and female for procreation sake The law of Nations is that which common reason hath established among men and is observed alike in all Nations The Law of Nations as distinctions of mens rights buildings of houses erecting of Cities societie of life judgements of controversies war peace captivity contracts obligations succession and the like The law Civile being largely taken is the law that every particular Nation frameth to it selfe as the Athenian 3. Jus Civile lawes and the lawes of Lacedaemon in which sence also the law of England may be called the Civile law for that it is the proper and private law of this Nation but in more strict sort the Civile law is the law which the old Romans used and is for the great wisdom equitie therof at this day as it were the common law of all well governed Nations a very few onely excepted And certainly albeit sundry other Nations by the light of Nature have many Rules and Maximes in the Civile law yet if all the constitutions customes and lawes of all other people and countries were put together I except none save the lawes of the Hebrews which came immediatly from God they are not comparable to the law of the Romans neither in wisdome nor equitie neither in gravitie nor in sufficiency Whereupon it is that most of other Nations saving our owne although they receive not the Civile law wholely for their law yet they so much admire the equitie thereof that they interpret their owne lawes thereby Peckius de regul juris Reg. Quae à jure communi regul 28. SECT 2. That there be foure Tomes of the Civile Law The Digest the Code the Authentick and the Feuds The Institutes are an Epitome of the Digest What is the Digest and why it is so called and why the same are called the Pandects What are the Institutes and why they are so called THe whole Civile law it selfe is reduced or brought into 4. Tomes whereof the first containeth the Digest or Pandects taken out of 27. old reverent Lawyers workes whereof sundry were before the coming of Christ others flourished in the Emperours dayes even unto the time of Maximinus as it appeareth by Spartianus and Lampridius in the life of the said Emperour Digests what which said Tome is divided into 50. bookes of which every one containeth sundry titles of great wisdome and variety To this Tome I adde the Institutions which are a brief of all the former bookes composed of purpose by the Emperour in the behalf of young learners that thereby having the whole Digest drawne into a Compendium of 4. bookes onely they might with more alacrity goe forward in the study of the law having as it were the first Elements of the whole profession in this little Treatise whereas otherwise without the help hereof their weak minds might be clogged with the multitude and varietie thereof and so either altogether leave their studies or with more labour and diffidence which oftentimes discourageth young mens minds in a long matter come to the end thereof to which by the direction of this brief they might sooner attain and that without much travell or distrust The Digests have their name of that they are put into a comely order by the Author ranging every booke and why so called title into his proper place such as either the course of Nature affords them or are fittest for the practice of the profession The same booke again is called Pandects of the Greek words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for that it compriseth in it self all The Pandects whatsoever Justinian drew out of 150000. verses of the old bookes of the law The Institutes are so called because they are as it were masters and instructors to the ignorant and shew an easie The Institutes way to the obteining of the knowledge of the Law The matters wherein the whole law is occupied are either the persons in the common-wealth or the things belonging or not belonging to them or the actions wherby men doe claim in judgments such things as are due unto them by law SECT 3. The Pandects or Digest are divided into seven parts and they againe into fiftie Bookes That the first part thereof conteineth foure Bookes and what is the summe thereof VPon a more particular division the whole Digest is divided into seven parts whereof the first part standing upon foure bookes containeth the principles and as it were the first elements of the Law as what Justice Right is from whence the Civile Law hath his beginning what persons be the object of the Civile law what Magistrates the common-wealth of the Romans had by whom either the lawes were made or executed the divers kindes of Jurisdictions which those Magistrates used Meere Mixt or Simple according to their place the corrections which the law used against such as disobey the Judge either in not appearing or not performing that which is injoyned them what provision it made against such as by violence rescued men out of the Judges hands what Holy-dayes there were wherein the Courts were not held what order the Law tooke against the plaintife that having cited the defendant had no Libell ready to put into the Court unlesse happely otherwise the parties upon private agreement compounded the matter betweene them who were to be admitted advocates and what causes barr'd them from the office what is the office of a Procurator Sollicitor or Sindict or Factor and under what cautions they were admitted if they had no Proxie or Mandat or the partie principall did not in presence authorize them how they were punished who upon reward tooke upon them to vexe men unjustly in the Law in manner as common Barâ—â—oâ—s 〈◊〉 what persons having lost opportunitie to alleage any thing for themselves beneficiall in Law may be restored thereunto againe as Minors and such other as by feare or craft of the adversarie have beene driven away from their lawfull defence how persons of common trust as Marriners Inholders and such lik are bound by Law to restore such things as they have taken in charge to keepe SECT 4 That the second part hath seven bookes and what are the Contents thereof THe second part being distributed into seven bookes yeeldeth matter of Judgement as who may be Judge and who not where and before what Judge every one is to be convented how many kindes of Judgements there are Civile Criminall and mixt of both by what actions things that are ours by right of inheritance may be chalenged whether they be corporall or incorporall what action the Law affords if any man conceale that is ours that wee may come to the sight thereof what action lyeth against him who by evill persuasions or lewd inticement hath corrupted another mans servant or having run away by his ill counsell hath concealed him from his master what provision the Law hath against Dice-play and such as keepe Dicing-houses how he is to be
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
carrieth it away and how the same may be revoked unlesse all rights and ceremonies be solemnly performed therein How things that are in Common betweene the Ecchequer and private men may be sold and that the Exchequer evict nothing that it hath once sold for that it were a thing against the dignity of the Exchequer and would terrifie private men for bargaining with it Of those that have borrowed money out of the publick receipts and what penalty they incurre if they repay it not at their dayes covenanted somtimes the forfeiture of foure double of that they have borrowed somtimes danger of life it selfe That in cases of penalties the Exchequer be not preferred before such as the Offender was truely indebted unto but that they be first served and then the Exchequer have onely that which is left What usurie the Exchequer may take that is for money lent and not for such summes as grow out of Mulcts and Penalties That such sentences that are given against the Exchequer may be retracted within three years following although ordinarily all other Sentences are irrevocable after ten dayes neither can be reformed after that time either by rescript of the Prince or by pretence of new proofe Of the goods of such as excheat by reason they have made no Will and of the goods of Incorporations that is of such as dye without heires that they come not to the common banke of the citie but that they excheat unto the Prince Of Promoters by whose informations any goods are confiscate either by reason of the goods themselves for that they are adulterine or that they are prohibited to be exported or imported or upon some other like cause or by reason of the persons that have offended and crimes wherein they have offended and their punishment if they give in any wrong information or other than such as they are bound unto by vertue of their Office and that they give no information in but by advise of the Attourney of the Exchequer and that they make no information against their Lord and Master but in case of Treason That it shall be lawfull for no man to make sute unto the Prince for those things that are confiscated unto the Exchequer as though it were more Honourable for the Prince to bestow such things on his Courtiers than to keepe them to himselfe and therefore such as are the Princes Secretaries his Masters of Requests and others that are of his remembrance are forbidden to make any Acts Instruments or other writings hereof unlesse the Prince of his owne motion and at no other mans sute will or command the same Of such as put themselves into the Exchequer upon any confession made against themselves Of such to whom the Prince joyntly hath given any farme or like thing that where one of them dyeth without an heire the other may succeed him Of Treasure found that the Exchequer be made acquainted with it and that if it be found in a publick place halfe goeth to the Exchequer the other to the finder but if it be in a private place then halfe to the Lord of the soyle and the other to the finder Of provision for Corne and such other like Of Tribute which was an ordinary payment Of imposition and super-impositions which were payments laid upon the subject above ordinarie taxe for some present necessity to which charges the ordinary taxe doth not suffice which was not to be done but upon great and urgent cause by a Councell called together and with the consent of the subject Of Collectors of the Subsidies and in what manner they are to be collected and brought into the Exchequer and of the punishment of those that in the collection thereof extort more than is due that it shall be lawfull to distrain for Tribute unpaid that such acquittances as the Exchequer shall deliver unto the accomptants shall be their full and finall discharge and that the Subsidie Bookes shalt every quarter be sent up into the Exchequer with the account of the Collectors that thereby it may appear how much every man hath paid or oweth unto the Exchequer and that nothing may be done for the grievance of the poore or the favour of the rich Of the Booke of accounts of yearly gifts that commonly Subjects present unto the Prince at New-years-tide and otherwise and that they be divided from the accounts of the Exchequer That no man be freed from the payment of Tribute Of spending out such ancient gain and other like provision as is laid up in the common store-house and making provision for a new and compelling the subjects such as have plenty of such grain if it happen to be vinoed and mustie to buy the same that the whole losse thereof may not lye upon the Exchequer What pension such Mannors as the Prince hath given or released from payment of Subsidies shall give and that no man be so hardy to beg such a matter of the Prince lest the revenues of the Exchequer be thereby diminished Of Manners that have beene translated from the payment of one kinde of provision to an other or that have beene in their taxation over-rated Of Brasse that Minerall Countries are to yeeld or money in lieu thereof Of Controllers whose Office it was to cast over again such accounts as were brought into the Exchequer or to examine them a-new lest perhaps there might be an errour in them And so farre as concerning those things which doe appertain to the account of the Exchequer or the patrimony thereof or such pensions or payments as are due unto the same Now followeth the other part of this tenth Booke which conteineth the burthens duties or offices imposed on the subject by the Exchequer and what excuse the subject might alleage in this behalfe Burthens or duties were either personall as places of Honour which were not to be continued from the father to the childe or they be Patrimoniall which are charged upon mens inheritance either for the good of the common-wealth or to enrich the Exchequer against dangers that are like to ensue which are undertooke and performed either by those which are of necessity to obey that which is enjoyned them or by those which offer themselves voluntarily thereto which seldome happeneth in patrimoniall charges but in matters of Honour and personall services it many times commeth to passe that men excuse not themselves from bearing of Offices or doing of personall services although they have an immunitie from them either by the grant of the Prince which is to be understood of extraordinary service only and not of ordinary or by the benefit of the Law for by the Law men are many times upon just causes excused from Personall services so it be not from such services as no man can excuse himselfe from such as are Postings and carriages when the Prince passeth by or the Tenure of his Inheritance doe so require it and the erecting and repairing of Bridges Wayes and Wals the provision and
Corporations as the Princes Bakers Vintners Paper-sellers Money-changers professours of Liberall Sciences specially in Rome and Constantinople which after the seate of the Empire was translated thither had all the priviledges of old Rome saving the Ecclesiasticall primacie for which notwithstanding there was long dissension betweene the two Cities Next after Rome and Constantinople * Nullius reiâ—diga as Patricius hath it In the Emperours dayes it was much renouned for the study of the Law Digest Proem § Haec autem unde Impp. Theodosius Valent AA eam urbem Metropolitano nomine ac dignitate exornârunt as Bâ—sson relatetâ— Beritus a chiefe Citie of Syrophâ—nicia had great priviledges for the famous Universitie which was in the same and such Provinces or Countries as served the same or any of them with yearly provision of Corne Oyle Beefe Mutton Porke and such other like victuall which provision was to be distributed among the poore and impotent of the cities and not to be given to stout and valiant beggers which are able to get their living with their owne hands and therefore were to be compelled to worke The Aldermen or Governours of Cities for that they are imployed in matters of greater services yet none of them were to be called to any office before he had beene even with the common-wealth if happely any of them were in debt to it neither were they or any of them excused more than from personall services but in prediall duties they paid every one according to his rate But as for Enterlude-players and houses of baudery they had no exemption at all but paid double charges to the rest Of Husband-men some are servants as Copy-holders others are free as Free-holders who notwithstanding themselves are as it were bound unto the soyle and are rated in the Subsidie according to their Acres and if they have no Land then according to the head or number of their houshold which notwithstanding at this day is taken away and these as well pay rent to the owners of the ground wherein notwithstanding the Landlord cannot exact of them or charge them above that which hath beene covenanted betweene them as Tribute and Head-silver to the common-wealth for the declining of which and avoiding of necessary services of the common-wealth as no man can put himselfe under the patronage of any Noble man so also they cannot be called from this service of the common-wealth to any other Country-men such as were addicted to the ground they tilled although the ground were their owne yet could they not sell it to any man but to him that was of the mother-village wherein himselfe was A Mother-village was that whence all the villages round about were derived Although all such husbandmen as dwell in any village are to pay Subsidie for such goods as they possesse or such lands as they hold yet one neighbour is not to be disquieted or arrested for an other mans due for that it is a thing unlawfull to trouble one for another or not to cesse men indifferently according to the value of their lands and the worth of their goods And therefore the Romans in rating of matters of taxes had first Cessers which rated men according to that which they thought their state to be then had they Levellers or Surveyors who considered the rate set downe mended it and made it even easing such persons or grounds as were over-rated and charging more deepely such others as were overlightly taxed procuring that such grounds as were waste and barren should be brought to tillage and that the barren should be joyned with the fruitfull that by such meanes the Prince might receive subsidie out of both March-grounds and such as lie in the bounds of any kingdome serve for the maintenance of such Garrisons as are there placed for the defence of the Marches and such as hold the said lands are to pay a yeerely provision or pension for the same as also the Princes pastures woods and forrests which are let out upon a certain yeerely rent either for a certain time or in fee farme for ever which in respect they pay an ordinary payment to the Prince either in money or in provision are discharged from all other ordinary and extraordinary burthens Publick things are those which appertain to the Exchequer or to the Church which may in like sort be rented out for a season or for ever as the possession of the Exchequer may so it be done to the certain benefit of the Church and under such solemnities as in this case are required otherwise it cannot be let out but for 30. years or for three lives Fee-farme is when lands and tenements or other hereditaments are let out for ever under a certain yearly rent in reacknowledgement of the soveraigntie thereof belonging still to the first Lord whereby both the right and possession passeth to the former in fee. SECT 5. The Matter of the 12. Booke of the Code THe third and last of these Bookes treateth of the honours that the Exchequer giveth of which the first and chiefest was the Pretorship which anciently was a great dignity but after became an idle name onely and a burthen to the Senators as in which at their owne charges they were to set out playes and shewes and gave unto the Emperour in consideration of his or their glebe land a certain quantity of gold called Aurum glebale or if they had no glebe land then offered they to the Emperour an other peece of gold called Follis aurea both which afterward were taken away Next was the Consulship which was not to be sought by ambition or by scattering money among the people but by cleere suffrages and desert After the Consulship came in place the Constable or Master of the Souldiers and those which were called Patricii for that their fathers had beene Senators whose place under Augustus was equall to the Consuls although they were in no office and function of the common-wealth and the other is not so much an administration as a dignity as the Senatorship anciently was into the which who that were admitted were accounted as Parents to the Prince and Fathers to their Countrey Fourthly in place were the Princes Chamberlaines who were adorned with sundry priviledges and had the title of honour Fiftly followed the Treasurer who was Master of all the receipts and Treasure of the Prince publick or private and of all such officers as were underneath him Then the Prenotary chief Notary or Scribe of the Court who was called Primicerius To this purpose note that the Ancients for want of those more proper materials which Experience hath discovered to our times were wont to write in waxen Tables as may be observed out of the Junior Plinie in an Epistle to Tacitus Lib. 1. Epist Note also that upon occasion given for inrolling of their names who bare any office or dignity the use was to set the highest degrees in primâ cerâ in the first place of the Table from hence
lye That no man build a Church or holy place without the leaue of the Bishop and before the Bishop there say Service and set up the signe of the Crosse That no man in his owne house suffer Service to be said but by a Minister allowed by the Bishop under paine of confiscating of the house if it be the Lord of the house that presumeth to doe it or banishment if it be done by the tenant If any bequeath any thing to God it is to be payed to the Church where the Testator dwelled If any devise by his last Will a Chappell or Hospitall to be made the Bishop is to compell the Executors to perperforme it within five yeares after the decease of the Testator and if the Testator name any governour or poore thereto they are to be admitted unlesse the Bishop shall finde them unfit for the roome That the Bishop see such Legacies performed as either are given for the redemption of prisoners or for other godly uses That Masters of Hospitals make an account of their charge in such sort as Tutors doe That such as lust against nature and so become brutish receive condigne punishment worthy their wickednesse That such as make Eunuches themselves be made Eunuches and if they escape alive their goods to be forfeited to the Exchequer and themselves be imprisoned all the dayes of their life Such as by force steale away women themselves and such as are their abbetters and helpers are to dye therefore and that it shall not be lawfull for her that is carried away to marry to him that doeth carrie her away and that if her father doe give his consent to such marriage he is to be banished but if she marry him without her fathers consent then is shee not to take benefit by her fathers Will or any other thing that is her fathers These and sundry matters of great importance and necessarie for the well governing of a common-wealth are conteined in the Authenticks which I passe over with drie foote not because they are not necessary to be knowne but because I would not cloy the Reader even with those things which are good All these workes are the labour of Justinian as either gathered together by him out of ancient Lawyers bookes and such Emperours decrees as went before him or else were decreed and ordeyned by himselfe as matter and occasion offered it selfe and the youngest of them is neere eleven hundred yeares of age that is within 500. yeares after Christ or not much otherwise CHAP. IV. SECT 1. That the last Tome of the Civile Law is the Feudes and what they are THe last Tome of the Civile Law is the Feudes that is the bookes of Customes and Services that the subject or vassall doth to his Prince or Lord for such lands or fees as he holdeth of him This peece of the Law although it was not much in use in the old Emperours dayes yet Justinian himselfe seemeth to acknowledge them in his Novell constitutions calling them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and those which are more carefull to seeke out the beginning of them bring them some from the ancient Clienteles or retinews the ancient Romans before Christs time had as Budeus doth some other from Alexander Severus time who as Lampridius in the life of Alexander saith gave such lands as hee wonne out of the Enemies hands to his Lords Marchers and his souldiers that they should be theirs and their heires for ever so they would be Souldiers neither should they come at any time to the hands of any private man saying they would more lustily serve if they fought for their owne land which opinion commeth next to the ancient border-grounds of the Romans whereof there is a title in the eleventh Booke of the Code De fundis Limitrophis that is of Border-ground Others referre it over to Constantines time the great who enacted for the benefit of his souldiers that such Lordships and lands as before time they had their wages out of should passe over unto their heires and be appropriated to their familie or stock so that they found and manteined continually a certaine number of souldiers From whence soever it descended this is certaine that it came very late to be a particular volume of the Law it selfe The compilers or gatherers together thereof were Obertus S 〈…〉 〈◊〉 us but specially Sâ— Henry Spâ—â—mans Glossaâ—â— de Horto and Giraldus Compagist two Senatours of Millaine who partly out of the Civile Law and partly out of the Customes of Millaine drew the same but without forme or order The word it selfe is a barbarous word but had his originall notwithstanding as Isidore saith from the word Foedus being a good Latin word and so is to be interpreted tanquam Feodum that is as a thing covenanted betweene two Others deduce it from the word Fides as it were in Latin Fideum and by a more pleasant pronunciation Feudum whereupon such as are Feudataries to other are called in Latin Fideles because they owe faith and alleageance to such whose Feudataries they are who in the Lombard tongue are called Vassals Besides Fealtie which some call Hominium by the Feudists is tearmed Homage for the nature of a Feude is this that it draweth with it faith and homage so that such as are Feudataries or fee-men professe themselves to owe faith to such to whom they are in fee and that they are his men insomuch as when a fee-man dieth his heire doth make faith and doth his homage to the Lord as is well seene both in the Lords Spirituall and Temporall of this land who both in their creation and also in their succession one after an other sweare an oath and doe their homage to their Soveraigne and doe pay other dueties which are Symbols and signes of their subjection to their Soveraigne And for others that are under the degree of Baron and yet are fee-men unto the King and so doe not manuell obedience unto his Majestie they pay yearely something in respect of their homage according to the quantitie or qualitie of the fee or tenure they hold of the Prince A Fonde in English may be called a Tenure which caused Littieton when he treated of Feudes so far forth as they are here in use in England such as are all those which are called in Latin Feuda militaria Feuda scutiâ—erorum called by Justinian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are by the Lawes of the land tearmed by the names of Knights-services and Escuage to call them by the names of Tenures A Feude is a grant of lands honours or fees made either to a man at the will of the Lord or Soveraigne or for the Feudataries owne life or to him or his heires for ever under condition that he and his heires in case where the Feude is perpetuall doe acknowledge the giver and his heires to be their Lord and Soveraigne and shall beare faith and alleageance unto him and his for the said Tenure and shall
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
disease for so I call their unsatiable desire I finde not which way I may provide a cure for this maladie or how to punish their excesse For what Fathers could perswade them or from whence could they take occasion so superfluously to abound or to say with holy David to bee so vainely madde Their care is every houre to purchase to themselves Lands without number sumptuous and stately Buildings troupes of Horses droves of Oxen and Camels and other Cattell innumerable and bending all the sollicitude of their mindes this way they make a monasticall life litle different from that of the world which is incumbred with varietie of anxious care For these and the like Reasons the Novell forbids to build any more Monasteries but this was afterwards repeald by the Junior Basil An other great inconvenience would have beene the impoverishing of secular States by Amortization of Lands which Princes foreseeing set a bound to these exorbitant Donations restraining the excesse of that Charitie by mature and timely Decrees In Spaine the Lawes of Mortmaine began under the Kings of Aragon in France nihil usitatius as one saith The like provision hath beene made here at home for which see the Statute De Religiosis in the Great Charter which also hath been confirmed by the succeeding Princes of this Land Yet in what cases Lands may be divised in Mortmaine See the Writ Ad quod Damnum in the Natura Brevium Concerning the reason of the name Polydore Virgil speaking of the Confirmation of the former Statute by Ed. the first saith thus Et Legem hanc ad Manum 〈…〉 vocârunt quòd res semel data Collegus Sacerdotum non utique rursus venderentur velut mortuae hoc est usui aliorum mortalium in perpetuam adempta essent That which the Author saith concerning this is the reason of Peckius in his Booke De Amortizatione bonorum Cap. 2. But the notation of the word is otherwise observed out of the Statute by a great Lawyer Lands saith he were said to come to Dead Hands to the Lords for that by Alienation in Mortmaine they lost wholly their Escheats and in effect their Knight service for the defence of the Realme Wards Marriages Reliefes and the like and therefore was called a Dead Hand for that a dead hand yeeldeth no service It is the obsetvation of Sir Edward Cooke upon Judge Littleton's Tenures under the Title Fee-simple upon the words Car si homme purchase c. What everuse there might be of these Lawes of Mortmaine in time past certaine it is the present needeth them not for in these dayes few men are so rash handed as to give too much to the Church And that which was heretofore said of those things that were given that they were in a Dead Hand may now more justly be said of those that are taken away And yet whosoever lookes into this constitution whereby it was forbidden that any man should passe any Lands or other unmoveable possession unto the Church without the Princes leave for that thereby the things that are so passed come as it were into a dead hand which holdeth surely fast that which it once apprehendeth neither easily parteth with it so that it cannot without much difficulty be reduced and brought again to the commerce and common use of men shall finde it was rather for the benefit of the Common-wealth than for the dislike of the Church that it was so ordered For if that course had beene holden on still the greatest part of the livelihood of the Common-wealth would in short time have come unto the Church and so Lay-men should not have beene able to have borne the publicke burthens of the Common-wealth which it concernes Secular Princes to be carefull of and to foresee that by over-much bountie towards the Church they impoverish not their owne state and lose the right of Escheats Primer seisin and other Priviledges of the Crown in cases of forfeiture and specially make bare their Lay-subjects upon whom a great service of the Common-wealth doth lye And yet otherwise the beneficiallest state of this Realme unto the Prince is the Clergie as from whom the King hath a continuall revenue in Tenths and is deepest in Subsidie and not the least in all other extraordinarie charges according to the proportion of their place And therefore as the King is to maintaine the one so he is also to cherish the other and not to suffer their state in any sort to be diminished for that all other states are made for the service of the Church and the Church againe for the benefite of them But this was none of those Priviledges that I spake of for these are more ancient than they and granted out upon better devotion than the other but after this the zeale of Religion being almost extinguished in the Christian World partly by the great uproares and tumults that were in every Countrie by the breaking in of one barbarous Nation or other upon them who pulled downe Churches faster than ever they were built and made havock both of Priest and people that professed the name of Christ partly by the heresies that rose every-where in the Church in those dayes which distracted mens mindes and made them waver in the constancie of their Religion it was revived againe upon this Occasion SECT 2. Of the beginning of Cloystered Monkes in the West Church of Christendome and that the Author thereof was one Benedict a Roman about the yeare 606. ONe Benedict vvho otherwise had beene a man of action in the Common-wealth that Benedict which was as it were the Father of all those that professed a Regular life within the West Hospintan de origine Monachatâ—s part of Christendome for before his time the Monkes of the West Church served God freely abroad without being shut up in a Cloyster he I say finding himselfe wearied with the tumults broyles which happened under the government of Justinian and some yeares after by the incursion of those barbarous Nations before named into Italy retired himselfe into a desert and solitary place intending there to give himselfe wholly to the service of God where when he had a while remained he grew so famous by his Christian exercises of fasting and prayer and the good and wholesome exhortations that he made to those who resorted unto him that within a very little time after there was great confluence of people unto him not onely from divers parts of Italy but even from sundry other parts of the World so that within a short time they grew into Fraternitie underneath him to whom he gave rules to live by to the imitation of that which Saint Basil did in the East Church to which his Disciples submitted themselves with all alacritie leading a life farre different from the common sort of men denying unto themselves all those ordinary delights that other men doe commonly take out of meat drinke apparell marriage Temporall preferment and such other things which worldly
the Parochian Ministers of the Parishes vvhere they grew claiming the same by right Or the Temporall Judges vvhose is the Cognisance of the Tytle and Tenure of the ground as also is the setting letting buying selling and other alienating of the same For the point it selfe the Statute maketh no mention but passeth it over with silence and therefore it is to be presumed that it meant that it should there rest where it was before the making of the Statute for the Statute was not made in derogation of the Ecclesiasticall proceedings that were before but in affirmance thereof as the whole drift of the said Statute doth shew And if the Statute had meant otherwise it vvould surely have expressed it either in the proviso it self or after in the derogatory clause where it maketh an enumeration of such things as it intended should be exempted from the tryall of the Ecclesiasticall Law and by vertue of this Statute should not be comprised under the same among which there is no word of this proviso or any other in the same Statute before named Neither is it unto the purpose that the Common Law of this Land taketh knowledge of the Tenure and Title of Lands and such other complements belonging to the same for these things that are here in question are no part of those Legall Essences which the Law requireth to the Tytle and Tenure thereof as is Fee-simple Fee-taile and other of like nature according to the learning of that Law but these are certaine accidents over and beside the Tenure of the Land which may be present or absent without the injurie of the Tytle as God many times turnes flouds into wildernesse and springs of vvater againe into drinesse and a fruitfull Land makes hee barren for the wickednesse of them that dwell therein and yet the Tytle or Tenure of the ground is not changed by these changes of qualities but remaines the selfe same that it was so that these things are no more subject to the ordering of the Common Law than it is in the Common Law to judge and determine what mould is white and what is blacke what ground will beare wheat vvhat barley vvhat oats for these things are no matters of skill of Law that they need to be fetcht out of bookes but they are matters of common experience which every country man can as well skill of as the greatest Lawyer that is and therefore the Law in this case is not desirous of any curious proofe but contenteth it selfe onely vvith the depositions of two or three honest men which speake sensibly and feelingly to the point that is in hand vvhich is enough to direct any wise Judge in his sentence so that it needs not these long circumstances of twelve men to teach the Judge what and how truly the witnesses have deposed For if every qualitie of the ground resteth in the mouth of twelve men onely then should no man be able to say out of the mouth of a witnesse and pronounce thereupon this ground is mountaine this is plaine this is medowe this is arrable unlesse hee were warranted by the verdit of twelve men thereunto which if it be an absurditie to hold then sure it is a like absurditie to say that barren heath waste cannot be pronounced without a Jurie for that these things are like obvious to sense and of like qualitie as the others are And I pray you when they have drawne it unto their tryall what do they in effect otherwise than the Ecclehasticall Judge would or should have done if it had remained still under him for do they give credit simply to the conceit of the Jurie as touching that which hath beene declared and pleaded in the cause before them or do not the Judges themselves rather make a briefe of all that hath beene pleaded in the cause before them and thereof make as it were a verdit and put the same in the mouth of the twelve for their verdit before they goe from the barre So that the whole weight of the cause standeth rather in the Judges direction in such sort as it is at the Ecclesiasticall Law than it doth in the mouth of the Jurie for the Jurie men for the most part are simple people and scarce foure of the twelve understand their evidence so that it may seeme rather to be a matter of superfluitie than of good policie to referre a matter to their verdit vvhen as they say no other thing than what the Judge taught them before Stultum est enimid facere per plura quod fieri potest per pauciora for albeit perhaps some capricious fellow of the Jurie upon the confidence of his owne braine sometimes start aside from that which the Judge hath told him and draw the rest of his fellowes as so many sheepe after him yet for the most part the Judges voice is their direction their loadstone and the North pole to guide them in this businesse Besides in this Proviso as in some other precedent there is a great disadvantage offered to the Clergie which they much complaine of and that is that in cases of this nature they are compelled to suffer triall under them who are in a manner parties unto the suit by reason of the interest they have therein either in present or in consequence so that many now adayes learning too late by other mens harmes what the event in their owne cause will be chuse rather to lose their right than to venture their cause upon such partiall Judges as the twelve men are SECT 5. That the Boughes of great Trees are tytheable and so also are the bodies but in the case of the Statute onely ANd so far as concerning those prohibitions which are forced out of this Statute for naturally they grow not out thereof so that I might now passe over to the other branch of my division that is of such matters as are now held by the Common Lawyers to bee in a certaine measure onely of the Ecclesiasticall proceeding but were anciently wholly of the Ecclesiasticall cognisance but that the name of the Statute De Sylua caedua offering it selfe unto mee in the conclusion of this Statute of Edward the sixth gives mee occasion to speake somthing thereof before I come to the rest This Statute as the words thereof doe shew was made in behalfe of the Laitie against the Clergie for the exemption of great Woods of twenty yeares growth and upward from the payment of Tythes and that in three cases onely where the wood was great when it was xx yeares of age and upward where it was sold to Merchants either to the profit of the owner himselfe or in ayde of the King in his warres so that without these cases it seemeth the Statute intended no further exemption for Statutes are things of strict Law and are no further to bee extended than the words thereof give matter thereunto especially when the thing it selfe naturally was liable to ordinary course of the Law as