are bound to thinke more soberly To say no more we will onely set downe that of the Arabicke Paraphrast who at the end of his translation of these Canons in stead of that which the Greek saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these things we have delivered unto you concerning the Canons O ye Bishops saith thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is O yee Familie of the faithfull attend 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unto our words and precepts for that they come from the holy Spirit of the living Lord our Care But however it be resolved against these Canons yet that which we have said is also set downe by the Synod at Antioch Can. 24 25. where Note saith Balsamon upon the 25. Canon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the Administration of those things which appertaine to the Church belongeth to Ecclesiasticall men Reade also to the same purpose the 7. 8. Canons of the Councell held at Gangra 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. And 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. where a Curse is past upon all those that presume to give or receive the Church fruits otherwise than by the Bishops dispensation or theirs who by the Bishop shall be appointed thereunto And Steven Bishop of Rome in the second Centurie saith Lâ—cis quoque quamvis religiosi sint nulla tamen de Ecclesiasticis Facultatibus disponendâ— so wee reade rather than Respondendâ— legitur unquam tiâ—buta facultas that it cannot appeare that ever any power was granted to Lay-men though Religious Lay to dispose of Ecclesiasticall goods It is the Bishops observation in his second Epistle and long after him it was repeated in the Councell at Lateran under Innocent the 3. Chap. 44. In the yeare 589. it was set downe in the Toletan Councell Can. 9. that Churches cum suis Rebus should ad Episcopos pertinere And Cyrâ—â— of Alexandria in his Epistle to Domnus saith â—hat the Diocesan for the time being may 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is saith Balsamon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that he may confidently and securely be intrusted with the Church Revenues And because the Bishop had this power over the goods which were conferred upon the Church it seemeth to be a Reason why hee was somtimes present at the last Will and Testament of Benefactors in this kinde for this appeareth by the Will which Berâ—ricke made a Kentish Gentleman of Mepham related by Lambert out of the Antiquities of that place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 into 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And I give saith the Testator the 10. hides at Streiton to the Minster at Walkenstede And the Land at Falcham after â—ythwares dayes to S. Andrewes for AElfrics Soule their Lord and his Elders so their will was c. And this is said to be done on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Witnesse Eadgâ—ue the Lady and Odo the Archbishop c. and AEifsie the Priest of Croyden From this Right which the Diocesan had in the dispensation of Ecclesiasticall goods it proceedeth that he was also especially concerned in the Endowment of a Church or Monasterie For a Monasterie the 17 Can. of the 7. Synod saith thus O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 luâ— Graec. Rom. in Epit. S. Can. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. But see for the Canon â—s Balsamon and Zonaras have it and what they say Be it a Monasterie or otherwise a Church or Oratorie Balsamon saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Founder shall be forced to bring a competencie according as the Diocesan shall approve And how much the Bishop was considered in this matter it appeareth by the 32. Canon of the 4. Councell at Toledo held under Honorius in the yeare 633. No verint tamen conditores Basilicarum in rebus quas itsdem Ecclesiis conferunt nullam se potestatem habere sed â—uxta Canonum instituta sicut Ecclesiam it a dotem ejus ad ordinationem Episcopi pertinere Where it is said that the Founder must know that he shall have nothing to doe neither with the Church nor that which he bestoweth upon it but both shall belong to the Bishops dispensation And this is also cited by Gratian in the Decree 10. q. 1. cap. Noverint In the Bracaran Councell held in the yeare 672. Can. 5. it is set downe that the Bishop may â—efuse to consecrate any Church till he be made sure of a convenable Dotation Memâ—nerit saith the Canon to the Bishop ut non prius dedicet Ecclesiam nisi anteadotem Basilica obsequium ipsius per donationem Chartula confirmatum accipiaâ— nam non levis est â—sta temeritas c. And before this as much was said in the 3. Toletan Councell of the yeare 589. Can. 19. which also was reported in 888. in a Councell holden at Mentz C. 4. Multi contra Canonum constituta sic Ecclesias quas adificaverunt postulant consecrart ut dotem quam eâ—dem Ecclesia contulerunt censeant ad Episcopi ordinationem non pertinere Quod factum in praeteritum displicet in futurum prohibetuâ— sed omnia secundum constitutionem antiquam ad Episcopi ordinationem potestatem pertineant And in the Councell at Cabilon of the yeare 658. Can. 14. whereas the complaint was Quod Oratoria pervillas â—am longo tempore constructa facultates ibidem collata ipsi quorum villae sunt Episcopis contradicant The satisfaction was Hoc convenit emendarâ— ita ut duntaxat in potestate sunt Episcopi Also the Canon Nullus Abbas c. of the Councell at Westminster related before in the matter of Parishes is much to this purpose There we cite it out of a Mâ— Bibloth Bod. which is a continuation of Marianus Scotus Wee finde it also in the Continuation to Florent Wigorn. by occasion whereof looking better into our Manuscript Marian wee finde that it agreeth for the most part with this Florence of Worcester But further to argue this dispensative Power in the Diocesan he that is willing to observe may finde severall passages both of late and elder times among the Records of Sarum a sight whereof I had by the great favour of my worthy Friend M. Edward Thorneburgh one of the Canons Resident of that Church We have seene how farre the Diocesan was concern'd in the Erection Endowment of a Church or Monasterie it remaineth that wee now consider him in that which appertaineth to the Filling For a Monasterie certaine it is that none could be admitted but by the Bishops authoritie This was determined in severall Synods we note onely the forenamed Councell held at Nice because there also the reason of this is set downe let the Reader see the 14. Canon in the Latin Translation set forth by Turrian for those that are not so satisfied we shall shortly provide the Arabick Text if we be not otherwise prevented by those that are better able
and that no poast-horse or carriage be taken but for publick use of poast-letters to whom they are to be granted and for what time Of the Apparitors Sergeants Sumners or Baylifes Of sundry great officers and of their Scribes and Registers and of their trials Of the fees of Advocates and of the extortion of Apparitors And this is the summe of those things which are specially conteined in the Code besides other things which it hath common with the Digest the knowledge whereof at this day is not so necessary for the Civilian who in this age hath little use thereof as it is expedient for Councellours of State and such as are called to place in Court who may there-out marke many things to direct them in their place as the variety of those things which are herein handled doth very well shew CHAP. III. SECT 1. What the Authenticks are and why they are so called THe third Volume of the Law is called the Authenticks of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either because they have authority in themselves as proceeding from the Emperors owne mouth or that they are originals to other writings that are transcribed out of them The Authenticks therefore are a Volume of new Constitutions set out by Justinian the Emperor after the Code and brought into the body of the Law under one Booke In the Authenticks is not that order observed in the disposition of the Lawes as is either in the Digest or the Code but as occasion was offered of any doubt wherein the Princes resolution was necessary to every thing so it is set downe without any other methode or forme The whole Volume is divided into * In the Latine translation for the Greeke text acknowledgeth not this division into Collations 9. Collations Constitutions or Sections and they again into 168. Novels which also are distributed into certaine Chapters They were called †quòd novissimè promulgatae sint post Cod. Justin. Repetitae Praeâ—ectionis and therefore the Greeke calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so likewise the constitutions of the Emperours which were newly published after the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 were called the Novels of Leo Nirephorus Michael c. Novels because they were new Lawes compared to the Lawes of the Digest or the Code Of these Constitutions some were generall and did concerne all who had like cause of doubt some other were private and did concerne only the place or persons they were writ for which I will overpasse with silence SECT 2. The summe of the first Collation OF the generall the first title and first Novell of the first Collation is that Heires Feoffees Executors Administrators and their Successors shall fulfill the Will of the deceased and within one yeare after his decease shall pay his Legacies and Bequests and if they be once sued for it they shall forthwith pay that which is due upon the Will deducting onely a fourth part which is due unto the heire by the Law Falcidia or else to lose such bequests as themselves have in the Will That it shall not be lawfull for a Widow comming to a second marriage after her first husband is dead to sequester one of her children from the rest upon whom shee will bestow such things as her first husband gave her before marriage but that the benefit thereof shall be common to them all Neither that shee convey it over to her second husband or his children and so defraud her first husbands children And that a man in like sort surviving his wife shall doe the like toward his first wives children as concerning such Dowry as the first wife brought to her husband Of Suerties and Warranties that the Creditors shall first sue their Debtors and take execution against their goods and finding them not payable shall then take their remedy against the Suerties Of Monkes that they build no Monasteries but with the leave of the Bishop who is there with prayer to * lay But the Emperour maketh no mention of this Rite for thus saith the Law None shall presume to erect a Church or Monasterie till the Bishop of the place beloved of God having beene made acquainted with it shall come and lift up his hands to heaven and consecrate the place to God by prayer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and there erect the Symbole of our Salvation wee meane the venerable and truely pretious Rood In Auth. De Monach. § Illudigitur Coll. 1. See also Novell 123. 131. And the like is commanded in the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet that this Ceremony of laying the first stone hath beene of ancient use in the Greeke Church may be observed out of their Euchologue where it is said that the Bishop after some other Rites performed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 standing in the place where the holy Altar shall be set saith a prayer which being ended he giveth the Ite Missaest and then taketh up one of the stones and having cut a Crosse upon it himselfe with his owne hands layeth it upon the Ground-worke then hee pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the work-men begin the building That which followeth in the Euchologue discovereth the forme and manner of setting up the Crucifixe which the Law calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Reader may see 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Euchologue The like Ceremonies are used in the Latine Church at this day as may bee seene in their Pontificale page the 281. of that which Clement the 8. set out at Rome in the yeare 1565. the first stone And that the Bishop shall appoint such an Abbot over the Monkes as in vertue and in merit excels the rest And besides of their habit conversation professions and change of life and who is to succeed them in their goods and inheritance Of Bishops and Clerks that is that Bishops and Clerks be of good fame of competent learning and age and that they be ordeined and promoted without Simonie or briberie or the injury of the present Incumbent And that there be a set number of Clerkes in every Church lest the Church and Parishioners thereby be over-charged SECT 3. What is conteined in the second Collation THe second Collation treateth of the Churches State that the lands of the Church be neither sold aliened nor changed away but upon necessity or that they be let to farme for a time or upon other just cause no not with the Prince himselfe unlesse the change be as good or better than that which hee receiveth from the Church and if any man presume contrary to this forme to change with the Church hee shall lose both the thing he changed and the thing he would have changed for it and both of them shall remaine in the right of the Church And that no man give or change a barren peece of ground with the Church That Judges and Rulers of Provinces bee made without gifts of their office power authoritie
priviledge granted to religious orders 200 Stephen Pasquier censured 165. 166. 170. his mistake in a quotation 169 Passage-money 62 Patricii who 45 Patrons may present not ordaine Clerkes 57. their power to erect a Church 191. 193. dependeth upon the Bishop ibid. to endow and fill it 194 195 196. the abuse of their authority 198 199. taken notice of by severall Councels ib. Peeres 105 Pearles by whom to bee worne 42 Perpetuall right betweene passengers 90 Peter-pence when first paid 139 Philosophers why no stipend allowed to them 30 Physicians by Constantine made Earles 47 Pipin buried with his face downwards 165 Piracie what 94. onely punishable by the Admirall Law 273 Pirates 95 Plaintifes office 79 80 Plea of Tenements and of Dowrie have beene of Ecclesiasticall cognisance 118 Plough-almes what 140 141 Pluralities in what case tolerated 85. the abuse of pluralitie of Executors 269. with the remedie 270 Poets denied the priviledge of other professors 40 Popes precedencie 66. whether first granters of Impropriations 190 Popular Actions 22 Possessorie right what 94 Post-horses 49 Postulation of Bishops what 76 Practice of the Civile Law necessary in this Land 272. of such cases as are not provided for by the Common 262 263 Prayer and Preaching conferred 188 189 Preaching preferred ib. Precedencie of States 104 105. of Knights and Doctors 106. of the Pope 66 Priests why called Sacerdotes 34. why Presbyters ibid. why prohibited marriage 253 Prelates excesses 86 Premunire what 122. the originall of it ib. 125. the litle use of it 123. the Statute expounded 124. wrested by our Common Lawyers ib. in force against Priests and Jesuites 125 Prenotary his place 46 Prescriptions the kinds and effects of them 17. for Lay-men to hold Tythes in fee how ancient 163. prescription supposeth possession 216. lyeth not against a mans selfe ib. Presentation originally the Bishops right 196 197. why devolved to lay-patrons ibid. how abused by them 198 199. and therefore a resumption attempted by the Bishops ib. Pretor who 45 Primicerius whence 46 Princes not to bee traduced 85. their name to be put in all Instruments 56. their titles and supremacie 103 104. they should befriend the Church 211. whether the first granters of Impropriations 190 Principall what and what Accessorie 233 Prison-breakers how punished 21 Priviledges what 182. of Religious Persons 188 Prizing of goods oft-times partiall 266 Probates of Wils how farre effectuall 137 Proces in Ecclesiasticall Courts 78 79. by Accusation Denunciation or Inquisition 84 Prodigals estates how provided for by the Civile Law 268. who so accounted 11 Professours excused from services 40. made Earles 47 their stipends 29 Promises to be kept 29 Promoters office 37 Property of things what 93. how got ib. Protocols what 56 Publick workes by whom to bee made 29 Punishment by death foure-fold 25. of souldiers 99 Pupils estates how to be ordered during their minority 9. 10. Purgations Canonicall and Vulgar 86 Purple a weare peculiar to Princes 42 Purser of a ship 90 Q Queene next in ranke to the King 104 Quotitie of Tythes Morall 203. not Judiciall 205 R Racking when to be used 25 Ranks of the Nobilitie 104 105 Receivers of Theeves how punished 20 21 Reformation at the first wherein defective 212. Refutatio feodi what 73 Reliefes of the Civile Law proposed 255. seq Religious persons of what life they should be 184 Reprisals whether lawfull 56. how differenced from piracie 95 Residencie required 81. except in case of sicknesse ib. Retractation of sentence within what time it may bee made 37 Rhodians ancient marriners 90 Right what 2. to any thing how gotten 15 Rolles what they comprehended 47 Rulers of Provinces their office 54 S Sabbath partly naturall partly positive 204 205 Sacraments by whom not to be administred 85 Sacred Mysteries not to be celebrated in private 57 Salick Law 109 Salomons Temple 219 Sanctuarie to whom advantagious 36 Sarum Church by whom and how endowed 190 Satisdation what 94 Saxon Lawes 138 139 Schooles for Henchmen what 48 School-mens curiositie wherein prejudiciall to the Clergie 162. 202 Sea-affaires determinable by the Civile Law 88. Sea common ibid. Secretaries place 46 Secundocerius what 46 Senate of Rome why they refused to admit Christ into the number of their Gods 235 Senators who 46. 48 Seperatorum seperata est ratio 222 Sepulchers violated the punishment 20 Services of the Common-wealth of three sorts 28. exemption from them how procured ib. services to the Exchequer 39. who exempted from personall services 40. Divine Service not to be disturbed 66. not celebrated by Laymen ib. Souldiers priviledges wages discipline c. 48 49. they only permitted to carrie weapons 54. their diet and apparell 98. their faults ib. and punishments 99 Sonne not to succeede the Father in Spirituals 76 77 Spousals what 9. Spurii who 244 Stage-players incapable of some immunities 43 Starre in Cassiopea prodigious 170 Statute of Premunire expounded â—24 those concerning matters Ecclesiasticall imperfect 127. of Henry 8. and Edw. 6. how to be interpreted 256. how supplied 258 259. The word Statute doth not inferre Temporall cognisance 158. Statute of Mortmaine why made and by whom 183 Stealing before the Will be proved how punished 21. of Children or men 24. of women 67 Stellionatus crimen 21 Stipends for liberall Sciences 29. none for Lawyers nor Philosophers 30 Strangers how to be intreated 60 Students excused from personall services 40 Subjects of how many sorts 27 Subsidies 38 Successions 63. 71. in Spirituals 76. of great personages 109. whether the Sonne borne before his Father was King ought to succeed in the Kingdome 111. whether the grand-Childe or second brother be to succeed 112 Suerties not to be sued before the principall 51 Suertiship of women how to be releeved 7 Suing out ones Liverie 71 Superimpositions when used 38 Supervisors of Wils whereto usefull 270 Surveyors office 44 Swearing capitall 59 Sylva caedua in the Statute canvassed 229 230 Symonie 64. 84. T Templars exempted from Tyth-paying 200 Tenth Number the perfection of the rest 203. whether a Figure of Christ. 204 Tenure vid. Feud For terme of life or yeares 70. perpetuall ib. Testaments by whom they may be made 11. a priviledge granted by Princes 265. The kinds proofe and publication of them 11. if doubtfull how to be understood 12. though imperfect yet stand good for Children 61. how much may bee bequeathed 12. how many witnessesrequired to the making 135. when lands are devised 137. a part of Ecclesiasticall Jurisdiction 134. but in part rent from it 135 Testimonie of one witnesse dangerous 136 Theft the definition division and punishment of it 18 Theodosius Author of the Statute of Mortmaine 183. and therefore disliked by â—erome and Ambrose ib. Tiberius requesteth that Christ might be admitted into the number of the Roman Gods 235 Timber by nature Tytheable but exempted by Statute 230 Titles which have beene triable in Ecclesiasticall Courts 114. 115. 116. c. Title of lands varieth not with
holy place Further it provideth that the name of the Prince for the time being be put in all instruments and the day and yeare when the instrument was made That the Oath of the deceased as concerning the quantitie of his goods so farre as it toucheth the division of the same among his children be holden for good but that it be in no sort prejudiciall to the creditors Of women tumblers and such other of like sort which with the feats of their body maintaine themselves that no oath or suertie be taken of them that will not leave that kind of life since such oath is against good manners and is of no value in Law That such gifts as are given by private men to their Prince need no record but are good without enrolling of them and in like sort such things as are given by the Princes to private men That no person thing or gold of an other man be arested for an other mans debt which they now call reprisals and that he which is hurt by such reprisals shall recover the foure double of the damages that he hath suffered thereby and that one man be not beaten or stricken for another That he that cals a man into law out of his Territorie or Province where he dwelleth shall enter caution if he obteine not in the sute against him hee shall pay him so much as the Judge of the Court shall condemne him in And that he who hath given his oath in Judgement shall pay the whole costs of the sute but after shall be admitted to prosecute the same if he will so that he put in suerties to performe it That such women as are unindowed shall have the fourth part of their husbands substance after his death and in like sort the man in the womans if the man or woman that surviveth be poore That Churches or Religious persons may change grounds one with an other for that one priviledged persons right ceaseth against an other that is in like sort priviledged That such changes of Mannors Lands Tenements and Hereditaments as are made by Church-men to the Prince be not fained matters and so by the Prince come to other mens hands who have set on the Prince to make this change and that the change be made to the Princes house onely and if the Prince after convey or confer the same upon any private man it shall be lawfull for the Church to reenter upon the same again and to repossesse it as in her former right That in greater Churches Clerks may pay something for their first admittance but in lesser Churches it is not lawfull That such as build found or endow Churches which must goe before the rest doe the same by the authoritie of the Bishop and that such as are called Patrons may present their Clerks unto the Bishop but that they cannot make or ordaine Clerks therein themselves That the sacred mysteries or ministeries be not done in private houses but bee celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick faith unlesse they call to the celebrating of the same such Clerks of whose faith conformitie there is no doubt made or those who are deputed thereto by the good will of the Bishop But places to pray in every man may have in his owne house if any thing be done to the contrary the house wherein these things are done shall be confiscated and themselves shall be punished at the discretion of the Prince That neither such as be dead nor the Corse or Funerall of them be injured by the creditors but that they be buried in peace That womens Joyntures be not sold or made away no not even with their owne consent In what place number forme maner and order the Princes Councell is to sit and come together That hee that is convented in judgement if hee wilfully absent himselfe may be condemned after issue is joyned That no man build a Chappell or Oratorie in his house without the leave of the Bishop and before hee consecrate the place by prayer and set up the Crosse there and make Procession in the place and that before he build it he allot out lands necessarie for the maintenance of the same and those that shall attend on Gods service in the place and that Bishops be not non-residents in their Churches That all obey the Princes Judges whether the cause bee Civile or Criminall they judge in and that the causes be examined before them without respect of persons and in what sort the Proces is to be framed against such as be present and how against those that be absent SECT 7. What is the matter of the sixth Collation THe sixth Collation sheweth by what meanes children illegitimate may be made legitimate that is either by the Princes dispensation or by the fathers Testament or by making instruments of marriage betweene the Mother and Father of the children so that the Mother die not before the perfecting of them or that shee live riotousâ—y with other men and so make her selfe unworthy to be a wife That Noble personages marrie not without instruments of Dowrie and such other solemnities as are usuall in this behalfe that is that they professe the same before the Bishop or minister of the place and three or foure witnesses at the least and that a remembrance thereof be left in writing and kept with the Monuments of the Church but that it shall not be needfull for meaner persons to observe the former solemnities That such as were indebted to the Testator or they to whom the Testator was indebted bee not left Tutors or Guardians to their children that if any such be appointed a Tutor a Curator be joyned to him to have an oversight of his dealing that Tutors or Curators are not bound by Law to let out the Minors money but if they doe the interest shall be the Minors and the Tutor shall have every year two moneths to finde out sufficient men to whom he may let the money out to hyer for that it is let out at his perill that if the Minors state be great so that there will be a yearely profit above his finding the Tutor shall lay up the residue for a stock against he comes to age or buy land therewith if he can finde out a good bargaine and a sure title but if the childes portion be small so that it will not find him then the Tutor or Curatot shall dispose of the Minors state as hee would dispose of his owne to which also hee is bound by oath How such instruments as are inrolled before Judges concerning matters of borrowing and lending and such like may have credit how men may safely bargain either with writing or without writing if themselves be ignorant men and of the comparison of Letters and what credit there is to be given to an instrument when the writings and witnesses doe varie among themselves Of unchaste people and such as riot against nature whose punishment
Levell and Line The Canon Law consisteth partly of certaine Rules taken out of the holy Scripture partly of the Writings of the ancient Fathers of the Church partly of the ordinances of generall provinciall Councels partly of the Decrees of Popes of former ages Of the Canon Law there are two principall parts the Decrees the Decretals The Decrees are Ecclesiasticall constitutions made by the Pope and Cardinals at no mans suit are either Rules taken out of the Scripture or Sentences out What is the antiquity of Decrees and who were the Authors that compiled them of the ancient Fathers or Decrees of Councels The Decrees were first gathered together by Ivo B. of Carnat who lived in the time of Vrban the 2. about the yeare of our Lord God 1114. but afterward polished perfected by Gratian a Monk of the Order of S. Bennet in the yeare * Trithem in his second Booke De viris illust saith that Gratian wrote this Worke at Bononia in the Monasterie of S. Felix Anno 1127. Others say it was done in the yeare 1151. Bellarmine to reconcile the difference saith that Gratian might begin the work according to the first account and finish it according to the second 1149. and allowed by Eugenius the Pope whose Confessor hee was to bee read in Schooles and to be alledged for Law Of all the severall Volumes of the Canon Law the Decrees are the ancientest as having their beginning from the time of Constantine the great the first Christian Emperour of Rome who first gave leave to the Christians freely to assemble themselves together and to make wholsome lawes for the well government of the Church The Decrees are divided into three parts wherof the first teacheth of the origen and beginning of the Canon Law and describeth and setteth out the rights dignities degrees of Ecclesiasticall persons and the manner of their elections ordinations and offices and standeth of one hundred and one distinctions The second part setteth out the causes questions and answers of this Law which are in number 36. and are full of great varietie wisdome and delight The third and last part conteineth matter of consecration of all sacred things as of Churches bread and wine in the Sacrament what dayes and Feasts the Primitive Church used for the receiving thereof of the ministring of the Sacraments in Baptisme and the use of imposition of hands all which is set out under five distinctions SECT 2. What the Decretals are and how many parts they comprehend THe Decretals are Canonicall Epistles written either by the Pope alone or by the Pope and Cardinals at the instance or suit of some one or more for the ordering and determining of some matter in controversie and have the authoritie of a law in themselves Of the Decretals there be three Volumes according to the number of the Authors which did devise and publish them The first Volume of the Decretals was gathered together by Raymundus Barcinius Chaplain to Gregory the ninth at his the said Gregories commandement about the yeare 1231. and published by him to be read in Schooles and used for Law in all Ecclesiasticall Courts The second is the worke of Boniface the eight methoded by him about the yeare 1298. by which as hee added somthing to the ordinance of his Predecessours so he tooke away many things that were superfluous and contrarie to themselves and reteined the rest The third Volume of the Decretals are called the Clementines because they were made by Pope Clement the fifth of that name published by him in the Councell of Vienna about the yeare of grace 1308. To these may be added the Extravagants of John the xxij some other Bishops of Rome whose authors are not known and are as Novell constitutious unto the rest SECT 3. What is contained in the first Booke of the Decretals EVery of the former Volumes of the Decretals are divided into five Bookes and containe in a manner one and the same titles whereof the first in every of them is the title of the blessed Trinitie and of the Catholick faith wherein is set downe by every of them a particular beliefe divers in words but all one in substance with the ancient Symbols or beliefe of the old Orthodoxe or Catholick Church Secondly there commeth in place the treatie of Rescripts Constitutious Customes the authority of them when they are to be taken for Law after followeth the means wherby the greater Governours of the Church as namely Archbishops Bishops such like come unto their roome which was in two sorts according as the parties place or degree was whē he was called unto the roome as if he were under the degree of of a Bishop was called to be a Bishop or being a Bishop was called to be an Archbishop or to be the Pope himselfe hee was thereto to be elected by the Deane and Chapter of the Church where hee was to be Bishop or by the Colledge of the Cardinals in the Popedome but if hee were already a Bishop or an Archbishop were to be preferred unto any other Bishoprick or Archbishoprick then was he to be required by the Church he was desired unto and not elected which in the Law was called Postulation after Postulation followed translation by the superiour to the See to which hee was postulated or required after Election followed Confirmation Consecration of him that was elected which both were to be done in a time limited by the Canōs otherwise the party elected lost his right therin Bishops and other beneficed men sundry times upon sundry occasions resigne their benefices and therefore is set downe what a renunciation or resignation is who is to renounce and into whose hands and upon what causes a man may renounce his benefice or Bishoprick and because under-Ministers are oftentimes negligent in their Cure that the people in the meane time may not be defrauded of Divine Service the Sacraments the food of the word of God it is provided that the Bishop shall supply the negligence of such Ministers as are underneath him in his Jurisdiction besides because holy orders are not to be given but by imposition of hands with prayer and fasting * The old Romans instituted three yearely Solemnities in honour of their Gods for the Fruites of the Earth These also the Romish Church observed having first moderated their superstition and directed them to a more sacred end To the three one of their Popes as they say added the fourth with a respect had to those of the Jewes in Zech. 8. 19 and so they were called Iejunia quaiuor temporum Their institution at the first had many other causes for which see the Sermons of Leo and Durants Rationale but in after times at these Solemnities especiall regard was had to the Ordination of Priests and Deacons which had beene formerly performed onely once a yeare in the Moneth of December as Amalarim hath observed It seemeth therefore
into England to reëstablish the Faith decayed by the Saxons who set downe sundry ordinances for the Church framed it in uniformity of Prayer and government to that which then was used in the Church of Rome but long before Aug. time as it may by our Stories appeare even in the dayes of King Lucius who sent to Elutherius a Bishop of Rome for Ethelward lib. unico learned men to instruct him and his people in the Faith which was about a hundred and forty yeares after the Ascention of our Lord Jesus Christ the Faith of Christ was here preached in Britaine and fifteene Archbishops are by our Stories reported one to have succeeded Iocelin of Furnes in his Booke of Brittish Bishops Marianus Scotus an other in the See of London before the irruption of the Saxons into this Land All which time it is not like the Churches of God that were in the Land were void of this provision for the Ministerie so that I assure my selfe the payment of Tythes was farre more ancient than the time of Augustine albeit the Conquerour citeth there the authoritie of Austin rather than any former precedent of the Britons both for that the doctrine of Austin was better knowne unto the Saxons among whose Ancestours Austin taught governed as an Archbishop than any of the Fathers of the Brittish Church to whom the Saxons were enemies and their tongue altogether unknowne unto them and beside for that this doctrine of Austin concerning Tythes best suited with the generall custome that was then used thoroughout all Europe in paying thereof The next Prince after William the Conquerour that ordered any thing about payment of Tythes for ought that I have read to the contrary was Ed. 1. who at the petition of the Clergie established the Articles of the Clergie which his Sonne Edw. 2. confirmed by his Letters Patents under his great Seale by consent of Parliament at the petition of the Clergie in the IX yeare of his Reigne In Edward the thirds time Writs of Scire facias were granted An. 18. Ed. 3. cap. 14. out of the Chancerie to warne Prelates and other Clerks to answer for Dismes there but after the matter was well understood by the King the parties were dismissed from the Secular Judges for such manner of pleas saving to the King his right and such as his Ancestours had and were wont to have of Reason During the Reigne of Richard the second Parsons of holy Church An 1. Rich 2. cap. 14. were drawne into secular Courts for their owne Tythes by the name of goods taken away And it was decreed by the King that in such case the generall averment of the plaintife should not be taken without shewing specially how the same was his Lay-cattell By the Statute of the first of the same King cap. 14. it is acknowledged that the pursuing for Tythes of right doth and of old times was wont to pertaine to the Spirituall Court and that the Judges of 15. Ed. 3. holy Church onely have the cognisance in these matters By the Statute of the 15. of Edw. the third it is ordered That Ministers of holy Church neither for money taken for the redemption of corporall penance nor for proofe and account of Testaments nor for travell taken about the same nor for solemnitie of Marriage nor for any other thing touching the Jurisdiction of holy Church should be appeached or arrested or driven to answer the Kings Justices or other Ministers and thereupon they should have writs in 2. Henr. 4. the Chancerie to the Justices when they demanded them In the second yeare of Henry the fourth the Religious of the order of the Cystercians that had purchased Buls from the Pope to be discharged of the payment of Tythes were by act of Parliament reduced 5. H. 4 C. 11. to that state that they were in before In the 5. yeare of the same King it was ordered That all Farmers and Occupiers of any lands or possessions belonging to any Fryers Aliens should pay all manner of Tythes due to Parsons and Vicars of holy Church in whose Parishes the same were as the Law of holy Church required notwithstanding the same were seised into the Kings hand or any Prohibition were made or to be made to the contrary About the 7. yeare of the same King such religious persons as had purchased Buls from the Pope in the dayes of Richard the second to bee discharged of Dismes pertaining to Parish Churches Prebends Hospitals or Vicarages not put in execution were forbid from that time forward to put them in execution or to purchase any other in time to come After King Henry the eigth had dissolved the Monasteries and other like religious houses and sold the Churches and Tythes thereto belonging to Lay men who before that time were not capable of the same insomuch as after the dissolution when the Purchasers demanded the same they were denied to hold plea thereof by reason 27. Hen. 8. cap. 20. of their incapacitie a Statute was made in the 27. yeare of the same King whereby all Subjects of the Kings Dominions were to pay their Tythes and other dueties of holy Church according to the Ecclesiasticall Lawes and ordinances of the Church of England and after the laudable uses and customes of the Parishes places where they dwelt or occupied lands and the same to bee sued for before the Ordinarie or some other competent Judge of the place according to the course and processe of the Kings Ecclesiasticall Courts of England which Statute because it tooke little effect by reason of the obstinacie of the people in not yeelding these duties to the Laitie who had purchased them and that the said Purchasers could neither by the order or course of the Ecclesiasticall Lawes sue for them in any Ecclesiasticall Court of this Land neither was there found any remedy in the Common Law of this Land whereby they might be releeved against them that wrongfully detained the same Therefore in the 32. following an other Statute was made wherein it was 32. Hen. 8. c. 7. enacted that all singular persons of this Realme and other of the Kings Dominions of what state degree or condition soever they were should fully truely and effectually divide set out yeeld and pay all and singular their Tythes and Offerings to the owners proprietaties and possessors of Parsonages Vicarages and other Ecclesiasticall places according to the lawfull customes and usages of the Parish and places where such Tythes or other duties rise and grow due And in case where any are wronged and greeved being either an Ecclesiasticall or Lay person for the wrongfull deteining or with-holding of the said Tythes or Offerings or any part or parcell thereof the same to have full power and authoritie to convent the same person or persons so deteining the same before the Ordinarie or other competent Judge of the place where such wrong was done and the same Ordinarie
if the usage and custome of the payment it selfe had not beene subject to the Ecclesiasticall cognisance for in vaine shall a man sue for that the Law allowes him no course to come by if it be denyed in the speciallest L. Finals ff de officio ejus cut mandata est turisd l. 3. ff de penu legata point belonging to that suite for this is undoubted Law where ever there is an authority or Iurisdiction granted there are in like manner granted all those things without which that authority or Jurisdiction cannot bee perfected or performed SECT 3. That customes of payment of tythes are triable onely at the Ecclesiasticall courts ANd therefore it is without question as Tythes by the said Statutes are onely recoverable by the Ecclesiasticall Law and not elsewhere so also the custome whereby they are paid is only triable at the Ecclesiasticall Law Otherwise this inconvenience will follow thereupon which in all other Lawes beside this of ours is a great absurditie Bartol l. nulli C. de iudicijs Glos. c. significaverunt de iudicijs that the connexitie of the cause which the Civilians call Continentiam causarum will be dismembred and disjoyned which by all good pollicie together with all her parts emergent or annexed ought to be handled discussed and determined before one and the selfe same Judge one I meane not in number but one in profession for otherwise I should by this assertion barre Appeales which is not mine intent Which course if it were held here in England causes should not be drawn peece-meale in such sort as Medea tore her brother limme-meale and one part of it carried to this Cicero pro Murena Court another to that like unto the rent lims of the childe that were cast here and there by Medea thereby to hinder her father from pursuing her but all should be ended in one and the selfe same Court which would be a great ease to the subject who now to his intolerable vexation and excessiue charges is compelled to runne from Court to Court and to gather up as it were one lim of his cause here and another there and yet happily in the end cannot make a whole and perfect body of it Beside it is a mighty disorder in a Common-wealth thus to jumble one Jurisdiction with another the very confusion as well of the one Law as the other for as Kingdomes are preserved by knowing their bounds and keeping their limits so also Jurisdictions are maintained and upheld by containing themselves within the lists or banks of their authoritie Further unles they will grant that there is an Ecclesiasticall custome as there is a Secular Custome and that the one is as well to be tried in the one Court as the other is in the other they will make their own Doctrine in the before rehearsed Prohibition voyde where they will have it certain that there is a Secular Custome if there be a Secular Custome then doubtlesse there is also an Ecclesiasticall or Spirituall custome for the word Secular is not put in that Glo 〈…〉 Clem. unica in verbo aternaliter de summa tâ—â—nit fide catholica place absolutely but relatively and the nature of Relatives is one to put another and one to remove another but in the Secular customes they barre the Civilian therefore they grant him the spirituall for of contrary things there are contrary reasons and contrary effects and what that which is proposed doth worke in that which is propounded L. Fin. §. plus autem de legatis 3. â—bâ— Angel the same againe that which is opposed doth worke in that which is opponed by which Rule as Temporall Lawyers are to deale in Temporall Customes and spirituall men are not to intermeddle therein so also Ecclesiasticall Lawyers are to deale in Ecclesiasticall causes and Temporall Lawyers are not to busie themselves thereabout And that this was the intent of the King when hee first received the Church into his protection with all the priviledges thereof may appeare hereby that having united both the Jurisdictions in his owne person he did not jumble them both together as now they are but kept them distinct one from the other not onely in authorising the Ecclesiasticall Courts that were before but also in using the very words and phrases that the Jurisdictionaries Ecclesiasticall did use every where in their writings even these words whereupon men now take hold to frame Prohibitions viz. according to the laudable customes and usages of the parish and places where such Tythes grow which were the words of Innocent the third in the Decretals upon the title of Tythe long before these Statutes were made or any other Statutes concerning the true payment of Tythes and Linwod in the same title of Tythes often useth the very selfe same words and phrases that the other doth so that if these words made no Prohibition before the Statute as I thinke it cannot well be shewed to the contrary neither ought they to doe it now since the Statute for that they are spoken still in the Church businesse and not in a temporall matter whose government although it be under one and the selfe same Prince that the temporall state is yet is it distinct from the same as ever it hath beene since there hath beene any setled forme of Church-government in any 1 Cor. 5. common-wealth as may appeare both by the example of S. Paul which never goeth to any temporall power to punish the incestuous person although there were sundry lawes then both in Greeke and Latin written of these matters but doth it by the spirituall sword alone and also by that that in matters of jarre for worldly causes betweene brother and brother hee forbids such as were new Christians to goe to 1 Cor. 6. law before Infidels but adviseth them rather to appoint Judges among themselves to decide such controversies which albeit in those dayes was meant as well of lay Christians as of the Ministers of the Gospell for that the number of them then was small and the causes of suit they had one against an other were not many and might easily be ended by one and the selfe same consistorie yet when the number of the Christians increased and the Church got some rest from persecution the Jurisdiction was againe divided and as there were secular Courts appointed by Princes wherein temporall mens causes and lay businesses were heard so there were also by the same authoritie erected Ecclesiasticall Courts and Bishops audiences wherein either Ecclesiasticall mens causes alone or such as they had against C. de Episcopali audienta â—ertia Lay men or Lay men against them were treated of and determined So that this was no new devise of Henry the eigth or Edward his Sonne that when they tooke upon them the supremacie over the Church as they had before over the common-wealth they did not mishmash both the States together and made one confused heape
Christ or an Apostle all Stories would be Legends almost every discourse too strange to be true But it seemeth very convenient for the satisfaction of reasonable Creatures that these things should be so for if God did not somtimes interrupt the common course wee should dote upon the ordinarie meanes and begin to think that Nature had no supreamer cause than it selfe If the Storie of this vision should not be true wee will not say in every circumstance for wee have promised to doubt of the damnation of Charles yet I say if some thing like to this hath not been then what shall be thought of all those ancient testimonies of grave and learned men who are engaged to make this good To let passe the rest what shall we thinke of the Relation of Fauchet that a Chronologer should say Que de son temps plusi urs gens l'asseuroyent comme a yans esté presens a la visitation de ladite sepulture les Evesques des Provinces de Rheimes Rouen assemblez en un parlement tenu l'an huit 〈…〉 ns cinquante huit l'alleguerent pour exemple a Louyis ' Roy de Germanie comme histoire veritable adjoustans que Charles estoit damné That wee may know what Fauchet saith wee must observe that in the yeare 858. the Bishops that then were of Rhemes and Roan were summoned to a Councell by Lewis the third but fearing for good causes what the successe might bee they appeared not neverthelesse they wrote an Epistle to the Emperour where amongst other matters advising him to vindicate the Church they peremptorily alledged the damnation of Martel and that when he was look't for in his grave by Boniface and Fulrade he could not be found but that in stead of him there issued forth a fearfull Dragon leaving the place all black as if it had beene burn'd And that the Emperor might make no doubt they enforce the credite of the Storie with this undeniable testimonie Nos autem illos vâ—dâ—mus nempe Bonifacium Fulradum qui ad nostram usque atatem duraverunt nobis viva voce veraciter sunt testati qua audierunt viderunt The entire Epistle is extant and the preservation of it we owe to the learned Baronius in whose Annals wee may finde it Ad annum Christi 858. So much of it as concern'd the Storie of Martel was cited by Gratian 16. q. 1. post Can. 59. It is also related by Martanus Scotus ad annum Christi 764. but not to bee look't for in the printed Copies for we reade it in a manuscript of our publick Librarie which hath much more of Marian to shew than ever yet came forth for it exceedeth those that are printed by a third part and which is more to be noted by us it is constantly interposed with the Synchronismes of our owne Storie Yet it would be enquired whether Marian bee Authour of all that hee is there entituled to because at the yeare 1054. pag. 351. the manuscript saith thus Eodem anno natus est Marianus Hibernensis probabilie Scottus caâ—us studio laborchee Chronicon pracellens est de diversis libris câ—adunatum The French Historians for the most part disparage this vision for feare of Martels damnation yet Nichol Gilles in Belleforest relating the Storie concludeth it with a sober demurre Maâ—s cequ'il en est je ne scay riâ—n cest a Dien ale sâ—avoir But saith hee what to thinke of this I cannot tell God he knoweth But of Charles Martel thus farre this onely may briefly and confidently bee added That as he came improperly into the world so he went unusually out for he was borne a Bastard and died miserably notwithstanding came neere five hundred yeares after for this fact of Martellus was done about the sixe hundreth and threescore yeare after the Nativitie of our Saviour Jesus Christ but the Councell that reformed it and was holden uuder Alexander the third was not celebrated before the yeare of the Incarnation 1189. neither was the reformation thereof at that time totall nor suitable to the first institution of Tythe among Christians For neither could many wilfull and refractarious persons bee then brought to obey the Canons of the Councell in restoring any part thereof againe unto the Church although they were charged so to do under paine of * Irreligious people have alwayes beene so backward to do the Church this great right that they have oftentimes bin overtaken with the Curses both of God and Men. Severall anathemae's out of severall Synods might be urged but the most notable proceeding against this Sacriledge may be found in the Generall sentence of Execration denounced foure times every yeare Somthing to this purpose was said before Chap. 2. Sect. 1. out of an ancient Booke which I have where those Church-robbers are branded with the More and the Lasse Curs It remaineth that in this place wee declare that matter more fully out of the old English Festiuall and out of the Articles of the Generall greater Curse found in S. Pauls Church at Canterbury in the yeare 1562. according as it is related by Thomas Becon in the Reliques of Rome And first wee will observe what our Ancestours understood by these kindes of Execrations and what was their More Lesse Curse The Festivall saith that Cursing is such a vengeance-taking that it departeth a man from the blisse of Heaven from housel shrift all the Sacraments of holy Church and betaketh him to the Devill and to the paines of Hell without end The Canterbury Booke saith thus Wherefore yee Shullen vnderstand at the beginning that this word Curse is thus much to say as departing from God and all good works Of two manner of Cursing holy Church telleth the one is cleped the Lasse Curse the other is cleped the More Curse That wee clepen the lasse Curse is of this strength that every man woman that falleth therein it departeth him froe all the Sacramentes that bene in holy Church that they may none of hem receaue til they bee assoyled c. The More Curse is much worse and is of this strength for to depart a man froe God and froe all holy Church and also froe the company of all Christen folke never to be saved by the passion of Christ ne to be holpen by the Sacramentes that bene done in holy Church ne to haue part with any Christen man c. Concerning those that debarre the Church of any rights or dues whatsoever the Priest in the Festivall pronounceth thus By the authority of God the Sonne and the Holy Ghost and his glorious Mother and mayden our Lady Saint Mary and the blessed Apostles Peter and Paul and al Apostles Martyrs Confessours and Virgins and the halowes of God I denounce and shew for accursed al thoe that franches of holy Church breake or distrouble or bene against the State of holy Church or thereto assent with deed or councell And alsoe all thoe that priue holy
tend to the discredit or disadvantage of most necessarie Prayer equall to the dignitie of Preaching which God hath ordained to bee the onely meanes to come to Salvation by For Faith comes by hearing and hearing by the word of God and without Faith it is impossible to be saved for Faith is a gift that purifies the heart and makes a mans prayers acceptable to God and therefore neither of them ought so to take place as that the one should shoulder out the other but they ought so to goe hand in hand together as that one should helpe assist and countenance the other SECT 4. Whether Appropriations came first frō Princes or Popes it is questionable BUt how these annexations of Benefices first came into the Church whether by the Princes authoritie or the Popes licence it is very disputable and there are reasons on both sides for to shew the same For whereas there are reported by Ingulphus Abbot of Crowland before mentioned to have beene eight Churches beside the Patronage of some other annexed and appropriated to the said Abbey by sundry Saxon Kings it doth not appeare by ought I can finde whether they were done by the soveraign authoritie of the Kings alone to the imitation of that that was done by Martellus who made all Christian Kings to sinne in this point or that it was done by any other Ecclesiasticall authoritie for that there is nothing extant for the allowance thereof save the severall Charters of those ancient Kings only that I should bee the rather induced to beleeve that it was done by those Kings authoritie only I am thereto persuaded for that I finde William the Conqueror immediatly upon the great victory that hee got over this Kingdome to have appropriated three Parish Churches to the Abbey of Battaile which hee built in memory of his Conquest And whereas William his sonne had depopulated and overthrowne sundry Churches in the new Forrest Henry his brother by his Letters Patents gave the Tythe therof to the Cathedrall Church of Sarum annexed thereto twenty other Churches in one day if the copie of that record that I have seene as concerning these appropriations be true yea the matter was gone so farre in those daies that even Noble persons and other meaner men would command Corodies and pensions to their Anno 1. Edw. 3. c. 10. Chaplaines other servants out of Churches and this could not be redressed untill such time as there was made a Statute to reforme it On the contrary side that I should take it to be a devise of the Pope I am moved thereto for that I finde every of these orders of Religious men were confirmed by one Pope or other as they confirmed them so it is like they made provision for them that most especially this way that chiefly after the Laws of Amortisation were devised Linwood c. licet bona memoria Gloss in verb. asserunt non logari de locato conducto put in ure by Princes thereupon it is that we find sundry sorts of annexation made by Popes Bishops under them every one in their Diocesse as some were made so far as concerned the Patronage only then had the Monks therein presentatiō only some other were made pleno jure then might the Monkes both institute destitute therein without the Bishop and turne all the profit thereof to their own use reserving onely a portion to him that should serve the Cure there some other Churches did they grant simply to them without any addition of full right or otherwise then if the Church were of their owne foundation they might chuse the Incumbent being once dead whether they would put any other therein unles †By occasion of that which the Authour here saith and that which hee hath hereafter said concerning the Patrons pension from the Bishop Chap. 5. Sect. 1. of this 3. Part. It shall be here enquired what Right and Title the Diocesan had to a new Church or Monasterie and how it stood in comparison of the Patron and because this Right seemeth originally to discover it selfe in the Founding Erecting and Endowment of a Church or Monasterie by all or either of which the Law saith a Patron may be made the Bishops consent alwaies presupposed as hereafter shall appeare therefore in the first place it must be considered how farre forth the Bishop was concern'd in these that it may the better be understood how truly hee was qualified to the Right of Presentation For that which concernes Foundation and Erection All that the Patron had free to himselfe in the first place was but his Thought he might thinke where he would designe the Ground or How he might Build the Church and if he entertained his owne Motion hee might make it his purpose But this was nothing without Execution and to this the Diocesan was to bee required as the most principall and most effectuall Agent therefore it is said in the 4. Canon of the Councell of Chalcedow that no man shall erect 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Monasterie or a Church without the Bishops consent And Lambertine saith that this was so necessarie that if a Church were set up in the Patrons ground without his consent the Patron could not pull it downe without the Bishops consent yet if the Patron built a Church upon his owne ground without the Bishops consent the Bishop might pull it downe without the Patrons consent and yet in this case the Patron might not doe it without the Bishops consent c. But to see further For the Greeke Church their Euchologue saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. That the Materials being provided for the foundation of the Church that shall be erected the Bishop commeth thither in person c. and having put on his Formalities the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he saith certaine Prayers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. This done 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 the Bishop fumeth the Ground worke with his incense circularwise then the Singing men say the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a kinde of Collect for the Saint to whose name the Church is dedicated and some other Services as the Chaunter shall appoint That which followeth in the Euchologue concerning the Corner-stone which the Bishop crosseth and layeth for the Foundation hath beene formerly observed by occasion of the Emperours Novell to this purpose perhaps the same Church had people belonging unto it for then must they of necessity still maintaine a Curate there of this sort were their Granges Priories those which at this day we call Donatives but if it were of another mans foundation then was it otherwise To this also I adde that the Pope every where in his Decretals arrogateth this right unto himselfe as a Prerogative of the Apostolike See to grant these priviledges to Religious orders to take and receive Benefices
at Lay mens hands by the mediation of the †Diocesan whose office it was to be a meane betweene the Religious house and the Incumbent for in indifferent Where we speake of the B habite wee have safely retained the words of the Euchologue 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for that wee finde them confusedly and uncertainely rendred The latter may import Humerale the former seemeth literally to bee as much as Collare but Gretser was very angry with Iunius for translating it so in his Notes upon a fragment of Curopalate Quasi de Canibus sermo esset as if saith the Jesuite Master Young had beene talking of Dogges But see what Gretser himselfe saith to the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in his Comment upon Codin cap. 16. To returne to our Diocesan The Right and Title to a Church and that which belongeth therunto is more peculiarly acknowledged by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or setting up of the Crosse the performance whereof was in this manner 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Euchol 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Word being brought to the Patriarch concerning the Church that is to bee built Letters are directed either to the Exarch or to some of the Bishops to request that the Church may be founded consecrated and entitled to the Patriarches 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then commandement is given that a crosse of wood be provided upon which the Patriarches Secretaries must set down upon the one side The Patriarchs 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 consecrated in the name of such a Saint in such a Citie preserv'd by God in such a Province of proper will by such or such the most holy and Oâ—cumenicall Patriarch On the other side During the Reigne of such and such our most Religious Princes in such a Moneth of such a yeare Then the Crucifixe must be sent to the place where the Church is to be erected and there the Bishop by whom it is conveighed saith the forenamed Service which is used at the founding of a Church and when hee maketh the Consecration the Crosse must be set up behinde the holy Altar there being prepared for it some lofty structure fitted with a concavity to receive it either of Stone Iron or Brasse as it may be seene in the great Church By the great Church understand that of S. Sophia in Constantinople Thus the Euchologue for the Greeke Church The like to this for as much as concerneth the substance is observed in the Latine but the Ceremonies there are more tedious and elaborate The Reader that hath so much time and patience shall finde this true in their Pontisicall By the setting up of the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the right of the new Church was conveyed to the Patriarch or Bishop as by an especiall title so that now for the most part things were altogether disposed by but nothing at all without the Bishops jurisdiction And wee alwayes adde The Bishop for though the Patriarch be especially named in the Euchologue it be also a controversie betweene them concerning this Title as it is taught by Balsamon upon the 31. of the Apostles Canons yet that the Bishop if not onely yet also had this right it is evident by the Emperours Novell And concerning the conveyance of this Right by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 see what is set downe by the Patriarch of Constantinople in the case of Iohn Bishop of Lepanto and for this see the Ius Graeco-Romanum Tom. 1. Lib. 3. Sent. Synod 1. p. 232. 233. c. Edit Francofurt Ann. 1596. See also that of Manuel de jur Patronat p. 242. And that the Patriarch or Bishop should challenge this jurisdiction over the new Church it seemeth most reasonable For what did the Lay Patron do more than a man of Israel who brought a Lambe to the doore of the Tabernacle but the Priest made it an Offering and an Attonement The Patron indeed perhaps might chuse the place but till the Prelate came and sanctified the ground it might as well be a Denne of Theeves as a house of Prayer The Patron might bring the stones but the Bishop laid the foundation or if the workeman put the materials together made up a house the B. made that a Church till then nothing was but the breathles body of a Temple the soule being yet to come from a diviner influence of the Diocesan Therfore it was that the priviledge of a new Church followed not the building but the consecration of it as the Condition is worthily observed by the devout learned K. Alured in his Lawes C. 5. which is Be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the priviledges of Churches The King saith that if a man pursued by his enemie flie to the Temple 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nân man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no man may take him away for the space of a seven Night 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. if he be able to live for hunger c. Other and greate immunities the King there granteth to the Church but the Law had this caution 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This freedome we give to every such Church as shall be hallowed by the Bishop Wee have seene upon what just and valuable considerations the Diocesan might challenge a Right and Title to the New Church by foundation and erection In the pursuite hereof wee hope to set downe manifest incouragements to argue the use and exercise thereof in the endowment and filling of a Church or Monasterie Therefore if wee looke backwards we shall finde it a Custome well nigh from all Antiqutie that the goods and revenues of Churches have beene alwayes acknowledged to belong of Right to the Bishops disposing Some authoritie for this may be had out of those Canons which are called the Apostles Canon 37. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Let the B. have in his power all the goods of the Church and let him dispose of them as in the sight of God So the 40. Canon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Where also the reason is given 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For if the pretious soules of men are committed to his care how much more ought hee to bee intrusted with the Church revenues For the authoritie of these Canons it may now be thought too late and to little purpose to speake and yet I have alwaies marvelled who that should be that durst be so bold as to fasten so many forged precepts upon the Apostles and much more that whosoever he were hee could be so fortunate in his fraud as not to be discovered rather in the next Age than in those later times which saw the former at a distance may be thought to know but a little of that which was then done True it is that some of these Canons may seeme to argue neither the Spirit nor Style of that Age in which they pretend to have beene brought forth and yet of others we
Idem part 22. q. 87. art 1. who was figured by the tenth number All which that we may grant to be true betweene Christ and all mankinde as it is true indeed and that ten is the perfection of the other numbers under ten for that all the rest of the Digits when they come to ten returne back againe to ten and are multiplied by the coupling of themselves with ten yet where is this proportion betweene Christ and ten in the Scripture that should make this Ceremonie which if it cannot be found any where nor any consent of the primitive Church shewed for it as I thinke it cannot be then may it with as good authoritie be rejected as it is received For albeit Thomas Aquinas himselfe was tearmed a Seraphicall Doctor that is such a one as had a sense in the understanding of the holy Scripture above all others of his age and that he did much profit the studie of Divinity with his wittie distinctions yet is not his authoritie such that it must prevaile in cases of Divinitie without the authoritie of the Scripture and the consent of the ancient Fathers of the primitive Church interpreting this peece of Scripture in that sense as he doth which would make a sweet harmony if it might be had And therefore as to my poore sense better said a learned man of our time to this point writing upon the Sabbath day Iunius in 2. c. 3. Geneseo◠in the second of Genesis which may be also proportionably understood of the tenth for that they were both before the Law in their very number and were but repeated by Moses under the Law because they had beene approved by God before the Law in the selfe same numbers and that which hee saith of the Sabbath is this that albeit it hath a Ceremoniall designation of the day that is that it doth figure unto us our perpetuall rest which we shall have in heaven after that there is a new heaven and a new earth yet there is therein two parts the one naturall the other positive as that God should have a seventh day of worship this is Naturall and therefore doth remaine because it is perpetuall but that this seventh day of the Lords worship should bee the seventh after the Creation of the world this was positive and therefore was changed by the Apostles and blessed men of the primitive Church into the seventh day after the Resurrection of our Saviour Jesus Christ which as it is verified by him in the Sabbath so may it be in like sort vouched by like reason in the tenth wherein also by like semblance there are two parts the one naturall the other positive The naturall is this that God our of all the fruits of the earth the increase of cattell that are worthy of him and fit for mans use should have a tenth both in the acknowledgement of his universall government over us and also for the provision of his ministers and therefore this remaineth in that sence immediately after the disolution of the Jews policie the good Christians of the Primitive Church as soone as they could get any outward forme of a Church peace from persecution received it in the very quotitie as a thing no lesse belonging to their Ministers than it did appertaine to the Priests Levites of the Law But that the Lord annexed these Tythes by Moses to the Priest Levites for their maintenance during the time of the dispensing of the mysteries under the Law this is positive and therefore changed by the good Christians in the Primitive Church frō the Jewes Ecclesiastiques to the Christian Ecclesiastiques Neither can it be thought that this number came frō the Judiciall part of the Law as a fit proportion to maintain one Tribe out of the revenues of the other eleven Tribes for that this number or quotitie was revealed to be Gods long before the Law and before there were any such division of Tribes among the people of Israell which then were not but were parted afterward by Moses into families according to the number of the twelve sonnes of Jacob. And therefore it is not to be presumed that the Law which came long after imprinted a forme upon that which was so long in beeing before there was any Law or Ceremony But as the Apostles or prime Christians vvhen as they did first change the day of the Sabbath by divine inspiration or otherwise from the day of the Creation to the day of the Resurrection durst not substitute any other day into the place of the first day than a seaventh for that the Lord had revealed his pleasure in many places of the Scripture as concerning that number for his day of vvorship so that no other day could be appointed for his day of worship than a seaventh So neither durst the good Christians of the Primitive Church moved no doubt with no other instinct then the other were when they translated this provision of Tythes for their ministery from the Jewish Church unto their owne Church change the number of ten into another number besides more or lesse For that God had no lesse manifested his will in sundry parts of the Scripture as concerning this number to be a number for the maintenance of his ministrie than he had declared his pleasure as concerning that other number to be a day for his honour challenging it every where in the Scripture in the very quotitie for his owne right and counting it robberie if it were at any time with-holden from him And therfore it may be well thought the School-men herein did great wrong to the Church who by their quaint distinctions brought this certaintie into an uncertaintie which is no where to be found in the Scripture Which I am more bold to speake for that I see some have trod this path before me and shewed by good demonstration that the turning of this quotitie into a competencie is a thing nothing warrantable by the word of God but that the quotitie ought still to stand as a perpetuall right due to God and his Church But hereof hitherto CHAP. V. SECT 1. That a Bishop being Lord of a manor and prime Founder of a Benefice could not in the first erection thereof by his own capacitie retaine any Tythes in his hand and passe the same after in Lay fee to his Tenant and so give cause to his Tenants of prescriptions against the Parson ANd so having passed over this whole proviso of Law Statute Priviledge Prescription and Composition I might well leave the turning of this stone any more but that yet there remaineth one Prohibition of prescription to be handled which in my fancie is worse then all therest for that it draweth away from the Parochian Church her maintenance transferreth it upon Lay and that which is worse it makes Bishops to be instruments hereof who are to be patrons and defenders of Churches and not pillers or powlers of the same And yet the authors thereof do
the Law is tempered with the sweetnesse of equitie which is nothing else but mercie qualifying the sharpenesse of Justice to either which Courts they have sorted men fit for their skill and education to manage the same that is to the seat of Justice the professors of the Law of this Land who may be thought best to know the Justice of the same but to the other they have assigned the professors of the Civill Law for that a great sort of titles of that Law are titles of equitie as whatsoever is Jus praetorium or Jus aedilicium with them is matter of equitie so that they may seeme best able for their skill in these titles of which no other Land hath the like to assist the Lord Chancellour in matters of Conscience Who though he be a man for the most part chosen by the Prince himselfe out of the rest of the Sages of this Land for his speciall good parts of learning and integritie above the rest as now the honourable person is that occupieth that place who is as Tullie said of that eloquent Orator Marcus Crassus Non unus ex multis sed unus inter omnes propè singularis so that they might be thought for their great and eminent wisdome in all things appertaining to their place able to direct themselves yet because it is Divinitatis potiùs quā humanitatis omniū rerū habere memoriam in nullo errare as one saith It was providently done by Princes of former age to joyne to these great personages men furnished with knowledge in these cases of conscience wherin if they should at any time stick they might be advised by them that are assessors with them what they find in the law proportionable to the case in hand that thereto they might square their decree or order accordingly whose variety in these cases is such that hardly there can fall out any case in practice but there will be some Law in that learning conformable unto it which opportunity of men furnished with this knowledge for that seat his Majesty shall want unlesse the study of the Civill Ecclesiasticall Law be maintain'd which also for the cases of equity constience therin is cald of the old writers Aequitas Canonica And what reason gave occasion to these precedent Princes to place men indowed with the skill of the Civill Law in the Court of Chancerie the same also ministred unto them mindes to commit unto the selfe same men the ordering of their Courts of Requests for that therein for the most part are handled poore miserable persons causes as widows and Orphans and other distressed people whose cases wholy relie on pietie and conscience as a fit subject for that Law to deale in which also will take a maime if the studie of the Civill Law be not upholden So then to deny a free course to the Civill and Ecclesiasticall Law in this Land in such things as appertaine to their profession or to abbridge the maintenance thereof is to spoyle his Majestie of a part of his honour whose glory it is to be furnished with all sorts of professions necessary for his state and beneficiall for his subject to weaken the State publique bereave it of grave and sage men to advise the State in matters of doubt and controversie betweene forraine Nations and themselves to disarme the Church of her faithfull friends followers and so to cut the sinewes as much as in them lyeth of Ecclesiasticall discipline and to expose her to the teeth of those who for these many yeares have sought to devoure her up and so now would do it if the mercifull providence of God and the gracious eye of the Prince did not watch over her And so far of the necessitie of these two professions and generally of the use and disuse of the Civill and Ecclesiasticall Law in this Land and wherein it is overlaid by the Common-Law and how it may be relieved if it seeme good unto his Majestie and the wisedome of this Realme All which I have written not of any purpose to derogate from the credit of that Law under which I was borne and by which I hold that small maintenance that I have fo I reverence it as a necessary Law for this State and make such reckoning of every of the professours in his place as becommeth me but that it pitieth mee and not only mee but all those that tender good learning and have no prejudicate minde toward the Common-Law to see two such Noble Sciences as the Civill and Ecclesiasticall Law are so to be disgraced as that there is no more reckoning made of them or their professours than if they were matters and men of no worth and fit or apt for no service in the Common-wealth and yet notwithstanding the use of them is so necessarie as that the Common-wealth cannot want the service of them in matter of great importance to the State which if the profession should come to a downefall as it is like shortly to do if it be no more cherished and made of than it is will be sooner seene by the want of them than is now perceived by the having of them and then perhaps will the State lament for the losse of so goodly a profession when it will be hardly recovered againe as the children of Israel did for the tribe of Benjamin when they had in one dey slaine well nigh the whole number of them FINIS AN INDEX OF THE PRINCIpall Matters and Words contained in this Booke A ABbyes erected for good ends pag. 183. 184. but subverted for private 212 Absence from judgement hindereth not processe 58 Accessorie when to be determined where the principall 157. when not 232. what things to be accounted accessories 233 Acts of appropriations 202 Actions for things lent or pawned Of Ejectment Of Compensations Of Passengers Marriners Fathers Masters 7. Of Mandate Society Bargaine Change Restitution Vsurie 9. Popular 22. Exercitorie 89. Of Trover 128 which is prejudiciall to the Ecclesiasticall Law 130. 131. Actiones praejudiciales what 242. Of Diffamation where to be tryed 240 241. Administration when admitted in what order and when to be taken 13. Administrators false dealing with Legatories and how to bee remedyed vid. Executors Admiraltie 128 Pope Adrian restraineth the priviledge granted by Paschal 200 Adoption must be of such as are younger than the Adoptant 130 Adulterie what 22. how punished ibid. Advocates the necessitie of them 78. parallel'd with souldiers 101 Advonson what 196. how obtained ib. Aethelstane his law for Tythes 138. 139 Aimoine why silent in Charles Martels Sacriledge 166 Alcoran alloweth Tythes 175 Alienations not to be made for feare of suit 78 Almes-money what 139 K. Alured his grant to Churches 193. Inventour of Lanthorns 197 Apertura Feudi what 73 Apostles Canons of what authoritie 194 Appeales when admitted from whom by whom and when to be made 26. 55. 78. 79. 80 Appearance within what time to be made 24 Appropriation vid. Impropriation Aquinas