The fyrst dialogue in Englisshe with newe additions.

☞ Of the thyrde grounde of the lawe of Englande. The .vii. Chapitre.

STudent)

The thyrde grounde of the lawe of Englande standeth vpon di∣uerse generall customes of olde tyme vsed through all the realme: whiche haue ben accepted and approued by our soue∣raygne lorde the kynge and his progeni∣tours and all theyr subgectes. And by cau¦se the sayde customes be neyther agaynst the lawe of god / nor the lawe of reason / & haue ben alwaye taken to be good and ne¦cessarie for the cōmon welth of al the real me. Therfore they haue optayned the strē¦ghte of a lawe / in so moche that he that doth agaynste them dothe agaynste Iusti¦ce. And these be the customes that propre¦ly be called the common law. And it shall alway be determined by the Iustices whe¦ther there be any suche generall custome or nat / and nat by. xii. men. And of these generall customes and of certayne princi∣ples that be called maximes whiche also

take effecte by the olde custome of the real me / as shall appere in the Chapitre nexte folowynge dependeth moste parte of the lawe of this realme. And therfore oure soueraygne lorde the kynge at his coro∣nacion amonge other thynges taketh a solempne othe / that he shall cause all the customes of hys realme faythfully to be obserued.

¶Doctoure)

I praye the shewe me some of these generall customes.

¶Student)

I wyll with good wyll / and fyrst I shall shewe the how the custome of the realme is the very grounde of diuers courtes in the realme / that is to say of the Chaūcerie of the kyngea benche / of the cō¦mon place: & the Escheker / the whiche be courtes of recorde because none may sit as Iuge ī those courtes by by the kīges let∣ters patētes. And these court{is} haue diuers auctorites wherof it is nat to treate at th{is} tyme. Other court{is} there be also only groū¦ded by the custome of the realme: that be of moche lesse auctorite thē the court{is} befo¦re reherced / as ī euery shyre withī the real¦me there is a court that is called the Coū¦tye / & another that is called the Shyryftes torne / & ī euery maner is a courte that is called a courte Baron. And to euery

fayre & market is incident a court that is called a court of Pypowdres. And though in some statutes is made mēcion somtyme of the sayd courtes / yet neuertheles of the fyrste Institucion of the sayd courtes: and that suche courtes shulde be / there is no statute nor law writtē in the lawes of En¦glande. And so all the groūde & begynnīg of the sayde courtes depēde vpō the custo¦me of the realme the whiche custome is of so hygh auctoritie that the sayde courtes ne theyr auctorities maye nat be altered / ne theyr names chaunged without Par∣lyament.

❧Also by the olde custome of the realme no mā shalbe takē īprysoned disseased nor otherwyse destroyed / but he be put to an∣swere by the lawe of the lande: & this custo¦me is cōfermed by the statute of Magna¦carta the .xxvi. chapitre.

❧Also by the olde custome of the realme all men great & small shal do & receyue Iu¦stice in the kinges courtes / & this custome is cōfermed by the statute of Marl the .i. Chapitre.

❧Also by the olde custome of the realme the eldest sone is onely heyre to his aunce¦stour / & if there be no sones but doughters

then all the doughters shalbe heyre: & so it is of susters & other kynneswomen. And if there be nother sone / doughter / brother / nor suster / then shall the enheritaunce dis∣cende to the nexte kynnesman or kynnes∣woman of the hole blode to hym that had the enhitaūce of howe many degrees so euer they be from hym. And if there be no heyre generall nor speciall / then the lande shall Eschete to the lorde of whome the lande is holden.

❧Also by the olde custome of the realme landes shall neuer ascende / nor discēde frō the sone to the father or mother / nor to any other auncestre in the right lyne / but it shall rather Eschete to the lorde of the fee.

❧Also if any alyē haue a sone that is an alyen & after is made Denizyn / & hath a∣nother sone / & after purchaseth lādes and dyed / the yōger sone shall enherite as heyr & nat the eldest.

❧Also if there be thre bretherne & the mydlest brother purchase landes & dyed without heyre of his body / the eldest bro∣ther shall inheryt as heyre to hym: & nat the yonger brother.

❧Also if lande in fee symple discēde to

a man by the {per}re of his father & he dyed without heyre of his body / then that inhe¦ritaunce shall discende to the next heyre of the parte of his father. And if there be no suche heyre of the parte of his father / then if the father purchased the lādes it shal go to the next heyre of the fathers mother / & nat to the next heyres of the sonesmother but it shall rather Eschete to the lorde of the fee: but if a man purchase lādes to him & to his heyres & dye without heyre of his body as is sayd before / thē that lāde shall discēde to the next heyre of the parte of his father if there be any / & if nat then to the next heyre of the parte of his mother.

❧Also if the sone purchaseth lādes ī fee & dye without heyre of his body / the lande shall discende to his vncle & shall nat ascē∣de to his father / but if the father haue a sone thoughe it be many yeres after the deth of the elder brother / yet that sone shal put out his vncle & shall enioye the lande as heyre to his elder brother for euer.

❧Also by the custome of the realme the chylde that is borne before spouselles is bastarde & shall nat inheryte.

❧Also the custome of the realme is that no maner of goodes nor catalles reall nor

parsonell shall neuer go the the heyre / but to the executours / or to the ordinary or ad¦ministratours.

❧Also the husbande shall haue all the Chatelles parsonelles that his wyfe had at the tyme of the spouselles or after: and also Chatelles real if he ouer lyue h{is} wyfe but if he sell or gyue away the Chatelles realles & dye by that sale or gyfte the ente¦rest of the wyfe is determined / & els they shall remayne to the wyfe if she ouer lyue her husbande.

❧Also the husbāde shall haue all the in∣heritaūce of his wyfe wherof he was sea∣sed in dede in the right of his wyfe during the spouselles in fee or in fee tayle general for terme of lyfe / if he haue any chylde by her to holde as tenaunt by the curtesye of Englāde / & the wyfe shall haue the thyrde parte of the inheritaunce of her husbande wherof he was seased in dede or in lawe af¦ter the spouselles. &c. but in that case the wyfe at the deth of her husbande muste be of the age of .ix. yere or aboute / or els she shall haue no dowrye.

¶Doctoure)

what if the husbande at his deth be within the age of .ix. yere.

¶Student)

I suppose she shall yet haue her dower.

❧Also the olde lawe & custome of the re∣alme is that after the deth of euery tenāte that holdeth his landes by knyghtes ser∣uice the lord shall haue the warde & maria¦ge of the heyre tyll the heyre come to the age of .xxi. yere. And if the heyre in that case be of full age at the deth of his aunce¦stre / then he shall paye to his lorde his re∣lyefe / whiche at the cōmon lawe was nat certayne / but by the statute of Magna car¦ta / it is put in certayne: that is to saye for euery hole knyghtes fee to pay. C.s̄. And for a hole baronye to pay a.C. marke for relyef. And for a hole erledom to pay a.C. li. & after the rate. And if the heyre of such a tenaūt be a womā / & she at the dethe of her auncestre be within the age of .xiiii. ye¦res / then by the cōmon law she shuld haue ben inwarde onely tyll .xiiii. yere / but by the statute of Westm̄ the fyrste in suche ca∣se she shalbe inwarde tyll .xvi. yere. And if at the deth of the auncestre she be of the age of .xiiii. yere or aboue / she shalbe out of warde / though the lādes be holden of the kynge. And thē she shall pay relyef as an heyre male shall.

❧Also of landes holden in socage if the auncestre dye / his heyre beynge withī the

age of .xiiii. yeres / the next frēd of the heyt to whome the inheritaūce may nat discen¦de shall haue the warde of his body & lan∣des tyll he shall come to the age of .xiiii. ye¦re / & thē he may entre. And whē the heyre cōmeth to the age of .xxi. yere / thē the gar¦deyn shall yelde hym accōpte for the {pro}fet¦tes therof by hym receyued.

❧Also suche an heyre in socage for his relyefe shall double his rent to the lorde the yere folowyng the deth of his aunce∣stre / as if his aūcestre helde by .xii. d. rente the heyre in the yere folowynge shall paye that .xii. d. for his rēt / & other .xii. d for his relyef. And that relyefe he muste paye though he be within age at the deth of his auncestre.

❧Also there is an olde law & custome in this realme that a freholde by way of fef∣fement gyfte or lease passeth nat without lyuery of season be made vpō the lāde ac∣cording though a dede of feffemēt be ther∣of made & deliuered: but by way of surren¦dre particion & eschaūge a freholde maye passe without liuery.

❧Also if a mā make a wyll of lāde wher¦of his is seased ī his demesne as of fee / that wyll is voyde / but if it had stande in feffes

handes it had ben good. And also in Lon¦don suche a wyll is good by the custome of the cytie if it be inrowled.

❧Also a lease for terme of yeres is but a chatel in the lawe / & therfore it may passe without any liuery of season / but otherwi¦se it is of a state for terme of lyfe for that is a freholde in the law / & therfore lyuerey muste be made therof or els the freholde passeth nat.

❧Also by the olde custome of the realme a man may distreyne for a rent seruice of cōmon right. And also for a rent reserued vpō a gifte in tayle / a lease terme of lyfe / of yeres & at wyll / & in suche case the lorde may distreyne the tenauntes of beestes as soon as they come vpō the groūde / but the beast{is} of straūgers that come ī but by ma¦ner of an escape / he may nat distreyne tyll they haue bē leuāt & couchāt vpō the groū¦de: but for dette vpō an obligaciō nor vpō a contracte / nor for accompte ne yet for arerages of accōpte / nor for no maner of trespasse / reparacions / nor suche other no man may distreyne.

❧Also by the olde law & custome of the realme all yssues that shalbe ioyned be∣twixte partie & partie in any court of recor¦de

within the realme except a fewe wher∣of it nedeth nat to treate at th{is} tyme / must be tryed by .xii. fre & lawfull mē of the vis∣ne that be nat of affinitie to none of the parties. And in other courtes that be nat of recorde / as in the countye / court baron / hundred & suche other lyke / they shalbe tryed by the other of the {pro}tyes & nat other wyse oneles the partyes assente that it shalbe tryed by the homage. And it is to be noted that lordes / Barons / & all pyers of the realme be excepted out of suche trial¦les if they wyll / but if they wyll wylfully be sworne therin / some say it is no erroure And they may if they wyll haue a writte out of the Chauncerie directed to the Shyryfe cōmaundynge hym that he shal nat impanell them vpon no enqueste.

And of this that is saydbefore it appereth that the customes aforesayd nor other lyke vnto thē / wherof be very many in the lawes of Englande can nat be proued to haue the strenght of a law onely by reasō for how may it be proued by reason that the eldest sone shall onely enherite his fa∣ther & the yōger to haue no parte / or that the husbāde shall haue the hole lāde for ter¦me of his lyfe as tenaunt by the courtesye

in suche maner as before appereth. And that the wyfe shall haue onely the thyrde parte in the name of her dower / & that the husbande shall haue all the goodes of his wyfe as his owne. And that if he dye ly∣uynge the wyfe / that his executours shall haue the goodes / & nat the wyfe. All these & suche other can nat be proued onely by reason that it shulde be so & no otherwyse all though they be reasonable / & that with the custome therī vsed suffiseth in the law And a statute made agaynst suche gene∣rall custom{is} ought to be obserued because they be nat merely the law of reason.

❧Also the law of {pro}pretie is nat the law of reason / but a law of custome how be it that it is kept / & is also right necessarie to be kept in all realmes & amōge all people And so it may be nōbred amōge the gene∣rall customes of the realme. And it is to vnderstande that there is no statute that treateth of the begynnyng of the sayd cu∣stomes: ne why they shulde beholden for law. And therfore after thē that be lerned in the lawes of the realme: the olde custo∣me of the realme is the onely & sufficiente auctoritie to them in that behalfe. And I pray the shewe me what doctours holde

therin / that is to say whether a custome onely be sufficient auctoritie of any lawe.

¶Doctoure)

doctours holde that a law groūded vpon a custome is the moste su∣rest law / but this muste always vnderstā∣de therwith that such a custome is nother cōtrarie to the lawe of reason / nor to the law of god. And now I pray the shewe me somwhat of the maxymes of the lawe of Englande wherof thou haste made men∣ciō before in the .iiii. chapitre.

¶Studēt)

I wyll with good wyll.