whan he hath abiured / and it is dayly sene that the parliament appoynteth who shall haue suche sentwarye / and who nat / and putteth some fro it as they thinke reasonable and it hath caused great vnquietnes / that the clergye claymeth suche sentwary to be by their auctoritye / and for a good reformacyon it wolde be prohibited that they shulde nat do so herafter And a lyke pretence the clergye maketh / whan a man is admytted to his clergye for they pretende that / that priuilege of clergye is grauÌ„ted to them that can rede by the lawes of the Cannons And that they be Iuges who shall be so admytted / and who nat And therfore they saye that the ordynarye is there present by auctoritye of the canons / to accepte such as he shall thike to rede as clerkes / and to refuse them / that he thiketh do nat so And whan they be admytted to their clergye / they saye they be coÌ„mytted to the bisshops prison as to him / by whose fauour and power they haue their clergye And neuerthelesse / the truthe is that they haue theyr clergie in suche cases by the kynge and his lawes / and his Iuges shall determyn where a man ought to haue his clergie / where nat For if the ordinary admytte one as a clerke that is none the kinges iuges shall set a fyne vpoÌ„ him / also shall gyue iugemeÌ„t vpon the ptie / if the ordynary refuse one that the iuges thynke redeth as a clerke they shall alowe him as a clerke also set a fyne vpon the ordynary for his refusynge / and at euery generall gaole delyuery / the ordinary vpon a payne of a fyne to be set vpon him by the kinges iuges is bouÌ„de to be therto gyue his attendance without any warnyng / at a speciall gaole delynery with a warnyng whan he is in the bysshops pryson / the bysshop is bounde to kepe him safe / nat to suffre him ot make any purgatyon / but accordyng to the kynges lawes / if he do / he shall be punys shed for the escape And if the kyng pardon him / that is so in the bysshoppes pryson / the bisshop is bounde to delyuer him vpon the kynges pardon / whethy it appereth suffyciently / that he is ther by the kiges power auctority And yet many spuÌ„all men preteÌ„de the contrary / And therfore if the matter and other lyke were sette in a clere waye it shulde cause greate quietnes / and thoughe they that haue their clergye haue it by the kynges lawes / as is afore sayde / and nat by the lawe Canon / yet are the Ordynaries bounde in consciens to kepe them that be soo commytted to them for their clergie / as fauorably as they ought to do if they were brought thether by their owne auctorite ¶ The .xviii. chapiter IT is an old lawe in this realme / that whan Bysshoppes die / the kynge shall haue the temporaltes during the vacacyon / many statutes be made how the same teÌ„poralties shal be saued fro wast and destruction durynge the vacacyon / and that the kynges exchetours shal nat sell the vnderwodes / ne shall nat hunt iÌ„ their ê‘kes or warens / nor fysh in their fisshyngê nor do any wast / to the pÌ„iudyce of the houses or of the deane the Capitre / Prior or supprior / and that the Prior supprior maye take it to ferme if they wyll And for as moche as in the tyme of suche va cacyons of Bysshopprykes / and of abbeys and Priories / whan they be nat taken to ferme Hurte hath come sometyme to the sayd possessyons by the defaulte of the kynges offycers / where vpon the newe electes myght haue good remedy by the lawe of the realme if they wolde / yet the spirttualtye as it semeth / nat contented so to do / but pretendynge that by lawes made by them selfe / they wolde haue suffycyeÌ„t remedy without asking any ayde of the kynge / haue made a law in that case as it appereth in the thirde boke in the tytle of churches lyberties / in the chapiter whiche begynneth Where the kyng c. which chapiter shall be rehersed hereafter worde for word / that euery man may se theffecte therof And it beginneth thus Whan the kynge hathe the custodye of Cathedrall or Conuentual churches / although acordinge to the chartour of lyberties grauÌ„ted to the church by the kinge and his predecessours / he ought to receyue onely certayne profytes and certayn seruyces and that without the distreyninge of men / and destruceyon of thinges It chauÌ„ceth neuerthelesse that his baylyffes through imoderate tallages exaccyons / do bothe vyolently take away the churches tenauÌ„tes goodes in tyme of vacation / and also destroy the parkes / woods / store poles / houses / and scatereth the goodes abrode they euyll entreate the pore stretch their haÌ„des nat only to those thyng which they were wont to optayn by reason of custody But also vnto the goodes of them that remaine in lyfe / that is to wit / to that blade and store such other / wherwith the chapiter and couente ought to be sustayned Yea / and presume to take other thinges lyke wyse / whiche by reason of Baronye / can in no wyse apptayne vnto him As tythes oblations belonginge / and apperteynig to churches appropriate vnto bysshoprik ê monasteries and other lyke thinges Therfore to withstande this euyll 〈◊〉 we ordeyne / that as sone as the kinges escheters baylyffes shall haue entred such custody / the prelat ê whiche haue iurisdiccyon / shall openly solemply forbyd all the seyd baylyff ê generally / that vnder payne of ercomunication they atteÌ„pt no such thig But if they do coÌ„trary / let it be opeÌ„ly declared / that they be fallen in to the senteÌ„ce of excoÌ„tcation decreed agaist the violatours troublers of the churches lyberties vntyll thei haue made a coÌ„petent ameÌ„des / for the hurts iniuries which senteÌ„ce if they dyspyse after such denuncyation Let proces be made agaist theÌ„ by interdiccyons and other penalties ordeyned agaynst suche wrong doers / and excepte the kynge admonisshed therof make competente restitucyon / or cause the thinges so taken to be restored and amended Let proces be made against hym / as it is decreed in other cases touchynge the kynge / and the selfe same thinges which are before decreed for the kynge and his minysters we wyll to be obserued in other inferyour lordes / if peraduenture / the custodye come to them Thus farre goth the seyde constitucyon / wherby it appereth / that though the parties greued might in such case haue good remedye by waye of peticyon to the kynge or against his bailyffes by the ordre of his lawes that yet the clergye nat content with those remedyes haue taken vpon theym to make the seyde constitucyon to declare that suche offycers be nat onely fallen
It is recyted / that all they be acursed that do maliciously presume to take away fro chirches their right or through malyce / or contrarye to iustyce do intende to breake or distourbe the lybertyes of the same / and than there vpon the makers of the said lawe say farther thus / wherby saye they / we perceyue all them to be tyed in the daunger and in the bonde of excomunicacyon / that obtayne letters fro any laye courte to let or hynder the ê“ces of spirytuall iugê in all suche causes as hy the verdicte of holy Cannons be knowen to appartayne to the iuges of the spiritual court / and the sayde letters are to be vnderstande as it semeth of the kinges prohibycions And who can haue knowlege what parteyneth to the spirytuall courte by the Canons / whiche be so many so great in nombre that fewe canne come to the knowlege of them And these lawes be so vncertayne that it wyll be harde for anye man / to knowe whether he be in the danger of them or nat / And where ignoraunce shall excuse hym that is so accursed / and where nat it is a right great doute / and such thynges as touche the people so nygh as such excomunicatyons doo / wold be brought as nigh as reason could dryue it in to a more clere knowledge / than thei be yet as me semeth ¶ The .xvi. chapiter IT is the lawe of this Realme / that if a man recouer his presentemeÌ„t in a Quare impedit / In the Kynges courte agaynste a nother that claymeth the patronage And a gaynst his incumbent / that the playntyffe shall haue a writte to the bisshop to admytte his clerke / whether the incumbent of the disturbour be admytted before the writ come or nat vpon the payne of a Quare non amisit / and of making of a fyne to the kiÌ„ge And if the deffendauÌ„tes might haue pledyd plenartye / and dyd nat / they loste the aduauntage of it and the clerke muste be remoued And yet it semeth that there is a constitucyon made to the contrary therof in the thirde boke / and in the tytle of patronage / whiche begynneth Whan one optaineth in the kinges lawe c. For it is sayde there / that if suche a writte come to the bisshoppe / and the benifyce be nat voyd / that the prelate for his excuse shall shewe vnto the kynge or his Iustices / that by cause such benifyce is nat voyde that he caÌ„ nat fulfyll the kinges coÌ„maundemeÌ„t And certayne it is that / that is no excuse in the lawes of the realme And than the sayde Decree somwhat to saue the tytle of the Playntyfe / as it thynketh / gothe further and saythe that it shal be lefull to the patrone in that case to present the possessoure agayne / that by that meanes / the title of the patroÌ„ that hath optayned / may be declared more playnly after But howe can the patron present the same possessour agayne / if he may nat be remoued / as the seyde constytucyon preteÌ„deth that he may nat And therfore if he shulde present him agayne / it shulde be rather a confyrmatyon of his first presentment / and a hurte to his owne tytle / than anye furtheraunce of it / for the possessour shulde haue the benifyce styll by the first presentmente / and nat by the presentmeÌ„t of the patrone / so at the nexte tyme of auoydance / the same dysturbour shulde by reason of that presentment present agayne And of that it shulde folowe also / that if a dysturboure coulde fynde the meanes that his encombent shulde be admytted / that he shulde nat be remoued durynge his lyfe / though the right patrone recouered after in the kynges courte / and that were clerely agaynst iustyce / therfore the ordinary in that case is bounde by the lawes of the realme / vpon his ieopardye / to amoue the clerke of the disturbour / as is sayde before But if the churche be full of the presentment of an other patrone / than of hym that the Quare impedit is brought agaynst Or if the ordynary haue presented by laps / where he is nat named in the action as a disturbour / than he may laufully laye tho causes for his excuse / But for the plenartie of the same encumbent / agaynst whom the accyon is brought he can make no excuse / and there is another decree in the thyrde boke of lyke effecte / as the sayd fyrste decree is it begynneth Esurientes auaricie c. Wherin ther be some thynges dyrectely agaynst the writtes of Quare impedit / quare non admisit / as to the reder wyll appere And it semeth that it is nat good / that suche lawes shulde be suffred to staÌ„de that be so dyrectly agaynste the lawes of the Realme / seyng that it perteyneth to the kynge and his lawes to ordre the right of all presentementes with in this Realme The .xvii. chapiter IT is an olde law custome of this Realme that if a felon or a murderer flee to a church aske sentwary there that he shall haue it / and that than he shall remayne ther fourtie dayes / and no man to be prohibit for those fortye dayes to bryng him mete drinke but aft the fortie daies meat and drynke shall be prohibyte him / tyll he wyll yelde him self to the kynges lawes And he that thaÌ„ wyll brynge him any meat or drinke offendeth the lawe / and in the mean tyme whyle he is so in sentwary it is laufull for the to wnship where he is to set sure watche and kepynge aboute him that he shall nat escape / lest they shuld be punisshed against the kinge for the escape And yet in a constitucyon prouincyall / that is in the thyrd boke / in the tytle of the churches lybertie And begynneth Porro et infra Amonge other thinges / it is decreed / that none shall be set to watch them that take the church or the churche yearde for sentwary / and if there be / that as well the kepers / as they that set them there / shall be dryuen away in forme of lawe by the sentence of excommunicacyon And the coÌ„stitucion is further / that the churche shall defende them / whom the Canons only commaunde to be defended And all this Constitucyon is voyed bycause they that made it hadde no power to make it / for it was made vpon this pretence / that such sentwary is grauÌ„ted to churches by the lawes Canon / where in dede it is grauÌ„ted by the kinges progenytours / and the lawes of his realme / in fauour and honour of churches / and therfore it hath apperteyned alwayes to the kinges lawes to determine in what case a man shal haue sentwary in a church in what nat / and how he shal be ordered whaÌ„ he is there / howe long he shall tary there / and if he wyll abiure howe he shall be ordered
¶ A treatise coÌ„cernynge diuers of the constitutyons prouynciall and legantines ⧠Printed at London by Thomas Godfray Cum priuilegio regali Introduction IN this lytell treatyse are contayned dyuers thynges concernyng the constytutions prouynciall the legantynes / of Othe and Octobone / somtyme legates in this realme And the matters that in treateth of be shortely touched in .xxx chapiters / whiche be sette in the later ende of this present treatise / wherby it appereth that diuers of the said constytutyons and legantynes be agaynst the kynges lawes his prerogatyue And that some of them be also very troublous vnto the people / and nat so charitable as they ought to haue ben The fyrst chapiter IN the constytutions prouiciall in the first boke / and in the tytle of coÌ„stitutions there is a decre / whiche be gynneth Quia incoÌ„tinentie uicium et infra Wherby it is coÌ„maunded that the constitucyon of the late lorde Octobon / agaynste concubinaryes be inuyolably obserued / and that it be recyted openly in the foure princypall chapiters rurall of the yere / before all the chapiter excludynge thens / and seperatynge all lay persons c. These constitucions be good and necessary But why laye personnes shulde be seperate fro the seyde recytalle I se no cause / for if laye persons might be there also to here it / it wolde bothe do them good / and also make the spirituall men the beter to take hede And syth laye men here of the defaultes and abusyons at home where they dwell What hurte could it do / if they herde the lawes that the clergye hath made for a reformation of them But it is verye lyke that / that excludynge of laye men fro the redynge of the sayde constitucyon proceded of a drede / that the prelates at the makynge of the seyd constitucyon had lest that laye men / if they herde it / shulde happely the rather disdayn prestes or dispyse them but surely it is to feare that / that drede ê“ceded nat of charite / but of sigularyte / for by reason therof / I suppose the mater is come to that effecte / that it is neither red to preestes / ne yet to laye men ¶ The seconde chapiter ALso in the constytution / whiche begynneth Quod in constitutione et infra And it is in the fyrst boke / in the tytle of the Iteracyon of the sacramentes / to be done / or nat done After the vii Sacramentes be there resyted / it is sayde thus But the .vi. sacrament that is to saye of holy orders / accordeth to they in that be parfyte And the seuynth sacrament / that is to say of Matrymonye / in the tyme of the Newe testameÌ„t accordeth to imê‘fet And though it be trewe / that some that be in holy orders be more parfyte thaÌ„ they that be in matrimony / yet to make a recytall in the lawe generally that the one order / that is to say prestehode accordeth to perfytte men And the other / that is to say matrimony accordeth to imparfet men / may ful lightly gyue occasyon to the one / that is to say to prestes to be vaine glorious / to the other that is to say to maryed meÌ„ / to mystrust ouermoche the state of lyuenge that they be in / which neuerthelesse vndoutedly accordeth to parfyte men / and if it be well kepte / is in dede holy blessed And though I knowe well that the meanyng of the sayde recitale is nat that all in the one degre be ê‘fite / and in the other vnperfyte yet for asmoche as laye men that rede it / be maried may lightly take it so / it may do great hurte that way / as is sayd before / but I se no way howe it can do any good And it is no doute but that matrimony in the Newe testameÌ„t parteyneth and accordeth to parfytte men / as well as euer it dyd in the olde testament The thyrde chapiter THe lawe of the Realme is that yf an aduowson be voyed / and the patrone present an able encombent to the ordynarye accordynge to the lawe / that the ordynary vpon his paryll shall admytte hym / and if he do nat a Quare impedit lyeth agaynst hym / as it shulde do agaynst another disturbour And yet neuerlelesse hath the bysshoppes and clergie made a coÌ„stitucyon / that if a preest haue a benyfyce / and also a soÌ„ne dyeth / that / that sonne shall nat be presented to that benefice next after his father And the seyd constytucyon is in the tytle of preestes sonnes / in the fyrst boke And begynneth For as moche as it is forbydden And there is a lyke legantyne of Otho / that begynneth Although holy fathers c. And in that legantyne it is decreed / that if any prestes sonne / be immedyatly after the deth of his father / presented to the same benyfyce / and no meane parson betwene / that he shal be depreued And these lawes were made whan it was lanfull for preestes to haue wyues And also / it maye come yet in vre / in case that a man haue a sonne before his preesthode / and after hath a bene fyce / and dyeth / in whiche case his sonne is prohibyte by these lawes / that after the death of his father / he maye nat be admytted to that benyfyce And in this poynte / the lawes of the realme / and the sayd spirituall lawes do vary For in the same selfe case / if the patrone after the deth of the father presente the sonne / so that he be able to be presented / if the bysshoppe refuse hym a Quare impedit Lyeth agaynste hym natwithstandynge / the seyd constitucyons / and he shall be compelled by the kynges lawes to admytte him And the abylytie or non abilytie / in this case shal be taken accordynge to the qualytie of the person presented in vertu and connynge / and nat accordyng to the lawes made by the clergye For if they wolde make a lawe / that none shuld be admitted to a benyfyce / but he were a maister of arte That law shulde nat bynde in this realme / and this inconuenyence may folowe vpoÌ„ suche lawes / that if a man in suche case be admytted by auctorite of the kynges lawes / and be in possessyon / the clergy wyl make proces agaynst him / and depreue him / so that the one law doth the other will auoyde / where vpon variaunce and vnquietnesse may ensewe / nat onely in those cases / but also in other lyke / and a lyke lawe is in the tytle of othes in the seconde boke that begynneth thus / We determyne by this present statute c. Wherby it is decreed / that the bysshoppe shall receyue an Othe of him that is presented / that he hath neither promysed nor gyuen ought for that presentacion vnto the presenter / neither made any coÌ„pactioÌ„ with him for it / specyally if he that is preseÌ„ted seme
of persones / be layde in pryson And if they can nat be founde / that than they be banisshed the realme / wherbi is meÌ„t / that they be outlawed And it is sayd there that therin the lybertie of the church is confouÌ„ded broken / whan a clerke is iuged of a laye iuge / and it is therfor decreed / that if the clerkê that be so takeÌ„ be knoweÌ„ be honest / that thaÌ„ as well the takers as the wtholders of them shal be declared excoÌ„itate / and the landes of the takers and retayners of them to be enterdit tyll they be delyuered / and conuenient satisfaction and amendes made / but it is here to be noted / that the constitution coÌ„sydereth nat / that it is as law full for iuges to here the complaynte agaynst them that be innocent / as agaynste theym that be gyltie / tyll the matter be tryed And therfore if the complaynte be made of such matters as they ought nat for to be delyuered to their ordinaries in / if they were gyltie / than the ordynaries may nat complayne / though they be nat delyuered where they be nat gyltie tyll the matter be tryed / for it is nat yet knowen whether they be gyltye or nat And also / if it be in case that they ought to haue priuelege and be delyuered / yet if they be asked of offycers that haue no power to delyuer them / ther is no cause why such offycers that so deteygne them / shulde be excommunycate / or their landes enterdyted And therfore it semeth / that constytutyon farre vnreasonable in that pointe And that clerkes ought nat to be put to answere before laye men / I neuer sawe any auctoryte therof / but lawes of their owne makyng which be therin of no strengh for theÌ„ in this realme / excepte certayn lybertyes that they haue iÌ„ that behalf / by the kyng his ê“genytours / by the lawes and customes of the Realme / whiche be right great moch fauourable vnto them / it they be well loked on And if they wyll nedes clayme suche lybertyes by other waies / than by the kiÌ„ge and his lawes / that they haue them of they deserue the lesse to haue theÌ„ any lenger Than the seyde Constytucion saith farther in the later ende / That if clerkes restored to the churche / be amerced by the seculer iuge / for any personall transgressyon / the prelates shall nat compell the sayde clerkes to paye the same amerciameÌ„t seynge they were nat coÌ„dempned by their own iuges And surely there is no cause / why a clerke for a personall transgressyon shulde nat be compelled to pay the amercyameÌ„t / and that by the kynges Iuges as well as any laye man shulde / without spekynge any thynge to the prelates in it but yet as longe as such lawes stande vnrepelled it wyl be thought by many of the clergye that it is nat so / that the lybertye of the churche is greatly offended by it The eyght chapiter THere is a Constitucion in the seconde boke in the tytle of a coÌ„peteÌ„t courte / that begynneth / Circumspecte agatis et infra / wherin be dyuers artycles which be put in maner worde for worde among the statutes of this realme / whiche the lerners of the lawe of this Realme haue coÌ„menly amonge them / and there is set as for a tytle of the sayd CoÌ„stitucion these wordê folowyng CertaiÌ„ thiÌ„ges takeÌ„ out of the kyngê answers c. whiche neuerthelesse as I suppose were neuer takeÌ„ out of the kyngê answeres / for they be in some poyntes clerely agaiÌ„st the lawes of this realme / as it is in that there is recyted therm that prelates / for fornycacyon auowtry / or suche other / enioyne sometyme corporall punysshemeÌ„t / some tyme pecunarye / but I neuer herde that prelates haue auctoritie to enioyne peyne pecunarie for aduowtrye / fornycacion / or suche other And also in the sayd constitucyon it is sayde / that if the prelate or aduocate of any churche aske of the persone any pencion due to him / that all suche pencyons ought to be asked in the spirituall court / and maketh no exception of no maner of pencion / the lawe of the realme is clere / that Annuyteis and pencyons that begyn by coÌ„posycion or agrement of the parties / and also by prescripcyon belong to the kynges court / and therfore many haue sayd / that the sayde treatyse of Circumspecte agatis is no statute / but that it was so named to be by the prelates / and so it is sayd that it was in the .xix. yere of kynge Edwarde the thirde in a writ of Annuitie / and if it be so / than is it but onely a bare constitucyon / And than it is to the two poyntê afore rehersed clerely voide / because it is therin dyrectely agaynste the kynges lawes his prerogatyf / was also made without his asseÌ„t or any of his ê“genitours The nynth chapiter THere is a constitucyon in the thirde boke among the constitucyons De Clericis non residentibus that begineth Audistis et infra wherin it appereth that whan a preest taketh two benefices with cure of soule without a pluralitie / that some lawes spirituall haue iuged both to be voyde / and some haue holden the laste to be voyde / as the legatyne of Octobon doth And than the sayd Constitucyon decreeth that he shal be content with the last benyfyce so optayned But all those lawes / as it shulde seme by the sayde constitucyon / are to be vnderstand only of such benefyces / as any parsone had at that tyme withoute pluralitie And therfore the same coÌ„stitution gothe farther / and decreeth that who so euer hensforthe receyue many benefyces all hauyng cure of soules / or otherwyse uncompatyble / without the popes dispensatyon / or gete them by waye of institutyon or coÌ„mendam / or of custody / otherwyse than the constytution of Gregorie made in the counsaile of Lions doth permytte the same in so doyng to be depriued from all benefyces that he hath so optayned And than as I take it / the lawe of this Realme is / that all benefyces so optayned with out pluralitie / be clerely voyde with out any depriuation For there be in the lawes of Englande / fyue causes of a voydaunce of a benifyce That is to saye Resygnation / dethe / depriuation / creation / cessyon And CreatioÌ„ is / where a maÌ„ that hath dyuers benifices is made a bisshop for than all his benifeces by that creatioÌ„ be forchwith voyde And where a man taketh two benifyces / without pluralytie they be voyde also And that is called Cessyon And if there must be therupon a depriuatioÌ„ before they be voyde / thaÌ„ is the depriuation the cause of the voydauÌ„ce not the CessyoÌ„ And thaÌ„ there shuld be but four causes of a voydaunce / howbeit I wyll nat determynatly speke in that matter / for they that
custome of Englande make theyr testamentes but shall suffre that executours of their testamentes / frely to dispose and order the same And the seyde Constitucyon is in the thirde boke / in the tytle of testameÌ„tes And begynneth Ita quorundam et infra And if the seyde Constitucyon / and the lawe of the realme also in that poynte were refourmed / And that it were appoin ted / that the goodes of clerkes shuld be charttably disposed aff their deth specially suche as they haue by anye spirituall benifyce / in suche maner as shuld be thought coÌ„uenient by parlyameÌ„t and conuocation It shulde seme to be a good charitable dede ¶ The .xiiii. chapiter IT apppereth so euydently in scripture / both in the olde testament and in the new that the people are bownde to fynde to their spirytuall ministers a suffycieÌ„t porcyon of their goodes to lyue with that it nedeth nat to expresse here any certane auctoritye therof / and for a recompence of that certayn porcion / it is vsed in this Realme in maner vniuersally / that the peple shall pay to their spiritual ministers the tenth parte of their encrease / which tenth parte many spirituall ministers clay me to be due to theym by the lawe of god And therfore it is sayde in the third boke / in the tytle of tythes and oblatyons / that they that paye the eleuynth shefe for the tenth / dispyse the coÌ„maundemeÌ„tes of the olde and new testament / the whiche pretence excludeth all customes and prescriptions that mighte be had contrary to the tenth parte And syth it is well knowen / that it hath ben in late tyme / also yet is in question and in doute whether the tenth parte be grounded vpon the lawe of god / or vpon the lawe of man It semeth that good charitie wolde / that for the clerynge of the conscyence of many meÌ„ / it shul de be clerely and plainly determyned whether it be soo or nat And if it can be proued to be a morall lawe of the olde TestameÌ„t / or to be assigned by any authorite of the Newe testament / that the tenth parte shulde be payde / I trust no man wyll resyst it And if it can nat be proued that the tenth parte is by the lawe of god thaÌ„ of very ryght the olde resonable customes of payeng of tythes muste be obserued / as well by theym that aske tythes / as by them that pay them / and than if any man wyll denye to paye his predyall tythes after the olde custome / or that any curate wolde eske any more than right requireth / It semeth reasonable that he be enforsed by compulcyon of lawes to kepe the custom Howbeit some lawes seme nat reasonable of payenge tythes That is to saye that tythe shul de be payed of the skynnes of the she pe that dye to the losse of the owner ne yet that the tythynge of the odde lambes or calues shulde be set ouer tyll another yere / to the entent the curate in the seconde yere maye haue a tenth lambe or calfe / that in the same yere coulde nat haue had it Also it semeth a very sore lawe that seruantes shulde tythe for their wages / or that any man shulde be sewed for preuy tethes / which lyeth nat in outwarde profe / though it be rightgood to pay suche preuy tythes / as conscience requireth And yet it semeth to be the moste straunge lawe of all the other / that Persons / vycars / and parysshe preestes / shall vpon a payne be compelled to sewe for tythes / that they may natsyt styl if they lyst / and that is by a constitucion in the third boke that begynneth For so moche as through dyuers customes c. And all the other artycles before rehersed appere in the Constitucyons in the tytell of Tythes and Oblacyons Nat all in one peragraf / but in seue rall peragrafes / as to the reder wyll appere / and if they were reformed it semeth it were a good dede Also to bere the people in haÌ„d that the tenth parte is due to curates and spirituall mynysters by the immediat lawe of god / and it nat so / is a great offeÌ„ce for it is an affyrmaunce of an vntruth / and many persones haue ben compelled therby to paye the tenthe parte / contrary to the olde custome vsed in those parties where the curate hath had ynow besyde / wherfore it semeth better the more charytable way for the ministers of the churche to confesse if the truth be so that the .x parte is grounded only vpon the custome law of man / that it began by the good assent of the people / thaÌ„ to clayme the .xx. ê‘te to be due to theÌ„ by the Immediat lawe of god / and yet vnder that pretence a lawe is made in the sayd tytle of tythes oblacions / whiche begynneth All be it god hath promysed c. Wherby it is decreed / that tythes shal be payed generally of wode / that is agaynst a statute of this realme / made in the xlv yere of the reigne of kynge Edwarde the thyrde / wherby it is enacted / that a phibicion shall lye where a man is impledid for tythe of wode of the age of .xx. yere / by the name of Siluacedua / As it had done in tyme past / and it semeth nat good to suffre a Constitucion to stand so dyrectly agaynst a statute / but it be opeÌ„ly declared why it ought so to do The .xv. chapiter IT is a daungerouse thynge to fall in to the Censures of the churche / and therfore they wolde nat be gyuen but for great causes And in such playne and open maner / that euery man that wolde with dilygeÌ„ce take hede to it might knowe whether he offended in that thynge that they were gyuen for or nat but the more pytie is / the censures of the churche be many tymes extended in such a generall maner / and in so many cases / that no man can well knowe howe to eschewe them / and that appereth many tymes in the coÌ„stitutions / as whaÌ„ men be a cursed for breakynge of the churches lyberties / and expÌ„sseth nat what the liberties be And in the said tytell of tithes and oblations / in the later ende of the constitution / which begynneth Men are so blynded c. Is this generall lawe made / that all and synguler / such as worke wicked inuentions and deceytes / by the whiche the rightes or the aprobate custo mes / or the lyberties of the church be in any thynge dimynisshed / or suffre any iniury / domage / or grefe / coÌ„trary to the churches lybertie / shall be wrapped in the bonde of the great excoÌ„municatyon / their absolucyon reserued specially to their diocesan / the poynte of deth onely excepted And in a constitucion which is in the fifth boke / in the tytle Contra grauamina c. And begynneth Cum malum et infra
iurisdiccyon / is eyther to do them good / or els no hurt And so it appereth / that they complayne without a cause / yet the coÌ„plainte is haÌ„deled vnder suche a facyon that it might make som that shuld happeÌ„ to rede it / thynke that the spyrituall Iurisdiccyon were therin greuously offended And yet / whan the matter is throughly loked vpon / it appereth that it is nat so Also in the same CoÌ„stitucyon / a lyttell before the clause that is remembred before / the same Constitucyon sayth thus And some tyme whan a surmyse is made to the kynge / that the seyde parties imprisoned be excomunicated for such causes as apperteyneth nat to the spirytuall courte / that than haue the sheryffes in coÌ„maundement / that if he be excomunycate and imprisoned for such cause and none other / to cause the bisshops to delyuer them shortly / and no credence or faithe / saith the seyde coÌ„stitucyon is gyuen to the proces of the spirytuall Iuges vpon suche cause of excoÌ„municacyons / and vpon those wordes / it is to be noted / that the seyd coÌ„stitucyon in the clause mistaketh the lawe of the realme verye farre / for the lawe is / that suche an excomunicate ê‘sone shall neuer be put in to the bisshops prison / but in to the sheryffes prison / and than to haue a coÌ„maundemeÌ„t to the sheryffe / that he shall cause the bysshop to delyuer him out it standeth natte with reason / for they can nat delyuer him oute of prison that they haue nat the kepynge of / and as they mystake the lawe of the Realme in that poynte / so they do in many other in the sayde Constitucyons / as it wyll appere if they be well thorowly loked vpon / and it is somwhat to be meruayled / that the Constitucyon sayth / that no credence nor faith is gyuen to the proces of the spyrituall Iuges / vpon suche causes of excomunicatyon for vpon their proces and certifycat the partie is arested / and than if it appere after by the proces / that the partye is imprisoned for suche cause as appertayneth natte to the spirytuall courte / than dothe the kynge well / if he commaunde the sheryf to delyuer him out of pryson / and he is also of Iustyce bounde to do it And ouer that / if a man were excomunicate for that thynge that apparteyneth nat to the spirytuall courte / and after suche a proces were shewed / wherby it shulde appere / that the matter shulde apparteyn to the spirytuall courte / and the partye wyll auerre the coÌ„trarye what credence shulde be gyuen to the spirytuall proces in that behalfe I wyll nat take vpon me to determyne but commytte it to other / howe be it it shulde seme resonable that the partye shuld haue auerremeÌ„t agaynst it And after in another Constitucyon / that is in the fyfth boke / in the tytle of the sentence of excomunicatyon / begynneth Furthermore it happeneth sometyme c. Amonge other thynges that be moch lyke to the constitucioÌ„ before rehersed / it is decreed that if the writte of Excomunicato capiendo be required / and in especial where it ought to be awarded bi the laudable custome of the realme / and it be nat graunted / that the kynge muste be warned by the prelate / that it maye please him to grauÌ„te the seyd writte / which if he wil nat do all his cyties / castels / boroughes villages whiche he hathe within that dyoces shal be eÌ„terdicted / so an interdiccioÌ„ is deryuyed agaynst him by occasion of the fauour that his owne lawes / the custome of his realme hath gyuen vnto the clergye And I thynke veryly / that if the rulers wolde take the payne to loke vpon the sayde Constitucions / they wold nat suffre them to stande vnreformed / for gret charges and expences be lyke to folow vpon excomunications / as long as they shall be suffred to stande in effecte The .xx. chapiter IF a Parson or a vycar suffre their houses to be in decaye / dye It is resonable that his executours shulde repayre them / if they haue goodê suffycieÌ„t to do it / but yet it semeth that the spiritual iurisdictioÌ„ hath no power to compell the executours to make the reparacyons / for it is a thynge concernyng waste / that is teÌ„porall / and parteyneth merely to the kynges courte / and the iugement of it concerneth the payment of money by the executours / whiche the spirytuall court hath no power to enioyn the executour to And if they do / they ronne therby in to the premunire / therfore it were better that a remedy were prouyded in suche case by parlyament / than that so great daunger shulde hange vpon the prelates / and also vpon the parties that shulde sue accordinge to the ConstitucyoÌ„s made in that behalfe / wherof one is in the thirde boke / in the tytle of buyldynge of churches And begynneth If the persone of any churche c. And the other is in the same tytle / and begynneth We ordeyne that no inqsicyon c. ¶ The .xxi. chapiter IT is resyted in a Constitucyon / that is in the third boke / in the tytle of churches liberties / and begineth thus For as moch as the laye be forboden c. That lay men be forboden / as well by the lawes of god as of man / to ordre and dyspose the churche goodes by the which terme churches goodes / spirytuall men vnderstande / as well landes and tenementes / as chatels personels And I suppose / that there is no lawe of god that dothe prohibyt laye men to dyspose and determyne the right of laÌ„des and goodes of the church but that it most properly apperteyneth to theym / and nat to the clergye And that semeth to appere Luc. xii Whan our lorde refused to denye the enheritaunce bytwexte the two brethern And it is to suppose / that as he refused to medell with the iugemeÌ„t of suche temporall matters him self / that he wolde his appostels and discyples / to whom the clergye be successours shulde doo the same And as it semeth he wolde also that the Emperour that tyme beinge / and his lawes shulde doo it and nat he Than the same Constitucyon gothe further / and fyndeth a defaute at parysshens / that take trees growynge in churchyeardes some tyme to their owne vses / and sometyme to the vse of the churches And it byndeth all such doers in the sentence of excomunicatyon / comprehended in a legatyne of Octobon / in a constitucion made by the counsell of Oxforde / agaynste the vyolatour of the churchê lybertye And it decreeth further / that they shal be put froÌ„ the company of the faythfull / to their confusyon shame / tyll they offre make an effectuall ameÌ„des And this is a right sore and an extreme lawe for as I take it the trees in the churcheyarde ought to stande
styll for the deffence of the churche / and of the chauncell as long as they may staÌ„de / with out they be felled by the asseÌ„t / as well of the Parsone or Vycar / as of the paryshe / and if the Parson or Vycar agre that the parisshens shall fell theÌ„ to the reparations of the churche / I thynke they do ryghte well And if the parisshens agre that the Parson or Vycar shall haue them to the reparacyons of the chauncell / I thynke that they do well also / but if a tree in the Churcheyarde fall downe by tempest / or otherwyse / who than shal haue the tre it is more doute / for thervpon it is to se in whome the freholde of the churcheyarde is Howe be it the grasse hath alwaye by a generall custome parteyned to the Parson or Vycar / and I wyll no ferther speke in that mater at this tyme / but that I thynke verily there is no case reasonable / why so harde and extreme a Constitucion euyn to their confusion and shame that take such treis shulde be made against the parissheÌ„s in that case / though they take the trees without assente of the parsone or vycare / specyally if they take theym to the vse of the churche ¶ The .xxii. chapiter FEwe men maye do more good than a good precher may and fewe men maye do more hurte than an euyll precher maye And there be many lawes Canon / and also Constitucyons prouincyall made who shall haue auctoritye to preche / and who nat / which to eschewe tedyousnesse to the reders / I wyll omytte for this tyme / excepce onely a Constitucyon prouincyall / that is in the fyfth boke / in the tytle of Heretykes / and Secsmarykes And it begynneth Reuerendissime sinado et infra Wherby it is decreed / that no seculer or reguler nat auctorised by the lawe or other wyse specially priuyleged to preach the worde of god / shall take vpon him the offyce or vse of prechiÌ„g excepte he fyrst present himself to the Dyocesan / and be founde apte and mete / and be than sente to preach by him / and that they which afferme theÌ„ selfe to haue specyall priuylege / shall really exhibyt and shewe their priuilege to the Parsone or Vycare c. And they that pretende to be sente by the dyocesan / shall in lykewyse shew the letter of the Diocesan vnder his great seale And than the sayd Constitucyon goth further saith thus The perpetuall Curate / we vnderstande to be sente by the lawe / to the place and people of his owne cure NatwithstaÌ„dynge / if it happen any such to be suspended fro such prechiÌ„g by the Dyocesan / or by any other superyour for errours or heresies / whiche is pretended that he hath preched affermed / or thought than maye he in no wyse medle with prechynge in our Dyocyse / vntyll he haue purged him self of that defaute at the iust arbyterment of him that dyd suspende him / and that he be laufully restored agayn vnto prechynge of which his restitucion he shall haue letters and cary them with him in al places where he shall afterwarde preche / and shal really exhibit the same in maner and forme aforsayd Thus farre is of the sayd coÌ„stitucion as me semeth it is no reasonable cause / to prohibyt any man / specyally a curat that hath ben admytted to preach that he shall nat preach for errours or heresies / which is pretended that he hath preched / affermed / or taught for it may be pÌ„tended that a man hath affermed preched also taught heresies / that yet it is nat so in dede for euery pÌ„tence is nat alway true if there be no such heresie pÌ„ched nor taught thaÌ„ there is no defaut wherof he ought to pourge him selfe Than the seyde Constitucyon goth yet further / and sayth That if any precher dispyse this holsome statute / and do prech on his owne heed agayne sayenge obstinatly in word ordede / declaryng that the seyde sentence of excomunicatyon may nat be decreed and coÌ„mauÌ„ded in the church in the persones of their prelates / yf they wyll nat therfore abiure / they shall be taken for heretykes / they goodes to be forfayte by the lawe ferthermore it is decreed / that the clergye or people shall admytte none to prech / excepte they first make a profe of their auctorisynge And if they do otherwise / the place where the prechynge is / shall be vnder church enterditynge in the doynge These be very strayte lawes And they prohibyt suche persones to preache as peraduenture wold preach well and catholycally / and that wolde happely touch somwhat concernyng the Ordinaryes or their iurisdictyons / whiche they wolde nat gladlye haue spoken of And therfore I holde it a very necessary thyng for the rulers to loke well vpon this matter / to se it set in such ordre / that nothyng be don agaynst the lawe of god therin And I suppose verily / that the rulers be bounde in conscyence to do it / and in that the Constitucyon decreeth / that their goodes shall be forfayt / that is a voyde decre for they had none auctoritye to decree vpon any goodes and the forfyture of the goodes / for heresye is ordred by the statute made in the seconde yere of kynge Henry the fyfth ¶ The .xxiii. chapiter IT is decreed in the seyde fyfth boke / in the tytle of heretykê and scismatikes / in the constitucion that begynneth None maye presume c. That none shall dispute openly or preuely of the Artycles determyned by the church / as they be conteyned in the decrees Decretals and Constitucyons prouyncyall or Sinodals / except it be done to haue the true vnderstandynge of them Ne maye call in to doute / the auctoritye of the same decrees Decretals / and Constitucyons prouyncyal or the power of the makynge of them And specyally concernyge the adoracyon of the gloriouse crosse / worshippynge of sayntes Images or pylgrymages makynge / vnto their places and relyques or agaynste othes to be made after the vsed maner in causes accustomed in both courtes / that that is in the spirytuall courte and temporall but that theÌ„sforth all shal teache comenly and preach / that the crosse and Images of the crucyfyxe and other Images of sayntes ought to be worshypped in the memory and honour of them / whom they fygure and represent c. And here it is to be noted / that the resonynge and dysputynge of the Artycles of the faith be nat onely prohibyte / but the dysputynge of the Articles / determyned by the churche / as they be contayned in the decrees decretals and Constitucyons prouincyall or Synodals / prohibiteth nat expressely the resonynge of the Artycles of the faythe / Howbeit in that the Constitucyon excepteth / that a man may reason suche thinges to haue the true vnderstandynge of them it semeth very resonable but that a man may nat
fifth beke / in the tytle of canonycall purgatyoÌ„ / that begineth Statuimus et infra wherby it is decreed that if clerkê haue made their canonycall purgatioÌ„ vpon suche thynges as was layd obiecred agaynst them / that yet neuerthelesse the laye power taketh their goodê or with holdeth theÌ„ / that such takers witholders shal be coÌ„pelled vnto restitucyon of the seid goodes by censures of the church And the canonycall purgation that is spokeÌ„ of in the seyd coÌ„stitucyon / semeth to be the purgation of clerkes coÌ„uycte / that be coÌ„mytted to the bisshops prysoÌ„ and there make their purgation / and that the prelates ment at the makige of the seyd constitucyon / that if they dyd so / that they shulde haue theyr goodes that they had whan they wer conuycie But I take the lawe of the realme to be / that clerke coÌ„uycte shal forfayte his goodes And if it be so / that constitucyon can nat helpe it by no maner of purgatyon that can be made by the clergye ¶ The .xxvi. chapiter PRelates haue done verye moch in time past to brige it about that clerkê shulde nat be put to aÌ„swer before lay men And bicause clerkes sometyme offended in huntynge in forrestes parkes / wherof many tymes suche great dyspleasure was taken / that amendes must nedes be made The Prelates made a lawe to appoynt howe the ameÌ„des shulde be made in suche case by their owne auctoritie / so that there shuld nede no sute be takeÌ„ in the behalfe at the kingê lawe / the remedy was thys As it appereth in the fifth boke / in the title of a clerke that is an hunter in a constitucyon / which begynneth We ordeyne that if any clerke c. That if the clerke were conuycted therof before the Ordinary or coÌ„fessed it / that than the Ordinarie shulde make redemptyon therof in his goodes / and satisfye the partie greued And if he had no goodes / that thaÌ„ his bisshop shulde greuously punissh him And surely if any Ordynarie dyd execute the seyde Constitucyon / and put the clerke to answere of the offence afore him / and after made redemptyon of his goodes accordynge to the Constitucyon / he shulde renne clerely in to the premunire And furthermore in case that the clerke haue no goodes / ne can nat be founde / he shall be outlawed at the coÌ„mone lawe / nat withstaÌ„dynge any punisshment that the Ordynaries coulde make vpon him And yet it semeth that the makers of the seyd Constitucyon wold haue preueÌ„ted that outlagarie if they coulde And now let euery man iuge what goodnesse can come by the seid Constytucyon / or why it shulde be suffred to contynew any lenger / syth it can do no good to prelates or clerkes / ne to none other ¶ The .xxvii. chapiter THere is a Constitucyon in the fyfthe boke / and in the tytle of paynes / that begynneth Eterne sanctio voluntatis et infra Wherin it is recyted a monge other thinges / that it oftetymes happeneth Archebisshops / bysshops / and other inferiour prelates to be called to seculer iugement / for such thiges as be knowen merely to apperteyne to their offyce / and to the spirytuall courte wherof I shall recyte parte / and parte I shall omytte to eschewe tedyousnesse First it is recyted / that if prelates parchaunce haue amitted or nat amytted clerkes to churches vacante or nat vacante or haue excomunicated their subiectes / haue enterdited / haue had cognicion of causes spirituall / as of boundes of parisshes / which as it is sayd there may in no wyse pertayne to the seculer courte / or if they haue taken examinacion of the defaultes of their subiectes as of partury / promes brekyng / troublynge of the churche lyberties / seynge that the violatours therof be by the sentence made vpon the kynges charter excomunicate in the dede doyng or if they holde plee bytwyxt the laye complaynyng and Clerkes defendynge in personall accyons vpon contractes or as contractes / vpon trespas or as trespas All which matters with diuers other here omitted is preteÌ„ded there in the sayd Constitucion to be mere spirytuall / and I haue here recyted these artycles therof / that it maye the better appere whether they be mere spirituall or nat / And it is euydent ynow that dyuers of them are mere temporall And neuertheles it is ferther decreed there that Archebysshoppes / Bysshoppes / and other prelates shall nat appere whaÌ„ they be called before the kyng or his Iustices for such causes for so moche that ther is no power geuen to the laye / to iuge the lordes anoynted / but ought of necessyte to obeye them / and than for reformynge of suche thynges / the Constitucion gyueth strayte proces agaynste the kynges baylyffes and offycers / and agaynst the clerkes that do make the writtes of attachemeÌ„tes or distresses with great excomunicacions and enterdictions / and fynally procede so farre that they sette the kynges landes in a certayne circuit therin lymyted vnder interdiction / but he vpon the admonicyon of the Bysshoppes reforme suche thynges / and it is after decreed / that if the Bysshoppe or ecclesyastical iuge or inferiour prelate be compelled by suche distresses to appere / and the Actes of his 〈◊〉 be than requyred of him so that it may appere therby / whether he hath proceded in any of the seyde cases or lyke / or if othes / excusations / or put gacyons / be required therin / that he shall in nowyse exhibyt his Actes or gyue any othe / for that the partyes maye brige the Actes forth c. And why any such lawes shulde be made that they shuld nat in such case shew their Actes or proces / ne make anye othe before the kyng or his iustyces I can nat parceyue the verye cause / but that they be of lykelyhode very lothe to haue it examyned What is their verye Iurisdiccyon and what nat Thus haue I recyted parte of the seyd coÌ„stitucion / and remytte the resydue to theym that wyll take the payn to rede it And surely they that so do / shall se dyuers harde and extreme clauses Actycles in it And if they and such other lyke were refourmed / I thike it were right good and expedient / as well for the clergye as for the people The .xxviii. chapiter THere is a Constitucyon in the .v. boke / and in the tytle of paynes / whiche begineth / Euenit et infra wherby it is decreed thê° The laye shalde compelled precysely by senteÌ„ce of excomunicacion to paye all maner penalyties / as well corporall as pecunarye / whiche they be enioyned to by their prelaties / and they that wyl let or stoppe such penalyties to be payde / shalde punisshed by sentence of interdiction and excomunication / than if the proces be made vnto the distraynyng of prelattes for that cause / let proces be made against the distreyners by the penalyties declared in