The pandectes of the law of nations contayning seuerall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord. Giuing great light to the vnderstanding and opening of the principall obiects, questions, rules, and cases of the ciuill law, and common lawe of this realme of England. Compiled by William Fulbecke.

The first Chapter.

Of the differences of times and sea∣sons by the Law of Nations.

AL Nations in put∣ting difference betwixt times and seasons haue rather fol∣lowed a populer and com∣mon obseruation, then the precise rules and principles of Astronomy, accompting it more conuenient and requisite, that sithence all contracts and matters of entercourse doe fall within the listes and precincts of time, that there∣fore the moments and measures of time should be publikely and familiarly knowne to populer conceit: In setting downe the definition of Time, they agree in the substance and matter it selfe, though in wordes and tearmes they be somewhat dissonant. Aristotle a great Philosopher amongst the Graecians defineth Time to be the measure of motion, according to prioritie and posterioritie, a

short and subtill definition, but yet true & sound. Varro as great and famous amongst the Romanes defineth it to be interuallum mundi & motus, the space of the world and motion, a briefe definition and verie nimble, if it be nimbly vnderstood: for by the world he meaneth the course of time, by motion the course of thinges. Others, as the Egyptians haue defined it a dimension perceyued by the conuersion of the heauens. Plato, who of these matters had in his trauayle conference with Ara∣bians, Egyptians, and Chaldeans, defineth it to be a moueable and chaungeable representation of Eternitie;c) 1.1 and truely and aptly doth he tearme it a chaungeable representation or image of Eter∣nitie: for as Censorinus noteth, Time in regarde of Eternitie, is but a winters day.d) 1.2 But though time be as much obseured in eternitie, as a small penny is amongest the riches of Craesus, yet as that was part of his riches, so time must needes be a part of Eternitie. Cicero defineth time more vulgarly, to be a part of Eternitie with a certaine difference, of a yearely, monethly, daily, and nightly distance,e) 1.3 so that Plato his definition hath relation to the cause of time; Ciceroes to the persons that make vse of time. Philosophers haue left to posteritie many subtill, deepe, and learned discourses of time, but bidding their definitions and disputations fare∣well, I will examine and weye the distinct partes of time with a popular ballance, and according to common sence, taking that course to be most

sutable to my profession. The partes of time ac∣cording to the generall diuision of Nations are a yeare, a moneth, a day, an howre, and a mo∣ment: for the Olympiads and Lustra, as being proper to the Graecians and Romanes must be se∣cluded from this Treatise, and Seculum as being a thing not vsuall in law, which now we handle must likewise be cassierd. Yet in speaking of time we may not forget to handle the circumstances of time as they be accommodated to the Law, and to the actions of men: As namely of a long time, a short time, a late time, an auncient time, a certaine time, an vncertaine time, a continuall time, a conuenient time, time past, time present, and time future. But first to speake of the yeare, Annus according to the Etymologie learnedly searched out by Varro, is nothing els but a cir∣cuit: for as the little circles are called annuli, ringes; so the great circles or compasses of time are called Anni, yearesf) 1.4. The yeare is a time, wherein the Sunne perfitteth his course, and that is accomplished in the space of three hundred, three scoore, and fiue dayes, and sixe howres al∣most: And this hath our Law well obserued, as may appeare by these verses:

Ter centum, ter viginti, cum quinque diebus, Sex horas, neque plus integer annus habetg) 1.5.

by which accompt (if you subtract the howers and halfe dayes) the quarter of the yeare will fall out as it is in our Law set downe, to be nintie and

one dayes; and the halfe yeare, a hundred eightie and two dayes,h) 1.6 which was almost fully signi∣fied by Ianus his image in Rome, in whose right hand was the number of three hundred, and in his left hand fiftie and fiue.i) 1.7 Others haue made the same difference betwixt the yeare and mo∣neth which the Merchants of some Countries make betwixt the ounce and the pound, deliue∣ring their conceit in this verse:

Vncia{que} in libra pars est, quae mensis in anno.

And though it be a common receiued opinion, that the Romanes at the first, and a long time after the foundation of their Citie did accompt but tenne monethes for the yeare, so that Ouid quarrel∣leth with Romulus his Astronomy in this maner:k) 1.8

Scilicet arma magis quàm sydera Romule noras.

Yet if the course & circumduction of their yeare be well obserued, it will appeare to haue contei∣ned the full space of twelue monethes, as may appeare by Pliniel) 1.9, Macrobiusm) 1.10, and Plutarchn) 1.11. And this was likewise the yeare of other Nati∣ons. The Romanes did begin their vulgar yeare at the beginning of Winter, as appeareth by Ouid:

Bruma noui prima est veterisquè nouissima solis.

Which course seemeth to bee agreeable to the course of nature, because then the sunne begin∣neth to returne vnto vs, and therefore wee may rightly deriue the beginning of his circuite from thence: The yeare is diuided into the Spring, Summer, Haruest, & Winter. The Romaines did

accompt the spring that space of time which was betwixt the Calends of March & the Calends of May,o) 1.12 but the most common & currant entrance of the spring in the reputation of all the nations of the world, was when the plants or herbage of the earth began to waxe greene: and therefore it is rightly tearmed ver a virendo, as sommer is called aeslas ab aestu, and then is said to begin when heate beginneth.p) 1.13 The name of Autumne nor the thing it selfe (as Tacitus reporteh) was not knowne to the Germaines in his time, and diuers countries haue made diuers limitations of the spring, and therefore if it bee agreed betwixt Titius and Seius that the beasts of Titius shal pasture in the groūds of Seius all the spring time, the time shall be limi∣ted according to the dimension of the spring-tide in that countrey where the bargaine was made: and so it may be said of the other times, and sea∣sons of the yeare, and if the occupation of a mans ground be granted to Titius, Seius, Caius, and Sem∣pronius, so that Titius shall haue the occupation of the land in the spring time, Seius in sommer, Caius in winter, Sempronius in haruest, if the interest of any of the same come in question, the Iudge had need be well aduised of the certaintie, and the pe∣culiar difference of these times according to the customarie obseruation of the countrey in which the grant was made, that he may suū cuique tribue∣re, and giue no erroneous iudgement. Some make a bipartite diuision of the yeare into winter and

sommer without mentioning the spring, and har∣uest, defining the sommer to begin at the Equino∣ctiall of the spring, and to end at the Equinoctiall of haruest:q) 1.14 so that sommer and winter are diui∣ded by sixe monethes: then I put case that land is demised to one to haue and to hold during the space of the whole sommer, whether may the les∣see put in his beastes in the spring time, and it see∣meth that the spring is to be excluded notwitstan∣ding the diuision aforesaid, for the sommer being named aestus ab aestu the spring can haue no part in the sommer, for the spring is meane betwixt heat and colde, and therefore the said diuision see∣meth to bee vnproper, for proprie non dicitur quod non dicitur secundùm quod sonat;r) 1.15 and in Swetia & other nations lying vnder the Northerne Poale this diuision can take no place: but if a man de∣uise the dwelling of his house euerie sommer to Sempronius, there it may seeme that the spring shal not bee omitted, because our dwelling is diuided into the sommer & winter dwelling: but if a man deuise his ground with all his sommer instrumēts of husbandrie, it seemeth that the spring is in this case to be excluded because there be other instru∣ments of husbandrie vsed in the sommer time thē such as be vsed in the spring, winter, or haruest: But the imperiall lawes doe extend sommer from the Calendes of April, to the Calendes of Octo∣ber: the residue of the yeare they allot to winter; and this diuision I will not denie to be grounded

vpon good reason if we respect the yeare in gene∣rall not in particular; for in the spring time the Sunne mounting to the toppe of one of the lines of the Equinoctial circle he commeth by degrees nearer vnto vs and so maketh summer, but in har∣uest he transcēdeth the other line of the Aequator and so being farre remoued from vs causeth win∣ter, and therefore not amisse by the cause of heat and cold, are the times of heate and cold distin∣guished.

The moneth had his name of the Moone which in the Greeke tongue is called Mene: and the reason of the name is because the mo∣neth is measured by the circumuolution of the Moone, as Plato,s) 1.16 Varro, Cicero, and others haue expounded it.t) 1.17 Some doe assigne to the moneth twentie seauen dayes, and eight ho∣wers: others twentie nine dayes and twelue howers: they doe measure by the motion of the Moone from poynt to poynt in the Circle, that is, when it is reuolued from one point to the same point: These do set downe for the moneth that course of the Moone in which it doth tend reciprocally to the Sunne, from which it new∣ly digressed. The Athenians did obserue the later order of the moneth, frō whom though the Ro∣manes did in circumstance agree, yet in substance they accorded; for their twelue monethes did not exceed that number of daies which doth cōsist of the twelue lunarie monethes; so that it is apparant

that both these nations (as all other) follow the Moone in this businesse: and for the more perfit obseruation of this course Sosigenes the Aegiptian perswaded and moued Caesar somewhat to alter the monethes, and by consequence the yeare,u) 1.18 neither is this abhorrent from commen vse; for let the case be that A. promiseth to B. that hee will for some consideration pay vnto B. the next mo∣neth 20. li. and the assumpsit is made the eyght day of March, whether may A. haue the space of the whole moneth of Aprill to pay the money in, or hee must needes paye it before the eight day of Aprill next ensuing, accompting the mo∣neth from the eight daye of March: Surely by commō intendement he hath the whole moneth of Aprill to pay it in: for the common people making more accompt of the Calender then of the Calendes doe set downe for a moneth as they find in the calender, not as curious wits may mea∣sure by the calendes or by like proportion.x) 1.19

The name of day in Latine dies, Varro deriueth a deo or dio, both which tend to one purpose. In this discourse my endeuour is rather to open the natures then the names of things. The day is thus defined by Plato in his booke De definitionibus, if that booke be his: Dies est ab ortibus ad occasus: so that how many risings & settings there are of the Sunne, so many dayes he maketh. Aristotle more exquisitly, Dies est motus Solis supra nostrum hori∣zontem.a) 1.20 Two kinds of daies are most in vse, the

ciuill day and the naturall day: the ciuill day it is therefore tearmed because diuers cities and coun∣tries made great diuersities of daies, to which they did allot seuerall compasse of time. The Ro∣mains did deduce the day from midnight to mid∣nightu) 1.21 next following, placing the day as it were betwixt two nightes, as in the beginning of the world night was before the day, and night fol∣lowed it: but the day of the Vmbrians was from midday to midday: of the Athenians from Sun sett to Sunne-set: of the Babilonians from the ryse of Sunne, to Sunne rysing: the naturall day is that which consisteth of 24. howers be∣ing the space wherein the Sunne is rowled a∣bout by the motion of the whole bodie of the heauen from a certaine poynt to the same point. The Astronomers make the beginning of this day at noone day or midday, as the Vmbrians; be∣cause to all inhabitants of nations continuing still in their regions the sun commeth alwayes at that time to their Meridian, and to that circle which is caried through the toppes and poales of the hea∣uen: and euery region hath his meridian of one sort though they haue diuers meridians in num∣ber & in particular, but the rising & falling of the sunne is not in any region alway of one sort, be∣cause the points are chaunged, and we see the sun diuersly to rise & fall: so that the Vmbrians may seeme in this to haue done rightly, the Athenians and Babilonians not rightly, the Romaines most

rightely, who haue not as the other nations con∣trary to the order of nature, placed the night in the middest of the day, but haue made the night as the two extremes of the day, & therefore haue placed part of the night in the beginning of the day, and part in the end: of which consideration our law may seeme to haue takē regard in that the forepart of the night it assigneth to the day going before, & the later part to the day following, which may euidently appeare by the inditements of burgla∣ry:b) 1.22 but the reason of the Romane constitution is learnedly deliuered by Plutarche:c) 1.23 at midnight (saith he) when the day of the Romains doth be∣gin, the sunne is in that region in the lowest point of the heauen, from which it beginneth to tende and to returne to vs and to ascend to our Hemis∣pheare: wherefore rightly doth the day beginne then when the sunne that is the cause of the day doth moue toward vs, & therefore this constituti∣on of the Romanes must needs seeme more pro∣bable then that of the Vmbrians, because the be∣ginning of a thing is rather to bee referred to that time when the thing groweth to existence, then when it declineth and beginneth to leaue his exi∣stence, so that the opinion seemeth to be good, 11. Elizab. in my Lord Dyer his reports; that whereas the case was that a lease was made to one of land the eight day of May to haue & to hold for twen∣tie & one yeares thence next after ensuing, & the lessee entred the eight day, and his entrie seemed

lawfull, and that he did not enter as a disseisor, for by the word (thence) the first instance of the day in which the demise was made is to be intended, and not the next day ensuing the date:d) 1.24 so that I cannot see vpon what reason in the accompting of the sixe monethes according to the statute of 27. H. 8. of enrolments the day of the date of the deede of bargaine & sale shall not be accompted for any;e) 1.25 but the vulgar and common sort of men of all countries doe accompt the day from light to darkenesse, which order the Canonistes do ob∣serue;f) 1.26 the night as Plato defineth itg) 1.27 according to common admittance is nothing els but darke∣nesse: Euentide is immediately after Sunset: twi∣light is a doubtful time equally consisting of light and darknesse, which is alwaies after euentide. For as betwixt knowledge, and ignorance there bee two meanes, namely doubting, and opinion, so betwixt day & night there is euentide & twilight. Ignorāce is like to night, doubting like to twilight, opiniō is like to euentide, because as opinion kno∣weth after a sort, but knoweth not truely & surely, because it is not grounded vpon certain reason: so euentide is after a sort day, but absolutely & fully it is not, because it is destitute, & bereft of the clere light of the sunne: knowledge which relyeth vp∣on the sound foundation of things knowne is an∣swerable to the day, which is full of cleare, and perfite light. Now as opinion is more like to ig∣norance then to knowledge; so euen-tide is more

like to night, whereupon ensueth that twilight must needs bee more like vnto night: but now suppose that a paiment of money is assumed to be made within the compasse of such a day, whether is it to be intended of the Romaine day, or some other ciuill day, or the natural day which is whol∣ly in vse amongst the Venetians: for in Venice the clocke is told foure and twenty times for the day: and it is meete that this question should be decy∣ded by the custome of each countrie.

Now come we to speake of howers, which to the Romaines were not in vse during the space of three hundred yeares: therefore in their lawes of the twelue tables, times are otherwise set downe, namely, Sunne-rise Noone, and Sunsett: the first, second, third, and fourth watch, plenum forum, ful market, boum solutio, the time of the loosing of the oxen from the plough, accensa lumina, candle light, and such like names. But to know the pro∣per vse of these howers that are fitte to bee ob∣serued, which Paulus the Ciuilian noteth: Cu∣iusque diei maior pars est horarum septem primarum diei, non supremarum: he meaneth not that there should be fourteene howers of the day, because it is manifest that there are but twelue, but his meaning is that the greatest parte of the day is spent in the first seuen howers, if you accompt from the first hower to the seuenth inclusiue, as namelye, from sixe a clocke in the morning to twelue a clocke: for then there will re∣mayne

to the other parte of the day but fiue ho∣wers; And the former parte of the day is not onely the better for the number of howers, but because men in these howers are more apt for the dispatch of their busines: Wherefore Noniush) 1.28 vp∣on these wordes of Virgill:

Nunc adeo melior quoniam pars acta diei est

commenteth thus. Our youth is the best part of our age, and so Maro wisely calleth the first part of the day the better part, as being the youth of the day: for if a man should number seauen howers from a eleuen of the cloke to fiue in the afternoone; yet these howers will not be so conuenient for perfit∣ting of busines, as the seauen abouesaid: and ther∣fore he that demaundeth six pence for trauayling to a place on foote from eleuen to fiue, to which an other hath gon for a groat from six to twelue, is not altogether vniust, because in the afternoone men be more vnapt and more vnable to trauaile.

The last and least part of time (if it be any part of time) is a moment, which may better be ima∣gined then described, for it is as swift as a man can imagin: and what is more swift then imagina∣tion? It hath receyued a definition somewhat ob∣scure of Plato: Momentum est quod nullo prorsus in tempore esti) 1.29. It is taken by some to be punctum temporis: for as a mathematicall point is that cuius nulla est pars, so a moment is a point of time cuius nulla est pars: yet Pliny seemeth to distinguish more rhetorically then truely punctum temporis

from a moment when he saith: Quod momen∣tum, aut immo quod temporis punctum, aut benefici•• sterile, aut vacuum laudek) 1.30, the existence of a mo∣ment cannot possibly be discerned, and therfore is not so much as the twinckling of an eye. The vse of a moment is more fit for the operation of Law, then for the act of a man: for the Law doth ope∣rate without compasse of time in an instant, but man neuer; for euery act of man must haue space longer or shorter, according to the qualitie of the work: But the nature of such instants or moments which the Law doth imagin is such & so sodaine, vt omnem respuant moram, as in the Ciuill Law is well notedl) 1.31: And the reason is because in the ope∣ration of Law, that which it doth imagin to be done, is dicto citius, presently, and without delay donem) 1.32: and therefore it is commonly said, it is done ipso iure, or it is said ipso iure, or ipso facto. But this course can not be obserued in the actions of men, who can not doe any thing without space of time, because their act is alwayes continuate, and therefore must needes be done continuo tempore. And whereas the act of man is mixt with the act of Law: though in regard of the same thing the act of the Law be momentary, yet the act of man must needes beare some delay. Those thinges by the ciuill Law which are taken from enemies, doe incontinent become his who doth selse and take themn) 1.33, The Law doth giue them vnto him pre∣sently, but yet there must be a time to take them,

that the Law may giue them. And so if when a Lease is made to A. of land for the terme of the life of B, and A. dieth, C. entreth into the land, and inioyeth it, as an occupant; the Law because it wil not haue the freehold in suspence, doth ima∣gin that it was presently and immediatly in C. after the death of A, and that he entred presently: but if we respect this entrie as the act of man, we must needes imagin that he had some time to en∣ter into the land, and by his entrie, which is an act consisting of motion, to gaine the freehold.

It remaineth now according to our purpose, that after this discourse of the partes of time, some thing should be spoken of the differences of time, which I will handle verie briefely: for the matters precedent haue giuen some light thereunto, and they are not of themselues verie obscure.

And first to speak of the time which we cal a con∣tinuall time: that in the ciuill Law is sometime ta∣ken for as much as (during a mans lifeo) 1.34) and ther∣fore he that hath purchased land for his life, is tear∣med Perpetuariusp) 1.35: and in the common Law these wordes (a touts inoursq) 1.36) make but an estate for lifeq) 1.37, yet in proper sense it extendeth vnto the last mark of time: A long or short time is distinguished either by the measure of the parts of time abouesaid, or by the measure of the Law, which is the discretion of the Iudge. The differēce which is made of aun∣cient time and of late time in the ciuill Law, is ra∣ther plain thē ponderous, Vetus accipietur quod non

est nouumr) 1.38: And therefore the law of the twelue Tables they call their auncient Law, and that which followeth it the new Laws) 1.39. But in this sense the Law of Nations should be the auncient Law, and all other humane Lawes, new Lawes, but auncient by the interpretation of a good Ci∣uilian is that, cuius initij memoria non extatt) 1.40, and he expoundeth this to be: if there be none aliue which knoweth when it had his beginning: Nei∣ther hath any heard of the beginning of the thing of those which did know itu) 1.41. A certaine time is that which hath a certaine beginning and ending; An vncertaine time is directly contrary: Certaine times are the yeare, the day, the moneth, &c. An vncertaine time is signifyed by these wordes; be∣fore, after, in times past, some time, about such a time, &c. But there be diuers sortes of vncertaine times: First, either that which is altogether vn∣certaine, as when such a ship shall come out of Asia: for we know not whether it shall at any time come from thence, or when it shall come. Se∣condly, that is said to be vncertain, which though it be vncertaine whether it shall be or no: yet if it be admitted to be, it is certaine when it shall be: as if I graunt vnto one the Corne that shall grow in such a ground, for I know not whether it shall grow or no: Or if I promise to be a godfather to that child which shall be borne of Martha, within three daies after it be borne, for I know not whe∣ther any shall be borne: Or if I promise to pay

such a summe of money when Titius shall be of full age: here it is well knowne when Titius shall be of full age, but it is vncertaine whether he shall liue till he come to full age. 3. that is vn∣certaine, which though it be certaine that it shall be, yet it is vncertaine when it shall be; as the howre of death. The present time is so small and vnsensible, that it is almost of no continuance, and it is but the conioyning of that time which is past to that which is to come; Time past is that which wanteth his beginning; And time future is that which neuer had ending. A conuenient time is after diuers sorts: First, either it is conuenient for some, and not for all; as when some causes are to be heard, and not other some: Secondly, or profi∣table for all, but not alwaies; as the Termes whilest there are no dayes of vacation, dies non iuridici: Thirdly, or it is profitable for all, and alwaies; as the Assises.

Notes

• c) 1.1

  Plat. in Tim.
• d) 1.2

  Censo. c. 4. de di. na.
• e) 1.3

  Cic. lib. de fin. 4.
• f) 1.4

  Var. lib. 5. de lingu. lat.
• g) 1.5

  18. Elizab. 345. Dyer.
• h) 1.6

  Ibidem.
• i) 1.7

  Macrob. lib. 1. Stur. ca. 9.
• k) 1.8

  Ouid. lib. 1. fastor.
• l) 1.9

  Plin. lib. 2. ca. 9.
• m) 1.10

  Macrob. 1. Satur. ca. 12. et lib. 1. in som. Scip. c. 6.
• n) 1.11

  Plut. in Num.
• o) 1.12

  Liuy. lib. 34.
• p) 1.13

  Tacit. de mor. Germ.
• q) 1.14

  Vip. in l. 1. § aestat. de ag. co. et aest.
• r) 1.15

  Baldus in l. vlt. c. de haer. instit.
• s) 1.16

  Plat. in Cratil.
• t) 1.17

  Varro lib. 5. de lingua Lat. Cicer. lib. 2. de natur. deor.
• u) 1.18

  Plut. in vit. Caesar.
• x) 1.19

  L. 4. § Sti. si haered. de statut. Et stat. Au∣gust. lib. 1. emend. c. 2.
• a) 1.20

  Aristotle Topic. 5.
• u) 1.21

  Plinie lib. 2. c. 77.
• b) 1.22

  Crompt. I. P. tit. indicta∣menta in fin. lib. fol. 224.
• c) 1.23

  Plut. in quaest. Roman. qu. 83.
• d) 1.24

  11. Eliz. 2••6. Dyer.
• e) 1.25

  5. Eliz. 22••. Dyer.
• f) 1.26

  Comment. ad l. Titius § Luci. de lib. & post.
• g) 1.27

  Plat. in lib. de definit.
• h) 1.28

  Noni. lib 9. de compendi∣osa doctrin.
• i) 1.29

  Pla. in Par∣men.
• k) 1.30

  Plini. in Panegyr.
• l) 1.31

  l. 23. §. vlt. D. de adult.
• m) 1.32

  l. in suis. D. de lib. et post.
• n) 1.33

  l. 5. §. vlt. de acquir. re. do.
• o) 1.34

  l. 1. §. pe. de off. pre. vrb. l. 2. C. de his qui latr.
• p) 1.35

  Alci. lib. 1. parer. g. c. 37.
• q) 1.36

  Littlet. lib. 1. cap. 1. fo. 1.
• q) 1.37

  Littlet. lib. 1. cap. 1. fo. 1.
• r) 1.38

  In l. 11. de uiui. leg.
• s) 1.39

  l. 1. l. 3. D. de pet. haered.
• t) 1.40

  l. 2. in prin. de ag. plu. ar. c. §. idem lab. aut si in agr.
• u) 1.41

  Idem Lab. aut cum quaeri∣tur eo.