 
 abbots and priors aliens should not under colour of visita- 
 tion or otherwise, set any tallage or imposition upon any 
 house of religion to them subject in England, that the par- 
 liament may now as well prohibit, that none under colour 
 of visitation, or otherwise, shall take of any house of 
 religion or church, that they shall visit, any sum of money, 
 or other thing, whatsoever it be. For methinketh, that the 
 reason in the one case, and in the other, is all one. 
 
 Bod. It seemeth nay. For at the making of that statute 
 the parliament intended principally to provide, that no 
 goods should be conveyed out of the realm by any religious 
 persons, which they did sometime under colour of visita- 
 tion : but in this case it needeth not to provide any remedy 
 in that behalf, as it is evident of itself. For there be no 
 goods conveyed out of this realm by reason of such visita- 
 tions. 
 
 Stud. Though the principal intent of the said parliament 
 was to provide, that no goods should be conveyed out of the 
 realm by religious persons :f yet as for a special surety that 
 it should be so, they thought it necessary to prohibit, that 
 the head houses of beyond the sea should not by colour of 
 their visitation in England do it. For they thought that 
 
 given by it, are become much too small by the great alteration of the value 
 of money, and the price of things, and, therefore, the rule now is the 
 known and established custom of every place, provided it is reasonable. 
 Gibs. 4S7. The statute therefore is not at all to be depended upon. But 
 if the reader wishes to know the fees and expences in obtaining the pro- 
 bate of a will, particularly in the prerogative court, he may find them set 
 down in a table by Mr. Lovelass in his Law of Intestacy and Wills, 192. 
 
 *Ante, 32, 208; 2 Inst. 583; 587. 
 
 |2 Inst. 583. 
 22
 
 338 Doctor and Student. 
 
 that was a ready way to bring the money into their hands, 
 that they might after carry it with them into their country : 
 and since the parliament had then authority to prohibit, that 
 the said visitors should not, by colour of their visitations, 
 gather any tallage or imposition set upon them, that they 
 visited in England : why might not the parliament now 
 likewise prohibit, that the visitors, at their visitations, should 
 gather no such tallage or imposition, as hath been set in 
 time past upon such houses and churches as they do visit. 
 For certain it is, that at the beginning of visitations no such 
 impositions nor pensions were paid : but that they have been 
 brought up since that time, either at the motion of them that 
 were visited, to the intent that they might thereby have the 
 more favour of their visitors, or else by power or compul- 
 sion of the visitors, or for their singular lucre, or haply by 
 both ways. But what way soever it began : if it should 
 hereafter come to the point, that the visitors at their visita- 
 tions, by reason of the said impositions or pensions, should 
 be inclined to any singular affection, and so to forbear the 
 good reformations, that they ought to look to in the monas- 
 tries and churches that they visit, whereby evil-doers should 
 take boldness to continue in evil,* and well-doers be dis- 
 couraged from their virtuous exercises in the service of God, 
 I suppose verily, that they that by good authority, and with 
 a charitable intent, would take the said impositions and pen- 
 sions from the said visitors, should deserve thereby right 
 great thank, and reward of God. But I trust, there should 
 be no such cause to move them to it. And now I intend 
 thus to make an end of the authority of the parliament for 
 this time, and will ask of thee but one short question con- 
 cerning the matter that we treated of in the first addition, 
 and so commit thee to our Lord. 
 
 Doct. What is that? 
 
 Stud. It is this : If a curate since the statute of mortua- 
 ries, thinking the said statute to be against the liberty of the 
 church, persuadeth his parishioners to believe, that all they 
 
 * Ante, 208.
 
 Dialogue II. — Chap. ij. ^39 
 
 that keep the statute, stand in the censures of the church, 
 and thereby induceth many of them, specially at the point 
 of death, to recompence him as much as their mortuaries 
 by estimation would have amounted to: whether hath he- 
 good right to that, that is given under that manner? 
 
 D&ct. If it be as thou sayeth, that the statute standeth 
 with conscience, then hath he no right thereto in conscience. 
 For he cometh to it bv an unjust means, and prandeth him- 
 self for the having of it, upon an untruth i and so the giver 
 is deceived in his gift, and therefore it bindeth not in con- 
 science, though it bind in the law. And I suppose, that 
 though the curate say, as he thinketh therein, that yet it 
 sufficeth not, but that he is bound to restitution, for igno- 
 rance, as methinketh, cannot excuse the restitution, though 
 peradvemure it may excuse him, that it shall not be in him 
 any deadly sin. 
 
 Stud. I think it be as thou sayest, and as it is in this 
 point, it is in divers other articles, upon the said jurisdic- 
 tions. Wherefore methinketh it would be more plainly de- 
 clared in many things what belongeth to the one jurisdic- 
 tion, and what to the other, than it is yet, as I have said 
 before, and that hath caused me to treat farther this matter 
 now at this time, than I thought to have done. 
 
 Doct. I think it be as thou sayest : but if I might be so 
 bold, I would desire to know thy mind in one thing and no 
 more, and that is this : Of what effect the statute is, that 
 was made the 2 Hen. V., ch. 1, whereby it is enacted, That 
 ordinaries shall have power by the king's commission to in- 
 quire of the hospitals of his foundation and of their govern- 
 ance, and to certify the king in his Chancery thereof.* 
 And of hospitals of others foundation they have power to 
 enquire, and do correction after the law of holy church. 
 
 Stud. At a leisure I will gladly shew t iee my mind 
 therein, but for this time I pray thee hold me excused, for 
 I will no more speak of that matter as now. And thus 
 God of peace and love be alway with us. Amen. 
 
 * That is where there are no visitors appointed. See statute 14 Eliz.,c. 5, 
 and 2 Burn's Eel. Law, 289,
 
 TWO PIECES 
 
 CONCERNING 
 
 SUITS IN CHANCERY 
 
 BY SUBPCENA. 
 
 I. A Replication of a Serjeant at the Laws of England, to cer- 
 tain Points alledged by a Student of the said Laws of England, 
 in a Dialogue in English between a Doctor of Divinity and the 
 said Student. 
 
 II. A little Treatise concerning Writs of Subpcena. 
 
 [These pieces are printed from a manuscript in the Cottonian library at the 
 British Museum. See Cott. MSS. Cleopatra, A. 15. The title at the 
 beginning of the manuscript is, " A Treatise concerning Sutes in the 
 Chauncery by Subpcena" to which is added the following notice : 
 
 " Founde amongste the bookes of Sir Edward Saunders, late chiefe 
 
 "justice of England, and after chiefe baron of the exchequer, and 
 
 " noted by his hande writinge to be entitled on the outsvde, The 
 
 " Dialogue bet-Meene a Serjaunte at the lazve and Christopher Seinte 
 
 " Jerman ; and on the inside, The Answer of this Treatise by 
 
 " Christopher Seinte Jcrman " 
 
 Both of the pieces were clearly written in the reign of Henry the 8th, soon 
 
 after the first edition of the Doctor and Student, which I take to have 
 
 been first printed by John Rastell in 1523. See Ames' Hi9tor. Account 
 
 of Printing, 145] 
 
 (341?
 
 TWO PIECES 
 
 CONCERNING 
 
 SUITS IN CHANCERY 
 
 SUBPCENA. 
 
 PART I. 
 
 Here follow eth a replication of the Serjeant at the laws of 
 England, to certain points alledged by a student of the 
 said laws of England, in a dialogue, in English, be- 
 tween a doctor of divinity and the said student. 
 
 A serjeant of the law of England hearing the commu- 
 nication and dialogue between a doctor of divinity, and a 
 student in the laws of England, saith to the doctor in this 
 wise : 
 
 Mr. Doctor, after my mind you have right well declared 
 divers laws, that is to say, the law eternal, the law of rea- 
 son, the law of God, and the law of man. And you, Mr. 
 Student, have right well shewed, how the law of England 
 is grounded upon the law of reason, and have shewed your 
 mind therein right well, against which I intend not to reply. 
 But mine intent is, Mr. Student, to reply against your 
 opinion in one point in a case demanded of you by Mr. 
 Doctor, which is this.* If a man be bound in a single ob- 
 
 * See Doct- and Stud., dial, i, ch. 12. — Editor. 
 
 (343)
 
 344 Suits in Chancers 
 
 ligation to pay a certain sum of money at a day to the ob- 
 ligee, and the obligor payeth the money at the day and 
 taketh none acquittance neither the obligation wherein he 
 is bound ; and notwithstanding this he that hath the obliga- 
 tion bringeth an action of debt upon the said obligation 
 against the obligor ; you have said, that in this case the 
 obligor hath no remedy by the common law at [of] the 
 realm, and you have shewed the cause why right well, as 
 it appeareth by your declaration, the which I need not to 
 rehearse. But you say further in this case, that the de- 
 fendant may be helped by a subpoena in the king's chan- 
 cery ; and to that I intend to reply. Notwithstanding I 
 shall first of all move you, that in this case after my mind 
 the defendant may have remedy at the common law. For 
 after this payment, if the defendant bring an action of debt 
 against the obligee and declare upon a prompt, if the ob- 
 ligee will plead that he received the said money for the 
 contentation [satisfaction] of his obligation, this plea 
 pleaded in court of record shall discharge the obligor of 
 the said obligation ; and if the obligee will wage his law, 
 then the obligor is without reined}'- ; and yet he is at no 
 greater mischief than he should be, if he had lent him the 
 money without writing, in which case, if the defendant 
 wage his law, the plaintiff hath no remedy at the common 
 law, nor yet in .the chancery against his wager of law. I 
 think that in this case the obligee cannot wage his law and 
 discharge his conscience. For when a man is bound in a 
 single obligation, there is a condition implied in the law, 
 that this obligation cannot be discharged but by matter in 
 writing, or by matter of record. Then if the obligee would 
 wage his law, thinking that it is a satisfaction of his obliga- 
 tion, that is not so ; for the obligation cannot be discharged 
 but by matter in writing or by matter of record, and so he 
 cannot wage his law and discharge his conscience after my 
 mind : but either he must plead in court of record that he 
 receiveth it in satisfaction of his obligation, and then the 
 obligor shall be discharged ; or else he must repay the 
 money again, or else he cannot discharge his conscience.
 
 By Subpcena. 34.5 
 
 Now to that ) r ou say, that this obligor may be helped by a 
 subpoena in the king's chancery. As to that I .say, after my 
 mind, that it standeth neither with the law of reason, neither 
 with the law of God, nor yet with the common weal of 
 the realm, that this man should be helped by a subpoena 
 in the chancery. First it is not reasonable, that for a 
 particular man's cause-, which hath hurt himself by his own 
 negligence and by his own folly, that the good common 
 law o! the realm (which is this, that the matter in writing 
 with or without condition cannot be answered but by matter 
 in writing or by matter of record) should be made void or 
 be set at nought by the suit of any particular person made 
 in the chancery or any other place. But if reformation be 
 had in this case in the said chancery by a subpoena, it must 
 needs follow, that this good common law must be made as 
 void and set at nought. For by a subpcena the plaintiff is 
 prohibited to sue [at] the common law, and is compelled 
 to make answer in the chancery, where the obligor shall be 
 admitted to plead a payment of the debt contained in a 
 single obligation without writing, which is clean contrary 
 to the common law; so that if that be admitted for law, the 
 common law that is contrary to this must needs be no law. 
 For these two laws, one being contrary to the other, cannot 
 stand together, but one of them must be as void. Where- 
 fore it must needs follow, that if this law be maintained in 
 the chancery by a subpoena, the common law, which is 
 contrary to that, must needs be as void and of none effect. 
 I marvel much what authority the chancellor hath to make 
 such a writ in the king's name, and how he dare presume 
 to make such a writ to let [hinder] the king's subjects to 
 sue his laws, the which the king himself cannot do right- 
 eously ; lor he is sworn the contrary, and it is said, hoc -pos- 
 sumus quod de jure -possumus. Also the king's judges of 
 this realm, that he appointed to minister his laws of his 
 realm be swam :o minister his laws of the realm indifferently 
 to the king's subjects ; and so is not the chancellor. Also 
 the Serjeants at the law be sworn to see the queen's subjects 
 to be justified by the laws of this realm, determinable by
 
 346 Suits in Chancery 
 
 the king's judges, and not by my lord chancellor. Yet 
 this notwithstanding, if the king's subjects, upon a surmised 
 bill put into the chancery, shall be prohibited by a subpoena 
 to sue according to the laws of the realm, and be compelled 
 to make answer before my lord chancellor, then shall the 
 law of the realm be set as void and taken as a thing of none 
 effect, and the king's subjects shall be ordered by the 
 discretion of the chancellor and by no law, contrary to all 
 good reason and all good policy. And so me seemeth, 
 that such a suit by a subpoena is not only against the law 
 of the realm, but also against the law of reason. Also me 
 seemeth, that it is not conformable to the law of God. For 
 the law of God is not contrary in itself, that is to say, one 
 in one place, and contrary in another place, if it be well 
 perceived and understood, as you can tell, Mr. Doctor ; but 
 this law is one in one court, and contrary in another court. 
 And so me seemeth, that it is not only against the law of the 
 realm, and against the law of reason, but also against the 
 law of God. Also me seemeth, that this suit by a subpoena 
 is against the common weal of the realm. For the com- 
 mon weal of every realm is to have a good law, so that the 
 subjects of the realm may be justified by the same ; and the 
 more plain and open that the law is, and the more 
 knowledge and understanding that the subject hath of the 
 law, the better it is for the common weal of the realm ; and 
 the more uncertain that the law is in any realm, the less and 
 the worse is it for the common weal of the realm. But if the 
 subjects of any realm shall be compelled to leave the law 
 of the realm, and to be ordered by the discretion of one man, 
 what thing may be more unknown or more uncertain?* 
 But if this manner of suit by a subpoena be maintained, as you, 
 Mr. Student, would have it, in what uncertainty shall the 
 king's subjects stand, when they shall be put from the law 
 ot the realm, and be compelled to be ordered by the discre- 
 tion and conscience of one man ! And, namely, forasmuch 
 
 * Bonum est secundum literas et leges, et non secundum proprium men- 
 tern judicare. Aristot. in Polit.
 
 By Subpcena. 347 
 
 as conscience is a thing of great uncertainty, for some men 
 think that if they tread upon two straws that lie across, that 
 they offend in conscience ; and some man thinketh that if 
 he huk money and another hath too much, that he may 
 take part of his with conscience; and so divers men, divers 
 conscience ; for every man knoweth not what conscience is 
 so well as you, Mr. Doctor. So me seemeth, that if the 
 king's subjects be constrained to be ordered by the discre- 
 tion and conscience of one man, they should [woud] be 
 put to a great uncertainty, which is against the common 
 weal of a realm. And so me seemeth, it is not only against 
 the common law, but also against the law of reason, against 
 the law of God, and against the common weal of this realm. 
 
 Si nd. How is it then, that the chancellors of England 
 have used this? 
 
 Serf. Verily I think for lack of knowledge of the good- 
 ness of the laws of the realm ; for most commonly the 
 chancellors of England have been spiritual men, that have 
 had but superficial knowledge in the laws of the realm ; and 
 when such a bill hath been made unto them, that such a man 
 should have great wrong to be compelled to pay two times 
 for one thing, the chancellor, not knowing the goodness of 
 the common law, neither the inconvenience that might en- 
 sue by the said writ gf subpoena, hath temerously directed 
 a subpoena to the plaintiff in the king^s name, commanding 
 him to cease his suit that he hath before the king's justices, 
 and to make answer before him in the chancery ; and he 
 regarding no law, but trusting to his own writ and wisdom, 
 giveth judgment as it pleaseth himself, and thinketh that 
 his judgment being in such authority, is far better and more 
 reasonable than judgments that be given by the king's jus- 
 tices according to the common law of the realm. In my 
 conceit in this case I may liken mv lord chancellor, which 
 is not learned in the laws of the realm, to him that stands 
 in the Vale of White-horse, far from the horse and 
 holdeth the horse, and the horse seemeth and appeareth 
 to him a goodly horse, and well proportioned in every 
 point, and that if he come near to the place where
 
 348 Suits in Chancery 
 
 the horse is, he can perceive no horse, nor proportion of 
 any horse. Even so it fareth by m}' lord chancellor thai 
 is not learned in the laws of the realm ; for when such a 
 bill is put unto him, it appeareth to him to be a matter of 
 great conscience and requireth reformation ; and the mat- 
 ter in the bill appeareth so to him, because he is far from 
 the understanding- and the knowledge of the law of the 
 realm, and the goodness thereof; but if he draw near to the 
 knowledge and understanding of the Common law of the 
 realm, so that he may come to the perfect knowledge and 
 goodness of it, he shall well perceive that the matter con- 
 tained in the bill put to him in the chancery, is no matter 
 to be reformed there, and namely in such wise as is used. 
 Moreover, Mr. Student, I marvel much that you say that 
 men that have wrong may be helped in many cases by a 
 subpoena, insomuch as you have in your Natura Brevium 
 several writs and [of] divers natures for the reformation of 
 every wrong that is done and committed contrary to the 
 laws of the realm ; and among all your writs that you have 
 in your Natura Brevium, you have none there called a 
 subpoena, neither yet the nature of him [it] declared there, 
 as you have of all the writs specified in the said book. 
 Wherefore me seemeth it standeth not with your study, 
 neither yet with your learning of the laws of the realm, 
 that any man that is" wronged should have his remedy 
 by a subpoena. If a subpoena had been a writ or- 
 dained by the law of the realm to reform a wrong, 
 as other writs in the said book be, he [it] should 
 have been set in the book of Natura Brevium, and 
 the nature of him [it] declared there, and for the re- 
 formation of that [what] wrong it layeth, as it is in 
 the writs contained in the said book ; and forasmuch as it 
 is not so, it is a writ abused, in my mind, contrary to the 
 common law of the realm, and contrary to reason and all 
 good conscience, and yet is coloured by the pretence of 
 conscience. But it fareth by that, as it doth by other vices, 
 quia vitia aliquando mentiuntur se esse virtutcs ; for vice 
 at some time will untruly count itself to be virtue, as pride
 
 By Subpoena. 349 
 
 at some time will shew himself [itself] to be meek, and 
 pretend much humility to have his [its] pretended purpose. 
 And so this writ of subpoena is colour of conscience to have 
 that [what] he [it] ought not to have by the law of the 
 realm, nor by the law of reason, nor yet by the law of God 
 as 1 think, and by all [all by] pretence of conscience. Mr. 
 Student, you speak much of conscience, and you move a 
 question whether conscience shall be ruled after the law, or 
 that the law shall be left for conscience. Methinketh that 
 the law ought not to be lett for conscience in no case; for 
 the law commandeth all that is good for the commonwealth 
 to be done, and prohibiteth all things that are evil and 
 against the common weal. Wherefore if you observe and 
 keep the law, as in doing all thing that is for the common 
 weal, and eschew all things that is evil, and against the 
 common weal, you shall not need to study so much upon 
 conscience, for the law of the realm is a sufficient rule to 
 order you and your conscience what you shall do in every 
 thing, and what you shall not do. If you therefore follow 
 the law truly, you cannot do amiss, nor offend your con- 
 science ; tor it is said, quod imjilcre legem est esse fierfecte 
 virtuosum, to fulfil the law is to be perfectly virtuous. 
 
 Stud. That is to be understood by [of] the law of God. 
 
 Serf. It is also to be understood by [of] the law of man ; 
 for the law of man is made principally to cause the people 
 [to keep] the law of God; and some seemeth, that if you 
 follow the law of the realm truly, you shall not need to 
 
 leave the law of conscience. Moreover you speak much 
 
 of conscience, and put many cases concerning conscience ; 
 and though law will, yet whether it will stand with con- 
 science. For me to reply and make answer to every one 
 of your cases, it were too tedious, and is not mine intent. 
 But mine intent is to move you to apply your study prin- 
 cipally to have the very and true knowledge of the laws of 
 the realm, and that had and known to practice the same 
 truly without any craft or subtle invention ; and then you 
 shall not need to speak so much of conscience. But I per- 
 ceive by your practice, that you leave the common law of
 
 35° Suits in Chancery 
 
 the realm, and you presume much upon your own mind, 
 and think that your conceit is far better than the common 
 law ; and thereupon you make a bill of your conceit, and 
 put it into the chancery, saying, that it is grounded upon 
 conscience ; and so you bring your conceit in argument in 
 the chancery, and leave the common law as it. were a thing 
 of no goodness, nor of no reputation ; in the which practice 
 methinketh you much abuse yourself. And though my 
 mind be not to reply against ever}' of your cases, yet my 
 mind is to reply against your saying, in your answer made 
 to a question demanded of you by Mr. Doctor in the latter 
 end of the 21st chapter, in your second dialogue. And the 
 question is this, to know how uses began, and why so much 
 land hath been put in use? To the which question you 
 make answer in the 22d chapter then next following, say- 
 ing, that uses were reserved upon a secondary conclusion 
 of the law of reason, as you have declared in the same 
 chapter. I say, under correction and reformation of my 
 lords and masters the judges of the law of this realm, that 
 they began of an untrue and crafty invention to put the king 
 and his subjects from that which they ought to have of 
 right by the good, true, common law of the realm : as the 
 king's highness from his escheats, his wards, and his primer 
 seisins, and from other things that now come not to ray mind ; 
 and his subjects from their escheats and wards, women from 
 their dowers, and the husbands of such women that be inherit- 
 ors from their tenures by the curtesy of England, the which 
 they ought to have by the laws of the realm ; and those that 
 have good right and title to any land to recover it by action 
 after the course of the common law be put from their ac- 
 tions, and if they bring their actions to cause such delays 
 that they shall never have recovery. And though some 
 of these inconveniences be helped by divers statutes, as 
 you have said, yet there rest many and great inconveniences, 
 more that I can rehearse at this time, that be not remedied ; 
 and in special [especially] one, and that is this. By such uses 
 the good common law of the realm, to the which the king's 
 subjects be inherit, is subverted, and made as void, so that
 
 By Subpcena. 351 
 
 none of the said subjects can be and stand in any surety of 
 any possession. For if he claim and prove his title by a 
 i.lrvd of feoffment, the other party will say he was but a 
 feoffee of trust ; and if he claim by a line or l>v a recovery, 
 he will say like wise that he was of trust; so that neither 
 deed, nor line, nor yet recovery, which make men's titles 
 by the common law, maketh or enforceth any man's title 
 at this day ; and all because of this false and crafty inven- 
 tion of uses as I think. To prove that it began upon an 
 untruth and false purpose, it appeareth by that, that lie, 
 which maketh such a feoffment, saith and doth one thing 
 and thinketh another thing clean contrary. For lie sayeth 
 by his word and by his deed, and writing, and livery and 
 seisin, that the feoffee shall have the land to him and to his 
 heirs : and his mind and intent is, that he shall not have it, 
 but he will have it himself. What a falseness is this to 
 speak and do one thing, and think another thing clean con- 
 trary to the same ! Every man may perceive in my mind, 
 that of this can come no goodness, but craft and falsehood. 
 And so me seemeth, that these uses began by an untruth and 
 crafty invention, and are continued by an untruth and for a 
 deceit; and yet do you, that be students of the common 
 law of the realm, maintain this untrue and crafty invention 
 in the chancery by the 'colour of conscience, contrary to 
 the studv and learning oi the common law. and contrary to 
 reason, and also to the law of God. What reason is it, 
 that it' I give von my land, with all the circumstances that 
 belong to a gift ot" land by the law, or levy a line or suffer 
 a recovery against me, and yet I to have the disposition of 
 
 land myself! So that it appeareth in my mind, that 
 these uses began by an untrue and crafty invention, and is 
 maintained in the chancery by the colour of conscienee, to 
 the subversion of the good common law of this realm, 
 
 inst all reason, and contrary to the law of God, which 
 teacheth nothing hut truth, not only to the express wroi 
 aim 1 hurt of the king's highness ami ol all his subjects, but 
 also as much as in them is to bring the king's highness to 
 the detestable offence of perjury, as it appeareth by a stat-
 
 352 Suits in Chancery 
 
 ute made the 20th year of King Edward the 3d,* wherein 
 is contained as here followeth : 
 
 " Edward, by the grace of God, etc., to the sherifTe of 
 Stafford, etc., greeting: For that, that by divers plaintes 
 made to us wee have knowlege, that the lawe of this lande, 
 the which we be bound by our oathe to maintaine, is nut 
 well kepte, and the execution of it disturbed manie ways 
 by maintenaunce and procurement, as well in courte as in 
 countrie, wee, mooved greatlie in conscience of this mat- 
 ter, and for that cause desyring, as well for the pleasure of 
 God and ease and quietnes of our subjects, as lor the sav- 
 inge of our conscience, and for savinge and keepinge of our 
 oathe aforesaid, by the assente of the lords and other sage 
 wise men of our counsel, have ordeyned and comaunded ex- 
 presslie to all our justices, that they shall do egall [equal] 
 lawe and execution of right to all our subjects riche and poore 
 without having regard to any person, and not to cease to 
 do righte for any letters or comaundements that maye 
 come from us or from any other, or for an}? - other cause 
 whatsoever it be ; and in case that any letters writs com- 
 maundements come to the justices or to their deputies, to 
 let [hinder] the law and righte after the usage of the realme 
 in disturbance of the lawe or of the execution of the same 
 or of right to the parties, the saide justices and other afore- 
 saide shall go forthe and holde their courtes and their pro- 
 cess where their plees and busines be dependinge before 
 them, as though no soche letters writs or commaundements 
 weare come unto them, and they to certitie us and our coun- 
 sell of soche commaundements, which be contrarie to the 
 lawes as is abovesaied. And to the ende that our justices 
 shall do egall righte to all men in manner as is aforesaid, 
 without shewinge more favour to one than another, we have 
 caused our saide justices to sweare, that they shall not 
 lake, lrom henceioorthe as longe as they be in office, lee 
 or liverie of noman but of ourself, and that they shall not take 
 guitte ne reward themselves ne by other prively ne openlie 
 
 * Lord Coke denies this to be a statute . See 3 Inst. 224, 146.— Editor.
 
 By Subpcena. 2S3 
 
 of no man that shall have to do before them by any manner 
 of waie, excepte it be manger and boyer, and that of little 
 value ; and that they shall give no counsell to greate nor to 
 small in case wher we be par tie, or that toucheth us or may 
 touche ns in an}- poincte, upon payne to be at our will both 
 bodie and lande and to do our pleasure in case that they do 
 the contrary. And for this cause we have encreased the 
 fees of our justices in soche a manner as it may reasonablye 
 suffice them." 
 
 So that you may perceive by this statute, that my lord 
 chancellor nor none other ought to send any writ or writing 
 to any justices to let [hinder] them to proceed accord- 
 ing to the common law of the realm, the which law the 
 king is bound to see maintained, as it appearelh by the said 
 statute. And all is one mischief to send a writ, or a com- 
 mandment to the party, that he shall not proceed to sue 
 [at] the common law, as it was before the making of the 
 said statute to send it to the justices ; so that the sending ot 
 such a writ or commandment can not be justified no more 
 in the one than in the other. Notwithstanding it is com- 
 monly used now, so that the common law of the realm is 
 taken tor nothing, but all the law that now is used is to de- 
 termine what is conscience, and which is no conscience, 
 and so the common law of the realm is now-a-davs by you 
 that be students turned all into conscience, and so you make 
 my lord chancellor judge in every matter and bring the 
 laws ot the realm in such an uncertainty, that no man can 
 be sure of any lands be it inheritance or purchase, but 
 ever} - man's title shall be by this mean brought in question 
 into the chancer}- ; and therefore it shall be tried whether it 
 b.- conscience or no conscience, and the law of the realm, 
 by which we ought to be justified, nothing regarded. And 
 so in conclusion after my conceit, if this be not reformed by 
 the great wisdom and policy of my lords and masters, the 
 judges of this realm, the law of this realm will be undone, 
 and all by the mean of these uses and the crafty and sub- 
 tile inventions that you that be students make upon the said 
 uses. 
 
 23
 
 354 Suits in Chancery 
 
 PART II. 
 
 HEREAFTER FOLLOWETH A LITTLE TREATISE CONCERN- 
 ING WRITS OF SUBP02NA. 
 
 Whether a subpoena ought to lie in any case. 
 
 Chapter I. 
 
 It appeareth in the king's chancery in the time of so 
 many noble princes and kings of this realm, and in the 
 time of so many of their chancellors, whereof some have 
 been spiritual men, and some temporal men, that so many 
 have been put to answer upon writs of subpoena in the 
 chancery, that it is not to presume that the chancellors 
 have directed them temerously in the king's name without 
 authority, but rather by good authority, and by command- 
 ment of the king and his council, and by knowledge of all 
 the realm. For else it were rather to presume, that they 
 should long before this time have utterly been annulled and 
 put away ; and because the}'- have been suffered to continue 
 so long it is to suppose, that in some cases they may be 
 lawfully awarded. Also it appeareth in divers years of 
 terms, that many times when the chancellor hath been in 
 doubt in matters that have depended before the king in his 
 chancery upon subpoenas between party and party, that he 
 hath asked advice of the justices some times, whether a 
 subpoena lay in the case or not, and some times admitting 
 that the subpoena hath laid in the case, a doubt hath arisen 
 upon matter that the defendant hath pleaded in bar of the 
 subpoena; and many times the justices in such case deter- 
 mined that the subpoena hath laid, and some times have 
 reasoned to the doubt that hath risen betwixt the parties, 
 admitting the subpoena to lay, and so hath the defendant 
 done and all his counsel ; and there be so many cases re-
 
 By Subpcena. 2$<; 
 
 ported thereof, that it needeth not to recite them here. 
 Also by the statute mack; in the 17th year of the king, R. 
 the 2(1, it is enacted, that a man wrong full}' vexed by a 
 subpoena shall recover his damages by advice of the chan- 
 cellor. And in a statute made in the 15th year of the king, 
 II. the 6th, it is enacted, that no subpoena shall be granted 
 till surety be found to satisfy the party grieved of his dam- 
 ages, if the matter in the bill be not proved true. By 
 which statutes it appeareth, that in case that the defendant 
 be righteously vexed in the chancer}', and be sued upon a 
 true cause, he shall recover no damages: and thereby ap- 
 peareth that they that were of the parliament at the making 
 of the said statutes assented, that in some cases a man 
 might be righteously sued in the chancery, and that they 
 intended to set the diversity of the recovery of damages, 
 whether he was righteously sued and whether not. And 
 if it be said it is against the statute of the 2d and 20th of E. 
 3, and also against divers other statutes, which will, that 
 the justices shall not surcease to do right for the grand seal, 
 or privy seal, nor for none other commandment of the king, 
 it may be answered, the statutes are to be understood, 
 where such commandment is directed to the justices, that 
 they shall not therefore surcease to do justice ; but a sub- 
 poena is alway directed to the party and not to the justices, 
 whether there be any suit banging thereon in the court 
 or not, and then when the party by reason of the said 
 mination [commandment] surceaseth to call upon the jus- 
 tices lor any more process, they cease also to give it him; 
 but if the mination [commandment] were delivered to the 
 justices, commanding them to cease, and notwithstanding 
 the party calleth for justice, there I think the justices are 
 bound by reason of the said statutes to proceed and to do 
 justice, the said mination [commandment | notwithstanding. 
 Ami me thinketh that all these things well considered, no 
 man ought to marvel, what authority the chancellor hath to 
 make such a writ of subpoena in the king's name"; for the 
 old custom, not restrained by any statute, warranteth him 
 by reason of his office so to do, after certain grounds, and
 
 356 Suits in Chancery 
 
 under certain manner, as I shall partly touch hereafter in 
 this little treatise, to give other occasion to speak further 
 therein hereafter. 
 
 Here follozvcth one consideration, why it hath been thought 
 reasonable, that a subpoena should lie. 
 
 Chapter II. 
 
 There is a ground in the common law, that a declaration 
 must be certain ; especially that it must shew, who bringeth 
 the action, against whom it is brought, and what thing is 
 demanded ; and most commonly it must shew also the day 
 and year when the cause of the action began. And be- 
 cause it happeneth many times, that some man that hath 
 right to evidences that be in another man's hand and that 
 neither be under lock nor seal, cannot shew the very cer- 
 tainty how many deeds there be, or if it be but one deed, 
 yet percase [because] he cannot tell the name of him that 
 made the deed, nor of him to whom it was made, nor per- 
 ad venture the certainty of the land comprised therein, nor 
 all the town's names where it lieth, wherefore he is without 
 remedy by the course of the common law ; there it hath 
 been thought reasonable in times past, that a subpoena should 
 lie for him that hath right, and rather to suffer him to have 
 right there, than to leave him without remedy in all places. 
 And this is one of the most common cases where a subpoena 
 hath been sued in times past. And here it is to be noted, 
 that it is not against the common law ; though the party 
 have remedy in the chancery in the said case, though he 
 can have none by the common law. For the common law 
 doth not prohibit, but that there shall be remedy in the chan- 
 cery in the said case, and other like ; and if it did, it would 
 be hard to prove that prohibition were reasonable. Where- 
 fore the reasonableness of the law doth suffer it, rather than 
 it would' [should] break his rules and grounds, and to suf- 
 fer the plaintiff to have an action, and could not declare nor 
 chew whereof he brought his action.
 
 By Subpcena. 357 
 
 Another consideration why it should seem reasonable that 
 a subpoena should be granted. 
 
 Chapter III. 
 
 There is a maxim in the law, that a rent, a common, an- 
 nuity, and such other things as lie not in manual occupa- 
 tion, may not have commencement, nor be granted to none 
 other, without writing. And thereupon it followeth that if 
 a man for a certain sum of money sell another forty pounds 
 of rent yearly to be percepled of [received from] his lands 
 in D., etc., and the buyer, thinking that the bargain is suf- 
 ficient, asketh none other, and after he demandeth the rent, 
 and it is denied him, in this case he hath no remedy at the 
 common law for lack of a deed ; and therefore in as much 
 as he that sold the rent hath quid pro quo, the buyer shall 
 be helped by a subpoena. But if that gmnt had been made 
 by his mere motion without any recompence ; then he to 
 whom the rent was granted should neither have had remedy 
 by the common law nor by subpoena. But i( he that made 
 the sale of the rent had gone farther, and said, that he be- 
 fore a certain day would make a sufficient grant of the 
 rent, and after refused to do it, there an action upon the case 
 should lie against him at the common law ; but if he made 
 no such promise at the making the contract, then he, that 
 bought the rent, hath no remedy but by subpcena, as it is 
 said before. And the same law, which is of a rent that had 
 no being, but is sold as a rent newly to begin by the sale, 
 is of a rent that had being before, and is sold without deed 
 for a certain recompence, as is before rehearsed.
 
 358 Suits in Chancery 
 
 Another consideration why it hath been thought reasonable, 
 that a subpoena should be granted. 
 
 Chapter IV. 
 
 In the statute that is called £>ju'a emptorcs tcrrarum, it 
 is enacted, among other tilings, that it shall be lawful for 
 every freeman to make a feoffment of his lands, or of part 
 of his lands, to whom he will, so that the feoffee hold al- 
 ways of the chief lord of the fee. By reason of which 
 statute, if a man since that statute, made a feoffment with- 
 out deed, or by deed poll, reserving a rent, that reservation 
 is void as for any remedy that you shall have by the com- 
 mon law. And so it is if a man being seized of lands for 
 term of life, grant over his whole interest without deed, or 
 by deed poll, as is aforesaid, reserving a rent, that reser- 
 vation is void in the law, as for having any remedy by the 
 common law ; for there is a maxim by the law, that a res- 
 ervation of rent shall not stand in effect, unless he that 
 maketh a reservation have a reversion in him ; or else that 
 the land may be holden of him by that rent reserved, as it 
 might have been before the said statute of Qiiia emptorcs 
 tcrrarum; and, therefore, since it cannot be holden of him, 
 because of the said statute, and seeing also that he hath no 
 reversion in him, therefore for that reservation he shall have 
 no remedv in the courts of the common law, as in the king's 
 bench, the common pleas, and other courts of lower au- 
 thority than they be. And the very reason why it is so, is, 
 because the m .xims and customs of the law hath given no 
 remedy in that case ; for though a man have right by the 
 law, yet some time he shall have no remedy by the law, 
 but it is as void as lor any remedy he shall have at the 
 common law, as is aforesaid, but yet is good by the law of 
 reason. For reason will, that, forasmuch the intent of the 
 parties was that the rent should be paid, and that the feoffee 
 take the land to the same intent, and hath the profits of it, 
 he should pay the rent according to the agreement. And 
 if any man would say that this reservation is void to all in-
 
 By Subpiena. 359 
 
 tents, because it is against the law ; for if it be against the 
 law, either it is void, or else the law is void : and therefore 
 if a statute were made that all reservations of rents out of 
 lands should be void, and then a man, contrary to the stat- 
 ute, would make such a reservation, that reservation were 
 void in law and conscience, for it were directly against the 
 statute : and that it should be so in likewise in this case : to 
 that it may be answered, that though it be void in that case, 
 yet it is not like in this case. For in this case there is no 
 law that prohibiteth the reservations to be made, but if they 
 be made the law judgeth them by the rules of the law of 
 the realm, that there shall be no remedy for them by the 
 common law, as it is said before ; but taking the law of the 
 realm to be grounded as well upon the law of reason and 
 the law of God, as upon the said customs, maxims, and 
 statutes, as it is indeed, for else it were a very gross law, 
 and far insufficient, and also against reason in many things ; 
 then is the reservation good in the law of the realm. So 
 generally taken upon all his grounds, howbeit that yet in 
 that case there is no remedy for that that [which] is re- 
 served in the king's courts of the common law, as is said 
 before ; but yet the law is not against it, but that remedy 
 ma)" be had therefore in the chancery. 
 
 Another consideration zvhv it should seem reasonable, that 
 a subpeena should be granted. 
 
 Chapter V. 
 
 There is a maxim in the laws of England, that if a man 
 bring an action of debt upon an obligation the defendant 
 shall not be received to plead nihil debet, that he oweth 
 nothing, but that he shall be compelled to plead an acquit- 
 tance or some other thing of as high nature in the law as 
 the obligation is. And of that it followeth, that if a man 
 that is bound in an obligation, pay that money and taketh 
 an acquittance, and after leaseth [releaseth] the acquit-
 
 Suits in Chancery 
 
 tance, and thereupon the obligor [obligee] bringeth an ac- 
 tion of debt upon the obligation against the obligor ; in this 
 case the obligor has no remedy to help himself at the com- 
 mon law, but shall be compelled by the common law to 
 pa} r the money again ; and then, as it is said in a dialogue 
 called the first Dialogue in English between a Doctor of 
 Divinity and a Student, the 22d chap., he that hath no 
 remedy but by a subpoena, which as is said there, he shall 
 well have. And to that saying an exception is taken by a 
 certain person in a treatise that he hath made in the name 
 of a Serjeant at the law, where he assigned divers reasons 
 and considerations why a subpoena ought not to lie in that 
 case. 
 
 And one cause that he alledged is this. He saith, that 
 the defendant in that case may have sufficient remedy by 
 the common law, so that he needeth not to take a subpoena ; 
 and his reason is this. He saith, if the obligor atter the 
 payment will bring an action of debt against the obligor 
 [obligee], supposing that he lent him the money, that then, 
 if the obligee will plead that he receiveth the money for the 
 contentation [satisfaction] of his obligation, this plea thus 
 pleaded in court of record shall discharge the obligor of the 
 said obligation. — And methinketh that his reason is not 
 made according to the grounds and learning of the law; 
 for in an action of debt upon a prompt, it is no plea to say, 
 that he receiveth the money in contentation [satisfaction] of 
 his obligation, or of another duty, or that there was no such 
 a prompt, nor any other matter like that amounteth to the 
 general issue ; but he shall be compelled to take the gen- 
 eral issue, or be condemned for lack of answer. And if 
 lie plead that special matter before rehearsed, and conclude 
 over to the general issue, (that is to say,) " and so he oweth 
 him nothing," then is the special matter waived, and all the 
 effect of the plea resteth upon the general issue, which is 
 clear with the obligee ; for he receiveth the money as a con- 
 tentation of his obligation, and not as a loan ; and though 
 the obligor, after the payment, lease [released] his acquit- 
 tance, that cannot hurt the obligee, nor alter the nature o{
 
 By Subpcena. 361 
 
 the payment that was made before. Wherefore whether he 
 put him on the country, or wage his law, it is clear for him 
 in law and conscience, and so methinketh that this reason 
 maketh title [little] for that purpose. 
 
 The second reason that he maketh that a subpoena should 
 not lie in this case is this. He saith, that it is not reason- 
 able that for a particular man's cause, which hath hurt him- 
 self through his own negligence, and bv his own follv, the 
 good common law of the realm, that is this, that mailer in 
 writing without condition, may not be answered but by 
 matter in writing, or by matter of record, should be made 
 void, or be set at nought by the suit of an}' particular per- 
 son in the chancery, or in any other place. And then he 
 saith further, that if reformation should be had in the chan- 
 cery in this case, it must needs follow that the common law 
 must be void and set at nought ; for these two laws, being, 
 as he saith, one contrary to another, cannot stand together. 
 — To this it may be answered, as methinketh, that though 
 it be prohibited by the common law, that a man should not 
 plead a payment against an obligation without writing, and 
 that in the chancery he shall, that yet the law in the one 
 court, and in the other, as to the right of the debt, is all 
 one. For the judges of the common law know as judges 
 by the grounds ot the law, that the payment sufficiently 
 dischargeth the debt in reason and conscience, as the chan- 
 cery doth : but yet they may not by the maxims and customs 
 ot the law, admit the only payment for a sufficient [ilea be- 
 fore them, not for that they think it not sufficient in reason 
 and conscience to discharge the debt, but.that they may not 
 break the grounds and principles of old time used in the 
 courts where the action is taken. But the common law pre- 
 tendeth not, that the maxim stretcheth to all courts, nor to 
 the whole common law, but to certain courts according to 
 the custom before time used. And therefore, at this day, 
 if an action of debt be brought upon an obligation under 
 the sum ot 405. in the county, hundred, or court baron, 
 the defendant shall wage his law; and in London the 
 defendant shall confess the deed, and pray that it may
 
 362 Suits in Chancery 
 
 be enquired of the duty. And so it is oftentimes 
 seen that several courts have several customs, and 
 the law suffereth them all : as in the common pleas an 
 outlawry shall be sometime reversed without a writ of 
 error ; and in the king's bench no outlawry shall be reversed 
 without a writ of error ; and also in the common pleas upon 
 the first default in a scire facias, execution shall be 
 awarded; and in the king's bench an alias shall be 
 awarded. And why may then the said maxim hold in the 
 king's bench and common pleas, and in some other courts 
 of record as be holden after the common law, and yet not 
 be holden in the chancery? And I would think further, 
 that if it were enacted, that upon an obligation every man 
 that would, might have a subpoena in the chancery, it were 
 then no great doubt but that the defendant in such a sub- 
 poena, might plead a payment against the obligation, 
 without offending the common law. And yet if an officer 
 of the chancery after that statute sued another upon an 
 obligation by the privilege of the chancery, in that suit the 
 defendant should not plead a payment without writing. 
 And if such diversity of pleading should be suffered in one 
 court, it is little marvel then though it be suffered in several 
 courts. And then it followeth furthermore thereupon, that 
 if the defendant in that suit taken against him by the 
 privilege cf the chancery, as is said before, hath paid the 
 money, and hath taken no acquittance, then he hath no 
 remedy but upon a bill containing the matter, to desire, 
 that the plaintiff may have an injunction to surcease in that 
 suit there taken in the chancery, alter the maxims of the 
 common law, and to answer to his bill there after the law 
 used upon writs of subpeena ; and yet no contrariety be in 
 it; for the common law claimeth not, that that maxim 
 should secure in any other place but at the common law, 
 and that only in courts of record, as is said belore. And it 
 seemeth a great reasonableness in the law, that it wilieth 
 the said maxim to stretch to no other courts, but to the 
 courts of the common law. For if [it] did, it should seem 
 to be far [very] unreasonable ; for certain it is, that if the
 
 By Subpcena. 363 
 
 money be paid, the debt in reason and conscience is dis- 
 charged, though there were no acquittance made, and then 
 hat maxim should [would] universally put the party that 
 hath paid the money without acquittance from all remedy. 
 And therefore melhinketh it should more commend the 
 common law that it suffereth remedy to be had in this case 
 in the chancery, than it should [would] do if it should 
 clearly prohibit it ; and therefore they speak rather against 
 the common law, that would so have it, than with it. And 
 if any man would say, that if such remedy may be had in 
 this case in the chancery, as I have said before, that then 
 the said maxim is void, and serveth to no purpose ; tor upon 
 every obligation such surmise may be made though the 
 money be not paid, and so shall all plaintiffs be delayed by 
 such untrue surmises ; to that it may be answered, that if 
 he that maketh the surmise cannot prove his bill, he shall 
 yield damages to the plaintiff, and the plaintiff' shall also 
 proceed at the common law. And also it serveth to this 
 purpose, that it maketh them that be bound, the rather to take 
 acquittance, or the obligation in lieu of acquittance, whereby 
 shall follow the plainer reckoning, and the less variance 
 among the people ; and if that maxim were not, many de- 
 fendants would plead a payment, or that they owe nothing, 
 though it be untrue, that will not sue to have a subpcena, 
 and find surety to pay damages, if he cannot prove his bill 
 to be true, knowing it to be untrue. And thus methinketh, 
 that the said maxim is good and reasonable, and also 
 profitable to the commonwealth, though remedy may be 
 had in the chancery, as is aforesaid.
 
 364 Suits in Chancery 
 
 Another consideration why it hath been used that a sub- 
 ■pocna should lie. 
 
 Chapter VI. 
 
 It hath been used, that when feoffees have been seized to 
 the use of a man and his heirs, and that they have been re- 
 quired to make estate according to the use that they were 
 infeoffed to do it, that then he to whose use they be so seized, 
 should have a subpeena to cause them to make the re-feoff- 
 ment unto him. But if a feoffment be made to the use of 
 a [person in] tail, and it was agreed that the feoffees shall 
 stand still seized to the use of the tail [entail], without 
 making any estate thereof, then in that case there lieth no 
 subpeena against the feoffees to make estate. But if the 
 tenant in tail in use, after the use made in tail, had granted 
 to the feoffees, that the} 7 should stand still seized without 
 making any estate to him or to the heirs of his body ; in 
 that'ease if the tenant in tail die, his heirs may have a sub- 
 poena against the feoffees, if they refuse to execute the state 
 [estate] truly ; for the tenant in tail had no power to bind 
 his heir, but that he might ask of the feoffees execution of 
 the tail [entail] if he likes. And this was wont to be the 
 most common case where a subpoena was sued till the stat- 
 ute of Richard was made. But yet since that statute, 
 though the feoffor may enter and make a feoffment, yet he 
 may have a subpeena to cause the feoffees to make him es- 
 tate if he will. Also if feoffees of trust grant a rent charge, 
 the feoffor hath no remedy to discharge that rent by the 
 rules of the common law, but by a subpeena. And as an 
 use is of lands, so there ma)* be o( goods and debts. And 
 there be so many diversities where a man shall be seized to 
 the use of another, and where not; and where a subpeena 
 lieth against them that be seized to the use of other to make 
 them estate, and to maintain actions to their use and where 
 not, that it would ask a special treatise to declare it ; and 
 therefore I omit the articles for this time, and shall only
 
 By Subpcena. 36$ 
 
 touch how use [uses] first began ; wherein I will follow a 
 little treatise in English called the Second Dialogue be- 
 tween a Doctor of Divinity and a Student in the Laws 
 of England, where it is said, as in the 22d chapter thereof 
 appeareth, that uses were reserved by a secondary conclu- 
 sion of the law of reason in such manner as in the said 
 22d chapter appeareth. Against which saying the same 
 person of whom mention is made before in the said treatise 
 taketh exception, and saith that they began, as he thinketh, 
 of an untrue and false purpose, which he saith appeareth 
 by that, that he which maketh such a feoffment saith and 
 doth one thing, and thinketh another clean contrary. For 
 he saith, that he saith by his word and by his deed and 
 writing and livery and seisin, that the feoffee shall have the 
 land to him and to his heirs : and yet his mind and his in- 
 tent is, that he shall not have it, but that he will have it 
 himself. Then saith he further, what a falseness is this, to 
 speak and do one thing and to think another clean contrary 
 to the same ! Even- man may perceive, saith he, that 
 thereby may come no goodness but craft and falsehood ; 
 and so he thinketh, that uses began by untrue and crafty 
 invention, and are continued by an untruth and for a deceit. 
 And at this reason somewhat I marvel. For methinketh 
 it is not grounded according to truth ; for most commonly 
 when feoffments of trust be made, the feoffor maketh the 
 feoffees, or at least some of them, privy to his intent, for 
 commonly there is no feoffment of trust made by deed, 
 though it may be otherwise, but is seldom seen ; and then 
 the feoffees or one of them must take livery of seisin, or 
 else make a letter of attorney to take it. What false- 
 hood then is it, when the feoffees or part of them be made 
 privy thereto? And admit that none of them be made 
 privy, as some time it may be, as if a man make a lease 
 for a term of life the remainder to certain persons to his 
 use, and they know not of it, nor never gave any money 
 nor other recompence for it ; what falseness is there, though 
 the lessor after the death of the tenant for term of life take 
 the profits? I see none. And therefore all the doubt is
 
 366 Suits in Chancery 
 
 when such a feoffment of trust is made, whereby it appear- 
 eth by the words of the deed, and as the very truth is, that 
 the land is given to the feoffees as to the possessors, how 
 an use may be reserved by the law contrary to the word. 
 And yet doth the law suffer such a reservation of an use 
 upon such grounds as in the said dialogue is spoken ; and 
 therefore if any default be it is in the law, for the party 
 sheweth commonly what his intent is to do if the law will 
 suffer it ; and because the law dotli suffer it, it taketh effect 
 accordingly ; that is to say, that the feoffees shall have the 
 possession and another the use, which use many times is 
 appointed to be made by indentures of marriage or of bar- 
 gains and sales, or to declare their wills, and that many 
 times by the advice of learned counsel nor of no craft nor 
 falsehood. But yet whether it were good tD break all uses 
 or to let them stand, I will not treat of at this time ; for it is 
 not the intent of this writing. And if the}- should be 
 broken, the cause to break them were not, because they 
 began of craft and falsehood, as in the same treatise is 
 said, but for unquietness and trouble that cometh by them, 
 and specially by uses in tail. And as to the mischief that 
 is alledged in the same treatise that cometh by them by 
 loss of escheats, and by avoiding tenancy by the curtesy 
 and in dower, and such other, methinketh it is little to be 
 regarded ; for though it be certain, that where such titles 
 be once given by the law that it is against right and con- 
 science to take them from them that they be so fallen unto, 
 yet to prevent their title therein, so that no title shall come 
 it is not against conscience, so it be not done of an evil will 
 to him that the title should fall to. And therefore if a man 
 that holdeth by knight's service being sick and like to die 
 married, his son being within age, because he would have 
 the half of his marriage himself to pay his debts, he doth 
 no wrong to the lord. And so it is in all the cases that be 
 spoken of in the said treatise where such titles be put away 
 by means of uses. And likewise if a man that hath no 
 heir general nor special selleth his land, or giveth it away, 
 to the intent that it should not escheat, he doth no wrong to
 
 By Subpcena. 367 
 
 the lord. And these articles and the articles that are 
 treated of in the 5th chapter, make me some time to con- 
 jecture, that the said treatise was not made by any serjeant 
 at the law, as it is entitled to be, but of some other, that, as 
 it seemeth, had a zeal to the law, though peradventure 
 some of the motions that he maketh were rather to the dis- 
 commendation of the law than to the commendation of it. 
 For what praise were it to the law to prohibit all writs of 
 subpoena, and yet no remedy to be therein at the common 
 law? But if remedy were provided at the common law, it 
 were the less force [consequence], if writs of subpoena were 
 put away. But in some cases where subpoenas lie, it were 
 very hard to provide any remedy to be at the common law, 
 as in the case of the evidences whereof the party knoweth 
 not the number, and whereof mention is made in the 2d 
 chapter. And also in divers other cases, whereof I intend 
 to touch briefly by certain cases and grounds, a man some 
 time may have right to a thing in conscience, and where 
 he has no means to come unto it at the common law, and 
 /et there lieth no subpcena. 
 
 Hereafter follow divers cases and grounds, whereby it 
 appcarcth that a man may have right in conscience 
 which he cannot conic unto by the common law, and that 
 yet he shall have 110 subpcena. 
 
 Chapter VII. 
 
 If lord and tenant be, and the tenant holdeth of the lord 
 by knight's service and certain rent ; the lord distraineth 
 the tenant's beasts, and thereupon maketh avowry upon 
 his supposing that he holdeth of him by fealty and certain 
 rent, and so thereupon hath return ; and after the tenant 
 dieth, his heir being within age: in this case the lord is 
 concluded as against the heir to say that his ancestor held 
 of him by knight's service, and that is, by reason of the
 
 368 Suits in Chancery 
 
 said avowry, whereby [it] appeareth of record that he him- 
 self averred the land was holden of him in socage; and yet 
 the truth is, that the tenant holdeth of him by knight's 
 service. And therefore if he bring a writ of intrusion 
 maritagio 11011 satisfacto, against the heir at lawful age, 
 and the heir pleadeth the said record against him by way 
 of conclusion, the lord is without remedy at the common 
 law, and yet he shall have no remedy by subpoena in the 
 chancery ; for if he should, he would say directly against 
 that which he affirmed before in the king's court of record ; 
 and therefore though he have right, the chancery will 
 suffer him to be without remedy, as for any help that he 
 shall have of the law, rather than to suffer such an open 
 contradiction to remain of record in the king's courts, and 
 rather than it will give him remedy against his own confes- 
 sion. But yet in this case the heir is bound in conscience 
 to restore him the value of his marriage, and the profits of 
 the land during the nonage ; yet he is not compellable 
 thereunto by no [any] law. And also against all other 
 strangers that would take the wards [wardship] of the said 
 heir, the lord may have good remedy by the common law; 
 for none shall have advantage of that estoppel, but they 
 that be party or privy to the said record. 
 
 Also if a man levy a line with proclamation of land, that 
 he knoweth another man hath right to, and he giveth him 
 no notice thereof; after this five years pass without claim, 
 whereby he that had the right is barred in the law ; yet he 
 that levied the fine is bound in conscience to restore him 
 that had the right, for he wittingly deceived him, and did 
 as he would not have been done unto. And yet though he 
 be bound in conscience to restore him, [yet] there lieth no 
 subpoena to compel him thereto ; for there is no subpoena 
 directly against a statute, nor directly against the maxims 
 of the law ; for if it should lie, then the law should be 
 judged to be void, and that may not be done by no [any] 
 court but by parliament. And therefore if a man procure a 
 collateral warranty to extinct [extinguish] the right of an- 
 other, and the warranty descended! upon him that hath
 
 By SuBPCENA. 369 
 
 right, whereby he is barred of the land in the law ; though 
 he that procureth it be bound in conscience to restore him 
 that had right, yet he shall have no subpoena to compel 
 him thereto, for the cause before remembered [stated]; for 
 the law is, that he shall be barred, not only in this court or 
 that, but generally. And therefore if it were enacted, that 
 if an alien came through the realm as a pilgrim and died, 
 that all his goods should be forfeited, this statute were 
 against reason and not to be observed in conscience, and 
 yet there should lie no subpoena for the executors of the 
 pilgrim ; for if there should, then should the chancellor 
 give judgment directly against the statute, and that may 
 not be in no wise ; but if the statute be -not good, it must be 
 broken by parliament as it was made. And so it is of the 
 cases of the fine with proclamations, and of the collateral 
 warrant)' before remembered. 
 
 Also if the grand jury in attaint affirm a false verdict 
 given by the petty jury in assize, yet there lieth no subpoena 
 though the part)- hath right and hath no remedy at the 
 common law. And that for two causes. — Whereof one is, 
 when the common law hath gone as far for remedy as the 
 law suffereth, so that there can be then no further trial, if 
 then the party should have a subpoena, then the common law 
 would have no end, and thereupon would fall many incon- 
 veniencies. Wherefore the party shall rather be suffered to 
 be without remedy than the inconvenience should fall. But 
 in that case he that hath the land is bound in conscience to 
 restore, if he will save himself from deadly sin, though he 
 cannot be compelled thereto by no [any] law. — The other 
 cause is this. There is a statute made in the 4th year of king 
 Henry the fourth in the 22d* chapter, that judgments givenin 
 the king's courts shall not be examined in the king's chan- 
 cer}', parliament, nor elsewhere, but by error or attaint. And 
 therefore if a subpoena should lie, it woulcj be directly 
 against the statute. f And like law is, if the defendant in 
 
 * Chup. 23 in the printed statutes. — Editor. 
 
 fit has bee'n long settled, that notwithstanding the 4th of llenrv 4, our 
 
 H
 
 37° Suits in Chancery 
 
 an action of debt upon a contract wage his law untruly, 
 whereby the plaintiff is barred ; yet in that case he hath no 
 remedy by subpoena, for the causes aforesaid. 
 
 Also if a man buy goods of another for a certain sum of 
 money, and after maketh his executors and dieth, in that 
 case there lieth no action at the common law against his 
 executors : because their testator might have waged their 
 law, and they may not ; and therefore the law for eschew- 
 ing of a great inconvenience and mischief that might follow 
 to all executors, if such actions should be maintainable 
 against them upon a bare surmise, and where their testator, 
 if the action had been brought upon an untrue surmise, 
 might have waged his law and they may not, will not suffer 
 any action in that case to lie against them.* And then I 
 have heard this taken for a ground, that when the common 
 law putteth a man from his remedy, though he have right, 
 for eschewing of an inconvenience that might follow upon 
 it, and that then if the remedy should be had in the chan- 
 cery, in the same case the same inconvenience should fol- 
 low, as should have done at the common law, that there no 
 subpoena shall lie. And that it should be so in this case to 
 all executors is evident; and therefore no subpoena shall lie 
 as me seemeth. And like law is, as I take it, upon an un- 
 true presentment in a leet for such a thing as toucheth not 
 freehold, that like as there is no remedy at the common law 
 
 i . . 
 
 courts of equity may relieve as well after as before judgment at law. 
 However, in Lord Coke's time, and for some time after, it was a contro- 
 verted point. Those who wish to trace this controversy through its several 
 stages will be able to gratify their curiosity by consulting the lollowing 
 books, namely: Cro. Jam. 335, 343; 3 Bulstr. 115; 3 Inst. 122; 4 Inst 85; 
 Car. Rep. 144, 163; March, S3; Hardr. 23, 120; 1 Mod. 59; T. Raym. 
 227; Jurisd. of Chanc-, vindicated at the end of vol. 1 of Rep. in Clianc, 
 and Sir Rob. Atkyn's Enquiry into the Jurisd. of Chanc. 39. — Editor. 
 
 * But in latter times the judges have allowed actions of assumpsit 
 in which wager of law is not allowed, for debts on simple contract, against 
 the original debtor, and consequently against his executors; and since 
 this deviation from the rigor of the law, as it was formerly understood, 
 it has been determined, that though in debt on simple contract, an execu- 
 tor may abate the action, yet he is at liberty to plead to itj and will be 
 justified for so doing. Vaugh. 100, and 1 Lev. 200. — Editor.
 
 By Subpoena. 371 
 
 to traverse it, so there shall be none by subpoena; for the 
 chief cause why the common law suffereth no traverse in 
 this cast-, as I take it, is to eschew the great trouble that" 
 might ensue upon such traverses, considering the great 
 multitude of such presentments in all sheriffs' tournes and 
 leets within the realm ; and as great trouble and suit would 
 ensue if a subpoena should lie in this case as would do by 
 traverses, and therefore 1 no subpoena shall lie. And though 
 some books assign another reason why there lieth no tra- 
 verse against such presentments, that is to say, because the 
 law presumeth such presentments, which be made by twelve 
 men, in the same place where the offence is supposed to be, 
 to be true, and will suffer the party to have no traverse to 
 it, unless he put in his traverse to the presentment the same 
 day, and that if he pass the day no traverse shall lie for 
 him ; and though this consideration may seem somewhat to 
 prove that no traverse shall lie against such presentments, 
 yet I think the most principal cause thereof is for eschew- 
 ing of great suits and unquietness, that might follow among 
 the people, if such traverse were suffered. And the law 
 much provideth and foreseeth that no hurt shall grow unto 
 a multitude, and for that consideration it is, that the law 
 will suffer no man to enter upon a descent, and that bv a 
 sale in open market the property is altered from him that 
 hath right ; and divers other such laws be ordained to 
 eschew mischiefs from a multitude. • 
 
 Also if a woman covert induce her husband to sell her 
 land, and she taketh the money and converteth it to her 
 more profit than the land was, and after of her own free 
 will maketh an affidavit that if her husband die, she shall 
 never claim the land, but shall make such further surety 
 [assurance] to the buyer as he shall devise, and thereupon 
 she and her husband maketh him a feoffment; then the 
 husband dieth, and she bringeth a cut in vita and recover- 
 ed! the land ; in this case the woman is bound in conscience 
 to recompence the buyer the money [he paid], and all the 
 charges that he hath sustained by that occasion, and yet 
 he shall have no subpoena, nor other remedy to compel her
 
 3J2 Suits in Chancery 
 
 to it. For the law presumeth, that what is clone by the 
 woman covert is done by the means of her husband, 
 and against that presumption shall lie no suit against 
 her. And yet in her own conscience she is bound to 
 restitution. 
 
 Also if there be two joint tenants of goods, and the one 
 taketh the whole profit to his own use, the other hath no 
 remedy by subpoena nor otherwise ; and yet he doth against 
 conscience to take the whole profits, and as he would not 
 be done unto ; but for as much as they put confidence each 
 in [the] other to occupy jointly* together, therefore, though 
 one of them- break that confidence, yet the other shall have 
 no remedy neither by subpoena nor otherwise, against his 
 own agreement. 
 
 Hereafter follozucth a short tilling of divers cases zvherein 
 a subpeena liclh not; bat the cause zvhy it lieth not is not 
 shczved, but is left to other that list to entreat further 
 of the matter. 
 
 Chapter VIII. 
 
 If a man recover against a tenant for term of life or ten- 
 ant in the tail by false verdict, and entereth by force of the 
 same recovery, and after all the jurors die, so that he that 
 lost the land is clearly without remedy at the common law, 
 yet he shall have no s.ubpcena. 
 
 Also if a man without title recover land by a default in a 
 precipe quod reddat, and enter and taketh the profits, and 
 after he against whom the recovery was had bringeth a 
 writ of right and recovereth the land without damages as 
 he should do bv the law ; in this case, though he that first 
 recovereth be bound in conscience to restore the damages 
 for the time he had the land, yet the other shall have no 
 subpoena against him to recover them. 
 
 Also if a man purchase an advowson, and after suffereth 
 an usurpation before any presentation, and the six months 
 pass ; so that he hath no remedy by the common law to 
 have a writ of right, yet no subpoena lieth for him.
 
 By Subpcena. 373 
 
 Also if the tenant for term of life had at the common law 
 clone waste, there had lain no subpcena against him, noi 
 yet doth. 
 
 Also if a man make a lease for a term of life, and the 
 tenant for term of life doth waste, and after surrendered! 
 his csiale to him in reversion, and he in the reversion was 
 ignorant that the taking of the said surrender should ex- 
 tinct [extinguish] his action, yet no subpcena lieth in that 
 case. 
 
 Also if a man offend [upon] a penal statute by ignorance 
 of the law or of the deed, .and thereupon is sued and con- 
 demned in the law, yet thereupon lieth no subpoena for 
 him. 
 
 Also if a man's servant through negligence of his mas- 
 ter, though it be not by his commandment or assent, but 
 for lack of correction, do offences and trespass to his neigh- 
 bour, whereby the master is bound in conscience to make 
 restitution if his servant be not able, yet there lieth no sub- 
 poena against the master to compel him to it. 
 
 Also if a man take land for term of life, and bindeth 
 himself in an obligation that he shall leave the ground in 
 as good case [condition] as he found it, and after the woods 
 thereof be destroyed bv sudden tempest or strange enemies 
 without any fault in him ; yet he shall be condemned at the 
 common law by reason of his own bond, and he shall also 
 be without remedy as for any subpoena he shall have in 
 that behalf. 
 
 Also when tenants for term of life before the statute that 
 giveth the quod ei deforciat have lost their lands by de- 
 fault, whereby they were without remedy at the common 
 law, yet there lay no subpoena for them in the chancery. 
 
 Also if a man of his mere motion and without any rec- 
 ompence make a lease for a term of life, the remainder to 
 the sheriff of such a shire and to his heirs, without naming 
 his surname * or his proper name ; in this case like as the 
 remainder is void in law, so it is in conscience, and no sub- 
 
 * That is, no name of purchase.
 
 374 Suits in Chancery 
 
 poena lieth thereupon ; and yet a feoffment to the use of the 
 sheriff of Dale and his heirs without naming his surname 
 or proper name, had been good before this parliament. 
 
 Also if a man can prove by sufficient writing, that in the 
 time of king Henry the 2d an annuity was granted to his 
 ancestors, but by reason that they had no seisin since that 
 time he is without remedy at the common law ; so is he also 
 without remedy by subpoena. 
 
 Hereafter follozvcth a short titling of divers things, which 
 it -will be right expedient for the chancellor of England 
 to have in remembrance ; lest haply if he advertise them 
 not, he may charge himself in conscience some time with 
 damages, some time with the zvholc thing that is in de- 
 mand before him, though he cannot be compelled thereto 
 because he is a judge of record. 
 
 Chapter IX. 
 
 First if the chancellor grant a subpoena and taketh no 
 surety that the plaintiff shall satisfy the party grieved for 
 his damages, if the matter in the bill be not found true, 
 and after the matter is found against the plaintiff and he is 
 not sufficient to yield damages to the defendant, I think, 
 that in that case the chancellor is bound in conscience to 
 yield damages himself; because he took no surety at the 
 granting of the subpoena, as he should have done by rea- 
 son of the statute made in the 15th year of king Henry 
 the 6th, the 4U1 chapter, whereby it is enacted, that no sub- 
 poena shall be granted till surety be found for the truth.* 
 
 : In Mr. Ruffhead's edition of the. statutes, it is observed, that chap. 4, 
 of is" II. 6, is not upon the roll; and therefore its being a statute seems 
 .p! tionable. However, Lord Coke concurs with the writer of this trea- 
 tise in considering it as a statute; nor is it objected to by the learned ob- 
 server on ancienl statutes. 4 Inst. 84; Barr. on Ant. Stat., 4th ed. 403. 
 Whether it is a statute or not, it has long been tin- practice in chancery to 
 issue subpoenas without taking security, except in some special cases, a?
 
 By Subpoena. 375 
 
 But it' lie taketh such surety, that is sufficient discharge for 
 him, though the sureties after [afterwards] decay, and be 
 not able to yield the damages. 
 
 Also if a judgment be given in the king's court, and after 
 that judgment the part)', surmising that the judgment was 
 given against conscience, praveth a subpoena to have it ex- 
 amined in the chancery, and thereupon the chancellor com- 
 pelleth the plaintiff to find surety according to the said stat- 
 ute that he shall yield damages to the party grieved if he 
 cannot prove his bill true, and after it is found against 
 the plaintiff; in this case if the plaintiff and his sureties, 
 for that they be decayed surety taken, be not able to yield 
 the damages, then the chancellor is charged in conscience 
 to pay them. For though he have observed the law in 
 taking the sureties, yet by the granting of the subpoena he 
 hath done against the statute made in the 4th year of Henry 
 the 4th, whereby it is enacted, that judgments given in the 
 king his courts shall not be examined in the chancery, par- 
 liament, nor elsewhere, but that the parties and their heirs 
 shall be in peace till the judgment be reversed by error or 
 attaint if any be ; and therefore if the party and his sure- 
 ties be not sufficient to yield the damages, the chancellor, 
 as many men say, is bound in conscience to do it. 
 
 Also if the chancellor, either from vehement conjectures 
 or by other information, giveth sentence without proofs, 
 then he putteth himself to this jeopardv, that it afterward 
 it come to his knowledge in more credible manner than the 
 first conjectures were of, that the conjecture were not true, 
 then he is hound in conscience either to redress the sentence 
 or to restore the party to all that he lost by that sentence. 
 And therefore it is a most sure way, that either he give 
 judgment by proofs, or else upon his own knowledge : as 
 I suppose well he may if he know soothfastly [of a cer- 
 tainty] the truth of his own knowledge. And here I would 
 
 whore the plaintiff resides, or is going, abroad, ami the defendant on that 
 ground applies to the oourt to have seeurity given. Prac. Reg. in Cha. 
 340. — Editor.
 
 376 Suits in Chancery 
 
 put this diversity in this matter, that if the chancellor give 
 judgment according to the proofs, though they be untrue, 
 that it sufficeth for his discharge unless he know the con- 
 trary of his own knowledge. For he hath followed the 
 order of the trial appointed bv the law in that case, and 
 that sufficeth to him. As it doth for the ordinary if he pre- 
 sent the clerk of him that is found true patron by the jure 
 ^patroiiatus, though he be not so indeed ; for he hath done that 
 that the law would he should do for knowledge of the truth 
 therein : but if he will not grant any writ to inquire de jure 
 fiatronatus, but will present by other examinations and pre- 
 sumptions the clerk of him that he thinketh to be right pa- 
 tron, he bindeth himself to this jeopardy, that if another be 
 right patron indeed, a quare impcdit lieth against him. 
 And so methinkelh, that the chancellor likewise bindeth 
 himself to yield damages if he give judgment upon conject- 
 ures, though he thinketh never so clearly in his conscience 
 that they be true, unless they be true indeed. And yet some 
 will say, that though they be true indeed, that yet he of- 
 fendelh, because he hath set a certainty of his judgment in 
 that thing that is uncertain, and that is not appointed in the 
 law for him to follow for his warranty ; and they think he 
 may not do so with conscience; for it is said, qui amat 
 ■pcricidum -pcribit in tllo, he that will wilfully put him- 
 self in jeopardy to offend shall perish thereby. And 
 though that text may also be reasonably expounded, 
 to other jeopardies, yet it seemeth, that it may conve- 
 niently be applied to this purpose, that is to say, that he 
 pulleth himself in jeopardy to offend, that [who] givelh 
 a judgment and is not certain of himself nor by the order 
 of the law that his judgment is true. And so it is, if a 
 man taketh another and sweareth precisely that such a 
 thing is true, which he knoweth not but by conjecture. 
 And I believe their saying rather to be true lor this reason. 
 For I have taken it always for a learning, that if a man 
 have no sufficient proof of his title by witness in writing or 
 otherwise, that he is without remedy in the chancery ; and 
 if the chancellor might give judgment upon conjectures,
 
 By Subpcena. 377 
 
 that were not so, he might then judge as his conscience 
 judgeth him to do alter, [dictates to him, according] as he 
 
 thought to he the most reasonable conjecture. And where 
 some men have said, that the chancellor upon a subpcena 
 is not bound to judge secundum allegata et probata, but ac- 
 cording to the truth ; as I take it, that i-; to be understood 
 in this manner, [viz.] that, though proofs be brought into 
 the chancery which prove sufficiently for one of the parties, 
 that if the other party can sufficiently instruct the chancellor 
 that he hath better matter than he pleaded first, and that is 
 newly come to his knowledge, and prayeth that he may be 
 admitted thereto, the chancellor may admit him to it as well 
 alter publishing of witnesses as before, if he will ; but that 
 is not to be used without a very special cause, for it is 
 against the common form of the chancery. And also he 
 may suffer the parties to change their demurrer, and that 
 is a great favour ; for they shall not be admitted thereto in 
 none other court of the king. Also in the chancer}' a 
 double plea, nor a departure from his plea, nor two pleas 
 where the one goeth to the whole, shall, not condemn him 
 that pleadeth it ; but the very truth in conscience is to be 
 searched, and that truth cannot be searched by conjectures 
 as me seemeth. 
 
 And some men say, that if the chancellor grant a sub- 
 poena upon a bill that appeareth evidently to belong to the 
 common law and not to the chancery, and though he there 
 taketh surety according to the said statute of Hen. 6, yet in 
 that case he is bound nevertheless to yield damages to the 
 defendant, though the bill be proved true ; because he hath 
 done against the law. And some men will say, that in that 
 case an action lieth upon the statute of Magna Charta 
 against the plaintiff. Howbeit I will not determinately 
 speak therein, but will likewise remit it to others that will 
 further treat thereof for the plainer declaration of that 
 matter. 
 
 And I would therein take this diversity. If the matter 
 in the bill were apparent and without doubt or argument 
 that it belonged to the common law, that then it should
 
 378 Suits in Chancery 
 
 seem that the chancellor should be bound in conscience to 
 yield damages if the party be not sufficient, as it is said be- 
 fore. But if the matter in the bill be doubtful, whether a 
 subpoena lie thereupon or no, and he taking the law to be 
 that a subpoena should lie in the case grauteth forth a writ? 
 it were hard to say, that he should be bound in conscience 
 to yield damages, though it appeared afterward by reason- 
 ing of the judges or otherwise that no subpoena lay in the 
 case. For they that be learned in the law may after most 
 common opinion be some time excused, though they give 
 counsel otherwise than the law is, so that they gave counsel 
 as they thought the law to be, and that they had taken suf- 
 ficient time and study to learn the law, and that specially 
 in such cases as be very hard to come to the knowledge of 
 the law in. And so it seemeth to be of the chancellor in 
 granting of writs of subpoena. 
 
 Also if the chancellor delay the parties, either in the 
 pleading, or in the bringing in of witness [evidence], or 
 after the publishing of witness [evidence], more than he 
 would be contented to be delayed himself if he were in like 
 case, either for favour to any of the parties, or to keep many 
 sureties before him, or for such other cause like [similar 
 cause], he is bound in conscience to restore the party so de- 
 layed, or haply [perhaps] both parties, of all their costs 
 and damages that they have sustained by reason of that 
 delay ; for he hath done as he would not be done unto. 
 But if the matter be very doubtful, and he therefore re- 
 spiteth it, to be advised, or to have counsel of the justices, 
 or for that he may not attend it for other more necessary 
 causes as he thinketh, there he may be excused in con- 
 science. And so the intent and cause of the delay is the 
 very charge or discharge of conscience in this behalf as me 
 seemeth.
 
 By Subpiena. 379 
 
 Hereafter follozvcth a titling of divers objections, which 
 the maker of the aforesaid dialogue laycth against writs 
 of subpeena, with answers to them. 
 
 Chapter X. 
 
 First he saith, that he murvelleth how the chancellor 
 may make such a writ to let i hinder] the king's subjects to 
 sue his laws, the which the king himself cannot do right- 
 eously, for he is sworn to the contrary. — To that it may be 
 answered, that the king's oath in that point is this, that he 
 shall grant to hold the laws and customs of the realm ; and 
 then if the laws and customs of the realm shall be under- 
 stood as well the laws and customs used in the chancery as 
 at the common law, as I suppose they be, and as I have 
 somewhat touched before in the 5th chapter of this treatise 
 that they be, then it is not against the king's oath, though 
 the chancellor by means of a subpoena minister justice unto 
 the subjects. 
 
 Another objection is this. He saith that the king's 
 justices and his Serjeants be sworn to minister justice unto 
 the king's subjects, and that so is not the chancellor ; 
 whereby it should seem that his meaning is, that the chan- 
 cellor should therefore be at liberty to break justice. — To 
 that it may be answered, that though he be not bound to do 
 justice by his oath, yet he is bound thereto in conscience, 
 and that more deeply than the judges be, for he must form 
 his judgments according to the law of God or to the law of 
 reason, or to the laws of the realm made to determine the 
 right of lands and goods, and that be not contrary to the 
 said laws. And therefore if he err in his judgment, there 
 is greater default in him than is in the judges if they err : 
 lor the law of God and the law of reason, and also the law 
 of the realm, grounded upon those laws are much more 
 evident and. apparent to give judgment upon, than are the 
 general grounds, maxims, and some customs ot the realm ; 
 for the chancellor shall not need to meddle with the estopple
 
 380 Suits in Chancery 
 
 of the law, nor with the general rules of the law, nor yet 
 with the form oi writs nor form of pleading, wherein the 
 greatest difficulties of the law depend. And peradvenlure 
 this may be the case why a writ of error doth not lie upon 
 a judgment given by the chancellor upon a subpoena ; for 
 the law presumeth that no man contrary to so evident laws 
 will err in his judgment. But i( he do err indeed, he is as 
 highly bound to reform it or to make restitution as the 
 judges of the common law be, and more. 
 
 Another objection that he maketh is this. In what un- 
 certainty (saith he) shall the king's subjects stand, when 
 they shall be put from the law of the realm, and be com- 
 pelled to be ordered by the discretion and conscience of one 
 man : and namely for as much as conscience is a thing of 
 great uncertainly, for some men (he saith) think, that if they 
 tread upon two straws that lie across that they offend in 
 conscience, and that some man thinketh that if he lack 
 money, and another hath too much, that he may take part 
 of his with conscience, and so divers men divers conscience ; 
 for every man knoweth not what conscience is as well 
 (saith he) as Mr. Doctor. — And to that he may be answered, 
 that the said two consciences by him before remembered, 
 whereof the one is a scrupulous conscience and the other 
 an erroneous conscience, are not such a conscience as the 
 chancellor or any other are bound to follow. But they are 
 errors in conscience ; and errors in conscience come seven 
 manner of ways, as is expressed in the said first dialogue, 
 the 15th chapter, which he that will keep himself in a 
 clean conscience must clearly abject and cast away. 
 But the conscience, which the chancellor is bound to fol- 
 low, is that conscience, which is grounded upon the law 
 of God and the law of reason, and the law of the realm not 
 contrary to the said law of God and law of reason. And 
 therefore to be ruled by such a conscience seemeth neither 
 to be against the law of God nor the law of reason, nor the 
 commonwealth of the realm, as in that said treatise it is 
 supposed to be. And that the chancellor is bound to order 
 his conscience after the law o( God and the law of reason
 
 Bv SuBPCENA. 381 
 
 is evident of itself, and needeth no further proof. And 
 that he is also bound sometime to order his conscience by 
 the law of the realm and after none other law of man, it 
 may appear thus. If a man, seized of lands in fee, maketh 
 his will that another shall have it to him and his heirs, and 
 after dieth seized ; if it come afterwards in question in the 
 chancer}', whether this will be good, the chancellor is 
 bound in conscience to judge it to be void in conscience, 
 because it is void by the law.* And likewise if father and 
 son be, the son purchaseth lands in fee, and dieth without 
 any heirs of his body, the uncle by the law shall have the 
 land as heir unto him and not his father : but if the father 
 have afterward another son, then that son shall have the 
 land from his uncle as next heir to his brother ; and if this 
 matter come alter in variance in the chancery for evidence 
 or otherwise, the chancellor is bound to order his conscience 
 and to give his judgment accordingly as the law is. And 
 therefore though no writ of error lie upon a judgment given 
 by the chancellor upon a subpoena, yet it will appear upon 
 the matter whether the judgment stand with conscience or 
 not. For it is not to think, that whatsoever the chancellor 
 at the time of his judgment thinketh to stand with con- 
 science sufficiently dischargeth him in conscience ; for if 
 there be any error in his conscience and in his judgment 
 by any of the causes contained in the said 15th chapter of 
 the said first dialogue, or otherwise, he is bound to reform 
 it. And that he is bound to more than any other judge ; 
 for other judges may some time give judgment against 
 their own knowledge, and also against the truth, and yet 
 
 * It should be remembered here, that our author wrote before making of 
 the statutes of 32 and 34 and 35 of lieu. S. for which the power of devising 
 land commenced. Indeed before those statutes there was an indirect mode 
 of devising land through (he medium of trusts- But it seems from our 
 author's doctrine, that this evasion was only endured where the testator 
 previously to his will had actually parted with the legal estate to a trustee; 
 and consequently that the refinement of considering the heir as a trustee 
 was not then established in our courts of equity. See the preamble to the 
 statute of u es ot 27 lien. 8, and the clause in it in favour of prior wills, 
 and also l)y. 143. — Editor.
 
 382 Suits in Chancery 
 
 no default to be in them, as it is in all trials, except death 
 of man, where they may not give judgment against their 
 own knowledge ; but the chancellor shall never be bound 
 to give judgment against his own knowledge, nor against 
 that that appeareth evidently to stand against conscience, 
 for no manner of trial. And though some men may be 
 deceived through a scrupulous conscience, or an erroneous 
 conscience, or in such other manner, yet it is not to pre- 
 sume, that the chancellor, who is always appointed to his 
 office by the king as a man of singular wisdom and good 
 conscience, will be deceived by such errors in conscience, 
 having such straight rules to the order of his conscience as 
 he shall have. And so methinketh it is not against the 
 common weal of the realm, though such cases as writs of 
 subpoena lie upon, be committed only to the judgment of 
 the chancellor. 
 
 Also another objection that he layeth to the Student is 
 this. He saith, that the law of the realm is a sufficient 
 rule to order you and your conscience what you shall do 
 in every thing, and what you shall not do. If you there- 
 fore follow the law truly, you cannot do amiss, nor offend 
 your conscience, nor you shall not need to leave the law for 
 conscience : by which saying it seemeth, that it is in vain 
 in any case to sue by subpoena, as though a man should 
 never have help by conscience where he could have none 
 by law. — And to this saying it may be answered thus, that 
 if he take the law of the realm as a law grounded upon the 
 law of reason and the law of God, with the customs and 
 maxims of the law ordained by the realm, I think well that 
 (as he saith) the law of the realm will be a sufficient rule 
 to order a man and his conscience what he shall do. But 
 yet it will not always give him remedy, when he hath right, 
 as appeareth in the 2d chapter and the 3d, and also the 7th 
 chapter of this present book. And after this law it is that 
 the judges reason when they sit with the chancellor in the 
 chancery, and also when they sit upon arbitrements. And 
 if he that made the same treatise take the law of the realm 
 as a law grounded upon the maxims and customs and the
 
 By Subpoena. 383 
 
 rules of the law, and according to the process, as is used 
 in the king's bench, common pleas, and such other courts 
 of record as be commonly taken for courts of the common 
 law, I suppose that he will not say, that the law of the 
 realm so taken is sufficient to order him and his conscience 
 in all things ; and if he do, methinketh he erreth greatly 
 therein ; and that may appear in divers cases, whereof some 
 be put in the same 7th chapter, and some shall hereafter 
 appear. If an infant of the age of 20 years sell his land 
 for £100, I suppose also he buyeth land with the same 
 money of greater value than his own land was : in this case 
 by the law he may enter again into his own land ; yet the 
 other shall have no remedy against him by the law of the 
 realm for the said £100. I think that no man will say that 
 [the] infant may with conscience both retain the land and 
 the £100 also ; and, yet the law will suffer him to do it if 
 he will. Also in all cases where a man hath right and is 
 estopped by some record or otherwise, so that he therefore 
 can have no remedy by the law to recover his right, vet may 
 not he that doth him wrong, retain that [which] he keepeth 
 wrongfully from him, with conscience: and vet if he will 
 the law will not prohibit him the contrary, and therefore he 
 must there of necessity be ruled after conscience if he will 
 be saved. Also if a man owe another an £100, and the 
 debtor by sudden loss on the sea, or by fire, or such other 
 casualties loseth all that he hath, in this case the debtee by 
 the law may recover his debt, and thereupon take a capias 
 ad satisfaciendum and lay the debtor in prison, there to re- 
 main till he hath paid the debt, without any help that he 
 shall have in the law. And yet I suppose that he that hath 
 made the said treatise will not say, that if the debtee know 
 perfectly that the debtor lost his goods by such casualty, 
 and not through his own fault, and that he hath nothing left 
 to pay him with, that he may in conscience keep him still 
 in prison ; for if he do, I suppose verily, he saith as he 
 would not be done to. And therefore it is £ood always to 
 use the law, with a dread that he offend not his conscience, 
 in executing all that he may do by the general rules thereof,
 
 384 Suits in Chancery by Subptena. 
 
 as he may undoubtedly do, and yet the law in itself to be 
 good, as it will appear in the 16th chapter of the said first 
 dialogue. 
 
 Also another objection is this. He saith to the Student, 
 that he marvelleth much, that the Student will say that men 
 that have wrong, may be helped by a subpoena in many 
 cases, in as much as he saith there are in Natura Brevium 
 several writs and of divers natures for the reformation of 
 every wrong, that is done or committed contrary to the laws 
 of the realm ; and in all the Natura Brevium, as he saith, 
 there is no writ called a subpoena, nor yet that the nature 
 thereof is not there declared, as there is of all the writs 
 specified in the said book : and so it seemeth that his mean- 
 ing is, that because a subpoena is not in JYatura Brevium, 
 therefore there should be no such writ. And this should 
 seem to be but a slender objection. For the said book is 
 not taken of such authority, that all things that is in it is 
 clear law, nor that it is not so perfect that all writs that 
 pertain to the law should be contained therein. And there- 
 fore I suppose that it will be hard to find in JValura Bre- 
 vium, where an action upon the case or a writ of forcible 
 entry lie ; and so I suppose it will be of divers other 
 actions upon statutes if it were thoroughly searched. 
 
 And so I think, that the said objections be but of small 
 strength and of small effect to prove that a subpoena may 
 not lie in some cases. 
 
 FINIS.
 
 INDEX. 
 
 Abatement : If an action real be sued against any man that has nothing 
 in the thing demanded, the writ shall abate, 32. 
 But not by alienation of the tenant hanging the writ, 32. 
 Nor by his being made a knight, 32. 
 Nor by a woman's taking a husband, pendente lite, 32. 
 But if demandant or plaintiff enters into the thing demanded, hanging 
 the writ, it abates it, 33. See Formedon- 
 Abbots: Abolished, 32, 209. 
 Accessary : How accessaries shall be tried, 32. 
 
 Action : If John at Stile lets a chamber to Henry Hart, and it is agreed 
 that said Henry should go to board with said John, and said Henry 
 to pay for the chamber and boarding a certain sum, etc., this is properly 
 called a concord, and an action lies, 174. 
 If a man says to another, heal such a poor man of his disease, or make 
 an highway, and I will give thee thus much, an action lies, and there 
 is no occasion for the promise to be in writing, 177. 
 But if two come to a shop, and one of them contracts for goods, and the 
 seller does not care for trusting him, whereupon the other says, let 
 him have them, and I will undertake he shall pay you- This is an 
 agreement within the statute, and must be reduced inlo writing, in 
 order to ground an action, 17S. 
 If a man says to another, fast for me all the next Lent, and I will give 
 
 thee 20/., and he performeth it, an action lies, 17S. 
 And likewise if a man says to another, marry my daughter, and I will 
 give thee 20/., an action lies, but the promise must be in writing, 17S. 
 No action lies upon a decree made by convocation, 318. See Nudum 
 factum and Pro::iise. 
 Administrator : Shall have goods and chattels, 21. 
 Must pay debts according to the common law, 225. 
 
 May be charged to him that can first get his judgment against him, 225. 
 Aicl : Writ of, fallen into disuse, 13S. 
 Alien: How the sons of an alien shall inherit, 20. 
 
 Amerciament : For amerciament in a leet, the lord may distrain, 126. 
 But for amerciament in a court baron he can not distrain, unless by 
 prescription, 126. See Debt and Distress. 
 Annuity : For an annuity a writ of annuity is the proDer action, S7. 
 Is not assets, 88- 
 
 25 • (385)
 
 386 Index. 
 
 Is no freehold, S8. 
 Cannot be put in execution, 88. 
 Nor be entailed, 88. 
 Appropriation, 309, 310- 
 Attainder : Of the son the land shall escheat that the fa'iher hath, though 
 
 he has other sons, 28 • 
 Attaint ; How far in use, 51. 
 Attornment : To tenant for life is attornment to him in reversion, 160. 
 
 Now almost rendered unnecessary by statute, 160. 
 Bailiff: What acts of a bailiff of a manor are good, and what not, 235. 
 Bailment : How a man shall be charged upon bailment, or finding the 
 
 goods of another, 220. 
 Bastard and Bastardy : Is he who is born before espousals, 20. 
 Cannot inherit, 20. 
 
 If a man is certified bastard by the ordinary, he is bound by that cer- 
 tificate, because it is the highest trial of bastardy, 116. 
 But if bastardy is laid in one that is a stranger to the writ, the bastardy 
 shall be tried by twelve men, by which he in whom the bastardy is 
 laid shall not be concluded, because he can not have an attaint, 116. 
 Father may leave goods to his bastard, 247. 
 
 If a man give all his lands and goods to his children, whether a bastard 
 shall have any part, 247. 
 Benefice: Patron shall have six months to present to a benefice, 199. 
 
 From what time the six months shall be accounted in case of death, cre- 
 ation, cession, resignation, deprivation, or union, 199. 
 There can be no union of a benefice 'but the patron must have knowl. 
 
 edge, 199. 
 A benefice is void when a parson is made a bishop without a com- 
 
 mendam, 216. 
 So if a parson accepts another benefice without a licence, 216. 
 Or resigns, 216. 
 
 Or is deprived, 216. See Presentation. 
 Benefit of Clergy : How it stood at common law, and how it stands at this 
 
 day, 93. 
 Billa vera : The effect of, 276, 277. 
 
 Bishop : Bishop may examine the ability of the incumbent; and if he find 
 him by examination not able to have cure of souls, he may then refuse 
 him, and the patron must present another; and if he is able, then the 
 bishop must admit and institute him, 1S9. 
 Of what goods a bishop may make a gift or bequest, and of what not, 
 222. 
 Borrower and Lender: If a house by chance fall upon a horse that is bor- 
 rowed, who shall bear the loss, 219. 
 Bulls: No bulls can be brought from Rome, 214. See Excommunication. 
 
 Capias ad satisfaciendum., where it lies, 30, 
 Chancery : Cannot examine a judgment at law, 50. 
 But if unfairly obtained, may prevent any advantage being taken of it, 51.
 
 Index. 387 
 
 Chancellor Is made by delivering the great seal to him, and taking an 
 
 oath to serve the king and his people faithfully in-his office, 19. 
 Challenge Where a challenge may be taken on defatdt of hundredors, 24. 
 How many jurors ma}' be challenged upon an indictment or appeal, 29. 
 Charitable Use: What disposition shall be good as a charitable use, 223. 
 Church, 245, 246. 
 
 Civil Lata : In the civil law, if a man have another's goods with a title 
 three years, thinking he has right to them, it gives him a title, 68. 
 What cedere bofiis i*, 84. 
 Clausum f regit : Where it lies, 30. 
 
 Clergyman : How a man may be punished for laying violent hands upon 
 a clergyman, 202. 
 Is bound to contribute to parliamentary or parochial impositions, 246. 
 Ecclesiastical court can not award damages for beating a clergyman, 315. 
 Habits of, 316. 
 
 Can not be impannelled upon a jury, 329. 
 But may be joined with laymen upon a writ to enquire de jure patron- 
 
 aius, 330. 
 Or in mandates for inquisitions to be made of dilapidations, 330. 
 Condition : If a man enfeoffs another in fee, upon condition that he shall 
 not alien, the condition is void, 65, 86, 210. 
 So if he devises in fee upon condition that the devisee shall not alien, 65. 
 No man shall take advantage of a condition but he who is party or 
 
 privy, 159. 
 If a feoffment is made upon condition that the feoffee shall pay rent to 
 a stranger, if the rent is not paid, the feoffor may re-enter by virtue of 
 the words upon condition, 161. 
 If a condition is broken, it is lawful for the feoffor to re-enter, by which 
 
 re-entry he disproves all mesne acts, 20S. 
 If there is a condition upon a gift in tail that the donee shall not alien 
 by feoffment in fee or fine at common law, the condition is good, 211. 
 So a condition that is made to restrain mortmain, is good, 211. 
 So a condition which restrains alienation to a particular man is good, 
 211. 
 Colour : Giving of colour, why it is, and to what purpose, 269. 
 Contract : To make a good contract, there must be quod pro quo, 178. See 
 
 Nudum pactum. 
 Copyhold : Sprung from villainage, 155. 
 Custom is the life of a copyhold, 155. 
 Is held at the will of the lord, according to the custom of the manor. 
 
 156. 
 While the services are performed, copyholds have a sure estate, 156. 
 Cosenagc : Writ of, fallen into disuse, 140. 
 Counsel: For prisoners on an indictment or appeal, 256. 
 Court Baron : Incident to every manor, 19. 
 County Court: Is in every shire, iS. 
 
 Court of King's Bench : Chief Justice of, is made by writ, 18. 
 Court of Piepowders : Incident to a fair and market, 19.
 
 388 Index. 
 
 Court Spiritual: May hold plea of a temporal thing, but must judge af- 
 ter the temporal law, 1S6. 
 
 Cannot award damages, 202. 
 
 A suit will be there for calling another whoremaster, a cuckold, or a 
 cuckoldy knave, or for calling a woman a whore (except in London 
 and Southwark) a jilt, a strumpet, a bawd, 324. 
 
 So likewise lor calling a clergyman an adulterer or an heretick, 324. 
 See Clergyman, Prohibition, and Mortuary, and Perjury. 
 Curtesy by Tenant: A man shall be tenant by the curtesy of a fee simple, 
 fee tail general or special, 21. 
 
 Must have a child by his wife, 21. 
 
 A man shall not be tenant by (he curtesy of his wife's land, unless she 
 has possession in deed, 143. 
 
 But he shall be tenant by the curtesy of a rent, though his wife die be- 
 fore the day of payment; and likewise of an advowson, though she 
 die before the avoidance, 143. 
 
 £hi. Whether he shall not be tenant by the curtesy, notwithstanding the 
 advowson becomes void during the coverture, and the wile (.lies 
 after the six months past, and before any presentment by the husband, 
 and the ordinary presents by lapse, 143. See Waste, Presentation, and 
 Trust. 
 Custom: Against God's law is void, 15. 
 
 Cannot be changed or altered without the aid of parliament, 19. 
 
 Of borough English, what, 35. 
 
 Cannot break a positive law, 243. 
 Custom of London : By the custom of London, freemen by their testament 
 inrolled may bequeath their lands to whom they will, except to mort- 
 main ; ar.d if they are citizens, may bequeath them to mortmain, 35. 
 Damages: If tenant for term of life is disseised, and die, and the dis- 
 seisor dieth, and his heir enters and takes the profits; and after the 
 reversioner recovers the land against the heir, he can recover no 
 damages, 139. 
 
 P"or breaking pound the distrainers shall recover treble damages if the 
 beasts are impounded for rent, 192. 
 Debt : Lies against a gaoler for an escape, 229. 
 
 Lies for an amercement in a court leet, ic6. 
 Dcodand : Deodand is forfeited to the king, unless lords of franchises are 
 
 intitlcd to it by grant, no, 266. 
 Descent: By the laws of descent, the eldesl son is only heir to his ances- 
 tor, 19. 
 
 And if no sons but daughters, then all the daughters are heirs, 19. 
 
 So if sisters and others kinswomen, 19. 
 
 Lands cannot ascend from son to father or mother, nor any other an- 
 cestor on the right line, 19. 
 
 How brothers shall inherit each other, 20. 
 
 How the inh iritance shall be when the ancestor takes by descent or 
 purchase, 20. 
 
 He that makes continual claim shall not be barred by a descent cast, 47.
 
 Index. 389 
 
 Disagreement: A bishop of a devise or remainder that is made to him and 
 
 the dean and chapter, may not disagree without tl : 206. 
 
 Nor can a dean of a devise or remainder made to him and the chapter, 
 
 204. 
 Nor can the ma ter of a college <>f a dey i e to him and his brethren dis- 
 free withoul th i bi thren, 205. See Bishop- 
 Disciit : It seems that if a counsi llor gives counsel which he knows to bo 
 
 wrong, he is liable to an ■ '■'■ 157. 
 
 Disclaimer: [fthe d :an will disclaim in the lands that he has by devise 01 
 remainder, that disci timer without the chapter is void, 205. 
 And it" a master of a college will disclaim in the lands that he has by 
 
 devise or remainder without, the brethren, it is void, 205. 
 But the dean may refuse to take a gift or grant of lands or goods, or of 
 
 a reversion made to him and the chapter, 205. 
 On a praecipe quod reddat, 207. 
 Desseisin: \\ hat till i r has, 32. 
 
 If a disseisin is made to another man's use, he to whose use the disseisin 
 is made hath nothing in the land, nor the disseisor till he agree, 204. 
 Distress : May be for rent reserved upon a gift in tail, lease for life, j'ears 
 or at will, 23. 
 May be ot" the beasts of a stranger, 23. 
 Cannot be taken on an obligation or contract. 122. 
 
 May be taken for damage feasant, and if reasonable tender of amends is 
 made by the owner before the beasts are impounded, and the distrainer 
 accept it, he is not bound to restore, 12 (.. 
 A man may distrain for real service, suit of court fealty, and relief, 23, 
 
 No distress can be taken for rent but by him who has the reversion, un- 
 less a distress is expressly reserved, 23, 125. 
 
 No distress can be for rent reserved on a lease for years, after the de- 
 termination of the lease, unless the distress is made six months after- 
 wards, and during the continuance of the landlord's title, and the pos- 
 jion of the tenant from whom the arrears are du '. 120 
 
 If a township is amerced, and the neighbours assess a sum certain upon 
 
 everj tant, and agree, that if it is not paid by such a day, that 
 
 tain persons shall distrain at such a day, the distress is lawful, 1:7. 
 
 If a man make- a -2, i 1 1 in tail to another, reserving fealty ami certain 
 rent, and alter he grants away the fealty, reserving the rent and rever- 
 sion to himself, he may distrain for the rent. 127. 
 
 A distress may be lor a rent seek. 127. 
 
 And it' rent is assigned, to make a partition or assignment of dower 
 ;al, a distress may be taken for il, 127. 
 
 A man cannot distrain in the night but fir damage feasant. 127. 
 
 No distress of cattle can be driven out of the hundred where it is taken, 
 unless to a pound overt in the same county, within three miles distance, 
 191. See Amerciament. 
 Dower: Wife in titled to one-third o( the husband's inheritance for her 
 (.lower, 22, 82.
 
 390 Index. 
 
 May be of a seisin in deed or law, 143. 
 
 Wife must be of the age of nine years at the death of her husband, 21. 
 
 By the common law, a woman was not intitled to damages in dower, 139. 
 
 But they are now given by the statute of Merton, 139. 
 
 Immediately after the death of her husband, the widow ought to have 
 her dower if she ask it, 139. 
 
 She is intitled to costs, as well as damages, 139. 
 
 Can recover damages from the death of the husband only where the ten- 
 ant cannot say that he is and hath been ready to yield dower, 141. 
 See Trusts and Gavelkind. 
 Easter : Feast of, when it shall be celebrated, 322. 
 Escheat: If there is no heir general or special, the land escheats to the 
 
 lord, 19. 
 Estopfle : Where it will bind, and where not, 55. 
 Exchequer : No officer of the exchequer shall put any clerk under him but 
 
 such as he will answer for, 230. 
 Excommunication ; Is no plea in a qui tarn, 15. 
 
 He who is excommunicated for a wrong, if he is able to make satis- 
 faction, ought not to be assoiled, unless he does satisfy, 201. 
 
 But if he is not able to make amends, he must be assoiled, if sufficient 
 caution is taken to satisfy, 201. 
 
 A man cannot be excommunicated for debt or trespass, 201. 
 
 In what case the king may write to the spiritual judge, commanding 
 him that he make the party his letters of absolution, upon pain of 
 contempt, 202. 
 
 For a wrongful excommunication, prozmunire lies, or the spiritual judge 
 may be punished by an action upon the case or an indictment, 202. 
 
 Where the spiritual court ought to make absolution without any satis- 
 faction, 202. 
 
 A man may be excommunicated for not inclosing the church yard, or not 
 repairing the church, 202. 
 
 In what case an action will lie for refusing to make the party his letters 
 of absolution, 203. 
 
 The law will not suffer an excommunication to be certified under the 
 pope's bull, 214. 
 Executor: Intitled to goods and chattels real and personal, 21. 
 
 Not answerable for the trespass of his testator, 128. 
 
 Must pay funeral expenses before all other things, 129. 
 
 Has the whole disposition of the goods of the testator, 130. 
 
 Has authority to recover all debts due to the testator, 132. 
 
 Where debts are in equal degree, must pay him that can first obtain 
 judgment, 131. 
 
 Has a power to delay actions by essoin, imparlance, or dilatory plea, 
 
 Is guilty of a devastavit if he pays legacies before lawful debts, 132. 
 Cannot pay a debt upon an obligation whereof the day is yet to come 
 before one that is past; but if he to whom the debt is owing forbear
 
 Index. ^oj 
 
 till after the clay of the other obligation is past, then he may pay him 
 without danger, 132. 
 May bear a lawful but not covenous favour to a creditor, 132. 
 Is now liable to pay debts upon simple contract, 135. 
 Should be careful how he pays legacies where his testator dies much in- 
 debted, without taking security to refund, or putting himself under the 
 direction of a court of equity, 13^. 
 Damages recovered in an action are but a chattel, and go to the ex- 
 ecutor, 137. 
 The coat armour, shield and sword, and such things as are set up at the 
 burial of a nobleman, belong to the executor, 306. 
 Fair: By a contract made in a fair, the property is altered except in cer- 
 tain cases, 67. 
 Fealty: Cannot be severed from the reversion, 127. 
 Felony: To steal to the value of i2r/, or above, is felon v, 29. 
 Feoffment: A freehold cannot pass by feoffment without livery of seisin on 
 the land, or in sight of it, 22. 
 A feoffment of two acres of land lying in two counties, and livery 
 only of one in the name of both, the acre only passes of which the livery 
 is made, 172. 
 But it had been otherwise if both acres had been in one countv, 57. 
 And if the scite of a manor extends into two counties, and livery is only 
 made of that part which lies in one county, yet the whole manor 
 passes, 57. 
 
 By a feoffment of a manor, the advowsons pass as incidents, 57. 
 
 But in the case of the king they do pass, unless they are expressly 
 
 named, 57. 
 By a feoffment to two men and a woman in fee, and the intermarriage 
 
 of one of the men with the woman, and the alienation and death of 
 
 the husband, the woman only intitled to one-third, 159- 
 But if the intermarriage had been before the first feoffment, then the 
 
 woman, notwithstanding the alienation, would have been intitled to a 
 
 moiety, 59. 
 
 If a man makes a deed of feoffment to another, and deliver the deed to 
 him as his deed, he to whom the deed is delivered has no title before 
 livery of seisin made to him, but he may occupy at the will of the 
 feoffor, 172. 
 Now almost superseded by lease and release, 22. 
 Fee Simple : In the highest estate in law, 210. 
 /'. es : For probate of a will, 337. 
 Ficrc Facia* : Where it lies, 30. 
 
 Fine: At common law a stranger had only one year after a fine levied to 
 make their claim, 66. 
 Has now five years, 66. 
 
 An entry to avoid a fine must be an actual entry, 66. 
 
 If a feme covert for dread of her husband, or by compulsion of him 
 levy a fine, yet the woman after her husband's death shall not be ad- 
 mitted to avoid the fine, 263.
 
 39 2 
 
 Index. 
 
 Forcible Entry : For forcible entry without title, a man may recover treble 
 
 damages, and treble costs, 36. 
 Forfeiture : If a man is outlawed for felony, he forfeits real and personal 
 estate to the lord, 2S. 
 Goods stolen and seized for the king, or waived, ai-e forfeited to the king, 
 
 unless an appeal or indictment is sued, no. 
 Of life, lands, and goods, for murder, 227. See Outlawry. 
 Formedon: If tenant in tail is disseised, and the disseisor dies seised, the 
 heir may bring a formedon, 54. 
 No damages in a formedon, 54. 
 In formedon, if plaintiff does not make himself heir to him that was last 
 
 seised, this maj' be pleaded in abatement, 121. 
 Now seldom brought, 54. 
 Framk Fees : Land which is frank fee is not pleadable in a court of ancient 
 
 demesne, 106. 
 Freehold : How it will pass, 22. 
 
 Gaols: Gaols shall be adjoined to the shires, and the sheriff shall have 
 the keeping of them, and must put in such under-guardians for which 
 they will answer, 230. 
 Gavelkind: By the custom of gavelkind, all the brethren shall inherit to- 
 gether, 34, 56. 
 And if the father is hanged for felony, the sons shall inherit, but not if 
 
 he is hanged for treason, 35. 
 In gavelkind the wife shall have half the husband's land, as her dower 
 
 while she remains sole, 35. 
 And the husband half the inheritance of the wife, though he have no 
 
 issue, 35. 
 By the custom, an infant of the age of fifteen may make a feoffment, 35. 
 Divers lands disgavelled in Kent, 56. 
 General Issue : In assise, what, 270. 
 In trespass, what, 270- 
 
 No plea can be pleaded which amounts to the general issue, 270. 
 Gift: If a gilt is made to a man who refuseth to take it, the gift is void, 
 204. 
 And if it is made to a man who is absent, the property vests in him till 
 he disagrees, 204. 
 Grants: If donor grants to donees in tail that they shall not be punishable 
 
 in waste, it is void, 103. 
 Goods Derelict : If goods are found which were left by the owner as for- 
 saken, who hath right to them, 267. 
 Heir: May have goods by custom, 225. 
 Who is, 19. 
 
 It' the father bind him anil his heirs to the payment of a debt, and die, 
 in that case the son shall not be bound to pay the debt, unless he hath 
 ets by descent from his father, 261. 
 Where a man is vouched as heir, he may enter, as he that hath nothing 
 by descent, 262.
 
 Index. 393 
 
 Heretich and Heresy : An heretick cannot make executors, 195. 
 May l)f punished by ecclesiastical censures, [95. 
 And if an heretick in maintenance of li is errors sets up conventicles, 
 
 and raises factions, he may be indicted, 195. 
 Denying the Trinity is an heresy which maybe punished by the civil 
 magistrate, 196. 
 Heriot : For heriot service, the lord may distrain or seize, 127. 
 
 But for heriot service he can only seize, 127. 
 Hospitals : Ordinaries to enquire of hospitals unless there are visitors ap- 
 pointed, 339. 
 Hundreds: To be adjoined to the counties, 231. 
 
 And if the sheriff holds them in his own hands, he must put in such 
 bailiffs for which he will answer, 232. 
 Husband and Wife: Husband absolutely intitled to chattels personal of 
 his wife by the intermarriage, 21. 
 And her chattels real, if he survives her, 21, 
 
 But if he gives them away, the interest of his wife is determined, 21. 
 If the wife disagree to a gift, and the husband agree, the gift is- good, 
 
 205. 
 If lands in case of a husband and wife are charged with damages, or 
 charged with more rent than the land is worth, and the husband dies, 
 the wife shall not be saddled with the damages or rent, if she refuse 
 the occupation of the ground after her husband's death, 205. 
 And if the husband outlive the wife, and make his executors, and die, 
 the executors may refuse the lease if they have not goods sufficient to 
 pay the rent, 206. 
 Whether the wife may give away goods, 244. 
 Whether a gift between husband and wife is good, 245. 
 Indictment : Wanting what words, good, 276. 
 Infant : Shall not he barred by a descent cast, 47. 
 The feoffment of an infant is not void, but voidable, 61. 
 The age of an infant, to give or sell his land, is twenty-one, 193. 
 But he may be charged for his meat, drink, or apparel, before that age, 
 
 193- 
 
 May act as executor at seventeen, 193. 
 
 Is not of age in the civil law till twenty-five, 193. 
 May disagree to a gilt, 205. 
 
 Where he shall be excused of corporal pain, 251. 
 Is punishable for an escape, 251. 
 
 Is supposed to arrive at years of discretion at fourteen, 2^2. 
 Bui may he capax doli before, 252. 
 Insolent Debtors: Statutes relating to. 85. 
 
 Intent : In many cases is void, if it be not according to the rules of law, 
 
 159- 
 
 A man makes a feoffment by deed indented, by which it is agreed that 
 
 the feoffee shall pay to A. B. and his heirs a certain rent at certain 
 
 days; and if he pay not the rent, then it is agreed, that A. B. or his
 
 394 Index. 
 
 heirs shall enter. A. B. shall have his rent by the intent of the feoffor, 
 but he cannot enter into the land, 165, 167, 170, 173. 
 In felony or murder, how punishable formerly and at this day, 226. 
 Is punishable in treason, 226. 
 Issues : If a man that has land for life is impanelled upon an inquest, and 
 loseth issues, and dies, they may be levied upon him in reversion, 62. 
 Joint Tenants: If one joint tenant receives more than his share of the 
 
 profits, the other may have an account against him, 53. 
 Jointure : Tenant in tail may suffer a recovery in order to make a jointure 
 upon his wife, S3. 
 What alienation by the wife against the statute n H. 7, c. 20, of jointures 
 
 is good, 89. 
 And if the husband forfeits issues, and dies, they shall be levied on the 
 lands of the wife, 63. 
 Judges Spiritual : Are bound to take notice of the common law, 17, 182. 
 Judgment : Of death, where it must be precisely pursued, and where not, 
 
 227. 
 Jury: In civil cases must come from the body of the county, 23. 
 Cannot determine what is a maxim of law, 25. 
 Must not be of affinity to the parties, 23. 
 May eat, when, and at whose charge, 26S. 
 When they may be fined, 269. 
 When a new inquest shall be awarded, 269. 
 Jus Gentium: Contracts are grounded upon the law that is called jus gen- 
 tium, 61, 171. 
 King: His coronation oath, 18. 
 
 The king can disseise no man, and no man can disseise the king, 30. 
 The head in every parliament, 72. 
 
 The king, as lord of the narrow seas, is bound to scour the seas of pirates 
 and robbers, 26S. See Presentment and Prerogative. 
 Knight Service: Abolished, 26. 
 
 Larceny: To steal under the value of lid. is only petit larceny, 29. 
 La-vs : Are of four kinds, Introd. 2. 
 Eternal, what, 3. 
 
 Eternal are the fountain of all other, 3. 
 Eternal may be known three ways, 4. 
 Of reason and nature, what and what not, 4, 5. 
 Of God, what, and why so called, 7, S. 
 Of man, what, and why so called, 10. 
 Common, what is said to be, 18. 
 Legacies: To be sued for in the spiritual court, 182. 
 
 Livery and Seisin: A term of jears will pass without livery and 
 seisin, 23. 
 Where a court of equity will supply it, 62. 
 Marlebridgc : Statute of, a remedial law, as well as a penal one, 103. 
 Mass: Forbid to be said or heard, 221. 
 
 If a man gives money to have mass said for him, it is a superstitious be« 
 quest, 221.
 
 Index. 395 
 
 Master and Servant : Master is chargeable by the act of his servant, and 
 where not, 233, 243. 
 Shall not answer for the servant'-, beating of one, 233. 
 Shall answer for things bought by his servant, and where not, 234. 
 Shall answer for things sold by his servant, and where not, 234. 
 If a fire happens in a man's house through negligence of a servant, 
 such servant shall forfeit iool- or be sent to the house of correction, 
 
 234- 
 
 And if the servant bear fire negligently in the street, and the house of 
 
 another is burnt, no action lies against the master, 234. 
 A man shall not be charged for his servant's robbing the chamber of a 
 
 lodger, unless he is a common hostler, 234. 
 Master's goods are not attachable for his servant's debts, 236. 
 A man may have an action against another for retaining his servant 
 after notice, 254. 
 Market Overt: Changes the property of things, where not, 254. 
 Maxims of Law : Neighbours are presumed to know the deeds of neigh- 
 bour-, j 4. 
 Ignorance of the law excuses no man, except it is invincible, 77. 
 A common error maketh a right, 77. 
 The law compels none to impossibilities, 114. 
 
 lie who take- the advantage must likewise take the disadvantage, 114. 
 A mischief should be suffered rather than an inconvenience, 116. 
 No time runneth against the king, 215. 
 Malice supplies the want of age, 2^2. 
 Metropolitan : If it come in variance, whether he that is presented be able 
 or not, it shall be tried by the ordinary; but if he is party, by the me- 
 tropolitan, 1S9. 
 Mort d 'ancestor : Formerly in use, but cannot now be brought, 137, 13S. 
 Mortmain: Statutes relating to, 200 
 Mortuary: To be sued for in the spiritual court, 297. 
 
 Murder: If a man who is no officer would arrest a man who is outlawed, 
 abjured, or attainted of murder or felony, and he disobeys the arrest, 
 and by reason of the disobedience is slain, the other is not guilty of 
 murder, 22S. 
 But if a capias is directed to the sheriff to take a man in an action of 
 debt or tie-pass, there no man mar take him, but he who has au- 
 thority from the sheriff; and if any man attempts, of his own au- 
 thority, to take him, and he resisted, and in the resistance is slain, he 
 that would have taken him is guilty of murder, 22S- 
 Whether a man sh .11 be said guilty of murder by commandment, counsel 
 or assent, 24s. 
 Mute : How a man was formerly punished for standing mute on an appeal 
 
 and indictment, and how he is to be dealt with at this day, 227. 
 Night: Is after sun-set, and before sun-rising, 1:;. 
 
 Nudum pactum : If a man says to another man. I sell thee all my lands or 
 goods, and nothing is assigned that the other shall give or pay, it is a 
 nude contract, 175.
 
 39 6 
 
 Index. 
 
 And where a man promises another to give him certain money such a 
 day, or to huild an house, or to do him certain service, and nothing is 
 assigned for the money, for the building, or the service, these are nude 
 contracts, 175. 
 Also if a man promises another to keep him such certain goods safely 
 to such a time, and after he refuse to take them, there lieth no action 
 against him, 175. 
 But if he takes them, and they are lost through his negligent keeping, 
 there action lieth, 175. 
 Obligation ; An obligation cannot be avoided by a bare promise, 3S. 
 If a man is bound in an obligation to repair the houses of him that he 
 is bound to, by such a certain time as oft as need shall require, and 
 after the houses have need to be repaired, but he who is bound knows 
 it not, that ignorance shall not excuse him, 254. 
 Ordinary: May commit administration of him that dies intestate, 224. 
 
 Where he may grant letters ad colligendum bona defuncti, 225. 
 Outlawry: What a man forfeits by outlawry in a personal action, 107. 
 
 The process in outlawry, ioS- 
 Parish : Parishes, division of, 332. 
 Parliament : The highest court in the realm, 73. 
 Parson : Of what goods a parson may dispose, and what not, 222. 
 Penance: Money may be taken as a commutation for corporal penance; 
 and if it is not paid, a suit may be instituted for it in the ecclesiastical 
 court, 315. 
 For defamatory words, penance is enjoined at the discretion of the or- 
 dinary, 325. 
 Pension : If gut by prescription, must be by a prescription time out of 
 mind, 306. 
 Pension claimed by prescription, how to be sued for, 325. 
 Perjury : If a man wages his law untruly in an action of debt upon a con- 
 tract in the king's court, he cannot be sued for the perjury in the eccle- 
 siastical court, 1S1. 
 Pope: His power destroyed, iSS, 217, 21S, 24S. 
 
 Pound Overt : A pound overt i every place where beasts maybe put in 
 lawfully, not making the owner an offender for being there, 191. 
 If the owner of the beasts break the pound, the distrainer may have a 
 writ of pound breach, or an action upon the case, 193. 
 Prerogative: The king by his prerogative is lord paramount of all the 
 
 benefices within the realm, 213. See Presentation. 
 Prescription : No prescription in lands makes a right, 27. 
 But a prescription tor rent and profits out of land does, 27. 
 A prescription is from the time no man's mind runneth to the con- 
 trary,. 27. 
 If a be that if he find any -noil within his manor that he 
 
 shall have tin in as his own, the prescription is void, 267 
 Of a country non decimando is good, where not, 2S4. 
 A single, man in a town cannot prescribe to be discharged of the tithes
 
 Index. 397 
 
 of corn and grass, unless he can prove that he recompenseth it in an- 
 other way, 28 |. 
 
 piritual court allow.-, of different times in creating a prescription, 
 
 305. See Statute. 
 Presentatidn : The right of presentation to a church is a temporal in- 
 heritance, 1S9, 215. 
 It there be joint tenants, or tenants in common of the patronage, and 
 
 they vary in presentment, the ordinary is not bound to admit any 
 
 of their clerks; and if six months pass, he may presenl by lapse, but 
 
 he may not present within six months, 197. 
 If there be coparceners, the ordinary is bound to admit the clerk of the 
 
 eldi 1 ister, 197. 
 And if the 1 nee may present, and so may her 
 
 husband, w\m is tenant by the curtesy, 197. 
 But at the next avoidance the next sister shall present, and so by turns 
 
 one sister after another, 197. 
 Parceners may agree to present by composition, 197. 
 What presentment the king shall have by his prerogative, 198. 
 Ordinary is not hound to admit the clerk of the eldest coparcener, but 
 
 where she presents in her own name, 19S. 
 A church is not litigious but where two present by different titles, 19S. 
 If the patron make default in presenting, the bishop shall present; and 
 
 if the bishop present not within six months, then the metropolitan 
 
 shall present; and if he neglects to present, then it shall go to the 
 
 king. 212. 
 If the church falls to the bishop by lapse, yet if the patron present 
 
 before the bishop puts in his clerk, then the patron shall enjoy his 
 
 presentment, 212. 
 So likewise if it falls to the metropolitan, 213. 
 The right of presentation, and when a church shall be said to be void, 
 
 belongs to the king and his laws to determine, 216. 
 When the king presents not to a benefice the ordinary may put in a 
 
 deputy to serve the cure, 217. 
 Prohibition: Will lie where a man is sued in the spiritual court for tithe 
 
 of wood above twenty years' growth, 93, 278. 
 If an action is brought for breach of a promise in the spiritual court, a 
 
 prohibition will lie, 179 
 ' If a man bequeath to one another man's horse, and the spiritual court 
 
 thereupon maketh process to execute that legacy, a prohibition lies, 
 
 -97- 
 And if a man sell his land for 100/. and he is sued afterwards in spiritual 
 
 court for tithes of said \<ol. a prohil . 297. 
 
 Where a prohibition will not lie, although the spiritual court will not 
 
 allow a pi 1 
 Will nol lie t<> the ecclesiastical court when the executor of a parson is 
 
 sued there for dilapidations, 315- 
 Promise: A man can have no action upon a mule or naked promise, 17'.. 
 If a promise is made to an university or a city, the party making
 
 398 Index. 
 
 the promise shall not be bound by it if he intended not to be bound, 
 176. 
 If I promise another 10/. for that he has builded me an house, no action 
 
 lies, because the consideration is past, 179. 
 But if there had been a precedent request to build the house On the part 
 of him who made the promise, the action would lie, although the con- 
 sideration was executed, 179. 
 Purchaser : It seems that a purchaser for a valuable consideration will be 
 
 relieved in chancery against latent incumbrances, 149. 
 Purveyance : Abolished, 232. 
 3uare imp edit : If the incumbent is out of the realm, a quare itnfedit will 
 
 lie against him, 214. 
 Reasonable Part; When children are intitled to their reasonable part 
 within the city of London, province of York, and principality of 
 Wales, 225. 
 Receiver : Where the acts of a receiver shall bind, and where not, 235. 
 Rccoverors : May avow and justify, 75. 
 Recovery Common: The manner of suffering it, 6S. 
 
 It is a bar to the tail, on account of the supposed recompense, 69. 
 Is good in conscience, 69. 
 
 The origin of, supposed to be in the reign of Edward the Fourth, 76. 
 Has been countenanced by the judges, 76. 
 
 If disseisor makes a gift in tail, and the disseisee releases his right to 
 the donee, and a recovery is suffered against the donee, it is good, 81. 
 Cannot be suffered of an annuity, but may of rent, SS. 
 Release : Good, and where not, 27. 
 Religion : The disabilities attending entering into religion are taken 
 
 away, 245. 
 Remainder : If a man makes a release to another for term of life, and 
 after he confirms his estate for term of life to remain after his death to 
 another and his heirs, the remainder is void, 159. 
 But if a lease is made to a man for term of another man's life, and 
 after the lessor confirms the land to the lessee for term of his own life 
 the remainder over in fee, the remainder is good, 160. 
 No grant can be made but to him that is party to the deed, except it be 
 by way of remainder, 160. 
 Remitter : If land descends to him that has right to it before, he shall be 
 
 remitted to his better title if he will, 2 2 - 
 Rent: If land and rent come into one man's hand, the rent is extinct, 32, 
 
 153- 
 
 If rent is granted to a man in fee to perceive of two acres of land, and 
 after the grantor enfeoffs the grantee of one of the acres, rent is ex- 
 tinct, 146. 
 
 Cannot be granted without deed, 148 
 
 A rent charge maybe apportioned by the act of the party, 148. 
 
 Rent service may be apportioned, 148, 
 
 Where part of the land descends to the grantee of a rent charge, there 
 may be an apportionment, 151.
 
 Index. 
 
 399 
 
 A man by the common law may have remedy for rent by distress or as- 
 sise, 153. 
 Replevin : A man may have a replevin for taking a distress without 
 cause, 123. 
 Where boasts are impounded the owner may sue a replevin ; and if the 
 issue is found against the distrainer, he shall yield damages, i-ji- 
 Rescue: If a distress is taken without cause, the owner may rescue it be- 
 fore it is impounded, 123. 
 Reservation : No reservation of a rent can be without deed; and if a gift 
 in tail, or a lease for term of life is made, remainder over in fee, re- 
 serving a rent, the reservation is void, 126. 
 If cestui que use makes a lease for term of years, or for term of life, or a 
 
 gift in tail, reserving a rent, the reservation is good, 127. 
 A reservation of the profits, or any part of the profits, as the grass, wood, 
 etc., is void, 166- 
 Residence: Of clergyman is required by the canon common and statute 
 
 law, 336. 
 Restitution: Where it shall be made, 125, 243, 245, 247. 
 Return : In a writ of annuity against a parson, the common return is 
 quod clcricus est benejiciatus non habens laicum feodum ubi potest sum- 
 moueri, 215. 
 A bailiff of the lord of a franchise may be punished for a false return, 
 230. 
 Right of Action : Cannot be given or granted to any other but to the 
 tenant of the ground, or him that has the reversion or remainder, 27. 
 Serjeant at Law : Is sworn to give counsel according to law, 1 19. 
 Sheriff: Where the sheriff shall be amerced for a bad return by the under- 
 sheriff, 230. 
 Where he shall be punished or amerced for the wilful escape of the 
 
 gaoler, 230. 
 Cannot let his bailiwick or wapentakes to farm, 231. 
 But if he does, £>r. Whether he may be charged for the misdemeanour 
 
 of his servants, 232. 
 If upon summons in a praecipe quod reddat, the sheriff, upon informa- 
 tion of the demandant, summons the tenant in another man's land, 
 the tenant shall be excused. 255. 
 Statute: Against Cod's law, is void, 15. 
 Is made by king, lords, and commons, 35. 
 A prescription prevails not against a statute, 79. 
 
 Bui a statute which is in the affirmative may be prescribed against, 79. 
 So may a statute in the negative, which is in affirmance of the common 
 
 law, 79. 
 But a statute which is introductive of a new law cannot be prescribed 
 
 against, 79. 
 Many times the intent of the letter shall be taken, and not the bare 
 
 letter, S3. 
 But no intent can be taken against the express words of the statul 
 Statute de Donis : Said to be made from singularity and presumption, 72.
 
 4-00 Index. 
 
 Statute Merchant : When ordained, 231. 
 
 Statute Staple: When ordained, 231. 
 
 Strays ; If l:iey are proclaimed, are forfeited; if not claimed within a year 
 
 and a day, no, 266. 
 Tenant in tail after Possibility, etc. : Not punishable for waste by the 
 law, 101. 
 But may be restrained in equity from committing wilful and malicious 
 
 waste, 101. 
 Is in fact only tenant for life, 102. 
 If he aliens in fee by a forfeiture, 102. 
 
 If he makes default in a praecipe, the donor shall be received, 102. 
 If lands are given to a man and his wife, and the heirs of their two 
 bodies, and one dies without heir, the survivor is tenant in tail after 
 possibility, 104. 
 Theft: Of what theft may be committed, 247. 
 Tithes: Are not due of trees of twenty years' growth, 2S1. 
 Due by what law, 279, 2S0. 
 
 When they first began, and by whom they were first granted, 279. 
 Are of three sorts, pnedial, mixt and personal, 285. 
 Praedial, what, 285, 287. 
 Mixt, what, 2S5. 
 
 Of trees and grass, their diversity, 2S6. 
 Tithe of lambs does not discharge the payment of wool, for it is another 
 
 increase, 2S8. 
 Are payable by the buyer, not by the seller, 289. 
 Are not due of coal, or tin, except by custom, 292. 
 Personal tithes are now scarce, any where paid in England, unless for 
 
 mills, or fish caught at sea, 293. 
 Are not due of gifts, though they be after sold, 293. 
 Are not due of lops of trees of twenty years' growth, 295. 
 Nor of the bark, 295. 
 
 In extra-parochial places belonging to the king, 333. 
 
 Before the division of parishes, it seems a man might have paid his 
 tithes to what church he would, 333. 
 Traitor: May dispose of his goods alter the treason committed, 244. 
 Transubstantiation : Declaration against, 321. 
 Treasure Trove: To whom it belongs, 248. 
 Trespass : Where a man may justify in trespass, 46. 
 A special action of trespass may be brought against a man for taking a 
 
 distress without cause, 123. 
 If a sheriff by a replevin deliver other beasts than are distrained, an ac- 
 tion of trespass lies against him, 255. 
 May be committed with force, or without, 27S. 
 May be brought for stealing a horse, 277. 
 Is included in every felony, 27S. 
 Trial : If a bond hears date at Madrid in Spain, or Bourdeaux in France, 
 it may be tried here, 106.
 
 Index. 401 
 
 Trover: May be brought for goods svhich are stolen after the ofFender is 
 
 prosecuted, 278. 
 Trusts : Arc exactly of the same nature as uses were at common law, 169. 
 Are governed nearly by the same rules and subject to every charge in 
 
 equity which the legal ownership is subject to in law, 169. 
 Are not subject to dower, 169. 
 Nor to escheat, 169. 
 
 But husbands may be tenants by the curtesy of trusts, 169. 
 Uses: Origin of, 165. 
 Inconveniencies of, 167. 
 
 An use in esse may be given away without recompence, 171. 
 Cannot commence without livery of seisin, 172. 
 Or a recompence or bargain, 172. 
 
 Possession and use joined together in the feoffor, 58. 
 Villeinage : Abolished, 155. 
 Wager of Lavj : In what actions will lie, 28. 
 
 Out of use, but not out of force, 2S. 
 Warranty : Where it bars, and where not, 92, 260, 262. 
 Waste: If a lease for years is made to an infant, and a stranger does 
 waste, the infant must answer, 47. 
 So a. feme covert, to whom a lease is made, is liable to be punished for 
 waste, and committed by a stranger, if she agrees to the estate after 
 her husband's death, 48. 
 How punishable in tenant for term of years for life in dower, or by the 
 curtesy, 64, 71, 101, in, 112. 
 Will : By the ancient law a man could not make a will of his lands, 58. 
 But might dispose of the use, 58. 
 The ancient law abolished, 59. 
 Words: An action will lie at common law for calling another man thief 
 
 or murderer, 324. 
 But not for calling him villain, 325. 
 Wreck: What, 261,265. 
 Writ of Right of Dismcs : Where it will lie, 185.
 
 July, 1880.] 
 
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 American Politic?, Critical Review of. 
 
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 American Sta<e Universities. Ten Brook. 6 
 
 Anglo-Saxon Literature. Hart 3 
 
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 Army of the Cumberland, History of the. 
 
 Van Home 7 
 
 Army Life under Napoleon. Doisy 2 
 
 Art— 
 
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 Baby's RpcoihI .' 1 
 
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 Bhfjrip h ica I — 
 
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 Filson (John) First Historian of Ken- 
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 Hayes (Rutherford P>.) Lite, Public Ser- 
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 Mansfield (E. D.) Personal Memories— 4 
 
 Nerinckx (Rev. Charles). Life 5 
 
 Pioneer Biographies. McBride 4 
 
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 Blaclc Bass, Book of the. Hen-hall 3 
 
 Book-keepi n<_', Safety. Mittenheimer 5 
 
 Book-keeping, Tabular. Paddack 5 
 
 Bicycle. Park 5 
 
 Camping and Cruising in Florida, Hen- 
 shall 3 
 
 Caverns, Celebrated American. Hovey.... 3 
 
 Chess Openings, Srnopsis of. Cook 2 
 
 Church History/Universal. Alzog I 
 
 Constitution of the United States 2 
 
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 of. King. 4 
 
 Crime and i he Family. Nash 5 
 
 Drainage, Land. Kiippart 4 
 
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 Education, Common School. Currie 2 
 
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 Egypt, Ancient Osborn . r > 
 
 Elements ol Knowledge. Biddle 1 
 
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 Family Expense Book 2 
 
 Far East. Letters from Ejrypt and Pales- 
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 Fiction — 
 
 Generalship, or How I Managed My 
 
 Husband. Roy 6 
 
 Fiction— Continued. Pa^e. 
 
 Once a Year, or the Doctor's Puzzle. 
 
 Swan c, 
 
 Secret of the Andes. Hassan r<-k :', 
 
 Sylvester's Night's Adventure. Zschokke. 7 
 
 French, Elementary Reader. Brunner 1 
 
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 Housekeeping in the Blue Grass :; 
 
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 Marshall Family 5 
 
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 Lean l 
 
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 Mi dical — 
 
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 Fletcher. Cholera, its Characters 
 
 etc 2 
 
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 Minor. Scarlatina Statistics 5 
 
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 12 
 
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 Stanton (Henry T.) Jacob Brown, and 
 
 other Poems 6 
 
 Stanton (Henry T.) The Moneyless Man, 
 
 and other Poems 6 
 
 Venable (W. H.) June on the Miami... 7 
 
 Venable(W. H.) Melodies of the Heart. 7 
 
 Politics as a Science. Reemelin 6 
 
 Prices, Prophecies of Ups and Downs in. 
 
 Benner 1 
 
 Progressive Croquet. Devereux 2 
 
 Progressive Euchre. Irwin 3 
 
 Prose Miscellany. Biddle 1 
 
 Reptiles and Bachtrachians of North Amer- 
 ica. Garman 2 
 
 Romance of Western Historj'. Hall 2 
 
 St. Clair Papers 6 
 
 Shakespearean Commentators. Morgan... 5 
 
 Shakespearean Myth. Morgan 5 
 
 Silver and Gold, and Redemption. Hor- 
 ton 3 
 
 Silver an Internatioaal Issue. Horton 3 
 
 Some Ancient Melodies, etc. Royse 6 
 
 Sorghum, its Culture, etc. Collier 2 
 
 Spanish Americans. Four Years among. 
 
 Hassaurek 3 
 
 Speeches. Daniel W. Voorhees 7 
 
 Spinoza. Smith 6 
 
 Sportsman's Hand-Book. Park 5 
 
 Stage (The). Murdoch 5 
 
 Tally Book for Lumber Dealers. Webb 7 
 
 Theosophy. Nature and Aim. Buck I 
 
 — Secret Docrines. Buck 1 
 
 Vespucci. Force 2 
 
 Vicksburg Campaign. Reed 6 
 
 Vineyard Culture Improved. Du Breuil... 2 
 War of 1812 in North-western States. 
 
 Hatch 3 
 
 War of 1886 between the United States 
 
 and Great Britain. Reed 6 
 
 Washington-Crawford Letters. Butterfield. 1 
 
 Waterworks, Cincinnati. Bell 1 
 
 Weather (The), its Changes, Forecasts, etc. 
 
 Bassler 1 
 
 Winemaker's Manual. Reemelin 6
 
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