The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke.

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Title
The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke.
Author
Fulbeck, William, 1560-1603?
Publication
London :: Printed by [Adam Islip for] Thomas Wight,
1602.
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Subject terms
Civil law -- Great Britain -- Early works to 1800.
Canon law -- Early works to 1800.
Common law -- Great Britain -- Early works to 1800.
Link to this Item
http://name.umdl.umich.edu/B13659.0001.001
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"The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke." In the digital collection Early English Books Online 2. https://name.umdl.umich.edu/B13659.0001.001. University of Michigan Library Digital Collections. Accessed June 5, 2024.

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The eight Chapter.

That in the lawes and constitutions touching Citties, corporations, liberties, franchises and immunities, and the good gouernment and administration of shem, all nations haue agreed.

COrporations in the whole course and constitution of them doe ve∣rie much resemble the naturall bodie of man: for as there bee in it great diuersitie of partes, so is there likewise great distinction in cities and corporations, of misteries & degrees. In Egipt there were in their seuerall corporations diuers sorts and callings of people; Kings, Priests, Warriors, and Workemen: which last kind was subdiuided into foure members, Shipmen, Artifi∣cers, Husbandmen, and Shepheards, a 1.1. And as a naturall bodie doth consist of things bodily, and of a soule, which is vnbodilie, so that it consisteth of thinges meerely opposite. So likewise a citie or corporation consisteth of multitude and vnitie, whereof multitude is as the bodie, vnitie as the soule, both different in nature. That multitude is as the bodie of a Cittie needeth no great proofe: Yet heare thereof Florus: Cum populus Romanus, Etruscos, Latinos, Sabinosque miscuerit, & vnum ex omnibus sanguinem ducat, corpus fecit ex membris, et

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ex omnibus vnus est b 1.2. Heare the opinion of the Stoicks, comparing the world to a corporation. Ciuitas totius mundi vna est, & omnes homines popu∣lares, municipesquè & veluti armentum vnum com∣pascuo in agro compascens c 1.3: Heare also Seneca. Ho∣mo homini in maiore ciuitate ciuis est, & in adiutori∣um mutum creatus d 1.4: and that vnitie is the forme and as it were the soule of a corporation may di∣uersely appeare Florus saith excellently (for he ei∣ther could not or would not write but excellent∣ly) Augustus Caesar sapientia sua atque solertia per∣culsum vndique et perturbatū ordinauit imperij cor∣pus. Quod it a nunquam haud dubtè coire & cōsentire potuisset, nisi vnius praesidis nutu quasi anima, & mente regeretur. e 1.5 And Seneca saith wittily: Socie∣tas haec nostra lapidum fornicationi simillima, casurae nisi inuicem obstarent & sustinerent se lapides; f 1.6 This our society is like vnto an arche of stones, which would soone fall if one stone did not hinder and beare vp ano∣ther. S. Ambrose diuinly: Lex naturae ad omnem nos stringit charitatem, vt alter alteri tanquam vnius par∣tes corporis deferamus. And the saying of Cicero, though an heathen is not heathenish. Spurca eo∣rum sententia qui ad se omnia referunt g 1.7. And both he and S. Ierom h 1.8 doe condemne certaine Philo∣sophers, who whilest they thinke it sufficient to be without all kinde of vniustice, and bend them∣selues wholly to that, that they may not hurt any man, yet offend greatly in this, that they doe not seeke and endeuoure to profit other men, but for∣sake

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sake that part of iustice, whilest they follow the o∣ther: from which fault all the Rhetoricke in the world cannot exempt the cloistered Monkes and couchant Friers of the Romish liturgy: Claudian speaketh aptly of this matter i 1.9:

Nonne vides operum quî se pulcherrimus ipse, Mundus amore ligat.

Thus it is euident, that a multitude lawfully & for a politike end assembled is the matter of a cor∣poration, vnitie the forme. Likewise as a naturall bodie hath his diseases, so hath the bodie politike. Wherfore Liuie his comparison is incomparable. Nulla magna ciuitas diu quiescere potest: si foris ho∣stem non habet, domi inuenit, vt praeualida corpora ab externis causis tuta videntur: sed suis ipsa viribus o∣nerantur k 1.10. And againe, Discordia ordinum est ve∣nenum vrbis huius l 1.11: yet in some things the bodie naturall and a citie or corporation do differre: for the naturall bodie is transitorie and mortall: but a bodie politicke dieth not as it is shewed by M. Townsend in the Mayor of Norwitches case. The comminaltie is the substance of a corporation: and of them dependeth all the inheritance: for the Mayor and the Sheriffes may die, and be chaunged, but so can not the comminaltie m 1.12: which is elegantly auouched by Liuie speaking in the person of Scipio that wor∣thy man: Si ego morerer mecum expiratura respub. mecum casurum imperiū populi Romani esset? ne istud

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Iupiter optimus maximus sinat vrbem auspicat Dijs authoribus in aeternū conditam, fragili huic & mortali corpori aequalem esse: Flaminio, Paulo, Graccho, Post∣humio Albino, M. Marcello, T. Quinctio. C. Fuluio, Scipionibus meis, tot, tam praeclaris imperatoribus vno bello absumptis, superstes est populus Romanus eritque mille alijs nunc ferro, nunc morbo morientibus n 1.13. And Tacitus speaketh of this matter pithily though shortly: Principes mortales, aeternae resp. o 1.14 And there is an other difference taken in the said case of the Mayor of Norwitch: for a man restrayning the hands of an other mans naturall bodie, doeth re∣streigne his bodie, but if one do imprison the She∣riffes of a citie, the comminalty is not imprisoned. By this comparison the nature of a politike bodie may sufficiently appeare. Now I will speake of the incorporating and enfraunchising of citizens which hath beene very auncient, as may appeare by Tacitus. Conditor nostri Romulus tantum sapien∣tia valuit, vt plerosque populos eódem die hostes, dein ci∣ues habuerit: and he sheweth it more particularly, Neque ignoro Iulios Alba, Cornucanos Camerio, Por∣tios Tusculo, & ne vetera scrutemur, Lucania Etru∣riaque, & omni Italia in senatum accitos. And he gi∣ueth a good reason wherefore it should be so: mo∣ribus, artibus, affinitatibus nostris mixti aurū & opes suas inferant potiùs quàm separati habeant: condem∣ning the Lacedemonians & Athenians, who vsed it not. Quid aliud exitio Lacedaemoniis et Atheniēsibus fuit quā quā armis pollerēt, nisi qd victos {pro} alienigenis

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arcebant p 1.15: Amongst the Romanes at the first none were admitted into their citie, but such as did inhabite in that part of Italie, which was cal∣led Latiū: afterwarde it was imparted to the other people of Italie, such as dwelt beyond the riuer Poe, and the Alpes, and the sea. Claudius Caesar be∣stowed the freedome of the citie vpon many bar∣barous nations: and vnder these Emperours which were Spaniardes, Thracians, Affricans by little & little whole prouinces, yea and the whole Romane empire was endowed with the freedom and liberties of the citie: whereupon that speech was vttered, Romanus vbicunque vicit, habitat: and whereas at the first all nations beside the Grecians were accompted Barbarians, yea euen the Ro∣manes, who afterward were Lords of all, and be∣ing Lords did exempt themselues and other nati∣ons which they had conquered frō such reproch, and then they onely were noted for barbarous who liued not vnder the Romane Empire: q 1.16 wherefore Rhenus was said to haue two bankes, the furthermost of which was allotted to the Bar∣barians, the nearer to the Romanes, according to the saying of Claudian:

O quoties doluit Rhenus, qua barbarus ibat. Quod te non geminis frueretur iudice ripis.

And that which Tacitus saith, that the Romanes did grant vnto the Rhemenses, the Lingones, the Bituriges, the Meldinenses, the Xantones, & the

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Hedui free people of Fraunce, the liberties & free vse of their citie (the suffrage & giuing voice at the election of Magistrates and Officers onelie excepted and foreprised) it is more plainlie and vnderstan∣dinglie opened by Liuie in these wordes: Iam indemorem Romanis colendi socios, ex quibus alios in ciuitatem at{que} aequum ius accepissent, alios in ea for∣tuna haberent, vt sotij este quàm ciues mallent r 1.17. Though Augustus Caesar at the first blossoming of the Romane Empire did make some scruple to enfraunchise straungers, and to admit them into the Citie of Rome: Neither would he bestow the liberties vpon a Frenchman, though earnestlie re∣quested by his Empresse Liuia, whom he dearelie loued, disallowing the act of C. Caesar his adop∣tiue father, who enfraunchised a whole legion of his French soldiers, and reprooued likewise M. Antonius for selling the liberties of the citie vnto the Sicilians for money s 1.18. Yet his posteritie was not so precise, but did abundantlie admit straun∣gers: For Antonius pius did enfraunchise all that were subiect to the citie of Rome, that Rome might be the common countrie of all Nations t 1.19, imita∣ting perhaps Alexander magnus, who accompted the whole world a common Citie, and his paui∣lion* 1.20 the tower of the citie m 1.21. And Seuerus did graunt to the citizens of Alexandria, that they might be Senators of Rome, and that other Aegyp∣tians should not be free of the citie of Rome, vn∣lesse they were before free men of Alexandria.

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n 1.22 The Heluetians did bestow the liberties of their citie vpon Lewis the eleuenth, and other kinges of Fraunce o 1.23. And Artaxerxes the king of the Persi∣ans did graunt such liberties to the whole familie of the Pelopidae p 1.24. So the Athenians did make free of their citie Euagoras king of Cyprus, Dionysius the tyran of Sicelie, Antigonus and Demetrius the kinges of Asia, yea euen all the Rhodians q 1.25: which the Rhodians requited with like curtesie, which was nothing else but a comburgeosie, such as Bo∣dinus r 1.26 reporteth to haue been made betwixt them of Valoys, and certaine towneships of the Helueti∣ans: Betwixt the men of Berne, and them of Fri∣burge: Betwixt them of Geneua, & them of Berne. The nature of which comburgeosie is, that there should be mutuall communitie of their cities, and mutuall league of friendship betwixt them; And if any of these so leagued in societie should for∣sake their citie, and come to the citie of them with whom they were in league, they should be ipso facto Citizens without any speciall enfraunchise∣ment, enroulment, cooptation, or any other cir∣cumstance: before which time they were not sub∣iect to the commaunde and Lawes of that ci∣tie, but were onelie Ciues honorarij, as Hercules and Alexander magnus were of Corinth. Such a league of societie as seemeth by the yeare booke to haue been contracted betwixt the Citizens of Lincolne, and them of the towne of Derbie, that they of Lincolne should be quite from murage,

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pontage, custome, and tolle, within the village of Derbie, for all kind of merchandize s 1.27. This was the difference betwixt veri and honorarij ciues: the former were subiect to the Lawes, orders, and charges of the citie: the other were not. Plutarch t 1.28 wondreth at Solon, in that he made a Law, that all straungers should be barred from the liberties of the citie of Athens, except it were such as were in exile: but indeed he perceiued not Solons mea∣ning, being a man of deeper reach then Plutarch, as also was Polybius, and Thucydides, and Dionysius, of Halicarnassus amongest the Graecians his coun∣trymen, whom notwithstanding in learning, wit, and eloquence he exceeded: for Solon his purpose was in the making of that Law, that none should enioy the liberties of the citie, but such as should be bound and subiect to the Lawes of the Citie. And there was likewise an other difference be∣twixt veri and honorarij Ciues: for they which were veri ciues did loose the liberties of the citie of Rome, whensoeuer they did purchase the free∣dome of any other citie: Which may appeare by this, that though Pomponius Atticus being borne in the citie of Rome, was a citizen of Rome, and more then that, beeing a Senators sonne, was eques Romanus, who was therefore called Atti∣cus, because hee had the Athenians in such reue∣rence and estimation (a man of great byrth: for three Emperours doe referre their originall to him, u 1.29) yet this man could not bee made a

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citizen of Athens, least (as Cornelius Nepos repor∣teth the plain truth u 1.30) he should loose his freedom of the citie of Rome. But as to them which were honorarij ciues, if they were enfraunchised of a* 1.31 hundred cities, yet they could not loose their free∣dome of any. In England not Cities onelie ad∣mit others to their liberties, but verie Societies of Students; as namelie the houses of Court, and to mine owne knowledge, the worthie societie of Graies Inne, to which be admitted such a number of excellent noble men, great diuines, surpassing gentlemen, whereof some haue sued and been desirous to be admitted: other some haue rather been called, then ordinarilie consorted, for their preeminence and worth, according to the rule of Salomon: As is the fining pot for siluer, and the fur∣nace for gold, so is euery man according to his digni∣tie. I pray God this fining pot may still continue her siluer of Learning and Law. I beseech him likewise that this furnace of gold, may still seuer the gold from the drosse, that is religion and loialtie, from paganisme and papisme: which hitherto, the Lord be praised, it hath done. But to retourne to my purpose of handling the nature and properties of Cities and Corporations, Though in the gene∣raltie of admittance all common weales haue ac∣corded, yet in the speciall maner of admittance they haue dissented and varied: For in Athens they could not bestow their fraunchise vpon anie without the suffrage and voice of a thousand citi∣zens

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at the least a 1.32. But in such places and regions, which by reason of the barrennes of the soyle, or by reason of the distemperature of the ayre, are not verie well habitable, not onelie the originarie inhabitants, but euen straungers and aliens are for∣bidden by the Rulers of the places to depart out of them: As namelie in Moscouia b 1.33, Tartaria, and Aethiopia c 1.34: But amongest the Venetians and Rha∣gusians none can be admitted to their cities, vn∣lesse it be for a great summe of money, or some principall desert. But now sithence we haue spo∣ken sufficientlie of Corporations in generall, let vs examine the first foundation and beginning of guildes and fraternities, which as Corporations do support the good estate of a Realme; so they do preserue the good estate of Corporations. These Fraternities are deriued of the greeke word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which is to be interpreted a well, or pit: for in drinking at one pit or well societie was at the first contracted: thence is deriued 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 fraterni∣tie. So likewise Pagi, towneships, are deriued of the Doricke word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which signifieth a foun∣taine, and in the Atticall dialect is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. By the meeting together at the first at one water or foun∣taine grew loue betwixt man and wife, then betwixt brethren and sisters, then betwixt vn∣cles and nephewes, then grew affinitie: All which would haue been colde, if there had not beene corporations, colleges, guildes, fraterni∣ties, and societies crected and established. By

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the common Law, no Corporations can be made but by the king, yet his highnes may depute this authoritie to an other, for so it commeth originally from the king: howsoeuer Mast. Ke∣ble his opinion is, that a Corporation must be made by the kinges expresse and immediate wordes d 1.35. But 22. Edwardi 4. and 20. Hen. 7. the opinion of Read is to the contrarie e 1.36, and both Mast. Fitzherbert, and Mast. Brooke g 1.37 abridging the case, are in this contrarie to Mast. Keble:* 1.38 And so is the opinion of Choke and Brian, that if before the dissolution of Abbeys, the king had licenced one to make a Chaunterie for a chaunterie Priest, and to giue vnto him and his successors certaine land, this had been a good Corporation h 1.39. But to all vnlawfull Gorporati∣ons, all giftes, grauntes, fines, and feoffements are made voide by the Satute of 23. Hen. 8. cap. 10. The first Lawmakers and founders of com∣mon weales, at the first did accompt no foun∣dation more stable to support a common weale then societies and fraternities. For Numa Pom∣pilius the king of the Romanes did ordeine cer∣taine guildes of workmen and merchants, and did binde them by solemne sacrifices and feasts, which might be at certaine set daies celebrated to preserue loue, and friendship amongest the people, that they might with more ioy and com∣fort proceede in their priuate and publike af∣faires i 1.40: And this he seemeth to haue done by

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Solons example, who made fraternities of all sorts of men, and permitted them to make Lawes tou∣ching their fraternities, so they were not contra∣rie to the Law publikely receiued k 1.41. But Lycur∣gus did not prescribe certaine feastes to be obser∣ued, but continuall meetings and comessations, that friendship might not at any time be inter∣mitted. In other cities of Greece, societies called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and throughout all Italie sodalitia were ob∣serued. To this end and purpose the Cretensians of all ages, orders, and sexe, did banquet toge∣ther in publike place l 1.42. And in the famous Citie of London, there is annuall and solemne obserua∣tion of their feastes in euery guild, which mighti∣lie preserueth the wealth, tranquilitie, and flori∣shing estate of that citie. Neither is this custome dissonant from God his owne ordinance in the Iewish common weale, who appointed certaine feastes and sacrifices to be obserued of the Iewes, that religion towarde God, and friendship a∣mongest men might bee maintained m 1.43. But as to the making of priuate Lawes by such guildes and fraternities, Solons Law abouesaid hath been obserued almost of all common weales: But the Statute of 15. Henr. 6. giueth somewhat a larger scope to guildes and fraternities in these wordes: Guildes, and fiaternities, and companies incorporate shall not make, nor vse any ordinance, which may be to the diminution of the Kinges fraunchise, or of other fraunchises, or against the common profit of the people,

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vnlesse it be first discussed by the Iustices of peace, or the chiefe gouernors of the village, and before them entred of recorde &c. But when I speake of colledges, companies, meetings, feastinges, and as∣semblies, I doe with the maine force of my hart exclude vnlawfull societies, conuenticles, and secreat meetinges of male-contents, phantasti∣call, and priuate humored persons: But to col∣ledges, fraternities, and companies erected and created by Law, I see no reason but that landes and yearelie maintenance may be giuen and al∣lowed vnto them: yet not without the Prin∣ces permission, who for some speciall causes fore-seene may stoppe and hinder such donati∣ons: And therefore wiselie by diuers Statutes in this Realme is remedie prouided against this, and a writ of Ad quod damnum deuised n 1.44. An∣tonius the Emperour did first of all permit lega∣cies and donations to bee made to colledges and companies, excepting the colleges of the Iewes, whom notwithstanding hee suffered to meete together, and to haue their synagoges for religious vse o 1.45. Alexander magnus did be∣stowe vppon his citie Alexandria, built at the seauen-folde mouth of Nilus, manie great pri∣uiledges, fraunchises, and immunities p 1.46. So Frauncis the first, being the founder of that citie which standeth at the mouth of Sequana, gaue great immunitie to such as should inhabite it q 1.47. And so diuerse of our kinges of England haue

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bestowed many liberties fraunchises and benefits vpon seuerall citties, which M. Camden hath verie profitably & very learnedly amongst other things in their due places set downe, whome I need not further commende to my country-men of Eng∣land, to whom by his great worth and desert he is more deare and precious.

Quàm si illum Veneris commendet epistola Marti.

But I will further proceed in shewing the great prerogatiues graunted by princes and other su∣preame estates to citties and corporations: In all ages and all common weales cities and corpo∣rations haue not only had their courts, folkemote, and the like, but euen common councels (as they are commonly tearmed) and publike meetinges for the generall good of the corporations. For as great profite doth arise by such societies and mee∣tinges: so nothing doth more debilitate and wea∣ken the state of a common weale then the taking away of such Councels: therefore the Romanes, when they had ouercome Macedonia, because they would make the estate of it weake and im∣puissant, they did vtterly forbidde all common Councels, and publike meetinges: so they did when they had ouercome the Achaeans: Memmius the Consull (saith Liuie) did dissolue all the common councels of the particular nations of Achaia, and of the Phocensians and Baeotians, and the other partes of Greece r 1.48: But when these regions and prouinces were sufficiently quieted and soundly knit to the

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bodie of the Romane Empire: then (as Strabo re∣porteth) their auncient Councels were restored vnto them: but the Romanes did neuer alter the liberties of any citie vnlesse they were abused to their hurt, as appereth by the words of Florus: Cri∣tolaus causa belli, qui libertate a Romanis data aduer∣sus ipsos vsus est s 1.49: Neither were the liberties of the Aetolians impeached vntill they reuolted to Anti∣ochus, as Iustin sheweth: Offensi Aetóli, quód non ex arbitrio eorum Macedonia quoque adempta Phillippo, & data sibi in praemium belli esset, Antiochum in Ro∣mana bella impellunt t 1.50. And such abuses many times happen in cities: for as Liuie that excellent writer, in wit diligence and history, matched by none: in wisedome and grauitie by very few, in pietie ouercome onely of one of the heathens,* 1.51 and but of one in eloquence well auoucheth: Nulla est ciuitas quae non et improbos ciues aliquādo,* 1.52 & imperitam multitudinem semper habeat: but as they did fauour lawfull and conuenient coun∣cels, so vnlawfull and secrete conuenticles they did greatly abhorre: wherefore the nocturnall meeting at the sacrifice of Bacchus was iustly ab∣iudicated and disanulled by the whole Senate: & the conuēticle of the black-religioned Brownists by the L. Archbishop of Canterburie, & the high Commissioners, who though a greater number of them were women & pretended themselues to be harmeles, & vnapt to do hurt; yet as Liuie saith; A nullo non genere summum periculum est, si coetus

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& consilia et secret as consultationes esse sinas x 1.53: And this ought especially to be feared and preuented, whē contumelious contumacy is vailed with the shadow of religion and reformation: for as the same Liuie saith againe very well: Nihil in speciem fallacius praua religione, vbi deorum numen praetendi∣tur sceleribus, subit animum timor y 1.54: O lord how long shall Sathan abuse the soules created by thee with a vaine sophistrie in steade of true religion! and such societies, and such families, whether of loue, or of lust, I can not well define, which de∣light in latebris, are worthy to be sent ad carceres, that they may there liue in tenebris: for it is fit to send corrupt humors, which ouerloden and pe∣ster the bodie in latrinam: For surely such Fana∣tickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie, who pretending themselues to bee professors of wise∣dome did bring a great number to the admiration and imitation of them: and finding such strength in the weakenesse of the multitude, they beganne to plant their ramme and sette their force against kingdomes & common weales, and had thought vtterly to haue subuerted them, but their com∣panies were quickly dispersed, and the greatest parte of these companions was destroyed by fire and sword a 1.55: Now to speake somewhat of the li∣berties of a citie. S. Paul when he was by the com∣mandemēt of the magistrates apprehended, being accused that he troubled the publike tranquilitie

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by seditious assemblies, professing himselfe to bee a citizen of Rome hee appealed to Caesar b 1.56 though hee were by nation a Cilician, by bloud an Israe∣lite, by tribe a Beniaminite, yet because his father* 1.57 had beene a citizen of Rome: the liberties were af∣foarded vnto him: he likewise, when he was com∣manded to be scourged pleaded for himselfe that he was a Romane d 1.58. But because the abundance of liberties of all the cities of Asia, Africke and Eu∣ropa, are sufficiently knowne, I will not stay any longer vpon this point, but wil passe to matters of greater importance, and more difficultie.

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