Church of any right or make of holy Church any Layfee that is halowed or sanctified And all thoe that withold the rites of holy Church that is for to say offerings tythes rents or freedomes of holy Church let or distrouble or breake that is to say if any man flee to the Church or Church-yard who so him outdraweth and all thoe that therto procure or assent And all thoe that purchasen letters of any Lordys Court that processe of right may not bee determined or ended And the Canterbury booke saith All thoe ben accursed that purchasen writtes or letters of any leud Court or to let the processe of the Law of holy Church of causes that longen skilfully vnto Christen Court the which shuld not bee demed by none other Law c. And all that malycyously biriveâ— holy Church of her ryght or maken holy Church Lay-fee that is halowed blessed And also all thoe that for malice or wrathe of Person Vicare or Preiste or of any other or for wrongfull covetyse of himselfe with-holden rightfull Tythes and Offerings rents or mortuaryes from her owne parish Church and by way of coveryse fallelyche againe taking to God the worse and to hem selfe the better or else turne hem into another vse than hem dweth or done hem in other place after the rowne will so that they he not done to the same place that they should bee or let by word or by deede any man or woman for to doe her good will and her devotion to God and to holy Church For all christen men and women bene harde bound vpon paine of deadly sinne not oneliche by the ordinance of man but both in the old Law and also in the new Law for to pay truitche to God and holy Church the tythe part of all manner of increase that they winnen truliche by the grace of God both with her travell and also with her craftes whatsoe they be truliche gotten Alsoe the tythe part of all manner fishes and foules and beasts both wilde and tame And all manner of frutes that growen out of the earth Alsoe all that wittingly or wilfully tythen falsly that is to say that geven not to God and holy Church the tenth part of every wynning leefully woâ—nen in merchandise or in any other craftes withdrawen only that expence and the costage that needfully must be made about the thing whereof the winning is getten not tything the winning of one marchandise with the losse of another And all thoe that of the fruites of the earth or of beast or of any thing that neweth in the yeare geven not the tythe wholy withouten any costage All thoe that falsly tythen taken to God the worse and holden the better to her owne profite against the ordinaunce of Boniface sometyme the Archbyshope of Cantorbury by the which ordinaunce throughout the Province of Cantorbury shuld be one manner axing of tythes in this manner wise Of all manner of frutes of earbis of gardens withouten any manner of cost abating of hey where ever it groweth in greate medes or in smale as oft as it neweth of neweing of all manner of besteal of calfe or of lambe fro seaven vpward into the tenth and fro syx downeward for everyche of hem an halfe penny but if the Person or Vicarye will abide till another yeare and tell thilke that leeven and take the other beast that followeth of woole that is woxen of fellis fro purification of our Lady of milke all the while that it dureth as well in Winter as in Sommer but if they will doe gree therefore to the Person or to the Vicary for the profite of holy Church Of fishing of 〈…〉 eing of veneson oâ— beene of all other good rightfully wonnen that newen by the yeare of profite of mills and weris of fishing noe cost abate but to the very value shall the tythe be payd of lesewys communys severelis shall the tythe trulyche bee payd after the number of the beeseis or the dayes as it is most profite to holy Church all werkemen and chapmen that wynnen on her craftes and on her marchandise shulen trulyche pay her lythe to God and to holy Church Alsoe Carpenters and Smithes and Weeveris and all other crafty men and all other hired men and wimen shulen Tythen of all they getten but if they wulle giue any certayne thereof to holy Church at the Persons or Vicaryes will Alsoe of fowles of Calues of Piggs of Gees of Hennes of flaâ—e of Hempe of Corne and of all thing that neweth by the yeare Alsoe of shryding of Trees and of all manner of vnderwood woring or hewed Alsoe men of holy Church moune curse by name hem that wolen not pay her Tythes as it is written in many places of the law of holy Church At the repeating of these Articles the Prelate standeth in the Pulpit in his Albe the Crosse being lifted up and the candles lighted After the Repetition these or the like formall words of Execration are denounced Ex Authoritate Dei Patris Omnipotentis beatâ— Mariae Virginis omnâ—â—m Sanctorum excommunicamus and thematizamus Diabolo commendamus omnes supradictus malefactores Excommunicati sunt anathematizati Diabolo commendati Maledicts sunt in villis in campis in vus in semitis in domibus extradomes iâ—omnibasâ—atâ—is locu stando jacendo surgendo ambulando currendo vigilando dormiendo comedendo bibendo aliud opus faciendo Or as the Canterbury Booke saith But thorow authoritie of our Lord God Almightye and our Lady S. Mary and all Saints of Heuen of all Angels or Archangers Patriarchs and Prophets Euangelists Apostles Martyrs Confessors and Virgines alsoe by the power of all holy Church that our Lord Iesus Christ gaue to S. Peter we denounce all thoe accursed that wee haue thus receiued to you and all thoe that maintaine hem in her sins or geuen hem hereto either helpe or councell soe that they bee departed from God and all holy Church and that they haue noe of the passion of our Lord Iesu Christ ne of noe Sacramentes that bene in holy Church he noe part of the prayers among christen folke but that they be accursed of God and of holy Church fro the soole of their foote vnto the crowne of her head sleaping and waking sitting and standing and in all her words and in all her workes and but if they haue grace of God for to amend hem here in this life for to dwell in the paine of hell for euer withouten end Fiat Fiat Doe to the boke Quench the Candle Ring the Bell Amen Amen This Generall Sentence was solemnly thundered out once in every Quarter that is as my old Booke saith the fyrst Sonday of Advent at comyng of our Lord Ihesu Cryst the fyrst Sonday of Leenten The Sondaye in the Feste of the Trynyte and the Sonday within the vtus octavesweesay of the blessyd Vyrgyn our Lady S. Mary damnation Neither did all such as did then
the Code THe first Booke of the Code treateth of Religion and the Rites and Ceremonies thereto belonging whereof I said there was no speciall Tractate in the Digest saving that it devideth the publick right into that which concernes the Church and Church-men and the Magistrates of the Common-wealth prosecuting the later branch thereof onely and omitting the first because out of that Heathenish Religion which was used in those ancient Lawyers dayes and those superstitious Rites whereof their Bookes were full nothing could be taken that might serve for our Religion whereupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and three in person wherein he sets downe a briefe summe of our Christian faith agreeable to the doctrine of the Prophets and Apostles and the foure first generall Counsels the Nicene Constantinopolitan Ephesine Calcedon forbidding any man publickly to dispute or strive thereabout taking occasion upon the Nestorian heresie which not long before had sprung up and had mightily infected the Church which Justinian by this confession of Faith so published to the whole world and a penall Edict joyned thereunto hoped to represse After hee hath set downe a full and sound confession of the Christian faith conformable to the Primitive Church next hee addeth a title of the holy Church it selfe and of her priviledges which either concerne Ecclesiasticall mens persons themselves or their state and substance or the actions one Ecclesiasticall man had against an other or with or against Lay persons where also he prosecuteth the degrees of Priests or Ministers their offices orders and how the same are to be come by that is without bribes or Simonie or other worldly respect save the worth of the person onely and the rights of holy places Priests in the Law are called from the Latine Sacerdotes either because their office was Deo saera dare to sacrifice to God or else because they were consecrated and as it were severed from the rest of the people and given up to God they were also called Elders answerable to the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either for that they were so in age * In Authent de sanct Episcop § Presbyterum Collat. 9. the Law having provided that no man should be promoted to the dignitie of a Priest till hee were 35 years old or else because they ought to be such in manners and carefull carriage of themselves Amongst Priests or Ministers Bishops have the first place who are as it were the †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Overseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other duties which they owe unto the Church The lowest degrees of men in the Ecclesiastical Hierarchy were the Clerkes as the word Clericus is restrein'd to a narrower acception For in the generall it is most properly applyed to all degrees of the Clergie and is a terme contradistinct to the Laitie and they are called Clergie from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quia de sorte Domini sunt vel quia Dominus sors est part Clericornm either because God is their portion and lot or because they are his as Papias hath observed To Bishops Priests and other of that ranke did appertain the care of Hospitals whereof some were for Orphans some for Infants some for impotent and diseased persons some for poore people some for strangers and other like miserable persons and therefore together with the title of Bishops and Clerks is joyned the title of Hospitals or Almes-houses In place next after the Bishops themselves comes their power and audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the Word and in good example of life yet forasmuch as all will not be obedient unto the Word neither brought by the persuasion thereof to good nurture and to be kept in order and the eminencie of the degree wherein the Bishops are placed is not sufficient to keepe the people in obedience without some power and jurisdiction and because the Church it selfe is the mother and maintainer of Justice therefore there is by the Emperour himselfe and his predecessours as many as professed Christianity certain peculiar jurisdictions Ecclesiasticall assigned to the Bishops more worthy than the Civile over persons and causes Ecclesiasticall such as touch the Soule and Conscience or doe appertein to any charitable or godly uses and over the Laitie so farre forth as either the Laitie themselves have beene content to submit themselves unto their government that is so farre as either it concernes their Soules health or the outward government of the Church in things decent or comely or that it concernes poore and miserable persons such as widowes orphans captives and such other like helplesse people are or where the Civile Magistrate cannot be come by or doth voluntarily delay judgement in all which anciently a Bishop was to performe double faith and sanctity first of an uncorrupt Judge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselves to be controll'd and therefore hath taken away most of these dealings from them yea even in charitable causes Immediately followeth a title of Hereticks Manichees Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Jewes and worshippers of the hoast of heaven Pagans and of their Temples and Sacrifices whom the Bishop is not onely to confute by learning but also to suppresse by authoritie for he hath not the spirituall Sword in vaine The Hereticks Jewes and Pagans shall not have Christian men and women to be their servants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawne from thence unlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunity is to be allowed them but wicked people are to be punished according to their desert agreeable to the word of God it selfe which would not have his Altar to be a refuge unto the wicked And so farre of that part of publick right which appertaineth to the Priests or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that with like brevity I run over the three last Bookes of the Code which themselves were rather shadowed in the Digest in the title of the right of the Exchequer than in any just proportion handled SECT 3. The Argument of the 10. Booke of the Code THe first therefore of them setteth out what is the right of the Exchequer and in what things it standeth as in goods excheted because there is no heire unto them or that they are forfeited by any offence worthy death or otherwise How such as are in debt to the Exchequer and their suerties are to be sued Of the right of those things which the Exchequer sels by outcry where he that offereth most
and stipend and that they sweare they shall so sincerely and uprightly execute their office as knowing they shall give an account thereof to God and the King which oath they shall undergoe before the Bishop of the place and the chiefe men of that Province whither they are sent to be Judges or Governours Of the Masters of Requests and their office which offer to the Prince suters Petitions and report them back from the Prince unto the Judges Of wicked and incestuous Marriages and that such as marrie within those degrees forfeit all that they have unto the Exchequer for that when they might make lawfull marriages they rather chuse to make unlawfull marriages SECT 4. The Argument of the third Collation THe third Collation conteineth matter against Bawdes that they be not suffered in any place of the Roman Empire that being once warned to forbeare their wicked profession if they offend therein again they die the death therefore If any man let any house to a bawd knowing him to be a bawd that he shall forfeit * Sciat se decem librarum auri sustinere poeram circa ipsam periclitaturum habitationem In Auth. De Lenonibus § Sancimus Coll. 3. x. li. to the Prince and his house shall be in danger to be confiscated Of Maiors and Governors of Cities that such be chosen that be honest people and men of credit and that no man of the Citie being thereto chosen refuse the same and that such as are thereto chosen shall sweare they will proceede in every matter according to Law and Conscience That there be a certaine number of Clerkes in every Church and that it be neither diminished nor increased and therefore that there be a translation of those that abound in one Church into an other Church that wanteth The precepts which Princes gave to Rulers of Provinces were these in effect that wheras themselves were freely chosen thereunto they should in due sort and order goe into their Provinces that they should keepe their hands pure from bribes that they should carefully looke unto the Revenues of the Exchequer and the peace and quiet estate of the Province represse outrages and rebellions procure that causes be ended with all indifferencie and ordinary charges to foresee that neither themselves nor any of their officers or under ministers doe injurie to the people and so those that ought to helpe them should hurt them To provide that the people want not necessary sustenance and keepe the Walls of the Citie in reparation that they punish offences according to the Law without respect to any mans priviledge neither admit any excuse in the examining or correcting of the same save innocencie onely that they keepe their Officers in order that they admit to their Counsell such as are good men are milde towards such as are good and sharpe towards such as are evill that they afford not Protections to every man neither to any one longer then it is fit and convenient it should be that where they remove they vexe not the Countrey-men with more carriages then is needfull that they suffer not Churches and other like holy places to be a Sanctuarie to murtherers and other such like wicked men that they suffer not Lands to be sold without fine made to the Exchequer that they regard not Letters or rescripts contrary to Law and against the weale publick unlesse they be seconded that they suffer not the Province to be disquieted under pretence of Religion heresie or schisme but if there be any Canonicall or ordinary thing to be done they advise thereabout with the * Auxiliabuntur autem tibi ad hoc etiam Deo amabiles Ecclesiarum defensores De Mand Princip § Neque autem homicid Bishop that they doe not confiscate the goods of such as are condemned that they patronize no man unjustly that no man set his Armes or Cognisance upon an other mans Lands neither that any carrie any weapon unlesse he be a Souldier What is an hereditary portion and how children are to succeed of such as deny their owne hand-writing and * Condem 〈…〉 onem adversus eum duplicem in utroque casâ— fieri sancimus De Trient semiss § Studium vero how they are to be punished as well in personall as in reall actions and that such deniers after their deniall be not admitted to other exceptions and the taking away the thing in controversie from him which denied the true owner to be Lord thereof SECT 5. What is comprehended in the fourth Collation THe fourth Collation handleth matters of Marriage and that marriage is made onely by consent without either lying together or instruments of dowrie Of women that marrie againe within the yeare of mourning which by Law in sundry sorts was punished for confusion of their issue that there be an equall proportion in the Dowrie and the Joynture Of Divorce and separation of marriages and for what causes by consent for impotencie for adulterie and that Noble women which after the death of their first husband being noble personages marry to inferiour men shall lose the dignity of their first husband and follow the condition of their second husband Of Appeales and within what time a man may appeale and from whom and to whom the appeale is to be made That none which lends money to a husband-man take his land to morgage and †Nihil amplius quam siliquam unam pro singulo sâ—lâ—do annuam praestare Nequia quod Agricol § Sancimus how much usury-money a man may take of a husbandman Of her that was brought to bed the eleventh moneth after her husbands decease and that such as are borne in the The Glosse relateth a matter of fact contrary to this Law A widow in Paris that was delivered of a childe the 14. moneth after her husbands decease neverthelesse the good repute which was generally conceived of this womans continencie prevailed so much against the letter of the Law that the reverend Judges awarded the case of child-birth to be extraordinary the woman to be chaste and the childe legitimate Haec tamen in exemplum trahi facilè non oportet as the Glosse there concludeth beginning of the same moneth are to be accounted for legitimate but such as are borne in the end thereof are to be holden for bastards Of instruments and their credit and that in every instrument there be Protocols left that is signes and notes of the time when such a contract was made and who was notarie and witnesses to the same and that after it be written faire and ingrossed in a lidger or faire * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Chartam puram mundum Booke SECT 6. What is comprised in the fifth Collation THe fifth Collation forbiddeth the alienation or selling away of the immoveable possessions of the Church unlesse it be done under certaine solemnities and then onely when the moveable goods are not sufficient to pay the debts of the Church or
of Divine Service and the Eucharist of Baptisme and the effect thereof of a Priest not baptized of Fasting Purification of women and other like ceremonies pertaining to Ecclesiasticall discipline Of building and repairing Churches and of their Church-yards and the immunitie that belongs to them both and of sundry other things in like sort pertaining to the Church That Clerks and other Ecclesiasticall men trouble not themselves about Civile matters contrarie to their office and profession SECT 6. What is conteined in the fourth Booke of the Decretals THe fourth Booke disposeth of matters of Espousals and Matrimonie and sheweth what words make Espousals what Matrimonie of the Betrothing of such as are under age of clandestine Espousals and Contracts and of what account they are to be had of in the Church and how they may be made good Of her that hath betrothed her selfe to two men whose wife shee shall be what conditions may be put in Espousals and what not what Clerks or Votaries may marrie and what not Of him that hath married her with whom before he hath committed adulterie and whether the same second Matrimonie be good whereupon the resolution of the Law is that if the woman knew not that he had an other wife hee cannot leave her his first wife being dead under pretence he had an other wife alive when he married her but if shee knew of it and did joyne with him in practise for making away his wife he cannot marry her no though he were seperated from the other as concerning bed and boord Whether leprous men and other which are infected with like contagious diseases may marrie and whether being married the marriage may not be dissolved upon this point Of kinred Spirituall or Legall and in what sort they hinder marriage of him that hath knowne his owne wifes sister or his owne cousin german and whether this offence doe breake the Matrimonie that is contracted or doe hinder the Matrimonie that is to be contracted Within what degrees of consanguinitie or affinitie a man may marrie Of such as are cold of Nature or inchanted by Sorcery whether they may marrie the like respect is of women who are unfit for men Of such as marrie against the Interdict or prohibition of the Church and what penaltie they incurre What children be held legitimate who they be that may be accusers or witnesses in cases of dissolution of Marriages betweene man and wife Of Divorces betweene man and wife which are caused by the diversitie of mindes that are then betweene them for that one seeketh to goe apart from the other and in what cases divorces are allowed and how many kinds there be of them of gifts betweene man and wife what securitie they have in Law and that the Dowrie after the divorce be restored to the woman so that it be not in case of Adultery and other such like filthinesse Of second Marriages in what cases they are to be permitted in what not SECT 7. What is the subject of the fifth Booke of the Decretals THe fifth Booke treateth of such Criminall matters as are handled in Ecclesiasticall Courts wherin the proceeding is either by accusation whereto the Accuser doth subscribe his name because it tendeth to punishment or else by denunciation whereto the Informer doth not subscribe his name because it tendeth only to the amendment of the party or by Inquisition which for the most part is not used but upon fame precedent albeit somtimes it be without fame if once the fame be proved then may enquirie be had of the trueth of the fact but yet without malice or slander The Criminall matters which are prosecuted in the Ecclesiasticall Courts and censured by Canonicall punishments are Symonie and selling of Ecclesiasticall graces and benefices whereupon Prelates are forbid to let out their Jurisdictions under an annuall rent and Masters and Preachers to teach for money The punishment of Jewes and Saracens and their servants that is If a Jew have a servant that desireth to be a Christian the Jew shall be compell'd to sell him to the Christian for xij pence That it shall not be lawfull for them to take any Christian to be their servant That they may repaire their old Synagogues but not build new That it shall not be lawfull for them upon good Friday to open either their doores or windowes That their wives neither have Christian Nurces nor themselves be nurces to Christian women That they weare divers apparell from the Christians whereby they may be knowne and other ignominies of like sort Who be Hereticks and what be their punishments who be Schismaticks and what be their punishments Of Apostates Anabaptists and their punishments Of those that kill their owne children and their punishments Of such as lay out young children and other feeble persons to other mens pitie which themselves have not and how they are to be punished Of voluntarie or casuall murthers Of Tilts Barriers and Tornament Of Clerks that fight in combate Of Archers that fight against Christians Of whoredome and adulterie and how they are to be punished Of such as ravish women and their punishment Of Theeves and Robbers Of usurie and the paine thereof Of deceit and falshood Of Sorcerie Of collusion and cosenage and the revealing of the same Of childrens offences and that they are not to be punished with the like severitie as mens offences are Of Clerks hunters or hawkers who if they often times use and sport themselves therein if they be Bishops they are to be suspended from the Communion three moneths if Ministers or Priests two but if he be a Deacon he is to be suspended from his office If a Clerk often times strike other men and being admonished to forbeare such kind of violence doe neverthelesse continue in his folly he is to be deposed If a Bishop cause any man rigorously to be whipt he is to be suspended from saying service two moneths Such as speak ill of Princes and other like great persons spirituall or temporall are to be punished so that others by their example may take heed to speake ill specially such as blaspheme the Majestie of the Almighty God If Clerks excommunicated deposed or interdicted or that came to the highest order without passing thorough the inferiour orders or that came to the same order covenously and deceitfully or being not ordered at all or at the least not ordered lawfully dare take upon thē either to minister the holy Sacraments or to say divine Service they are to be deposed from their office and from their benefice and never after to be ordered Prelates are not to greeve their subjects either with rash suspension or excommunication of their persons or interdicting of their Churches but they are to execute all those censures of the Church in judiciall order they are not easily to suffer any man to hold two Benefices where one may suffice or to reteine any thing to his owne use in a Church wherein he hath collation or
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
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
imbrace it and kisse it as a golden birth or as if that Juno her selfe had beene present at the Nativitie thereof And the devise is this A Bishop being owner of a Manor yet not divided into Tenancies nor having any Parsonage erected upon it ordaineth the one and divideth out the other here the Bishop being seised in the whole Manor before the said division because hee is a Clergie man is supposed to be in possession as well of the Tythes as of the Manor it selfe and therefore after creating a Parsonage and dividing out his Tenancies may retaine and keepe to himselfe and his said Tenants so much of the said Manor discharged of Tythes as him listeth and assigne over the rest for the maintenance of the Minister and that his Tenants after may challenge exemption from Tythe as the Bishop did for that they were exempted by his capacitie while they were in his owne hand Neither of which is so by Law for insomuch as a Bishop is an owner of a Manor and is a prime founder of a Benefice hee hath no more right to the Tythe thereof than a meere Lay Patron hath who for his zeale to the Church to incourage others to be like affected to Gods Religion as himselfe is may have some small pension assigned him and his for ever by the Bishop out of the same benefice in acknowledgement of the erecting founding or ondowing thereof but for any portion of Tythes to him or his hee could never retaine any nor can to this day neither yet can the Bishop himselfe unlesse perhaps hee will be like to Ananias and Saphira which held part of the price of their ground from the Lord and were worthily punished for the Actorun 〈…〉 same And as they cannot detaine it themselves being spirituall men so much lesse can they passe it over to any Lay man for that Lay people neither by Gods Law neither by Canons and Decrees of the Church were ever capable of Ca quamvis de decimis thâ— Abnum 5. them yea it was so farre off that ever any Bishops durst infeoffe any Lay man in Tythe that whosoever did it was to be deposed excommunicated untill such time as he restored the same to the Church againe And to say the truth Ca tua nobis de decimis Tythes were never at any time in Bishops as in Fee but in very few cases as where the Bishop had a Parish himselfe distinct from other Parishes for sundry Bishops in sundry places had so and then the Tythes of the Parish did belong unto them in such sort as they do now belong unto the Incumbents thereof Or if the Tythe were not within any Parish for then in like sort it did belong unto the Bishop of the Diocesse in whose Territory it was albeit now within this Realme it belongs unto the King or where the Parishes were undistinguished for then were they the Bishops not to convert to his owne use but to divide among the Ministers and Clerkes which laboured in the Diocesse under him in Preaching Teaching Ministring of the Sacraments and executing of other Ecclesiasticall functions every one according to his desert Or that it were the fourth part of the Tythe for then did it belong to the Bishop in Law towards his owne reliefe and the repairing of the Parish Church where they grew and not to conferre or bestow the same as him thought best which notwithstanding now also is growne out of use and nothing left unto the Bishop from the Churches of his Diocesse beside his Procurations and Synodals to be paid by the Incumbents in the time of his Visitation Beside which cases it cannot be found that ever any Bishop had to doe with Tythes much lesse to alyen dispose and transferre the same as him listed and to whom him listed SECT 2. That Bishops endowments in the beginning stood not in Tythes but in finable Lands FOr it is very certaine Bishops endowments themselves in the beginning of the Primitive Church stood not in Tythes but in good Temporall and finable Lands which gracious Princes and other good benefactors of former Ages bestowed upon them as it doth appeare out of the Câ—de sacrosanct Eccl. de Epist Cler 〈…〉 titul first booke of the Code where sundrie Lawes of Constantine the great and other gracious Emperours even to the time of Justinian himselfe are recorded both for the conferring of Lands upon the Church and those such as should neither be barren neither charged with Statute or other debts of the Exchequer as also for the conserving and safe keeping of such Lands as vvere in such sort conferred Authent multo magis C. de sacro sanct Eccles and bestowed upon them and it is manifest also out of our owne stories both in the Britans time during whose Raigne there are reported to have beene fifteene Iocelin of Furnis in his booke of British Bishops Sâ—ow fol 37. Archbishops in the See of London well endowed with possessions and if they were Archbishops then must it necessarily also follow there were Bishops for that these are respective one to the other The like is vvritten of the Saxons Raigne under whom the See of Canterburie Hen. Huntington lib. 3. the See of London the See of Rochester and the See of Yorke for these foure vvere first set up againe after the Saxons first received the faith at the Preaching of Augustine Melitus and Justus Paulinus are namely reported to have beene inriched vvith large Dominions Charta regis Ethelberts charta Wâ—ll primâ— Stow fol â—7 and possessions given to every of them for their maintenance And vvhat course hath beene held vvith Bishoprickes erected since the Conquest the ruinated state of them and others doe shew amongst whose ancient livelihood is not to be found any indowment by Tythes but such as of late have come unto their hands and that for the most part by change of their good finable Lands for impropriate parsonages And therefore much to blame are some of our time who when as their predecessours in former ages never admitted of any impropriate parsonage into their possessions but onely in such cases as have beene before remembred for the name and place of a Bishop will be content to make Glaucus Homer Iliad change with Diomede that is give their golden Armour for the others brazen Armour or doe like as Roboam Regum 1. c. 14. did who in stead of golden shields that his father Salomon did hang up in the Temple put in their places shields of brasse for the change is no better and so well know they that procure the same otherwise would they never so instantly desire it SECT 3. That the turning of Bishops indowments into tenthes or Tythes for impropriate Parsonages is unsutable to the first institution and very dangerous ANd therefore an unsutable devise was that and contrary to the course of former Ages which was procured in the first yeare of the
School-masters or Professours of Physick or be Midwives Notaries Auditors or Casters of accounts or Registers the Law alloweth not only a competent stipend in recompence of their skill paines but also affords them means how the same may be recovered if it be denied But as for Philosophers and Lawyers the Law hath appointed them no stipend not because they are not reverend Sciences and worthy reward or stipend but because either of them are most honourable professions whose worthinesse is not to be valued or dishonoured by money yet in these cases many things are honestly taken which are not honestly asked and the Judge may according to the quality of the cause and the skill of the Advocate the custome of the Court and the worth of the matter that is in hand appoint them a fee answerable to their place as also to such as are Interpreters betweene parties in matters of traffick when one understands not an others language CHAP. II. SECT 1. The second Volume of the Civile Law is the Code which is distributed into twelve Booke Why the Code is so called THe second Tome of the Law is the Code and stands in twelve Books whereof eight for the Titles follow in a manner the order of the Digest a few titles onely excepted which are added besides those of the Digest but as for the foure other which are the first the tenth the eleventh and the twelfth although the subject they treat of be named in the Digest yet the things which are there named are not handled in the Digest and therefore will I passe over those eight other lest happely I might seeme to doe one thing twice and therefore will I referre the Reader over to that which hath beene said of them before in the handling of the Digest for they are almost twinnes of one mother so that whosoever knowes the one shall with no great difficulty discerne the other and come to the other foure yet not mentioned there But yet before I lay open the matter thereof I will in a word or two shew why this Volume of the Law is called the Code who is the author thereof and out of whom it was collected what moved the author after so many learned titles set downe before of such things as are in the Digest deduced by such a number of worthy Lawyers as the Lawes of the Digest themselves doe by their inscriptions shew for every law carrieth with him in his forehead the name of his Author to make a new flourish of the same and what the knowledge of the Code doth conferre unto a Student or practiser of the Law more than the knowledge of the Digest doth The Code therefore is named of the word Caudex that is the trunke or timber of the tree from which the barke of the tree is pill'd or pull'd off of which men anciently used to make writing-tables artificially binding them up into the forme of a booke and using them for bookes before the use of paper or parchment was knowne insomuch as many of these tables being bound together they were called a Code or booke besides whereas the ancient Lawyers Why this Tome of the Law is called the Code before Justinians time used to write their pleas and answers in scroules of paper or parchment Justinian himselfe first put them in a booke and therefore termed them by the name of a Code The Code it selfe is compiled of the answers of 56. Emperours and their wise Councell whereof sundry were What the Code is learned and skilfull Lawyers as the storie of that time doth shew and the lawes themselues doe name some of them as that most excellent and famous man Papinian and some others that is from the dayes of Adrian the Emperour unto the age of Justinian himselfe The cause that moved Justinian hereto was that in the The reason which moved the Emperour to compile the Code Digest hee found not every case decided that fals out in common use of life for how is it possible when as every moment there fals out new matter for which former lawes made no provision and therefore thought good to supplie that by new Lawes which he found defective in the old so that the multiplication of those titles grew not that the Emperour had any meaning to fill the world with multitude of Lawes for hee had found the inconvenience thereof already and therefore had repealed and abolished so many thousand of old Lawes as he had but it came rather of that that the multitude of causes were so many that every day there fell out some unexpected thing that was never heard of before beside notwithstanding the carefulnesse of the Emperour himselfe and his great Lawyer Tribonian and others whom he used for the selecting and choosing out of the purest best and most agreeing Lawes among themselves out of that indigested heap of Lawes he then abolished yet they were not so quick sighted but in that great worke sundry antinomies or contrary Lawes past them which had need to be expounded and amended and the Authors to be recited Further sundry of ancient Lawes were so subtilely written that there was more wit than profit in them so that it was expedient the Emperour should explain the same putting all subtility aside give a right sence unto the Law Lastly whereas many things were delivered by them briefly and therefore obscurely the Law-giver in his Princely wisdome set out the same in other Lawes more plentifully and distinctly all which were the chiefest causes why the Emperour set out the booke of the Code The Code neither in style nor in methode cometh to The difference betweene the Digest and the Code the perfection of the Digest as that which for the style is a barbarous Thracian phrase Latinized such as never any mean Latinist spake whereas notwithstanding the style of the Digest is very grave and pure and such as doth not much differ from the cloquentest speech that ever the Romans used and for the methode it hath no particular disposition other than such as is borrowed of the Digest it selfe and otherwise is rude and unskilfull where it doth recede from the same yet doth it not lack his good use for to such as follow the practice of the law the knowledge of the Code is much more expedient than the knowledge of the Digest is for that the lawes of the Code doe determine matters in daily use of life which because they are a like in all ages for the same is evermore upon the stage the persons a little altered it cannot be but the learning thereof must be very profitable and expedient for the Common-wealth whereas notwithstanding the learning of the Digest stands rather in discussing of subtill questions of the Law and enumerations of the variety of opinions of ancient Lawyers thereupon which have more commendation of wit than benefit toward the common-wealth in them but hereof hitherto SECT 2. The Argument of the first Booke of