The pattern of catechistical doctrine at large, or, A learned and pious exposition of the Ten Commandments with an introduction, containing the use and benefit of catechizing, the generall grounds of religion, and the truth of Christian religion in particular, proved against atheists, pagans, Jews, and Turks / by the Right Reverend Father in God Lancelot Andrews ... ; perfected according to the authors own copy and thereby purged from many thousands of errours, defects, and corruptions, which were in a rude imperfect draught formerly published, as appears in the preface to the reader.

CHAP. II.

Of alienation and the several sorts of it. Of free al 〈◊〉〈◊〉. Illiberal, by contracts, which are of three sorts. 1. Do ut des. 2. do ut facias. 3. facio ut des. Of contracts by stipulation, promise, writings. Reall contracts, by caution, pledge, &c. Personal, by suerties, hostages &c.

TO alienate the propriety, with the use for ever, without any consideration, is called donatio, a gift, as when Pharoah gave sheep, oxen, asses, and servants to Abra∣ham, and this is either done by one in his life time, and then it is usually called a gift, or at his death by his will, and this is called a legacy; and so the right of succession is translated to the childe, by the the fathers death.

Now if the thing it self be translated liberally or freely, but for a time, there it is called mutuum, a loane which is free and without consideration. But if not the thing it self be transferred, but the use of it onely, then it is properly called com∣modatum, when a thing is borrowed freely, to be used, though this is commonly ta∣ken for that which is lent for some particular use, when the end is named. And these are the 〈◊〉〈◊〉 of free alienation.

2. Illiberal 〈◊〉〈◊〉 is, when a thing is put out upon consideration, and is usually called contractus 〈◊〉〈◊〉. This is of three sorts, and is usuall with us.

• 1. The first is Do, ut des, I give, but you must give 〈◊〉〈◊〉; as when a man lets a farme, with 〈◊〉〈◊〉 that his tenant shall husband it and pay him a rent, which is called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,
• 2. The second is, Do, ut facias. I give, but you must do something for it, as Ho∣mage, fealty, or service.
• 3. The last is, Facio ut des, I do for you, that you may pay me for my pains, as in work and wages, and this they call contractum servilem, a servile con∣tract.

1. Do, ut des. And this giving in liew, is either First, Rei pro re, of one thing for another, or Secondly, Rei pro pretio, of some thing at a price.

• 1. When it is, thing for thing, it is called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Commutatio, or Permutatio, Exchanging, and this was the first brood, after men grew weary of 〈◊〉〈◊〉. If it be mony for mony, it is called cambium Exchange. If of one thing for ano∣ther, it is Bartering. Ahab would have bartred in this kinde with Naboth for his vineyard.
• 2. When a thing is for a price, if it be pecunia pro Re, mony for goods &c. then it is emptio buying, Josephs brethren carried mony into Egypt to buy corne. And God told Moses, that the people might buy meat of the posterity of Esau, for mo∣ny. If it be rei pro pecunia, of goods &c. for mony, then it is venditio, selling. Sihon king of the Amorits refused to sell the Israelits meat and drink for mony. Ephron sold the cave of 〈◊〉〈◊〉 to Abraham for four hundred shekels of silver cur∣rant mony. If a man sell by whole sale, then it is negotiatio, merchandizing; if it be by parcels, it is 〈◊〉〈◊〉.

Besides the Alienation of the thing it self, there is alienation of the use onely, and not of the property, which if it be usus rei pro pecunia, use of a thing for mony, it is locatio, letting. If 〈◊〉〈◊〉 pro usu rei, mony for the use of the thing, it is con∣ductio, hireing.

2. Do, ut 〈◊〉〈◊〉. To give, that one may do something in liew of the gift, as Homage, fealty, or service. Thus we may see of old there have been 〈◊〉〈◊〉 ex jure Regio, kings have created them, when they gave lands to be held upon some service. Jo∣seph on 〈◊〉〈◊〉 behalf, when he had bought the Egyptians lands, restored them

again, upon condition of a fift part of the increase to be payed into the kings ex∣chequer.

3. Facio, ut des, to do something for which a man looks to be paid, or to receive something for it. And this is 1. either 〈◊〉〈◊〉, pro opera, one worke for another. 〈◊〉〈◊〉 said to Simeon his brother, come up with me into my lot, that we may fight against the 〈◊〉〈◊〉, and I likewise wil go with thee into thy lot, which is facio, ut facias Or 2. Opera pro pretio, work for a price. As when the labourers in the vineyard received a peny a day: which is facio, ut des, to work for a hire, or wages. As our Saviour saith, the workman is worthy of his hire.

Now in the cases of Alienation of property before mentioned, because sometimes we suffer one to have the use, but dare not trust him with the property, there a∣rise contracts of diverse natures, as by words, by writing, by pawns, pledges and suertiships &c.

At the first, we see they durst trust one another up on their bare word. This in him that requires it, is Stipulatio, a stipulation, or indenting; in him that giveth it, it is Sponsio a promise, or covenant.

After, 〈◊〉〈◊〉 their contracts were by writings (which with the other kinds hereafter mentioned are proles humanae 〈◊〉〈◊〉, the issue of mens breach of promise) 〈◊〉〈◊〉 the one party were content with the other parties own writing alone, this is called chirogra∣phum, his handwriting; if other mens hands be joyned with it, it is 〈◊〉〈◊〉, a writing subscribed by many. Thus when 〈◊〉〈◊〉 bought a 〈◊〉〈◊〉 of 〈◊〉〈◊〉, there were writings drawn between the parties. 〈◊〉〈◊〉 subscribed, and sealed the evidence, and witnesses were taken. Tobit when he left his country and departed into Media, committed ten talents to the trust of Gabael, yet for his better 〈◊〉〈◊〉, he tooke a writing under his hand for it. The unjust steward caused his Lords debtors to make bills under their hands for what they ought.

Besides these assurances by words and writings, there are others which are ei∣ther reall or personal; real, are either in regard of some oath, which is 〈◊〉〈◊〉, a caution, or for the recovery again of something received and delivered, which if it be something moveable, it is called, pignus, a pledge or pawne; as when a ray∣ment. and an upper milstone were prohibited to be taken in pawne, whereby may be inferred, that something, might be lawfuily pawned. If immoveable as lands, it is called Hypotheca, a mortgage. As we finde that the people borrowed mony upon their lands.

If it be personal, it is either in war, and then called Obses an Hostage: such as Jehoash king of 〈◊〉〈◊〉 took of Amaziah king of Judah, when he had over come him, and taken Jerusalem; or in peace, and this is either for a publick receivers who is accountable to the common: wealth, which is called praedes, when the goods of him which is suerty for such an one, are liable, or for private persons, as in acti∣ons, they which under take for others, are called 〈◊〉〈◊〉, their baile and in matter of mony, or debt, or promise, 〈◊〉〈◊〉, sureties. As Saint Paul was for Ouesimus. The wiseman counselleth him that is suerty for another, to make his peace as soon as he can.

Notes

• Alienation and the several sorts of it.
• 1 Reg. 2. 21.
• Gen. 42. 25.
• Deut. 2. 6. 28
• Gen. 23. 16.
• Judg. 1. 3
• Math. 20. 2.
• Several kinds of contracts.
• Stipulatio.
• Sponsio.
• Chirogro∣phum.
• Syngrapha.
• Real con∣tracts.
• Caution. pledge.
• Mortgage. 〈◊〉〈◊〉. 5. 4.
• Suerties.